
    Ellen Wilcox v. Lucius Balger.
    
      A general decree in, a suit by purchaser of land asking specific performance, can not be avoided by investigating the grounds upon which it was decided, in a new bill in relation to the same matter.
    Tras cause was adjourned from the county of Ashtabula. The bill states that in September, 1820, defendant, in consideration of eight hundred and forty dollars then paid, and three hundred and forty dollars to be paid him by one J. Bidwell, one-half in March, 1823, and one-half in March, 1825, agreed (in writing under seal) to sell to said Bidwell ninety-two acres and eighty rods of land in Kingsville, in said county (particularly described) ; that by said agreement, Balger was to make Bidwell a decree of said land on March 10, 1821, and to permit Bidwell to take immediate possession of the premises, and exercise all acts of ownership (the written agreement exhibited) ; that Bidwell did take immediate possession of the land, made valuable improvements, and kept possession until May, 1825; that Balger has never made deed to Bidwell; that Balger was unable to make deed until four or five years after March, 1825; that on May 5, 1825, Bidwell assigned to complainant all his interest in said land and said contract for a valuable consideration, whereupon the complainant took possession of the land, made valuable improvements, and kept possession of the same until the term of the common pleas of said county, for 1827, when he was ejected by suit of Balger; that the complainant has been prevented from making full payment for said land, by misrepresentations and fraudulent practices of Balger; that since the complainant was so ejected, Balger has been in possession, received the rents and profits of the value of 407] seventy-five dollars per year; *has taken therefrom fruit trees of the value of fifty dollars, and cord wood of the value of fifty-nine dollars; that on September 25, 1832, complainant made a tender of the balance of the purchase money due on said contract, after deducting for rents, profits, cord wood, and fruit trees, and demanded deed; that complaint has offered, and is now ready to pay any balance of money due for said land. The bill prays an account of the balance due on the contract, conveyance, and general relief.
    Abstract of the plea: That complainant filed his former bill in the common pleas, against the defendant, in 1823, setting forth that in the year 1820, he made his bond to Truman Bidwell for one thousand dollars, conditioned that if the said Bidwell should pay to Balger one hundred and seventy dollars in two years, and like sum in four years from date, that Balger should convey to said Bidwell the land in said bond described. And said former bill alleged that Bidwell entered into possession of the land, and made improvements, and kept possession until 1823, when Bidwell, for valuable consideration, transferred to complainant all his interest in the land and bond. That complainant went into possession, kept possession, and made valuable improvements; further alleged that complainant had paid to Balger full amount due for said land, which was accepted by Balger in full satisfaction. That complainant had well hoped, etc., that Balger had refused to convey the land, etc., and the prayer of said former bill was that Balger should make answer, and be decreed to convey, and for .general relief.
    The defendant, at November term, for 1823, filed his answer to ■said former bill, confessing said bond and contract as charged in said bill. That a conveyance to Bidwell was to have been made in March, 1823, and alleging that there were two notes given for the balance of the purchase money for the land. Admitting that •defendant had not conveyed, but averring that at the date of said note, Bidwell gave defendant a bond for payment of the balance of purchase money, which was agreed to be secured by mortgage deed of fifty acres of land. That Bidwell, at the time of making ■said contract for said land, knew that Balger was to obtain a title from one Corwin before conveyance could be made to him. That Balger got title, and was able to convey to Bidwell in 1823. Said answer admitted the assignment of Bidwell’s interest to complainant; that Bidwell had possession, but denied making improvements, and averred non-payment of the balance of the purchase money. '-¡“-That immediately after Balger obtained title he [408 offered to convey the land to Bidwell; that Bidwell declined receiving deed, saying he had assigned his interest to E. Wilcox; that defendant offered to complainant to convey said land, and requested him to give mortgage to secure payment of purchase money, but complainant refused; and that défendant was and still is ready to fulfill his agreement, and would produce here, in court, a deed of the land to be disposed of at discretion of the court. Denial of fraud, combination, etc.
    And the plea avers, that complainant filed his replication to said answer, and that at the April term said former cause was heard and a decree rendered in favor of defendant. That appeal was, by complainant, taken to the Supreme Court. That at the August term of this court, 1825, the former cause was heard on bill, answer and replication, proofs and exhibits, and submitted to the court, and a decree rendered upon the merits.. That it was adjudged and decreed that the equity was with the defendant, and that the bill be dismissed at the cost of the complainant, as appears by plea; avers that the land and contract described and set forth is the same as those in former bilí, and that the whole subject matter of this suit is the same as that of former.
    Complainant demurs: For cause of demurrer says, that from the showing of said plea the only matter of issue upon the former suit was payment of the balance of the purchase money. That this being found against complainant, as appears by said record, this court could render no other decree than that of dismissal. The complainant, not having offered, in his bill, to pay the same, and that from the whole proceedings in said former suit, as set forth in said plea, said complainant ought not to be barred of his present suit.
    -, for complainant.
    Hitchcock, for defendant.
   Lane, J.,

delivered the opinion of the court:

The complainant demurs to this plea because it appears, from the decree, that it was dismissed for non-payment of the purchase money, and that the contract remains unaffected by the decree. 409] *We think the dismissal is a bar to future proceedings. The rights of the parties were before the court, and all were investigated, and the plaintiff must abide by the shape in which he chose to submit them. Like a bill to redeem a mortgage, if it be dismissed without reservation for non-payment of the money within the time limited, it is a final decree, and works a foreclosure because it concludes all rights. 4 Johns. Ch. 140.  