
    No. XXXI.
    Hardin v. Titus.
    (See .)
    
      Appeal from Red River County.
    
    
      
      .—Hardin v. Titus, p. 622.
      1 Where the promise is to pay in specific property, the promisor, in order to exonerate himself, must tender the property when due at its fair cash value. De Wees v. Lockhart, 1 T., 535; Cherry v. Newby, 11 T., 457; Fisk v. Holden, 17 T., 408.
      2 Failure of or defect in title is a good defense to an action on purchase money note. If contract is executed, there should be either an eviction or surrender of possession, unless the vendor has been guilty of fraud or false representations. If contract is executory, eviction or surrender of possession is not necessary to entitle vendee to defense, unless vendee had knowledge of defect. Tarpley v. Poag, 2 T., 139; Mitchell v. Zimmerman, 4 T., 75; Smith v. Clopton, 4 T., 109; Jones v. Taylor, 7 T., 240; Crayton v. Munger, 9 T., 285; Stewart v. Insall, 9 T., 397; Brock v. Southwick, 10 T., 65; Perry v. Rice, 10 T., 367; Walling v. Kinnard, 10 T., 508; Neel v. Prickett, 12 T., 137; Lawrence v. Simonton, 13 T., 220; Copeland v. Gorman, 19 T., 253; Cooper v. Singleton, 19 T., 260; Taylor v. Johnston, 19 T., 351; Woodward v. Rogers, 20 T., 176; Cook v. Jackson, 20 T., 209; Taul v. Bradford, 20 T., 261; Hurt v. McReynolds, 20 T., 595; Hurt v. Blackburn, 20 T., 601; Smith v. Nolen, 21 T., 496; Littlefield v. Tinsley, 22 T., 259; Luckie v. McGlasson, 22 T., 282; Sharp v. Baker, 22 T., 306; Green v. Chandler, 25 T., 148; Littlefield v. Tinsley, 26 T., 353; Johnson v. Long, 27 T., 21; May v. Taylor, 27 T., 125; Rhode v. Alley, 27 T., 443; Baldridge v. Cook, 27 T., 565; Raines v. Calloway, 27 T., 678; Lemmon v. Hanley, 28 T., 219; Demaret v. Bennett, 29 T., 262; Tooke v. Bonds, 29 T., 419; Wasson v. Davis, 34 T., 159; Bryan v. Johnson, 39 T., 31; Price v. Blount, 41 T., 472; House v. Kendall, 55 T., 40; Carson v. Kelley, 57 T., 379; Norris v. Ennis, 60 T., 83; Estell v. Cole, 62 T., 695; Haralson v. Langford, 66 T., 111; Doyle v. Hord, 67 T., 621; Moore v. Hazelwood, 67 T., 624; May v. Ivie, 68 T., 379; Wheeler v. Boyd, 69 T., 293; Neyland v. Neyland, 70 T., 24; McIntyre v. De Long, 71 T., 86; Fagan v. McWhirter, 71 T., 567; Fisher v. Dow, 72 T., 432; Bellamy v. McCarthy, 75 T., 293; Pease v. Stone, 77 T., 551; Culbertson v. Blanchard, 79 T., 486; Earle v. Marx, 80 T., 39; Ogburn v. Whitlow, 80 T., 239; McCamly v. Waterhouse, 80 T., 340; Groesbeck v. Harris, 82 T., 411; Paschall v. Penry, 82 T., 673; Brown v. Montgomery, 89 T., 250; Walker v. Cole, 89 T., 323; Livestock Co. v. North, 92 T., 72; Land Co. v. Simpson, 1 T. C. A., 600; Savoy v. Brewton, 3 T. C. A., 336; Crouch v. Johnson, 7 T. C. A., 435; Blanks v. Ripley, 8 T. C. A., 156; Nowlin v. Frichott, 11 T. C. A., 442; Rosborough v. Picton, 12 T. C. A., 113; Bennett v. Latham, 18 T. C. A., 403; Moore v. Vogel, 22 T. C. A., 235; Hubbard V. Coker, 1 App. C., sec. 657; Trevino v. Hein, 2 App. C., sec. 105; Hannah v. Chadwick, 2 App. C., sec. 517; Dougherty v. Belew, 3 App. C., sec. 395. Fondeen v. Leake, 1 U. C., 153; Linn v. Willis, 1 U. C., 164; Hubbard v. Bigham, 2 U. C., 420.
    
   OCHILTREE, Justice.

—This suit was brought for the recovery of a note, dated: “Hernando, Miss., Nov. 11, 1839.—On or before the first day of January, 1842, I promise to pay John L. Brown, seven hundred dollars, in the currency of this country, for value received of him. (Signed) John Hardin.”

This note was assigned to the plaintiff by indorsement, in June, 1841.

The petition contains the usual allegations in a suit instituted by the indorsee of a promissory note against the maker, without any special averment respecting the currency in which the note purports to be made payable; and concludes with an allegation that the defendant has never paid the demand, and with a prayer for process and judgment against the defendant for the amount of the note with interest and costs.

The answer consists of a demurrer which avers that the plaintiff ‘Ras not set forth in his petition such a cause as entitles him to judgment;” also of a plea, “that on the day the note became due the defendant tendered to the plaintiff the full amount demanded by said note, which he refused to accept; and that the defendant is still ready to pay the plaintiff the same, to wit, the sum of seven hundred dollars in bank notes of the Bank of Mississippi.”

The petition in this case contains, we think, all the necessary allegations to sustain an action on a note of the description sued on. It would be different if the contract had been for the delivery of specific articles on demand; for then a demand, and refusal or failure, should be specially averred. But in cases where the contract specifies the sum to be discharged by the delivery of specific articles, or of a particular description of currency, and the time of payment, the place of delivery or payment either results from the nature of the contract itself, or is to be fixed by the creditor upon application of the debtor, before the time of delivery. In such cases it has been held that it is the duty of the payor to apply to the payee before the day of payment arrives, to ascertain where he will receive the articles specified; and it is the privilege of the latter to fix. the place of delivery, provided it be a reasonable one, which the debtor will be bound to observe; or failing so to do, he will lose the benefit of discharging his contract specifically, and must be held to pay it in money. Bixley v. Whitney, 5 Greenl., 192. In eases, then, where the place of payment is fixed by the contract, or results from the nature of such contract, and in cases where the first step is to be taken by the debtor to ascertain the place, it is unnecessary for the plaintiff in describing his cause of action in his petition to allege anything concerning the place of payment, or his readiness there to receive the specific articles; and it will be sufficient if the petition set forth nonpayment generally. If the defendant relies on specific payment in his defense, he must set it forth with all the necessary incidents in his answer.

The plea is veiy defective. If the defendant intended to allege that on the da}r the note became due he tendered to the plaintiff the amount due in money, that is to say, gold and silver coin, he should have alleged his present readiness to pay in the same medium; otherwise the plea would be no defense. This he has not done, for upon a fair construction of this portion of the answer, the defendant alleges a tender in one description of currency, and his present readiness to pay in another, viz., bank notes of the Bank of Mississippi; and it does not appear by averment or otherwise that these ‘Tank notes” are the currency referred to in the note. But in the absence of any statement of facts (and the transcript contains none in this case) it would be presumed, if the answer presented distinct and legitimate issues of fact, that these issues were properly tried in the court below, and determined in a manner compatible with its judgment.

In addition to the foregoing matters, the defendant has endeavored to establish an equitable defense, which he insists should preclude the plaintiff’s recovery. This portion of the answer alleges that the note sued on, together with several others, was given in purchase of two town lots in the town of Hernando, on the 11th of November, 1839, to one John L. Brown; that said Brown had purchased not only these, but other lots in said town, of the plaintiff and one Samuel McCorkle, and had received their bond to make a title when all the lots so purchased should be paid for; that the said McCorkle has informed him that the title to his two lots will not be made until Brown shall pay for all the lots he purchased; that Brown fraudulently concealed from the respondent the situation of the title to the lots purchased of plaintiff and McCorkle as aforesaid, and did not disclose the incumbrances affecting them; that consequently the respondent purchased in ignorance of these circumstances, and that he believes and charges that the said Brown is insolvent; that said Brown transferred the note sued on to the plaintiff; that it is the joint property of plaintiff and McCorkle who received it, knowing the circumstances under which it was given'; also that he, the respondent, took possession of the two lots for which the note was given, believing that Brown would make him a good title, etc.

We do not deem it necessary to allude to the incumbrances complained of by Hardin. The latter part of his answer renders it entirely unnecessary to do so. To avail himself of the relief which he sought from the equitable power of this court, he should have shown that he had been evicted from those two lots, of which he took possession at the time of the purchase. 8 N. S., 330; 2 N. S., 619; 3 N. S., 611; 4 Mart., 23.

The defendant can not be permitted to withhold the price, unless he be evicted by one having paramount title. It would be alike unjust and contrary to the authorities cited to permit him to retain the property in possession without any actual or probable danger of being disseised or disturbed in the enjoyment of it, and at the same time refuse to pay the price. The judgment of the court below must be affirmed.

Affirmed.  