
    Townsend v. Alexander.
    
      Chancery.
    
    Where party seeking specific performance of a contract insist upon obtaining unconscionable advantage, court will dismiss Ms bill.
    This case came from before Judges Pease and Burnet, at June Term, 1825, in Warren county.
    
      The facts are these: The defendant contracted to sell to the complainant a house and lot in the town of Springhorough, on the complainant’s paying for the same two hundred and forty dollars in the following manner: Twenty dollars to he paid on a day named ; one hundred dollars to be paid on a subsequent day ; one hundred dollars to be paid by assigning notes on good men ; and in discharge of the residue the complainant was to convoy five unimproved lots in Springborough. The first and second installments, amounting to hundred and twenty dollars, were paid. In discharge of the third installment the complainant offered to assign promissory notes on different individuals to the amount of one hundred dollars. The defendant objected to the sufficiency of a part of the notes, amounting to seventy-one dollars and forty cents, but was willing to receive the residue, amounting to twenty-three dollars and sixty cents. Complainant refused to assign a part without the whole. Defendant then instituted a suit before a justice of the peace, for the whole amount of the third installment. The justice, mistaking the extent of his power, gave judgment that the defendant in the suit before him, should pay *the plaintiff the sum of seventy-one dollars and forty cents, being the amount of notes objected to, and ordered him to assign to the plaintiff the residue of the notes, to which no objection had been made, amounting to twenty-three dollars and sixty cents. The complainant refused to assign the notes, but offered to pay tho seventy-one dollars and forty cents, and to execute a deed for the five lots in Springborough. The prayer of the bill is that the defendant may be decreed to convey the house and lot.
    On the part of the complainant it was contended that the recovery before the justice was a judicial detei-mination of the amount due on the contract. That the order relating to the assignment of the notes was a nullity, and not obligatory; but if otherwise, that the defendant had his remedy. That this court can not overhaul the merits of that judgment, which was rendered in a suit, in which the entire claim of the defendant was exhibited.
   By the Court :

The facts in this case are not disputed. The contract is admitted, and the performance by the complainant as far as it is alleged in the bill. The only point of controversy is whether the defendant shall lose twenty-three dollars and sixty cents, part of the third installment, in consequence of the erroneous opinion of the magistrate, as to the kind of judgment or decree he was authorized to enter. It is evident, and in substance admitted by the complainant, that the third installment of one hundred dollars, was wholly unpaid when suit was commenced before the justice, and that judgment was rendered for a less sum than was due, in consequence of a belief that the justice had power to compel an assignment of a part of the notes. Although it is not in the power of this court to interfere with the judgment of the magistrate, yet it is in their power to require the complainant to do equity, as the only condition on which they will render him their aid. We can not shut our eyes on the fact, that the complainant is seeking an unjust advantage of the defendant, and that if the prayer of his bill should be granted, he will obtain the property at a less sum than he stipulated to pay. He may claim the ^advantage he has gained at law by refusing to assign the notes, or to pay more than the amount of the magistrate’s judgment, but while he does so we will leave him to his remedy at law. Before he has a right to ask equity he must do equity. He must come with clean hands, if he expects to obtain the aid of this court. As the case now stands, we are called on to decree him a title under such circumstances as must forever prevent the defendant from obtaining a part of the consideration. The complainant does not pretend that the sum for which the magistrate directed notes to be assigned has been paid, and he still persists in his refusal to pay it. We have no alternative, therefore, but to dismiss his bill. 
      
      Note bx the Editor. — When chancery will enforce specific performance, see i. 124; ii. 221, 341; iii. 335; v. 204, 425; vi. 383; vii. 84, part 2; viii. 198; x. 215; xii. 355; xvii. 27. "When not, i. 14, 429; ii. 383; vi. 528; vii. 73, part 2, 90, part 2; viii. 198; ix. 189; x. 305, 382; xi. 109; xii. 1, 193; xiii, 552'; xiv. 547.
     