
    William P. Stone et al. vs. Robert H. Buckner et al.
    B. and C. owned a tract of land jointly, in equal interests ; C. bound himself in a penalty to S. and R. to convey to them a good title to the whole tract; B. and C. subsequently made a deed in fee of the whole land to S., who gave a mortgage for the purchase money; on a bill by B. and C. to foreclose the mortgage, held, that R. could not resist the foreclosure of the . mortgage to any more than one fourth of the land, th'at being all the interest he acquired by the obligation from C. •
    B. and C. being equally owners of a tract of land, C. in February, 1837, sold the whole tract for $24,332, agreed to be paid by S.'in four equal annual instalments, and bound himself in a penalty to make R. and S. a title in fee simple to the whole land ; in May, 1837, B. and C. conveyed the whole land to S., who executed his eight notes for the purchase money, and gave a mortgage on the whole land to secure their payment, which was recorded in June, 1837; in October, 1837, S. conveyed to R. an undivided half of the whole tract; and in the year 1840, S. conveyed to R. the residue of the land, and also his interest, being one half, in certain slaves ; R. agreeing, in consideration thereof, to pay the balance of the purchase money unpaid, except one note; held, that R., by voluntarily receiving the deed of October, 1837, from S., with a knowledge of the mortgage executed by S., waived his right to demand of C., by virtue of the agreement of February, 1837, a different conveyance ; having thus waived his right to a deed from C., and having received a conveyance from S. subject to the mortgage for the purchase money, B. and C. can foreclose this mortgage on the whole land for the residue of the purchase money unpaid.
    Unless it be clearly expressed as the intention of the parties, a court of equity will not compel a vendor to part with his title until he has received the consideration ; therefore where C. executed an agreement, in which he stated that, “ in consideration of $24,332, to be paid by S. in four equal annual instalments, on the first of January of each year, he bound himself thereby, in the ,penal sum of ten thousand dollars, to convey to S. and R., by deed in fee simple,” certain lands ; held, that by this agreement C. did not bind himself unconditionally to convey to S. and R., but only on payment of the purchase money ; and R. could not compel a specific performance except on payment of a proportionate part of the purchase money.
    An agreement to convey lands, must be construed by its face ; it is not subject to be varied by parol; nor can an agreement be partly in writing and partly in parol; yet a party may waive the provisions of a written agreement, by parol, so far as to enable the other party to the contract to defend on the ground of waiver.
    C., owning an undivided half of a tract of land, agreed, in consideration of a price to be paid by S., to convey the whole land to S. and R. ; afterward B., who owned the other half with C., made S. a deed to the whole land, and received a mortgage thereon for the purchase money; S, sold one half the tract to R., who had knowledge of the deed to and mortgage b.y S., and afterwards S. sold the rest of the land to R., and one half of the negroes with which S. and R. had been planting on the land ; R. agreed to pay all the purchase money due B. and C. but one note; and stated also that the land was liable for the purchase money; held, that by taking these conveyances from S., and his declarations, he had waived any right to demand of C. a deed to any part of the land, and held the land subject to the mortgage.
    When one by written contract agrees to sell land, and afterwards conveys to a different person who has knowledge of the previous contract, the latter holds the legal title, as trustee of the first purchaser, and a court of equity will compel him to convey ; and in a bill, by the first purchaser, for a specific performance against his vendor, the second purchaser is a necessary party.
    Where a vendee takes a deed with warranty from his vendor, he will not be entitled to relief against incumbrances held by a third person, if he knew of their existence ; his remedy in such case being on his warranty.
    Where a surety has paid a debt of the principal, he cannot make a co-surety liable to him, without proof that he has actually paid the debt, and had made an ineffectual effort to obtain payment from the principal, or that he is insolvent; nor where there are more than two sureties, and one has paid the whole debt, can he compel one of the others to repay him one half, without proof of the insolvency of the other sureties.
    
      C. being in debt to W. in the sum of $ 6842, by agreement with W. transferred to him the note of R. for $3000, as collateral security, on the payment of which, W. was to release C. from his debt of $6842 ; B., agent for R., by agreement with W.,took up R.’s note for $3000, by substituting _ his (B.’s) acceptance for $1000, and R.’s note for the residue ; and W. gave up to B., R.’s note for $3000, and the note of C. for $6842 ; both of which B. delivered to R. ; C. having other claims against R.., secured by mortgage, filed a bill for their foreclosure, against which R. attempted to set up as an offset, the note of C. for $6842, received of B. ; held, that R. paid nothing for this note, could not be allowed it as an offset, and ought not to have set it up in a court of equity.-
    ON appeal from the superior court of chancery; Hon. Stephen Cocke, chancellor.
    David W. Connelly and Robert H. Buckner filed their bill to foreclose a mortgage on land in the county of Washington, described in the bill, as to five notes of three thousand and fifty-oae dollars each, all executed by William P. Stone; one due 1st January, 1838, belonging to Buckner; two due 1st January, 1840; and two due 1st January, 1841, belonging to Connelly. [The mortgage embraces other notes which have been paid off.] The bill is in the usual form, sets out the indebtedness, the forfeiture of the condition, and that William H. Robards is in possession of the land, and prays foreclosure, &c. The mortgage executed by Stone is dated the 16th of May, 1837, and recorded on the 23d of June, 1837. Stone and Robards are made defendants to the bill.
    The answer of Stone admits the notes, mortgage, &c., and avers that, some time in the month of January, 1837, he made a contract with Robards, to sell him one half the land mortgaged, in consideration of one half of twenty-one negroes then owned by Robards, and the one half of whom were then estimated as being worth about $12,000; and he executed Exhibit, A, filed with the answer of Robards, and which is in these words:
    
      “ State of Mississippi.
    '“This memorandum is to certify that I, William P. Stone, of Yicksburg, Miss., having sold to William Robards, of North Carolina, one half of a tract of land lying and being in Washington county, state of Mississippi, on Deer Creek, (and here follows a description of the land,) but have not made title thereto, because I have not yet received title to the same myself. And this is to certify, that for and in consideration of the consideration money paid, I, the said W. P. Stone, covenant and agree to proceed forthwith to Washington "county, and cause title thereto to be duly executed and recorded jointly in my name and that of his, in fee simple; and I warrant titles to the said tract of land as aforesaid.
    
      “ Given under my hand and seal, at Yicksburg, this 14th of January, A. D. 1847. W. P. Stone, [Seal.]”
    He then went to Washington county, where Connelly resided, to have title made to Robards, and Connelly made the agreement or bond marked B, filed with Robards's answer. Robards then conveyed the one half the negroes to Stone, and subsequent to this the notes were executed, and the mortgage upon the whole land given by him, instead of one half; he not reflecting at the time that he had previously sold Robards one half, and' had no right to mortgage that. Some time after this he sold the residue of the land to Robards, upon his agreeing to pay the notes, secured by the mortgage, due to Connelly and Buckner, except that one now held by Buckner, which he was to pay. He claims a set-off for principal and interest due on a note for $520, of Buckner, which Buckner agreed should be credited on the note held by him.
    He further answers, that E. F. Buckner, as principal, with Thomas J. Coffee, R. Cooper, S. M. Puckitt, R. I. Fitz, and complainant, Buckner, sureties, made their promissory note, by which, four months after 27th day of September, 1838, they agreed to pay to the Mississippi Union Bank the sum of $7162, which was discounted, for the benefit of E. F. Buckner for the sum of $6000, by the bank; this note at maturity was not paid .by E. F. Buckner, but by S. M. Puckitt; that Coffee had contributed his share to Puckitt, and Fitz and Cooper are insolvent, and Puckitt has a right to claim contributions from complainant, Buckner, to the amount of $2000, with interest; that respondent is now owner of said claim, amounting to about $2960, and he claims it as a set-off.
    Robards’s answer admits the mortgage, notes, &c., denies that since the giving the mortgage he purchased the land from Stone, with full notice of the mortgage; and he denies that he purchased one half of the land, with notice of said mortgage. He is advised that he has a title to one half of said land due from the incumbrance of said mortgage; that when Stone executed the mortgage, he only had title to one half of the land, the other one half being the property, of respondent. In January, 1837, respondent, then residing in North Caralina, came to Mississippi, and purchased of Stone one half of said land, in consideration of one half of twenty-one negroes owned by respondent ; and Connelly executed the paper marked B, which is as follows:
    “Articles of agreement concluded and entered into this seventh day of February, 1837, between David W. Connelly, of the first part, and William P. Stone and William H. Robards, of the other part; witnesseth, that for arid in consideration of the sum of twenty-four thousand three hundred and thirty-two dollars, agreed to be paid by the said Stone, in four equal annual instalments, on the first day of January of each and every year, the said Connelly, by these presents, does bind himself, his heirs, executors and administrators, in the penal sum of ten thousand dollars, to convey unto the said Stone & Robards, by deed in fee simple, the following described tract of land. [Here follows the description.]
    “In witness whereof, &c. D. W. Connelly, [Seal.]
    W. P. Stone, [Seal.]”
    The credit of Stone was relied on, and no idea was entertained of retaining any lien on the moiety which respondent had bought of Stone; and it was not till after Stone lost his credit, that complainants thought of security for their debt. Respondent, upon the execution of the bond, conveyed the one half of the negroes to Stone. Respondent did not know of said mortgage until three years after its execution, and he insists he is the owner of one half of the land, freed of all incumbrance; that he is the owner of a note of Connelly for $6842-72, filed with his answer, due 1st February, 1841, which he asks to be set off against the notes of Connelly. The answer was filed 6th February, 1845, sworn to 13th December, 1844.
    The note referred to is drawn by Connelly, as principal, and W. P. Stone and R. M. Williamson, sureties, for $6842-72, payable on the 1st February, 1841, to the order of G. W. Denton, dated July 6th, 1839, indorsed by G. W. Denton and J. Wilcox.
    The testimony filed in the case was as follows.
    David Suggett testified, that he was present in December, 1844, when Robards and John H. Robb were conversing about trading for a portion of the land; in which conversation Ro-bards stated he was indebted to Connelly some ten or twelve thousand dollars for said land.
    John H. Robb testified, that some time in December, 1844, W. H. Robards, at his own house on Deer Creek, proposed to sell him one half of his plantation, for the sum of seventeen thousand dollars, allowing the advantage of taking up his (Robards’s) paper to Connelly for about two thirds of the amount, upon the best terms he could make; stating that the land was bound for the debt due Connelly.
    Jacob Wilcox testifies, that he was the holder of a note, which he yet owns, of D. W. Connelly, for $6842-72, which at maturity Connelly said he had not the means of paying; after-wards, in February, 1842, he agreed to give him the note of W. H. Robards for $3000 in payment of it, and Wilcox agreed to, and did take the note, with the agreement that if, at maturity, the same was paid in good funds, he would surrender to Con-nelly his note of $6842-72; the note was not paid by Robards at maturity; he-afterwards delivered the note of $3000, and the note of $6842-72, to John M. Bell, and informed him of the agreement with Connelly, and authorized him, upon Robards’s note being paid, to deliver to Connelly his note, and this was the extent of authority given to Bell; Robards was yet indebted to deponent $2260-80, which will be reduced by the sum of $10,000, if a draft drawn on and accepted by McMahan, Trotter & Pearsall, due 16th and 19th December, 1846, is paid; after the agreement with Connelly, he had Robards’s note discounted in bank, and attached it to the note of Connelly, and directed the cashier, in case Robards’s note was paid, to deliver Connelly’s note to him.
    A letter, dated August 25th, 1843, from Robards to Connelly, was filed, in which Robards asks to be permitted to take up judgments on account of his indebtedness, and says: “ Do write me soon, saying that if I will take up these claims, that you will release the mortgage.”
    Accompanying the other proof are these papers.
    “Received, New Orleans, March 10th, 1842, from Mr. D. W. Connelly, the note of ffm. H. Robards for three thousand dollars, payable at the Canal Bank, in- the city of New Orleans, the 1st day of February, 1843; if the same be punctually paid, I have authorized G. B. Ogden to deliver to Connelly his note for $6842-72, due 1st February, 1841^ left in the hands of said Ogden. Jacob Wilcox.”
    “ $2260-80. New Orleans, February 3d, 1843.
    “Twelve months after date, I promise to pay to Jacob Wilcox, Esq., or order, two thousand two hundred and sixty dollars and eighty cents, for value received, -payable at the banking house of the Canal and Banking Company in New Orleans.
    (Indorsed.) “Jacob Wilcox.” ^®-0BARI)S-
    “ New Orleans, December 27, 1844.
    “Received, on account of the within, a draft of the maker on McMahan, Trotter & Pearsall, dated 16th December, at twelve months, for one thousand dollars. Jacob Wilcox.”
    
      11 New ' Orleans, February 12th, 1845.
    “Received of D. W. Connelly satisfaction in full for his note in favor of G. W. Denton, for six thousand eight hundred and forty dollars and seventy-two cents, which fell due 1-4 February, 1841, which note belongs to me, and now in the hands of W. H. Robards, in Mississippi, who is authorized to deliver the same. Jacob Wilcox.”
    
      There was also filed, as proof, a deed dated 5th day of October, 1837,' from William P. Stone to W. H. Robards, for one half of the land in contest, which was proven on the 13th day of October, 1837, filed for record in Washington on the 4th day of December, 1838; the deed was in the ordinary form, with covenants of warranty. Also a deed from Buckner and wife and Connelly, to ffm. P. Stone, in the ordinary form, with covenants of warranty, for all the land dated 15th day of May, 1837; proven and filed for record December 6th, 1837.
    There is also a letter from Robards to Connelly, dated Nashville, Tenn., 29th January, 1843, proposing to take up debts due by Connelly, in which he says: “If you desire me to make the arrangements for the whole, as far as my debt goes, please write me immediately, and the amount of my debt; also that you will release the mortgage on my land, if I will take up the claims.”
    There was filed a deed from Stone and wife to Robards, dated 27th day of February, 1840, for all the land; this deed was filed for record 5th of April, 1840.
    J. W. Ward testifies, that having a debt against Stone and Robards for overseeing, he called on Robards, at which time Robards informed witness that when he purchased the interest of Stone in the plantation, it was the agreement that Stone was to pay a note held by Buckner for about three thousand dollars, for which the land was liable; and that he (Robards) was to pay the balance of the debt due by Stone to Connelly and Buckner, secured by the mortgage.
    John M. Bell testifies, that he delivered the note of $6842-72 of Connelly to Robards, which he had received of Wilcox, in pursuance of the agreement between Wilcox and himself, attached to the agreement; the note of Robards for $3000 was paid by Robards by draft on him, due 5th February, 1844, for $1000, and by Robards’s note, due 5th February, 1844.
    The agreement referred to in said deposition is in these words :
    “Received, New Orleans, June 28th, 1843, from Jacob Wilcox, Esq., William H. Robards’ note, dated New Orleans, March 10th, 1842, payable to the order of D. W. Connelly, on the 1st day of February, 1843, at the Canal and Banking Company, for the sum of three thoiisand dollars; on account of which I have delivered and handed over to said Wilcox my acceptance of W. H. Robards’s draft for one thousand dollars, due and payable on the 5-8 February next, and will, if satisfactory to said Robards, hand over and deliver to said Wilcox Robards’s note now in my possession, dated New Orleans, February 5th, 1843, payable twelve months after date, to the order of said Wilcox, for $2260-80, which, when paid, will be in full satisfaction of said Robards’s note first above mentioned; and said Wilcox siso transferred to said Robards, D. W. Connelly’s note for $6842-72, which note I have also received from said Wilcox: should W. H. Robards- refuse to sanction the above, then the said Wilcox agrees and binds himself to pay promptly to said John M. Bell, the amount of the above draft 'of one thousand dollars on the day said draft falls due; and in default thereof, said Bell is hereby authorized to dispose of the note of said Robards for $3000 to the best advantage, so as to receive the said sum of one thousand dollars. Jno. M. Bell,
    J. Wilcox.”
    “Received, Nashville, Sept. 12, 1843, from John M. Bell, my note for three thousand dollars, and Dr. Connelly’s note for $6860-80, mentioned in the above agreement between Jacob Wilcox and said Jgjm M. Bell, and I hereby sanction the above arrangement. W. H. Robaiids.”
    The cause was referred to. a commissioner to ascertain the amount due on the mortgage. The commissioner reported, that on the day of the report, to wit, on- the 24th of January, 1846, there was due the sum of $17,326-06^, to Buckner the sum of $3956-28|, and to Connelly the sum of $13,369-78. The commissioner rejected the set-off claimed by Stone for the claim on the note of E. F. Buckner, &c., and allowed Robards a credit on account of the note of Connelly for $6862-72, for the sum of $3000 and interest.
    The defendants, Stone and Robards, severally excepted, and the exceptions were referred to another commissioner, who reported, and disallowed the exceptions, and the exceptions, by order of court, were disallowed, and the original report confirmed; and on the 27th day of March, 1846, a decree was rendered, foreclosing the equity of redemption, and ordering a sale, &c.
    This appeal was prayed by defendants.
    
      George S. Yerger, for appellant.
    1. Can the mortgage be foreclosed, except for Stone’s moiety?
    The bond conveyed an equitable interest, as tenants in common, to-:Stone and Robards. There is no covenant or agreement on the part of Robards, to pay any part of the $24,000. Con-nelly agreed to receive and trust Robards on that, as the bond shows. The covenants of Stone and Connelly are independent. One does not depend on the other. Connelly does not agree to convey upon condition that Stone pays the money; but he agrees absolutely to convey immediately without limitation of time, and in equity could be made to convey long before the instalments were to be paid by Stone.
    The bill is filed to foreclose the mortgage made by Stone; the only interest which Stone had was an undivided equitable moiety. And although his mortgage does embrace the whole, yet, as he had only an equitable half, he only could convey such interest as he had, which was an undivided equitable half.
    Suppose Connelly had made a deed to tftem as tenants in common, and taken the notes of Stone, and afterwards Stone made a mortgage of all the land, without the .consent or knowledge of Robards, it is clear that Stone’s undivided moiety alone would have passed by the mortgage. There is no difference between the cases. Connelly knew Stone only had an equitable half; it was a legal fraud on Robards to get a mortgage for the whole. Surely a man has no right to convey any greater interest in land than he owns.
    The case can be tested by this principle. Suppose Robards had filed a bill against Connelly and Stone, and prayed that an undivided moiety might be decreed to be conveyed to him by Connelly, could Connelly resist it, by alleging Stone had not paid the'$24,000 ? Surely not. Because he took Stone alone, reserved no conditions, and his agreement to convey was distinct and independent, and did not depend on the payment of the $24,000. It is manifest, therefore,,he must convey, and if the answer in this case had been made a cross-bill, this court would have so decreed. See 1 Chitty, PI. 322, 323.
    In the agreement or bond for title, he, Connelly, agrees to convey immediately. No time being specified, reasonable time on request is all that is necessary. - The money was to be paid by Stone alone in four instalments. In such case, the covenants were independent. See cases collected in 1 Metcalf & Perkins, Digest, Covenant III.
    
      W. ~Yerger, on same side,
    In addition to an argument presenting the same views discussed by Mr. George S. Yerger, contended,
    2. The set-off claimed by Stone against Buckner as co-surety, on the note of E. F. Buckner, should have been allowed, and the exceptions to the reports disallowing it-ought to have been sustained. Those reports disallowed it, because, it is said, there was no proof of the payment of the note by Puckitt, and of the right of Stone, the transferee of Puckitt, to the amount. This is clearly wrong. Here is Stone, a third party, in possession of a note of Buckner, executed by Buckner and others. Now being so in possession of the note, and unexplained in any way, he would have had a right in law to require payment of the whole of Buckner. But Stone himself furnishes an explanation, and it is the only one given in the case. It is in substance this: “ Here is the note of R. H. Buckner, for $6000, held by me; in legal presumption,. I am entitled to claim the whole of this note, but in fact only a contributive share is due; for it was paid by one of the sureties, from whom I got it, and it is his claim only that I am entitled to.”
    As the only evidence in the case is the possession of the note by Stone, and the only proof to defeat his right to claim the whole of Buckner is his explanation, I think it clear that the set-off claimed by him should have been allowed.
    
      3. I think an analysis of the proof will show that Robards was in fact entitled to have credit allowed him for the note of Connelly, held by Wilcox. It shows most clearly to my mind, that Robards purchased the note from Bell, the agent of Wilcox, and that the money so advanced was not intended by him as a payment of the note of Connelly, entitling him only to the amount advanced, but that it was intended as a purchase, giving him title and right to claim payment of the whole note from Connelly.
    
      Robert H. Buckner, in behalf of himself and of Connelly.
    The defence set up by Robards is, that after he had purchased the one half of the land from Stone, and taken Connelly’s agreement, (marked exhibit B with his answer,) to make title to Stone and Robards, that the mortgage was taken from Stone upon the whole of the land, which Robards insists can only bind one half. This defence, of course, cannot affect Buckner’s interest in the mortgage, because he was no party to the agreement; and any agreement made by Connelly alone could not affect Buckner, unless done with his knowledge or sanction, which is not pretended to be the case in this transaction.
    But this agreement B does not even affect Connelly’s right to foreclose the mortgage; 1. Because it will be seen that Robards subsequently accepted title under Stone, (see the deed,) and never relied upon agreement, exhibit B; taking title from Stone, he, of course, took, subject to the mortgage Stone had previously given for the payment of the purchase money. 2. But however this may be, the matter is put beyond doubt by the testimony of Ward and Suggett, who prove that when Robards purchased the other half of the land from Stone, one of the express conditions was, that he (Robards) was to pay, the amount due to Connelly on the mortgage, and Robards’s letters on file show that this was the agreement. Robards is entitled to a credit against Connelly, to the amount of money proved by Wilcox to have been paid on Connelly’s account, and no more. He is proved not to be the holder of the note, which he exhibits as a set-off; it canno't, therefore, be admitted as a credit. See Wilcox’s deposition.
    
      Stone, in his answer, sets up two credits as against Buckner. ]. A note of $520 of Buckner to him; this is a proper credit, and it should, therefore, be allowed against the note due to Buckner. 2. He claims, as a set-off, a certain pretended right of contribution, which it is said Samuel Puckitt has against Buckner; because it is said Puckitt paid off a note of E. F. Buckner for $6000, on which he (Puckitt), R. H. Buckner, Thomas J. Coffee, R. Cooper, and R. I. Fitz were joint sureties. One sweeping and unanswerable objection to this latter ground of defence is, that the matter is one in avoidance, and there is no proof that Puckitt ever paid a dollar; but if there was, there is no proof that any of the other sureties are insolvent, and until there is such proof, how are you to ascertain how much Buckner should pay? Nor is there any proof that Stone is the assignee of Puckitt’s interest, if he has any against Buckner. It is clear, beyond all controversy, that the possession of the note is not evidence of payment by Puckitt, rior of the assignment. Puck-itt’s claim does not arise out of the note, but independent of it. An assignment of the note would assign nothing, because the note was extinguished when paid by Puckitt. There was nothing to assign. 1 Story, Eq. Jur. 513, § 499. But suppose Puckitt had paid the note, we know, as matter of history, that the notes, of the, Union Bank were, and are, at a great discount, and certainly Puckitt could recover no more than he paid for the bank notes with which he paid off tfte note, if indeed he has ever paid it. But I suppose that the defendants have abandoned that ground, inasmuch as they have not attempted to make any proof, and as they evidently knew that Puckitt was in debt to Buckner, by a prior judgment, in a much greater amount than Buckner’s part of the note, even if Puckitt had paid it in good money. But even if there was proof full and clear on all these points, still the set-off could not be allowed;
    1. Because it is an unascertained liability, which can only be settled by a bill for contribution, and is not the subject of set-off. See 1 Munf. R. 529.
    2. Because there can be no contribution between co-sureties, until the principal debtor has been pursued to insolvency. There is neither allegation nor proof that such is the case here. See 3 Munf. R. 484; 1 Dessaus. R. 409; 2 Dana, R. 296; 3 Littell, R. 386; 5 Yerg. 264; 2 Comyn on Cont. 159 ; 1 Monroe, 47.
    3. The answer shows that the claim, if any, came to the hands of Stone since the commencement of this suit, and is not, therefore, the subject of set-oíf. 1 Munf. 529.
    4. Such a claim is not assignable. 1 Story, Eq. Jur. 477, § 499.
    5. Courts of equity do not set off mutual disconnected debts, unless there is some strong equitable ground, such as insolvency, &c.; it is not alleged or proved that Buckner is insolvent. 5 Mason, R. 201; 2 Story,' Eq. Jur. § 1435, 1436 ; 2 How. R. (Sup. Court U. S.) 390, 391.
    6. All the sureties to the note would have to be made parties, that tire court might settle and decree the respective rights and liabilities of each. This surely could not be done in this suit. But I am indulging in useless labor, because there is no proof upon which these questions can arise. Your honor will, of course, refer the case to the clerk to compute the amount due on the mortgage.
    7. The note of Connelly for .“16800 or more, which was transferred by Bell to Robards, cannot be admitted as a set-off against Connelly, because as to Wilcox, the original holder, that note was paid by the acceptance of Robards’s note for $3000. The case of Kellogg v. Richards, 14 Wend. 116, fully supports this proposition. See also 20 Johns. R. 76. Although a payment of a less sum than the whole debt is not a satisfaction, yet where the creditor takes less and gets security, either by indorsement of a third person, or by taking the note of a third person, then it is a satisfaction. This distinction runs through the whole class of cases on this subject.
    We say, then, that the note of $6800 of Connelly was paid to Wilcox, by his acceptance of the note of $3000 on Robards, and that when the note of $6800 was transferred to Robards, he took it subject to the same equity that attached against it in the hands of Wilcox, because Robards paid nothing for it, and did not take, it in the due course of trade, and is not, therefore, a bona fide holder for a valuable consideration. This last proposition is fully sustained by the case of Coddington v. Bay, 20 Johns. R. 637.
    
      Hughes, and Guión, and Baine, made elaborate arguments on the same side.
   Mr.'Chief Justice Shahicey

delivered the opinion of the court.

The appellees filed their bill in chancery to foreclose a mortgage on two sections of land on Deer Creek, which was executed to secure the purchase money. Thé right to foreclose as to one half of the land is not denie'd, but it is as to the other half, on the grounds set forth in the answers.

The land mortgaged was originally owned by Buckner and Connelly jointly. In the month of January, 1837, Stone met with Robards in Vicksburg, and contracted to sell him half of this land for $12,000, to be paid in negfoes. In order to consummate the arrangement, the parties proceeded to Washington county, the place of residence of Connelly, to obtain titles. From this it would seem that Stone must have previously contracted for the land. Connelly staled to them that he could not convey, as Buckner was joint owner; but he gave a bond in the penalty of ten thousand dollars, or rather entered into an article of agreement, by which he bound himself in these words : “ That for and in consideration of the sum of twenty-four thousand three hundred and thirty-two dollars, agreed to be paid by the said Stone in four equal annual instalments, on the first day of January in each and every year, the said Connelly, by these presents, binds himself, his heirs, executors, and administrators, in the penal sum of ten thousand dollars to convey unto said Stone and Robards by deed in fee simple, the following described tract of land, lying,” &c. This instrüment'was signed by Connelly and Stone, on the 7th of February, 1837. The answers aver that Robards thereupon conveyed the negroes. Matters seem to have rested in this condition until the 16th of May, 1837, when Stone took from Buckner and Connélly a conveyance'in his own name, executed his eight promissory notes for the purchase money, and gave the mortgage on the land to secure the payment, which mortgage was filed for record the 23d of June, 1837.

The next conveyance (which is disclosed by complainants’ proof) is from Stone to Robards of an undivided, half of the land. It bears date, October, 1837, and must have been taken by Robards, with notice of the mortgage.

The proof next discloses a conveyance by Stone to Robards of the residue of his interest in the land, and also an undivided interest in certain negroes on the farm. This bears date 27th of February, 1840. It is also clear that Robards agreed with-Stone to pay the balance of the purchase money remaining unpaid, except one note.

These matters of evidence and the exhibits will show the main ground on which the foreclosure is resisted, as well as the grounds on which the defence is rebutted.

The agreement of Connelly is relied on as vesting in Robards an equity in a moiety of the land which could not be affected or defeated by the subsequent conveyance to Stone, or his mortgage. Before we proceed to the further investigation of this question, it seems to be proper to remark, that, allowing this instrument its full force, its operation is more limited than counsel seem to suppose. Connelly and Buckner owned the land. Connelly’s agreement to convey did not affect Buckner. Stone and Robards then only acquired an equity to an undivided half. To that much they had a joint claim. Robards was, of course, only entitled to one half of a half, or one fourth of the whole. Stone’s mortgage certain!y incumbered the interest which he derived under Connelly’s agreement, and if Robards’s equity be paramount, it still covers but a fourth of the tract of land. He is therefore asserting a claim which has no sort of foundation, when he seeks to exonerate half the land from the mortgage.

To understand thoroughly the right asserted by Robards, a further explanatory remark is necessary. The agreement of Connelly must be construed by its face; it is not subject to be varied by parol, neither can an agreement be partly in writing and partly in parol. We only understand by it, that Connelly agreed to convey on payment of the purchase money. A time was specified for the payments, but no time for the conveyance, and no intention of parting with title was manifested until payment should be made. That seems to have constituted a condition precedent; he agreed to convey for and in consideration of the sum of $24,000, to be paid by instalments, and was not bound to convey without having received the consideration. Hazlip v. Noland, 6 S. & M. 294; Gibson v. Newman, 1 How. 341. We take it to be clear, that-a court of equity would not have compelled him, on this agreement, to part with his title ■until he had received the consideration. This will not be done in any case, unless it be clearly expressed as the intention of the parties, as in cases where a bond is given for title, it is usually understood that the vendor retains title as a security. Then suppose that Robards had a right to call for a specific performance for so much as Connelly could convey, this he could only do on payment of a proportional sum of the purchase money. The question now is, has he still that right, or has he waived it? It is believed that he has lost his recourse for specific performance by his waiver. It is undoubtedly competent for a party to waive the provisions of a written agreement by parol, so far as to enable the other party, to the contract to defend on the ground of waiver. Sugd. on Vend. 110, 111; 2 Story, Eq. Jurisp. 92, § 770; Price v. Dyer, 17 Vesey, 356. The conduct of Robards is wholly inconsistent with the intention of a reliance on the contract of Connelly. The agreement was dated in February, 1837; in May following, Buckner and Connelly conveyed to Stone, and took the mortgage, which was recorded. In October, we find Robards taking a conveyance from Stone of an undivided moiety of the land, with full warranty. It- is too much to suppose that he did this without a knowledge that the land had been conveyed to Stone. When they first contracted in February, he knew that Stone then had no title; he knew that it was in Connelly and Buckner. Would he have taken a deed from Stone if he had not known of the conveyance ? Surely he would not. Receiving a conveyance, under the circumstances, implies a knowledge of the conveyance to Stone. But it seems, moreover, that there was some variation in the contract) He had originally agreed to give Stone $12,000 for half the land; the consideration expressed in the deed is $10,000. This deed was taken with constructive notice of the mortgage, for it was recorded. But he probably also had actual notice of the mortgage, for we hear of no difference between him and Stone on that account. They were jointly interested in the land, and seem to have been carrying on a farm together, and he subsequently stated, that the land was bound for the purchase money. In the next place, he took a conveyance of Stone’s moiety of the land and certain negroes, and the proof is full, clear, and conclusive, that he afterwards acknowledged himself to be bound for the unpaid purchase money, except one of the notes. This is shown by his letters to Connelly, and his declarations repeatedly made. He had thus willingly placed himself in Stone’s place. In none of his declarations, nor in any of his letters to Connelly, is the first contract mentioned. In offering to sell the land, he admitted that it was bound for the purchase money1. He did not then say that only half of it was bound. These circumstances seem to combine in leading to the conclusion, that the first agreement was abandoned. And in truth, there was no inducement to hold on to it, as by that the land was still bound for the purchase money. The last, indeed, was the most advantageous contract, as by that, title to the whole was acquired, instead of title to half; and the whole tract seems to have been the object of the purchase.

Whilst we regard the conduct of Robards as evincing an intention to waive the agreement with Connelly, such also seems to be the legal effect of his acts. His remedy on the agreement was for a specific performance. Against whom did it lie ? Not against Connelly alone, but Stone was also a necessary party. Connelly had parted with title after the agreement. When one by written contract agrees to sell land, and afterwards conveys to a different person who has knowledge of the previous contract, this other holds the legal title as trustee for the first purchaser, and a court of equity will compel him to convey. 2 Story, Eq. Jurisp. 110-113. The second purchaser is therefore a necessary party to a bill for specific performance. Sugd. on Vend. 164. Stone did purchase with knowledge of the agreement; he held the legal title as trustee. In such cases, the decree would be, that the second purchaser should convey to the first, and if Robards had filed his bill, this would have been the decree against Stone, if indeed any decree could have been ipade. But Robards took a conveyance from Stone without suit, and acquired by contract what he could have coerced by decree. True, he has got an incumbered estate, but he could not have coerced title divested of an incumbrance, and as he takes by contract, with knowledge of the mortgage, he must be held as assenting to it, and as relinquishing his prior equity. Could he now go into a court of chancery, and ask for a specific performance? We suppose not. He who voluntarily receives a conveyance of an incumbered property, must be supposed to waive his right to a different conveyance. Robards took a deed with warranty from Stone, and would not be entitled to relief, even against in-cumbrances held by a third person; if he knew of their existence. His remedy in such case is on the warranty. That is his security against incumbrances. Robards can have no recourse against Stone on his warranty, on account of his own incum-brance, for he cannot disturb or evict himself under his prior title. Clearly as to Stone he has waived his equity; and having waived it as to Stone, he has also waived it as to Connelly. Could he resort to Connelly’s covenant for title with Stone, and assign as a breach his own incumbrance ? Certainly not, for as he could not assert that against Stone, so neither could he assert it against Connelly.

When Robards and Stone took Connelly’s agreement to convey the two sections, it was well known to them that he never could convey without the concurrence of Buckner, who was joint owner. It cannot be pretended, therefore, that they relied on Connelly alone to convey. Under such circumstances it has been holden, that the agreement will be presumed to have been executed by mistake, and the purchaser cannot insist upon a specific performance, even as to the interest which the vendor had. Sugden on Vendors, 220. It is not necessary that we should take this view of the agreement. It was looked upon, no doubt, as the first step towards the acquisition of title from Buckner and Connelly, and when that was made to Stone, who conveyed a moiety to Robards, the purchase of the whole was considered as consummated, according to the original object of purchasers.

In every point of view, then, we consider the agreement with Connelly as having been waived, and as constituting no impediment to the right to foreclose, as to the whole of the mortgaged premises.

It remains to consider of the offsets claimed, which were disallowed by the chancellor. The first is claimed by Stone as against Buckner on the ground of his liability, as co-maker of a promissory note, which Stone claims by transfer from one of the makers, who is alleged to have paid the note. One E. F. Buckner was the principal in the note, and Puckitt, Coffee, R. H. Buckner, Cooper and Fitz, were co-sureties. There are two valid objections to this claim as an offset; first, there is no proof of payment by one of the sureties; and secondly, there is no proof that an effort has been made to obtain payment from the principal, or that he is insolvent. In such cases the principal is first liable; the liability to make contribution is secondary. McCormack v. Obannon, 3 Munford, 484. Nor is there any proof of the insolvency of the sureties who are alleged to be so.

The next offset is claimed by Robards, as the assignee or holder of a note made by Connelly, Stone and Williamson for $6842-72, payable to to G. W. Denton. This note it seems was the property of Jacob Wilcox, between whom and Connelly an agreement was made for its payment, in this way: Connelly held the note of Robards for $3000, which he transferred to Wilcox as collateral security, who agreed if the note for $3000 whs paid at maturity, the other was to, be delivered up to Con-nelly as fully paid. It seems that in June, 1843, J. M. Bell handed to Wilcox his acceptance on Robards’s draft for $1000, and also agreed to hand over to Wilcox, Robards’s note, then in his possession, for $2260, which was to be in payment of the $3000, and Bell also received of Wilcox both notes. In Bell’s receipt it is stated that Wilcox also transferred Connelly’s note to Robards, in case the agreement should be ratified by him. Robards received both notes from Bell, and now claims to have the note of Connelly for $6842, set off against the amount claimed on the mortgage. In explanation of this transaction, Wilcox states explicitly, that he never intended to transfer the note as a claim against Connelly, that in fact he never did transfer it, and that it is still' his property. Bell does not say that he delivered it to Robards, to be collected by him, but that he very soon discovered that Robards intended to make an improper use of it. There seems to have been some misunderstanding between Wilcox and Bell, in regard to the note. But without entering into a full history of this transaction, it is perfectly clear from the proof that it is not a proper offset, Indeed, it is an unfortunate feature in the case, so clear is it that Robards has paid no consideration for it and ought not to have set it up in a court of equity. Wilcox says that he has not yet received the amount of the $3090. But suppose he had, why should he assign to Robards, Connelly’s note for $6842? There was no new consideration for it. It could not have been done to induce Robards to pay his own note, especially as it was handed over to him before he did pay his own. It is evident that Robards paid nothing for it; it is also evident that, should it be allowed, he gains the amount of the note, and Connelly loses the amount of the $3000 note transferred to Wilcox, and 'the agreement between Con-nelly and Wilcox is violated, which Wilcox says he is still willing to observe. This claim was referred to. two different commissioners, and disallowed by both, and we think correctly so.

The degree must be affirmed.  