
    
      Leroy Secrest et al. v. William McKenna et al.
    
    Where defendant entered into a bond conditioned to convey a house and lot to complainant when he paid the purchase money, and the money was paid, but in the meantime defendant had incurred liabilities for complainant, as surety for the discharge of his duties as sheriff, the Court refused to decree a specific performance of the contract, and allowed the defendant to avail himself of his legal title to indemnify or reimburse himself for the sums due or paid by him as surety of complainant. Vide Walling v. Aiken, 1 M’Mul. Eq. 1.
    The power to enforce the specific execution of contracts, is now universally conceded to this Court, as belonging to its extraordinary jurisdiction, founded entirely on the equity which a party has to have a literal fulfilment of his contract, which could not be obtained at law; but it is a settled principle of the Court not to grant merely equitable relief, without requiring of the party asking it, to do equity himself.
    This case came tip on appeal from an order made by his Honor Chancellor Johnson, at Lancaster, June, 1846. The facts necessary to the understanding of the issue made, are very fully set forth in the following original decree, pronounced by the same Chancellor, at Lancaster, July, 1843.
    Johnson. Ch, The complainants state in their bill, that in 1833 the complainant, Leroy Secrest, contracted with the defendant to purchase from him a house and lot in the village of Lancaster, at the price of $3930, for which he gave him his note, payable in th i ee annual instalments, with interest from the date, and that defendant entered into bond, in the' penalty of $4000, conditioned that he would make titles to the complainant, Leroy Secrest, for the same, when the money should be paid; that the said Secrest afterwards confessed judgment to defendant for the amount of the note, and in November, 1833, an execution was served out and lodged in the Sheriff’s office of the district. That in pursuance of the contract of purchase, the said Leroy Secrest took possession of the property, and made improvements thereon at considerable expense. That he has fully paid and satisfied the whole sum contracted to be paid for the purchase money, and that the defendant has notwithstanding refused to make him titles for property. The prayer of the bill is, that defendant may decreed to make him titles to the house and lot, accord-to the condition of the bond. Such is the case made in bill, in behalf of complainant, Leroy Secrest, against, the defendant. When I come to consider of the answer, it will seen that the defendant refused to make the titles, on the ground that he was one of the sureties to the bond of the said Leroy Secrest, for the faithful discharge of the duties of the office of Sheriff of Lancaster District, to which he had been elected, and that he had broken the condition-of the bond, in failing to pay over monies collected by him, for which defendant is responsible. And that the said Leroy Secrest is insolvent. But before entering on this, it may be proper to notice the case made by the hill in behalf of the other complainants, although the connexion between them is not readily perceived, and it certainly renders the whole case complex and incongruous. They state that in 1842, with a view to relieve the complainant, Leroy Secrest; from his pecuniary embarrassments, they endorsed a note for him, in the amount of $2000, which was discounted in bank, and on which he received the money. That to indemnify them against any loss which they might possibly sustain on that account, he gave them a promissory note, and a few days after (6th Jan. 1842) he made a confession, on which judgment was entered up, and execution lodged the same day. That within six months before the filing of the bill, the whole of Leroy Se-crest’s property had been sold by the Sheriff, under another execution against him, and that after satisfying all the other judgments^ and executions against him, the sum of $700 75 only remained to be applied to the satisfaction of their judgment, the balance remaining unpaid, and that the said Leroy Secrest has become insolvent. They are satisfied, if the Court should decree that defendant should convey the house and lot to the said Leroy Secrest, as then the lien of their judgment would attach on the property. But if the Court should not so decree, they pray that the property may be sold, and the proceeds applied to the satisfaction of the balance due on their judgment. The defendant admits, in his answer, that he entered into the contract to sell to plaintiff, Leroy Se-crest, the house and lot, in the manner aud upon the terms and conditions set out in the bill, and that he has received the whole of the purchase money, partly in voluntary payments made by him, and the balance out of the proceeds of the sales of his property by the Sheriff, referred to in the bill, his judgment being the oldest, and that he has refused to make titles to the house and lot, and justifies himself, under the circumstances hereinafter stated. The defendant and Andrew Me Ilwain, Hiram Twitty, J. Ingraham, and A. D. Johnston ,have also filed their bill in this Court against the complainant Leroy Secrest, which came on and was heard at tíre same time with this, both the bills and the answers. They state in that bill that Leroy Secrest was elected Sheriff of Lancaster District in January, 1837, and that on the 20th of the same month they joined him in a bond as sureties for .the faithful discharge of the duties of his office. That during his continuance in ■ office, which terminated in 1841, he received, in his official capacity, large sums of money for divers suitors in the courts, which he has neglected to pay to the persons entitled, and has become insolvent and wholly unable to pay, in consequence whereof they, as sureties, are bound to pay the same. Defendant, McKenna, professes his entire willingness to convey the house to Leroy Secrest, when his liabilities as surety are removed, or if he shall be sufficiently indemnified against them. The object of that bill was to bring in all the official creditors of Leroy Secrest to prove their demands, for the purpose of saving the expenses of a multiplicity of suits, and the necessary order was made for that purpose. In his answer to that bill, Leroy Secrest substantially admits all the material allegations ; his admission that he is in default in not paying over monies collected by him, is qualified, however, by the assertion that the amount is inconsiderable, without stating what it is, but believes it to be less than $1000, and avers that he has sufficient assets to pay the whole amount of the official demands against him. The bills and answers in both cases contain much irrelevant and some impertinent matter, detailing, with great minuteness, the time, place, and circumstances of every thing that is stated, whether pertinent or not, but when divested of these, the plain case made and acknowledged on all hands is this :— defendant, McKenna, entered into a bond, conditioned to convey the house and lot mentioned in the pleadings, to complainant, Leroy Secrest, when he paid the purchase money. The money has been paid, but in the meantime defendant, McKenna, has incurred liabilities for Secrest, as surety for the discharge of his duties as Sheriff. Secrest, if not wholly insolvent, is in very doubtful circumstances, and it is insisted on the part of the defendant that he is in equity entitled to a lien on the house and lot, to reimburse him any monies he may be bound to pay on account of his liability. The complainant, Leroy Secrest, had a remedy against the defendant m an action at law, on the bond conditioned to make titles, but for the purpose of obtaining more perfect relief, he has come into this Court to obtain a specific execution of the contract. The exercise of this power is now universally 'conceded to this Court, as belonging to its extraordinary jurisdiction, founded entirely on the equity which a party has to have a literal fulfilment of his contract, which could not be obtained at law. Now, it is a settled principle of the Court not to grant merely equitable relief, without requiring of the party asking it to do equity himself, to do what is morally right, of which many examples, arising under this branch of the jurisdiction might be given. I will only, however, refer to the case of Walling v. Aiken, I McMullan’s Eq. Rep., where the doctrine is well considered in direct application to the question here, and is an authority binding on this Court. In that case there was a contract to convey lands, on the payment of a specified sum of money on a day certain, and on the day the money was tendered, but the party bound refused to make the conveyance, unless the party claiming would also pay certain other sums which he owed ; and this Court refused to decree a specific performance, but retained the bill, and directed an account to ascertain what was the whole sum due, in order that provision might be made for its payment out of the sales of the land, if that should become
    Here, it is true, there is no present legal debt, but defendant has incurred a liability for complainant, Leroy Secrest, whether large or small is immaterial, and the great probability is, that he will have the money to pay, and his equity to be protected against it is as clear as if he had actually paid it. The bill will be retained until the account ordered on the bill filed by defendant/ McKenna, and others, against Leroy Secrest and creditors, before referred to, is taken; when that is done the Court will be in possession of all the facts necessary to enable it to do ample justice between the real parties. I have not been able to see how the other complainants would be benefitted by any order which the Court has the authority to make in the cause. If, on the coming in of the report on the accounts, it should appear that defendant is under no liability on account of Leroy Secrest, and that he is not otherwise indebted to him, a specific execution of the contract to convey the house and lot will, of course, be decreed, and the lien of their judgment will attach. If they come as creditors of Leroy Secrest, praying that they may be paid out of any funds that may come under the control of the Court, the absurdity of it will be seen, when it is recollecte'd that every other creditor has the same right, and that if a party have occasion to come into this Court to establish a claim to property, or to recover money, the filing of his bill would, be a signal to all his creditors to come in for a share of the spoils.
    No question has, however, been made with regard to them, and I shall let the matter rest in the condition in which I find it.
    
      Gb'ounds of Appeal.
    
    1. Because the written contract of purchase between the complainant, Leroy Secrest, and the defendant, William Mc-Kenna, does not constitute a mortgage or security at law, neither can it be set up as such in equity, nor was it originally intended as a security for any future liability that defendant might incur on account of complainant; and even supposing it to be regarded in the nature of a mortgage, and tíre complainant and defendant as mortgagor and mortgagee, all that the mortgagee would be entitled to is his money, which he has already got, in full, and the mortgage thereby virtually satisfied; and it differs in this respect from the case of Walling vs. Aiken, as well as in another, viz: that there was no indebtedness or ascertained liability incurred by defendant on account of complainant, at the time of the last instalment of the purchase money, nor was there any objection urged by him that he would not receive it, unless complainant would also pay all liabilities that he migbit in future incur on his account: hence the Court should have decreed a specific performance.
    2. Because the complainants, the judgment creditors of Leroy Secrest, in the event of a specific performance not being decreed to him, are first entitled to be paid out of the proceeds of sale of the house and lot mentioned in the pleadings, in preference to other creditors; or, in any event, they are equally entitled to be paid rateably with defendant, McKenna, and all other the official creditors of the said Leroy Se-crest. Defendant, McKenna, on account of his having the legal title vested in him, is not more equitably entitled to the protection of this Court, because of his liabilities, than the other creditors of the said Leroy Secrest, and the Court should have decreed that the complainants should be first paid out the proceeds of sale of said house and lot, or, at any rate, that they should be paid in rateable proportions with defendant, McKenna, and the other official creditors of Leroy Secrest.
    J. Williams, for the motion.
    Clinton, contra.
    
    
      The case was heard on this appeal, December, 1844, and the circuit decree held to answer the questions made in all respects until the coming in of the Commissioner’s Report.— The Appeal Court making an additional order for the sale of the premises described in the pleadings. On the 21st November, 1845, His Honor, Ch. Dunkin, made an order requiring all the private judgment creditors to establish their demands before the Commissioner of Lancaster District; in accordance with which the Commissioner reported them in the order of their priority.
    On the 25th June, 1846, His Honor, Ch. Johnson, ordered that it be referred to the Commissioner to enquire and report the amount of the sales of the house and lot referred to; also, the amount now recovered against McKenna, on account of his liability as one of the sureties of Secrest, late Sheriff of Lancaster District, as well as the amounts paid by the said McKenna.
    The Commissioner made the following Report.
    “The defendant, William McKenna, as one of the securities of complainant, L. Secrest, former Sheriff, has paid, on recoveries against him and his co-securities, one thousand five hundred and thirteen dollars 47 cts.. of which sum sixty seven dollars, 08 cents, is the costs on those recoveries. The recoveries against the securities was at June Term, 1844, $1590 48 cents, besides interest and costs. At June Term 1845, $1427 17 cents, besides interest and costs. At June Term 1846, $848 70 cents, besides interest and costs. These recoveries are against the defendant McKenna, together with A. Mcllwain, H. Twitt.y, A. D. Johnson and John Ingraham. The sales of the house and lots is one thousand and fifty two dollars. Andrew Mcllwain has paid on those above $1691. The sum of $39 83 cents applied from sales of John Ingraham’s property, and probably $86 more may be applied from sales of Ingraham’s property..
    JAMES H. WITHERSPOON, c. e. l. d.
    25 June, 1846.
    The testimony was also reported.
    On motion of Williams, complainant’s Solicitor, His Honor Ch. Johnson ordered that the report of the Commissioner in this case, as to who are the private judgment creditors of Leroy Secrest, be confirmed.
    And on motion of Clinton, Solicitor for defendant Mc-Kenna, he ordered that the last report of the Commissioner in the above case be also confirmed.
    He further ordered, that the Commissioner do pay over to defendant McKenna, the reported amount of the sales of the house and lot, viz : one thousand and fifty-two dollars, deducting the amount of commissions on sales, and the tax costs of Commissioner.
    Complainants, James F. Secrest, Thomas W. Huey, James P. Crocket, and Minor Clinton, appealed from the above last mentioned order made by his Honor Chancellor David 'Johnson, ordering that the Commissioner do pay over to defendant McKenna, the reported amount of the sales of the house and lots, viz: one thousand and fifty-two dollars, deducting the amount of commissions on sales and the tax costs of Commissioner, upon the following ground :
    Because the Chancellor should have ordered that the proceeds of sales of the house .and lots be paid over by the Commissioner to complainants, and the other private judgment creditors of Leroy Secrest, whose claims have been established, according to their priority of lien.
    J. Williams, for the motion.
    Clinton, contra.
    
   Dunkin, Ch.

delivered the opinion of the Court.

Since the original decree of Chancellor Johnson was pronounced, the house and lot have been sold, by the Commissioner, under the decree of this Court, for $1052; and according to the report of the Commissioner, made in June 1846, the defendant, Wm. McKenna, has already paid, under recoveries had against him, as surety of Sheriff Secrest, $>1513 47.— The only question is, whether this Court shall, in the exer cise of its discretionary power, decree a specific performance of the contract, and divest McKenna of his legal title, or permit him to avail himself of his legal title, in order to indemnify or reimburse himself, for the sums thus paid as surety of Secrest. A majority of the Court concur in the judgment of the presiding Chancellor, that the case cannot, in principle, be distinguished from Aiken ads. Walling, and the appeal is accordingly dismissed.

Caldwell, Ch. concurred.

Johnston, Ch. absent from indisposition.

Appeal dismissed.  