Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-04-10

Opfnloma q the Supreme COurt Of the
state % Tennessees AT Knoxville Sep-
tember Terms 1882

ogsRssss e ne supreme o9gEs Of enc
TENDER Terms 1885,
Townsend Ct ais rs. Cooke ct a's.
One question here is as to the payment Of ST.
03950-naade the 9th of December, 1858 to the
Bank of Tennessee at Athens-and whether BY the
defendant William S. Townsend or by the defend
ant Cooke If by the latter It is claimed as credit
upon the debt due by him to the complainants if
by the former, IS conceded 10 credit to be given
on that account.
The Chancellor was of opinion that this pay
ment had been made by William S. Townsend,
and so decreed, and in tlis opinion we concur.
The facts, as connected with this payment. are
these:-On the oath Of November 1856 the said
Townsend, as trustee to the compliments are
his wife and chidren-sold to said Cooke tract Of
land in Hamilton county at the price Of $500
$4,000 Of which he paid in cash. and out Of the res
idue he was TO retain sum sufficient to pay, on
the LIST day OF October next thereafter the amount
he then owed sail Bank, and which, as stated in
the agreement between the parties it was believed,
would be $3.50, leaving Of the original price,
balance Of $685. for which he executed his note,
with security, to William S. Townsend as trustee
to companants, due the 10Th Of October next there
after.
The bill is filed to enforce the payment, from the
defendant Cooke, of this last mentioned note. and
It Is upon this note that he insists lie should have
the credit
The said Cooke had purchased this land Of the
Bank on the 4th Of December, 1851, at the price Of
/ S7,50O-aLd of this had paid $3.50 In cash
/ and had executed his note for the balance, which
was $3.50, and which he was to pay, with in
terest, in installments paying one-tentli thereof
annually.
On the Sd of January, 1852, he sold this land to
/ one Ferry h. Burch, at a profit Of $1,000. who,
with William S. Townsend, undertook to pay the
| debt to the Bank and relieve Cooke therefrom.
On the 9Th Of june 1858, the said Burch sold
/ this land, thus encountered, to William 5. Town
send as trustee for the compliments; and as before
stated, they through their trustee, re-sod the same
1 on the 24th Of November, 1855, to said Cooke the
land, in the meantime having been very greatly i'm
/ proved by compliments.
! At the time of Burch's purchase he paid Cooke
/ $500. and he and Townsend executed to him their
note for $3.50 which covered the cash instaiment
paid to the bank by Cooke and the profit coming to
him in the resale Of the land. And though they failed
/ to pay the bank the instalmeEt due in December.
1882, and Cooke had it to pay-yet they refunded 1t
to him and paid the Sl250 the 18th Of June, 1888
The instalments Of 1851 and 1852, and said sum Of
/ S9039 50-the instament of 1853 constituted the
/ only payment. which had been made to the bank
| the oath Of of November 1858. when complainant
resod the land to Cooke. The debt the bank for
! which the sum Of S635O was retained by Cooke,
was the balance due it upon the sale Of this land
and really amounted on the LIST Of October 1886 to
| S63l3 80. being less than the sum retained.
1t is insisted Oy Cooke that in the settlement with
compainants-tOr the price Of the land-on the oath
Of November, he made mistake TO the extent Of
SIU05 Ou, III lot retaining LnaG sum more Ildu ne
did and In not executing the trustee of complain
| ants his note for less sum by that amount. In a
transaction easy and simple as this and Of such
recent date it is difficult to believe such mistake
/ could have been made
Certainly, the settlement and execution of the
note must be held prima facie evidence Of their
correctness and incapable Of being overturned save
by clear and satisfactory proof Of the mistake.
This we think Is not made. We lay out Of view
the tettImOny Of William S. Townsend as incOmpe-
tent He Is a fop oou1ulqinauf and If al
| lowed to testify IS against the defendant Cooke.
! The only other testimony upon which we can rely
with any confidence, is that of Campbell the Cash
/ Ter CT the Bank. He thinks Cooke made one or two
payments, besides the paid down at the sale and
his best recollection is that no one else made any
payments, and that they were made to him-but
admits that IN his testimony, we may be mistaken,
as he was occasionally absent from the bank. This
| we think, is not sufficient to establish the mistake
There is another view Of this matter, which it
seems us decisive against the defendant Cooke
By the terms of the contract between him and
compliments on the 24th of November 1855
he could only legally retain sum sufficient to pay
] what then due the bank, with interest to the
Ist Of OtOber afterwards. This we have seen he
did He was not authorized to retainfOr sums which
had therefore been paid-whether the payment was
by him or William S Townsend.
1t is next insisted by the defedanl Cooke, that in
the sale Of this land to him, the cOmplainants and
their trustee were guilty Of misrepresentation and
fraud as It regards well upon said Landry which
he sustained damage, which he claims should be
abated from the purchase money due compliments
! The Chancellor, here also, denied him relief In
this part of the decree we do not concur. 1t APP
pears that this well constituted part Of the i'm
prOvement made by cOmplainants during their own
fershp of this land and that in the sale to Cooke It
| was represented as furnishing a large supply of
never failing water. This representation, we are
satisfied, was untrue and that compliments and
their trustee at the time knew It to be so.
The supply of water in the winter and spring
months seems to be very abundant-but IN the sum
| mer and fall the well becomes dry and unit for
use. This was so in the summer and fall OF 1850
| and 1856. 1t appears that, in that neighbOrhOod
wells difficult to be had, and when Of the char
| aCter this was represented to be-add very greatly
to the value of an estate And there be no doubt
that in the sale to Cooke this well formed cOnsid
| cradle element in the estimated value Of the land
| ard that he was deceived and imposed upon IN re-
/ gard thereto. We therefore think that whatever
damage he sustained, because Of this misrepresen-
tatiOn, should be abated from the sum demanded by
| compliments. The damage Is fixed by many wit
nesses on behafOf defendant at $1,000; butinasmuch
as compliments proof seems not to have been d.
rected to the qtJd9 Of damage sustained by the de-
PENDANT COcke-we think it proper that this matter
! should be referred for additional evidence.
! The defendant Cooke claims further abatement
/ for damages alleged to have been done by William
). Townsend to the orchard dwelling louise and
clover lots; but if the trust estate could be subjected
TO liability for wrongs committed by the trustee
it is a sufficient answer here to say-that the
proof leaves it uncertain whether the injury COM
planned Of took place before or after the purchase
by Cooke.
We also think defendant is not entitled to any
| abatement because William 5. Townsend did not
clear up the seventy-fve acres of land-uPOn which
he reserved the privilege of taking the timber for
two years-because by the terms OF his contract he
was not bound to do and we are not able to see
that he failed to leave rail timber sufficient to fence
thispiece of land.
The decree of the Chancellor will be reversed
and modified indicated in this opinion
WRIGHT
4 t1.ne cnnv Test: c. " NELSON Clerk