Johnson v. Jones

Citations

• 21 Miss. 580

Syllabus

<p>It is well settled that a vendee who is in possession under covenants of warranty, cannot, at law, set up a failure of consideration as a defence to a note given for the purchase-money, unless he has been evicted, or unless he can establish fraud in the contract of sale.</p> <p>The same rule prevails in equity, unless it be shown that the vendor is insolvent. Fraud can be proved at law as well as in equity, and where a vendee fails to set it up in a suit at law, he cannot resort to a court of equity for the same purpose.</p> <p>In an application either for a specific performance, or for a rescission of a contract, there must be no unnecessary delay. If the applicant has been negligent, and there has been a change of circumstances affecting the contract in any material features, the court will not interfere. When a rescission is made, the court should restore the parties, as nearly as possible, to the situation they respectively occupied, at the time of making the contract; and if, from the conduct of one of the parties, they cannot be placed in their original condition, the court will not rescind at the instance and in favor of the party who has been the cause of the failure.</p> <p>C.'purchased a tract of land, and J. became his surety for the purchase-money; the vendor transferred the notes; the purchaser became insolvent, and J. was sued for the purchase-money. J. gave other claims in compromise of the suit, but gave a guaranty for their collection. He was sued on his guaranty at law, made defence, and judgment was rendered against him. The defence at law was a failure of consideration in the original sale to C. A bill was filed setting up the same defence, connected with a charge of fraud in the'sale to C.: Held, that J., by the compromise, had precluded himself from setting up the failure of consideration.</p>