
    Supreme Court of Errors and Appeals. Nashville.
    1812.
    THOMAS MITCHELL v. WILLIAM NASH, &c.
    
      \ >• Chancery. )
    If the vendee of land, in possession under his contract, acquire the vendor’s title under judicial proceedings (such as an attachment) brought for the vendor’s breach of covenant to convey, he will have received everything to which lie is in equity entitled, except the costs of thus .acquiring the -title, and the judgment will be perpetually enjoined beyond that. [Acc. Mitchell v. Barry, 4 Hay. 136, citing this and other cases. See, also, Searcy v. Kirkpatrick, Cooke, 211, and cases tbere cited.]
    This was a bill in equity, praying for the conveyance of a tract of land.
    
      The bill states that in the year 1786, Parsons, one of the defendants, owned a military warrant for one thousand acres of land, which he put into the hands of Nash to locate and obtain a grant upon it, and for which Nash was to have one third of the land; that Nash did locate the land accordingly, in pursuance of which a grant issued to Parsons; that before the grant issued, Parsons sold two thirds of the land to Marshall, another of the defendants, and gave him a bond by which he covenanted to convey the aforesaid two thirds; and that Marshall afterwards transferred this bond to one Roach. The bill further states that Roach placed the bond in the hands of Bennet Searcy, Esq., where it was accidentally burned; that Roach sold and transferred his interest therein to one Cocke, and that one Maclin, as the agent of Cocke, made an agreement with Nash, that for the breach of covenant on the part of the said Parsons in not conveying the one third, Nash should sue but an attachment and have it levied on the land. By this agreement, when the land should be sold by virtue of the attachment, Nash was to buy it, obtain a conveyance, and then convey two thirds thereof to Cocke, who was to pay two thirds of the costs of prosecuting the attachment.
    It is further charged that the attachment was sued out and levied upon the land, which by virtue thereof was sold, and Nash purchased according to the previous agreement; that Cocke paid two thirds of the costs and sold his interest to the complainant, and that Nash had conveyed one third part of the tract to a certain Alexander M’Culloeh, and refused to convey to the complainant the remaining two thirds.
    Roach, Marshall and Cocke, all of whom were made defendants, in their answers admit the complainant’s statement to be true.
    Parsons having failed to answer the bill, it was taken for confessed against him.
    Nash, in his answer, admits that he made an agreement with Maclin; but states that by virtue of that agreement, Cocke was bound to sue Parsons on the bond executed to Marshall, in the county where Parsons lived; recover what damages he could for the non-conveyance of the two thirds of the tract, and give Násh one third of such recovery, — that this has not been done, and, therefore, he conceives he is not bound to convey.
    The proof in the cause showed that by the contract between Nash and Maclin, Nash was to attach the land, and that he was to purchase and convey it in the manner set forth in the bill. Whether Cocke was absolutely bound to sue upon the bond executed to Marshall, and give Nash one third of what should be recovered, or whether he was bound to give one third if he did sue and recover, was not entirely certain. There was a contrariety of evidence upon that point.
    It also appeared that no suit had been brought against Parsons on that bond.
    
      The cause was argued by Whiteside/ and Dickinson, for the complainant; and by Haywood, for Nash.
   White J.

delivered the opinion of the Court. It has been insisted for Nash that he ought not to be compelled to convey, because Cocke has not performed that part of the agreement which was for Nash’s benefit; and because it has not been proved that Parsons ever executed the bond to Marshall. In the view which the 'Court takes of this case it is not considered material to inquire whether by the terms of the agreement between Cocke and Nash, the former was bound to sue Parsons upon the bond given to Marshall or not. Parsons, by his contract, was bound to convey one third of this land to Nash, — the remaining two thirds he was bound to convey to Marshall, or those who had the interest in the bond given to Marshall. As Parsons had not executed those conveyances, Nash and Cocke were acting very correctly when they adopted any mode known to the law, by which to divest Parsons of his title to this tract of land, and have the same vested in themselves. But the moment they acquired a title to the whole of this tract they received everything to which'in equity they are entitled, except the costs they were subjected to in acquiring the title. And if Cocke had sued upon Marshall’s bond, a court of equity would restrain him from recovering anything in such suit, except a sum equal to the costs which had been expended in acquiring a title to the land. It would be most oppressive to permit the parties, through the medium of an attachment, to acquire a title to the very property for which they contracted, and recover from Parsons the full value of the property likewise. Nash himself now has a part of the judgment which he recovered unsatisfied. Why then should another suit be commenced against Parsons ?

It could answer no other purpose but that of injustice and oppression. There is no objection to Nash’s taking out execution on his judgment, and compelling the collection of as much money as is equal to the fifteen or twenty dollars costs which he has paid, — then he ought to stop. If he were to attempt to collect more, Parsons, by applying to a court of equity, could enjoin him from proceeding.

Cocke then seems to have complied with the only part of the agreement with which he ought to have complied; and his omitting to act oppressively and unjustly towards Parsons ought not to furnish a plea that would enable Nash to hold the whole one thousand acres both against Parsons and the complainant.

But it is insisted that Nash ought not to be compelled to convey, as there is no proof that Parsons ever executed the bond to Marshall.

It seems true, as a general rule, that the answer or admission of one defendant ought not to prejudice another. The bond is destroyed, — who the subscribing witness was does not appear. Parsons, who is said to have executed it, by failing to answer admits the execution. Marshall, another defendant, swears it was executed. Nash himself contracted with Cocke upon the presumption that it was genuine ; and his principal objection to convey is, that Cocke did not sue and recover upon it, which must presuppose that it wás genuine. The contract between Nash and Cocke is the direct ground of the suit against Nash ; and the bond given by Parsons to Marshall as between the complainant and Nash only comes into view collaterally ; therefore, it is not conceived that strict proof of its execution is essential. Nash cannot be prejudiced ; he is bound to convey two thirds of the land to either Parsons or the complainant, and as Parsons admits the right to be in the complainant, he will be barred from calling upon Nash to convey to him. Nash is not, therefore, prejudiced by compelling him to convey to the complainant.  