Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-04-12
DECISIONS OF THE SUPREME COURT.
OFFICIAL.

DECISIONS OF THE SUPREME COURT.
OFFICIAL.
State Of tennessee, at Knoxville, Sep-
TENDER Terms 1852
J. W. Price vs. J. D. Thonas and J. D. Thomas J. W. Price
Price, citizen of Virginia, on the 10th June,
1853 sold to the defendant his sOn-n-law the one
half of his Elk Garden tract of land, and eXecu-
ted the following article:
Know all men by these presents that l, John W.
Price, of Washington county, Va, hereby o6hgate
mvselfto make unto James d. Thomas. OF Claiborne
county, Tenn, legal general warranty title to one
half nv Elk Garden tract of land in Russell county,
Va" After the description by metes and bounds,
the article continues thus: furthermore. T. 81. W.
Price, propose to gjUe my daughter julia d. sad
Thomas lofe the other half Of said land lohich
fail to do thereby bind myself ana my heirs TO refund
the HlOueg 20 said Thomas ohch he may pay for SAID
land tOgeter lch its interest This obligation IS IN
consideration of $4,000 to be paid me by said
Thomas. / furthermore bind myself to remove the
present incumbent NJ. Askew, and give Thomas pos
session. aud until this be done, to allow said Thomas
the enjoyment of the rent of half the said Elk Car
den lands together with interest on all the money
which he may pay toward said land"
This is signed under seal by Price.
October 9th Of the same year-lS53-J. W.
Price Jointly with his wife Nary Price, made gen
eral warranty deed to Thomas Of an undivided
mOiety of said land.
June p. 1854. Askew still remaining il posses
sion and three wears of his lease from Price unex
PRED article Of agreement was entered ln5O be-
tween him and Thomas prescribing the manner IN
which the land should be used and cultivated, pro
tecting the timber. &c, and concluding with this
clause Though the said Askew had agreed with
J. w. Price give up the farm when 1t was decided
10 the said Thomas, yet the said Thomas on his part
to secure to Askew the benefit Of the farm for the
aforementioned three years, with the restrictions
befOre-named.' In a previous part OF the article,
Askew bound himself to fulfil the conditions OF
the articles between himself and Price tor the re-
manning three years
After this August p, 1855, it would seem that
there was a settlement between Price and Thomas,
BY which it appeared that there was still due of the
consideration for the land balance Of Sl,OS4 80,
for which a new note was executed by Thomas, III
which there Is this clause " This bond Is to bear
interest from the time that full possession Of said
land is given me- On the same paper, and proceed
ing the note it written and signed by Price, that
d" Price is to pay interest on Sl,9l5 10 until the
next payment is made, and so on, from the date Of
the following note on Thomas And on the back
of the note is credit of S47 49, February -, 1886.
Upon this note an action instituted in the
Circuit Court of Claiborne County, pending which,
eehis attachment bill was nled against Thomas ana
g9ibson charging that Thomas had sold his interest
Gin the land Gibson and had his notes. and was not
able to pay him without that fund, and he prayed
and obtained attachment Of the notes upon
Gibson.
Thomas then filed crOSs-attachmont bill upon
the ground that Price was his debtor $4,000, the
amount of the consideration of the land, upon his
failure to perform the covenant to refund him the
said amount in case he failed to convey to Mrs.
Thomas the other half of the Elk Garden tract and
that he had not only failed to perform his covenant
in this respect but had placed II out of his power to
do so by conveying it to another.
The first and main question debated upon this
state of facts, arises upon the Sb TO the OBJ
legation upon Price to pay the $4,000 as Gquidated
damages or the penalty for failure to convey the
other mOety of the Elk Garden land to the wife of
Thomas. The position of the bill, or that assumed
in argument is that Price has become the debtor Of
Thomas to the amount Of SJOOO, OF which, the note
sued upon is part and as he Is nonresident it is
proper case for attachment of the note sued upon.
1t is not bill for specific performance Of the cove
nant in favor Of his wife. If that were the object
the immense volume Of evidence in relation to the sep
aration of Thomas and his wife. and the causes of
it, would have some application to -he case and be
proper for consideration, because it might operate
upon the discretion Of the Court to which bills for
specific performance addressed. But the
CrOss-bill Is based upon the assumption that the
aton of debtor and creditor between Thomas and
Price has resulted from the failure the part Of
the latter to perform his contract in that respect,
that proof is all entirely irrelevant In point of
view can the cross-bill be maintained for the
cry of tie $4,000. We do not understand from the
whole instrument that this stipulation in favor of
Mrs. Thomas, who was the daughter OF Price, was
any part of the consideration for the So 900 agreed
to be paid upon the contingency stated but that the
mOiety of the land was the sole consideration. We
think that construction of the contract unauthorized
by the instrument 1t is plausible, but not sound.
The bill gives the transaction that complexion, but
it is denied in the and we left to settle
1t as a question of construction. The land a
full Consideration for the amount to be paid. \
few months after the contract it will be seen that y
deed in fee, with warranty, was made to Thomas.
What consideration then, was there for the obga-
ton to refund to Thomas the $4,000, which he now
- D., sfH -r Wfnav uvrTNTn 1aF
it is his purpose to give the other half Ofthe land
to his daughter and in case he fails to execute that
purpose he will pay the husband the amount specl-
fed. This must be understood as a naked, yolun-
tary undertaking. and Will not be be enforced IN IA
vOr of Thomas
Rut if it be regarded as binding the time has not
arrived for its enforcement There is time sDeCi
fed for the gift his daughter to be perfected and
consequently he would have his whole life time in
which TO carry it out 1t may be done in his will,
and so the deed received by Thomas for the moiety
bought by him. provides. This must be takena As the
understanding of the parties rs to the time. In no
view therefore can Thomas be regarded as credI-
tor or Price debtor, in that respect The cross
b.ll was properly dismissed as to that aspect
But it was properly entertained for an account
between the parties to ascertain how much. If any
thing. remained due upon the note sued upon.
There is no error in the decree settling the basis
of the account. Price is made 90 account for one
half of the rents received by him. and also the in
sideration. Ii would seem inequitable that Thomas
should get the rents in place Of the use OF the place.
and at the same time interest on what he had paid
for it; and SO it would be regarded, II It were not
for his positive Contract. 1t competent for him
to make his contract in that way and he mast abide
by it. He expressly bound himself in the original /
contract to give the possession to Thomas, and until
that was done to allow him the q" enjoyment of the /
rent of half the place, together with interest on all
the money which he may pay toward said land
A Df L ST
August o. 1855, it appeared that Thomas
had paid 81 9l5 10, and still owed Sl,OS4 30, for
which a note of that date was given. Price then
agreed in writing that he was to pay interest on the
amount which had been paid, and was to have no
interest on the note until full possession given
of the land. 1t is too clear for controversy that
ASkew the tenant of Price, at the time and long be-
fore the sale continued in possession and settled
with Price for the rents, and that Thomas has never
yet been put into the possession OF the land. This
is all proved by Askew, the tenant. Il IS true he
acknowledged the title of Thomas, and entered into
some contract with him in relation TO the land as
before stated, but he never paid him any rent but
always paid the whole TO Price. or gave notes for IL
II was right, then. to make Price account upon his
Lact for one halt of the rent, and also for the in
lIeSI on the amount Of the consideration which had
ssA and to him, that Is upon the sum Of Sl9l5 10
- Tn august %. 49, and also upon the S47 9S from
SOIuary 10. lSj6. This sum, together with the
One nan the rents received by Price with the in
- ron the end Of each year UPON the rents.) 4
ana the credit of S47 9S will be deducted from the
amount OF the in suit without interest and that
VIII snow the true state Of accounts between the
parties.
The decree will be affirmed with the slight modi-
ucalloIs Lulcated above. CARTTHERs.
\ true copy Test: C. W. NELSON Clerk
Clark for Buffers use vs.. CusOn,
This suit vas commenced before aJustice of Non
roe county and was taken by appeal to the Circuit