Wiggins v. McGimpsey ex rel. Robertson

Citations

• 21 Miss. 532

Syllabus

<p>Where there has been a sale of land, and notes given for the purchase-money, one of which is transferred by the vendor; and after the transfer, which is known to the vendee, a resale of the land is made by the vendee to the vendor, or a rescission of the original contract of sale made, by the terms of which, the original vendor is to take up and return to his vendee the note thus transferred, and the vendor has failed to take up the note, upon which a suit is brought by the holder against the maker: Held, that the circumstances constitute no failure of consideration of the note in the hands of the holder, and he is entitled to recover upon it.</p> <p>Where a bond to make title to land is given, or a contract for its sale entered into, and the vendee is put in possession, whether the undertakings of the parties, as to the malting of title and payment, be concurrent and dependent or independent, if the vendor be not able to make a good and operative conveyance to the vendee, or if there be any defect in his title, it will be a good defence to the vendee in bar of an action for the recovery of the purchase-money, although there has been neither sale under execution nor eviction of possession.</p> <p>A different rule, however, prevails where the contract for the sale has been executed ; in that case the vendee cannot resist the payment of the purchase-money, on the ground of defective title in his vendor, unless there have been an actual eviction.</p> <p>Even if the vendee of land, who has a bond for title, have no knowledge at the time of sale of any incumbrance upon the land, the existence of such incumbrance will constitute no failure of consideration of a note given for the purchase-money, if the vendor be able, at the time appointed in his contract, to make a title.</p> <p>If, however, the incumbrance at the time of sale be in the shape of a judgment against the vendor, being matter of record, the vendee is presumed to have purchased with notice of the defect in