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28. When a vendee of real estate, who purchases at an administrator's sale, relinquishes part of the lands purchased under an act of Congress, and receives for the balance a certificate of final payment in his own name, which is about being followed by a grant, he cannot resist the recovery of the amount of a note given to the administrator for such lands, by alledging any irregularity in the proceedings of the administrator in effecting Lee & Casey v. White, 4 S. & P. 178.

the sale.

29. When a vendee of real estate, under a contract for sale, takes possession, and remains in possession for several years, and in the meantime the agent, from whom the purchase was made, procures a title to himself, and the said estate is sold by the sheriff as the property of the agent― chancery will presume that the vendee had paid the purchase money to the agent, and compel the agent to make a title, and decree a cancellation of the title from the sheriff. Toney v. Moore, 4 S. & P. 347.

30. The vendee of a slave cannot, while holding the possession thereof, defend against an action for the purchase money, by proof of want of title in the vendor. Ogburn v. Ogburn, 3 P. 127.

31. Chancery will not relieve vendee of real estate by enjoining the collection of notes given for the purchase money on the allegation, without proof, that the vendor has no title, and has absconded, when the vendee has taken a bond for titles, conditioned for their execution on the payment of the first instalment, which instalment had not been paid, nor efforts to do so excused; and when vendee had suffered payment to go against him on one of the notes without defending the same. Lewis & Gorman v. Bibb, 4 P. 84.

32. When a deed of trust is made for the benefit of a surety, and a sale is made to him under the deed, and he discharges his liabilities as surety to an amount equal to the price given at the sale for the trust property-this is an adequate consideration for the purchase.

Bank State v. Dade et al. 4 P. 352.

33. When vendee under parol contract for lands, takes possession of them, and makes valuable improvements, although chancery may refuse a decree for specific performance, it will nevertheless decree a pecuniary compensation, equivalent to the improvements. Goodwin v. Lyon, 4 P. 298.

34. And it seems the retention of possession by the vendee after action brought for the breach of the bond, would not amount to a part performance of the contract, so as to preclude an action at law for damages.

Haynes v. Forley, 4 P. 528.

35. When after a sale of real estate by parol, and the possession by vendee, the vendor dies, and the vendee executes a note for the purchase money to the administrator of vendor, and took his bond for title, to be executed when the note was paid, it was held that in an action on the note by administrator, the vendee could not resist the payment for failure of consideration if he had not been disturbed in his possession.

White v. Beard, 5 P. 94.

36. When a vendor of real estate seeks to enforce a lien for the purchase money against the estate in possession of the vendee's assignees, it is not necessary that all the mesne conveyancers, having no interest, should be brought before the court. Haley, et al. v. Bennett, 5 P. 452.

37. Nor in such case will the fact that a decree has been made against the vendee for any deficiency which may exist after a sale of the premises, such vendee being only before the court by a decree pro confesso, will not authorize a reversal here, the case being brought before this court by the vendee's assignee alone; aliter, if the case had been prosecuted by the vendee himself.

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38. All the essential ingredients of a mortgage in regard to a lien upon real estate for the purchase money, attach to, and control a contract for the sale of lands, when the vendor makes a bond conditioned for title when payment is complete. Ibid.

39. A vendor of real estate who parts with the possession, and executes a bond conditioned for titles when the purchase money is paid, has a lien upon the estate, which he may enforce in chancery against the estate itself, in the possession of the assignee of the vendee, Ibid. 40. Nor is he bound in such case to proceed first against the vendee for the recovery of the purchase money before he seeks satisfaction in chancery against the premises sold. Ibid.

41. And a vendor in such case may well maintain ejectment for the lands sold, though a recovery in such action might be prevented by the vendee's bill in chancery to redeem.

Ibid.

42. In an action by executor as vendor to recover for the non-compliance with a sale by vendee, it is not necessary to set forth in the declaration that the title of the vendor's testator was good; it is sufficient if it be averred that the vendor had power to sell, although it is true, that if the title to the lands be defective, it would be a sufficient excuse for not complying with the terms of the sale. Adams v. McMillian, ex'r. 7 P. 73.

43. When the condition of the sale is that resale may take place if the trusts are not complied with, the difference between the two sales will be regarded as stipulated damages, but when there is no such condition, and a a resale takes place, the difference would not be hinding on the jury as the measure of damages, but merely as information to guide their payment.

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44. In an action by vendor to recover the amount of a note given for slaves, the bill of sale which contains no words of delivery, the vendee cannot show by parol that by the contract of sale the vendor was to deliver one of the slaves, and that he failed to do so.

McCoy v. Moss & Newberry, 5 P. 88.

III. Of the Rights of Vendee, and of the Action by him; and in what cases he will be considersd as affected by Notice.

45. Vendor of a note which had been satisfied, liable to vendee though there be no special contract or fraud. Ellis v. Grooms, 1 S. 47. 46. Vendee of land after special request to remove a nuisance which had been erected before he purchased, may maintain an action for continuing it. Loftin v. McLemore, 1 S. 133.

47. When a firm purchased lands, and one of the partners was an infant, he cannot recover back his portion of the purchase money paid to the vendor, the contract being binding as to the other partners, and they having the right to control the partnership funds.

Sadler et al. v. Robinson's heirs, 2 S. 520. 48. When a vendor of a slave said to a vendee, "if you will prove the slave was unsound at the time of the sale I will return the purchase money:" Whether an action might be maintained on such a promise-quere.

Duff v. Ivey, 3 S. 140.

49. A purchaser under circumstances sufficient to put him on the enquiry, is considered as effected with notice of an incumbrance, and possession of land, is such a circumstance as should put a party on his enquiry.

Harris et al. v. Carter, adm'r. et al. 3 S. 233.

50. If a person purchases an estate pending a suit involving the question of title, he will be charged with notice.

Ibid. 51. The purchaser of real estate has the right to discharge liens, and remove disabilities upon such estates, in order to perfect his title, and have the amount thus paid deducted from the amount agreed to be given. Smith v. Pettus et al. 1 S. & P. 107.

52. When indemnity is the foundation of the action by vendee for fraud and deceit, an offer to return the property is not necessary; aliter when the action is to rescind the contract or to recover back the purchase money paid; and in cases for fraud and deceit, the plaintiff will not be confined to the statement in the bill of sale, but may give in evidence other false representations of the vendor made at the time of sale.

Cozzins v. Whitaker, 3 S. & P. 322. 53. When the vendor of land chooses after death of vendee to rescind the contract, an action may be maintained by the representatives of vendee to recover back money paid in his lifetime in part consideration of the purCastleberry v. Adm'r. Pierce, 5 S. & P. 150,

chase.

54. It seems that notice, either actual or constructive, is not necessary to be traced to the purchase of real estate at a marshall's or sheriff's sale, in order to protect a stranger under a bona fide outstanding, anterior title, derived from the debtor. Toulmin v. Austin, 5 S. & P. 410. 55. Actual notice of a bona fide anterior title outstanding, derived from a debtor, is good, if exhibited to a purchaser of real estate at the time of the sale thereof. Ibid. 56. When vendor obtains title to premises after sale, such title vests eo instanti in his vendee, and will enure to his benefit.

McGee v. Andrew & Eastis, 5 S. & P. 426.

Kennedy & Moreland v. Heirs of McCartney, 4 P. 142. J 57. Vendee who takes a bond for title, is bound to prepare and tender the conveyances to the vendor; and if he fail to do so at the time stated in the bond, the vendor is not thereby discharged from his contract, for the vendee may apply for his title after the day named.

Wade v. Killough, et al. 5 S. & P. 450. 58. In an action by vendee, it is a good plea by vendor that he was ready to convey at the time specified in his bond, but that the vendee had not tendered the conveyances; and in such case the plea of vendor need not aver that he had offered the abstract of title, it being the duty of vendee to demand them if necessary, and in a proper case the failure of vendor to furnish the abstract would be considered an infraction of the bond. Ibid. 59. The declarations and acts of a vendor as to the ownership of property which he has conveyed to another, cannot be given in evidence to defeat the right of his vendee, but he is a competent witness to prove the fairness of a sale he has made. McKenzie, adm'r. v. Hunt & Condry 1 P. 37.

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60. When vendee takes a bond for title, he may after breach of the condition, elect to proceed at law for damages or apply to equity for specific performance. But where one elects to proceed at law, equity will not interpose to compel the vendee to accept the conveyance, the vendor shewing no excuse by proof for the failure to comply with the contract anterior to the breach of it. Hayne v. Farley, 4 P. 528.

61. The recovery in ejectment of the possession of premises by vendor, would not have the effect of disannulling the contract of sale. The vendor in such case could only maintain the possession until the rents and profits had discharged the incumbrance, when chancery would compel a conveyance to the vendee or his assignee.

Haley et al. v. Bennett, 5 P. 452.

62. A purchaser under an execution is not effected with notice of an assignment of judgment when he is no party to such transaction. Boren, et al. v. McGehee, 6 P. 432.

IV. Presumption of fraudulent Sale, arising from continued possession of the Vendor.

63. Possession of personal property remaining with vendor is presumptive evidence of ownership, but this presumption may be rebutted; such possession is only presumptive evidence of fraud, but not fraud per se.

Hobbs v. Bibb, 2 S. 54.
Martin v. White, 2 S. 162.

Brandon v. Snow & Cunningham, 2 S. 255.

64. When possession of personal property remains in the vendor, it is not sufficient against creditors that the consideration be bona fide, and the bill of sale recorded; it must appear that the sale was not made to hinder or delay creditors, and this is to be determined by a jury from all the circumstances. Ayres v. Moore, 2 S. 336. 65. The possession of land continuing in the vendor after the sale, does not create the same presumption of fraud as in the case of chattels. Paulling v. Sturgus, 3 S. 95.

66. When a sale of personal property contained a condition of defeazance, and was founded on a valuable consideration and bona fide, it is not fraudulent per se, under the statute against creditors without notice, though the grantor retains possession for more than twelve months after its sale. Killough v. Steele, 1 S. & P. 262. 67. That property remains with vendor for a period not unreasonable, after the sale, does not per se, avoid the sale, the possession appearing bona fide. Bank of the State v. Dade, et al. 4 P. 252. :

V. Of Relief in Chancery in Cases of Sales, both as to Vendor and Vendee and of equitable Title.

68. Vendee entitled to recission of contract, where vendor made fraudulent representations at the time of sale.

Harris et al. v. Carter, adm. 3 S. 253. 69. But where the purchaser has notice of the title, and the vendor completes his title before the vendee has a right to the conveyance, he cannot object that the vendor had no title at the time of the sale. Ibid.

70. Vendee will be protected from the payment of the puschase money, where the vendor cannot effect a title on account of his insolvency, until such disability is removed. Smith v. Peters, 1 S. & P. 107.

71. And it would seem that equity in such case, would relieve a party even when the note had passed into the hands of an assignee. Ibid.

72. Chancery would compel an executor to pay the balance of purchase money due on real estate, devised in order to perfect the title of devisee, a child of testator, when this would only equal the share of the other children, under the will. Green et ux. v. Moore, ex'r. 1 S. & P. 212.

73. When an agent had contracted for the sale of real estate, and put the vendee into possession, who remained in possession for several years;

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and, afterwards, the agent procured a title to himself, and the property was sold by the sheriff as the estate of the agent-chancery would presume the payment to the agent, of the purchase-money, and compel him to execute a title, and would order the title of the sheriff to be cancelled.

Toucey v. Moore, 4 S. & P. 347.

74. When a vendee has sold to a second vendee, but no conveyance has been made to him nor purchase money paid, chancery will arrest the second sale and enforce the lien of the original vendor; but, when the title deeds and the possession have been delivered to the second bona fide purchaser, without notice, and he makes advances on said purchase, Chancery will decree a sale of lands; and the proceeds, after first discharging the amount advanced by the second vendee, will be applied to the payment of the amount due the original vendor.

Dupphey v. Frenaye, 5 S. & P. 216, 75. Where vendee of real estate, takes a bond conditioned for title at a future day, he may, after breach of the condition, elect to proceed at law for damages, or apply to equity for specific relief.

Haynes v. Farley, ex'r. Bell, 4 P. 528.

76. But when one elects to proceed at law, equity will not interpose, and compel the vendee to accept the conveyance—the vendor showing no excuse by proof, for the failure to comply with his contract anterior to the breach of it: and, it seems, that the retention of possession by the vendee after action brought for the breach of the bond, would not amount to a part performance of the contract, so as to preclude an action at law for damages. Ibid. 77. When there has been a part payment of the purchase money accompanied with possession by the veudee, chancery would enforce a specific performance of the parol contract. Meredith v. Naish, 3 S. 207. 78. An equitable title will prevail against creditors and purchasers of one, who had only a naked legal title. Ibid. 79. It is an appropriate office for chancery to enforce specific agreements, for conveyance of realty. Morgan et al. v. Morgan et al. 3 S. 383. 80. When A claims of B specific performance of a sale of lands-the judgment creditors of B, may be made parties defendant. And it is no objection, in cases of great litigation, that complainant's right which is sought to be quieted, has not been established at law; much less can such an objection avail, when the right is one peculiarly proper for chancery jurisdiction.

Ibid.

81. Chancery will not lend its aid to enforce the specific performance of parol contracts for sale of lands, where the terms of the agreement are uncertain and contradictory, or where the agreement proved, does not correspond with the allegations of the bill. Goodwyn v. Lyon, 4 P. 297.

82. Time may become an essential ingredient in a contract-and where it appears, complainant has failed to execute his part of the contract at the day, without excuse on his part, or the assent of the other party to the delay; in such case chancery would not relieve. Hays et al. v. Hall, 4 P. 374.

83. Where vendee takes possession, under a parol contract, and makes valuable improvements-though the specific execution may not be enforced, either because agreement is imperfect, or its precise terms cannot appearchancery will yet decree a pecuniary compensation, equivalent to the improvements made by vendee. Ibid.

84. Where, on a contract for the sale of lands, either party has performed a valuable part of the agreement, and is in no default as to the residue; he is entitled in equity, to a specific execution. Ibid.

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