
    Land’s Administrator, Appellant, v. Lacoste et al.
    
    Where the maker when first applied to refused to acknowledge the validity of his note, alledging that there was some difficulty about the consideration, but subsequently declared that the difficulty was removed, and the note would be paid, he was held to have waived his right to set up failure of consideration against an assignee who had purchased the paper upon the faith of such assurances.
    APPEAL from a decree of the Chancellor dissolving an injunction.
    The complainant’s bill states: That William H. Johnson is administrator of the estate of Thomas Land, deceased, who died intestate. That most of the estate of said Land appears to be advertised for sale on the fourth Friday in March, 1840, by Charles A. Lacoste, as trustee under a deed of trust executed by Land, December 10, 1836, to secure the payment of several notes therein mentioned to Levin R. Marshall.
    That complainant is advised, he ought not to pay said notes, even if he had the means, until certain rights are adjudicated. That on examination of the records of the proper county, no evidence is there afforded, (except as contained in the recital of the deed of trust,) that the land and negroes, for which said notes were given, as on a re-purchase, had never been conveyed by said Land, nor do they show any re-conveyance to said Land: but from the deed of trust it would seem Land had conveyed to some person or persons therein named.
    Complainant has in possession another paper, purporting to be an agreement between Land and Marshall, which recites that title to said property was vested in “Marshall and McCorkle,” by the previous purchase from said Land; and stipulating on the part of Marshall, that he would procure a conveyance to be regularly executed by McCorkle and wife to Land, for said premises, or to Marshall. That complainant has in possession another paper purporting to be a quit claim deed from said Marshall and wife, and McCorkle and wife, for said premises, to Land, from which it would appear Marshall and McCorkle have some conveyance from said Land for said premises. But complainant shows that the paper purporting to be a quit claim is not properly proved, so as to divest the interest of the vendor if recorded, and that it does not comply with the obligation of said Marshall, to convey to Land in fee simple by the 1st of January, 1839.
    Complainant has no knowledge that this quit claim was ever accepted by said Land, but the fact that it was not recorded would tend to the contrary opinion, which is strengthened by the conduct and conversation of said Land not long before his death, when he expressed some objection to the title, and some regret that he could not safely pay for the property, having a more favorable opportunity of malting payment than he might thereafter have.
    Complainant has also been informed that some claim under an Indian treaty as a reservation, adverse to that of said Land, has been sanctioned by the Government of the United States, or its functionaries; and that there is well grounded apprehensions of the loss by said claim of half a section of said lancj, near the middle of it, including valuable improvements. That considerable debts were owing by said Land, and the estate is declared insolvent; that there may be some outstanding judgment or judgments against the estate. That the debt secured by said deed of trust has never been submitted to the commissioner appointed to adjudge claims, nor to the judge of probate, nor is there any judgment thereon. But the advertisement purports to be made for a sale, as if said Land were yet living.
    That the notice purports to be made at the request of John C. Jenkins, administrator of John S. Carmichael, assignee of said Marshall, but whether the facts exist as required by the deed of trust, complainant is not informed. That said notice is to sell “in a public street in the town of Tchula,” without greater particularity as to place, which is hot particular enough.
    Complainant is not informed what disposition has been made of the stock of the Commercial bank of Natchez, pledged in hands of J. L. McMurran, as security for this debt; but charges that said title was not made according to that agreement, and suggests that said stock ought to be held accountable in equity, whether it has been considered as discharged or not.
    That said Land paid twenty-eight thousand seven hundred and fifty dollars, being the note first due, and part of the second, and remainder of that note, and the two last are unpaid, of which the last will not be due until February 1st, 1841, and the amount now sought to be made, is nearly the same as that already made. It is understood that part payment was thus made by said Land in confidence that the title would be made to him as stipulated, and on the securities of the stock above mentioned.
    That Land died in June, 1839, leaving a widow and two children, his only heirs and distributees. Is advised there was no forfeiture of any part of said land or slaves, in the life-time of Land, to prevent the descent being cast, and that the title was passed to the heir. Is also advised, that no sale should be made of said property until the court decreed whether said contract should be executed or rescinded; and if to be executed, that no sale should be made, until the title be cleared of doubt, all necessary parties being before the court, and complainant charges that the title is very imperfect, and that there may be judgment liens older than the deed of trust.
    Submits, if this debt although secured by deed of trust, shall have the preference to other debts due from Land’s estate. Submits whether the notice is sufficient. Prays process against Marshall, Lacoste, McMurran, Jenkins, McCorkie, Margaret S. Land, and the heirs of Land.
    That Marshall was only to convey the title .in fee simple to said property as vested in Marshall and McCorkie, by the previous purchaser, the said Land. The quit claim deed was acknowledged by Marshall and wife before the clerk of the probate court of Adams county, 2d of March, 1839, and by McCorkie and wife 25th October, 1837, before judge of probate of Claiborne county. The second note secured by the deed of trust became due February 1st, 1839, and the bill admits the payment of this and the first note.
    The answer of Jenkins stated that he was administrator of Carmichael: that Reynolds, Byrns and Marshall were indebted to John F. Carmichael in the sum of one hundred thousand dollars, by note. That Carmichael placed the note in the hands of George Winchester, to effect a settlement, and obtain security thereupon by taking a transfer of said deed of trust by Land to Marshall.
    That said Winchester addressed a letter to Land on the 9th of July, 1837, informing of the proposed arrangement, and requesting him to inform him whether he would have any claim or de-fence of off-sett, payment, failure of consideration or want of consideration, or other defence to said notes, and whether there existed any encumbrance of an older date on said property than the deed of trust.
    That on the 17th of- July, 1837, Land replied, that until Marshall & McCorkle should make him a title to property, which they had not done, he could not acknowledge the validity-of the notes and deed of trust; stating at the same timé he had no doubt that they could do so.
    That on account of said answer, said Winchester declined to make the arrangement.
    That afterwards, in the fall of 1837, Land visited Natchez and called on Winchester, and stated to him that he had effected an arrangement or came to an understanding with Marshall, and that said notes and deed of trust might be taken with safety, and that he, Land, would make no defence or claim against them for any off-sett or failure of consideration or want of consideration.
    That in consequence of said information said Winchester, with the consent of defendant, effected the said arrangement, and informed defendant thereof by letter, 27th March, 1838.
    That Land paid the first note on the 17th of March, 1838, in Brandon Bank paper, upon which the defendant sustained a loss of near one half, by the depreciation of the paper.
    That on or about the 1st of March, 1839, Land paid nine thousand dollars in Union Bank notes, upon which defendant sustained a loss of ten per cent.; and one thousand in par funds; and requested indulgence for the residue until February, 1840, when he could punctually pay the balance of the second with the third note.
    That there is now due a said second note, eight thousand eight hundred and seventy-five dollars, with interest from the 1st of March, 1839, and on the third note eighteen thousand seven hundred and fifty dollars, with interest from the 1st of February, 1840.
    That he is informed and believes twenty-three of the slaves contained in said deed of trust were sold or conveyed beyond the limits of Mississippi by said Land, in the summer of 1839, and the security of defendant thereby diminished, which said sale by Land defendant is disposed to believe was intended honestly for the purpose of applying the proceeds to pay said debt due defendant, and submits that said proceeds in the hands of the administrators of Land should be applied to pay this debt, if the lands and slaves turn out insufficient.
    That defendant requested Lacoste to advertize and sell so much of said property under said deed of trust as would be sufficient to pay said debt now due, and said Lacoste gave twenty days’ notice, in a newspaper published at Vicksburg, and in all other respects was conforming to the requisitions and provisions of said deed of trust as related to the sale of said property and payment of said notes, when he was interrupted by injunction.
    Defendant believes said administrator of T. Land was fully aware of the existence of said notes and deed of trust, as defendant. was informed by Charles Lynch, father-in-law of said Land, by letter dated prior to the maturity of the note due in February, 1840, that the administrator of T. Land would be unable to pay said notes, and making proposals to buy said notes and deed of trust., Denied that he had any intention of having the property sacrificed at said sale, or that he has ever said or done any thing to warrant such belief; on the contrary, defendant, in answer to said proposition of said Lynch, agreed to give the highest market price for said slaves, and was on his way to attend the sale for that purpose.
    Defendant knows nothing of the defect of title stated or pretended as to said land sold to Thomas Land, nor of any failure of consideration; but has always relied confidently upon the diligence used by his attorney, G. Winchester, in ascertaining from the said Land whether there existed any defence for failure of consideration, want of consideration, or offset previous to his taking an assignment of said note or deed of trust. And upon the assurance made by said Land, that he should make no such defence before the said notes or deeds of trust were received, and the note of said Reynolds, Marshall & Co. surrendered.
    Defendant never would have consented to surrender said note to Reynolds, Marshall & Co., and take said notes and deed of trust of Land as a payment therefor, without the assurance of said Land first obtained that no such defence as that attempted to be made in this suit would ever be set up by him the said Land or his representatives. Defendant did surrender said note to Reynolds, Marshall & Co., and take said notes and deed of trust from Land, upon said assurances of said Land.
    Defendant has been greatly damnified by the unjust interferences of complainant, in delaying him in the sale of said property. Defendant avers that the notice to sell in a public street, in the town of Tchula, has as much particularity as to place as is required by said deed of trust, and could by no possibility tend to a sacrifice of the property; as the town of Tchula is a small town, and if the property were cried in a public street in the town, it might easily be heard in ail settled parts of the town. And defendant is not aware that there is any name given to any public street in said town, nor is any given in said deed of trust.
    Defendant knows nothing of the disposition of stock in the Commercial Bank, pledged in the hands of McMurran; nor does he conceive he has interest or concern therein. Defendant denies that the first payments made by Land were made in confidence that the title would be made to him as stipulated, and on the security of the stock. On the contrary, said Land, at and ever after the assignment of said notes and deed of trust, never pretended to defendant or his agent, G. Winchester, to have any ground of defence whatever against the payment of said notes as secured by said deed.
    Defendant is advised that the legal title to said land and slaves was fully vested in Laeoste before the death of Land, and did not descend to his heirs.
    Winchester, for appellees.
    1st. Upon the face of complainant’s bill, the injunction was improperly granted; and was, therefore, properly dissolved.
    
      The equity of the bill, if any, is that Marshall has not made such title, by reconyeyancé to Land, as he was bound to do by his agreement. By that agreement, he was to reconvey to Land, in fee simple, the same title he and McCorkle had previously obtained from Land.
    The bill shows, that Marshall and wife, and McCorkle and wife, did execute and acknowledge a quit-claim before the clerk of Probate in Adams county, and the judge of Probate in Claiborne county; and that said deed was delivered to Land, and found in his possession by his administrator. The only doubt started, as to Land’s having accepted this deed, is that he had not had it recorded. As it was not acknowledged by Marshall and wife until March, 1839, and as Land died in June, 1839, it is not strange he had not had it recorded. But even Marshall and McCorkle’s deed from Land was not recorded; so that it did not even appear that Land had ever parted with his original title.
    As to the Indian reservation, it is mere conjecture of the administrator. . He does not state who has, the claim, nor what is the claim. Besides, if he had, and such claim were indisputably better than the title of Land, yet as Land originally sold and conveyed the land under this defect, and as Marshall was only to reconvey the same title they had. derived from Land, it could afford no ground of complaint against Marshall. There can be no doubt, on the statements in the bill, that Land had, after March, 1839, accepted the quit-claim deed as a full compliance on the part of Marshall with his agreement.
    2nd. But in the answer of Jenkins, it is perfectly clear. Land, about the time the quit-claim was acknowledged by Marshall, paid one half of the second noté, and obtained an indulgence for the balance to the 1st of February, 1840. He doubtless had received the quit-claim at the time. But after the pledge Land had given the agent of Jenkins, that he would make no defence to the notes and deed of trust,' and that he had arranged the difficulties (previously mentioned in his letter) with Marshall, it would be the grossest fraud upon Jenkins for him or his representatives to set up any such defence.
    3rd. It is obvious the whole object of the administrator is to keep possession of the plantation, and make crops, by delaying defendant by injunctions and appeals. Already he has made one crop, and if this suit can be hung up another year, may make another. By the time he has worn out the land and negroes, they will be poor security for this debt of Jenkins, who has surrendered up notes to the amount of one hundred thousand dollars, upon the pledge of Land that he should be perfectly secure, in the note and deed of trust, against any such defence as that set up by the administrator.
    4th. The administrator has no right to the possession of the slaves and lands against the trustee. Yet the effect of the injunction is to sustain and justify him in his trespass upon the lands, and to drive the trustee to his action of ejectment to recover possession. He does not come into chancery with clean hands.
    The appeal in this case was granted by a judge of the High Court of Errors and Appeals. Query: Has any but the chancellor power to grant an appeal from an interlocutory order dissolving an injunction ?
   Opinion of the court by

Mr. Chief Justice ShaRebv.

The plaintiff obtained an injunction to stay the sale of property under a deed of trust executed by his intestate. Jenkins, the as-signee of the notes, and the party beneficially interested in the sale, filed his answer, and the injunction was dissolved on bill and answer, from which decree of the Chancellor, this appeal was taken. It is not necessary to enter fully into a discussion of the allegations in the bill. Even on its face, unexplained by an answer, it presents but a slight ground of equity. The administrator seems to have been actuated by a desire to protect the estate, so far as to have a decision of the proper tribunals, on the matters alledged in the bill, before the sale should take place, and by this means to insure the legality of the proceedings.

But even if the bill contained more of merit than it does, it is fully repelled by the answer of Jenkins, so far at least as he is concerned. He became the assignee of the notes, to secure the payment of which the deed of trust was given. Before he took the assignment, he, by his agent applied to Land to know whether he had any offset or defence. He was answered that the notes were given for the price of certain property purchased of Marshall, the title to which had not been perfected, but that he had no' doubt it would be. The justness of the debt was not, however, acknowledged, and here the matter rested; the agent of Jenkins refusing to take the assignment. Not long afterwards Land was in Natchez, when the matter was again canvassed. He then had an interview with Marshall, and probably received from him a satisfactory title. He subsequently saw Judge Winchester, the agent for Mr. Jenkins, assured him the notes would be paid; that the difficulty was obviated, and that the notes might be taken, and that he, Land, would make no defence against them. The answer also avers that in consequence of this assurance the assignment was taken. Here, then, was a promise to pay to one who was about to take an assignment, in consequence of which promise the assignment was taken. Whatever equity Land might have had as between himself and Marshall, was certainly waived as to Jenkins. This question was fully investigated in the case of Hamer v. Johnson, decided at the present term. It was there held that such a promise to one about to take an assignment, was binding on the party making it, and a waiver of his equity, even without further knowledge of the failure of consideration than such as the party must have had by the making of the contract, and knowing'the consideration for which the notes were given. The excuse of ignorance of failure of consideration, cannot be urged for Land. He at first stated that the contract had not been completed, in consequence of which he refused to make a positive promise. The contracting parties afterwards met and adjusted the difficulty; he stated to Jenkins that the obstacle had been removed and that the' assignment might be taken with safety, in consequence of which it was taken. The main reason urged in the bill, is, that Marshall had not completed the title, and this was the objection which Land first made, and the one which he afterwards admitted was corrected. It was the only point in dispute from the time the first enquiry was made of him, and having so fully waived that, or at least admitted that it no longer existed, we can perceive no ground for reversing the decree.

Decree of the Chancellor affirmed.  