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Wiggins et al. v. McGimpsey.

from the operation of the statute, because it ought not to be injured by the neglect of its officers, and because of a presumption that it will not disturb the repose of society by unfounded or suspicious claims. 4 How. R. 24; Ang. on Lim. 38.

But this fund cannot be said to belong to the state, it belongs to the several counties, under the act of 1846 to establish a system of common schools. Hutch. Code, 230. The boards of police were originally intrusted with its management, but it is now under the control of the school commissioners. The county treasurer has the custody and keeping of it. It arises from the leasing of the sixteenth sections, from fines, escheats, and certain licenses. All this goes to show that the fund does not belong to the state, nor has it any interest in the suit. See Haynes v. Covington, Ante, 408.

There is no ground on which to hold, that the board of school commissioners is invested with any of the attributes of sovereignty, so as to exempt them from the operation of the general law of the land.

The judgment of the court below was in favor of the defendant, and the same is affirmed.

THEODORE B. WIGGINS ET AL. vs. JOHN W. P. McGIMPSEY, use of Wm. Robertson, Trustee of the Commercial Bank of Natchez.

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.

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

Wiggins et al. v. McGimpsey.

parties, as to the making 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 purchasemoney, although there has been neither sale under execution nor eviction of possession.

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.

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.

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 his vendor's title.

Where a note is given for the purchase-money of land, and is transferred by the vendor to a third party, and with knowledge of that fact the sale is rescinded, and the land revested in the vendor, after which it is sold under a judgment against the vendor, existing at the date of the original sale against him, such execution sale will work no failure of consideration of the note so transferred.

It is not every refusal to state legal principles to a jury, however clearly correct they may be as abstract propositions of law, which will be decided to be error; instructions must be applicable to the facts, and pertinent to the questions raised by the evidence; and if not, they should be refused.

It was held, therefore, not to have bee error an the circuit court to refuse to instruct the jury, in an action for a note given for land purchased by the defendant, brought by the assignee of the vendor, that a resale of the land to the vendor, and agreement between him and the vendee that the purchasemoney should not be paid, made before notice of the assignment, was a bar to the action; the proof being that the resale of the land, and agreement as to the purchase-money, were made after notice of the assignment.

The refusal to give a correct instruction, or the giving an erroneous one, are not sufficient to set aside the verdict, if it be notwithstanding right upon the law and facts.

A purchaser of land, who buys with a full knowledge of the defects in the title of his vendor, cannot be relieved from his obligation to pay in consequence of such defects; and as judgments are matters of record, they must be presumed to be known to the vendee, if any against the vendor, and will therefore constitute no defence against the payment of the purchase-money.

Wiggins et al. v. McGimpsey.

Where a sale of land was rescinded, and the vendor agreed with the vendee to take up the note of the latter, given for the land, and passed away by the vendor, such an agreement will be a recognition on the part of the vendee of the validity of the note.

In error from the circuit court of Madison county; Hon. Robert C. Perry, judge.

John W. P. McGimpsey, who sued for the use of the Commercial Bank of Natchez, on the 5th of October, 1843, sued Theophilus B. Wiggins and others, on their note for $750, dated March 15, 1839, and due twelve months after date.

The defendants pleaded non assumpsit.

On the trial, the plaintiffs read the note in evidence, and rested their case. The defendants then offered in evidence this agreement between Wiggins and McGimpsey, viz. :

"Theo. B. Wiggins has this day purchased a tract of land of me, and in part payment for which has given me one note for seven hundred and fifty dollars on Commercial Bank of Natchez, at Canton, falling due 13th March, 1840. Now, should the said Wiggins be enabled to pay more than half of said notes, I agree to have them renewed in bank for him. J. W. P. MCGIMPSEY.

"15th March, 1839.

"N. B. The above note of seven hundred and fifty dollars is the only note that has not been delivered to Mr. T. B. Wiggins. J. W. P. McG."

They then proved, by John B. Moore, that McGimpsey sold to Wiggins a tract of land in 1839, and took his notes, with security, for the purchase-money; that the land was afterwards sold as the property of McGimpsey, under a judgment older than the sale to Wiggins; that he heard McGimpsey and Wiggins say, some year after the date of this contract, they had rescinded it.

They proved, by A. J. Gillespie, that the note sued on was given for land sold by McGimpsey to Wiggins, which was afterwards sold under execution against McGimpsey, and bought by H. R. W. Hill, under execution older than the sale of the land.

They also proved, by Vincent Moore, that in 1839, McGimp

Wiggins et al. v. McGimpsey.

sey sold to Wiggins a tract of land, for which Wiggins gave his notes, one of which, indorsed by Grafton, one of the defendants, was, as witness understood from McGimpsey and Wiggins, transferred to the Branch of the Commercial Bank of Natchez; after which McGimpsey and Wiggins rescinded the contract; McGimpsey was to return the notes, and procure the one held by the bank and release it also; subsequently the land was sold by the sheriff of Madison to satisfy an execution in favor of J. H. Scott against McGimpsey; Wiggins lived on the land from the time he purchased until the contract was rescinded; there was a reservation in the bond or deed of all mines, minerals, and pine timber.

This was all the evidence offered on the part of the defend


The plaintiff then introduced the deposition of N. D. Ingram, who proved, in substance, that Wiggins, in a few days after he made the purchase, informed him that he had bought land of McGimpsey at eight dollars per acre, on a credit of one, two, and three years; this purchase was in 1839; Wiggins informed witness that he gave his own notes, without security, to McGimpsey; that he resold the land, or rescinded the sale; that McGimpsey had passed off one of the notes to the Commercial Bank at Canton, and, by the terms of the contract of rescission, McGimpsey was to take up the note in bank, and deliver it to Wiggins; that he gave up two of the notes, and told him the other had been indorsed by Thos. Grafton and Ira Mullen, at the request of McGimpsey, at the time he transferred it to the bank; the rescission took place in the fall of 1839, or spring of 1840; he thinks in the fall of 1839.

The court, on this state of facts, instructed the jury, at the instance of the plaintiff, as follows:

1. If the jury believe, from the evidence, that the note sued on was executed by Wiggins for land purchased of McGimpsey, and that Wiggins went into possession until the resale to McGimpsey, and that the note sued on was transferred to the Com. mercial Bank of Natchez before said resale, and that fact was known to Wiggins at the time of the resale, then there is no

Wiggins et al. v. McGimpsey.

want of consideration or failure of consideration on that account.

2. If the jury believe, from the evidence, that there was a judgment against McGimpsey of older date than his deed or bond to Wiggins, a sale made by virtue of such judgment does not work a failure of consideration, but there must also be an eviction by title paramount.

The following instructions were offered, on the part of the appellants, and refused by the court, to wit:

1. That if the jury believe, from the evidence, that the note sued on was given to McGimpsey for land, and that, at the time of the contract for the land, there were judgments in the courts of this state against McGimpsey, operating as a lien on the said land, and that the same was afterwards sold under executions issued on said judgments, and the title conveyed by the sheriff to the purchaser, that in that case the consideration of the note failed, and they ought to find for the defendants.

2. That if the jury believe, from the evidence, said note was given for land purchased by Wiggins from McGimpsey, and that afterwards, and before notice of the transfer to the bank, McGimpsey and Wiggins rescinded the contract for the land, that McGimpsey agreed that the purchase-money should not be paid for it; that, in that case also, the law is for the defendants.

Judgment was rendered for the plaintiff for the principal of the note and interest.

The defendants made a motion for a new trial, which was overruled; whereupon they embodied the facts in a bill of exceptions, and sued out this writ of error.

Geo. Calhoun, for plaintiff in error,

Cited Hoy v. Taliaferro, 8 S. & M. 727; Peques v. Mosby, 7 Ib. 340; and discussed at length the propriety of the instructions, insisting that one given for the plaintiff was erroneous, and those for defendants improperly refused.

H. A. H. Lawson, for defendant in error,

Cited Com. on Cont. 16; Story, Notes, 203, § 186; Smith v. Sinclair, 15 Mass. R. 171; 2 Wheat. 16; 7 Cranch, 350; Graham, New Tr. 301; 4 How. 231; 5 Ib. 495.

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