Jordan v. Beal

Trippe, Judge.

All questions were eliminated from the case at the hearing by the answer of defendants and the suppletory affidavits, but one. That question is, can the vendee of lands, who sells and gives a bond for title to an insolvent vendor, one who has no property, and so known to the vendor, 'on the ground of that insolvency, simply, ask for the appointment of a receiver who shall hold the property until a decree can be had canceling the contract of sale? There ivas no fraud charged. The charge as to waste, etc., was denied by the answer and by affidavits. No authority was referred to showing that such a remedy exists, and we can see much danger and unlimited trouble that would be given to the courts if the principle contended for were a correct one. The owner of property thus selling it does so with his eyes open. Ho takes the risk. He reserves the title as security. His lien is higher than any other. A specific remedy is given him by statute: Code, secs. 3684, 3886. No fraud in the contract is practiced upon him. He has simply made an imprudent bargain, or comes to the conclusion he has, as his debtor, the purchaser, does not pay him at the time agreed on, and then asks a court of equity to take the land at once out of the possession of the purchaser and hold it for him until he can have a decree to set aside the whole bargain, and then to give him back his land. If this were the rule, or if a holding were made, as is invoked by complainants, under the facts as they appeared at the hearing-before the chancellor, every vendor of land who makes a rash or imprudent sale would at once seek the remedy, and there would be a harvest of suits for relief from one’s own improvidence and error. This would work a greater evil than is the hardship of waiting six months on a suit at law, and a sale as provided by law.

Judgment affirmed.