John M. Pintard, complainant, vs. Archibald W. Goodloe, William Rodes, and Thomas T. Tunstall, defendants

Jounson, J.,

delivered the opinion of the Court. — The material facts shown by the pleadings and evidence in this case are ,as follows: —

That on the first day of April, 1834, the complainant Pintard purchased of the defendant Tunstall, as evidenced by a writing under the hand and seal of Tunstall, the south-east quarter of section one, in township eighteen south of range one west, and a part of the south-west fractional quarter of section six in township eighteen south of range one east, for the consideration of 1,500 dollars, paid by Pintard to Tunstall. An improvement having been made on the south-east quarter of section one, Tunstall claimed a preemption right thereto under the Preemption Act of 1814, was in the possession thereof, and transferred and delivered possession to Pintard, and bound himself to convey the same by a good and sufficient title, so soon as the patent issued from the president of the United States. That on the 24th day of July, 1834, a preemption right and a certificate of purchase was granted and issued to said Tunstall for such quarter section of land under the Preemption Act of the 12th of April, 1814, by the land-officers at Little Rock. That Pintard resided on said land during the year 1834, built additional houses, extended the clearing, and cultivated seventy or eighty acres during that year. That, being so in possession of said land, Pintard, on the 23d day of March, 1835, bargained and sold to William Rodes the said quarter section of land and so much of said south-west fractional quarter of section six adjoining thereto, as would make the quantity of two hundred acres, at and for the price of forty dollars per acre, binding himself in writing to convey the same by a general warranty deed so soon as the patents could be procured; and, to secure the payment of the purchase-money, said Rodes executed his two promissory notes for $4,000 each, the first due and payable on the 1st of March, 1836, the second due and payable one year thereafter; and thereupon Pintard delivered possession of said land, and improvements thereon, to said Rodes. That subsequently the said Rodes, by a contract in writing, signed by himself and the defendant Goodloe, on the 13th March, 1837, bargained and sold the said tracts of land and improvements thereon to said Goodloe, for the sum of sixty-five dollars per acre, the said Goodloe stipulating in said contract to pay, as part of the price, the purchase-money due by said Rodes to Pintard, as soon as the title with general warranty should be made to him. Rodes thereupon delivered possession of said tracts of land and improvements to Goodloe, who has held the same ever since.

That on the 24th of February, 1838, the said preemption right and certificate of purchase, by Tunstall, was declared to be null and void by the commissioner of the general land-office at the city of Washington, upon the ground that the land was not the property of the United States until the ratification of the treaty with the Q,uapaw Indians, on the 24th of August, 1818, and directed the land-officers at Little Rock to refund the said Tunstall the purchase-money paid by him.

That on the 9th of April, 1840, Goodloe obtained a preemption right in his own name for said quarter section of land, by virtue of his occupancy thereof, under the Preemption Act of the 22d of June, 1838, and on the 3d day of March, 1841, obtained a patent therefor from the president of the United States.

That on the 28th of March, 1838, Goodloe paid to Pintard $600, and on the 31st of May, 1839, the further sum of $1,363.82, for which credits are indorsed on one of the promissory notes executed by Rodes to Pintard, for the purchase-money of said land, and no other or further payments have been made by Rodes or Goodloe in discharge of said two promissory notes. It is admitted that Rodes resides in Kentucky, and is utterly insolvent. From the proof in the case it is difficult to ascertain the precise quantity of land contained in the south-west fractional quarter of section six, which Pintard sold to Rodes, and Rodes to Goodloe ; but taking the bond of Benjamin Taylor .to Tunstall for its conveyance, and the admission of Goodloe in his answer, as the best evidence, there appears to be about eleven acres; Goodloe having obtained possession of Taylor’s bond to Tunstall for the conveyance of said land, he seems to admit his liability to Pintard to that extent, and avers that he has more than paid for the same.

This bill is filed by Pintard, praying a decree against Goodloe for the remainder of the purchase-money due him for said tracts of land, and claiming a lien thereon to have them subjected to sale for the payment of said money. Upon the foregoing facts and circumstances two questions arise: First, Is Goodloe personally liable to Pintard for the purchase-money agreed to be paid by Rodes; and secondly, Has Pintard a lien upon the lands for the payment of the purchase-money yet unpaid ?

It may be material to remark, that Goodloe, having purchased and received possession of the land from Rodes, who had purchased and received the possession from Pintard, Goodloe holds the lands under- Pintard, and there exists a privity of estate between them. Pintard and Goodloe stand in the relation of vendor and vendee of the estate.

The principal ground upon which Goodloe resists the payment of the purchase-money to Pintard is, that Pintard never had any good and valid claim or title to the land, either in law or equity, and therefore is not entitled to demand and receive the consideration agreed to be paid. -Pintard purchased the land of Tunstall, who gave him his bond for the conveyance of the legal title so soon as it could be obtained from the United States.

Tunstall claimed the land as a preemption right under the Preemption Act of 1814, and on the 24th day of July, 1834; and before Pintard sold to Rodes, a right of preemption and certificate of purchase was granted and issued to Tunstall for the said south-east quarter of section one, by the land-officers at Little Rock.

Subsequently to Pintard’s sale to Rodes, and Rodes’s sale to Goodloe, namely, on the 24th day of February, 1838, this right of preemption and certificate of purchase was declared to be null and void by the commissioners of the general land-office. The title, then, under which Pintard held the land, was Hfective and invalid.

But Goodloe, instead of claiming a rescission of his contract, and surrendering possession of the land, which he had a perfect right to do, continued to hold it, applied for and obtained a preemption right thereto in his own name, by virtue of his occupancy, and has obtained the legal title from the United States.

Under these circumstances, the doctrine is well established that Goodloe is to be considered as a trustee for Pintard, under whom he held the land, and that all acts done by him to perfect the title while in possession, enure to the benefit of Pintard. The vendor and vendee, and assignees and purchasers from the vendee, stand in the relation of landlord and tenant, neither the vendee nor the purchasers from him are permitted to disavow the vendor’s title; and where they buy up a better title than that of the vendor, and the latter has been guilty of no fraud, the vendor can only be compelled to refund the amount of money paid for the better title. This doctrine is clearly held by the supreme court of the UnitedStates in the case of Galloway v. Finley and others. 12 Peters, Rep. 295.

The case of Searcy v. Kirkpatrick, decided by the supreme court of Tennessee, (Cooke, Rep. 211,) is in all its important and material features precisely analogous to the present case. Searcy had made an entry of two hundred and twenty-eight acres of land, by virtue of a military warrant, which land he afterwards sold and covenanted to convey to Kirkpatrick. Some person fraudulently appropriated the warrant to his own use, in consequence of which Searcy was unable to obtain a grant for the land.

Upon the sale Searcy delivered the possession of the land to Kirkpatrick, who continued to hold it, and finding out the condition of Searcy’s title, he made an entry of this land, as an occupant, in, his own name, and obtained the legal title from the State.

He afterwards brought a suit at law against Searcy on his covenant to convey, and recovered damages to the amount of $1,700. Searcy filed a bill in chancery to enjoin this jndgme§tj and the court decreed a perpetual injunction thereto, upon the payment by Searcy to Kirkpatrick of the sum he paid and expended in obtaining the title in his own name.

Judge White, in giving the opinion of the supreme court, says: “ If a man, under the belief that he has a good title to a tract of land, sells it, and either conveys or stipulates to convey it, putting at the same time the vendee in possession, and the vendee discovering a better title in some other person, purchases it with a view to prejudice the vendor, a court of equity will view the purchase as made for the benefit of the vendor, through the agency of his vendee, and will relieve the vendor from the obligation of his covenant by paying the money, with interest, which the vendee has advanced in purchasing up the preferable title.” In the present case Goodloe became entitled to a right of preemption by virtue of his possession and occupancy derived through Rodes from Pintard. Had he surrendered the possession when he discovered the defect in Pintard’s title, Pintard might have obtained by his occupancy a valid title to the land. By holding the possession Goodloe has prevented Pintard from acquiring a title to the land, and it would be highly inequitable and unjust to withhold from him also the consideration for which he sold it. Another ground of objection on the part of the defendant Goodloe, to his liability for the purchase-money to Pintard, is, that his promise to pay was not made to Pintard, but to Rodes. It is true that he entered into no contract with Pintard, but in his written contract with Rodes, by a fair construction of its terms, he expressly bound himself to pay to Pintard the purchase-money due by Rodes, so soon as a good title should be made to him.

It can hardly be doubted that this undertaking, made upon a valuable consideration, in discharge of his debt to Rodes, and of Rodes’s debt to Pintard, will be enforced in a court of equity.

It is consonant to the principles of equity and justice, and I know of no technical objections to its enforcement.

The conclusion at which I have arrived is, that Goodloe is personally bound to Pintard for the payment of the purchase-money due him for the land, after deducting the amount paid by Goodloe for the better title, to the United States, and all expenses incident to the procurement of that title.

The remaining question is, Had Pintard a lien on the land sold by him so as to subject it to sale, if necessary, for the payment of the purchase-money due him for sale ? No doctrine is more firmly established by a uniform current of decisions, than that the vendor of the land has a lien on the land for the amount of the purchase-money, not only against the vendee himself and his heirs and other privies in estate, but also against all subsequent purchasers having notice that the purchase-money remains unpaid. To the extent of the lien, the vendee becomes a trustee for the vendor and his heirs; and all other persons claiming under them, with such notice, are treated as in the same predicament. .

The principle upon which courts of equity have proceeded in establishing this lien in the nature of a trust is, that a person having gotten the estate of another, ought not in conscience, as between them, to be allowed to keep it and not pay the consideration money.

A third person having full knowledge that the estate has been so obtained, ought not be permitted to keep it without making such payment, for it attaches to him also as a matter of conscience and duty. It would otherwise happen, that the vendee might put another person into a predicament better than his own, with full knowledge of all the facts. (See vol. 2, Story’s Equity, 463, and the authorities there cited.) The lien attaches as a trust, whether the land be actually conveyed, or contracted to be conveyed. 2 Sugden on Vendors, 541; Smith v. Hubbard, Pick. Rep. 730.

Pintard, then, has a lien upon the lands sold by him, in the hands of the defendant Goodloe, for the payment of the purchase-money remaining unpaid with the abatement before stated.

The amount paid and expended by Goodloe in obtaining the title to the land from the United States does not definitely appear from the evidence in the cause; and, indeed, it would not be expected that he could show with certainty all the expenses to which he was put in procuring said title.

In his answer, he states the sum amounted to nine hundred dollars. I think it reasonable to allow this amount.

It appears that on the 26th of January, 1840, Goodloe loaned to Pintard two hundred dollars, for which a note wras given, and is filed in this case; and it is admitted by Pintard, as a just credit, to be allowed to Goodloe.

From the bill, answers, exhibits, and proofs in the cause, the court is of opinion that the complainant is entitled to the relief prayed for in his bill of complaint.

Decree. — It is ordered and decreed that the said defendant, Archibald W. Goodloe, do pay to said John M. Pintard the sum of ten thousand five hundred and fifty-two dollars, together with ten per cent, interest per annum thereon, from rendition of this decree, till paid; which sums, after deducting all the credits before mentioned, to which said Goodloe is entitled, is found by the court here to be due from said Goodloe to the said Pintard, as the balance of the purchase-money for the lands mentioned in the pleadings in this case. And it is further ordered and decreed, that the said south-east quarter of section one, in township eighteen south of range one west; and eleven acres adjoining thereto, being the same sold by said Pintard to William Rodes, and by Rodes to Goodloe, in the south-west fractional quarter of section six, in township eighteen south of range one east, be and the same is hereby charged with the said sum of ten thousand five hundred and fifty-two dollars, and accruing interest, as a lien for said purchase-money; and that unless the said defendant, Archibald W. Goodloe, shal] pay to the complainant, John M. Pintard, the said sum of money, with the accruing interest, on or before the first day of November, then and in that case it is further ordered and decreed, that the lands just mentioned, or so much thereof as may be necessary to pay the sum before mentioned, be sold by a commissioner appointed by this court, to the highest and best bidder for cash in hand, at the court house, in the town of Columbia, Chicot county, State of Arkansas, after the said commissioner shall have advertised the same four weeks successively, in some newspaper printed in this State, and shall have put up advertisements thereof at the said town of Columbia, and three other public places in said county of Chicot. And that the said commissioner, out of the proceeds of said sale, if sufficient therefor, shall pay, in the first place, all proper and legal expenses attending the execution of this decree.

Secondly, shall pay to the complainant, or to his solicitors of record, the amount of principal and interest hereby awarded and decreed to the complainant; and thirdly, shall pay over to the defendant Goodloe, or to his properly authorized agent, any balance which may remain in his hands after satisfaction of the amount of the principal, interest, and charges aforesaid and shall moreover deliver to the purchaser possession of the lands, and convey the same to him by and in fee-simple, to him and his heirs for ever, and shall make report of his proceedings in the premises to this court at the next term thereof; and liberty is hereby reserved to the complainant to apply from time to time to the court for such further and other proceedings as may be necessary for the execution and carrying into complete effect the decree herein pronounced.

And it is further ordered, that Johnson Chapman, of Columbia, in this State», is hereby appointed a commissioner for the purposes before mentioned, who shall be furnished with a certificate copy of this decree, which shall be to him a sufficient warrant for action in the premises. And the question of costs is reserved until the further order of this court herein.

The bill as to Rodes and Tunstall dismissed.

Mr. Justice Daniel

concurred in the foregoing opinion and decree.

From this decree, Goodloe entered into an appeal bond to stay the execution of the decree, took a transcript, and removed the case into the supreme court. Having departed this life during its pendency there, it was revived against Joseph P. Thudgill, his administrator.

At the December term, 1851, it was argued by Mr. Lawrence, for the appellant, and Mr. Crittenden, attorney-general, for the appellee, and the case will be found fully reported under the name of Thudgill v. Pintard, in 12 How. S. C. Rep. 24 to 39, and the decision was as follows: —

Mr. Justice McLean

deliveréd the opinion of the supreme court. — This is an appeal from the decree of the Circuit Court for the District of Arkansas.

Under the act of the 12th April, 1814, Jane Mathers claimed a right of preemption by virtue of occupancy and cultivation to the south-east quarter of section one, township eighteen south of range one west, containing one hundred and sixty-eight acres and ninety-six hundredths, lying south of the Arkansas River. She assigned her right to Thomas T. Tunstall, who entered and paid for the land at the land-office at Little Rock, the 24th of July, 1834, and obtained a patent certificate. On the 24th of February, 1838, this purchase was annulled by the commissioner of the land-office, on the ground that the Indian title to the land had not been extinguished when the settlement was made. The Indian title was relinquished to the United States by the Q,uapaw treaty the 24th of August, 1818.

This tract w„as purchased of Tunstall by Pintard, in the spring of 1833, who took immediate possession and made improvements on it. In the autumn of the same year he removed his family to the land, constructed cabins, stables, and other fixtures, and in the spring of 1834, cultivated seventy-five or eighty acres in corn and cotton.

On the 23d March, 1835, Pintard sold the above quarter section and a part of the south-west quarter of section six, so as to make a tract of two hundred acres, at forty dollars per acre, to William Rodes, who gave two notes of four thousand dollars each, payable in one and two years, with interest at ten per cent, per annum. The two hundred acres were sold by Rodes to Goodloe, on the 3d of March, 1837, for sixty-five dollars per acre. As a part of the consideration for this purchase, Goodloe agreed to pay Pintard the amount of his claim as soon as a regular title for the premises should be obtained.

Goodloe, on the 15th of February, 1839, proved up a preemption in his own name, under the act of June 22, 1838, to the quarter section, and paying the purchase-money into the land-office, he obtained a patent in his own name. Prior to this, in his contract with Rodes, he paid to Pintard nineteen hundred and sixty-three dollars and eighty-two cents.

But having obtained the title to the land in his own name, he refused to make any further payments to Pintard, on the ground that his claim was void. To enforce the payment of the sum due him on the sale to Rodes, Pintard filed the bill now before us, with a prayer that the land might be sold or so much of it as should be necessary to discharge the balance due to him.

It must be conceded that the first settler upon this land, the Indian title to it not having been extinguished, could claim under the act of 1814, no preemption right. No laws giving to seftlers a right of preemption, can be so construed as to embrace Indian lands. Such lands have always been protected from settlement and survey by penal enactments. But it appears that the Indian claim to this land was relinquished to the United States, by treaty, in 1818, after which it was embraced by all general acts giving to settlers a right of preemption.

By the act of the 26th of May, 1824, preemption rights were given north of the Arkansas River, to all who were entitled to such rights under the act of 1814, and by the third section of the act of the 1st of March, 1843, every settler on the public lands south of the Arkansas River was entitled to the same benefits under the provisions of the act of 1814, as though he had resided north of said river. By these acts a right of preemption was given in virtue of the first settlement upon the land.

But there was another and prior act which gave to the occupant of this tract a right of preemption. By the act of the 19th of June, 1834, every settler upon the public lands prior to the passage of that act who was in possession of a quarter section and cultivated a part of it in 1833, was entitled to a preemption. In 1833, Pintard was in possession of the quarter. section and cultivated a part of it, and he continued to occupy and improve it until the spring of 1835, when he sold his right to Rodes.

By his purchase Goodloe entered into the possession .of a valuable property, and if he desired to rescind the contract it .was incumbent on him to relinquish the possession of the quarter section and claim the cancelment of the contract. He cannot avail himself of the benefit of the contract and resist a performance of it on his part.

But Pintard, when he sold to Rodes, was entitled to. the preemption of the quarter section. His claim was not only a valid one, but it was sold on reasonable terms, as Rodes in two years sold the same to Goodloe at an advance of twenty-five dollars per acre. Under such circumstances the attempt of Goodloe to avoid the payment of the consideration, by procuring the title in his own name, is fraudulent. A title thus procured would have enured to the benefit of the vendor, even if the preemption right had not been vested in him.

A doubt is suggested in the argument, whether Goodloe, having purchased from Rodes, can be made responsible to Pintard. In his contract of purchase, as a. part of the consideration, Goodloe bound himself to pay the amount due to Pintard from Rodes on the previous purchase. It has been held that, under such circumstances, an action at law may be maintained in the name of the person to whom the payment is to be made. But this is a case in chancery, and no one has doubted that in equity such a contract may be enforced.

Has Pintard a lien on the land for the balance of the purchase-money? We think he has. Goodloe not only had notice of this claim, but he bound himself to pay it.

It is alleged that there is a mistake in the computation of the amount due as decreed in the circuit court. If there be an error in the calculation it is in favor of Goodloe, and of which he has no right to complain.

In the decree the circuit court gave the defendant a credit for the money paid to Pintard, and also a loan to him of two hundred dollars and a liberal allowance for the expense of procuring the title. A proper deduction was also made for the deficiency in the number of acres sold.

There appears to be no error in the decree ; it is therefore affirmed, with costs. Affirmed.