Preston v. Breckinridge

JUDGE BENNETT

delivered the opinion op the court.

On the sixth day of August, 1795, John Breckin.ridge and George Nicholas purchased of John Lee one-half of Joseph Blackwell’s land entry, which contained nineteen thousand and sixty-two and' one-half acres. The half of the entry thus purchased by Breckinridge .and Nicholas was surveyed, and the survey was assigned to them, upon which a patent was issued to them for nine thousand five hundred and thirty-one and one-quarter acres. Breckinridge and Nicholas agreed to pay John Lee ten pounds for each hundred acres of said land, the title to which should prove to be indisputable.

On March 1, 1798, Breckinridge sold to Nicholas and W. Beal his half of so much of said survey as was within a circle of three miles of the forge of the iron-works company on Slate creek. In consideration ef this conveyance, Nicholas and Beal agreed with Breckinridge to pay to John Lee the purchase price of the land sold them by Breckinridge. There were four thousand one hundred and fifty-five and one-quarter acres of land within this circle, of which Nicholas owned three-fourths and Beal one-fourth. Outside the circle there were five thousand three hundred and seventy-six acres of land, wdiich Breckinridge and Nicholas owned in equal parts.

Lee, Breckinridge and Nicholas having died, and no part of the purchase money having been paid, Lee’s executors brought suit at law against Breckinridge’s .administrators for the whole purchase money of the nine thousand five hundred and thirty-one and one-quarter acres.

On September 12, 1811, after Lee’s action was commenced, Breckinridge’s administrators brought their' action in equity against Lee’s executors, Nicholas’ executors and devisees, W. Beal and others. The purposes of this action were, first, to compel Lee’s executors to exhibit an indisputable title to said land;, second, to compel Nicholas’ executors and W. Beal and others to pay the entire purchase money for all the land within said circle; third, to compel Nicholas’ executors to pay one-half of the purchase money for the five thousand three hundred and seventy-five acres lying outside of the circle, and to enforce the lien on the whole nine thousand five hundred and thirty-one and one-quarter acres for the purchase money.

Lee’s executors obtained a judgment against Breckinridge’s administrators for the whole of the purchase money; but it was not until 1829 that they succeeded in collecting it from them.

In 1858, Breckinridge’s administrators succeeded in obtaining judgment enforcing their lien for the purchase money, which they had been compelled" to pay to Lee’s executors, upon the nine thousand five hundred and thirty-one and one-quarter acres of land.

Robert Wickliffe, a purchaser pendente lite, and Nicholas’ representatives and others, appealed the case to this court. During the pendency of the appeal Robert Wickliffe died, and the case was revived in the name of his executors. This court decided the case in 1866.

It was held by this court that Breckinridge and Nicholas, by their purchase, acquired an. .indisputable title to the nine thousand five hundred and thirty-one and one-quarter acres of land; that Lee retained a lien upon the nine thousand five hundred and thirty-one and one-quarter acres of land for his purchase money; that Breckinridge’s administrators, having paid the whole purchase money to Lee’s executors, they were entitled to be substituted to Lee’s lien upon the land, except the one-half of the five thousand three hundred and seventy-six acres lying outside of the circle, which half Breckinridge did not sell to Nicholas and Beal. Therefore, the judgment of the lower court was affirmed in so far as it adjudged a lien upon all the land within the circle and decreed a sale of it for the whole purchase money of that portion of the land, and in so far as it adjudged a lien upon Nicholas’ half of the five thousand three hundred and seventy-six acres lying outside of the circle. But the case was reversed upon the sole ground that the lower court should have exhausted the lien on Nicholas’ half of the land lying outside of the circle before proceeding to subject other property in the.hands of Nicholas’ representatives to the discharge of this lien. It was also decided that Robert Wickliffe was a mere pendente lite purchaser, which purchase was subordinate to the rights of the administrators of Breckinridge. For a full history of the case, see Wickliffe’s Executor v. Breckinridge’s Heirs, 1 Bush, 427.

The circuit court, in strict accordance with the man- • date of this court, on July 26, 1867, decreed a sale of all the land within the circle and one-half of that lying without the circle.

The commissioner, pursuant to the directions of the decree, on October 14, 1867, sold the land in separate parcels on a credit of twelve months. The appellants purchased the same at a sum sufficient to pay the debts, including interest and costs, against it. The appellants, on the day of their purchase, executed bond for the purchase price, which bond became due on October 14, 1868. The sale, together with the bond, was duly reported to court, and the sale was confirmed on November 2, 1867.

The appellants being satisfied with the title to all the land lying within the circle, they paid, after the maturity of the bond, the purchase money, including the interest thereon, for all the land lying within the circle. But after the confirmation of the sale, and about the time of the maturity of the bond, they filed a petition in the case, in which they alleged that the land lying outside of the circle, which was sold by the commissioner as Nicholas’ moiety, was, at the time of sale and confirmation, held in adverse possession by various persons other than claimants under Nicholas, who were parties to the suit and pendente lite purchasers. They asked the court to put them in possession of this land before compelling them to pay the balance of the purchase money.

Several amendments, responses and orders were made between that time and the February term of court, 1884. Such of these proceedings as we deem necessary to be noticed will be noticed hereafter.

At the February term, 1884, the appellee commenced proceedings for an order to enforce payment of the sale bond, either by execution or by an order of attachment. The appellants resisted the proceedings upon the ground, among others, which will be noticed hereafter, that at the time of the judgment, sale and confirmation, and for a long time before, the land outside of the circle was in the adverse possession of various persons other than pendente lite purchasers and claimants under Nicholas, who were parties to the suit; that the judgment and sale as to this land were, therefore, void ; and that the sale, to the extent of this land, should be set aside and their bond canceled.

Upon the hearing of these defenses, the lower court disregarded them, and awarded execution for the unpaid balance of the purchase money. The appellants have appealed to this court.

While the parcels of land within and without the circle were sold separately, yet this was done merely for the purpose of classifying the land; both boundaries were liable for the same debt, which were secured by the same lien; the same persons purchased both boundaries, and executed one bond for the aggregate amount of the purchase money.

It is conceded that the land to which the appellants get a good and clear title is worth much more than the appellants agreed to give for the whole land. It also appears that the appellee, not long after the appellants raised the question as to the land in controversy being in adverse possession, offered in open court to have the sale set aside and the appellants’ bond canceled, and to take that part of the land, the title to which was undisputed, for their debt, interest and costs. This offer the appellants refused, claiming that they were entitled to a specific performance of the contract of purchase' as to all the land to which they could get a good title, and to an abatement of the contract price for the portion of land to which the court could not make them a good title.

What interest in the land did the court sell? and what interest did the appellants purchase ?

The judgment answers both of these questions. It says: “The sale shall pass to the purchaser all the title of George Nicholas, and of those claiming under him, who are parties to this suit or purchasers pendente lite in the five thousand three hundred and seventy-six acres of land, it being the moiety of said George Nicholas and of those claiming under him that is hereby sold.”

It is clear that George Nicholas, at the time the suit in 1811 was commenced, had a clear title to this land, the only incumbrance thereon being Lee’s lien. It is clear that at said time there was no adverse holding of this land by others than pendente lite purchasers. If any persons other than pendente lite purchasers have made an adverse entry upon the land since 1811, the time of such adverse entry does not appear. The allegations are, that, at the time of the judgment and sale, and for a long time prior thereto, such adverse holding did exist. Also, it is not contended that, barring this adverse holding, the title to said land would not be in Nicholas’ devisees, ‘ or those parties to the suit who claimed under Nicholas, or pendente lite purchasers.

The court offered to sell, and did sell, the title of George Nicholas, and of those claiming under him who were parties to the suit and pendente lile purchasers. The title of these, and none other, the court sold. It did not propose to hazard a sale of any other title. Whatever title these parties had was sold. If outside intervening interferences had ousted the title of these parties, and established a title in others, the •court says by convincing implication, if not in so many words, it did not mean to sell that title. Of this unmistakable language of the court the purchasers were notified before they purchased.

As it is not shown that the title to this land had “been changed into other hands so as to defeat any title •that the court might make, by reason of the conduct •of the persons claiming under Nicholas who were parties to the suit, or by pendente lite purchasers, Ihe appellants got at the sale all that the court proposed to sell them.

Further, observe how guarded the language is; for "the court limits the sale to the title of Nicholas and his devisees, and those who are parties to the suit, claiming under Nicholas and pendente lite purchasers, hut denies itself the right to sell the title that any other persons might have acquired from Nicholas, or from other sources, thus requiring the purchaser to look out for titles or adverse interests from such other .sources.

In addition to these considerations, a strong equity confronts the appellants. The land that they actually acquired by their purchase is worth much more than •they agreed to give for the whole. The appellee offered to set aside the sale, cancel their bond, and take the land, the title to which was undisputed, for their debt, interest and costs. This offer the appellant rejected, and insisted on holding this land and receiving an abatement of the purchase price for the balance’ of the land, thus causing a clear loss to the appellee, and leaving him without remedy, while the appellant’s' purchase, already enormously profitable, would be increased to the extent of thousands of dollars by receiving an abatement of the price of the disputed land.

For the foregoing considerations we cannot concur in the appellant’s contention.

But it is contended that the judgment and sale, in’ so far as any of the land at the time was held by adverse possession, were void, as contravening the-statute against champertous sales of land.

The statute of 1824 provided, in substance, that' all sales of land in the adverse possession of another, whether by executed or executory contract, should be void. The Revised Statutes contained substantially the same provision, with the addition of “including sales under execution.” The G-eneral Statutes contain substantially the same provision as that of the' Revised Statutes.

Champerty, by the common law, consisted in a person’s upholding a controversy, he having no rightful interest therein, under a contract to have a part of the property or subject in dispute The statutes supra, therefore, were not merely declaratory of the common law, but they made a new and additional provision.

The statute of 1824 was silent upon the subject of execution and judicial sales. This court construed that statute as not applying to such sales. The distinction between an execution and judicial sale, the-former being a ministerial and the latter a judicial act, was doubtless well-known to the profession and the law-makers. So, when the Revised Statutes were enacted, the provision against champerty was made to “include sales under execution” but not judicial sales. So, also, the same provision is incorporated in the General Statutes.

As just intimated, the act of 1824 was inténded to apply to voluntary sales — transfers of title. It was thought best for the peace and repose of society that persons should not stir up strife, contention and animosities, by selling or transferring land in the adverse possession of another. But when a person’s land was sold by judicial sale, he could not be said to have sold it. Its sale might be against his will. The court ordered the sale, and the court, by its commissioner, made the sale.

The court was not required to institute a search in order to find out whether or not any other person held the adverse possession of the land. The person and his title were before the court, and the court having jurisdiction of both, and seeing that the title was in the person, and that another party before the court had the right to have the title sold, no further inquiry was necessary. (Saunders’ Heirs v. Groves, 2 J. J. Mar., 408; Little v. Bishop, 9 B. Mon., 240; Drinkwater v. Drinkwater, 4 Mass., 354; Willard v. Nason, Administrator, &c., 5 Mass., 241; Cook v. Travis, 20 N. Y., 400; McGill v. Doe, 9 Ind., 306; Stevens v. Hauser, 39 N. Y., 302; High v. Nelms, 14 Ala., 350; Dubois & Longer v. Marshall, 3 Dana, 337.)

Thus stood the law down to the time of adopting the Revised Statutes. The provision of that statute relative to champerty re-enacted the statute of 1824 upon that subject, except sales under execution were included in the Revised Statutes. Also, the Gfeneral Statutes have the same provision in reference to executions.

We conclude that these two statutes were adopted with reference to the construction that had been given the act of 1824; and that the provisions in these two statutes were intended to have the same meaning as the act of 1824, as interpreted by this court, except in so far as a change was expressly made by “ including sales under execution.” The reason why sales under execution were excluded is readily seen when it is considered that the officer making the sale is a ministerial officer, whose duty it is to investigate for himself, not only whether the execution defendant has title to the land, but whether it is adversely held. This latter fact is not required of the chancellor. Hence, the statute does not embrace judicial sales.

It is also contended that by the failure to issue execution on the sale bond for more than fifteen years after the maturity of the bond, the right ,to issue the execution was barred.

This position would be well taken but for the fact that the circuit court, at its December term, 1868, at the instance of the appellants, and against the objections of the appellee, ordered a stay of execution on the sale bond until the investigation of the title to the land in dispute, and the report of the commissioner thereon, could be made. The commissioner made no report until 1871. This order, made at the instance of the appellant, was certainly a valid and binding order, which, prevented the appellee from issuing execution on the bond. And the order having been taken at the instance of the appellants, it is certainly not right for them to be allowed to take advantage of the delay caused by it, in order to escape from the payment of the bond. Deducting the time intervening between the issual of the order and the report of the commissioner, the statute of fifteen years does not apply.

Robert J. Breckinridge, at the time the judgment was rendered and the sale of the land thereunder, was the administrator of John Breckinridge; but he resigned and the appellee, W. C. P. Breckinridge, was, on the eighth day of January, 1868, appointed administrator instead of Robert J. Breckinridge. Shortly afterwards he, by petition, set up the fact of the resignation of Robert J. Breckinridge and his appointment. Robert J. Breckinridge and W. C. P. Breckinridge also presented another petition, in which they set up the foregoing facts. These petitions were filed in the case, and W. C. P. Breckinridge was, henceforward, treated as plaintiff in the case, although he was not by formal order substituted by the court as plaintiff. But the case having for years progressed in his name, and he having been treated as plaintiff in the case by both court and appellants, they, the appellants, cannot be heard to complain now. Besides, the court did, in 18S3, by formal order, substitute W. C. P. Breckinridge as plaintiff in the case.

The land was sold by the decree of court in separate parcels, but the commissioner took one bond for the aggregate amount of the purchase money. This arrangement was preferred by tlie appellants, and tlie court approved the bond as taken. This arrangement did not invalidate the bond as a statutory bond.

The judgment recites that the court reserves the power of putting the purchaser in possession of the land sold. It has already been indicated what title was sold, and this part of the judgment has reference to that land. Besides, the reservation of the power adds nothing to the judgment; because the court possessed the power independently of the express reservation of it in the judgment.

We find no error in the record prejudicial to the rights of the appellants.

The judgment is affirmed.