There were two titles to a tract of land, the senior title held
by Upshaw and the junior by Buckner, both derived from the same
person who had sold to both.
Buckner soon afterwards sold to Buchannon, who paid Buckner and
took possession.
Upshaw subsequently agreed to ratify the sale from the original
holder to Buckner, upon receiving an assignment of Buckner's bond
for the purchase money, not yet due, and other securities.
The bond not being paid, Upshaw brought an ejectment and
obtained a judgment. Buckner's assignees filed a bill to obtain a
perpetual injunction.
There is a privity of contract between them and Upshaw, and a
perpetual injunction will be granted upon their fulfilling the
obligations of Buckner, their assignor; it was not their duty,
under the circumstances, to have tendered the money to Upshaw.
A power in Buckner to resell, and a sale made under that power,
prior to Upshaw's giving his assent to the sale from the original
holder to Buckner himself, did not extinguish the equitable right
of Upshaw to receive the purchase money, or to proceed against the
land.
Upshaw's right not destroyed by lapse of time, because he had
brought suit on Buckner's bond and the other securities, and was
not in a condition for a long time to make a valid title.
Upshaw, being held bound by his assent to the sale to Buckner,
is entitled to the advantage which that paper gave him as to the
application of part of the purchase money to one purchase in
preference to another.
Interest must begin to run from the time when Upshaw asserted
his claim to the land, and what is due to Upshaw must be made up by
the present holders of the land, each one contributing in
proportion to the price which he paid to Buckner.
The case was this:
John Buchannon and others filed a bill in the Circuit Court of
Ohio against Upshaw, stating that Upshaw had obtained a judgment in
an action of ejectment against them, and praying for two
things:
1. That he, Upshaw, might be perpetually enjoined from
proceeding in execution upon said judgment; and
2. That he might be compelled to convey by deed in fee simple,
the land
Page 42 U. S. 57
which had been the subject of the suit in ejectment. The circuit
court, after various proceedings, decreed that the injunction which
had been temporarily granted, restraining Upshaw from suing out
executions upon his judgment in ejectment, should be dissolved;
that the bill should be dismissed, and that Buchannon and others
should pay to Upshaw a certain sum of money for the rents and
profits, after deducting the value of the improvements made upon
the land. From this decree an appeal was taken to this Court.
On the 11th of December, 1789, Beverly Roy obtained from the
Commonwealth of Virginia a patent for one thousand acres of land in
the Virginia Military District of Ohio, and within Clermont County.
He sold three hundred acres of this tract to one Buchannon, and
contracted to convey the remaining seven hundred (the land in
controversy in the present suit) to Lyne Shackleford.
On 10 April, 1797, Shackleford sold this tract of seven hundred
acres to Upshaw, the defendant in the present appeal; but not
having the legal title in himself at that time, he procured it to
be made directly from Roy to Upshaw, without passing through
himself. On 20 July, 1797, Roy accordingly executed a conveyance to
Upshaw for these seven hundred acres, and also a bond for further
assurance.
On 16 November, 1797, Shackleford, being thus destitute of the
legal title, nevertheless sold to Philip Buckner, the same tract of
seven hundred acres which he had previously sold to Upshaw. It was
alleged in the bill that this sale was made with Upshaw's consent,
but no evidence of it was furnished, except that in the contract of
1801, his consent is stated to be given at some time prior to 1801.
At the same time, Shackleford sold also to Buckner another tract of
one thousand acres. The price for both tracts was �1020,
without saying what was the sum for each tract. No part of it was
to be paid in cash. A bond of Anderson for �600 held by
Buckner was assigned to Shackleford; a claim against Coats for
�250 was also assigned over, and for the balance Shackleford
agreed to wait until Buckner sold the one thousand seven hundred
acres, provided he sold it prior to January, 1799; if not, payment
to be then made, or sooner if Buckner should sell.
In 1798 and 1799, Buckner sold to the complainants, or to
those
Page 42 U. S. 58
under whom they claim, in several parcels, the whole of the
seven hundred acres in question, who paid him in full therefor,
received conveyances, and entered into possession.
On 18 April, 1801, Upshaw, having made some payments to
Shackleford, entered into a new contract with him, which was
endorsed on the original one, stating
"that since the date of the within, Shackleford had, with the
consent of Upshaw, sold the seven hundred acres of land to Buckner
for �420, which sum is still due,"
and it was agreed that Shackleford should assign Buckner's
contract to Upshaw, who was to make a deed as soon as the money
should be paid. But if, upon application, Buckner did not pay the
said sum of money and interest, Upshaw was immediately to take
proper steps to have the land sold to raise the money and
interest.
On 16 May, 1803, Shackleford assigned to Upshaw the contract
between Shackleford and Buckner, and authorized Upshaw to receive
from Buckner the balance due on the same, amounting on that day to
�530 9
s., having previously assigned the claim upon
Coats' bond, and an order which Buckner had given upon one Copland,
the attorney who was charged with its collection. The result of
that claim may be stated in a few words. Suit was brought in the
Circuit Court of the United States at Richmond, by John Marshall,
in 1798, against Coats; there was a judgment, a
ca. sa.,
another
ca. sa.; and, finally, it got into chancery
against Coats' widow and children. The plaintiff at last gave it up
in 1820.
Upshaw made more than one effort to obtain the money from
Buckner, which was due under the contract assigned by Shackleford.
In April, 1804, he empowered John H. Upshaw, who was going to
Kentucky, to receive from Buckner the sum due on his contract, and,
on the payment of the money, the agent was authorized to make a
deed.
The agent called on Buckner, who expressed much anxiety to
comply with his contract, and induced the agent to remain some
days, in the hope of raising the money. But he failed to pay any
part of it. The agent, after authorizing John O'Bannon to receive
the money from Buckner, and make him a deed, returned to
Virginia.
Upshaw drew an order on John O'Bannon in April, 1807, for
Page 42 U. S. 59
the money, which was returned protested for nonacceptance.
O'Bannon shortly after this died, and in the year 1813, or 1814,
Upshaw obtained from his representatives the assigned contract of
Buckner, which had been left with him, and on which was endorsed a
credit for $100 on 10 April, 1805, and another for the same amount,
18 April, 1806. On obtaining the contract, Upshaw caused an action
to be brought on it against Buckner for the money. The suit being
brought in the name of Upshaw, as assignee of Shackleford, there
was a demurrer to the declaration; and at May term, 1815, the
Circuit Court of the United States for Kentucky sustained the
demurrer, and the action failed.
Shortly after this, Upshaw commenced an action of ejectment, in
the Circuit Court of the United States for the District of Ohio,
against Buchannon and others, who occupied the land, to recover
possession of it, which, at May term, 1816, failed, on the ground
that the patent emanated from the State of Virginia, subsequently
to the deed of cession from Virginia to the United States; and of
course Upshaw was only invested with the equitable title to the
land.
In August, 1817, Roy and wife executed another deed to Upshaw
for the land, in compliance with the covenant for further
assurance, which he had entered into in 1797.
Some short time prior to December, 1820, Buckner died. His will,
made in February, 1817, contains bequests of real estate and some
small legacies of personalty. The executor filed two accounts, one
in 1822, and the other in 1823, the latter showing a balance in the
hands of the executor of $50.18. It does not appear that any of his
real estate was required to be sold to pay debts.
In 1826, Upshaw obtained from the United States a patent for the
seven hundred acres.
In 1829, he brought another ejectment, in the Circuit Court of
the United States for the District of Ohio, against Buchannon and
others, occupiers of the land, and having now a patent from the
United States, succeeded in obtaining judgment; upon which,
Buchannon and others filed a bill upon the equity side of the same
court, and obtained an injunction to stay proceedings. This is the
bill mentioned in the commencement of this narrative,
Page 42 U. S. 60
which, upon hearing, was dismissed by the circuit court, and the
injunction dissolved; and the case now came up by an appeal from
that decree.
The proceedings in this case were diversified in its history, by
two collateral chancery suits, one by John H. Upshaw against E.
Upshaw, and another by E. Upshaw against Chamberlayne, the executor
of Shackleford, but as the decision of this case does not rest upon
any of the facts or principles disclosed in them, they are not
further noticed.
Page 42 U. S. 82
MR. JUSTICE CATRON delivered the opinion of the Court.
This is an injunction bill, to restrain the defendant from
taking out a writ of possession and an execution for costs, on a
recovery, of seven hundred acres of land, by Upshaw, in an action
of ejectment against the complainants in the circuit court of Ohio.
They ask a perpetual injunction of the execution, and a specific
decree for title.
The complainants, and those under whom they claim, purchased
from Philip Buckner, paid a full price, and took deeds dated in
1798 and 1799.
Buckner purchased from Lyne Shackleford in November, 1797, when
the latter had no title to, or interest in the land; Upshaw, the
respondent, being the owner. It had been granted to Beverly Roy by
the Commonwealth of Virginia, in 1789, and sold by Roy to
Shackleford. In April, 1797, Shackleford sold to Upshaw, and
directed the title to be made to him. On 20 July, 1797, Roy
conveyed to Upshaw, and in November afterwards, Shackleford sold a
second time to Buckner.
To remedy this defect of title and want of good faith, in April,
1801, Shackleford entered into a covenant with Upshaw, by which the
sale to Buckner, of November, 1797, was confirmed, and in May,
1803, Shackleford and Upshaw entered into another covenant, again
confirming the contract between Shackleford and Buckner, and which
is more specific in its terms than the first, of 1801.
By these contracts alone Upshaw was bound, and on them the bill
is founded and a specific decree asked. They must be taken
together; so the complainants treat them in their bill; nor can the
court do otherwise.
Upshaw, having stipulated to make title to Buckner, on receiving
�420, the purchase money, took an assignment of the
covenant
Page 42 U. S. 83
between Buckner and Shackleford, on which it appears by the
covenant of 1803, �420 was remaining unpaid.
It is insisted that a bill for a specific performance of the
contracts, could not be maintained until the purchase money was
tendered to Upshaw, the vendor, and of this opinion was the circuit
court, and principally on this ground, taken in connection with
other circumstances, dismissed the bill.
We are of opinion that if such a rule exists in any case, it has
no application to the one before us. The complainants purchased
from Buckner when he had no interest in the land, and at that time
they acquired no equity against Upshaw; yet of this fact they had
no knowledge, and rested confident that they were occupying and
improving the land under a good title. Nor did they have any
knowledge of the contracts between Shackleford and Upshaw, after
their purchase from Buckner, for many years; probably not until
about the time the recovery was had against them in the action of
ejectment in 1831. It was not Buckner's interest to give the
information; and Shackleford took no further trouble on himself in
the matter after 1803; he and Upshaw residing in the remote parts
of Virginia, five hundred miles from the complainants.
Upshaw admits in his answer that he did not know Buckner had
sold the land, or that it was in the possession of the
complainants, until about the time he brought his first action of
ejectment in October, 1818; that he sued for the land because he
had failed to obtain the purchase money from Buckner. The suit
failed because the patent from the Commonwealth of Virginia was
void, the country having been ceded (north of the Ohio River) by
Virginia to the United States, before the land was granted.
In 1826, Upshaw, on the production of the patent to Roy and his
deed, obtained a patent from the United States in confirmation of
the Virginia grant. On this he brought another suit against the
complainants, and in 1831, recovered the land. This is the judgment
the bill seeks to enjoin.
During all this time, Upshaw was a stranger to the complainants;
he set up no claim against them for the purchase money due from
Buckner to him; he sought the land, and disavowed that Buckner's
contract with the complainants bound him. And
Page 42 U. S. 84
so he continues to do. His principal defense in the answer to
the bill is
"That having no contract, or privity of contract, with the
purchasers from Buckner, he conceives they can have no right to
come into a court of equity to enforce a specific performance of
the contract with Buckner."
It is manifest that at no time were these complainants afforded
the opportunity to pay the purchase money due from Buckner to
Upshaw.
We therefore hold, that complainants were in no default
prejudicial to their original equities, for failing to discharge,
or offering to discharge, the bond of Buckner.
Nor could the complainants be justly charged with sleeping on
their rights, had the true state of the facts been known to them.
Until 1826, Upshaw was in no situation to comply with his part of
the contract; that is, to make title. A court of chancery would
have enjoined the payment of the purchase money before the patent
issued from the United States -- and set aside the contract, if the
vendor could not have made title.
Neither can this be treated as a stale claim, for another
reason. The complainants went into possession under Buckner's
deeds, dwelt upon, and in good faith improved the land, and are now
seeking to protect their possessions and homes, in affirmance of
their deeds.
We also hold that there was privity of contract between Upshaw
and the complainants. When he sanctioned Shackleford's contract
with Buckner, he became a party to it: Buckner had assigned all its
benefits to the complainants, and they must be treated as rightful
assignees; with the modifications imposed by the contract of 1801
and 1803, between Upshaw and Shackleford.
The equitable title being in the complainants by a contract
complete in all its parts, they are entitled to a specific decree
of course, on principles too familiar to require authorities to
support them. On this part of the case the court has had neither
doubt or difficulty in arriving at a conclusion favorable to a
specific decree.
The complainants being entitled to relief, the next question is
on what terms? For as they ask the active aid of the court to
coerce performance of the respondent's contracts, they can only
have such aid on the terms that they do him equity. A rule
Page 42 U. S. 85
without an exception, within our recollection. Having dealt for
an equitable title, complainants took it subject to all the
equities existing between their immediate vendor, Buckner, and his
vendor, Upshaw. It follows, they must perform the covenants
favorable to the defendant found in the contracts on which they
seek relief. Therefore, before Upshaw can be compelled to convey
the land, he is entitled to receive the purchase money, unless his
right is cut off by the contract, or has been forfeited by his
subsequent conduct.
The first objection is that in the contract between Shackleford
and Buckner, there is a power given to the latter to sell; until
which time Shackleford agreed to wait for a portion of the money;
that is, as to �170; provided the resale was made by 1
January, 1799, before which time, the sale was made to some of the
complainants. It is true in the nature of buying and selling, that
where a power of resale is given to the vendee, he has conferred on
him the corresponding power to receive payment. But this could not
affect Upshaw's title. Buckner took no interest by his contract
with Shackleford; nor did the complainants acquire any by their
purchase from Buckner. Their equities originated with Upshaw's
sanction, given after the power had expired. He might sanction the
contract of Shackleford with Buckner, or not, at his election, and,
of course, modify it to suit his own interest. Having the
transaction in his power, he saw proper to become a party to the
contract on the terms that he retained a lien on the land for the
�420, first by the covenant of 1801, he bound himself to
Shackleford, to proceed against the land if he failed to receive
payment from Buckner, and, secondly, by that of 1803, he bound
himself to convey to Buckner on being paid the �420. The
bill being founded on these contracts, Upshaw is entitled to be
paid the purchase money, irrespective of the stipulation that
Buckner was authorized to resell, by his contract with
Shackleford.
In the covenants of 1801, and 1803, Upshaw admits that Shackle
ford sold to Buckner with his consent, and it is insisted for
complainants that Upshaw must be held to have authorized
Shackleford to sell before the contract of 1797 was made. All the
evidence we find in the record of Upshaw's sanction, is found in
the contracts of 1801, and 1803; by these he was not bound to
convey until he received payment for the land; we think in this
modified
Page 42 U. S. 86
form is Upshaw bound, and that he never intended simply to
sanction Shackleford's sale to Buckner.
Next it is contended respondent was negligent in not collecting
a bond upon Coats on which �250 was due. Upshaw's covenants
have no reference to this security. It was delivered over to
Shackleford by Buckner for collection; credit was to be given for
the money, if collected, on Buckner's bond. The claim was
diligently pursued, but Coast proved insolvent, so that there is
nothing in this objection.
Again, it is contended, and with much force, that Upshaw was
grossly negligent in failing to collect the �420 from
Buckner. He received Buckner's covenant in 1803. In 1804, it was
sent by John H. Upshaw from Virginia to Kentucky for collection;
the agent was fully authorized to receive the money and to make
title to the land on its payment; which Buckner evaded, and the
contract was put into the hands of another agent, O'Bannon, who
collected $200 from Buckner: and in 1814, Buckner was sued in
Upshaw's name as assignee, and the suit failed because an assignee
could not sue upon such an instrument. During this time, Upshaw had
no valid title to the land, although there can be no doubt he
thought the Virginia patent valid; still he could not have coerced
payment from Buckner until 1826, when the patent from the United
States was obtained; had the latter resisted payment on this
ground. Under all the circumstances, we think Upshaw did not
forfeit his right to demand the purchase money from the
complainants.
Shackleford sold to Buckner two tracts of land, one of a
thousand acres, and this in controversy of seven hundred acres, for
the gross sum of �1020, and obtained �600 on
Anderson's bond in part payment. It is insisted that this sum must
be applied in discharge of the complainants, as seven hundred is to
one thousand, and that they are only bound for the residue.
The complainants are compelled to rely on Upshaw's contracts of
1801 and 1803, to maintain their claim to relief, and to affirm
them in all their parts. By these contracts it appears the seven
hundred acre tract was estimated at �420, and that no part
of the purchase money for this tract had then been paid by Buckner:
he was concluded from asserting the contrary, and so are the
complainants.
Page 42 U. S. 87
The next question is from what time are the complainants bound
to pay interest on the unpaid purchase money. They insist from the
time Upshaw obtained his patent from the United States in 1826.
Respondent insists he is entitled to interest from the time the
debt fell due against Buckner, or the 1st of January, 1799. Until
the complainants were notified that, as purchasers of Upshaw's
title, they were responsible to him for the purchase money, and
recognized as his debtors, they had no opportunity to make payment;
as to them, the debt was payable on demand, express or implied.
Respondent admits in the answer that he neither pursued the land,
or the purchasers under Buckner, until he failed to obtain payment
from the latter. His first assertion of claim, was by the suit in
ejectment in 1818; after which the purchasers cannot be heard to
say, they remained ignorant of the defects in their own title, or
of Upshaw's rights; it was imposed upon them to trace up the
outstanding equities favorable, and unfavorable. Had they done so,
the contracts of 1801, and 1803, would have been discovered, and
the state of the title explained: this complainants did in 1831,
and it could have been done quite as conveniently in 1818. We
therefore deem the suit equivalent to a demand.
That Upshaw had no legal title in 1818, is no excuse: the
complainants entered upon, occupied, and enjoyed the fruits of the
land, under his title, and could no more be allowed to disavow it
while they remained in possession, than could a tenant for years,
be permitted to disavow his landlord's title. So in effect, this
Court held in
Galloway v.
Finley, 12 Pet. 264. But being remote purchasers of
Upshaw's title; not from him, but another; and only bound to pay
the purchase money by the rules adopted by courts of chancery; by
the same rules, the complainants are entitled to an abatement of
interest in part, accruing on Buckner's contract, and as the right
to receive interest depends on the time when Upshaw notified them
that they were held responsible for Buckner's failure to pay; and
the action of ejectment, of October, 1818, being equivalent to a
demand of payment, legal interest accrued from that date.
This we deem a well founded principle, where a personal demand
existed upon real security, and is brought forward at a late
Page 42 U. S. 88
day. Interest may be allowed at the discretion of the court,
only from the time of filing the bill, in such cases. The rule is
established in the Court of Chancery in England, and can be
properly applied in this case.
Pickering v. Lord Stamford,
2 Ves.Jr. 272, 582. And under similar circumstances it equally
applies where mesne profits are claimed.
Acherly v. Roe, 5
Ves. 565.
We order that the $200 paid to O'Bannon be deducted from the
�420; leaving $1,200 due; on this sum interest will be
allowed from 15 October, 1818, until paid. As the record does not
show when the action of ejectment was brought, we assume the middle
of the month as the true time, the interest to be at the rate of
six percent per annum.
The purchase money will be apportioned among the complainants,
according to the original value of the several tracts when
purchased from Buckner and the price paid to him taken as the
measure of value. Those claiming under Buckner's vendees will be
governed by the same rule, of their vendor's. If the money is not
paid in a limited time, sales will be ordered, of all, or any of
the tracts, at the discretion of the circuit court, to raise the
money.
The injunction at law, insofar as to restrain the writ of
possession, will be made perpetual, but will be dissolved as to the
judgment for costs, so that an execution may issue to collect
them.
The costs of this suit in the circuit court will be equally
divided between the complainants, and the respondent, Upshaw, they
paying half and he the other half, and the complainants will
contribute among each other in the same proportion that they are
bound to do in discharging the decree for the purchase money.
The appellee Upshaw will pay the costs of this Court.
On the complainants' discharging the purchase money, the
contract between Buckner and Shackleford will be assigned to them
by Upshaw, if he is required to do so, and he will also be decreed
to execute deeds to the complainants for the tracts they
respectively claim, in such form and with such covenants as the
circuit court shall direct.
The decree of the circuit court for the mesne profits falls, of
course, by the reversal of the principal decree.
Page 42 U. S. 89
Order
"Edwin Upshaw, Appellant"
"v."
"Buchannon and others"
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Ohio, and on the cross-appeal by Edwin Upshaw, and was argued by
counsel. On consideration whereof, it is now here adjudged and
decreed by this Court, that the said appeal of Edwin Upshaw be and
the same is hereby dismissed, with costs.
"Buchannon and others, Appellants"
"v."
"Edwin Upshaw"
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Ohio, and was argued by counsel. On consideration whereof, it is
now here ordered, adjudged, and decreed by this Court, that the
decree of the said circuit court in this cause be and the same is
hereby reversed with costs, and that this cause be and the same is
hereby remanded to the said circuit court, with directions to
proceed therein conformably to the opinion and decree of this
Court.
