
    NOVEMBER TERM, 1844.
    Samuel M. Hanna v. William B. Harper, et al.
    H. bought of W. H. a tract of land, and gave in payment his notes, due in four annual instalments, and took a bond to have title made to him on the payment of the notes. W. H. assigned the first note to B., who sued H. thereon. H., before the other notes were due, exhibited his bill, stating that W. H. had no title to the land, was insolvent, and outstanding judgments against him, and prayed for injunction and rescission of the contract; held, that H. was not entitled to relief, and that, in the absence of fraud, W. H. was not bound to make title until the last note was paid.
    ON appeal from the Superior Court of Chancery.
    Samuel M. Hanna, the complainant, filed his bill to restrain the collection from him of the purchase-money of certain land bought by him from defendant Harper.
    Pe alleges, that on the 16th day of January, 1840, he purchased of Harper certain lands, which he describes, for the sum of eight thousand dollars. That to secure the payment of this, he executed in favor of Harper four notes, for two thousand dollars each ; one due on the 1st of January, 1841, another on 1st of January, 1842, another on 1st of January, 1843, and the fourth on the 1st of January, 1844.
    That to secure a title to said land, he took from said Harper a penal bond, conditioned to make to him, his heirs, &c. a fee simple deed to said land, with general covenants of warranty, when he should have paid said purchase-money ; that said note, due on the 1st of January in the year 1841, has been transferred to defendant Berry, to secure him in his liability as indorser for Harper, and that Berry has not yet paid the debt for which he is thus responsible ; that suit has been instituted in the Yazoo Circuit Court on this note in the name of Harper for the use of Berry ; that Harper is utterly and hopelessly insolvent, and that several executions for large amounts have been returned “ no property.”
    He charges that he, said Harper, cannot make or cause to be made to him a good title to said land ; that Plarper holds no conveyance for the land himself, and never did, but only a bond for title ; that if Harper had a title, there are outstanding judgments against him, under which it would be sold. He prays for a rescission of the contract, and for injunction ; which latter was granted.
    Defendant Berry admits in his answer the purchase by complainant, and the execution of the notes and title bond, as charged by complainant.
    He charges that complainant has been in the quiet and undisturbed possession of land ever since the purchase. That there is on the tract a large amount of land in a high state of improvement, which complainant has since his possession been cultivating and enjoying. He admits the transfer of the note to him, as stated in the bill, and acknowledges that he has not yet paid the debt for which he is responsible as Harper’s indorser. He charges that he believes the insolvency of Harper precludes him from the hope of any other indemnity than that afforded by this note.
    He denies the inability of Harper to make title to complainant, as required by his contract; charges that Harper holds the bond of Compton & Ricketts for a title thereto, on the 1st of January, 1841, which bond is conditioned to make title to said Harper, or his assignees. This bond is made an exhibit ; denies that there are outstanding judgments against Harper, older than the bond from him to the complainant; .that the interest of Harper in said land, sold to complainant, is liable to sale under such judgments, if any such exist, to the prejudice of complainant. He charges that the obligors in the title bond held by Harper are wealthy and solvent, and that Hanna, the complainant, is in law fully entitled to the indemnity which it affords, or the title which it secures to Harper. That said complainant purchased said land with a full knowledge of the condition of Harper’s title, with a full knowledge of the fact that he had then no title to said land, but relied exclusively upon this bond of Compton & Ricketts to obtain one.
    He then calls upon complainant under the statute to answer the new matters which he had introduced.in his answer. •
    In his answer to this new matter, complainant admits that he has been in the undisturbed possession of said land ever since his purchase ; says he has in cultivation one hundred and fifty acres of said land, worth $1.50 per annum, and has raised two crops thereon. He says he does not know whether outstanding judgments against Harper are older than his bond or not, but insists that it makes no difference. He says he knows nothing of the pecuniary condition of Compton & Ricketts. >
    He admits that Harper told him he had no deed, but would obtain one during the year 1841. Defendant Berry called on him to say whether he did not know, at the time when he made said purchase, that Harper relied exclusively on the bond of Compton & Ricketts for a title. This call is not responded to.
    Harper, in his answer, denies the charge of his insolvency, and asserts that there have not been executions against him 'returned “no property,” as charged by complainant.
    The case upon bill and answers was set down for hearing, and the defendants moved to dissolve the injunction on the bill and answers. This motion was sustained, and an áppeal granted.
    
      Wilkinson and Miles, for appellants.
    An injunction was obtained in this case to restrain the collection of four promissory notes, for $2000 each, executed by Hanna to Harper for the purchase-money of a tract of land.
    Upon the coming in of the answers, and after the cause was set for hearing (by the defendants) on the issue docket, the Chancellor, on motion, dissolved the injunction. To reverse this order, an appeal is now prosecuted.
    The motion to dissolve should not have been entertained, because the case was at hearing ; and the rule of chancery practice, that a cause will not be tried by parcels, is too well settled to require' comment.
    But, even had the cause been in an attitude to justify an entertainment of the motion,' it is insisted there would be manifest error in the order dissolving the injunction.
    It will be recollected that the injunction operated exclusively upon the note first due, that had been transferred to Berry, and by him put in suit. In response to an allegation in the bill, Berry admits the insolvency of Harper, the vendor. We will not notice the answers of Harper and Lum, 1st, because they are not evidence for Berry; and, 2d, because the answer of Harper is known to be untrue. ■
    There is but one question presented by the record ; and, but for some decisions of this Court, reported in 5 How. 460, 542, we would content ourselves with a simple reference to the authorities.
    The received impression of the bar is, that this Court, in the cases referred to in 5 Howard, has laid it down as a general rule, that the payment of the purchase-money can in no case be enjoined when no fraud has intervened, unless for actual or threatened eviction.
    Whatever may have been the opinion of the Judges pronouncing the decrees of the Court in those cases, 'it is hoped that, upon a re-examination of the authorities, the Court will confine the rule to cases of executed contracts. With regard to that class of cases, its correctness is admitted ; but we protest against its application to executory contracts. See Courtland v. Wright, 2 Munf. Rep. 179 ; Clark v. Faux, 3 Russ. Rep. 320; 3 Cond. Eng. Chan. Rep. 415; Payne v. Cabell, 7 Monroe’s Rep. 202; 1' Peters, 465.
    The distinction between executed and executory contracts is so clear, that the rule of law founded thereon recommends itself to our unqualified approbation. For, would it not be the most crying injustice to compel a vendee, who had received no title, — whose vendor had no title, — whose insolvency precludes the possibility of his acquiring a title, — to pay up the whole amount of purchase-money agreed to be given, and then turn him over to his remedy on the covenants in his bond for title ?
    It has always been held that a vendor, who seeks a specific performance of his contract for the purchase of land, must tender the vendee a clear, unincumbered title to the property, as the only condition upon which relief will be granted him. 3 Bibb, 317 ; 1 Desaus. Rep. 382; 3 Sim. Rep. 29; 4 John. Ch. Rep. 669 ; 4 Russ. Rep. 374; 9 Cow. Rep. 344.
    We do not readily perceive why the same principle, between the same parties, should not be applied in the same manner, and to the same extent, when the vendee is seeking a specific performance of his contract.
    
      Suppose -the bill had been filed in this' case by Harper, the vendor, praying a specific performance of his contract. Could the Court hesitate to impose upon him, as a condition precedent to granting his prayer, that he should tender Hanna, his vendee, a clear, unincumbered title to the land ? If not, then it is insisted the same terms must be imposed upon him, the bill being filed by the vendee. Eor Hanna was driven to a court of equity, as the only forum where he could obtain justice. He was sued at law upon his note. He could not defend there. That Court, from its structure, cannot impose terms. Hence, the legal forum was selected to enforce a specific performance of the contract (in effect), by compelling a payment of the purchase-money. The controversy for a quasi specific performance having thus been commenced by the vendor, it is insisted that he is subject to the same rules, and must submit to the same terms, as though he had filed his bill in the Chancery Court for a specific performance.
    Hanna offers to pay the whole amount of the purchase-money into Court; thus clearly showing his willingness to comply with his part of the contract. He seeks a specific performance, and is willing to pay the purchase-money, if he can get a good title. This Court will not compel him to do more. -See Rawlings v. Carroll, 1 Blandís Ch. Rep. 75, in note ; Hitchcock v. Giddings, 2 Cond. Ex. Rep. 55; 4 Price’s Rep, 135; 1 Ves. Rep. 88; Butler’s note to Co. Litt. 332; Cooper’s Eq. Rep. 308 ; 1 Fonb. 366 ; 3 P. Williams’s Rep. 307 ; Ralston, et al. v. Miller, et al., 3 Randolph’s Rep. 44 ; 11 John. Rep. 51 ; Litt. Sel. Ca. 407 ; 16 Serg. & Rawle’s Rep. 258 ; 4 Desaus. Rep. 133, 153 ; 1 John. Ch. Rep. 52.
    It is disclosed in Hanna’s answer to the cross-bill of Berry, that Harper is still indebted to his vendor in the sum of $9000, for the purch&se-money of the land now in controversy. On the motion to dissolve, it is admitted to be true. The land may be reached by Harper’s vendors in the hands of Hanna, and subjected to the payment of that sum. 9 Serg. & Rawle’s Rep. 397.
    The facts of the case show conclusively that Harper never can make a title.' He owes his vendors $9000 of the purchase-money, and they owe their vendor $5000 purchase-money. No deed has ever passed between any of these parties, and the land is therefore bound for the whole of these sums.
    The hypocritical cant of Harper, that he would be able to make title, provided Hanna punctually paid the purchase-money, is flatly contradicted by his own answer. He distinctly admits that he has assigned away three of the notes, amounting to $6000, and now has only one of them, amounting to $2000, and that the last one falling due. How Mr. Harper would clear off incumbrances with the $6000, which, in the nature of things, he never can get hold of, is a mystery to us.
    Should the Court esteem the positions already taken insufficient to reverse the Chancellor’s decree, there is one measure of relief which will certainly not be denied.
    If'Hanna shall be decreed to pay the money, at all events he is entitled to see to its appropriation. And, for that purpose, as Harper’s vendors may follow and subject the land in his hands, he has the right to make them parties to this bill, and compel them to accept the money due by him to Harper, as far as it may go, in satisfaction of the incumbrance they hold upon the land.
    Under any aspect, the order of- the Chancellor dissolving the injunction should therefore be reversed, and the cause remanded for further proceedings.
    
      R. S. Holt, for appellees, Young and Berry.
    It is admitted by complainant that he purchased with full notice that Harper had not a legal title to the land which he sold. The natural inference from this would be, as he charges Harper with neither fraud nor misrepresentation, that he knew, before he bought, precisely what claim of right or title to the land Harper had.
    •But Berry, in his answer, among other things, calls on complainant to say whether he did not, when he bought this land, knovv that Harper relied exclusively on the bond of Compton & Ricketts to obtain a title.
    Complainant answers all the other matters which he was by Berry called upon to answer, but leaves this interrogatory unanswered. This omission, upon familiar principles, amounts to an admission of the truth of the charge.
    
      .Complainant admits that he has been in the undisturbed possession of the land ever since his purchase.
    He therefore presents himself before this Court, seeking relief against the payment of ibe purchase-money of land, on the ground of a defect of title, without charging either a fraud on the vendor, or an eviction under a title paramount, and admitting that the defect of title of which he complains was fully known to him when he purchased.
    It is a rule so ancient, as now to rank among the elemental maxims of equity jurisprudence, that a purchaser cannot be relieved against his contract for the purchase-money, for a defect of title, of which he had notice when he contracted. 3 A. K. Marshall, 288 ; 13 Serg. & Rawle, 386 ; 2 Wheat. R. 13 ; 5 Littell, R. 229 ; 5 Serg. & Rawle, 204.
    This rule, so ancient and familiar, has received the most authoritative sanction in this State. 5 How. 279, 542.
    The covenants for title, and to payment of the purchase money, belong to the class of mutual, independent covenants, and in such case it is well settled that equity will not relieve the purchaser, unless he can prove either fraud or eviction ; and it matters not whether the purchaser has a deed 'or a bond for title. 5 How. 460, 542 ; 1 Johns. C. R. 217 ; 2 lb. 520 ; 3 Bibb’s Rep. 282; 4 De-saus. 126 ; 7 Serg. & Rawle, 61.
    But complainant will insist that he is entitled to redress, quia timet, because the vendor has since the purchase become insolvent, so that his remedy on his bond wo'uld be unproductive.
    It is believed that there can be found no adjudicated case in which it is decided that where the vendor has been guilty of no fraud, and there has been no eviction, the vendee, in a case of independent covenants, can be relieved against the purchase-money, on the sole ground of the intervening insolvency of the vendor.
    The case of Coleman v. Rowe, 5 How. 460, is indeed an authority directly against the existence of such a principle of relief.
    The facts of that case were identical with those of the'case at bar, except that there the complainant charged that the vendor was “ in laboring circumstances in his pecuniary affairs, and that unless Rowe (the vendor) could make title, complainant (the vendee) would never get anything for his money. ”
    
      The proof was, that the vendor was “ insolvent, or at least not trustworthy for a large sura of money.” This could not have been regarded in any other light than as a charge of insolvency sustained by proof. But the decree of the Chancellor refusing relief to the purchaser was affirmed.
    That case indeed is thought to embrace and conclusively settle every question involved in this.
    There are, perhaps, two grounds upon which courts refuse relief to the purchaser, in cases like this, on account of the vendor’s insolvency. In the first place, the amount of property which a man has in his possession is not regarded as a safe test of his ability to meet and discharge liabilities maturing at a future and distant day. There is perhaps as much reliance to be placed on his future acquisitions, as his present possessions, for the discharge of obligations arising in so distant a futurity. And in the second place, the Court never relieves a party against his contract except for the occurrence of some accident or. contingency which could not have been contemplated at the time of contracting. The covenants in this case being independent, and the vendee having elected to rely exclusively on those of his bond, the subsequent insolvency of the vendor was an event which he must have regarded not only as possible, but probable ; and yet he did not protect himself against its consequences.
    It is thought that the same principle which induces Courts of Equity to withhold relief from a creditor at large, because his debtor is secreting or moving his property, will preclude the interposition of such courts in cases like this. In each case the party seeking relief, by contract elected to rely exclusively on the indemnity afforded by a personal obligation at law, and he must abide the consequences.
    To sustain the injunction on the ground of the vendor’s insolvency, it should be shown that the vendor will be unable to make title at the time stipulated in the bond. That there exists some insuperable obstacle to a'performance of the condition of his bond, on the part of the vendor, should affirmatively appear, either by the admission of defendants or by proof of complainant, else it does not appear that the purchaser will be injured by the insolvency of the vendor. This charge in the bill is distinctly denied by the defendants. The foundation of the injunction is therefore swept away.
    Hitherto we have argued upon the hypothesis, that the vendor is insolvent as charged by complainant.
    But such does not appear to the Court to be the fact. The charge of insolvency is distinctly denied by Harper, and is not sustained by proof. Berry admits the insolvency of Harper, his opinion no doubt being founded on popular rumor, and being doubtless incorrect. His answer cannot be used by complainant against Harper. Can the injunction then be retained as against Berry, after the distinct denial of his insolvency by Harper ? We think not. The suit is brought by Berry for the purpose of paying from the proceeds a debt of Harper for which he is responsible as indorser.
    It is therefore a suit brought in his name for the use of Berry, but essentially for his (Harper’s) benefit.
    He is therefore entitled to a dissolution of the injunction, if from the bill and his answer he would have been entitled to it had the suit been brought expressly for his use and benefit.
    Viewed in this light there can be no doubt as to the result. It is the familiar case of a bill, the equity of which is distinctly denied by the answer of the defendant, whose legal rights are prejudiced by the restraints of the injunction.
    But there is yet another light in which this case may be viewed which is equally conclusive against the retention of the injunction. It appears affirmatively in the pleadings, that Harper holds the bond of Compton & Ricketts, in the penal sum of forty thousand dollars, conditioned to make title to this land to Harper, or his assignees. There can be no doubt then, that the complainant has for his indemnity, should he not obtain a title, both the bond of Harper and the bond of Compton & Ricketts.
    Admitting the principle of relief then for which complainant contends, he has not laid a sufficient basis for it; he has not shown that on a failure by Harper, to make title, he would be without remedy ; because he has not shown, or even alleged, the insolvency of Compton & Ricketts.
   Mr. Justice Clayton

delivered the opinion of the Court.

The complainant Hanna, in the year 1840, purchased of the defendant Harper a tract of land at the price of eight thousand dollars, and executed his notes payable in one, two, three, and four years, for $2000 each. He took the bond of Harper binding him to make title, upon payment of the purchase-money. This bill was filed in 1841, alleging that Harper had no title to the land, and could procure none ; that he w&s insolvent, and that there were outstanding judgments to a large amount unsatisfied against him. The bill states that suit had been brought on one of the notes for the use of the defendant Berry, and that two of the other notes had been transferred to the defendant Lum. It prays a rescission of the contract, a perpetual injunction as to the note sued on, and that the others may be decreed to be cancelled. No fraud or eviction is charged.

Berry filed his answer admitting the insolvency of Harper. He also made his answer a cross-bill, and required the complainant to answer and say whether the judgments against Harper, mentioned in the bill, are prior or subsequent to his purchase of the land. The complainant answered the cross-bill, saying that he did not know whether they were prior or subsequent to his purchase, and stating, moreover, that Harper still owed his vendors largely for the land. Harper also answered; he deniedJhis insolvency ; denied that there were any outstanding unsatisfied judgments against him, and insisted that if complainant would fulfil his part of the agreement, that he was fully able to comply on his part. He also filed as an exhibit the title-bond of his vendors Compton & Ricketts, binding them to convey the lands to him by deed in all the year 1841. There was no proof taken in the cause.

Upon this state of facts the Chancellor dissolved the injunction, and the case was brought by appeal to this Court.

The complainant has not brought himself within any rule known to this Court, to sustain the injunction. By the terms of his contract he was not authorized to call for a title, until the year 1844. He complained of no fraud. If previous to the time when he might call for title, he goes into equity for relief, then it is incumbent upon him to point out clearly, and to sustain by proof, the defects of which he complains. Harris et al. v. Bolton, 7 How. 167. He does not, in his answer to the cross-bill, show the existence of the incumbran-ces of which he complains; on the contrary, he shows his inability to substantiate their existence. The taking time to make the title might have been intended to enable the defendant to procure- it in the interim. To compel him to procure it, and exhibit it at an earlier day, would be, in the absence of fraud, to make a new contract for the parties, not to enforce that which was made.

We think the complainant has failed to make out a case for equitable interposition, and we therefore direct the decree of the Chancellor to be affirmed.  