Cooper v. Lynes

Fish, C. J.

(After stating the foregoing facts.) Cooper in his petition alleged that the suit brought by Lynes against Hobbs, Wiggins, and Camp, was collusive, and that the verdict and judgment against Wiggins and Camp were obtained by fraud. On the trial there was not sufficient evidence to sustain such allegation. The suit by Wiggins against Cooper in which a nonsuit was granted is of no materiality in the case. It appeared on the trial that no part of the purchase-money for the land had ever been paid. In the circumstances set forth in the foregoing statement, Wiggins had such an interest in the land as was subject to the judgment obtained by Lynes against her on the purchase-money notes which she had indorsed. Cooper came into a court of equity asking affirmative relief, that is, that a sale of the land under a judgment on the purchase-money notes should be enjoined and the land decreed to belong to him. Before he could obtain such affirmative equitable relief he was bound to do equity, that is, to pay the purchase-price of the land. This he refused to-do, on the trial.

In view of the evidence on the trial it did not appear that Cooper had a good title by prescription under color and seven years adverse possession of the land. Only one witness' testified as to Cooper’s possession, and his testimony was merely to the effect that Cooper had possession since he took a transfer of Wiggins’s bond for title, and since Leonard’s deed to him on March 21, 1911. The circumstances as to this tax sale by the sheriff, the purchase thereat by Leonard and conveyance by him to Cooper on tbe same day of the' execution of the sheriff’s deed to Leonard, the fact that Carmichael requested Leonard to purchase the land at the tax sale, the absence of any evidence as to the consideration of the conveyance by Leonard to Cooper and as to any consideration for the transfer by Hobbs to Cooper of Wiggins’s bond, the.possession by Cooper at the time of the levy of the tax.execution and the sale of the land thereupder, and the payment by the sheriff to Cooper, under the direction of Hobbs, of the balance of the amount paid by Leonard for the purchase of the land at the tax sale, clearly indicated a fraudulent scheme on the part of Cooper to obtain title to the land without the payment of any of the purchase-price. .We accordingly hold that the court did not err in directing a verdict in favor of the defendants.

Judgment affirmed.

All the Justices concur.