Clough et al. vs Clough, 3 B. Mon 64

Chief Justice Kobek'tsoh delivered theopinionof the Court. Jakrard Clough and five others, as heirs of their deceased father, being entitled, by descent from him, to a tract of land of 300 acres, on Beaver creek, Harrison county, made a parol partition among themselves, prior to the year 1821, in which .year one of his co-tenants, to-wit: William Clough, made a verbal sale of his allotment of 50 acres, to the said Jarrará, who, thereupon, entered on and has ever since occupied the same. ’Decree of Circuit Court.

A party-whose -’duty it is to bring other parties before the Court, may not complain of the want of such parties. In July, 1834, Jarrará having paid to William Clough the whole stipulated consideration, but not having received a conveyance, one Raymond, his neighbor, with full knowledge of the foregoing facts, obtained a deed from the said William for the said 50 acres of land, and not only claimed the paramount title, -but denied that Jarrará had any equitable right thereto.

In 1835 Jarrará Clough filed a bill in Chancery against Raymond and William Clough, and all his -co-heirs, seeking a confirmation of the partition, a specific execution, and a relinquishment by Raymond, or such other relief as he might be entitled to.

The Circuit Court, by an interlocutory monition, required the restitution of the amount which Jarrará had paid to William, without interest, and the payment, also, of the assessed value, at that time, of valuable and permanent improvements which Jarrará had made on the land; and, at the next term, nothing having been paid under that decree, a sale of Raymond’s derivative interest in the land was decreed for making the aggregate sum specified in the interlocutor. And at the sale, as decreed, Jarrará Clough became the purchaser, and obtained a conveyance.

This writ of error is prosecuted for reversing that de•cree, for alledged want of proper parties, and for imputed •error in the principles of the decree. All the co-heirs of Jarrará Clough -were not regularly before the Court. But they -could have been necessary parties for no other purpose than that of confirming the ;parol partition in which all seem to have acquiesced for ■more than twenty years.

There was no decree, however, for confirmation; and 'of this Raymond has no right to complain, if the decree ■against him be right, and especially as he did not prepare the case for such confirmation; nor has Thomas Clough, (who was the only other person who asked for a confirmation,) any right to complain; because no subpana was ever issued on his cross bill against his co-defendants, none of them ever answered it, and it remains yet undisposed of — so that, whenever he prepares it for hearing, he may obtain the relief sought by it. And, therefore.

Jarrará Clough, himself not complaining of the omission to decree a confirmation of the partition, there should be no reversal of the decree for want of parties. Calcs fy Lindsey for plaintiffs: J. Trimble for def’t. A purchaser of land by parol contract, has a lien thereon for payments made, and for ameliorations made in good faith. A. vendee of land ■with knowledge ofaprevioussale by the vendor, takes the purchase subject to ell liens shared by-the first purchaser. As between vendor & vendee, the use of the consideration is considered as equivalenttp the use of the land.

When a decree by the chancellor, tho’irregularly made, places the partyseeking its reversal in the situation he should occupy. There will not be a reversal where such party has Induced such irregularity.

If, as the Circuit Judge seems to have thought, it was not proper to compel Raymond to relinquish merely because there was no written memorial of Jarrará’s contract of purchase, nevertheless, there can be no doubt that Jarrará was entitled, as against his vendor, to an equitable lien on the land for the price he had paid, and also for all ameliorations made in good faith; and there can be as little doubt that, as Raymond obtained the le. gal title fraudulently as to Jarrará, and with full notice of his equity, he took it subject to the existing lien.

That lien has been enforced,- and not, in our judgment, for more than appeared to be equitable. Jarrará does not appear to have been equitably liable to rents or profits, exceeding the legal interest on the price paid by him and the value of the use, by his vendor, of a tract of his without charge. In such a case between vendor and vendee,'especially when the former has acted in good faith and the latter refuses to fulfil his contract, the use of the consideration should be, prima facie, deemed equivalent to that of the land. And there is no proof in this case which can affect that equitable presumption.

Having thus briefly considered all the objections which have been made to the decree, we do not perceive any just ground of complaint by Raymond, The title is at least lodged where it would have been had he not improperly obtruded himself between his neighbor and a besotted brother, and endeavored, for his own unrighteous gain, to frustrate an honest contract and disturb a long continued occupancy and repose. And in this, rather providential, translation of the legal title to its rightful depository, we perceive no error prejudicial eitherto Raymond or to Thomas Clough, his co-plaintiff in error.

Wherefore, the decree is affirmed.