
    H. B. McDonald vs. Joshua Green.
    Where an appeal has been taken from the dissolution of an injunction and the decree below affirmed, and another injunction is granted by the chancellor upon an amended bill, from a refusal to dissolve which the defendant has in turn appealed, on the hearing of the last appeal the court cannot go into the questions decided by the first: they are matters adjudicated.
    It is incumbent on one who wishes to avoid a contract on the ground of a defective title, to show that defect clearly: where, therefore, in a bill for the rescission of a contract for the purchase of land, the vendee asserted that C. and D. bought the land of the state; that C. sold his interest to D., who had sold to the complainant’s vendor, and alleged that the sale from C. to D. was by parol, as the executors of C. could' find no written evidence of it; and that therefore the legal title to one half the land was still in the heirs of C.; but it was not averred in the bill that the heirs of C. asserted any right to the property or were unwilling to convey, nor was it averred that the office for the record of deeds contained no evidence of a conveyance: held, that the bill did not make out a case for rescission.
    The insolvency of the vendor of land can only be considered of when it is clearly shown that he cannot make title thereto; Qucere, if then.
    On appeal from the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    Joshua Green filed his bill in the superior court of chancery against H. B. McDonald and others to enjoin the collection of a promissory note made by him to George Finucane and -. Barnes, and by them indorsed to McDonald; and also to procure the rescission of a contract for the purchase of a lot in the city of Jackson, in part consideration of which the note referred to was executed.
    Upon the bill, answers, exhibits and proofs of the parties, the chancellor dissolved the injunction as to McDonald : Green appealed ; and the order of dissolution was affirmed by the high court; a report of the case and of the matter of the original bill and answers will be found in 5 Howard’s Rep. 542.
    
      After this decision Green filed an amended and supplemental bill, reciting the former proceedings, and then charging that Finucane had filed a bill in chancery against the heirs of Caldwell and Dickson, to procure title to the lot, by which it appeared that the title to one undivided half thereof was still in the heirs of Dickson. Green then charges that if there was any sale by Dickson the sale was by parol and therefore void; that Finucane was insolvent; that he pretended that he had purchased the lot of Caldwell, who had previously purchased of Dickson his moiety of the lot: that the representatives of Caldwell, in their answer to Finucane’s bill, say that they have found no written evidence of Dickson’s sale to Caldwell; that F. and B. being tenants in common with Dickson’s heirs, could not sell by metes and bounds until partition.
    The supplemental and amended bill further states that about the time McDonald purchased said note of Barnes, perhaps before he purchased it, he called on Green to know if it was a good note and would be paid; Green replied in substance that it was a good note and would be paid when Finucane and Barnes made title to the property for which it was given, and also that he had an account against Barnes which was an offset. McDonald said he would deduct the account if Green would pay the note. Green replied that he would not pay it until Finucane and Barnes made him title to the lot, and stated the difficulty; and so he charges that McDonald did not become the holder of the note in ignorance of Green’s defence, but that he bought with a knowledge thereof.
    McDonald’s answer to the supplemental and amended bill admits that Finucane filed a bill in chancery against the representatives of Dickson and Caldwell; but of the proceedings in that cause he averred that he knew nothing: no transcript being filed, he required proof of the title to the lot: he knew nothing, and required proof. In reply to the charge of his knowledge of Green’s defence to the note, he says: “ True it is that about the time this respondent was negotiating with Barnes for the purchase of said note he held a conversation with Green relative to said note. This conversation is correctly and at length set out in respondent’s answer heretofore filed : he can give no more correct or detailed statement of that conversation than in his former answer he has given. The time, manner, and matter of said conversation were as in said answer set forth, and not as set forth in the supplemental bill. Respondent refers to that answer as part of this, and makes the whole of that answer a part of this.” The answer further states that Green is now in the possession of the lot for which the note was given.
    The evidence taken was as follows:
    Thomas Green proved that on the 14th day of February, 1838, a conversation occurred between McDonald and Green, in which Green informed McDonald of the defect in title, and therefore refused to pay; proved a tender of the money to Finu-cane in October, 1838; and also that on the 14th February, 1838, Green gave notice of sale of Barnes’s account.
    George Finucane proved that on the 18th of February, 1837, he delivered the note sued on by McDonald to Barnes : that at the time he sold the lot to Green he believed he had good title to the property, else he would not have sold, and so induced the complainant to believe. Pie had no reason to believe that complainant knew anything of the situation of the title except from his representations.
    The cause was submitted upon this state of pleading and proof to the chancellor, on a motion to dissolve the injunction. He overruled the motion and the defendant appealed.
    
      D. Shelton, for appellant
    cited and commented on 5 How. Rep. 542; Finucane v. Kearney, Free. Ch. R. 65 ; 3 Marsh. 288 ; 5 Serg. & Rawle, 204; 13 Serg. & Rawle, 386; Fonb. Eq. 272 ; Walk. Rep. 244; 5 How. 468 ; 2 J. Ch. Rep. 524; 5 How. 469 - 470; 1 Fonb. Eq. 372, n; 1 John. Ch. Rep. 218; 2 John. Ch. Rep. 519; lb. 546; 2 John. Ch. Rep. 522; 2 Vesey Jr. 402; 6 How. 498; 4 How. 160; 1 Sto. Eq., 202; Rev. Code, 464, § 9 ; 5 John. Ch. Rep. 54; 13 John. Rep. 52; 20 John. Rep. 637; Ruth. Inst. Book 2, ch. 7; 1 Ch. Black. Comm. 59; 1 How. 43.
    
      W. Yerger, for appellee,
    cited and commented on 4 John. Ch. Rep. 497 ; 2 Yeates Rep. 464; lb. 541; Taylor v. Mitchell, 1 How. 600 (S. C. U. S.); 9 Cranch, 51; 2 Pet. Cond. Rep. 300; 4 Kent Com. 470-474; Sug. on Tend. 410, 411; 4 J. J. Marsh. 428 ; 3 Mon. 566; 5 lb. 189; 3 Bibb, 342 ; 5 Mon. 288; 4 J. J. Marsh. 288 ; 3 Rand. 44; 2 John. Ch. Rep. 523 ; 3 Cranch, 276; 1 A. K. Marsh. 434; 1 S. & M. 4S8; Ward v. Van Bokkelen, 1 Paige, 100; Rodgers v. Rodgers, 1 lb. 426; Wakeman v. Gillespy, 5 Paige, 112; Apthorpe v. Comstock, Hopk. 148; 1 Bland, 195; 2 John. Ch. Rep. 202.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

The appellee filed this bill to enjoin the collection of the amount of a promissory note given to secure part of the price of a lot in the city of Jackson, purchased by appellee of Fin-ucane and Barnes. On this note the appellant had brought suit as indorsee. The same case was before this court on a former occasion by appeal taken by the present appellee from an order of the chancellor dissolving the injunction, and is fully reported in 5 Howard, 542. The judgment then given is final and con-’ elusive on all the matters adjudicated, and on all the points of law settled. We cannot re-adjudge what was then decided. But subsequent to that decision the complainant filed a supplemental and amended bill, and obtained another injunction, which appellant, McDonald, who was respondent, moved to dissolve, but his motion was not allowed, whereupon he has appealed ; and we are now to consider of the propriety of this decision of the chancellor, as made upon the amended bill. .

The only additional grounds taken in this bill are, first, that since the original bill was filed, Finucane, the vendor of the lot, has commenced a suit in chancery against the representatives of Caldwell and Dickson, to coerce title; by reference to the proceedings in which it appears that the title to an undivided half of the lot is still in the heirs of Dickson; and if there was ever a sale from Dickson to Caldwell, it was by parol, as Caldwell’s executors can find no written evidence of such sale, and that it is consequently apparent that Finucane has not and cannot procure a title to more than half of the lot. Second, that Finucane is insolvent; and third, that before or about the time McDonald purchased the note, he called on complainant to know whether it was a good note, and was answered that it would be when Finucane and Barnes made a good title to the lot, about which there was a difficulty ; and that he therefore purchased the note with a knowledge of the defence that would be set up. McDonald alone answered this bill, and admits that Finucane commenced a suit as stated, but does not admit that the proceedings therein show the alleged defect of title, and calls for full proof by the record. He admits that Finucane has become insolvent since the original bill was filed. He admits that he had a conversation with Green about the time he was negotiating for the note, but denies that he was informed of any difficulty; on the contrary, he avers that he was then informed that it would be paid, and refers to his original answer for a full explanation of this conversation. He admits that in a conversation with Green in February, 18BS, he was informed that the note would not be paid,' in consequence of the defective title, but that this was the first intimation he had received to that effect. Does the state of case presented by the bill, the answer, and the proof, entitle the appellee to relief?

First, to take the questions as they are presented. The first inquiry is as to the effect of the allegation in regard to the defect of title, as shown by the proceedings in the suit in chancery instituted by Finucane. Assuming this statement to be true, it presents but a slight ground-for relief. Green was a purchaser with a notice of defective title. Finucane had purchased from Caldwell, who had purchased the interest of Dickson, his co-purchaser from the state. The allegation does not establish the fact positively that the contract between Caldwell and Dickson was by parol, but the ground of this charge is, that Caldwell’s executors can find no written evidence of such contract. The record office has not been searched: it may be that a deed, or a title bond, is on the record in the proper office. But admitting that the contract was by parol, Dickson’s representatives may be willing to convey, and if so, Green is in no worse condition than when he made the contract. The allegation is entirely silent as to any unwillingness on the part of Dickson’s heirs to convey. They may confess the contract and thus take.it out of the statute. No objection whatever is raised to the contract between Caldwell and Finucane. But this allegation is not sustained by proof. The proceeding in the chancery suit was proffered as an exhibit, but not filed. The allegation was not admitted by the answer, but proof called for by the record, which should have been made. It is undoubtedly incumbent on one who wishes to avoid a contract on the ground of a defective title, to show the defect, and to show it clearly. The title of Finucane, although now imperfect, may be perfected. The covenants in this case were holden to be independent, and if complainant can have any relief in equity, it certainly cannot be granted on anything short of a showing that he never can get a title, which he has failed to make.

Second. On the question of the insolvency of the vendor we express no opinion, as it is a question that cannot be brought fairly to bear until it has been clearly shown that no title can be had. Then, as the only remedy is on the covenants, the ability of the vendor to answer in damages might possibly be a subject of inquiry.

Third. It is also unnecessary that we should say anything on the third allegation. It is however not sustained by the proof, which establishes a conversation in February, 1838, when the note had been transferred to McDonald, at least as early as February, 1837. We do not think, then, that this amended bill can entitle the party to relief. The decree is therefore reversed and the injunction dissolved.  