
    CASE 38 — CHANCERY
    JUNE 24.
    Denny vs. Wickliffe.
    APPEAL FROM WASHINGTON CIRCUIT COURT.
    1. When a cause has been heard by the court of appeals, and remanded to the cir* cuit court, with directions to render a particular decree or judgment, the cause is finally disposed of to that extent, and no pleadings can be filed in the circuit court which will have the effect of avoiding the mandate of the court of appeals, unless the pleadings are of such a character as would authorize a final decree or judgment to be reviewed or vacated after the expiration of the term at which it was rendered. (Rouse vs. Williams, MS. Opinion, Winter Term, 1857; 18 B. Mon., 768; 4 Mon., 411.)
    
    
      2. An action was brought by the purchaser for the specific execution of a contract for the sale of a tract of land; no allegation of defect of title was made; the court of appeals directed a decree to be entered for a specific performance, on the payment of a balance found due of the purchase money. Before entering the final decree, according- to the mandate, the circuit court permitted the complainant to file additional pleadings, alleging a recently discovered defect in the title of the vendor, and upon the hearing rescinded the contract. Held — That, as the title of the vendor was of public record, it was the duty of the complainant to have examined into its validity before the first trial, and that having failed to do so, he cannot ask a rescission of the contract, or a vacation of the decree for the specific execution of the contract. If, however, a part of the purchase money be unpaid, and the vendor insolvent, the purchaser, being in possession of the land, may suspend the collection of the purchase money until the claim asserted, or outstanding title, shall be investigated.
    3. A purchaser in possession, who has obtained a decree for the specific enforcement of a contract for the sale of land, occupies virtually the attitude of a purchaser under an executed contract. .Where his vendor is insolvent, and there is a defect in the title, he is entitled to relief commensurate with the loss ensuing from the defective title; but to obtain this relief, he must bring the parties, from whom lie apprehends danger, before the court to have their claims litigated and settled. (1 Dana, 303; 2 Dana, 279.)
    4. Where a purchaser in possession, under a decree for the specific execution of a contract for the sale of land, whose vendor is insolvent, finds it necessary to proceed against non-resident defendants to quiet his title before the payment of the purchase money, and proceeds on constructive service of process to obtain a decree against such non-resident, (which decree may be opened in five years,) Jie may require from the vendor, in addition to such decree, a bond of indemnity, with good security, against the subsequent assertion of title, before he can be compelled to pay the purchase money.
    A suit was instituted by James B. Danforth to obtain the specific execution of a contract made by him with Cyrus Talbott, for the purchase of a farm called “ Snug Harbor.” The suit was commenced after the death of the vendor. Alice Denny, the devisee of Cyrus Talbott, and the executor and heirs-at-law of Cyrus Talbott, sr., dec’d, by whom the land was devised to the vendor, denied the power of the latter to sell it. This question was decided against the heirs-at-law, and the opinion of this court is reported in 7 B. Mon., 623.
    After the institution of the suit Danforth became a bankrupt, and the assignee in bankruptcy having sold his interest in the farm, it passed by transfer from the purchaser of the assignee to C. A. ’Wickliffe, who, upon the return of the cause to the circuit court, was made a party to the suit, and sought a specific execution of the contract and a conveyance of the title to himself. The devisee, Alice Denny, contended that the stipulated price of the land had not been paid by Danforth, and upon that ground Resisted the relief prayed for by Wickliffe. The circuit court rendered a decree in favor of Wickliffe, and ordered the title of the land to be conveyed to him. That decree was reversed by this court, and it was decided that a balance of three thousand' two hundred and eighty-eight dollars of the purchase money from Danforth to Cyrus Talbott remained unpaid, for which sum, with interest, Talbott’s representatives had a lien upon the tract of land sold by Talbott to Danforth, and that until it was paid a specific execution of the contract of sale should not be decreed; and the cause was remanded for a decree in conformity with the principles of that opinion.
    Upon the return of the cause to the circuit court a supplemental bill was filed by Wickliffe, alleging, in substance, a failure of title as to about 72 acres of the 206 acres sold' by Talbott to Danforth; that said 72 acres, which formed a very valuable portion of the tract, was attempted to be conveyed, in 1810, to Cyrus Talbott, sr., by Perry and Brown, but that the fee-simple title thereto was and is in their wives; that when he sought a decree for the specific enforcement of the contract he was ignorant of the defect in the title, which he had discovered since the rendition of the final decree in his favor enforcing the contract; that the estate of Cyrus Talbott is insolvent, and that Mrs. Denny, his devisee, is also insolvent, líe therefore prayed for a rescission of the contract and a decree in his favor for the amount paid upon the purchase money by Danforth, or for an abatement of the purchase money. The circuit court, having- rendered a decree rescinding the contract, and decreeing to Wickliffe the amount of purchase money paid by Danforth, Mrs. Denny prosecutes this appeal.
    Shuck for appellant—
    1. If the contract was properly rescinded, the court erred in decreeing to Wickliffe the purchase money paid by Danforth to Talbott. All’ that Wickliffe can be entitled to is the sum which he paid for the land. Upon rescission the parties should be placed in statu quo. '
    
    
      2. Wickliffe is not entitled to a rescission, tie has not made his immediate vendor a party. He occupies the position of a purchaser by an executed contract, and has not the same right to rescission as if he only held a bond. He does not show that he is in danger of losing the land. (Vance vs. House’s heirs, 5 B. Mon., 540.)
    3. It is now 47 years since Brown and Perry conveyed to Talbott, and 37 years since any of them have been heard of. The statute creating the presumption of death upon seven years we think applies. (Beauchamp vs. Gant, MS. Opinion, Winter Term, 1856.) A conveyance, after a great lapse of time, will be presumed, even from sáfeme covert. (Brassficld vs. Walker, Spc., 7 B. Mon., 99.) The vendee must show that there is a defect of title, and that the persons from whose claim he apprehends danger are in being, and not barred by lapse of time. Mr. Wickliffe has not done this. After insisting upon and obtaining a specific execution of the contract, he should not be permitted to ask a rescission when there is no one making. claim to the land, or likely to do so, and when the only persons who could claim are, upon a fair presumption, dead.
    W. R. Grigsby on same side—
    1. The circuit court erred in refusing to enter the mandate of the court of appeals, and in allowing Wickliffe to file hi3 supplemental bill.
    2. If that bill should be entertained, he is not entitled to relief upon the merits of the case. In 1810 Perry and Brown conveyed by deed to Talbott the 72 acres, the title to which is alleged to be defective. The deed purported to pass the whole fee, with general warranty; and at this day every possible title shown to exist anterior to 1810 should be taken to have been in Perry and Brown. It does not appear that their waves are living, or, if dead, that they left children. These women, presumably left Kentucky as early as 1800, and not having been heard from, the law presumes that they were dead in 1807, (Rev. Stat., 314,) fifty-one years ago. The presumption of the death of the husbands arose in 1827. It is not shown that any persons under disabilities have any claim to the land. The vendor shows an actual uninterrupted possession of 30 years, and is, therefore, able to confer title. (1 Greenlcaf, sec. 41, and authorities there cited; G East, 85.)
    3. After obtaining a specific execution of the contract the appellee cannot ask a rescission. If he set out his danger and bring the adversary claimants before the court, if the claims be held paramount, equity can be done, but no rescission. (Simpson vs. Hawkins, 1 Dana, 305; Rawlins vs. Timbcrlalce, G Mon., 225; Payne vs. Cabell,7 Mon., 198; 3 Mon., 380.)
    4. The supplemental bill cannot be held to be a bill of review impeaching the decree, (1) because the facts alleged are not material to the issue tried, which was whether the purchase money had been paid or not, and (2) because if the facts alleged were material to the issue, the appellee has not shown the exercise of reasonable diligence in ascertaining them.
    
      T. A. Maeshall for appellee—
    1. Wickliffe, as assignee of the title bond of Cyrus Talbott to Danforth, is entitled to all the rights which Danforth himself was invested with by the bond, and especially to the right of having a good title, such as the bond calls for; and if that cannot be made or exhibited, of having a rescission of the contract entitling him, in the place of Danforth, to the purchase money paid by either, with its interest, subject to an account of rents, improvements, &c. When the assignee, finding that the obli-gor cannot convey the promised title, elects to rescind, he, and no one else, is entitled to the money which has been paid on the purchase. {Ballard vs. Stevenson, 7 Mon., 368.) That Wick-liffe, under the supposition authorized by the face of the bond, that the land had been fully paid for, desired or even asked for a conveyance, did not impair his right to demand a rescission when Mrs. Denny, without the ability to make a title, demands a further payment, and seeks to enforce it by a sale of the land itself.
    2. The title to more than one-third of the land, and a most essential part of the purchase, did not pass to Talbott by the deed of Brown and Perry executed in 1810, because the title was in their wives; and a possession of even 47 or 48 years under that deed affords no legal ground for presuming a title in fee-simple, which alone Wickliffe is bound, to accept, or for presuming that the title of the wives of Brown and Perry has passed by lapse of time and operation of law to the claimants in possession under the deed. It is not shown that Brown or Perry, or the wife of either, is yet dead; and it follows that it has not been shown that there has been a possession adverse to the title of the latter for any period. No fact required either by the common law or the statute to authorize a presumption of the death of any of these persons exists in this case. Without such presumption, the question of the life or death of each of them is but matter of conjecture. To authorize the presumption, proof of the party’s absence, without having been heard of for the prescribed period, must come from the last known residence of the party whose life or death is in question. {Me Cartee vs. Camel, 1 Barb. N. Y. Ghy. Rep., 455; 
      Doe vs. Andrews, 15 Addison & Ellis; Hubbac/c on Succession, 47 ml. Law Library, side page 168 to 175; 4 Neville & Mann, 344, 30 Eng. Com. Law Rep.) As the persons in question lived in Tennessee, and removed from that state, evidence of their not having been heard of in Kentucky will not authorize the presumption of their death. And certainly there can be no presumption that the wives of Brown and Perry are dead without issue.
    
    3. The proposal to secure Wickliffe by a bond or warranty against any claim by the wives of Brown and Perry, or their heirs, is a novelty in a case of this kind, in which there is not merely a cloud or incumbrance on the title, or a defect in a small quantity of land, not materially affecting the contract, but an actual want or destitution of title to a large portion of the land for which Wickliffe is called on to pay and accept a conveyance.
    C. A. Wickliffe on same side—
    1. A vendee will not be compelled to accept a defective title, though it be only as to a part, if it be a considerable part, or valuable. (Miller vs. Long, 3 Mar., 336; lb., 274.) The vendor must show that he is able to convey a good title; and the burthen of proof is not on the vendee to show the defect. {Jett vs. Locke, 5 J.J. Mar., 591; 5 Litt., 8.) The case of Simpson vs. Hawkins (1 Dana, 305) was a case in which the vendee had accepted the deed.
    2. It is admitted that appellee, as assignee of the bond’for a conveyance, has a right to a conveyance if the purchase money is paid; and it would seem that the kindred right, upon good grounds, to rescind the contract, followed the assignment.
    3. To justify presumption of the death of a person from seven years’ absence, such absence must be from the country of the absentee’s residence. {Spurr vs. Trimble, 1 Mar., 278 ; Rev. Stat., 314; 2 Greenleaf, 6th Ed., 299.) It is for those who rely upon the aid of this presumption to prove the facts which. will justify its exercise. In this case, as Brown and Perry and their wives did not live in Kentucky, proof of their absence from this state will not answer. Long absence alone, without the aid of other facts, will not furnish any presumption of a party’s death.
    4. As the fee was in the wives of Brown and Perry when their husbands sold to Talbott; that Talbott entered and held under the title, which he ma}'- have supposed vested in him a fee-simple estate, did not render his possession adverse to their title during coverture. It has not been shown that the cover-ture has been removed by the death of any of them. A purchaser cannot be compelled to accept a title made out by presumption from length of possession. (Tevis vs. Richardson, 7 Mon., G58; Lewis vs. Herndon, 3 Litt., 358.) Where a vendee claims under grant from the husband of the wife’s real estate, the possession is not adverse. Neither is it adverse when the wife joins in the deed, and madres an ineffectual effort to pass her title. (Taylor vs. Shcmwell, 4 B. Mon., 578; 2 Dana, 88; Gray and wife vs. Patton, 2 B. Mon., 12.)
    5. The appellee cannot be compelled to take this presumptive title upon personal security being given. Indemnity may be given where there is danger from adverse claims which time is fast destroying, or a lien resting on the land which may be removed by operation of law; but where the vendor’s title is defective to a considerable and valuable part of the land sold, such assurance should not be taken or allowed.
    As to the right of appellee to file the supplemental bill, see Crompton vs. Wombwell, 6 English Chy. Rep., 286.
   JUDGE SIMPSON

delivered the opinion of the codrt:

In the cases of Rouse vs. Williams and McLean vs. Nixon, in which opinions were delivered at the December term, 1857, it was decided that where a cause was remanded by this court, with directions to the circuit court to render a particular decree or judgment, the case had to be regarded as being finally disposed of to that extent; and no pleadings could be filed in the circuit court that would have the effect of. avoiding the mandate of this court, unless they were of such a character as would authorize a final decree or judgment to be reviewed or vacated, after the expiration of the term at which it had been rendered. As remarked by the court in the case of Kennedy, &c., vs. Meredith, (4 Mon., 411,) “before reversing a decree in tbis court, such decree must be given,.or be directed to be given, as the court below ought to have rendered in the first instance. The directions thus given by this court are not in the power of the, court to revoke, after the term of the court has ended. Far less are they in the power of the inferior court, which has not the option to obey or disobey.”

These principles are applicable to the present case. When it was formerly in this court, it was decided that Wickliffe was entitled to a specific execution of the contract, but that the purchase money was not all paid. The amount unpaid was ascertained, and the devisee of the vendor was declared to have a lien on the land to secure its payment. The circuit court was directed to enter a decree in conformity with these principles. The question therefore is, had such a decree been rendered, would Wickliffe have been entitled to any relief on the suplementary pleadings and proceedings in the cause ?

In the case referred to of Rouse vs. Williams, it was said in substance that the court below ought to have entered a decree according to the mandate of this court, before it allowed any supplementary pleadings to be filed; but as a different course had been adopted, the proceedings would not on that ground alone be deemed to be erroneous. Inasmuch, however, as the supplementary pleadings -did not show any sufficient reason for setting aside the decree, if it had been rendered, the party was not entitled to the relief he asked for, and it was the duty of the circuit court to carry the mandate of this court into effect.

Applying this rule in the present case, we will disregard the irregularity that was committed in allowing the supplementary pleadings to be filed, before a decree was rendered in pursuance of the mandate of the court; and we will proceed to test their validity, considering them as having been exhibited after such a decree had been regularly entered and placed beyond the power of the court to disturb, except for such cause as would have authorized it to vacate it.

The fact presented by the supplementary pleadings would, if it had been relied on, in apt and proper time for that purpose, have entitled Wickliffe to a rescission of the contract. The doctrine is well settled, that a vendor cannot enforce the specific execution of a contract, unless he has a good title to the land sold. But here there was a decree for a specific execution, on the application of the purchaser himself, without any objection to the title, in which the rights of the parties were adjusted and determined, on the principle that the contract should be specifically executed. The question, therefore, now is, not what the purchaser could have claimed before the decree was rendered, but it is, what must he now rely upon to enable him to review that decree, set it aside, and place himself in the attitude he occupied before the rights of the parties had been settled and determined by the court ?

Assuming the existence of the alleged defect in the title, the principal matter to be considered is, whether it was discovered at such a time and under such circumstances as furnishes the party with a reasonable excuse for failing to rely upon it, in the original suit. And as the allegations on this subject, contained in his supplemental bill, are not controverted in the answer, they must be regarded as true. He alleges that the discovery of the defect in the title was not made by him until after the final decree was rendered in the circuit court; but he wholly fails to allege any reasonable excuse for his failure to examine the title at a more early period. Now the doctrine is well settled, that the fact relied upon to entitle a party to relief against a decree, must not only have been discovered too late to have been used upon the trial, but must have been of such a nature, or so concealed, that it could not have been previously discovered by the use of reasonable diligence. The deeds by which the defect in the title is manifested were of record in the county where Wickliffe resided, and were accessible to all persons. By ordinary diligence he could have discovered, at any time during the pendency of the suit, all the matters which he now relies upon. As a purchaser, the law regards him as constructively notified of any defect in his vendor’s title that appears of record. Besides, it is against the settled policy of the law to permit a party to- a suit to be careless and negligent, until the suit has been tried and decided, and then to awaken up and bring forward matters which might, by ordinary diligence, have been produced and relied on upon the trial. In this case there was no concealment or misrepresentation by the adverse party, nothing to delude or deceive the purchaser. The only reason assigned by him for failing to investigate the title was, that he entertained a confident belief that the whole of the purchase money was paid, and if so,-he was wholly indifferent, as may be inferred from his statement, as to the condition of the title. That, however, does not constitute a legal excuse for the want of diligence in looking into the title, nor a sufficient reason for not having brought the title into question in the original suit. The supplemental bill did not, therefore, present such a case as authorized the court below to disregard the decree for a specific execution, and to decree a rescission of the contract.

But it seems to be supposed that there is something in the response which was made by this court, to the petition for a rehearing, that authorized the granting of relief upon the supplemental bill. It'must be recollected, however, that the mandate of the court remained unchanged, and the suggestion in the response was not intended for the court below, nor could it have any effect in controlling or modifying the directions contained in the mandate. Nor is there anything in the language used in the response that justifies the conclusion that any equitable principle, or rule of practice, was to be disregarded or departed from in obtaining the relief referred to by supplemental pleadings. If a defect existed in the title, and that defect had been recently discovered, then, if the discovery were made under such circumstances as would sustain a supplemental bill in the nature of a bill of review, the decree which was rendered might be vacated and the entire contract rescinded. If, however, the discovery was not thus made, then, such a case might be presented as would entitle the petitioner to relief to the extent that the title of the vendor proved to be defective. This was the evident meaning of the language used in the response; but even if it could be construed to mean anything else, which we do not admit, it was only an intimation, which did not form any part of the opinion of the court, and was not intended to regulate or govern the action of the court below on the subject. As, then, the discovery was not made under such circumstances as authorized the party to rely upon the alleged defect of title to vacate the decree and obtain a rescission of the contract, the next question to be considered is, has he presented such a case as entitles him to any relief, if the title to part of the land be defective.

If a decree had been rendered, in conformity with the principles of the opinion of this court, although it would have fixed and determined the amount of the purchase money that was still due and owing, and have given Mrs. Denny a lien on the land to secure its payment; yet the money would have remained unpaid, and Wicldiffe being in possession, and the estate of the vendor, and his devisee being insolvent, he had a right to suspend the collection of the balance of the purchase money until he could test the validity of the title. It is true that a defect in the title to part of the land would not authorize a rescission of the contract, but only relief pro tanto, inasmuch as Wicldiffe, under the decree, occupies virtually the attitude of a purchaser under an executed contract. He occupies that attitude, because the decree, not having been vacated or set aside by his supplemental proceedings, has to be specifically executed by a conveyance to him of the legal title. Still, however, he is entitled to relief commensurate with the loss ensuing from the defect in the title, if there be one; but this relief he can only obtain by bringing the parties before the court from whom he apprehends danger, in order that they may assert their right, and thereby have the question of title finally litigated and settled. (Simpson vs. Hawkins, 1 Dana, 303; Taylor vs. Lyon, 2 Dana, 279.)

The evidence does not satisfy us that the alleged defect in the title has been cured by time, or that the possession, although continued for almost half a century, would bar the right of the wives of Brown and Perry, or the right of their heirs-a.t-law, if they be dead. The testimony in the cause does not, however, create a presumption of their death. Although they have not been heard of by their relations in this state for many years, yet as they resided in another state at the time the deed was executed by their husbands, their friends or relations where they then resided may have heard of them frequently. But as the appellee will have to amend his pleadings, and make them parties, and require them to assert their right to the land, if they intend to do it, the matter will be open for further investigation, so far as they are concerned, and the decision of the point at this time is not material, except for the purpose of showing that the alleged defect in the title has not been disproved, and therefore this court should not direct a dismissal of the supplemental bill, but require it to be amended for the purpose of bringing the parties before the court, from whose claim danger to the purchaser’s possession is apprehended by him.

In the event it should be made to appear that the vendor’s title to any part of the land is defective, and other persons shall, when brought before the court, succeed in establishing their right to it, the purchaser will then be entitled to an abatement of the value of the part so lost, out of the balance of the purchase money which is unpaid; its value to be ascertained by reference to the price of the whole tract, as fixed by the original contract, and by its relative value when compared with the balance of the tract at that time.

Its value, when thus determined, will bear interest from the 1st day of March, 1849, the time when Wickliffe is charged with interest on the unpaid purchase money — from which, however, must be deducted the rent of the land and the value of any waste or deterioration thereof, taking into the estimate any improvements which the purchaser may have made thereon.

As some of the claimants will have to be proceeded against as non-residents, the question occurs, in what manner shall their title be litigated and their claim guarded against, if they fail to appear and assert it by appropriate pleadings, when constructively served with process?

As Wickliffe is in the possession of the land, he has a right, for the purpose of quieting his possession and of perfecting hds title, to bring all claimants, and all persons from whom he apprehends any disturbance at a future period, before the court, by appropriate proceedings, and require them to assert their-title; and upon their failing to do so, he will be entitled to a decree against them, precluding them from its assertion at any subsequent time. But as a judgment against persons constructively summoned, who do not appear, may be subsequently set aside, if such persons, at any time within five years after the rendition of the judgment, appear in court and move to have the action retried, and then assert and establish their title, it will be necessary, even after such a judgment or decree has been rendered, to secure the purchaser against the assertion of the claim within the time allowed by law for that purpose. And to this end the party entitled to the purchase money must, before she can demand its payment, be required to execute to Wickliffe a covenant, with good security, to the effect that she will secure and indemnify him against all loss or damage that he may sustain by reason of the appearance of any of the defendants who have been constructively summoned within the time allowed by law, and the assertion and establishment by them of a right and title to any part of the land purchased by him. And upon the execution of such a covenant, after a judgment has been rendered in favor of Wickliffe to quiet his title and possession, his injunction should be dissolved, and he should be required to pay the balance of the purchase money.

Wherefore, the decree is reversed, and cause remanded for further proceedings not inconsistent with this opinion.  