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Newman et al. v. Mackin.

which he occupied before the lease. Willison v. Watkins, 3 Peters, 50.

The right of the plaintiff to recover the possession was, consequently, clearly established by proof of the tenancy, and that it had expired.

But the defendant abandoned the possession after this snit was brought, and another person was in possession at the time of the trial, claiming to hold for John Roy, who set up claim to the premises as owner. There is even some conflict in the testimony, as to the time Mrs. Newman left the premises, whether before or after this action was commenced. But the jury found for the plaintiff, which they could not have done, except upon the ground that she was the occupant at the time the process was served.

It does not appear that Roy took possession of the premises, by virtue of any contract with Mrs. Newman, or that she surrendered the possession to him. If that were the case, upon well established principles, he would occupy the same relation to the original 'lessor, which she did. Adams on Eject. 57, n. 2; Jackson v. Davis, 5 Cow. 123; Same v. Harsen, 7 Cow. 323; Adams, Eject. 247. But Roy was not admitted as a defendant in the case, and it is difficult to see how he could interpose his rights, in the controversy, between the plaintiff and Mrs. Newman. It is also a general principle, that he who takes property, during the pendency of a suit in regard to it, from one of the parties, is in equity affected with notice. During the pendency of an ejeciment, if the possession be changed, the land would be liable to the execution. If the judgment be against the casual ejector, the execution is an authority for ejecting the tenant. And if the sheriff be disturbed in the execution of the writ of habere facias possessionem, an attachment will go against the party, whether he be the desendant or a stranger. Adams, Eject. 309, 310. It seems to us, , therefore, that Roy is bound to give up the possession, and must institute other proceedings to bring his rights to the test.

The question as to the generally bad moral character of one of the witnesses was properly excluded. It should have been

Connell v. Mulligan.

confined to the reputation of the witness for truth and veracity.

The deed of mortgage, and the several written leases, offered in evidence to show that the plaintiff had no right to the possession of the lots, were properly excluded, because, as has already been shown, neither the tenant nor one coming in under the tenant can dispute the right of the lessor.

The verdict and judgment for the premises were correct. But the proof is, that the defendant abandoned the possession immediately after the bringing of this suit, and that other persons intruded into the premises, claiming not for her, but for themselves. She could not, therefore, be responsible for the rent which accrued after her abandonment.

The defendant in error, however, has offered to release this part of the verdict, which he has the right to do. The judgment will, therefore, be reversed, and this court proceeding to give the judgment, which the court below should have given, directs judgment to be entered for the lot in dispute.


C. & M. made the following agreement, viz. : M. agrees to take into part

nership said C. in a certain lot in the city of Jackson, for and in consideration of one hundred and sixty-five dollars, and that both parties are to hold the land in company; M. promises C. to pay his half of the above sum, being eighty-two dollars and a half, on or before the first day of May next; and failing in doing so, shall forfeit his claim thereto if not paid within at least three months after said first day of May next.” C. paid the money, and took the title in his own name; M. in due time tendered his half of the purchase-money without interest 10 C., who refused in: Held, that the written agreement was not void under the statute of frauds; it specified the

terms sufficiently to enable the court to decree iis specific performance. Nor was it void for uncertainty, because the lot was not described ; the lot for

which the money was paid was the one intended, and that being disclosed in the pleadings was sufficiently identified.

Connell v. Mulligan. Nor was M. under the contract bound to tender more than one half the

purchase-money without interest ; yet if he were, as no objection was made to the amount of the sum tendered at the time, but it was rejected on ano

ther ground, it would not avail as an objection afterwards. Nor was it any objection to a specific performance being compelled, that M.

refused to pay C. one half the expense of inclosing the lot ; under the agreement M. was not bound to do so.

On appeal from the chancery side of the circuit court of Hinds county; Hon. George Coalter, judge.

William Mulligan filed his bill against Patrick Connell for a specific execution of the agreement set out in the opinion of the court. It was decreed in the court below, and Connell appealed.

Potter, for appellant, insisted,

1. That, under the statute of frauds, no decree could be rendered lawfully for complainant. He cited 4 Cruise, Dig. 88, $ 17; Elias v. Deadman, 4 Bibb, 466; 1 Johns. Ch. 239; Bailey v. Ogden, 3 Johns. R. 419; Champion v. Plumner, 1 Bos. & Pull. (N. S.) 252; 13 Johns. R. 297; Ib. 508.

2. A valid tender was not made.

Clifton, for appellee,

On 1st point, cited Hayne v. Dunlap, MS.; Smith v Williams, 4 Humph. 426; McDowell v. Beckley, 4 Const Ct. S. C. 267.

On 2d, cited Bacon v. Conn, 1 S. & M. Ch. R. 348.

Mr. Justice Smith delivered the opinion of the court.

The appellee, Mulligan, filed his bill on the equity side of the circuit court of Hinds, to compel Patrick Connell to convey to him the one half of lot No. 56, south, in the city of Jackson. A decree was pronounced, in conformity with the prayer of the bill, in May, 1816; and the cause comes before us by an appeal granted on petition in 1847.

It appears by the bill that Mulligan, having contracted with John S. Gooch for the purchase of the lot in the city of Jackson,

Connell v. Mulligan.

and not having the means of completing the purchase, entered into an agreement with the appellant in these terms, as it appears from exhibits 1 and 2, made part of his answer by the respondent in the court below, to wit: 1. William Mulligan agreeth to take into partnership said Patrick Connell in a certain lot in the city of Jackson, for and in consideration of one hundred and sixty-five dollars, of lawful currency of the United States of America, and that both parties are to hold the land in company. 2. Said William Mulligan doth promise to said P. Connell to pay his half of the above sum, being eighty-two and a half dollars, on or before the first day of May next; and failing in doing so, shall forfeit his claiın thereto, if not paid within at least three months after said first day of May next. This was signed by both parties. Connell paid the money to Gooch, and took a title to said lot in his own name; and insists that he is not bound to convey one half thereof to said Mulligan, inasmuch as the said agreement was void by the statute of frauds and perjuries. This objection presents the first question.

It appears to be well settled, that a writing, not specifying the terms of the agreement, will not take the case out of the statute against frauds and perjuries. Parkhurst v. Van Cortland, 1 J. Ch. R. 279. In the case of Ellis v. Deadman's Heirs, 4 Bibb, 466, the writing or memorandum relied on was in these words, to wit: "4th January, 1808. Received of Jesse Ellis $—, in part pay of a lot he bought of me in the town of Merides, it being the cash part of the payment of said lot.” The court say there would have been no doubt of the propriety of decreeing a specific performance of the agreement, if the terms of the agreement had been specified, although the receipt apparently was only intended to be evidence of the payment which had been made. The agreement under consideration is not objectionable on that ground. The terms are sufficiently distinct. The writing sets out that Mulligan agrees to take Connell into partnership in a certain lot of land in the city of Jackson, in consideration of Connell's paying $165 ; that said lot was to be held by them in partnership, and that Mulligan was to repay to Connell one half of the $165 -by a stipulated time. No

Connell v. Mulligan.

resort to parol evidence was necessary to ascertain what the terms of the agreement were, the evils arising from which, in such cases, it was one of the great objects of the statute to prevent. The obligations and rights of the parties, under the agreement, were inutual. Mulligan was as much bound as Connell, and would have been compelled to convey to him one half of the lot, if the title had been taken in the name of Mulligan.

It is further objected, that the agreement does not designate the lot of land which was the subject-matter of the contract, and that it is consequently void for uncertainty. The agreement must be understood to refer to the lot, for the purchase of which the money was advanced by Connell. The answer to the bill in the court below shows that it was lot No. 56, south, in reference to which the parties contracted. No injury or injustice could possibly result to Connell. He knew at the time of entering into the agreement what lot was intended, and if, upon the face of the agreement, there was any uncertainty, his answer has removed it.

The agreement specifies that Mulligan was to repay, at the time stipulated, to Connell, $82.50. There was no agreement that he should pay interest on the money advanced by Connell. A tender, therefore, of that amount was a literal compliance with the terms of his contract. The answer admits that Mulligan tendered more than that sum; indeed, no objection was made on the ground of the insufficiency of the tender. Connell objected to convey one half of the lot, because Mulligan refused to defray one half of the expense of inclosing it. This, Mulligan was clearly not bound to do. It was no part of the written agreement, and the appellant produced no evidence of a subsequent contract for that purpose.

The remaining objection is predicated on a misconstruction of the decree, which we deem it unnecessary to notice.

Let the decree be affirmed.

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