
    AVERY vs. HOLLAND.
    
      Jonesborough
    
    
      Sep. 1806.
    
      In Equity. The bill stated that the plaintiff and defendant, were citizens of North Carolina, that the plaintiff being desirous or obtaining good land in this state, made himself acquainted with vacant lands for the purpose of locating for himself. That the defendant came to his house, and appeared to be desirous of getting information from him, for the purpose of locating.
    If both parties live in another State, they cannot ring suit in the courts of this State.
    The defendant urged the plaintiff to make a contract with him, which was accordingly done in writing under seal ; the plaintiff was to furnish locations, and the defendant was to use his best endeavors to enter them, and pay the purchase money, into John Armstrong’s office.
    Each person to have half the lands.
    The contract was entered into on the 29th of Sept. 1783. The plaintiff then furnished the defendant with eight different locations, the situation of which was pointed out, amounting to 5000 acres. That these lands were the best he could acquire a knowledge of, after eighteen months exertions for that, purpose : Avers, that the land was vacant, and that he performed his part of the agreement. That he also gave the defendant a location for 400 acres on Clinch, & the purchase money to pay for the same, £ 40, 4 s. which was not included in the agreement, but was to be entered by the defendant for the plaintiff.
    The defendant undertook verbally, to do the same. That relying on the agreement, he did not go to Hillsborough the October following ;—that the defendant had it in his power to enter these lands, had he used his best endeavours. Avers, that the defendant had fraud and deception in view when he made this agreement, and in pursuance of that intention, had procured others to enter the land for his own benefit. And in order to deprive the plaintiff of the benefit of his locations, he showed them to a number of persons, so that they might enter them.
    That the defendant afterwards told the plaintiff, that his locations were not good for any thing, and that he did not make any use of them.
    It prays that the defendant may be directed to convey such part of those lands as he may have a right to, and as the lands lie in Tennessee, where the value can with more justness be ascertained, that he may be decreed to pay the plaintiff the value of the balance of the locations, or such parts as he may not have in his power to convey, so as to make up the value of one half, pursuant to the agreement, And 
      to convey the 400 acres on Clinch or decreed to pay the value.
    The article of agreement pursuant to this statement as to entering was exhibited.
    The answer which was filed the 18th February 1813 admitted the agreement and the receipt of one location, and the money ; that he did attend pursuant to this agreement, and no entries were permitted the first, second, nor third days, on account of occupant claims which were to be entered first, and then it was required that all persons should make oath that the locations were for themselves, which prevented him.
    That he could not enter the locations whilst he was there, so that he did not discover whether the lands were vacant or not. And when he came away he engaged Col. Charles M’Dowell, who he believes did the best he could, but could not do any thing. On his return he called on the plaintiff, and returned his locations, and told him there was a probability M’Dowell might do something.
    That he left the 40 pounds with the entry taker for a location on Elk.
    That finding the plaintiff dissatisfied, he procured 40 pounds 6 shillings in money, and refunded it to the plaintiff.
    Relies on the statute of limitation of three years as to the last item, denies ever having any interest in the lands specified in the article of agreement, and all fraud respecting the same ; and as to the 400 acres not comprised in the article of agreement, and engagement in the article of agreement; was induced by the solicitations of the plaintiff. To which answer there was a replication. After which upon the prayer of the plaintiff, the following issues of fact were ascertained by a jury.
    1st. Did the defendant use his endeavours &c.
    2d. Did he repay the £ 40 specie certificate and 4s. in money.
    3d. If the certificate and money were returned, when ?
    4th. Did the defendant violate his trust in showing locations ?
    
    
      5th. Did the defendant use such endeavours as were incumbent ?
    To which the jury answered at some former term.
    1st. In the negative.
    2d. The same.
    3d. No finding.
    4th. In the affirmative.
    5th. In the negative.
    These proceedings took place many years past. It also appeared from reading the papers, that there was a demurrer filed at September term 1802, stating that the remedy was at law, and that if the bill were true, it furnished no ground upon which a court of Equity could decree, which was overruled at the same term.
    The counsel for the plaintiff
    moved to have a writ of inquiry, or ad quod damnificatus. But by the court. This writ is collateral in this court, and always ordered, after being informed of the merits. Let the cause proceed upon its merits.
    
      Campbell for plaintiff.
    The demurrer has decided the point that the plaintiff has relief here. Whenever a point has been decided in a cause, it cannot be renewed ; it must be at rest.
    I will then proceed to consider the nature of the transaction disclosed in the bill.
    No doubt can be entertained of the obligatory force of the contract. The consideration is lawful and efficacious. The finding of the jury shows a non performance. As to consideration 1 Pow. Contracts 344. The receipt or deposit of the 40 pounds, 4 shillings under the terms, it was, created a trust, and the statute of limitation does not apply to it, Eq. Cas. 304 from which were read and commented on, several cases, respecting deposits, Executors, Legacies and offices.
    We cannot fix any time from which it might be said the action accrued.
    It must be upon demand, as no time was stipulated within which it was to be done. Therefore until demand, the statute cannot run. None having been made in this case, until suit, the statute cannot attach.
    It was necessary for the plaintiff to come into equity for the purpose of discovering whether the defendant had, or had not an interest in those lands, and when proved for any equitable purpose, the court will see complete justice done and not do things by halves. Suppose A gives his bond to B to convey him a tract of land. A conveys to C for full and valuable consideration without notice. B files a bill against A for a conveyance not knowing of the sale. A states that it is not in his power to convey, having sold to C. Will the court dismiss B. without any redress. No, This would be so manifestly unjust, that a Court of Equity would direct a writ of ad quad damnificatus.
    
    
      Miller for the defendant.
    This covenant is not obligatory unless the lands had actually been entered, and no action at law would lie upon it, 1 Har. ch. 36.
    In this case the plaintiff knew that the defendant, had not the land, if he did not, then perhaps upon failing to get a discovery, the court might inquire of damages.
    As to the statute of limitation, it does apply. This is nothing more than an attempt to convert a common case of assumpsit, into a trust.
    
      Williams on the same side.
    Where adequate relief may be had at law, you cannot come into this court, 1 Hay. 233, 367, 8, & 9.
    The defendant says in his answer, that he returned the locations—we must take that to be true as it is not contadicted by proof. He could not be entitled to damages after the locations were returned.
    It has been contended that a demurrer, is similar to a judgment by default at law.
    This is not the law, nor does the overruling a demurrer in Equity, show that the case is sustainable.
    No recovery could be had at law, on account of the length of time the covenant has slept.
    
      In case of bonds for money, presumption of payment will attach in sixteen years. This court will proceed or the same principle in case of covenants.
    
      Whiteside in conclusion.
    The consideration of the Covenant is sufficient 1 Pow. Cont. 345, 6, 2 Pow. Cont 228, 9.
    The general rule of Law is twenty years, as to presumption of payment, and not sixteen as has been stated. It has not been quite eighteen years since our bill was filed. We have prayed for relief as well as for discovery ; if we fail in the latter, may go for the former.
    The whole transaction respecting the acquisition of interest, rested in the knowledge of the defendant alone, we were obliged to apply to this court.
    The bill had two prominent views, discovery, and relief. The determination upon the demurrer settled the point, that if our proof should be sufficient, we are entitled to relief. If the statement should turn but differently upon the hearing, then the court would not be concluded by the demurrer.
    But the case is not altered as to the relief, by any finding of the jury or proof.
    It is the same, and therefore cannot be re-examined as to that point, 1 Har. 851.
    As to the £ 40, 4, it is certainly a trust, and as such protected from the statute of limitation, 1 Eq. Cas. 304.
    Being a trust, jurisdiction is not only given to this court, but the statute is excluded.
    It has been objected, that we knew the defendant could not make a right to the lands when the bill was filed.
    Though a party has not power over property at the time of a contract, and so it would be upon parity of reasoning at the time of the bill filed, this court will compel him to convey if in his power.2 Pow.Con.652.
   Overton J.

The first idea that occurred upon reading the pleadings in this cause, was the singularity of the circumstance of finding two citizens of another state before this court, upon a contract made in their own state. Upon this ground alone I should be strongly inclined to think that we ought not to take cognizance of it.

This bill was filed before the act of 1801, Ch. 6, the 16th section of which, as relating to the court of Equity,states, “that alter the answer filed, and no plea in abatement to the local jurisdiction of the court, no exception for want of such jurisdiction shall ever afterwards be made."

This bill is for discovery respecting the breach of a covenant, and seeks relief upon such discovery.

Bills may be for discovery alone, intending to use die discovery as evidence at law, or may be for discovery, and relief.

The nature of the case disclosed in the bill, necessarily makes the discovery the principal object of the bill, and relief its dependant. Breach of covenant is properly triable at law, and as to the first part of the bill, or that respecting the article of agreement, it is nothing more.

The obligee however, had a right to come into this Court for a discovery of any matter which rested in the knowledge of the defendant only, respecting such covenant, and if a sufficient discovery was made, this court having jurisdiction of the principle ground, its incident (in this case,) relief, would follow. But if the plaintiff fail in the discovery sought, when that is the ground of Equity as it is here, its incident, or inquiry, as to damages must fall. To proceed, when discovery fails, and the relief is proper for a court of law only, it would be converting this court at once into a court of law, and obliterating one of the principle lines of distinction between the two courts:

Nothing could be easier than for a complainant in any case of contract, properly triable at law, to state a case for discovery, so as to give this court jurisdiction. It were immaterial whether such discovery were necessary or even expected, it could easily be suggested, and this court would be compelled to hear proof equally accessible to a court of law, and decree relief.

This cannot be law.

The court is not concluded from looking into the bill, upon the points embraced by the demurrer which was overruled.

It appears that the defendant was ordered to answer. The demurrer went to the whole bill, and if the court intended it to be conclusive, it would have dismissed the bill. A defendant may insist upon the same thing embraced by an overruled demurrer, in his answer, or ore tenus, at the bar, 2 Atk, 284 1 Har. Ch. 414.

The case in 1 Atk. 571, and Har. Ch. 351, respecting a plea of of dismissal showing matter which was res judicata does not apply, unless the bill had been dismissed, and a new bill brought, which is not the case.

It has been insisted that the plea of the statute of limitations does not apply to the L. 40, 4s. being a trust. The cases collected in 1 Eq. Ca. 304 are adduced in support of this proposition.

The true ground upon which the statute does not operate in cases of trust seems to be, that the possession of the trustee is the possession of the Cestuy que trust ; and in contemplation of law, the Cestuy que trust is always in possession by his agent the trustee, who holds for him.

The very ground upon which the principle rests is, that the trustee does not claim or hold adversly, or for himself.

The cases, respecting Executors, legacies and charaties, are all referrible to this principle; Accounts current between Merchant and Merchant, are expressly saved by the statute. But after being settled, are subject to its provisions.

The defendant in his answer, does not admit that he received £ 40, 4s. in trust ; thus received, it was not to be subject to any future disposition of the plaintiff, as in lady Hollis’s case, which showed that in point of law, she was to have the implied possession from reserving to herself the control of the money.

No such idea occurs here, and no distinction can be seen between this, and other cases, where money or other property has been received.

Upon a view of the whole case, it seems that the bill to ought to be dismissed.

White J.

It appears from the pleadings that this contract was made in North Carolina, and between two citizens of that state. Before the passage of the Act of 1801 Ch. 6, it was clear that this court could not decree in such a case. Act 1787. C. 22. Ird. 624.

The idea conveyed by the act of 1787, is that no proceedings of this court shall be good against a person residing out of this state, unless the contract were made in this state.

The law of Nations, which we take to be part of the law of the land, will not permit individuals of foreign countries, upon contracts made there, to submit their disputes to our tribunals in local matters : Mere personal claims, may follow the delinquent. Even this seems more to result from the amenity of this law, than strict principle.

All suits in courts of Equity however, are considered local, by our law, and though the act of 1801 says it is proper matter to be used in abatement, and shall not be made an exception upon the hearing, yet I am strongly inclined to think, that if it appears upon the face of the pleadings, that both of the litigant parties are foreigners and a foreign contract, we ought not to interpose. By the nature of all governments, courts were constituted to administer justice in relation to their own citizen ; and not to do the business of citizens or subjects of other states. The judges of their own state are employed, and paid for that purpose.

To encourage the resort of foreigners to our courts, would be doing injustice to our own citizens, who have business here to be attended to.

Upon the other principle however, I concur with the opinion given, but as both parties seem somewhat so blame as to troubling this court with the cause. I am of opinion that each should pay his own costs on the dismission.

In this Overton J. concurred.

Campbell J. accordant.  