Henry A. Engles vs. William Engles, 4 Ark. 286

By the Court, Dickinsojí, J. The main point in this case to be decided is, had Henry A. Engles and William. Seamans a right to cancel and deliver up the agreement to convey a certain tract of land, executed by Seamans to Henry A. and William Engles, jointly, and substitute a deed in# fee to Henry alone, in lieu thereof? This question presents no difficulty whatever.

The facts upon the record clearly establish, that the agreement made by Seamans with Henry A. and William Engles, to convey a certain tract or parcel of land, was given to them jointly, and the purchasé money was paid by them both, Henry paying $100, and William, $100. Shortly after the agreement of the parties, William removed beyond the jurisdiction of this Stóe, and, during his absence, Henry and Seamans cancelled the agreement,- and substituted a deed in its stead, leaving out the name of William. And this they did without any authority, either written or verbal, from William.

It is certain, that one party cannot alter and cancel a contract, without the consent and agreement o.f the other. All the parties to the contract must agree and consent to the change or alteration; and, as a general rule, the contract can only be dissolved or cancelled by an instrument of equal dignity with the one which created it.

Henrjr and Seamans seem to have proceeded upon the ground of cancelling the agreement, and substituting another in its place, in which William was excluded, because William had, while absent from the State, directed Henry to sell his interest in the land, and to pay himself, for money advanced. This certainly gave him no power or authority whatever to take the deed from Seamans to himself. If he possessed any power at all, it only authorized the sale of the land to third persons. This proposition seems to us self-evident. The answer states, that the respondent, Henry A.

Engles, has mortgaged the land to the Real Estate Bank of this State, and therefore the Bank ought to be made a party to this suit. There is no proof adduced to support this allegation, nor any mortgage exhibited; consequently, the Bank is not shown tq have ' such an interest as to entitle her to be made a party. The Chancellor below has decreed, that the deed between Henry A..

Engles and Seamans be cancelled, and given tip, and a deed be executed b j Seamans, in like terms and tenor as the former, to Henry and William, jointly, and that the land be charged with thirty dollars and interest, as William’s equal half of the purqhase money, that sum being paid for him, by Henry. This latter part of the decree, we deem erroneous. We know no principle which would authorize the Chancellor to decree, that one partner, who had paid more of the purchase money than another, should hg.ve a lien in preference to other creditors, .for the excess of purchase money paid.

The partners, or part owners, stand toward each other in the relation of vendor and vendee, in the purchase of real estate. Should one of the partners pay a greater amount than the other, to the vendor, then he can charge the amount against .him as a simple debt which the partnership owes, or against him'individually, as the equity of the case warrants. But this certainly constitutes no lien or mortgage upon the land. In this particular, therefore, the. decree of the Court below is erroneous, and must be reversed, and in all other respects affirmed, and this cause remanded for further proceedings.