22 Arlc:] OF THE STATE OF ARKANSAS. ' 435 TERM, 18601 Bolton vs. Branch. BOLTON vs. BRANCH. To an action for the purchase money of a tract of land, the vendee cannot set up in bar apprehended difficulties in the title of the vendor, or require the exhibition of an abstract. If defects exist in the title they must be specifically, pointed out in pleading, and must be of substantial and existing quality. If the defence of outstanding title be interposed, the title must be specified, and alleged and proven to be paramount to that contracted to be conveyed. Appeal from Desha Circuit Court in Chancery. Hon. JOHN C. MURRAY, Circuit Judge. YELL, for the appellant. GARLAND for the appellee.
436. CASES IN THE SUPREME COURT [22 Ark. Bolton vs. Branch. [OcronEn Mr. Justice FAIRCHILD delivered the opinion of the court. On the 10th of January, 1854, Isaac L. Bolton sold to James H. Branch, the plantation in Desha county, known as the old Bellville place, on which Branch was then residing under license from Sexton, from whom Bolton bought the place, the preceding September. So much of the purchase money being unpaid, Branch executed his two bonds, each providing for the payment, to Bolton, of three thousand six hundred and sixty-six 66-100 dollars, and due respectively in one and two years. Bolton, at the same time, executed his title bond, which was evidently a covenant to convey the lands sold . to Branch, mutual with, and dependent upon the agreement of Branch to pay the two bonds, that represented the unpaid part of the purchase money. This we take to be the plain meaning of the bond, for although the last bond was not due till the 10th of January, 1856, and the bond for the title was to convey the lands upon the first of January, 1856, yet , the recital in the title bond is that this was to be done only upon payment of the last bond. The two bonds of Branch to Bolton being unpaid, on the 17th of March, 1856, Bolton filed the bill that was the beginning of this suit, in which he alleges the foregoing facts, a tender of such deed as he understands he is liable for, the non-payment of the bonds, the mortgage of the lands to sundry other persons by Branch, that Branch intends and is attempting to defraud him out of what is due to him on the lands; and he asks for the enforcement of his lien upon the land, by its being sold under the direction of the court, that he, Bolton, may realize from the sale what is due to him. At the April term, 1856, of the . Circuit Court of Desha county, Branch answered the bill, and made his answer a cross-bill; and also made Washington Bolton a party thereto, on the ground that the bond first due had been assigned to him, and that he had obtained judgment thereon, and would urge its satisfaction - by execution. As the agreement between the parties was reduced to writing, and is shown by the bond for title, to that alone must we
!2 Ark.] OF THE STATE OF ARKANSAS. 437 ['Ewa, 1860.] Bolton vs. Branch. ook to ascertain the obligations which Bolton took upon himself, inless Branch had wished and claimed that the contract should )e rescinded for fraud used by Bolton to procure its execution. Phis Branch does not desire, unless it should turn out upon nvestigation of Bolton's title, that it is worthless, when he will )e willing that Bolton should take back his lands, and refund o Branch the amount of the purchase money that, was paid. 'To his suggestion, if it were an unconditional one, Bolton expressed in eagerness to assent. Both because the obligations of the parties are to be gathered Tom their written agreements, and because Branch appears to lave been resident upon the old Bellville place, when Bolton bought t, and continued to hold it until his own purchase of it from Bol-on, who was himself a non-resident of the State, must the verbal issurances that Branch charged upon Bolton respecting the title o the lands be taken as immaterial to the merits of this contro-'ersy. This is not a bill, on the part of Bolton, for a specific perfor-nance, and so far as the case may be considered as such on the ross-bill of Branch, Bolton expressly offers to give such title, .s by his bond he undertook to make, and has brought into ourt, a deed to the lands, with covenants of general warranty, o be transferred to Branch upon payment by him of the pur-hase money. The proceeding of Bolton is simply to hold the and liable for the amount due upon it: He is not asking that 3ranch should specifically perform the agreement, but that he s keeping the land, and will not pay for it, and he offers, either o make such deed as he understands he is obliged to make ipon payment of what Branch owes, or to take back the land, nd pay to Branch, with interest, what has been paid on the and. If Bolton had conveyed the lands to Branch by deed, the atter could not resist payment of the purchase money on the Tounds of anticipated difficulties in the title, which may here-Iter be the subject of a suit. Worthington vs. Curd, decided t the present term. And 'surely a man that has only a bond
438 CASES IN THE SUPREME COURT [22 Arl Bolton vs. Branch. [OcroBE for title, cannot be in a better Condition in this suit for allegin, defects in a title than one who holds under a deed. Instead ó having a deed with covenants of general warranty, he has a righ of action to such deed, upon his own performance of what i contained in the bond for title, which, in this case, is paymen of the purchase money. To an action for the purchase money, the vendee cannot se up apprehended difficulties in the title of the vendor, canna call upon him to . show an abstract Of title, lf there are defect in the title, he must specify them and prove them, and the must be substantial and existing defects, not imaginary or apprehended or rumored difficulties. Harris vs. Bolton, 7 Hou (Miss.) 171; Glasscock vs. Robinson, 13 S. & M. 87; Ralston Miller, 3 Rand. 49; Crawford vs. Murphy, 22 Penn. State R. SI 88. If the vendee would defend because of an outstanding title a general expression that there may be, or that there is an out standing title is not enough. He must show what it • is, tha it is paramount to that of the vendor, must both allege and prov the fact. Tarpley vs. Poage, 2 Texas 148; Perry vs. Rice I Texas- 373. Some of the cases cited are where deeds had been given, bu some are where the contracts were executory, az; in this case. We cannot see that this case falls within Ludwick vs. Hunt zenger, 5 W. & S. 59, where after laying down the doctrim here announced, in strong terms, it states that while the con tract for the purchase of the land remains in fieri and the actim is brought on the contract with a view to enforce the paymen of the purchase money, the vendee will not be held bound t pay, if it should appear that the title of the vendor is anywis doubtful. Here the title of Bolton is not shown to be anywis doubtful. The only difficulty to his making perfect title, i cleared away, by obtaining a decree for title against the wido, and heirs of Sexton, who had died before he had made, • or wa to make title to Bolton; under his purchase. The • claims o 'Elizabeth Hughes, and of the widow and • eirs of Hugh C
! Ark.] OF THE STATE OF ARKANSAS. 439 i,r, 1860.] Bolton vs. Branch. :inton, mentioned in the answer and cross-bill of Branch, are A so alleged as to require Bolton, or to have authorized the urt below, to have taken notice of them; they were not provE, were denied by Bolton. They are not worthy of any con-ieration in the case. Even in Ludwicic vs. Huntzenger, the title the vendor must be made to appear to be doubtful, and ider the principle of the cases cited, that must be made to Tear by the vendee. Besides, it must be remembered that, Pennsylvania, such a case as that cited was like a case of ecific performance elsewhere, as is also an action in Texas r payment of the purchase money, though the trial in those ;ates must be upon different averments. And even in a suit
r specific performance, a purchaser, -thotigh entitled to a title at is not doubtful, cannot object to a title, because possibly it ay be had. Laurens vs.' Laurens, 6 Rich. Eq. R. 222. Each
rty in this case seems to have been in default, in different iges of the controversy. As Branch did not make the pay-mt as he should have done, according to his contract, and sisted through all the courts; the collection by Washington )lton of the first of the bonds that fell due. This conduct is held to be 'illegal by this court, and was vexatious. And ien the last note became due, Branch did not tender the mey and demand a title, but excuses himself by necessary sence from the State, alleging however that in March, 1856, met Boltdn in Memphis and was then ready to pay the mey and received the deed, but that Bolton demanded more :erest of him, than he was entitled to have, according to the e of the bonds. So Bolton, who ought to have been reedy all times to receive the' money and make his deed, pleads his sence from the State, .as a nob-resident, and as -not expecting It Branch would pay, from his previous default, when at the )ril *term, 1856, of the Desha Circuit Court, Branch tendered . . his counsel and agent the money that was due to him and de-aided a deed: Though the demand- of a deed by Branch was )ject to the same objection as his cross-bill; in ' asking more than lton was required to perform:-
440 CASES TN THE SUPREME COURT [22 A Bolton vs. Branch.. [Ocrof Bolton also is complained of for prosecuting different and cc current remedies, having upon the same day that this suit begun, commenced an action of ejectment for the lands. T1 he had a right to do, although it shows an exacting dispositi to prosecute different suits tending to the same result, and. bc independent of the personal responsibility of Branch. Yet in the attitude of the case as it finally was in the cot below, Bolton was not only ready to give title but brought court for Branch such deed as the latter was obliged to accei while Branch expresses anxiety to pay the money when he can tain such deed as he ought to have. The Circuit Court of Desha county sitting in chancery oug to have required Branch to pay the amount due upon the t bonds at the time of the hearing of the cause, including inter to the time, and costs incurred upon the judgment of Washingt Bolton, to accept Bolton's deed, and to have r?ndered such dec: as to costs, as appeared to it to be equitable. For not doing so, its decree is reversed; the case is remand with instructions that Branch pay the money and receive i deed as above directed; or that if he shall not do so, wit] the time specified by the court, that the contract of sale rescinded, that Branch give up the lands to Bolton, that Boll cause Branch to be released from the judgment of Washingl Bolton, on the bond first due, surrender to him the bond 1 due, and pay to him the amount he paid upon the lands, w interest from the time of payment, and that there be no accot of rents and improvements between the parties. 'Each party to pay half the costs of this case in the court below, and in t court. And this is to be the end ol the whole contioversy touch: the lands, the injunction being perpetuated as to the judgment Washington Bolton, the ejectment suit, and any suit upon bond last due. There are many other allegations in the record that might noticed, but nothing that we consider essential to determine rights of the parties. It certainly ought not to be expected t:
Ark.] OF THE STATE OF ARKANSAS. 441 RM, 1860j should notice, except for the purpose of reprehension, the irges of insolvency, oppression, deceit and fraud, with which parties have burdened the record, by their mutual crimina-ms and recriminations, all of which are denied, none of which attempted to be proved.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.