
    Walker’s Executors against Ogden.
    Chancery.
    
      May 6.
    History of tlie case,
    [Messrs. Mills and Brovni for Plaintiffs : Mr. Talbot and Mr. Monroe for Defendant.]
    From the Circuit Court for Bourbon County.
   Chief Justice Robertson

delivered the Opinion of the Court.

Br the will of John Walker, who died in 1800, his executors were authorized (according to a proper construetion of the whole will,) to lease, or sell, a tract of land, of one hundred and fifty acres, on which he resided.

This tract he had bought from Alexander Montgomery, whose bond for a title he held ; but who had, without his (the testator’s) knowledge, and during his last illness, made to him a conveyance.

Seventy three pounds of the consideration remained clue to Montgomery, at, the death of Walker.

On tli e 15th of November, 1800, the executor and executrix sold the land, by executory contract, to Master-.son Ogden, for the price which Walker had agreed to pay Montgomery, that is, one hundred and eighty pounds, and delivered to him the possession.

By the written contract, signed by Ogden, as well as by the vendors, it was agreed, that he should pay, fify pounds in four months, and at the time of such payment, execute his note for “ fifty seven pounds, on interest, and likewise discharge the bond due to Montgomery for seventy three pounds, when he makes a good title to the said land that when Ogden paid the fifty pounds, and gave his note for fifty seven pounds, the vendors should make him a good title, and also assign him the bond on Montgomery ; that if Ogden should pay the fifty pounds, and execute his note for the fifty seven pounds, according to the contract, and thereupon should not receive a conveyance and an assignment of the bond, he should retain the possession and use of the land until the conveyance and assignment should be made, “ by paying the use of the whole money that said Walker paid to the said Montgomery but that if Ogden should fail to pay the fifty pounds, at the time stipulated, he should pay rent, at the rate of ten bushels of corn per acre, for the cleared 1 and, with certain exceptions and qualifications which it is not necessary to detail.

Neither party complied with the covenant.

About the first of January, 1801, Ogden sent a message to the executor, communicating his intention not to keep the land, as a purchaser ; consequently, he did not, at the expiration of four months, pay the fifty pounds, nor was a conveyance made to him. But in the summer of 1801, the parties having in' the mean time ascertained that Montgomery had conveyed' the title, Ogden changed his determination, and paid the fifty pounds. He paid, some time afte'rwards, the fifty seven pounds; but never has paid the seventy three pounds, which he covenanted to pay to Montgomery. But, not having received a conveyance from the executor and executrix, and having, several years after he took possession, purchased some adversary outstanding titles, for the purpose, as he said, of securing and quieting his possession and right, he refused to pay the seventy three pounds, and attempted to disclaim the contract. Whereupon, Montgomery sued Walker’s representatives, on the bond for seventy three pounds, Hut failed in his action. The cause of this failure does not appear in this record.

Bilk

Answers,

peem, 0f t]ie circuit court,

Vendee of land (by executory contract) after remaining many years in possession, recovers a judgment on a breach of the covenant for a title. The vendors then bring their bill, against the vendee, for the rents, profits $*c. which the vendee resists, on the ground that there was a paramount title to the land, which he had acquired : held, that as the question of title was not decided (nor properly put in issue in this suit) a decree for the amount of rents and profits was erroneous.

In 1821, Ogden sued the executor and executrix, in the Bourbon circuit court, for a breach of covenant, in failing to make the conveyance according to their undertaking; and in 1828, he obtained a judgment against them, for eight hundred thirty five dollars sixty one cents, the principal sum which had been paid by him, and six per cent, interest thereon.

To enjoin that judgment, this suit in chancery was brought. The bill and amendment pray for a decree for rents, and for a set'oiF of rents against the judgment, and for restitution of the land.

The answers resist a decree for any relief, on the ground : — that the complainants had no title ; that the defendant had purchased the title from others ; that the title so purchased is the paramount right, and that consequently he should not be considered as a tenant, nor compelled to restore the possession.

The circuit court decreed, that the complainants were not entitled, to rents, nor to restitution; but that they were entitled “ to the value of the improvements upon the land when Ogden got possession; and accordingly decreed to them a credit on the judgment for four hundred and forty three dollars, and dissolved the injunction, as to the residue, with damages.

To reverse that decree, this writ of error is prosecuted.

Whatever may be the true measure of right between the parties, the decree has not established it, according to any allowable deduction from the facts, or known principle of equity.

The decree not only permits the defendant to enforce his judgment, without any deduction for the use of the land, but virtually decides, that he has a right to hold the land under his alleged purchase of a title adverse to that of Walker, under which he entered. By decreeing to the plaintiffs, the value of the improvements .which were on the land at the date of their sale to the defendant, the court decided, in effect,.that he should hold the land, in virtue of the title which he claimed to have purchased from Sprigg, since his contract with the plaintiffs ; and consequently, the circuit court must have adjudged that title superior to that of Walker or Montgomery ; and must also have been of opinion, that he obtained that title under such circumstances as to entitle him, in equity, to a retention of the possession, even against the right of the plaintiffs. In this the circuit court erred.

A decree settling conflicting claims to land, should not be founded on the mej-e legal title: the equitable title, entry, fyc. should be investigated.

There may be cases, where the vendee of land (though a quasi tenant) may protect himself, in chancery, under a superior title acquired from a stranger, against the claims of the vendor under whom he entered.

First. Though the defendant has exhibited Sprigg’s patent, and has shewn a conveyance from Sprigg, for a valuable consideration, yet there is a technical objection to the mode of deriving and authenticating that title; and, therefore, the deed to the defendant cannot be deemed so far evidence, as to authorize a judicial decision in favor of the validity of his title, claimed to have.been derived from Sprigg.

Second. Neither the entry of Sprigg. nor of Montgom-ry, has been exhibited ; and, though Sprigg’s patent is prior in date to that of Montgomery, the chancellor should not have decreed in favor of the defendant on the mere legal title, even if, otherwise, it had been proper to adjudicate on the relative superiority of the conflict-, ing rights.

Third. There is no conclusive evidence fendant bought the title of Sprigg under stances as would permit him, even in equity, to dispute the title of the plaintiffs. If the defendant, after he entered under the contract with the plaintiffs, had ascertained that their testator had no title, or that his title was inferior to that of Sprigg, and had, in perfect good faith and proper candor and liberality to the plaintiffs, purchased Sprigg’s claim for the purpose of quieting his possession, he might, in a clear case, be entitled to the , that the de-such circum-protection of the chancellor, against the effect of any legal estoppel which would, in an ordinary case, bind him as the quasi tenant of his vendors. Facts may have occurred which would protect him, in equity, against any claim of restitution-. What those facts should be, we shall not now stop to explain, because they have not been satisfactorily established in this case. Indeed, the parties did not seem to contemplate a full and final trial of-the titles, and the case was not so prepared as to enable the court to- decide on the equitable rights of the parties. The decree for improvements is, therefore, erroneous.

The general rule is, that, upon a decree rescinding a contract of sale, the possession must he restored to the vendor. — -But, if the rescission he the mere effect of a recovery at law, for a breach of the obligation to con vey, the vendor will he left to his legal remedy, to regain the possession. The chancellor will notinterfere,unless other circumstances give the jurisdiction, and also constitute a proper case for relief.

It becomes necessary that we should now ascertain, whether the plaintiffs in error be entitled to a decree for any relief whatever.

As it is a maxim in equitable jurisprudence, that he who asks equity, must also himself do that which is equitable, and as the chancellor should, when he rescinds a contract, reinstate the parties as far as possible, therefore it is a general rule, that a vendee in possession, and who entered under the title of his vendor, shall hot be entitled to a decree for rescinding the contract, without a restitution of the possession of the land.

But the reason of that general rule does not apply to a vendor who appeals to the chancellor for restitution, merely because his vendee had renounced a specific execution, by suing at law on the contract, and obtaining a judgment for damages, for a non-execution of the covenant to convey- In such a case, the general rule is, that, as the vendee had elected his legal remedy, and as the vendor, also, has a perfect legal remedy for restitution, the chancellor should not interfere either to compel restitution, or to enjoin the judgment for damages until restitution shall be made.

If the vendee, after obtaining a judgment for damages, shall apply to the chancellor, to aid him in enforcing it, he may be required to make restitution, as a condition of obtaining the relief which he seeks. But we know of no case in which relief was ever decreed, when the vendor was complainant, and sought restitution only. Upon a bill filed by the vendor, restitution should not be decreed, unless it be incidental to some other matter, ■which gives jurisdiction to the chancellor. .And ever? then, there may be such equitable objections to a decree-for restitution, as would make it proper for the court to forbear, and remit the parties to their usual,"legal, and more appropriate remedy. In this case there are some, such objections. The plaintiffs have not asked for a decree rescinding the contract ; nor offered to pay the amount to which the defendant may be entitled, and for which he would hold a lien on the land. Montgomery’s patent does not cover more than about two thirds of the hundred and fifty acres sold to the defendant by the plaintiffs; and the residue seems to have been sold by mistake. As the possession of the defendant, for more than twenty years, should be deemed that of the plaintiffs, unless something more should appear than what this record’ satisfactorily establishes ; should restitution be decreed, the defendant might be barred, by his own possession, from availing himself of the benefit oí the title which he bought from Sprigg, as he avers, and as may be considered probable ; and which tide is not only older than that of Montgomery, but includes about fiity acres of the land which the plaintiffs sold, and to which they had no semblance of even a colorable claim. It may not be amiss to state also, that the plaint ills defeated an action brought by Montgomery, long since 1800, for the seventy pounds, and we presume that they succeeded on the ground that he was unable to make a good title. Under such circumstances restitution, when it is a matter of sound and enlightened discretion, should not he decreed to the complaining vendors ; as such a decree might be ruinously unjust, and they have a perfect and effectual remedy at law. Should they resort to their legal remedy and obtain a judgment for eviction, then the defendant may enjoin that judgment, and have a full, fair, and equitable end put to the whole controversy, in all its bearings and incidents.

Restitution (of land) is a matter of local jurisdiction. Tho’ where other circumstances give jurisdiction over the parties and their contract, and the restitution is a mere incident, it may be decreed in another county.

But there is another and more conclusive objection to a decree for restitution, in this case. Restitution is, per se, a matter of local jurisdiction, and if it could be entertained by the circuit court of Bourbon, it would he so sustained only as an incident to, or consequence of, some other matter which gave jurisdiction to that court, over the parties and their contract. But no such matter appears in this case. The rents were liquidated by the covenant. The remedy, therefore, was purely legal. There is no allegation of non residente, or insolvency, or other extraneous fact, which could translate jurisdiction over that covenant from a court of law to the forum of the chancellor. As the defendant was, by that agreement, to hold *he land for the use of the hundred and seven pounds which he had paid, he ought not to have obtained a judgment for the interest, in his action of covenant. That the plaintiffs might have prevented ; but neither their omission to do so, nor any error in the judgment, can vest the chancellor w,ith jurisdiction to revise toe judgment, or enjoin, any part of it, and set off the interest to which the defendant was not entitled, in consequence of his having already received.it in the u-e oí the land, for which his agreement bound him to allow the use of the hundred and seven pounds, which ne had paid. They filed a plea averring that, by the covenant, the plaintiff was to enjoy the land, lor the use of the one hundred and seven pounds, and claiming a- deduction for the interest on that sum. But, as it was improperly a plea in bar to the action, the court properly sustained a demurrer to it. They have thus shewn, that our construction was their own understanding of the contract.

If a party has a good delence at law, (to the whole or part of the demand) if fails to present it in due form, or it is disallowed by the verdict, chancery cannot relieve him.

A plea', in bar of the action, which sets up a defence to apart only, (as the interest,) is bad on demurrer.

Judge Under-™°°{d’s

We are, therefore, of the opinion that the circuit court had no jurisdiction to render any decree in favor of the plaintiffs.

Wherefore, it is decreed by this court, that the decree of the circuit court be reversed, and the cause remanded, with instructions to dissolve the injunction, and dismiss the bill, without prejudice.

Judge Underwood,

dissenting from the reasoning and decision of the majority of the court, in this case, read the following Opinion.

Parks &c. as executors of Walker, sold the land upon which their testator lived and died, by executory eon-tract, in 1800, to Ogden. The title was supposed, by the parties, to be in Montgomery, who had contracted with Walker ; they, therefore, in substance, stipulated, that if the executors cannot make a title in fee simple w^ien Ogden pays fifty pounds, and gives his note for fifty seven pounds, (which acts were to be performed in four months,) he is to continue in possession of the land, and have the emoluments by' paying interest on the money which Walker had actually paid Montgomery for the land. Ogden was thus to have the use of the land, and pay interest as above on one hundred and seven pounds, until the executors might think proper, thereafter, to assign him a bond on Montgomery for the title, and also to transfer a lease to Ogden, which they held, and which Montgomery probably gave their testator, before the land was sold to him. This stipulation to pay interest, would seem to give ground for the inference, that Ogden was not to pay the fifty pounds, and give his note for the fifty seven pounds, if he could not get a title ; and the statement that he was to pay interest 'until the title bond and lease were transferred to him, indicates that the interest was to cease at that time, and he was then to pay the fifty pounds, and give his note for the fifty seven pounds, and look to Montgomery for the title. This view of the-contract is fortified by another stipulation, which it contains, binding Ogden to pay a balance of seventy three pounds due Montgomery,when he should make the title. If Ogden did.not, in four months, tender a compliance with the contract, as purchaser, then he was to hold the land as a renter, and pay so much corn per acre. The above is my understanding of the intention of the parties, to be collected from one of the most awkwardly drawn written instruments that T have seen.

Under the foregoing contract, Ogden entered ; upon the contract he paid one hundred and seven pounds ; and upon the contract, he recovered it back with interest, in an action at law, because the executors had neither made him a title for the land, nor assigned him the bond on Montgomery, nor the lease. To enjoin this judgment, the executors filed their bill, in Bourbon, where the judgment was rendered, although the land is situated in Shelby; and they pray that Ogden may be compelled to restore to them the possession, and to allow a credit against the judgment, for the value of the use and occupation while Ogden held the land.

The first question made in behalf of Ogden, is, that the ehancellqr had no jurisdiction to enjoin the judgment at law, for the purpose of setting off rents against it, in such a case. I think otherwise. Ogden has chosen to put an end to the contract by obtaining a judgment for his purchase money and interest. If he had proceeded in chancery, for a specific execution, and had there rescinded the contract, what would the chancellor have done ? He would have placed the parties in statu quo, as far as he had power ; and in so doing, he would have required Ogden to restore the land, and account for rents and waste, receiving a credit for lasting and valuable improvements.— Griffith vs. Depew &c. 3 Mar. 177. Ewing's heirs vs. Handley's ex'crs. 4 Lit. Rep. 371. The rents of the land during Ogden’s occupancy, constitute an equitable set off against the interest of the money which Ogden has recovered. The land and its profits were the consideration on one side ; the money and its interest the consideration on the other. There was such a connection, therefore, between the demands, as authorized the chancellor to take jurisdiction, for the purpose of making the set off. This is the necessary result of the principles settled in the cases of Tribble vs. Taul, 7 Mon. 455, and Burnham vs. Oldham &c. Ibid. 653. A court of law would be altogether inadequate to afford redress, and do complete justice between the parties. At law the vendee is entitled to his money and interest, for a breach of the vendors covenant; and I know of no case where the vendor has. been permitted to set off the unliquidated rents, at law. If he were to attempt it, the vendee would have a right to counteract the defence, by his claim for improvements ; and thus these unliquidated demands would be brought into litigation before the common law judge, contrary to all precedent. But if the common law courts could afford redress, as it is clear, under the -cases cited, that the chancellor may also give it, it would only follow, that the jurisdiction was concurrent; and as tlie executors did not defend at law, so as to obtain the set off, they may now go into chancery for that purpose. 2 Bibb, 5, and 200. 5 .Mon. 394.

As executors a clear right to go into chancery, to obtain an allowance for rent; and I think, likewise, to suspend the collection of the judgment at law .until Ogden did justice by surrendering the entire consideration he had received ; for surely it cannot .be pretended, that he is to get his money and its interest back, and keep the land and its profits besides, thereb) leaving the estate of Walker, to sustain an entire loss of the sum paid to Montgomery — the next question is, to what court should they make application ? Strother &c. vs. Cardwell's administrators, 2 J. J Mar. 354, furnishes a complete and satisfactory answer. In that case, the land about which the litigation arose,was situated in Gallatin county ; the judgment was obtained in Shelby county* and the circuit court of Shelby granted the injunction. The case of Mason vs. Chambers, 4 J. J. Mar. 409, is also in point, upon this subject. These cases prove that the court in the county where the judgment is rendered, is the onlv proper court to deride the merits of a bill en» joining the judgment; and that in disposing of the case finallv, the court in which the judgment has been rendered, may settle and adjust all matters between the parties, incidental to, and connected with, the judgment enjoined, without regard to their locality. In Mason vs. Chambers, a judgment of another circuit was perpetually enjoined, because of its connection, as an incident, with the main subject of controversy.

It is, therefore, my opinion that the Bourbon circuit court ought to proceed, and settle the entire controversy between.these parties, by taking an account of rents, improvements and waste, and upon a settlement of the accounts, Ogden should he compelled to surrender the possession of the land to the executors.

I deem it useless to cite cases to prove, that Ogden cannot be permitted to set up a title acquired from Sprigg, unless he had shewn more than the present record exhibits. The rule cannot operate more severely upon him* than it was made to operate upon Brook's heirs, at the suit of Beal, (mannscript decision.) If he suffers, it is in consequence of his own wrong. It would be iniquitous to permit him to hold the land, and thereby throw a loss upon Walker’s estate equal to the amount paid to Montgomery : to wit, one hundred and seven pounds, which Walter’s executors may have no means to recover, unless thev can obtain the land. They are without indemnity, therefore, unless they can be placed in statu quo.

But my brethren say they may resort to their action, of ejectment, and recover possession. Ogden may then enjoin, and then the chancellor may put an u equitable end to the whole controversy.” The opinion intimates that there may be circumstances which would justify Ogden in purchasing 'Spring’s paramount title, and setting it up for himself. If there be any such circumstances, then I am of opinion, that his possession, after the acquisition of Spring’s title, was adverse to the claim of Walker’s executors, and that he would have a right to relv on his title and possession, in bar of the action of ejectment. I cannot understand the propriety of the doctrine which justifies a man in making a purchase of the better title and then, when he wants to use it for his protection, refuses to let him to do so, unless he resorts to chancery. There is no necessity for taking such a circuitous course, unless it be in the hope that it may lead to the finding of that justice, in behalf of Walker’s executors,which is now denied to them. If Ogden should defeat their recovery at law, then they will have lost their land, lost the money paid to Montgomery, and be comjielled to pay Ogden the amount of his judgment !

My brethren will not allow Walker’s executors to appeal to the chancellor, for the purpose of setting off rents against the interest of the money recovered by Ogden, because, they say, “ the rents were liquidated by the covenant, and there can be no doubt that an action at law upon that express agreement, could be maintained, for recovering the amount so stipulated by the parties.” I have a very different opinion. As I understand the contract, if Ogden paid the money (fifty pounds) and gave his note for fifty seven pounds, within four months, and got a title, then the contract would have been executed, and he would not be bound to pay interest to Walker’s executors; but if he could not get a title, on tendering performance on his part, in proper time, then he was not bound to pay his money, but might remain in possession of the land, by paying interest, until the title bond of Montgomery, and the lease were made ov.er to him, at a future day. Now, Ogden chose to pay the money, although he did not get a title. Having done so, I cannot perceive the least propriety in giving that construction to the contract which will bind him to pay interest on money in the hands of the executors. If the money had remained in Ogden’s hands, there would have been some reason for it; but when he pays the money over, there is no longer any reason for it, and if it be tolerated, it will be the first case I have ever known, where one man is made to pay interest for money in another pocket, and exclusively subject to the use and control of the latter. So far from finding in the contract, any thing to sanction so strange a result, I think the transaction between the parties, after Ogden paid the money, should be looked upon as the common case where a purchase of land is made, and the purchase money is, in part or whole, paid over to the vendor.

When the parties shall reinvestigate these matters, in the suit in chancery instituted by Ogden, if he should be evicted, I perceive great diffiuclty in allowing Walker’s •éxecqfbrs again to bring forward their claim for rents, which they have unsuccessfully asserted in this suit. Will, they not be barred ? Or have they any such claim under the opinion delivered ? Will they not, under that . opinión, be driven to their action at law, on the old covenant, to get from Ogden interest on money which they had the use of?

But the reversal of the decree, and dismission of the bill is, to me, contrary to usage. Ogden does not complain, nor does he ask a reversal. Under such circumstances, the practice heretofore has been, to affirm the case, if the appellant, or plaintiffs in error, have failed to shew that they have been prejudiced. If the proceedings in this case, as they relate to the question of restoration, are coram nonjudice; if they be void in that aspect? Because that is a local matter, then Walker’s executors might proceed with their action of ejectment, without any reversal. I shall not enquire whether the proceedings, under the view taken of them in the opinion, should be considered as void, or voidable; I perceive that the parties are just at the threshold of the controversy, and unless they should be induced to compromise, and settle it upon equitable terms, they have a protracted litigation before them, and an uncertain result.

My regret is, that this court has opened the door for future strife, instead of remanding the cause, and having 3t ended upon the principles which I have laid down.  