Tilton v. Sykes

delivered the following opinion. When this case first came under my consideration, I hastily fell into the opinion that the defendant is answerable for a moiety of £387, the purchase money for the sixteen acres of land and cripple 3 sold by the sheriff to the defendant and complainant on the bid of the defendant on May 7, 1803. I say sold to the defendant and complainant, because that was the effect of the sale and is so to be considered in this court, although the sheriff may have returned on his writ that the sale was made to the defendant. I had, improperly, as I now think, supposed that the defendant, being returned by the sheriff the purchaser, was liable for one-half of the purchase money, and that that sum ought to be charged to him, together with a moiety of the rents and profits; and that whatever balance might be found due by stating the account in this manner and giving him credit for his father’s *466judgment and for a moiety of taxes and repairs paid and made by him, the same was to be paid to the complainant. In this view of the case, I had considered the plaintiff and defendant as partners in the purchase, and that £387, the purchase money, ought to have been paid by them to the sheriff, and by him applied to the judgments, so that the money arising on the sale made by the sheriff would have been the fund to pay the complainant.

The complainant in his bill claims the £387 totally of the defendant. He says that the whole sales amounted to £811.17.6; that £98.2.1 thereof were applied to prior judgments against Milliss, and that the balance of £713.15.5 were applied by the sheriff to the writ of venditioni exponas sued out by complainant against Milliss; but that the defendant never paid £387, a part of said £713.15.5, to the sheriff, and consequently the sheriff never paid it to the complainant; and the bill is now filed to compel the defendant to account, among other things, for the said £387. In this manner he treats the sum of £387 bid by the defendant for the land as a sum that should have been paid by him to the sheriff and applied by the sheriff to his, the complainant’s, debt, without any regard to the article of agreement, as if that article could operate on the profits only, to be made by a future sale by the complainant and defendant.

The defendant in his answer insists that it was not intended by the article of agreement that the defendant should pay to the complainant any part of said sum of £387; but that the land and cripple should be sold by them, and out of the proceeds of the sale the prior judgments should be discharged, and the residue should be appropriated to the satisfaction of the judgments of James Sykes, deceased, and of the complainant against Milliss, and that the balance, if any, should be equally divided between them.

I am satisfied, upon a review’of this case, that my first impressions were erroneous. The sheriff’s return ought to have no weight in deciding the question between these parties. As it regarded him, he was right in making his return so as to apply the £387 to the writ of venditioni exponas upon which he sold the land, and thereby discharged himself from the complainant, the plaintiff in that writ. The complainant, by the article of agreement, made himself a party to that sale; and it was fair and right in the sheriff to make such return as to show the whole transaction, and thereby, connecting his sale with the article of agreement, be enabled to defend himself, either at law, or in equity, against any suit which Tilton might prosecute against him for these £387. But as to the question here, we must ex*467amine the article of agreement and decide according to its true meaning. It is by that article that the complainant is entitled to call upon the defendant to account, and not by the sheriff’s return. The parties, in purchasing this land and cripple, had two objects in view; first, to make their debts safe;- and secondly, to make a profit on their purchase by selling on credit at an advanced price. As the purchase money was all going to them, there was no necessity for them to pay it to the sheriff, and then to receive it from him, and indeed this was not their intention; for it was not from this purchase money, but by a resale of the land, that they expected to obtain their debts and to make a profit.

In the agreement, after reciting their judgments against MilIiss and some difficulties in ascertaining the sums due on prior-judgments, they determined to purchase low and sell on a profit on credit; and then they declare “that the said purchases, if any shall by them or either of them be made, shall be for the common benefit of both the said parties, for the discharge of their said judgments, and shall or may be sold, or otherwise disposed of by them for that purpose, and the balance of such sales, after paying prior liens, if any, and the judgments of the said James Sykes and Nehemiah Tilton aforesaid, and the-charges of counsel etc., etc. shall be divided between them jointly and equally,” etc. Now, it [is] here most evident that it: never entered the minds of the parties that the sum bid by Dr. Sykes to the sheriff should be paid to him, or applied to either of these judgments, or to any judgment prior to those of Sykes, and Tilton. They expressly declare that the land shall be sold or otherwise disposed of by them for the discharge of their said judgments, and that the balance of such sales, after paying-prior liens, if any, and the judgments of J. Sykes and N. Til-ton, shall be equally divided. If all these judgments were to-be repaid by the resale of the land, to whose use, or for what purpose, was Sykes bound to pay the £387 to the sheriff or to-this complainant? Even for the satisfaction of prior judgments, due to other persons, they never contemplated that any part of the money bid by Sykes should go into the sheriff’s hands, much less for the discharge of their own judgments, because for all these purposes a fraud was to be created by reselling; the land on credit. So they have expressly declared.

If this is not the true construction of the article, some of the words in it are useless and unmeaning. They say, “and the balance of such sales, after paying prior liens and judgments, of Sykes and Tilton, shall be divided between them.” Now, how could any balance arise if the judgments mentioned in the-*468argument were not to be first paid out of the proceeds of sale? It never was the intention that Dr. Sykes should pay the purchase money, be it what it might, and then to sell the land again to pay these judgments. The agreement was made before the sale by the sheriff, and they, deeming the land low, bought it in, that it might be sold or otherwise disposed of to discharge these judgments, or else all the provisions about the resale, paying prior liens, the judgments of these parties, and counsel fees, were made without any object. The fact is that it was a speculating scheme, and the project has failed; but still the case must be decided, not according to the event, but to the true meaning of tihe parties at the date of agreement.

The rents also must be taken, like the proceeds of sale, as a fund for the payment of the judgments. The purchase was made for the common benefit of both, for the discharge of their judgments, so that all money produced from the land, either by the rents, or by a resale, or by any disposition whatever, must be first applied to the judgments. This was the first object, and to this end our future proceeding must be directed.

I therefore am of opinion that Dr. Sykes is not bound to account to Mr. Tilton for the £387, nor for any part of it, but that he must account for the rents and profits received by him, allowing him first to deduct his father’s judgment and the money expended by him for repairs and taxes.