Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-02-02

confesso, as to the adult heirs of Francis,
that title bond, a conveyance was exc
cuted by Summer to Francis, and the evil
dence of the only two witnesses examined
in the case tends to establish the same
fact. Davenport states that he had
conversation with Summer shortly after
he sold the land to Francis, in which he
threatened to make his debt upon Francis
out of the land, but Summer said he
could not do so; that Francis had not paid
for the land; that he had transferred the
notes to Roberts and the land was bound
for their payment. Markum, a Deputy
Sheriff, declined, as he states, to levy an
execution upon the land in 1862, because
Summer and ]. D. Francis ''both said
there was no deed to the land; nothing
but title bond; that the purchase money
had not been paid, and that had to come
first" ATecital, however, in the deed
of trust from Summer to Barton, bearing
date goth June, 1861, would, if it can be
regarded as evidence in the present atti-
tude OF the case, seems to place this ques-
ton at rest; for, after describing the 802I
acres by numerous courses and distances,
it provides: Shut this sale is made with
the express reservation of 30 much of the
land herein embraced as have heretofore
conveyed to E. Francis, decd, less about
II acres which l repurchased as his sale and
which Is hereby sold and conveyed"
The deed, of 28th FEBRUARY, 1857, from
Summer to Floyd, likewise, describes the
1921 acres, 'fas including, and excluding,
70 acres sold to E. Francis" but, having,
been made since the commencent of this
suit, cannot, if it may in this case be
looked to for any purpose be regarded as
affecting previous rights. The deed from
Summer to Barton, as trustee, had the
effect, however, to estOp garrett, the
beneficiary, as well as his trustee, to deny
that there was a conveyance from Sum-
mer to Francis; but, strangely enough,
the bill was dismissed as to them, by the
complainants on the final hearing, and no
authoritative decree can be pronounced as
to them. The case is only before us up
on the appeal of the defendants, Alex
ander and Fare; and which attitude do
they occupy in resisting the relief which
the complainant inyokes2
1t has been seen that Fare was mere
agent for Alexander in the purchase at
Sheriff's sale, and so far as this record
discloses, has no interest whatever in the
land: and the real contest is now between
the complainant and defendantI Alex
ander, whose suit against Summer, was
brought and prosecuted since the COM
mencement of this suit, and who
became a purchaser, pede,ate lite, of
the land in controversy. And it is
quite clear that Alexander cannot, for
two reasons, successfully set up title; first,
because the legal title was in Barton, the
trustee, at the time of his levy and exc
cution sale, and he acquired nothing by
his purchase; secondly, because he was
purchaser, lis pendens and after the
commencement of this suit. 1t is well
settled that purchaser will be affected,
with constructive notice, whenever his
purchase is made during the prose cdtion
of the suit brought to enforce an adverse
claim, or title, which is set forth with su-
ficient certainty and distinctness to advise
him of its bearing on the property at
tsched. See Shelton VS. Johnson, 4 Sneed,
$50, 6S1, and cases cited in notes to LIE
Mere VS. LeNere 2 White and TudOr's
Lead. Cases in Eq. 10, III ct 3 ed.
Storey's Eq., IS 4O5 to 4OS.
As between complainant and Summer,
there can be no serious question that the
complainant, as assignee of two of the
notes for purchase money, is entitled TO a
vendors lien. See 8 Head 537, 2 Head
128, Hum. 5S7. Meigs 50.
AS it has been earnestly argued that
the contract between Summer and Francis
was by parol, it may not be superfuous
to consider the case on the hypothesis
that there may be some doubt, as to
whether deed, title bond, or other writ
ing was executed.
The bill, as we have seen, alleges that
there was title bond. Summer, in his
answer, states, as above remarked, that
he had the land surveyed for the purpose
of executing title bond to Francis, but
that Francis died very suddenly short
time afterwards that he does not remem-
Der whether he executed to said E. Fran
els bond for title or not, but if he did
not, he was to have done so, and had the
land surveyed for that purpose, as stated
in previous part of this opinion. He
says expressly that the ninety-seven acre
tract is included within the boundaries of
said deed of trust to William Barton;
that the legal title to said land is yet in
him, but belongs to the estate of E. Fran
els, deceased. Neither he nor any of the
defendants named in the record pleads or
relies upon the statute of frauds. If he
and Barton, the trustee, had pleaded it
and such plea had been admissible in re-
ply to the allegations of the bill, the reel
tai in the deed for 1924 acres, of an ex-
press reservation, out of that quantity, of
so much as Summer had before conveyed
to E. Francis, deceased, would have ope-
rated as an estoppel both upon the maker
of the deed and the trustee. Cold. 189,
and cases cited in 2 Abb. Not D 2S6 No.
43; see olso Sprigg vs.. Bank of Mount
Pleasant, 10 Pet, 257.
But they could not have formally
pleaded the statute of frauds, because the
bill states an agreement in writing and
seeks nothing but an execution of that
agreement through the enforcement of
the vendors lien; and, in such case, q
plea that there was no agreement in writ
ing is not proper, StOry's Eq. Plea. sec.
1852. Consequently, if Summer, Barton
and jarrett, were now before the court,
they could not, in any form, interpose the
trust deed to Barton as a barrier in the
way of complainant, for the obvious
reason that the ninety-seven acres of land
involved in this suit-(with the possible
exception of eleven acres, parcel thereof,
as to which the proof is not clear, were
not, in point of fact, conveyed in, but
were expressly reserved out of the deed
of trust.
The argument which has been so conf
IDENTIFY pressed before US that the contract
between Summer and Francis was parol
contract, as to the sale of land, and can
not be enforced, rests upon the assump-
ton that such parol contract was void
under the statute of frauds; but, in Sneed
VS.. Bradley, 4 Sneed 3Ol, it was said that
'tit would be more correct to designate
such contracts as voidable rather than
absolutely void" and that 'ff the contract
be fully set forth, in the bill, and the de-
PENDANT admits 1t in his answer, and sub
mits to waive the statute of frauds; or,
what is deemed as equivalent to a waiver,
does not insist upon the statute as de-
fence, specific performance of the con-
tract will be decreed."
But the contract stated n the bill is q
written Contract and the effect of Sum-
mer'S answer, admitting the sale of the