Washington County MsArchives Court.....Gale, Thomas 1834
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Deb Haines ddhaines@gmail.com December 8, 2005, 9:47 pm

Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi
Written: 1834
Recorded: 1818

THOMAS GALE vs. THOMAS M. GREEN.

pages 159-161

Under a contract to convey title to land, accompanied with a tender of a deed, 
and possession taken and retained by the purchaser, he cannot rescind the 
contract, unless after eviction by title paramount to that of his vendor.


OPINION OF THE COURT-BY THE HON. POWHATTAN ELLIS.


The complainant represents in his bill, that on the 10th of September, 1817, 
Thomas M. Green, in consideration, that a certain Levin L. Cartwright agreed 
to pay him the said Green, the sum of one thousand dollars, and had executed 
his several notes for the same, payable in instalments, bargained and sold to 
the said L. L. Cartwright, a certain lot or parcel of ground, in the town of 
Greenville, containing forty square poles, &c. and that said Green executed to 
said Cartwright, his bond, in the sum of three thousand dollars, to make to 
said Cartwright, on or before the 13th day of January ensuing, a good and 
sufficient title, or general warranty deed and in fee simple to the said lot 
and its appurtenances, and that some time after making the aforesaid contract 
he treated with said Cartwright for the purchase of said lot, and agreed with 
him to give the money therefor, that he the said Cartwright was bound to pay 
the said Green. It was then agreed by all parties, that Cartwright’s notes for 
the amount of the purchase money should be cancelled, and complainant’s notes 
given in lieu thereof, and that the bond from Green to Cartwright to convey 
title should be transferred to the complainant. The complainant further 
represents, that he was let into the possession of the lot aforesaid, and 
immediately commenced making repairs and improvements of considerable value, 
in the full belief that said Green had a good title to the same, and would 
according to the tenor of his covenant, convey title, whenever it was 
required. In this he failed, and commenced suits upon the notes when they 
became due, and obtained judgment. The complainant concludes with the 
following specific prayers: —For perpetual injunction, rescission of the 
contract, —to raise an account—to decree a specific performance of the 
covenant to convey title — and for general relief &c.

The answer of defendant admits. That the several contracts mentioned in 
complainants bill were executed as therein stated, but that said Cartwright 
knew the title to said lot was then in respondent’s mother, and that she was 
to make titles as soon as she returned to the country. Respondent denies he 
ever refused to make titles to complainant, but on the contrary, tendered the 
same, which were refused. The respondent derives title from a spanish grant 
through his mother, (as administratrix of the estate of his deceased father, 
Henry Green,) who was authorized to sell the same by an act of the territorial 
legislature, passed on the 7th day of December, 1812. At a superior court of 
chancery, for the western district, held on the 2nd Monday in January, 1823, 
this case Was opened, upon a motion to dissolve the injunction, and after 
hearing counsel, and due deliberation being had thereon, the motion was 
sustained, and injunction dissolved. An appeal was taken to this court. The 
complainant has no right to complain, it appearing from the time of the 
execution of the contract between L. L. Cartwright, Thomas Gale and Thomas M. 
Green, that he was put into possession of the lot now in controversy, and has 
remained in possession ever since. If Green has complied with his covenant to 
convey title (which appears to be the fact,) and that Gale remains in 
possession by virtue of the sale, how is to be said he can consistently ask 
for relief, when it is manifest the covenant under which he seeks redress, has 
been entirely fulfilled. If there had been an eviction by a paramount title, 
subsequent to the tender of a deed of conveyance, we should feel no hesitation 
in staying the judgment at law, until Green quieted complainant in the 
possession of the lot in contest, in strict conformity to the deed of covenant 
to convey title. Decree of the Chancellor affirmed. Chief Justice Hampton 
concurred.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834.

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