BURNETT V. CALDWELL, 76 U. S. 290 (1869)

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U.S. Supreme Court

Burnett v. Caldwell, 76 U.S. 9 Wall. 290 290 (1869)

Burnett v. Caldwell

76 U.S. (9 Wall.) 290


l. Where a purchaser of real estate fails to comply with the terms of the contract under which he obtained possession, the vendor is at liberty to treat the contract as rescinded and to regain the possession by ejectment. In such case, in the State of Georgia, and in this country generally, it is not necessary to give notice to quit before bringing the action.

Page 76 U. S. 291

2. In ejectment brought under such circumstances, an inquiry of the defendant, when examined as a witness, what he gave for the property, how much he had paid, in what manner he had paid, and whether he had paid a valuable consideration is irrelative.

In 1850, one Rogers, being in possession of certain premises for some years, sold them to persons from whom they passed to the Rome Female College. And this college executed a somewhat peculiar deed conveying them to Caldwell. Caldwell, being thus in possession and claiming title, sold them in January, 1864, to a certain Vliet. Vliet paid him $4,000 and gave him two promissory notes, each for $7,000, payable in the course of the year at dates fixed. Caldwell at the same time executed to Vliet a title bond in the penal sum of $36,000, reciting the payment of the $4,000 and the delivery of the notes and conditioned that if Vliet should pay the notes at maturity and Caldwell should thereupon make to him "a good warranty title in fee simple" for the premises, the bond should be void. The bond was silent as to the right of Vliet to occupy the premises, but Caldwell put him in possession. Vliet transferred the bond and delivered possession to Burnett. Nothing having been paid on the notes and more than three years having expired since the maturity of the one last payable, Caldwell brought ejectment against Burnett to recover possession of the property. He had given him no notice to quit.

On the trial, Burnett the defendant being on the stand, his counsel proposed to ask him what he had given for the property, how much he had paid and in what manner, and whether he had paid a valuable consideration. The court, on objection, overruled the interrogatory.

In addition to this, various questions were made before the court as to whether Rogers had or had not a valid title by virtue of the statute of limitations, whether Caldwell had or had not a perfect paper title, and whether the deed executed by the trustees of the Rome Female College was valid or not.

Page 76 U. S. 292

The court (Erskine, J.) gave instructions on all those points, but in addition instructed the jury that

"if a purchaser failed to comply with the terms of a contract under which he obtained possession, the vendor was at liberty to treat the contract as rescinded and regain the possession by an action of ejectment; that in such case neither a demand of possession nor a notice to quit was necessary; that the ejectment here was not brought to enforce the contract of sale, but to regain possession of the land acquired under it."

Verdict and judgment went for the plaintiff, Caldwell, and the defendant, Burnett, brought the case here.

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