Patton v. Taylor
48 U.S. 132 (1849)

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U.S. Supreme Court

Patton v. Taylor, 48 U.S. 7 How. 132 132 (1849)

Patton v. Taylor

48 U.S. (7 How.) 132

APPEAL FROM THE CIRCUIT COURT OF THE

UNITED STATES FOR THE DISTRICT OF KENTUCKY

Syllabus

A bill in chancery filed by the purchaser of land against his vendor to restrain the collection of the purchase money upon the two grounds of want of title in the vendor and his subsequent insolvency, without charging fraud or misrepresentation, cannot be sustained.

Relief will not be given on the ground of fraud unless it be made a distinct allegation in the bill, so that it may be put in issue in the pleadings.

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 he held certain notes only for the purpose of paying the money over to his clients when recovered.

Page 48 U. S. 133

Patton was a citizen of Virginia, and Taylor of Kentucky.

On 30 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 1,000 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 warranty 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 13 July, 1818, Patton replied by a letter from which the following is an extract:

"Fredericksburg, 13 July, 1818"

"GEN. JAMES TAYLOR:"

"Dear Sir -- I am favored with yours of 22 June, and not less surprised than you seem to be about the 2,000 acres of land in name of Thomas Gaskins offered you, 17 March last year, at 15s. per acre, and in yours of 5

Page 48 U. S. 134

July you advise me to take $4,000, as the lands in that quarter were generally of an inferior quality and could not rise in value. In that month I wrote to you that I would not take less than 15s. 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 30 January, six months after the last offer was made, for the letter of 18 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 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' representatives will not buy, and you are at liberty to take any lot you think best, but I will not take 15s. for any part of it."

On 3 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 30 January, 1819, as witness my hand and seal, this 5 August, 1818."

"JAMES TAYLOR"

"Witness: PHILIP H. JONES"

On which there were the following receipts, to-wit:

"Receipt for $600"

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

"HUGH M. PATTON"

Page 48 U. S. 135

"By direction of Hugh M. Patton, agent of Robert 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."

"T. F. TALBOTT"

"$373 82/100 Attorney for Robert Patton"

"I, James Taylor, of the County of Campbell and State of Kentucky, do oblige myself, my heirs and administrators to pay Robert Patton, his heirs or assigns, of the Town of Fredericksburg and State of Virginia, the sum of $2,500, in current money, on 30 January, 1820, as witness my hand and seal, this 1 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."

"ROBERT PATTON"

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

"July 1, 1819"

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

"Newport, October 23, 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

Page 48 U. S. 136

had a line 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 endorser; 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 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 nonpayment, 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 29 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. I examined

Page 48 U. S. 137

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, but you must be sensible into what difficulties I was thrown by not receiving the wished-for information, which was promised me by your son and agent, Hugh M. Patton, Esq., and then requested of you in my letter aforesaid, addressed to you specially on the subject, and particularly when I was compelled to take up your said son's bill for 300 and odd dollars, which I had, at the request of your said son, guaranteed should be paid by you, which you failed to do, and which I had to pay to exonerate Theo. F. Talbott, in the F. & M. Bank of Lexington. The true state of this business I did not understand till after I had paid the bill, and I do not think said Talbott treated either yourself or myself with fairness, as he afterwards informed me he was authorized to redraw, but which he told me he had no idea of doing, to make himself responsible. Under all these embarrassments, I informed you I could not think of selling the land until I was assured the legal title was in you before you sold to me. Will you be good enough to give my agent, Philip H. Jones, the necessary information, and, if you have them, the proper conveyance from Thos. Southcombe to you for the said tract of land, and if not, to send me the document, or an authenticated copy of it, under which you claim the said tract of land. I am, very respectfully, Sir, your obedient servant,"

"JAMES TAYLOR"

On 20 June, 1820, Patton addressed the following letter to Taylor, which closed the correspondence:

"Fredericksburg, 20 June, 1820"

"GEN. JAMES TAYLOR:"

"Dear Sir -- Hearing of your being in Washington in the spring, and calculating on a certainty of seeing you in this place, I was greatly disappointed at not having had some conversation with you during your stay, or previous to your departure from the city. By a letter just received from Mr. Talbott, covering a duplicate of one of yours to him of the 1st instant, wherein you say you will resist the payment of the bonds assigned Talbott by my son, when in Kentucky. This information has surprised and astonished me much. And surely, my dear Sir, you will not persist in this course, but, on mature consideration, pay the amount. When I sold you these 2,000 acres of land, Southcombe had long been dead; hence, as his agent, which you know I was, I could not make

Page 48 U. S. 138

a deed as such, but I did what you required. I made you a deed in my own name, with a general warranty, and no objection was made to this conveyance until the money was required. I sent you the original patents by Murdock Cooper, of your state, and I now subjoin a short history of this land. Your 2,000 acres, together with 1,500 more, were granted Col. Gaskins for military services, by him sold to William Forbes, by Forbes sold to Robert Campbell of Richmond (once Hicks & Campbell) and by Robert Campbell and Ann, his wife, conveyed to Thomas Southcombe; which last deed is in my possession. All Southcombe's matters have been settled long ago, when this land was rated at $2, and paid for by me. And there is not a human being has a shadow of claim to this land but myself; and I have secured it to you by my conveyance. We have long been acquainted; we have long been friends. You have acted as my agent much to my satisfaction; and I ever reposed the fullest confidence in your honor and integrity. Under these circumstances, it would give me great pain if any misunderstanding should arise between us, and I cannot help thinking that, on due consideration, you will change your course, and pay the bonds assigned Talbott, which was done under very peculiar circumstances, and may have placed that gentleman in a very disagreeable situation respecting them. I am, dear Sir, your most obedient servant,"

"ROBERT PATTON"

On 7 July, 1820, Patton brought a suit against Taylor upon the bonds, in the Circuit Court of the United States for Kentucky, and at November term, 1820, obtained judgment by default.

At the same term, viz., November, 1820, Taylor filed his bill on the equity side of the court, reciting the purchase and continuing thus:

"And at the time of the purchase aforesaid, and the execution of the said promissory notes, your orator entertained no doubt that the said Patton had a good title to the said land, and was enabled to convey the same to your orator; but now, so it is, may it please your honors, your orator has since discovered that the said Patton has no title for the said land from the said Southcombe, who is dead, and whose heirs are unknown to your orator. That the said Patton has nevertheless commenced actions on the said notes, on the common law side of this Court. And your orator, being unable to make defense at law, the said Patton has recovered judgments on the said notes. Your orator annexes hereto, as a part of this bill, a letter from the said Patton, acknowledging his defective title to

Page 48 U. S. 139

the said land. That your orator has already made sundry payments on account of said notes. And he apprehends that the said Patton will proceed to enforce payment of the residue unless prevented by the interposition of this Honorable Court, which would be contrary to equity. In tender consideration whereof,"

&c.

The bill then prayed for an injunction, which was granted.

In December, 1822, Patton filed his answer, admitting he had no legal title to the land but insisting that he had bought it from Southcombe and paid him for it on a final settlement of their affairs; that he had a power of attorney from Southcombe to sell it, which he did not act upon, owing to Southcombe's death; that he took possession of the land more than twenty years past, paid the taxes regularly till he sold to Taylor, who entered and has held the possession ever since, and has sold part of the land; that Taylor was for years his agent to pay taxes on his lands in Kentucky, knew his titles generally, and particularly the defect of the title to this land, and bought relying upon his warranty; and that the possession under him prevented any reasonable apprehension from adverse claims. The answer further alleged, that, having received a payment of part of the first note on 1 July, 1819, the defendant thereupon, with the consent and in the presence of Taylor, assigned the notes to T. F. Talbott to be applied in payment of a debt held by Witherspoon, and relies that the assignment prevents a cancelment of the notes.

At the May term, 1823, Taylor filed an amended bill charging that the purchase was by letter, that Patton had become insolvent, having been at the time of sale a man of wealth, and exhibiting copies of three letters addressed by him to Patton of 30 January, 1818, 23 October, 1819, and 29 February, 1820, and calling upon Patton to produce the originals or to admit the copies to be correct, and to show what evidence he had of a conveyance from Southcombe.

Robert Patton having died, Taylor, in November, 1829, filed a bill of revivor against Hugh M. Patton and others, his children and heirs at law, alleging that their ancestor died insolvent and intestate, and that no administration had been granted upon his estate.

The heirs of Robert Patton answered in July, 1844, and stated that they knew nothing of the contract between Taylor and their father and that they adopted the answer of the latter. Hugh M. Patton stated that as the agent of his father he went to Kentucky to pay off a decree, which had been obtained by Bledsoe's heirs and assigned to Talbott, an attorney at law, in satisfaction of a debt to Witherspoon and Muirhead;

Page 48 U. S. 140

that he received from Taylor $600 on the first note, and then drew upon him, in favor of Talbott, a draft, which he would not accept, and that he afterwards assigned the notes to Talbott, without having heard of any objection by Taylor to the title of the land. And in conclusion the heirs all say that they cannot exhibit the originals of the letters shown by Taylor, nor have they any testimony, written or other, to show in what manner their father derived his title from Southcombe, other than he states in his answer.

In November, 1844, Hugh M. Patton appeared in the suit as administrator of his father and adopted the answer already filed as his response in that character.

In May, 1845, the cause came on for hearing, a general replication having been filed.

On the opening of the cause, the complainant moved the court to reject and suppress the deposition of Theodore F. Talbott, taken and filed on the part of the defendants, and when it was offered on their part for proof, objected to its being read on the ground that the witness was, when he deposed, interested in the event of the suit against him, the complainant, and with the defendants; and, for proof of his ground of objection, relied on the matter stated by the witness himself in his deposition, and read the bond of the witness, as the surety of the defendants' intestate and ancestor, for costs, in his action at law against the complainant, wherein the judgment herein enjoined was recovered by default, and also read the assignment to the witness of one of the promissory notes of the complainant, the one payable on 30 January, 1820, on which the judgment enjoined was rendered in these words:

"For value received, I assign the within note to Theodore F. Talbott."

"ROBERT PATTON"

"By HUGH M. PATTON, his attorney in fact"

"July 1, 1819"

But the decision of the matter not having been insisted on, it was reserved for discussion with the merits of the cause. Whereupon the complainant read the depositions of Matthew T. Scott, Patterson Bayne, and James E. Davis for proof that the witness was not credible in case of the decision of the court that he is competent to testify. Whereupon the cause progressed, and this matter having been therein fully discussed, and the Court now sufficiently advised thereof, it seems to the Court that the deposition of Talbott, on the grounds of objections by the complainant, and because the matters stated as facts by the witness, neither of themselves, nor in connection

Page 48 U. S. 141

with the other proofs, are in any way material in the cause, ought to be rejected and disregarded. But in order that, on any revision of the decree which shall be rendered, the defendants may have the benefit of the matters stated in the deposition, if worth to them anything, and the witness is competent, whilst the complainant has the benefit of his objections to the competency of the witness, or of his proofs to establish that he is not credible, the depositions are all allowed and read, subject to the above objections, and so retained in the record, to be respectively good for what they are worth, or held for naught, according to the law of the case.

On 13 May, 1845, the circuit court decreed a perpetual injunction against Patton, rescinded the sale and conveyance of the land, and gave directions for placing the parties in the condition they were in at the time of the contract.

From this decree the heirs of Patton appealed to this Court.

Page 48 U. S. 157

MR. JUSTICE NELSON delivered the opinion of the Court.

Taylor, the complainant below, filed a bill against Robert Patton, the intestate and ancestor of the defendants, praying relief against two judgments recovered against him at law, upon securities given for the purchase money of two thousand acres of land situate in the State of Kentucky and sold and conveyed by the latter to the former. The bill was filed at the November term in the year 1820, and the suit has been pending ever since. The sale and conveyance of the land took place September 3, 1818, the consideration being $5,000, payable one-half on 30 January, 1819, and the other in one year thereafter. The deed contained covenants for further assurance and of warranty, and the grantee entered into possession of the premises, and has held it ever since.

The only allegations in the bill upon which the complainant relied for staying the collection of the judgments and setting aside the sale and conveyance are that the said Patton had no title to the land at the time of the purchase nor since, and that he had become insolvent, and possessed no personal responsibility.

The defendant admits in his answer that he had no legal title, and that it was at the time in the heirs of one Thomas Southcombe, but insists that he had purchased the land of Southcombe, had paid for it, and had been in the peaceable possession of the same and paid the taxes thereon for more than twenty years, and until the time of the sale, and that the complainant well knew the nature and condition of the title at the time of the purchase and the taking of the deed.

The answer also sets up an assignment of the securities taken for the purchase money from the defendant to Witherspoon and Muirhead in payment of a decree in chancery which they held against him; that it was made in the presence and with the knowledge and consent of the complainant, and that

Page 48 U. S. 158

the suits were brought and the judgments in question recovered by them and for their benefit.

On the death of Robert Patton, the complainant revived the suit against his heirs and personal representatives on 13 November, 1829. The answer to this bill, which relies mainly upon the facts set forth in the previous answer of Patton, was put in and filed in July, 1844.

The cause was heard on the pleadings and proofs on 13 May, 1845, and thereupon it was adjudged and decreed by the court that the contract entered into between the complainant and Robert Patton for the purchase and sale of the land for the sum of $5,000, as set forth in the bill and admitted in the answer, be rescinded and annulled, that the judgments recovered at law for the purchase money be perpetually enjoined, and that the deed of 3 September, 1818, be cancelled and held for naught.

The decree then provides for the repayment by the heirs of Patton of such portions of the purchase money as had been paid by Taylor, after deducting the rents and profits which he may have received from the premises, over and above expenditures for necessary repairs and improvements, and on such repayment the possession is ordered to be delivered up to the heirs, and a reconveyance to be made by the complainant to them, with a covenant against his own acts affecting the title, and also providing that the heirs shall hold the lands in trust for the benefit of Witherspoon and Muirhead, the assignees and owners of the judgments at law.

The cause is then referred to the master to take and state an account of the rents and profits, improvements &c., upon the principles settled, and to report to the court.

There is some evidence in the case tending to prove that the defendant, Robert Patton, represented to the complainant during the negotiation between them for the sale and purchase of the lands in question that he held at the time the legal title, and that the complainant had reason to believe that he would be invested with it by the conveyance of 3 September, 1818.

The circumstances, however, that Taylor was at the time and for several years before had been the general agent of Patton in Kentucky to take charge of his lands in that state, including the premises in question, to pay the taxes and negotiate sales to purchasers, lead to the conclusion, that he must himself have had some knowledge of the title, and that he was willing to risk it on receiving a warranty deed from Patton, who was supposed to be a man of wealth. Where the truth of this matter lies it is not material to inquire, for no such

Page 48 U. S. 159

question is made on the pleadings or was involved at the hearing. It is not surprising, therefore, that the proofs in respect to it to be found on the record are vague and unsatisfactory, as probably the attention of neither party was particularly drawn to it. Indeed it could not consistently have been, as the charge of fraud or misrepresentation is not to be found in the bill as originally drawn, nor in the amended bill filed some two years and a half afterwards. Nor is it made in the bill of revivor, which was filed as late as November, 1829.

The relief prayed for is put, both in the original and amended bills, entirely upon the defect of legal title in Patton at the time of the conveyance, and in connection with this, his subsequent insolvency, and unless this ground alone is sufficient to sustain it, the decree of the court below cannot be upheld. And that it is not we need only refer to the authorities on the subject. Bumpus v. Platner, 1 Johns.Ch. 213-218; Abbot v. Allen, 2 id. 519; Gouverneur v. Elmendorf, 5 id. 79; Simpson v. Hawkins, 1 Dana 305, 308, 312; James v. McKernon, 6 Johns. 543.

These cases will show that a purchaser in the undisturbed possession of the land will not be relieved against the payment of the purchase money on the mere ground of defect of title, there being no fraud or misrepresentation, and that in such a case he must seek his remedy at law on the covenants in his deed. That if there is no fraud and no covenants to secure the title, he is without remedy, as the vendor, selling in good faith, is not responsible for the goodness of his title beyond the extent of his covenants in the deed. And further that relief will not be afforded even on the ground of fraud unless it be made a distinct allegation in the bill, so that it may be put in issue by the pleadings.

It follows that the court below erred and that the decree should be reversed and the bill dismissed.

There is another point in the case in respect to which we think the court also erred, and which we will for a moment notice -- namely the rejection of the deposition of Talbott offered in evidence by the defendants below. The deposition tended to prove that the notes given for the purchase money had been assigned and transferred by Patton to Witherspoon and Muirhead, his creditors, with the knowledge and assent of Taylor, in consideration of which the creditors agreed to postpone the payment of the demand against Patton. Talbott was rejected on the ground of interest, as it appeared upon the face of his own deposition -- 1. as surety for Patton in the suit at law, and 2. as assignee of the notes for the benefit of Witherspoon and Muirhead.

In answer to the first ground, it is sufficient to say that

Page 48 U. S. 160

judgments had been recovered by default in the suits at law in favor of Patton. And to the second that, according to the deposition, Talbott had no interest whatever in the result of the suit. He held the notes as a naked trustee, the proceeds of which, when collected, were to be applied to the payment of the debt of Witherspoon and Muirhead, his clients. He had no charge upon the fund, by any agreement or understanding with Patton or his clients for costs or commissions, as attorney or otherwise, that would make him an interested witness. There was no foundation, therefore, for the exclusion of his evidence. But it is unnecessary to pursue this inquiry, as the ground already stated sufficiently disposes of the case.

Decree below reversed and bill dismissed with costs.

Order

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 Kentucky and was argued by counsel, on consideration whereof it is now here ordered 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 dismiss the bill of complainant with costs.

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