
    Luckett et al. vs Triplett’s Adm’r. et al.
    
    Chancery.
    Error to the Franklin Circuit.
    
      Case 17.
    
      Vendor andvendee. Allegation and proof. Proconfesso.
    
    
      September 22.
    Allegations oí first bill and decree.
    Allegations of second bill and decree thereon.
   Chief Justice Robertson

delivered the Opinion of the Court.

Jeremiah Luckett enjoined a judgment which Joel Scott had obtained against him on a note, assigned by Thomas Triplett, and which had been'given ás a part of the price of a tract of land which Triplett had sold and conveyed to Luckett, by deed of general warranty. The only grounds suggested for the injunction were—1st, An apprehension of eviction by an adversary title superior to that of Triplett; and2ndly, The alleged doubtfulness of Triplett's circumstances—each of which was negatived by the answers.

The injunction having been dissolved and the bill dismissed, Scott obtained a judgment against Luckett and his surety in the injunction bond. To enjoin the enforce, ment of the replevin bond given in satisfaction of this last judgment, Luckett and his sureties filed another bill, incorporating therein the record of the first suit in Chancery, and' alleging, that since the date of the decree in that case, Luckett had been actually evicted in an action of ejectment, in which Triplett and himself were defendants, and that Triplett had then become hopelessly insolvent. The, record of the action of ejectment was ex. hibited and proved the eviction as alleged; and afterwards .an amended bill and a bill of revivor against Triplett’s administrator were filed, in which, after reiterating the allegations of the original bill, it was alleged that the consideration for the note on w'hieh the original judgment had been obtained had certainly failed. The amended bill was never answered by Scott; and Triplett’s administrator, in his answer to the bill of revivor, admitted the total insolvency of the intestate. Nevertheless, the Circuit Court again dissolved the injunction and dismissed the bill.

This last decree is now to be revised,

A vendee ofland having accepted a deed and retained the possession, cannot enjoinajudgment for the purchase money whilstthe vendor is solvent —But if vendee beevictedhyparamount title and vendorinsolvent, the Chancellor will perpetually enjoinsueh judgment, vendee being withoutrelief at law, and a decree on a former bill between the same parties for the same object, filed before the equity relied on in the last bill existed, will be no bar to the second suit.

Answer to bill, not admitting a material allegation, (insolvency) Will not be taken as a denial of ¡the same allegation, made two years after-wards in abill in it second suit, incorporating the record of first suit.

The assignee of a note, the consideration of which has failed, though subse• quently to the assignment, will not be permitted to coerce it any more than the obligee.

The first decree was no bar to the relief sought in this suit. As Luckett had accepted a conveyance and was in possession, and Triplett was not then insolvent or known to be so, there was certainly, at the date of the first decree, no cause for perpetuating the injunction; and the dismission of the first bill was, therefore, perfectly right: Taylor vs Lyon, 2 Dana, 276.

But before the final decree in the present case, Luckett had been actually evicted from the entire tract by a paramount title,' and his warrantor had become, or was then ascertained to be insolvent and irresponsible; and consequently, as there was no available remedy at law on the warranty, Luckett’s only relief was in a court of equity, by enjoining the enforcement of the consideration remaining still unpaid; and of course as no cause for injunction existed at the date of the first decree, this suit, instituted when there was sufficient ground for relief, as to Triplett at least, cannot be affected by that decree, so far as he was concerned.

There is some ground for doubting whether Scott or Triplett’s representative is the party beneficially interested in this case. But even if Scott be the beneficial as well as the nominal judgment creditor, he should 'not be permitted to enforce payment of the amount of the note which his assignor could have no pretence for enforcing. By not answering the amended bill, Scott admitted the eviction, Triplett’s insolvency, and the total failure of consideration, as therein explicitly alleged. The fact that, in an answer to the original bill, he had not admitted Triplett’s insolvency, could not affect his tacit admission of it two years afterwards.

It seems to us, therefore, that to the extent of the original judgment, and the accruing interest thereon, and the costs of this last suit, the injunction should be perpetuated against the replevin bond—leaving to be enforced only so much thereof as shall remain of the costs in the action on.the injunction bond, and of the costs and damages properly decreed on the dissolution of the injunction and dismission of the bill in the first case, after deducting therefrom the costs in this case, including the costs of the action of ejectment.

Todd for plaintiffs; Owsley for defendants.

The- last decree is, therefore, reversed, and the cause remanded for such a decree as herein indicated.  