Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-12-07
sum assumed, for which he accepted the pureh,s

faction. As where party noiding ianes unoet
execution sale with redemption expired, joined
the execution debtor, In e sale 10 third person,
the purchaser at execution was held TO have
priority.
From the Chancery Court al Hancock,
Seth. ]. w. Lucky, Ch., presiding.
w. r. Evans for complainant.
Jas. T. Shields, for defendants.
VIM. d. Trent VS. Robert Kyle & ]. W.
Philips.
OPINION.
The complainant, Trent, had a judg-
ment against the defendant, Robert Kyle,
upon which an execution issued and was
levied upon tract of land of Kyle in
Hancock county. The land was sold IN
der this execution on the Oath day of No
vember, 1850, and bought by Trent for
1865 76, the amount of his debt and
costs.
KYLE made an effort to redeem the land
from Trent with bank notes and Confed-
crate money, but Trent refused to receive
the same. Kyle however, made arrange
ment with his CO defendant, John w.
Philips by which the latter agreed to
purchase the land for the sum of IS, 500.
Out of this Trent's debt was to be paid
and the balance was to go to Kyle, and
this agreement was to be carried out, pro-
vided Trent would agree to it, and take
Philips note for the amount due him.
To this arrangement Trent consented,
as he alleges in his bill under duress, or
from fear of Philips, aud as he alleges
upon condition that the note to be thus
taken should be secured upon the land.
On the Oath December, 1862, a title bond
was executed by Kyle, binding himself to
convey the land to Philips upon the pay
ment of the purchase money. Upon the
same day Philips executed his note to
Trent for 1869 10, due the 25th Decem-
Der, 1868, in currency that twill pay
debts in bank or taxes" with interest
from date, this being the amount OF his
debt and interest; and it is stated in the
record that upon that day Trent executed
a receipt acknowledging the satisfaction
of his judgment and releasing his claim
upon the land.
Trent files this bill alleging that he was
induced to agree TO this arrangement
through fear of personal danger from
Philips. and insists that he ought to be re-
leased from it altogether, or it not, that
he is entitled 70 q vendors lien for the
amount Que him.
Philips answers and admits that Trent
Is entitled to this lien upon the land for
the amount of the note; that such was
the understanding and agreement. Kyle
answers anu asserts that Trent has no
lien, but must look alone to Philips for
his debt, and that the lien for purchase
money was reserved alone to himself, to
enforce which it seems another bill, filed
by Kyle, is now pending.
They neither of them admit the duress
charged. The Chancellor refused relief
to the complainant upon the ground OF
duress, but gave decree against Philips
for the amount of the note due COM
plainant, and held upon the proof that
the title bond should be go reformed as to
include complainsnt's debt as lien upon
the land, this stipulation having been 10
the opinionaof the Chancellor omitted by
mistake of the craftsman, and decreed
that this sum due The complainant and the
amount due Kyle should be paid pro rata
out of the proceeds of the sale which
seems to have been made in another case.
From this decree, both the complainant
and Robt. Kyle appealed.
We are of opinion that the Chancellor
was correct in refusing relief TO the COM
plsinant upon the ground that the con
tract was entered into-under duress. The
testimony upon this subject is principally
h regard to she violent character of Phil
Ups during the war, and although it may
be probable that this fact had some inf1u-
ence upon the compliments mind, yet
the proof is too general to found decree
upon, as it does not appear that Philips
ever attempted to gain sny undue advan-
tsge over the complainant in regard TO
this transaction. But we hold that the
complainant is entitled to vendors lien
upon this land for the amount due him,
upon the facts that appear in this record.
1t will be observed that at the time of the
EXECUTION of the title bond, by which the
land was sold TO Philips, the
time for redemption had already
expired, and Trent, if he had
chosen to insist upon his
legal right could have taken the Sheriff's
deed and been the absolute owner of the
land, for it does not appear that he had
made any previous agreement extending
the right of redemption, so that Kyle's
rights existed only by the concession of
Trent. 1t is argued that Kyle redeemed
the land from Trent with Philips note,
and then sold to Philips, and that the
result is, Trent gave up ali his legal ad-
vantage, with no security but the note of
Philips. Such we think is not the legal
effect of the transaction. Although the
bond was executed by Kyle, it was in
substance sale of the land by Trent and
Kyle both, and that each was entitled to
receive from Philips his share of the
purchase money: Trent his debt and in
terest, amp Kyle the balance, and each
| would be entitled TO the lien retained for
this purchase money, in the order in
which the law would fix their rights IN
less the same is clearly changed by the
contract, and this we think appears from
the title bond, without its being reformed.
The bonds recites that Kyle had sold the
land to Philips for $500, payable as
| follows: $3.50 90 in hand, the assumption
of debt to VIM. D. Trent, nOlO bid
upon the land, of $S69.1O, TO be paid
25th December, 1863; and the further
sum of two thousand dollars, due the
25th December, 1868; $1,000, due 25th
December, 1854, and g., 900 due the 25th
of December, 1865; and after describing
this land, the bond concludes: "Now, il
l shall make the said John W. Philips 8
good and lawful title in fee simple with
general wsrrautee to the foregoing de-
scribed land, on the receipt of the last
payment then this obligation to be void, u
| etc.
Interpreted in the light of the surround
| ing circumstances snd the situation of the
| parties. we understand this bond TO in.
clude by its terms the payment of the
| debt to compliments as a condition pre-
cedent to the making of the title, and
that the legal title was retained
to secure this debt with the others.
The debt is described as part OF
the purchase money, and the bond ex.
pressly says that the title is to be made
upon the receipt of the last payment and
by necessary inference the previous pay
ments were intended to be also executed,
TreRt's failure to sign this bond with
Kyle cannot have the effect to defeat him
of any right which the law gives him.
Had Kyle paid Trent his debt, and Trent
chosen to receive the same in satisfaction
thereof and in redemption of the land,
then the result contended for by Kyle
would follow, although Trent might have
received the same in the note of third
party, but Kyle did not transfer Philips
note 10 Trent, in redemption of the land
as the argument enormously assumes,
Kyle held no such note. The note was
executed directly from Philips to Trent,
and the consideration of the note was
Trept's interest in the land.
The execution of the receipt by Trent
under the circumstances only had the
eff, ct to give his assent to the transaction.
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