
    Malachi Peques vs. Joseph Mosby et al.
    In an action on a note given for land, in which the defendant, under the plea of non assumpsit, offered proof to show that the plaintiff had not title to the land for which the notes were given, it is not competent for the plaintiff to show by parol, that there was a mistake in the description of the land in the title bond; and that the defendant was really put into possession of the land sold and had enjoyed it ever since; such proof may he made in a court of equity, but not of law.
    Courts will construe covenants to be dependent, unless a contrary intention clearly appear ; in an action, therefore, on a note given for land, to which the vendee received a bond for title, to be made when the purchase-money was paid, and that was payable in instalments, the right to enforce payment is not distinct and independent from the ability to make title; and the vendee may set up and show in bar of the action on the notes, a want of title in the vendor.
    In error, from the circuit court of Marshall county; Hon. James M. Howrey, judge.
    On the 10th August, 1842, William Peques sued Joseph Mosby and Robert G. Kyle upon two promissory notes, for $1280 each, dated the 13th December, 1838, one due the first January, 1840, and the other first January, 1841; the defendants plead non assumpsit; a trial was had and verdict rendered for them. Several bills of exception were sealed during the progress of the-trial. From the first, it appeared that the defendants read to the jury a title bond from Peques to them, conditioned to make title to the land therein, sold them on the payment of the purchase-money. The condition was in these words, after describing the notes: “ Now if I shall make or cause to be made to the said Mosby & Kyle, a good and lawful deed of conveyance to the said half section of land, when the last note becomes due and is paid, then this obligation to be null and void; otherwise, to remain in full force and virtue of law, given from under my hand and seal, this 15th Dec. 1838.”
    
      The defendants then read various deeds, which it is not necessary to notice further than to say, that their object and effect were to show that the plaintiff had no title to the property sold by the title bond; but that the title was at the date of the bond, and then, in third persons. The defendants then proved by Gordentia Waite, clerk of the court of probates for Marshall county, who proved that there was no evidence on record in his office, of any title in the plaintiff, or claim on the part of the plaintiff, to the land described in the title-bond, or that he ever had title or claim thereto.
    The plaintiff then offered to prove, by a witness, that the defendants had obtained the land they bargained for; that they took possession of it at the time of the contract, and had held peaceable possession ever since; and that, if the lands mentioned in the title-bond were not the same lands for which the defendants had contracted, the description in the title-bond had been erroneously stated by the draftsman of the bond through mistake and not through fraud, and that the witness was the draftsman of the bond; but the court refused to permit the evidence to be introduced, to which the plaintiff excepted.
    The plaintiff asked for these instructions :
    1. That under the contract proved by the title-bond, the defendants had no right to demand of the plaintiff the conveyance of the title to the land in the title-bond mentioned, until they have paid the notes mentioned therein.
    
      2. That under said contract, the undertaking of the defendants to pay the plaintiff the money demanded in this action, and the undertaking of the plaintiff to convey to the defendants the land mentioned in the title-bond, are mutual and independent; and that not the performance of the plaintiff to make title to the defendants for said tract of land, but the promise itself constitutes the consideration of the defendant’s notes, on which suit is founded.
    3.. Upon the question, whether the vendor of property at the time of the sale did disclose defects which he knew to exist, the question of proof is upon the party charging the fraud, to prove that the vendor did not disclose such defects; for fraud is never to be presumed, but must always be proved.
    
      4. The contract to pay the three promissory notes, is entirely independent of the covenant for title, and by the terms of the agreement, defendants could not demand a performance of the covenant to convey, without showing a payment of the whole three notes, or an offer to pay them.
    These instructions were all refused; and in lieu of the first and second, the court below gave the following : “It is a general rule of law in this state, that under such contracts as that proven by the title-bond in this case, the defendants have no right to demand of the plaintiff the conveyance of the title to the land in said bond mentioned, until they have paid the notes mentioned in the bond. But if the plaintiff has no title or shadow of title at the time he contracts, and still has none, the defendants may set up the defence in a suit at law on the notes, and is not bound to wait until a recovery and payment of the purchase-money. In lieu of the third charge asked, the court instructed the jury, that fraud could not be inferred, but might be proved either directly or by circumstances.
    At the instance of the defendant, the court further instructed the jury:
    1. If, from the proof in this case, the jury should believe that at the time of the .contract for the sale of the land, Peques had not title, and still had not title to the same, but sold the land of another without color or semblance of title, the defendants could, in a suit at law, resist the payment of the purchase-money on that ground.
    2. When a person takes upon himself to contract for the sale of an estate in land, and is not the owner of it, nor has it in his power by the ordinary course of law or equity to make himself so, neither law or equity will enforce the buyer to take; for no man was permitted to speculate on another’s estate.
    3. The contract to be valid must be mutual; that is, Peques, at the time of the sale, must have had such claim or title to the land, as by the aid of a court of law or equity, he could place himself in a situation, specifically, to perform his contract by making to the purchaser a clear and indefeasible title to the land described in the agreement or contract.
    
      The plaintiff moved for a new trial, which being refused, he sued out this writ of error.
    
      Lucas, Watson, and Clapp, for plaintiffs in error.
    1. The first question to be considered, arises upon the exclusion of the testimony of the witness Wall. It was surely competent to prove, that the defendants had the land they had bargained for. 1 Leigh R. 483. Had the plaintiff in error shown that the defendants in error had held and enjoyed the land sold them without interruption, they could not have defended themselves against the payment of the purchase-money. Anderson v. Lincoln, 5 How. R. 279; Coleman v. Rowe, 5 Ibid. 460.
    2. The three instructions given by the court, on the motion of the counsel for the defendant in error, invaded the province of the jury, in assuming a fact, without proof of which, in no possible aspect of the case can either one of said instructions be correct. It was for the jury to determine, whether or not the land, in the title-bond mentioned, was the consideration for which the notes sued on were given; and no instruction of the court should have proceeded on an assumption of this fact, as the instructions given did. Each one of these instructions should have been so framed, as to show to the jury, that unless they believed from the evidence in the cause that the land, in the title-bond mentioned, was the consideration for which the notes sued on were given, they were to regard the said instructions as having no application whatever to the case. All that was necessary for this purpose, was, that the defendants, by their counsel, should have stated their case hypothetically in the instructions asked. This, however, was not done, and for this reason, if for no other, said instructions were erroneous. 1 Rob. Prac. 340, 341; McRea v. Scott 8p Saunders, 4 Rand. 463, 465; Smith et al. v. Carrington et al. 4 Cranch, 62; Dickson v. Moody, 2 S. & M. 15. It does appear, from another part of the record, that the land was the consideration of the notes, but it has been repeatedly decided that facts, on testimony stated in one bill of exceptions, cannot be noticed by an appellate court, in considering another. Brook v. Young, 3 Rand. 106; 2 Leigh, 639. Unless, indeed, there is a reference from one bill of exceptions to the other; but, in the present case, no such reference exists. 5 How. 606. From the correspondence in date, amount, &c. between the notes declared on, and the notes mentioned in the title bond, it may be inferred that the land mentioned in the title bond was the consideration for the notes; but of the weight, sufficiency and effect of this circumstantial testimony, the jury should have been left the exclusive judges. Authorities cited above.
    3. The covenants or promises in this case, are not dependents but independents. “It is well settled in reference to the question of the dependence or independence of covenants, that where a day is appointed for payment by the defendant, and such day is to happen before the thing which was the consideration of the defendant’s contract was to be performed, an action may be brought for the money, for it appears that the defendant relied on his remedy.” Opinion of the court in Leflwich et al. v. Coleman, 3 How. R. 167; Rector v. Price, Ib. 321. See also Hogeman v. Sharkey, 1 lb. 277; Gibson v. Newman, lb. 341; 1 Saund. R. 320, («.) The undertaking of the defendant in error is absolute and positive, that they will pay the appellant $3840, in three equal annual instalments, and in consideration of the payments being made atthe times, and in the manner specified, the appellant, plaintiff in error, bound himself to convey in fee simple the tract of land in the title bond mentioned. The payments were to be made without reference to the conveyance, and the conveyance was not to be executed until all the payments were made. The language of the title bond is, “ That the appellant is to make to the defendants in error title to the land in question, when the last note becomes due and is paid.” It is impossible for language to make covenants or promises more independent than these. Granby v. Cheevers, 9 Johns. R. 126; Robb v. Montgomery, 20 lb. 15. In the case of dependent covenants, the conveyance and payments are to be simultaneous acts, and then there must be an existing capacity in the one who is to convey a good title: in the other case, where the payments are to precede the conveyance, it is no excuse for non-payment, that there is not a present existing capacity to convey a good title, unless the one whose duty it is to pay, offers to do so, on receiving a good title, and then it must be made to him, or the other party will be in default. The defendants in error never offered to pay, and never demanded a conveyance; and therefore it furnishes no bar to plaintiff in error’s suit, that at a certain period plaintiff in error had not the title. He might have had it, and would have had it, had the defendants in error paid the money, and demanded a deed.
    4. If the positions above assumed be true, it follows that the verdict of the jury was contrary to law and evidence, and the motion for a new trial should have been sustained.
    
      ITerger and Scott, for defendants in error.
    A court of law was not the place to correct any mistake, if any such was made. The evidence was properly ruled out.
    It is not, however, pretended that it was not the land sold. The witness says hypothetically, that if it was not the same land, &c. &c.
    The court also, according to many decisions, and some made by this court, was right in ruling out the evidence of possession, because if the circumstances show fraud, express or implied, eviction is not necessary.
    The plaintiff does not pretend that he has any claim to the land; he sets up none. It is proved clearly that the land mentioned in the bond belonged to other persons. He does not even exhibit a deed, or agreement, written or verbal. It was a sale of land belonging to another, which he must assuredly have known did not belong to him. This he was obliged to know, for he has no pretence of title.
    Judge Story says, (I Com. on Eq. 218) “ If a vendor sells an estate, knowing that he had no title, of which the vendee is ignorant, the concealment of such a material fact would clearly avoid the sale on the ground of fraud.”
    Here is a man selling lands which the records show without dispute belong to another. He must have known he had no title ; it was a legal fraud.
    But this court has decided, that where a note is given for a lot, and that the consideration had wholly failed for want of title in the vendor, it is a good defence. Ray v. Woodfollc, 1 S. & M. 523. So in Brewer v. Harris, 2 lb. 84; Kilpatrick v. Dye’s heirs, 4 lb. 289.
    The question whether the covenants were dependent or independent, does not arise, for where there is fraud or a total failure of consideration, the foregoing cases recognize the right to defend on that ground.
   Mr. Justice Clayton

delivered the opinion of the court.

Peques sold a tract of land to the defendants, and gave a bond to make title, when the purchase-money should be paid. Suit was brought upon two of the notes executed for the purchase-money, and the plea of non assumpsit filed. On the trial the defendants offered proof to show that the plaintiff never had title to the land mentioned in the title-bond. The plaintiff then offered to prove, by parol, that there was a mistake in the description of the land contained in the title bond, and that the defendants were placed in possession of the land really sold, which they had ever since enjoyed without disturbance, and that the notes were executed for that land.

This evidence was objected to, and excluded by the court. To this, exceptions were filed. Several instructions were asked on the part of the plaintiff, which were refused by the court, and a verdict was rendered for defendants. A writ of error thence brings the case to this court.

Parol evidence to show that a mistake exists in a deed or written instrument, and to correct that mistake, is not admissible in a court of law. Upon a bill filed in chancery to correct the mistake, and to reform the deed, such evidence may be received, since it is one of the acknowledged heads of equity jurisdiction to correct mistakes. Marquis of Townsend v. Stargroom, 6 Ves.; Clowes v. Higginson, 1 Ves. & Bea.; Gris, on Eq. Ev. 205; 2 Hum. 72; 1 Greenl. on Ev. 358, § 296; 1 Story Eq. 164, 175: Ratcliffe v. Alison, 3 Ran. 537; Hunt v. Rousmanier, 1 Peters, 1; 3 Phil. Ev. 1429—1434; 6 N. H. 205. The instructions asked for and refused, assert the proposition that the right to enforce payment is distinct and independent from the ability to make title, and hence the want of title cannot be used as a defence. These charges were properly withheld. Courts will construe covenants to be dependent, unless a contrary intention clearly appears. Gardner v. King, 2 Iredell; Stockton v. George, 7 How. 175. A party is not thus forced to pay out his money, unless he can get that for which he stipulated. In this instance the party must seek his relief in equity.

Judgment affirmed.  