
    Richard T. Parks vs. William D. Jennings and others.
    
    
      Specific performance — Lost paper.
    
    Tlie evidence examined and specific performance of a contract to execute conveyance in fee simple decreed, although the answer alleged that the contract, which had been lost, was to convey only for a limited time.
    The evidence as to the loss of the contract also examined and the loss held to be established by the proof.
    If a person having a right to an estate permit or encourage a purchaser to buy it of another, the purchaser shall hold it against such person.
    BEFOBE JOHNSON, OH., AT EDGEFIELD, JUNE , 1866.
    The decree of his Honor, the Chancellor, is as follows:
    Johnson, Ch. On the 4th day of December, 1861, William L. Parks and Eelix G. Parks, under a power conferred upon them by the will of their late father, Bichard Parks, sold at public sale, two tracts of land. One of which was known as the “Parks’ Mill Tract,” containing about fifteen acres, and the other was known as the “Kimbrel Tract,” containing one hundred acres, more or less. The former was bid off by W. L. Parks, for seven hundred and fifty dollars; the latter was bid off by the complainant for three hundred dollars. The terms of sale have been complied with, but from some cause, the title deeds have never been executed.
    On the 27th day of June, 1862, William L. Parks sold and conveyed an undivided three-fourths interest in the Parks’ Mill Tract to W. D. Jennings, G. G. Bobertson and C. L. Blair, for the sum of six hundred dollars; and upon that being done, the joint owners of the land entered into a copartnership for the purpose of running the mill, &c., and appointed W. D. Jennings, President or general agent of the firm.
    On the 24th day of December, 1863, the complainant sold and conveyed the “Kimbrel Tract” of land to the said firm for one thousand dollars. And soon after this, James A. Bass, from Virginia, purchased from W. D. Jennings, as the agent of'the firm, the Parks’ Mill Tract and the Kimbrel Tract of land for twenty thousand dollars, which was paid by him, and W. D. Jennings gave him a receipt for titles. And soon afterwards, Bass entered into the possession of the land, and erected valuable improvements on the same, and purchased a small tract adjoining the same (which increased his whole tract to one hundred and thirty acres) from M. N. Cartledge.
    On the 5th day of April, 1865, Bass sold the whole tract of land to the complainant, Bichard T. Parks, for forty-five thousand dollars, in cash. Twenty-one thousand dollars of which the complainant borrowed from 0. L. Blair, for which 0. L. Blair required him to pay him five thousand dollars in cash, and to agree to pay him one-half of the net profits of the mills for two years, and to give him his note for the whole amount of twenty-one thousand dollars, secured by a mortgage of the premises; and on the same day Bass gave B. T. Parks a receipt for the money in full payment for a certain tract of land, containing one hundred and-thirty acres, more or less, &c., and also signed and delivered to B. T. Parks an instrument in writing of which the following is a copy, to wit:
    Sodti-i Carolina,
    Edgefield District,
    Having never received titles to the tract of land above described, I hereby authorize and request W. D. Jennings & Co., to make titles to R. T. Parks. I have received only a receipt for the purchase-money of the tract of land above described, never having called upon the parties for titles. Witness my hand, this 5th April, 1865.
    J. A. Bass, [l.s.]
    In presence of
    Thos. G. Bacon,
    Angeline M. Bacon.
    ■ The receipt given by W. D. Jennings, as the agent of the firm, to J. A. Bass, had either been lost, or was said to have been lost, at the time the sale was made to R. T. Parks, but it is not denied by any of the parties, that a receipt for the purchase-money of the land had been given to him, and also for titles.
    
    The bill was filed for the purpose of compelling the defendants to execute good and sufficient titles to the complainant for the whole of the said tract of land, and of having account taken between the complainant 'and the defendant, 0. L. Blair, but the questions involved in such accounting, are such as cannot now be considered and passed upon, in consequence of the late order of Major General Sickles, and they are therefore reserved.
    W. D. Jennings, in his answer, denies having sold to J. A. Bass, or to any other person, the fee simple in the said tract of land, but acknowdedges that he did sell to J. A. Bass the “right and privilege of occupying and using the said land, and tannery, and distillery, and mill for and during the war.”
    The other members of the firm, in their answers, admit that they, or their constituted agent for them, sold the land, ■with all the improvements upon it, to J. A. Bass, and that, at the time the sale was made, and for so.me time after-wards, they regarded it an absolute sale of all the interest that the firm had in the same, but that Dr. Jennings had subsequently told them, that they would get the land back after tbe war was over, and cautioned them against making titles to J. A. Bass, or to any other person.
    So, the first question that has to be decided is, what interest in the land was sold to Bass, and for this purpose, it will be necessary to refer to certain parts of the evidence.
    Wm. Elkins testified, that he was sent by R. T. Parks to J. A. Bass to buy the mill fo.r him, and Parks told him to ask Bass about the title to the land. Bass told him he would have to see Dr. Jennings about the titles.
    E. H. Chamberlain testified, that, at one time, he had an idea of purchasing the mills, in connection with Spann Hammond, who was negotiating with Bass for them, and that he went to see W. D. Jennings about the titles and he told him to see Bass, and take a receipt from him for titles, that he had given Bass no titles, but a receipt for titles, which was as good as a title. “ He told” witness " to get a receipt from Bass, or if witness did not think that was enough, to take a quit claim from Bass, and they would make me (witness) titles to the place.” “ Heard Dr. Jennings say repeatedly, that he had sold the mill; heard him say the reason why he sold it was, that they had an overshot wheel, and that when the dam got a little old, they feared it would not answer the purpose they expected. Witness was present at conversation between Jennings and R. T. Parks. Jennings said to R. T. Parks, Mr. Blair will assist you in the purchase; Parks said he hated to call on Mr. Blair, — Mr. Blair had proposed to go into partnership with him ; and Dr. Jennings told- him not to be afraid, that he would write a note to Mr. Blair, and if Blair did not have the money, they could and would get it. Understood the receipt from Jennings to Bass was for full title for life time — a fee simple title.”
    Benjamin Roper testified, “ that be was at the Parks” Mills since the surrender, and heard Dr. Jennings say to R. T. Parks, that he would send a man to take possession of the mill next week. Parks said he would die before he would give it up. Witness loaned Dr. Jennings $18,000, in Confederate money ; thinks it was on sale-day in April, 1865,” and took the promissory note of Dr. Jennings, C. L. 'Blair and A. A. Glover for the same. And that in the conversation which he had heard at the mill between Jennings and Parks, Jennings said this matter had commenced in rascality, and should end in it.”
    S. Harrison testified that he was present when Jennings sold the mill to Bass, and that he wrote a receipt for nine thousand dollars in part payment for the same.
    J. W. Dougherty testified that he had heard all the company, except Jennings, speak of having sold the mill, and thought that they were all satisfied with the price which they had received for it; and witness thought that the price paid was the full value of the land at the time the' sale was made.
    M, N. Cartledge testified that he was boarding with Dr. Jennings when the mills were sold, and that he had heard him say that he had sold the land to Bass for $20,000, and witness thought this was a high price for it.
    H. T. Wright, Confederate Tax Collector, testified that during the war Dr. Jennings paid taxes on certain mills as the agent of J. A. Bass.
    All the witnesses, who were interrogated on the subject, testified that the land was sold by the firm for its full fee simple value. All the parties interested, except Jennings, regarded the sale as an absolute one for all the interest they had in the same. There was one witness present when the sale was made by Jennings to Bass, and various witnesses heard Jennings speak of the sale afterwards, but NO ONE, UNTIL AFTER THE SURRENDER, AND UNTIL AFTER Bass had left the State, ever heard him intimate, that the sale was not a real one for all the interest the firm, had in the land. And on one occasion, he assigned a reason for the sale, which is totally irreconcilable with the statements of his answer.
    Taking all the evidence together, I am forced to the conclusion that the sale made by Jennings, was for all the interest which the firm had in the land, and that the idea of its being only a lease for the continuance of the war, was an after thought of Jennings, and a determination on his part, at least, that the matter should end in "ráscality.” In addition to the above reasons,-Jennings and Blair encouraged the complainant to make the purchase, and really assisted him in getting the money with which to pay for the land; but under circumstances that do not entitle them to much credit, even though they supposed the complainant was getting a good title, but much less if they knew that the title of Bass was only for a limited period.
    The only question that remains to be considered, and the only one in the case that presents any real difficulty is this, is there such privity existing between the complainant and .the defendants as will entitle him to come into'this Court and require that they should execute titles to him ? "At law, it is very clear that there is no such privity between the parties as would be recognized by the Courts, but the general rule in equity is, “ that when the specific execution of a contract respecting lands will be decreed between the parties, it will be decreed between all parties, claiming under them in privity of estate, or of representation, or of title.” 2 Story’s Eq, 788 ; Hopkins vs. Hopkins, 4 Strob. Eq. 207; 6' Johns, Ch. 398; Hays vs. Hall, 4 Porter, 374.
    I have not been able to find any case, the facts of which are similar to this, but from the general principles laid down in the authorities referred to, and many others of a similar character; I am of the opinion that there is such privity between the complainant and the defendants.
    
      It is ordered and decreed, that the Commissioner of this Court do convey to R. T. Parks the one hundred and thirty acres, more or less, described in the bill, which conveyance shall be valid and binding, not only against all the members of the firm, but also against J. A. Bass, and the executors of R. Parks, and against all persons claiming under them, or either of them.
    It is also ordered and decreed, that W. D. Jennings, C. L. Blair, G. C. Robinson and W. L. Parks do pay the costs of these proceedings, which have heretofore accrued, and which may accrue, until the title deed is executed, including the costs of the same.
    The defendants appealed and now moved this Court to reverse the decree on the following grounds, viz.:
    1. That the evidence is conclusive that W. D. Jennings sold to J. A. Bass only “the right and privilege of occupying and using the said land, and tannery,,and, distillery, and mill, for and during the war.”
    2. That said agreement was illegal as it was entered into by W. D.’Jennings-and J. A. Bass to enable the said J. A. Bass to avoid the Conscript Act of the Confederate States of America, said action being against the public policy of the said Confederate States.
    8. That said contract was void ai initio, it being a gross fraud upon the military rights of the Confederate States of America.
    4. There was no legal consideration, the Confederate money paid for said lease being inadequate, illegal and worthless.
    5. That there was not such privity existing between the plaintiff and the defendants as will entitle him to come into this Court and require that they should execute titles to him.
    6.- That his Honor, the Chancellor, has erred in stating as evidence in his decree, upon which his decree is based, that no one denied that a receipt for titles was given by W. D'. Jennings to said J. A. Bass for the land. HiVHonor further erred in stating that no one, until after the surrender, and until Bass had left the State, ever heard him (W. D. Jennings) intimate that the sale was not for all the interest the firm had in the land.
    7. That at the time of the purchase of said lands by said B. T. Parks, from said J. A. Bass, the consideration, which was Confederate money, was worthless, the contract was based upon no consideration, and was clearly “ nudum pactum.”
    8. That the contracts between all parties were void as being against the public policy of the United States of America.
    
      Gary, for motion.
    
      Abney and Wright, contra.
    
      
       This case was decided in December, 1867, and among the cases of that term it should properly have appeared.
    
   The opinion of the Court was delivered by

Bunkin, C. J.

Upon questions of fact, this Court rarely interferes with the conclusions of the Chancellor, or the verdict of a jury.

The only foundation for the three principal grounds of appeal, is the uncorroborated statement in the answer of William B. Jennings. The interrogatories in the bill, when taken in connection with the charges, amount to no more than an inquiry as to the payment of the money, and the cause of the omission to make titles at the time. This the defendant might have answered in the affirmative, or negative, but instead of this, be insists by way of avoidance, on a distinct fact — an agreement entered into in violation of the laws of the land. It is very questionable how far, in such case, the answer is evidence of such fact. (See Green vs. Hart, 1 John R. 590; Hart vs. Ten Eyck, 2 Johns Ch. 38.)

But the answer was received and weighed by the Chancellor. And this Court is entirely satisfied with his judgment, that it is not only inconsistent with the testimony in the case, but with his own declarations and conduct. It is a familiar principle of equity, that “ if a person having a right to an estate, permit or encourage a purchaser to buy it of another, the purchaser shall hold it against the person who has the right.” (2 Sugd. Vend. 262.) Spann Hammond was negotiating with Bass for the purchase of this land and mill. On application to Jennings as to the titles, Jennings said “ he had given Bass a receipt for titles which was as good as a title, and if the witness would get a receipt from Bass, the parties would make Hammond a title,” &c. The same witness proves that he, Jennings, actually encouraged the plaintiff in the purchase of the property, and in case of necessity proffered to aid him with the means. It cannot be supposed that about 5th April, 1865, Spann Hammond was negotiating for the purchase of the right to “occupy and use the land, and tannery, and distillery, and mill, during the existence of the war,” which was then waging, &c., or that Jennings proffered to assist the plaintiff in raising forty-five thousand dollars, for the purchase of such right at that time.

In the sixth ground error is imputed to the Chancellor, in stating that “ no one denied that a receipt for titles was given by W. D. Jennings to said J. A. Bass for the land.” The language of the decree is, (referring to the loss of the receipt,) but it is not denied by any of the parties, that a receipt for the purchase-money had been given to him, (Bass,) and also for titles.” Parties means of course, the parties to the sale. No denial is made in the answer of Robertson, W. L. Parks or Blair, and these with W. D. Jennings constituted the Company. The answers of Jennings (although the bill alleged that the instrument of writing had been lost, mislaid or destroyed”) neither denies the execution of the paper, nor the loss ; but in his conversation with the witness Chamberlain, Jennings stated explicitly that he “ had given Bass a receipt for titles ; he had given him no titles, but a receipt for titles, which was as good as a title.”

Then as to the loss of the receipt. A loss, says Lord Lang-dale, in Cackell vs. Ridgman, (4 Beav. 500,) “ may be more or less susceptible of proof, according to circumstances. In some cases, it may be clearly and distinctly proved; in other cases, it may be reasonably inferred from circumstances, and every case must to some extent, depend upon its own circumstances.” Bass had left the State; Cartledge, one of the witnesses,' “ heard Bass say he had been robbed at the mill, and did not care for what he had lost, but a receipt he had in his coat pocket, the receipt from W. D. Jennings & Co.” John E. Bacon said he was called on by W. D. Jennings, Blair, and the plaintiff, (R. T. Parks,) to draw what he (witness) conceived to be a deed, from Bass to R. T. Parks; witness drew the deed, and left it in the possession of Parks; the deed was for a certain mill; witness has an indistinct recollection of a lost paper being mentioned by the parties; witness did not consider Parks as his client; he looked to Dr. Jennings in the matter.” However strong this may be as to the conviction of Jennings and Blair, that Bass was entitled to convey to the plaintiff) and that they so represented, it would be inconclusive as to the fact of loss of the instrument given by Jennings to Bass. But, taken in connection with the other circumstances of the case, it was sufficient to satisfy the Chancellor. So far back as December, 1868, (says Blair in his answer,) James A. Bass did purchase from William D. Jennings & Co. the tract of land, &c., for twenty thousand dollars. It was proved that the consideration money was divided between the parties; that Bass went into possession, and continued in possession until April, 1865, when he sold to the plaintiff, who has since held possession. If there had been no transfer by Bass to the plaintiff, and these proceedings were by J. A. Bass against W. D. Jennings & Co., to complete the title, the usual practice of this Court would entitle him to a decree.

Nor can the seventh ground of appeal avail the defendant. It was for J. A. Bass to estimate the value of the consideration on- 5th April, 1865, when, under his hand and seal, he directed W. D. Jennings & Go. to make titles to the plaintiff for the tract of land, with the tannery, distillery, and mill thereon, for which he had on that day received full payment. The effect of the decree is only to require that to be done now, through the Commissioner, which should have, at that time, been done by the parties themselves.

It is ordered and decreed, that the decree of the Circuit Court be affirmed, and that the appeal be dismissed. -

Wardlaw, and Inglis, A. JJ., concurred.

Decree affirmed.  