
    Isaac Edwards v. James C. Morris.
    
      Performance of Contract — Rescission of Contract.
    
    A complainant in chancery asking to set up a contract different from the-written one, upon which judgment was had at law, must show an offer to perform the contract he claims to establish at the time it ought to have been performed, and also a readiness still to perform it.
    An obligation to pay in the notes of a specific bank, must be paid in the notes of that bank, or their numerical value in money. Their price in money can not be substituted.
    A contract is not rescinded upon stale objections to the vendor’s title, the vendee remaining in undisturbed possession.
    The bill had a double aspect, each containing separate and distinct matter nowise connected with the other. It states:
    1. That on the 25th day of December, 1819, the complainant purchased of the defendant a certain farm, and distillery, in Hamilton county, for the sum of eight thousand dollars, to be paid in different installments, the first two of which, amounting to four thousand dollars had been paid; that the third installment for • two thousand dollars was to be paid on the 1st of February, 1822, and the fourth, for the same sum, was to be paid on the 1st of February, 1823, and that for these several sums of money the complainant executed to the defendant his several promissory notes of hand, promising to pay the sum of money mentioned in each, in-current bank notes of the city of Cincinnati; that the defendant, pre- ■ vious to said purchase, stated to the complainant he would receive in payment the notes of the Miami Exporting Company for the purchase money, and at the timeof executing these notes, the complainant supposed that they contained a stipulation to pay only in the notes of the Miami Exporting Company, and that he would not have executed them had he understood otherwise; that the two first installments, for which notes were also given, the said defendant, had been pai.d according to the terms of the contract as understood by the complainant; that when the third note became due, the defendant informed the complainant he.would receive no funds as payment other than notes current as cash in Cincinnati, and. that at the time the notes of the Miami Exporting Company had depreciated to twenty-five or thirty cents on the dollar; that the defendant had brought suit on the said third note, due February 1, 1822, *in this court, and had recovered judgment thereon for the amount thereof and interest.
    2. That the land purchased by the complainant of the defendant was the northeast quarter of section 21, in the 4th township, .and 2d fractional range of townships, on which the complainant had paid four thousand dollars, estimated by Mm at two thousand dollars, and which, as he alleges, at a present cash valuation is .about as much as it is worth, and that since the said purchase he has discovered that the title to the same is not complete and perfect; that on the 20th of June, 1795, it was originally conveyed by John C. Symmes, but the conveyance never proved or acknowledged; that in the year 1787, John C. Symmes sold, by contract on record, a large quantity of -lands to one Benjamin Stites; that about the 1st of February, 1798, he acknowledged, in writing, to have received a large sum of money on said contract; and that 10,000 acres of the land for which the money was paid laid around Columbia; that on the 17th day of December, 1787, the said Symmes gave to said Stites a certificate that he had entered or located 10,000 acres on the Ohio and Little Miami; that these several papers contain evidence that said Symmes could have no authority to convey said lands, except from said Stites, and that the said quarter section is contained within the said tract of 10,000 acres. And prays an injunction on said judgment at law, until the title is perfected; that the contract may be rescinded; that the money, already advanced to the defendant be refunded to •the complainant; and that, when the title shall be perfected, an account taken of the value of the notes of the Miami Exporting Company at the time the contract was made, or at the time said notes became due; and a prayer for general relief. The defendant demurred.
    Wade & Hayward, in support of demurrer :
    The defendant insists that as to the first part of the bill no case is -stated, and no case is made out, which is not as much within the cognizance of a court of law as of a court of equity; and the subject matter in controversy between the parties having been tried and adjudicated by a court of competent jurisdiction, by this court before ■all the judges in bank (1 Ohio, 189), the complainant is not entitled to ^relief in chancery. 3 Atk. 740 ; 6 Vesey, 682 ; Cooper’s Eq. Plead. 124; 1 Johns. Ch. 91; 1 Schoale & Lefroy, 201.
    The attempt of the complainant to go behind the terms of his written contract, for the purpose of changing its legal effect and lessoning the amount for which he is liable to the defendant, on suggestions and insinuations not founded on any positive facts ■stated in the bill, or by the introduction of parol evidence, can not be sustained in equity any more than at law.
    A contract is never allowed to rest partly in writing and partly in parol. Whenever it is reduced to writing, that is considered as the evidence of the agreement, and everything resting in parol becomes thereby extinguished. This is the settled doctrine of •the courts of law (1 Johns. 414), and has been fully recognized as the rule in equity. As where an agreement is reduced to writing, all previous negotiations, resting in parol, are extinguished by the written contract, and can not bo resorted to, to help out or explain its meaning. 1 Johns. Ch. 282, 429. On this point Chancellor Kent speaks in the most positive terms, and with great energy. “There is nothing (says he) more dangerous than to impair the force and effect of solemn contracts in writing, by careless, idle, and perhaps unmeaning conversation ; and so far as such testimony is in contradiction to the note itself, it is utterly inadmissible." 2 Johns. Ch. 557.
    There are no facts set out in this bill, which go to show that there was any mistake in the terms and conditions of this note. Loose conversations had between the parties, previous to the execution of the instrument, can not be received as evidence to do away its legal effect or change the liability of the complainant; and a mistake as to the law is not relieved against by a court of chancery. Every man- is to be charged at his peril with a knowledge of the law. 2 Johns. Ch. 60. And besides, there is no positive allegation in the bill, that the defendant, at the time this note was executed agreed to take the notes of the Miami Exporting Company. The fair and reasonable presumption is, that he did not, or it would have been so expressed in the contract. And there is no act of fraud alleged which will warrant the court now to interfere with the case, after a verdict and judgment *at law. In fact, the general principles which have governed the jurisdiction of courts of equity, and which have long been recognized and established, in both the English and American chancery, are opposed to the assumption of jurisdiction in a case like the present, for any purpose of relief. No case has been made out in the first part of the complainant’s bill, which shows that his remedy and defense to this note was not as plain, adequate, and complete at law as in equity.
    It is the seltled doctrine of the English chancery, not to relieve against a judgment at law, on the ground of its being contrary to equity, unless the defendant below was ignorant of the fact in question pending the suit, or it would not have been received as a defense. 3 Atk. 223. The same doctrine has been sanctioned, with strong expressions of approbation, by an eminent and distinguished chancellor of the Irish court. 1 Schoale & Lefroy, 201. And also by Chancellor Kent, and other enlightened lawyers of New York. 1 Johns. Cas. 491, 501; 1 Johns. Ch. 49, 91.
    It is also a settled rule in chancery, and one which has long been adhered to with scrupulous regard and fidelity, that a party will not be aided in a court of equity, after a trial at law, unless he can impeach the verdict or report by facts, or on grounds of which he could not have availed himself, or was prevented doing it by fraud or accident, or the act of the opposite party unmixed with any negligence or fault on his part. 7 Cranch, 336; 3 Johns. Ch. 356.
    The defendant, therefore, can see no reason why a party in a court of equity, in a case where the same rules of evidence apply as at law, should be permitted by any parol explanations to change the legal effect of a written instrument, when that legal effect has been found and adjudged, and the rights and liabilities of the parties ascertained and determined by a court of competent jurisdiction, and that, too, after solemn argument before all the judges in bank.
    The second part of the bill, relating to. the title to the quarter section of land purchased by the complainant of the defendant, is too defective, in substance, to entitle him to a discovery, answer, or relief, in a court of equity.
    *It does not appear to whom John C. Symmes conveyed the said quarter section, in 1795; nor that the defendant’s title is. traced through said conveyance.
    The nature, terms, and conditions of the contract, by which John: C. Symmes sold a large quantity of land, in 1787, to Benjamin Slites, is not stated; nor is it anywhere alleged that said contract is still in force; nor is the contract, and the certificate of the entry or location of the 10,000 acres of land, set out or made part of the bill, or anything averred, by which the court can discover that there is any evidence, John C. Symmes could have no authority to convey said land, except from said Stites.
    It does not appear, by anything stated or alleged in the bill, that the defendant’s title is traced through said Stites; nor is there any facts made out by the complainant which would lead even to a suspicion, that there is any defect of title to the said quarter section; but, on the contrary, loose insinuations and improper inferences have been resorted to, from which the court are called upon to open up a judgment at law, rescind a solemn contract in writing, made in good faith by the parties, or otherwise compel the de-fendant to perfect a title, which, for aught that appears in the bill, is in no way defective 1
    It does not appear that the complainant has not the defendant’s deed for this quarter section, with the usual covenants of warranty; but from the general tenor of the bill, it is believed the court would be justified in inferring that he had; and in such case, his remedy would be plain, adequate, and complete, at law; the complainant being in possession of the locus in quo, and the defendant not being in insolvent circumstances, and abundantly able to respond the amount of damages which might be recovered against him, in an action at law, on his covenants of warranty in the deed. 18 R. Stat. 70. And where a cause depends on the solution of a legal question, the proper forum for the determination of that question is a court of law, and equity will not interfere. 2 Johns. Ch. 376, 391.
    There is also another serious objection to relief in the case, which is manifest on the bill itself. It is an attempt to break down the lines of distinction which have long marked the separate boundaries of chancery andlaw jurisdiction; *and if sustained, would tend to encourage negligence, protract litigation, and draw within the cognizance of a court of equity the general review of trials at law. 3 Johns. Ch. 357.
    But the determination of this case, even if a defective title had been fully made out in the bill, and we had no statute remedy on the covenants of general warranty in a deed before eviction, must rest on the general principles of equity jurisdiction, and the demurrer will be sustained.
    
      A purchaser of land who is in possession, can not have relief in •equity, on the mere ground of defect of title, without a previous eviction. If there be fraud in the case, the purchaser must resort to his covenants, in an actionai law. 1 Johns. Ch. 213; 2 Johns. Ch. 519; 3 Vesey, 235.
    Este and Hammond, for complainant:
    The defendant predicates his demurrer, as to the first point in •the bill, principally upon the decision of the Supreme Court in the action at law in this case. That decision rejected the words “ in current bank notes of the city of Cincinnati,” as having no effect in the contract. The note would have been a good note, and the decision would have been just what it was, had these words been omitted.
    As we understand that decision, the court consider these terms as only specifying what kind of money was to be received in payment, and that'the obligor must pay in that kind of money at or before the day, or it stands as if it formed no part of the contract. The object of the bill is to set up an interpretation of the parties ■ different from this, founded on the original understanding, and on a subsequent practical interpretation.
    It is objected that this is to vary a written agreement by parol evidence; but we reply that this is not correct. The terms used are ambiguous. They were inserted in the contract for some practical purpose, and the evidence is offered to show what that purpose was. It runs with, and does not contradict the note or written agreement.
    It was decided that at law the obligor must have tendered current bank notes within theherms of the contract, to avail himself of the advantage contemplated by inserting *them in the contract. The bill shows that this was not done, because the holder of the note gave notice he would not receive such notes.
    Another ground of relief set up in the bill is, that the maker of the note was mistaken as to its legal effect. The defendant replies, that a mistake in law is not to be relieved against in equity. A doctrine like this has prevailed; but is founded in no just principle, and has been recently overruled by the Supreme Court of the United States. We refer to the case of Hunt v. Eousmanier’s executors, 8 Wheat. 174, which is full authority for all the grounds taken upon the first point of this bill. The argument of Mr. Wheaton is one of the most able and lucid ever addressed to a court •of justice, and is substantially adopted by the court in the opinion delivered.
    The grounds upon which it is attempted to sustain the objections to the second point in the bill are little else than captious cavils. All titles must be derived from J. C. Symmes within the Miami Purchase. The bill charges that the original deed from him to the land in question is defective. If this be the fact, there is no legal title.
    The bill refers to other papers of record as evidencing incumbrances; it does not profess to state the extent of them; their existence is sufficient to put him upon inquiry. But the defendant objects that complainant may have remedy at law. This is not •correct; he is entitled to have his contract perfected or rescinded, and is not to be turned round to squabble before a jury for damages, ■which, whether obtained or not, leaves the matter of title where it was found. Besides, if he were to recover at law for the defect of title, the defendant might go into equity to have the proceedings stayed, that he might remove the incumbrances or defects of title, and execute the contract. Surely the court will not send the complainant from equity to law, that when he has succeeded there, he may be brought to equity upon the same grounds, except that the .relative character of defendant and complainant would be changed. 1 Atk. 384; 2 Id. 630; 3 Id. 304; 3 P. Wms. 306.
   •Opinion of the court, by

Judge Hitchcock:

The prayer of the bill in this case is to enjoin a judgment at law, rendered at the last term of this court, and also to ^procure a rescission of a contract. Two reasons are assigned why the court should interfere: 1. A mistake in the terms of the note upon which the judgment was rendered. 2. A doubt as to the title to the land conveyed by the defendant to the complainant, which land was the consideration of the note.

The facts set forth in the bill are admitted by the demurrer, and the question to be determined is, whether there is sufficient matter to justify the interference of a court of chancery.

It is the peculiar province of chancery to relieve against fraud, mistake, or accident. But how far parol testimony can be admitted to prove mistakes in a written instrument, ha been matter of much altercation and doubt. Mistakes in matter of fact, it seems may be rectified, and the opinion of the court in the case of Hunt v. Rousmanier’s administrators, 8 Wheat. 174, goes far to establish the doctrine that where the parties, through a mis* take and ignorance of the law, execute a writing which does not carry into effect their contract and intention, that the true contract and intention may be enforced in chancery.

In the case before the court the alleged mistake consists in this: the purchase money, which was the consideration for which the note was given, was to have been paid in notes of the Miami Exporting Company. The note was to have been made thus payable j whereas, in fact it was made payable in “ current bank notes of the city of Cincinnati.” The complainant understood that he was to pay in the numerical value of the notes. If; in consequence of this mistake, the complainant has sustained an injury, he ought to be relieved.

It is an invariable rule in chancery that he who seeks equity must do equity. Suppose the notes referred to had been drawn payable in the notes of the Miami Exporting Company, and there had been no mistake, what must the complainant have done to have defended himself at law, and to have secured to himself the privilege of paying in the notes of that bank? He must have tendered the notes on the day, and ought also to have brought them into court. The mistake, however, having happened, which rendered it proper that he should come into a court of chancery, what *ought he to do here ? The contract was that he was to pay, on a particular day, the sum named in the obligation, in a particular description of bank notes. He ought, then, to show that he tendered these notes at the time specified, and he ought to bring them into court that the opposite party may receive them. The notes, however, are not brought into court, nor is there any pretense that they have been' tendered. The complainant, then, does not appear to be ready to do that equity which he requires of the defendant, and on this ground is not entitled to the relief prayed for. The circumstance that the defendant, some time before the promissory note fell due, stated that he would not receive those bank notes in payment, can not excuse the complainant in not making the tender.

It is claimed that an account should be taken of these notes, and that the complainant should only be made liable for their specie value. This can not be done; bank notes are considered as money. TThe holder has a right to look to the banks which issue them for their numerical value in specie, and can not be compelled to take for them a value fixed by shavers and brokers. The ability or inability of the bank to pay ought not to be taken into consideration.

The doubt as to the title to the land grows principally out of an old contract entered into between Symmes and Stites in the year 1787. This contract was made before Symmes had any interest-in the land. His contract for the purchase from the United States was made in the year 1788, and he obtained his patent in 1794. The deed from Symmes for the quarter section in controversy was executed in 1795. It is objected to this deed that it was neither acknowledged nor proven. However, when it has been accompanied by a possession of twenty-nine years, it is pretty good evidence of title. Neither this defect in the deed, after-so long a continuance of possession under it, nor the bare possibility that there may be an attempt to enforce the contract at some future period, which contract was made almost forty years since, is sufficient to justify the court either in enjoining the judgment at law or rescinding the contract.

The demurrer is therefore sustained, the injunction dissolved, .and the bill dismissed, with costs.  