' The opinion of the court was delivered by
McGowan, A. J.The firm of “Stevens & Cureton,” consisting of J. H. W. Stevens and Thomas J. Cureton, were in business at Lancaster Court House, and that of “ Cureton, Ardrey & Co.,” consisting of the same partners and one J. W. Ardrey, at Fort Mills, York county.
On December 18th, 1876, Stevens & Cureton, being the owners of several tracts of land, contracted to sell the same to A. M. Kee for the sum of $9,025. The contract was in writing, signed by all the parties, and, among other things, contained this provision: “For the payment of the purchase-money the party of the second part is to execute to the parties of the first part, at this signing, a warranted right and title to the house and lot in Fort Mills, S. C., known as the 'Kee house/ upon which the said Kee now resides, valued at fifteen hundred dollars in this trade, and four promissory notes of this date [describing them in amounts, and payable in 1877-78 and 79]. Now, should the party of the second part pay, or cause to be paid, all the said notes, &c., at maturity, then, when the last note is paid, the parties of the first part bind themselves to make to fheparty of the second part a warranted deed of right and title to the lands above described; but, should the party of the second part fail to pay, or cause to be paid, either or any of the above described notes, as they shall mature, then this contract becomes null and void and of none effect, and the parties of the first part shall have the right to peaceable possession to said above-described lands, with a forfeiture on the part of the party of the *84second part of all payments, &c., which may have been made previously, &c.” Four notes were executed in accordance with the agreement. The “ Kee house ” was conveyed and Kee went into possession of the lands sold.
During the year 1877, T. J. Cureton endorsed the second and third of the notes to Cureton, Ardrey & Co., and they transferred them for value to Walker tfc Trenholm, of Charleston. Prior to February 18th, 1878, the said T. J. Cureton also endorsed the fourth and last note to the firm of Cureton, Ardrey & Co., and they, being indebted .to the Merchants’ and Farmers’ National Bank of Charlotte, N. C., to an amount exceeding $2,400, transferred and delivered to said bank the aforesaid last note for $2,325, collateral security for their debt. These transfers respectively were made before the notes fell due. T. J. Cureton was the actor in both transactions, and made the transfers first by Stevens & Cureton to Cureton, Ardrey & Co., and then by Cureton, Ardrey & Co. to the parties.
On February 18th, 1878, each firm made an assignment for the benefit of creditors to the same assignees — B. M. Miller and T. G. Cureton. In the assignment of Stevens & Cureton was included the lands which had been sold as aforesaid, “ subject to a contract of sale to A. M. Kee.”
In January, 1879, Walker & Trenholm sued A. M. Kee on the note transferred to them and recovered judgment. To that action the aforesaid assignees were parties, and denied the title of plaintiffs to the notes on the ground that T. J. Cureton negotiated the notes without authority from Stevens, and in fraud of the rights of Stevens & Cureton. The defense failed, and, upon appeal to the Supreme Court, the judgment below was affirmed.
,A. M. Kee being insolvent, Walker & Trenholm holding their note with judgment on it, and the bank holding the note transferred to them, have united and instituted this action to compel specific performance of the land agreement, and, as incidental thereto, to sell the land in payment of their debts. Judge Hudson heard the case and decreed for the plaintiffs, and ordered the land sold.
It seems that Kee, the purchaser, upon failure to comply with *85the terms of sale, acknowledged his liability to pay rent, and gave an obligation to pay it, which, under some agreement, had been deposited with the clerk of the court, “ to be turned over to the parties who may be entitled by the judgment of the court.” In a supplemental order Judge Hudson directed the clerk to collect this obligation and hold the proceeds subject to the future order of the court. From these orders the defendants appeal to this court on the following exceptions:
1. “Because his Honor erred in finding as fact that T. J. Cureton endorsed the fourth and last note to Cureton, Ardrey & Co., being a note made by A. M. Kee to Stevens & Cureton for $2,325, when the evidence established the fact that it never was endorsed to them and never belonged to them.
2. “ Because the evidence established the fact, and his Honor should have so found, that the said note was in the hands of T. J. Cureton for the purpose of raising money for Stevens & Cureton, and that T. J. Cureton, without the knowledge and consent of J. H. W. Stevens, transferred the said noté to Merchants’ and Farmers’ National Bank, one of the plaintiffs, for the debt of Cureton, Ardrey & Co., and that said bank knew the note belonged to Stevens & Cureton, and, at the time of said transfer, the said T. J. Cureton, in presence of J. B. Holland, cashier of the bank, endorsed the firm name of Stevens & Cureton thereon.
3. “ Because the transfer and endorsement of the said note of $2,325 by T. J. Cureton, under the facts and circumstances, was a fraud on J. H. W. Stevens, and Stevens & Cureton, and their creditors, and said bank, having knowledge of said facts and circumstances, had no right to receive the same, and was guilty of fraud in so doing, and his Honor should have so held, or, at least, that the bank acquired no title to the note, but. that it belonged to defendants as assignees of Stevens & Cureton.
4. “Because his Honor erred in finding, as fact, that copies of the contract for purchase of the land by Kee accompanied the delivery of the notes to plaintiffs, when, from the evidence, such copy accompanied only the notes delivered to Walker & Trenholm, and none accompanied the one delivered to the bank, and because his Honor failed to find, when plaintiffs’ evidence *86established the fact, that the copy so furnished to Walker & Trenholm by Cureton, Ardrey & Co., or T. J. Cureton, was by them returned.
5. “Because neither the plaintiffs, Walker & Trenholm, nor the Merchants’ and Farmers’ Bank, have any lien, equitable or otherwise, on the said Kee lands, and his Honor should have so held.
6. “Because there was no assignment of said land, equitable or otherwise, by Stevens & Cureton to plaintiffs, or either of them, or to Cureton, Ardrey & Co., or by them to plaintiffs, or any right or interest in said land, or charge created on the same to pay plaintiffs’ claims, and his Honor should have so held.
7. “Because Kee, tinder the terms of the contract for purchase, having forfeited all right to the land before this action, and having surrendered the same to the assignees, his Honor erred in holding ‘that no resistance could be raised to his demand for titles upon payment of the notes, and that plaintiffs are entitled to demand of him specific performance, and upon his failure so to do, to have the land sold and titles made to purchasers so as to bar and foreclose said assignees, and Stevens ■& Cureton, and those claiming under them.’
8. “Because, if plaintiffs stand in the place of Kee, they are mot entitled to the land, or to have it sold for their claims, unless they pay to these defendants the balance of notes in their hands over and above their claims respectively against Cureton, Ardrey & Co., and his Honor should have so held.
9. “Because the note of $1,200, by Cureton, Ardrey & Co., to B. H. Massey, and by him endorsed to said bank, partly to secure which the Kee note of $2,325 was deposited, as it is alleged, as collateral, bears on its face interest at eight per cent., and is, therefore, usurious, and his Honor should have so found, and allowed no interest or costs to said bank.
10. “Because his Honor, by an order after the decree, to wit, on October 8th, 1880, erred in directing D. A. Williams, clerk, to take possession of and hold the rents of the said land, which plaintiffs are not entitled to, but which belong to these defendants.
*8711. “Because the decrees and orders thereon are contrary to the law and evidence.”
The first four exceptions relate to a question of fact, viz., whether Stevens & Cureton endorsed bona fide the fourth note to Cureton, Ardrey & Co., and they transferred the same for valuable consideration to the bank. It is insisted by the assignees that the bank has no title to the note they hold, for the reason that it was given to Stevens & Cureton, and could not be assigned by one of the firm to secure a debt due by himself or another person or firm; that T. J. Cureton could not assign a note of- Stevens & Cureton to secure a debt due by Cureton, Ardrey & Co. It has been already decided that the plaintiffs, Walker & Trenholm, have title to the notes assigned to them, and judgment has been rendered upon them in their favor against Kee. See opinion in former case of Walker & Trenholm v. Kee, 14 S. C. 142. The same question substantially, which was then decided, is now renewed as to the note transferred to the bank. The steps taken in the assignment to the bank were identical with those which were taken in the assignment to Walker & Trenholm. We do not see any particular in which the testimony in one case differs essentially from that in the other. In both, T. J. Cureton, for the firm of Stevens & Cureton, first assigned to Cureton, Ardrey & Co., and then in their name assigned as collateral security for debts of Cureton, Ardrey & Co. T. J. Cureton was a partner of both firms, and, as such, was the agent of each as to all transactions within the scope of its business. Stevens & Cureton were indebted to Cureton, Ardrey & Co., and it was within the authority of either of the partners of the firm of Stevens & Cureton to assign a note belonging to them to secure that debt. So Cureton, Ardrey & Co. were indebted to the bank, and it was within the scope" of T. J. Cureton’s agency, as partner of that firm, to transfer a note belonging to it as collateral security for that debt, whether such note was originally given to them, or they had acquired it by assignment. Cureton cannot, and does not, object to the transfer, and it seems, from the testimony, that Stevens, the other partner, some time after the transfer, confirmed it, or at least informed the president of the bank that *88“the Kee note was a good collateral.” The bank certainly has possession of the note, and we concur with the Circuit judge that there was no proof of fraud in the tranfers by which it reached the plaintiffs, and that they have title to the same.
The other exceptions make a question of law. ^It is insisted that even if the transfer of the notes to the plaintiffs respectively were valid, and gave them the legal title thereto, that the transfer alone did not operate as an assignment of the land or any charge upon it, the legal title to which is still in the defendants as assignees of Stevens & Cureton, and, consequently, the plaintiffs are' not entitled to have it sold towards payment of the notes.
It is true that Kee executed no mortgage to secure the purchase-money of the land. It is also true that, according to our decided cases, we have not, in this State, what is known technically as “ the vendor’s lien,” as declared and enforced in the English Chancery — that is, a lien upon land sold to secure the purchase-money, whether the vendor has, or has not, executed titles to the vendee. But as to all executory contracts for the sale of land in which the title-deed is not executed, but the vendor gives a bond for titles, we have what is equivalent to the vendor’s lien in the well-recognized equity doctrine of specific performance of contracts for the sale of' land. In reference to the doctrine of specific performance, equity makes a difference in contracts concerning land and those about personalty. As to the latter, specific performance will not generally be decreed, for the reason that no particular or peculiar value is attached to any one thing over another of the same kind, and compensation in damages given by a law court will meet the full merits as well as the full object of the complaint. “ But in contracts respecting a specific messuage or parcel of land, the same considerations do not ordinarily apply. The locality, character, vicinage, soil, easements or accommodations of the land generally, may give it a peculiar and special value in the eyes of a purchaser, * * and, therefore, compensation in damages would not be adequate relief,” &c. Story Eq. § 146.
After some controversy upon the subject, this principle is well established in this State as applying both to the vendor and *89vendee of lands. The leading case upon the subject is that of Gregorie v. Bulow, reported in Richardson’s Equity Cases, 235, which, overruling the case of Bacon v. Roche, previously decided, held that “ a vendor máy sustain a bill against a vendee for the specific performance of a contract for the sale of the land.” In that case Judge O’Neall laid down the principle which has ever since been followed. He said: “ It is conceded that the vendee may come into equity to compel the vendor to perform by executing titles, and that upon this bill the court will decree him to pay or secure the money, according to his contract, before they decree the execution of titles. If the court has the power to relieve one of the parties in the same contract, must it not, of necessity, possess the same power as to the other ? Contracts for the sale of land in equity are regarded as dependent ; the vendor cannot be compelled to part with his land until the vendee pays or secures to be paid the purchase-money, and the vendee cannot be compelled to pay until he receives a good and sufficient title in law,” &c.
Although we do not recognize what is known as “ the vendor’s lien,” we regard the doctrine of specific performance as to executory contracts for land as settled beyond controversy in this State. The contract in this ease was executory, and the vendors, Stevens & Cureton, had the right to require specific performance, and the only question is whether the assignees of the notes have the same right.
Some confusion seems to have arisen from regarding the notes as nothing more than promissory notes, pure and simple. The fact is, they sprung out of the agreement for the sale of the land and are only a part of it. They were executed at the same time with the agreement, and have on their face the statement that they were given “ in part payment for a tract of land,” &c. They must be considered in connection with the agreement, and, thus considered, the papers constitute, both in form and substance, an executory contract for the sale of land. The transfer of these notes, accompanied with the agreement or with knowledge of its existence and contents, carried to those who acquired title to them all the rights which attached to them in the hands of Stevens & Cureton. The transfer was in fact, as it was *90intended to be, not merely an endorsement of the paper as promissory notes, but a sale and transfer of the land trade and all rights incident thereto. The plaintiffs, before they accepted the notes, were informed of the nature of the land trade and the connection of the notes therewith; indeed, the notes, upon their face, gave such information, and the plaintiffs have now the same rights which Stevens & Cureton had originally to ask specific performance. 1 Jones Mort. § 235; Muller v. Wadlington, 5 S. C. 346.
Judge Story says: “ It may also be stated that, in general, where the specific execution of a contract respecting lands will be decreed between the parties, it will be decreed between all persons claiming under them in privity of estate, or of representation, or of title, unless other controlling equities are interposed. If a person purchases lands with knowledge of a prior contract to convey them, he is, as we have seen, affected by all the equities which affected the lands in the hands of the vendor. The lien of the vendor for the purchase-money attaches to them, and such purchaser may be compelled either to pay the purchase-money, or to surrender up the land, or to have it sold for the benefit of the vendor. * * * On the other hand, if the vendee, under such a contract, conveys the same to a third person, the latter, upon paying the purchase-money, may compel the vendor, and any person claiming under him in privity, or as a purchaser with notice, to complete the contract and convey the title to him. The general principle upon which this doctrine proceeds is, that from the time of the contract- for the sale of the land, the vendor as to the land becomes a trustee for the vendee, and the vendee as to the purchase-money a trustee for the vendor, who has a lien upon the land therefor. And every subsequent purchaser from either, with notice, becomes subject to the same equities as the party would from whom he purchased.” Story Eq. §§ 788, 789.
We are not called upon to decide whether A. M. Kee, who entered upon the land under a contract to purchase, and paid part of the purchase-money, would be liable, in an action for specific performance, to account for rents and profits of the lands before judgment. It seems that under the provision in *91the agreement as to forfeiture, or for some other reason, the purchaser admitted his liability to pay rent after a certain time, and gave a rent obligation, which is now in the hands of the clerk, “ to be turned over to the parties who may be entitled by' the judgment of the'court.” Having determined that all the rights of Stevens & Cureton, quoad the notes, were transferred to the respondents and that they have the right to ask specific performance of the agreement as to the land for their payment, it would seem to follow that the rents, an incident of the land, should go with it. In the view we take, Stevens & Cureton have been paid in full for the land, and they have no further interest in it or its products. In the beginning they got the “ Kee lot,” and, as we suppose, the first note when it fell due, and then they transferred, in payment of their debts, the remaining notes. True, their assignees have still the legal title to the land, but they hold it as trustees for the payment of the notes still due, and, surely, they cannot claim the rents by any higher right. The notes having been transferred only as collateral to secure debts to the plaintiffs, respectively, the rights of plaintiffs, as herein determined, must, of course, cease as soon as their debts are paid.
The question of usury was properly abandoned.
The judgment of this court is that the judgment of the Circuit Court be affirmed and the appeal dismissed. |
Simpson, C. J., and Mol ver, A. J., concurred.