
    NARCISSA JENKINS against WM. T. JOHNSTON and another.
    
    Where a decree has been passed by the court upon a formal hearing, dismissing a bill upon its merits, a second bill, alleging facts, which, if established, would entitle the plaintiff to the same measure of relief as the facts set forth in his former bill would entitle him to, will be dismissed upon a plea in bar.
    Appeal from the Court of Equity of Henderson county, Judge Person presiding.
    The plaintiff filed a bill in forma pa/uperis in the Court of Equity of Henderson county, at the Spring Term, 1855, alleging that on 4th of August, 1852, she entered into a written contract with the defendant Johnston, to convey to her a small tract of land at the price of forty dollars — whenever the same should be paid; of which sum, twenty dollars was to be paid on 1st of January, 1853, the remainder on 1st January, 1854 ; that this contract was drawn by the defendant Johnston, and was deceitfully and fraudulently written and read to her; that the bargain was for her to have a good fee simple title, but the writing expressed that she was to have a good quit-clai/m deed; that she is illiterate, and was unable to detect the fraud, and executed the contract, on her part, in ignorance of its contents; that she proceeded to improve the land by building and clearing it; that when the first instalment became due she paid it promptly, but before the second payment be.came due, she discovered the fraud and imposition practiced upon her, and refused to pay the second instalment, unless the defendant Johnston would agree to make her a title in fee simple, which he refused to do ; that shortly afterwards, he sold and conveyed theland to the dofendantRnth, and they commenced an action of ejectment to turn her out of possession; that this was a fraudulent arrangement between the defendants, Johnston and Ruth, to prevent her from paying the second instalment and to cheat her out of the land.
    The prayer of the bill is, that the defendants be compelled to convey the fee simple in the land to her, or in case the Court should be of opinion that she is not thus entitled, that the defendant Johnston be decreed to pay her the money advanced, together with the value of the improvements made by her on the land, with a prayer for general relief.
    The defendants answered, and the cause was duly set down for hearing. Upon the hearing, the Court made this decree:
    “ This cause coming on to be heard upon the bill, answers and replication, and the matter being considered bjr the Court, it is adjudged and decreed that the said bill be dismissed— that no costs be taxed against the plaintiff, and that the clerk’s office have execution against the defendants for their costs.”
    At the Spring Term, 1858, of the Court of Equity of Henderson county, the plaintiff filed this bill against the same defendants, setting out the same facts, except that she subsequently tendered to Johnston the residue of the purchase-money and demanded a title, which he refused to make, and explains that the reason she did not make the tender before she filed her former bill, was, that she had learned that the defendant Johnston did not have a title to the land, and that she was afraid she might lose both the land and her money.
    The prayer of the second bill, which is the one now before the Court, is that the defendants be compelled to convey a good title, and that they be enjoined from proceeding further in the action of ejectment against her.
    The defendants filed a plea, setting out the former suit and all the several matters as above stated, and insisted on the decree therein passed, as a bar to the relief sought in the present bill. The Court below overruled the plea, and ordered the defendants to answer over, from which they appealed to .this Court.
    
      
      Shipp, for the plaintiff.
    
      Merriman, for the defendants.
   Battle, J.

The question raised by the plea of the defendant is, whether the facts stated, and the relief sought, in the present bill, are the same as in the bill which the plaintiff formerly filed against the defendants. The test by which this question may be decided is whether, upon the facts set forth in each bill, the plaintiff would be entitled substantially to the same measure of relief. Tried by this test, we think it will be found that the plea was sufficient, and ought to have been sustained.

The only fact of any consequence, alleged by the plaintiff in her last bill, which was not contained in the first, is that she had tendered the residue of the purchase-money for the land, before the latter bill was filed, whereas, in the former, she stated that she refused to pay it for the reason therein set forth. But notwithstanding this, she might have had, under the alternative prayer of her first bill, a decree for at least the title, which the defendant Johnston had, by his written agreement, bound himself to make upon the payment by her to him, of the amount still due for the purchase-money. In ordinary cases, she might under such, circumstances, have been required to pay costs, but as she had been permitted to sue in forma pauperis, even the payment of costs for having filed her bill before the payment or tender of the whole of the purchase-money, would not have been decreed against her. This is the same relief which the Court might have given her on the last bill, without proof of the fraudulent practices of the defendant Johnston in having a good quit claim deed inserted in the written agreement instead of a good deed of bargain and sale in lee simple. If proof of the fraud alleged would have entitled her to any or further relief, she might have had it just as W’ell under her first, as under her last bill, and it was her own fault not to have dismissed her first bill without prejudice, if she were forced to a hearing before she had prepared her proofs. This, she had a right to do under our practice ; (see Adams’ Eq. 373, as to the English practice, before the order of May, 1815). So, if the Court erred in dismissing her bill, instead of giving her the relief first above indicated, it was her fault not to appeal to the Supreme Court, where the error would have been corrected.

Our opinion is that the order, overruling the defendants’ plea, was erroneous, and must be reversed, and that the bill must be dismissed.

Per Curiam, Decree accordingly.  