Patton et al. v. Taylor et al.

It was error in the court below to reject the testimony of an attorney upon the ground of his being security for costs, when the party for whom he was security had already obtained a judgment against his adversary, and also upon the ground of his being interested, when, as a mere naked trustee, he held certain notes only for the purpose of paying the money over to his clients, when recovered.

*THIS was an appeal from the Circuit Court of the *133] United States for the District of Kentucky, sitting as a court of equity.

Patton was a citizen of Virginia, and Taylor of Kentucky. On the 30th of January, 1818, Taylor addressed a letter, dated Frankfort, Kentucky, to Patton, in Virginia, in which he gave an account of certain other lands, and then proceeded as follows:

"I shall go from this to Lexington, to the court which commences this week, and do what I think right. I think your price too high for your land for me to make much, if any, profit from it; but must conclude to take it at five thousand dollars, for the two tracts of 1000 acres each, payable one half in one year from the time you send me the deed, and the other half in two years from that time; I mean the two tracts entered and surveyed in the name of Thos. Gaskins; It appears to have been patented in the name of Hicks & Campbell; you can have the deed made out, as I suppose you have the patents, and I suppose the chain of title, which it will be necessary to forward, also to be recorded here, if it is not done; I shall expect a general war

long as he retains possession of the land. Long v. Saunders, 88 Ill., 147; Summerall v. Graham, 62 Ga., 729; Haynes v. White, 55 Cal., 38; Pershing v. Canfield, 70 Mo., 140; Tarleton v. Daily, 55 Tex., 92; Cartwright v. Culver, 74 Mo., 179. But see McLaren v. Irvin, 63 Ga., 275. The doctrine that a purchaser who has paid the price, and who has not been disturbed in his possession, cannot demand the restitution of the price, has no application to a contract entered into in error produced by the fraud of the vendor. Formento v. Robert, 27 La. Ann., 489.

When the covenants have been actually broken, and the grantor is in solvent, a court of equity may restrain him from proceeding to collect the whole amount of the purchase-money, and may offset the damages occasioned by the breach of the covenants of seizin or warranty against such unpaid per

chase-money. Woodruff v. Bunce, 9 Paige (N. Y.), 443.

In Alabama, a court of equity will rescind the contract at the suit of a vendee who contracted for a good title, and who has abandoned the possession on the discovery of want of title in his vendor; although the proof shows only a mistake on the part of the vendor in his assertions of title, without fraudulent misrepresentations, and although the vendee might have a remedy by action at law for deceit, or on his covenant of warranty. Baptiste v. Peters, 51 Ala., 158. Such also is the rule in Tennessee. Puckett v. Draper, 58 Tenn., 395; Saint v. Taylor, 12 Heisk., 488; Johnson v. Siesfield, 6 Baxt., 41. S. P. McManus v. Cook, 59 Ga., 485. So, also, where the purchaser has been evicted by paramount title. Adams v. Kibler, 7 So. Car., 47.

Patton et al. v. Taylor et al.

ranty deed, expressing more or less as to the mode of authenticating the deed; our mutual friend, Col. Mercer, can give you information if you should be at loss, as he has conveyed to me several times. The land lies in the Virginia military district, and in the county of Hopkins. I presume you will have no objection to making the conveyance, and taking my bonds; and indeed this shall oblige me to consider the contract binding on me, as above stated, on receiving the deed as aforesaid for the said land, payable as aforesaid.

"If you want any security, or a mortgage, say so."

The letter then proceeded to speak of other matters. It may be proper to remark, that it was contended in the argument, that, in transcribing and printing, an error had occurred in the punctuation. The words "if it is not done" belonged, it was said, to the words which follow them, viz. "I shall expect," &c., which, it was argued, would materially change the meaning.

On the 13th of July, 1818, Patton replied, by a letter from which the following is an extract:

66

"GEN. JAMES TAYLOR:

·Fredericksburg, 13th July, 1818.

"Dear Sir, I am favored with yours of the 22d of June, and not less surprised than you seem to be about the 2,000 acres of land, in name of Thomas Gaskins, offered you, the 17th of March last year, at 15s. per acre; and, in yours of the *5th of July, you advise me to take $4,000, as the

lands in that quarter were generally of an inferior [*134

quality, and could not rise in value. In that month I wrote to you that I would not take less than 158. per acre; to this letter, though one was requested, I never had any reply, nor did you ever say you would accept my offer, until the 30th of January, six months after the last offer was made, for the letter of the 18th of December was only putting you in mind of the offer made in July. This letter, I will candidly acknowledge, I did not remember having written, not having kept any copy. There is something in the extended delay of your answer which I do not like, nor do I think it right; but I am anxious to avoid all misunderstanding, and, during my whole life, have never stood on trifles. You may, therefore, have the land at 17s. per acre, one half payable in twelve months from the time my offer was renewed, and the remainder twelve months afterwards. Your own bonds will be considered as sufficient security for the amount. By this decision I am placed in an awkward situation with the

Patton et al. v. Taylor et al.

young man with whom I made a conditional contract, and who has not, as I am informed of, returned from that county.

"The land patents are in the name of Thomas Gaskins, for whose services the land was rendered, were by him conveyed to William Forbes, and by him to Hicks & Campbell, of whom I received and will give you a deed, with a warranty, as soon as you reply to this letter. I hope Willis's representatives will not buy, and you are at liberty to take any lot you think best, but I will not take 158. for any part of it."

On the 3d of September, 1818, Patton and wife executed a deed in fee simple to Taylor for the land in question, with a covenant for further assurances and a general warranty.

The bonds for the purchase-money appear to have been previously executed, and were as follows, viz. :

"I, James Taylor, of the county of Campbell, and State of Kentucky, do oblige myself, my heirs and administrators, to pay to Robert Patton, of the town of Fredericksburg, and State of Virginia, the sum of $2,500, in current money, on the 30th day of January, 1819, as witness my hand and seal, this 5th day of August, 1818. JAMES TAYLOR.

"Witness: PHILIP H. JONES."

On which there were the following receipts, to wit:

Receipt for $600.

:

"July 1st, 1817, received from James Taylor the sum of six hundred dollars of the within. HUGH M. PATTON."

*By direction of Hugh M. Patton, agent of Robert *135] Patton, the within note is credited with $450, as due January 30, 1819; and I this day received from James Taylor three hundred and seventy-three and eighty-two hundredths dollars, November 19, 1819.

82

$373,8%.

T. F. TALBOTT, Attorney for Robert Patton."

"I, James Taylor, of the county of Campbell, and State of Kentucky, do oblige myself, my heirs and administra. ors, to pay Robert Patton, his heirs or assigns, of the town of Fredericksburg, and State of Virginia, the sum of $2,500, in cur

Patton et al. v. Taylor et al.

rent money, on the 30th January, 1820, as witness my hand and seal, this 1st day of July, 1818.

JAMES TAYLOR. [SEAL.]"

On which there was the following assignment, to wit:

Assignment.

"For value received, I assign the within bond to Theo. F. Talbott.

"July 1st, 1819."

ROBERT PATTON,

By H. M. Patton, his Att'y in fact.

In May, 1819, Hugh M. Patton, the son and agent of Robert Patton, went to Kentucky, and there executed the assignment above mentioned to Talbott, as security for a debt due by Robert Patton, and for the collection of which Talbott was the attorney.

On the 23d of October, 1819, Taylor addressed to Patton the following letter:

"Newport, October 23d, 1819.

"Sir,-At the time you forwarded me the deed for the land I bought of you in the county of Hopkins, patented to Thos. Gaskins, you sent me nothing to show how the title had passed to you. The land is listed on the auditor's books for taxes in the name of Thomas Southcombe, and for a number of years I have paid the taxes in his name for you. When your son, Hugh M. Patton, your agent, was here, I inquired of him how you derived your title from Southcombe, and whether he had a regular conveyance from Gaskins. He told me that you had some kind of transfer from Southcombe for all his debts, lands, &c., but did not seem to know much about it, but promised me, immediately on his getting home, to inform you of my uneasiness and doubts whether the chain of title was perfect, and to notify me, and indeed to request of you to send me a copy of the different conveyances, or, if they were in this county, to inform me where they could be found. I have not had a line [*136 from either of you since his return. I also consider myself very badly treated on another score. Your son had drawn a bill for $300, in favor of Talbott, of Lexington, on which he procured Mr. Talbott to be indorser; and, to indemnify him for doing so, he had lodged with him my bond to you for the first payment of the said land. Your son wished to get the bond released, and requested of me to give Mr. Talbott a

Patton et al. v. Taylor et al.

guarantee that the bill should be duly honored. This I did not hesitate to do. A few weeks ago I received a notification from the F. and M. Bank of Lexington, that the bill, although accepted by you, had been returned to the bank protested for non-payment; and I am called on by Mr. Talbott to take up the bill, and relieve him. I made every exertion in my power, when your son was here, to aid him in discharging a debt due here, which was in the hands of Mr. Talbott for collection, and was largely in advance for your taxes in this State and Ohio. The times, as to a good circulating medium, are truly embarrassing; but, had I been sure the title to the land sold me had been secure, I could have made sales to have met the payments, or nearly so; but I have been deterred from selling one acre, although offered the specie funds for a considerable purchase. Taking the whole transaction together, I must confess it is not such as I expected from Mr. Robert Patton of Fredericksburg. If there had been any little defect in the title to this land, which can be removed, and I had been notified of it and had it explained, I should not have been disposed to throw difficulties in the way, if there was a prospect to have any difficulty removed. When I go up, I shall have the records examined, and, if no chain of title can be found, I shall refuse to pay any more money till these difficulties are removed. I am sure you cannot think I am acting incorrectly in the course I am about to pursue. I am, Sir, your obedient servant, JAMES TAYLOR.

"ROBERT PATTON, ESQ."

On the 29th of February, 1820, Taylor addressed to Patton the following letter:

"Washington City, February 29, 1820. "ROBERT PATTON, ESQ. :

"Sir, I wrote you from Newport, Ky., last fall, requesting information whether the conveyances had been regular from the original patentee, Thos. Gaskins, for the two thousand acres of land sold me by you, lying in Hopkins county, on the waters of Pogue's Creek, and which I understood you purchased of Thos. Southcombe, to which letter I am without an answer, and at which I confess I am much surprised.

*

*137] I examined the records at Frankfort, Ky., and it appears to me the conveyances are regular down to Southcombe; and, if you have a proper conveyance from him (Southcombe), all will be right, I think. I assure you I wish you and myself to arrange our business in the most amicable manner;