
    Hammond vs Sappington.
    ü R fin* f\alujiMe eon'Wriiii<>n, eonúictnl \viih, :nul t-oivi'yto.I S*b> uetes and bounds, flOQ a?i*es, p»i t pf‘ a t?act of lamí ‘*$itaaliN lyimy‘and hemp', in thestate of Kentvdcy, in the county of 1}áurf>on9 ant on the main bunch of Licking” A praiit of the hid ¿esoribed it as ‘My'mj? and hi ng i>i trie $ountyof Sonroon, on \hc main branch of Licking, in h« ■t:ueot Vv.;ginb.v Iftev the grantof he land, a nw iate, l>v the na.np +‘ Kentucky, vis !>rmcd from Vr-Inta, and unity oi'Bouzbai *ean»f ¡i part tf 'entucky, whith jumy was afte*mls dividet» ■cl two new couj,’stTi’cled. railed trke and llfason unties, aiul’tl’u »rt row lies 'iu be two eoun- !<« J S filed ius j in chancery to, le the contract hu. <K find the \'i(UTMt>on mo jtvpnid to hirp, \ Decreed, that Sibill he dis-1^, i J i • ; •
    Appear from the Court of Chancery, The bill of the i complainant, (now appellee,) filed on the 3d of September ¡1802, slated, that in the year 1796. he purchased of the J defendant, (now appellant,) a milt-seat, in Jlnne-firundel i county, gt and for ^160 money paid dpwn at the time, >,aml obtained possession; and not doubting but that a clear • title could be given to him by the defendant, he improved ¡the pyupeyty, and expended in improvements ¿£120. That ; finding afterwards flint the defendant had no right to the (land, he applied to him to repay the money expended, and f'to refund that which lie had received; which the defendant • refused to do; but again practising another deception and imposition, he agreed to sell and convey to the complainant, in consideration of the premises, and the money paid and expended for and on the mill-scat, 800 acres of land situate in Bourbon county, in the state of Kentucky, and accordingly executed a deed therefor, dated the 10th of February 1796, in which the land is described “as all that part of a tract or parcel of land, contained within the metes and bounds of a tract of (and, containing in the whole 6134 ■acres, beginning for the said payt at the beginning trees of the. who,[e tract, and running” <$'-c, describing the part by metes and bounds, “situate, lying and being, in the state of Kentucky, in the county of Bourbon, and on the main branch of Tfickiyg, containing 800 acres,” &c- That the complainant made preparation, and. did remove to the state of Kentucky, and went in seayeh of the land in Rqurbon county, and according to the description .contained in the deed, but to his great surprise no such land was there to. be found, to which the complainant had any kind ot claim or title; that he caused the records to be examined, and the ¡resyyt w^s, thiit the complainant oy/necj iiy ¡and in that county. Thai he called on the defendant, and informed him of the premises, and requested him to refund the sum of 42280, the consideration of the purchase of the land, and to make him Compensation for the loss of time, &c. hut the defendant refused to do either. Prayer, that the money be decreed to he repaid, and for further relief, &.C. The aasiccr of the defendant denied that he hi.d no title to the mitt-seat. Thai at the instance and request of the complainant, he consented to give him his right in 800 acres of bind in Kentucky, for the mill -seat and improvements, the complainant alleging that the lands the defendant was to give him his right in, were good in quality, and that •/. I), his brother-in-law then in Kantuky knew the lands, and had informed him of their quality. The defendant showed Ids title in the lands to the complainant, being patented to Richard Ridgely, esquire, on the 23d of November 1790, and conveyed to the defendant by deed dated the 2d of November 1793, and duly recorded, &c. That the patent for the land was granted before the adoption of Kentucky as a state in the union; and when the warrants were granted lor the land, for which the patent issued, the land lay in Virginia, and in Bourbon county. That since that time Kentucky has become a state, and the county of Bourbon has been divided, and two new counties have been erected, called Clarks and Mason counties, and that the land lays in those counties. lie denies all fraud, &c. The grant for the land, as exhibited, is dated the Sd of November 1790, and was issued by the governor of the state, of Virginia to Richard Ridgely, and the land is therein described to be a tract or parcel’ of land containing 6134, acres, lying and being in the county of Bourbon, on the main branch of Licking, &c. Commissions issued and testimony was taken thereunder.
    Iía.vso?t, Chancellor, (June term 1805.) It is evident that the defendant was satisfied the first contract made with the complainant ought by him, as an honest (nan, to be rescinded; and that the complainant had sustained a grievous disappointment. This is an important consideration in the cause. Well then, to do justice to the complainant, if was incumbent on ilia defendant to refund the purchase money, and price of the improvements, with intei'esC But instead of doing this, he proposes to convey a large tract of land in Bourbon county, in Kentucky.- The . complainant accepts the offer, but is again disappointed. It is clear that the defendant’s land,, if any he has at the place or near the place, &c. does not agree with the description. It is not in Bourbon county¡ Says the counsel there are two descriptions, and if one is answered,, it is sufficient. This is indeed the rule in some cases. It isá rule in favour of grantees. Butin a case like the present, that is to'say, with respect to bargainees, the rule is reversed. What! If a man agrees to procure roe a horse 17 hands high, and of a bright bay colour, will it be sufficient for him to bring me a horse of a bright bay colour only 15 hands high? It is at my option whether I will take the horse or not.
    The contract appears to be for 800' acres of land in Bourbon county, on the main branch of Licking. Suppose then the defendant to have land on Licking but not in Bourbon county, is it conceivable that he complies with bis contract by conveying this land? Ah! but Bourbon county once contained that land, but on a division of the. county, the land constitutes part of Blasón county. It is in vain to argue this way. Is it necessary to mention the first rules of equity with respect to- contracts forbidding all trick, finesse or deception,, or even misunderstanding? In short, it appears to the chancellor, that the complainant; was in a manner, or might well suppose himself to be, under the necessity of making a contract for land, which, independently of the contract for the mills eat, he would, neither have offered to purchase,' nor have purchased, if offered; that neither of the parties were acquainted with the thing contracted for, and that the complainant has twice been deceived. In saying this the chancellor means no imputation on the defendant, who certainly acted honourably with respect to the first contract, and who probably nas withstood the claim of the complainant, because he has himself been disappointed, &c. To sustain the fair character he has enjoyed during a long life, he can do no better than perform the following decree, without delay — Decreed, that the contract between the complainant and defendant for the sale and purchase of 800 acres of land in the state of Kentucky, as stated in the bill and answer, be vacated and annulled, and that the deed to the complainant from the defandaut, executed ¡a consequence thereof, dat*5il the t Oth of February 1796, and filed in this cause, be vacated and annulled, so far as the power of this court ex- „ 1 tsmjs, and that (he complainant, on the defendaiit’s de* mand, shall reconvey the said land to the defendant, ia the. same, manner as the defendant conveyed to him. But this may not be done Until the. defendant shall bring in or pay the money as herein after directed. That the, defendant bring info this court, to be paid, or that he pay, to the “complainant, the sum of ¿6280. with interest from the 10th of February 1796; or that on the 10th of February next* he bring into this court to be paid, or that ho. pav, to the complainant, the sum of .-6438 8 6, that being the amount of the. money paid bv the. complainant to the defendant, ar.d of the improvements by him made on the mill-seaf, &c. with in forest, &c. That the sum last mentioned, if not paid on the last mentioned dav, or if the principal and interest bo nor before discharged, shall carry interest from the last mentioned day. But costs aro not to be. allowed the, complainant. From which decree the defendant appealed to this court,
    Tho cause was argued before Polk, Buchacas, Nr* Cholsok, and Eakle, J,
    
      Shaoff, for the Appellant.
    The land was sold as lying-in Bourbon county, in the state of Kentucky, and is de» scribed by metes and bounds. The fact is. that the land, at the time it wa« granted, was situate in Bourbon county in the state of Virginia. At the time it was sold a new state had been erected by the name of Kentucky, and from the county of Bourbon two counties had been taken, called Clarke and Mason counties. The defendant’s answer alone, supplies the, proof required by the bill. That taken •under the, commissions does not make out the plaintiff's case. Yv hen speaking of land laying upon the waters of any great river, it does not mean necessarily that the water flowed by the laud. The meaning is, that it was at no great distance, or it was the next contiguous water to it The decree of the chancellor vacates a deed for land in the slate of Kentucky. This he had no authority to do. The dec,roe is also incorrect in another particular — it should have, been, that upon a reconveyance of the land by the complainant to the defendant, then the latter should pay» Jtc. But the. chancellor lias annulled the deed, which he could not do, and If the money is paid, the defendant los&s both the money and the land. But independently of this objection, the facts stated in the bill have not been proved by the testimony taken in the case. There has been no evidehce whether the land lay in Kentucky or hot. Nor is there any evidence, that the complainant called upon, or gave notice to the defendant that the land was not in Kentucky. But after laying by six years, he now wishes for the money to be refunded, He may HaVe sold the land, or it may have been sold for the taxes due thereon. A stale, forgotten claim, is discountenanced by the court of chancery. The point of time, when a claim is considered as stale, is affixed to the nature of the transaction. Here the land, in a remote state, was abandoned for six years, and most likely it has been sold to pay taxes. There is no evidence that the land does not Jie as stated in the deed. As to where it does lie, is susceptible of better proof than that produced. The only proof is in the defendant’s answer, and that must be taken as proof, and being so, there is an end of the case. The land exists according to its natural description. as described in the deed; and admitting the whole allegation of the bill of complaint, the contract was a valid one. Tt is not denied but that the defendant had a right to the land; but it is alleged that it does not lie in Bourbon county. This may be assimilated to á story told of an old lady in South Carolina.who always supposed she resided in a particular county, but upon running the county lines it was discovered that her residence was in a different county, at which circumstance she was greatly concerned, for she observed that she had always heard that the county in which her residence was held to be, was a very unhealthy County. The chancellor, by his decree, has said, that there is a difference between grantees and bargainees. It is difficult to ascertain the distinction. A deed may be vacated on the ground of fraud, &c. but a mistake in a contract does not vacate it. Relief may be had without its being vacated. If A sells 100 acres of land, and it holds out to contain only* 50 acres, would the court of chancery Vacate the contract? Surely not; but if Would give damages for the deficiency of land. Here there was no fraud alleged. It may be considered as a mistake as to the name' of the county in which the land lay; and if the land was -of less’value in one const
      iy than in another, could not relief be given without vaeating the contract? There is no dispute as to the quality o * i J or quantity of land. If the complainant had produced ... . ‘ . . r proof that the land being considered as lying in Bourbon, county, was the only inducement to the purchase, then it would lay a foundation for vacating the contract; but nothing of the kind is alleged, or appears in proof. The land is described as laying on the waters of Licking; and the proof is, that it does lie there. As to the land’s lying in this or that county was no inducement to the purchaser, but if it was not in value equal to that intended to be sold, the chancellor ought to have compensated in damages, and not vacated the contract. Before the complainant asked for equity, he ought to have done equity. He should have re-conveyed the land to the defendant, according to the laws of Kentucky. But he claims both the land and money, and the chancellor has so decreed as to give him both land and money. There is some evidence taken as to the value of the laud r,car to the court-house, and land high upon Licking. Better proof than that which was, taken could have been had by sending a commission to the very place.
    
      Johnson, (Attorney-General,) for the Appellee.
    The grant for the land describes it as lying on, and crossing LicMng, in Bourbon county, in the state of Virginia, and it is dated the 23d of November 1 7S0. The survey was before the division of the state, and the grant was after the division. The act erectiug Mason county was on the 5th of November 1788, ami the act erecting Clarke county was on the Dth of December 1792. The land when if was granted could not lie in the county of Bombay, from the description given of it in the grant, and that given of the county. Suppose A buys land lying on the Potomac, in Frederick county, and it turns out that it lies in Mlegany county on the Potomac, ivyuld he be bound by his contract and be compelled to take the land? Suppose indeed it lay in Saint-Mary’s on the Potomac, would itbe considered as an immaterial circumstance provided it lay upon the Potomac, a long extended river?. Licking, or any other river, is not so good a description asa county. When this contract was made the defendant had no land on Licking, in the county of Bourbon. The land was represented to be $9 mites from Boyrbon court-ijouse, and, — miles from 
      Lexington. The evidence of Sewell is, that the defendant ^aid that the complainant “will not find a Johnny. Snowden in me,’’ meaning, that if he does not find the land, he would not recover of him as he had of Snowden» There is proof that the defendant refunded to AIdridge, who had purchased part of the same tract. Where there is. a trivial circumstance, the chancellor does not annul the contract, but where there is a material one which goes to. the essence, then the contract is annulled. The defendant is bound to show that the circumstance is not material. There is no proof at all on the part of the defendant. He ought to have showed that his deed passed the legal estate, according to the laws of the country, before he complains of the deed’s being annulled. This court can give that decree which the chancellor ought to have given, if his is erroneous. Ilow could the complainant prove that the land was not there? It was proving a negative. The defendant should have proved that it was there. But it has been said that the deed answers the natural description of the land. It was more material that the.land should lie in Bourbon county, than on Licking, a river of perhaps 100 miles in length. On the part of the complainant it is contended, that both descriptions should be complied with, so as to bind him to the contract. It has been said, that under the decree the defendant loses his land and money. But suppose the decree is reversed, and it turns out that the land is swallowed up by elder surveys, then the complainant loses the land and the m mey.
    
      ShaaJJ. in reply.
    The onus, prohandi is on the complainant; he avers a fact which, if denied, he is compelled tp prove before he can succeed. The attorney-general has said, that one description failing, the defendant is bound to show it is not a material one, which goes to the essence of the contract. This, is not so, If the complainant has sustained damage, hp must prqve it. The proof is not made out on the part of the complainant, and he is obliged to resort to the defendant’s answer, and if he does, the answer must be taken all together. The law of Virginia has been resorted to for the purpose of showing that the laud does ppt lie in Bourbon county. It is not possible to say by that law whether or not the land lies ip that county, It is not denied, that if there is as; nmnafciial cirfcumstance which affects the contract, that redress ought to be had in damages. As to when Kentucky was admitted into the union, See 1 Vol. Lmvs of U. S. 55)4. The land having been once in Bourbon county, is sufficient. Dorsey’s Lessee vs. Hamnond, 1 Harr. & Johns. 193. Suppose a deed for a bouse in Llogcr’siown, in .Frederick county, would it be a good deed? The house in Hager’s-town must have been the essence oí the contract. .A s ro Sewell’s testimony that the defendant said the complainant would not find a Johnny Snowden in him, the meaning is, that as the complainant had alleged that Snowden had cheated him, (which was not true,) the complainant would noi be cheated by him, as the land was to be found.
    
      Llidgalu, also in reply.
    The decree of the chancellor is (Erroneous on two grounds — f, The court of chancery had not jurisdiction, and the decree cannot be enforced. % If the court of chancery bad jurisdiction for compelling a specific performance of the contract, yet there is no proof in tl-.e case that there was fraud, mistake, &c. upon which to give relief.
    
      First position. A subsequent division of the state, and fqnning a new one, and the laying off new counties, did not alter the contract, as the laud could not be affected by any such proceeding. The decree cannot be enforced in this court. The remedy is to be against the person, and. not against the thing. Suppose the appellant complies witlf the decree, by paying the money, what process can he have to compel the appellee to comply? Suppose the appellee bad paid the appellant the money, and the latter had refused to convey the land, could the court of chancery compel a specific performance of the contract? The court had no power to compel a deed. It might decree the money to be refunded. If the chancellor had decreed a deed, could the decree operate in Kentucky? It certainly could not. It is evident that the chancellor had no jurisdiction to enable him to make this decree; there being no mutuality as it affected the parties, lie doubted his own power, for he says “so far as the power of this court extends.” This-shows that lie did not think he had jurisdiction to vacate a deed for land in another state. The appellee was guilty of hchqs, and. is therefor? pot to. be beaefitted by it. IIamay have conveyed the land away, or it may have beers sold to pay the taxes on it.
    
      Second position. Admitting the court had competent jurisdiction to give the relief prayed, yet there is not sufficient evidence upon which the relief could be grounded» The answer denies the material facts relied on by the bill. The reason for rescinding the first contract was not for the cause stated by the chancellor. It was fully proved, that no dam could be made so as to prevent the water from ^overflowing on the neighbouring lands. The first contract was fair and honest; and the rescinding it was perfectly agreeable to both parties, §nd was done at the instance of the appellee, who instead of wishing the money to be refunded, was desirous to take Kentucky land. There is no proof that the appellee, vvhep he went to Kentucky, made the necessary inquiry as to where the land lay, It the land lay in this state, it was not such a contract as ought to be anirulled u non the mere ground of its not lying in the conn ly, if it conformed to the other descriptions.
   DECREE REVERSED,  