
    Hotchkiss vs. Fortson, et al.
    
    Where a person is intoxicated, daring which time advantage is taken of his situation by another, who induces him to purchase a tract of land at a price greatly exceeding its value; for which a title bond is executed,- and where no time to become sober or for reflection is allowed until the contract is closed: Held, that equity will set aside the contract.
    Where in such case the vendee dies shortly after the contract, leaving his wife and children insolvent, and where judgment was obtained by the vendor against the widow of the vendee, as administratrix of her husband, and the plea of fully administered is found for her: Held, that the lapse of time between 1822, the time the contract was made, and 1829, the time the bill was filed, was not such laches as would prevent the court from interfering.
    Where in such case the vendor executed a title bond, and received more of the consideration money than the land really was worth: Held-, that where a bill has been filed by the vendor to enforce his lien upon the land, and a cross bill was filed to set aside the contract, that a court of equity would not dismiss both bills and leave the parties to their remedies at law, but under such circumstances relief will be decreed to the party entitled.
    Hotchkiss filed a bill against Fortson’s heirs, alleging the sale of a tract of land by Hotchkiss to Fortson in his lifetime; and that a part of the purchase money was still due, for the payment of which the land was a lien, and prayed a decree that the land should be sold to pay the balance due. The defendants filed their answers, and also a cross bill, alleging, amongst other things, that in the sale Hotchkiss practised a fraud upon Fortson; that the latter was drunk, and the former taking advantage of his situation, got him topurcbasé the land, which was poor and barren, at about double its value. The answer of Hotchkiss denied the material allegations in the cross bill. The evidence in the record was voluminous, and, as so much of it as was deemed material or' necessary to be noticed by the court is stated in the opinion delivered by the Chief Justice, it is unnecessary to again detail it. The cross bill was dismissed by the Chancellor, and the land decreed to be sold for the payment of the balance due; from which decree the defendants in the original bill appealed to this court.
    Jarnagin, for the complainant
    in the original bill, contended, that the relief prayed for in the original bill must be decreed. There is not such a case made out as would induce a court of equity to withhold its hand. The contract of sale, the execution of the bond, the delivery of the land, all are proved beyond doubt. And upon what ground is complainant’s right resisted? Because of the exorbitancy of the price alone, for it cannot be contended with success,’ from the evidence in this cause, that any actual fraud was committed by Hotchkiss.
    1. The answer to the cross bill denies it most positively and unequivocally; and the proof, to say the least, is conflicting, and is as strongly corroborative of the statements in the answer, as of the allegations in the bill. In such case there must be a preponderance of testimony in favor of the bill to authorize the interference of the court. 1 Madd. Ch.
    2. Exorbitancy of price is not sufficient to rescind a contract. Sugden on Vendors, ch. 5, sec. 1.
    3. The court ought not, in any event, set aside the contract; it can, at furthest, only dismiss the bill, and leave the parties to their remedies at law. Day vs. New-nan, 2 Cox’s Ch. Rep. 77: Sugden on Vendors, 189.
    
      Churchwell, for defendants.
    1. I will insist that the plaintiff in the original bill had no right to come into equity to sell the land, as he had the legal title; and has not shown the contract to be fair. 1 Madd. 304.
    
      2. Fraudulent contrivances will and ought to set aside a contract. Sugden, 167: 1 Chan. Ca. 337: 14 Ves. Jr. 144: 1 Sal. 28: 3 Cranch, 270: 3 Haywood, 141.
    3. Inadequacy of price will set aside a contract. — ■ Newland, 432: 1 Des. Rep. 250-7: Am. Dig 1 Mad. Cb. 268, 280. 99:
    4. There is no legal contract made out in this bill and cross bill; but an illegal unconscionable bargain. Amer. Dig. 92: New. 357: 1 Mad. Ch. 304.
    5. Inadequacy of price, connected with drunkenness, will rescind or set aside any contract. Newland, 363, 359,365: 1 Cha. Ca. 202: 3 P. Wil.'l30, (note:) 1 Mad. 268, 280, 303: 1 Hen. and Mun. 70: Fon. Eq. 78-9: 2 Pothier on Ob. 25: 1 Fon. Treat. 114, 117, 150: 2 Yes. Sr. 156-7.
    6. Where a description is given by vendor, and vendee is not proved to have had an actual knowledge, he will be entitled to an abatement, though he must perform the contract. Sug. 174-5.
    7. A contract obtained from a drunken man, when un-' reasonable, will be set aside; more especially if urged to close the bargain while drunk. 3 Hay. 82-3: 1 Mad. Ch. 303: 18 Vesey, 14: Fon. Eq. 78-9: 2 Haywood, 394.
    Lastly. Before the complainant can succeed in getting a specific performance decreed, he must show the bargain to be fair, certain, equitable, in all its parts certain, and for an adequate consideration. 1 Dess. Rep. 250: Amer. Dig. 96.
    ■ If there be suspicion, or unfairness, or hardship, equity will refuse to decree a specific performance. 3 Hay. 202: 1 Mad. 283.
    The court will not leave the parties to their remedy at law, because it is not an executed contract, and the covenant is a peculiar one, unlike those upon which the English decisions are based.
    Inadequacy of price will tend to show fraud. New-land, 358.
    Weakness of mind, drunkenness, situation of the parties or necessity, altogether show fraud. New. 362.
    An unconscionablejiargain, hardship and contrivance, management, inadequacy of price, and drunkenness, all these taken together, I insist equity will not only refuse to decree specific performance, but will rescind the contract. New. 365: 1 Fonblanque’s Treat. 114, 117, 150: 2 Vesey, Sr. 156 — 7: 4 Johnson’s Reports,-501.
   Catkon, .Ch. J.

delivered the opinion of the court.

The cross bill asks to set aside the contract for the land purchased by Fortson from Hotchkiss, in 1822, on the ground that Hotchkiss practised a fraud upon Fortson in the sale. The land was sold for one thousand dollar's; six hundred of which was paid in hand, and two horses at eighty dollars. The highest price the land is proved to have been worth at that time, is six hundred dollars.

Fortson was moving to the west with a large family; he halted by the road side about twenty miles below Knoxville, and offered to purchase a plantation. He' had been examining the plantation of John C. Young on Saturday, and the parties seemed likely to contract. Young was to come to the camp of Fortson, which was near to the house of Hotchkiss on Monday morning. Young attended, and found Fortson very much intoxicated. Hotchkiss soon came up, and hearing the'conversation concerning the desire Fortson had to purchase land,he plucked Fortson by the sleeve. They stepped aside, and then walked off towards the house of Hotchkiss. They presently returned, and Hotchkiss announced that he had sold Fortson his land. One of Hotchkiss’ sons was in company, and another fell in with the old man at the house, and they walked over the plantation. The' young men swear they saw nothing in the gait, or heard nothing in the conversation of Fortson' to induce them to believe he was drunk. But Young, and a witness by the name of West, provo that Fortson was grossly drunk, and wholly unfit to transact important business. Of the truth of this, from the whole testimony, the court is well convinced; and equally well, that Hotchkiss very artfully took advantage of Fortson’s situation to sell him his plantation, at what we imagine, from the proof, to have been .about double its value at that time. Hotchkiss drank with Fortson after they returned to the camp, and he says in his answer that they had a spree. Fortson and his family immediately, that evening, removed up to Hotch-kiss’ house; and in the morning one of the sons of Hotch-kiss produced, ready drawn up, the title bond; it was presented to Fortson, was signed by him and Hotchkiss, the vendor. The six hundred dollars was paid, and shortly after the two horses. This was done in execution of what had occurred the previous day. Fortson had seen nothing further of the land, and we imagine was in little better condition than the evening before. It is obvious he was passive in the hands of the defendant Hotchkiss and his sons; that he was in a situation so feeble and besotted, as to be easily imposed on, and that he was by no means fit to make a purchase of land and acquire a home for his family, is manifest. No time was given to become sober before he parted with his money and signed the covenant; or time for reflection or examination of the premises. Indeed, Houston and West, the two next neighbors, prove that Fortson was almost continually drunk from the time of the contract to the time of his death, which occurred a few months after; and they, the witnesses, did not think him at any time after he came to the country, fit to be contracted with, or do important business.

On this state of facts, it is insisted a court of equity will not set aside a contract because of exorbitancy of price. Sugden on Vendors, ch. 5, sec. I. The position assumed is correct, other circumstances aside; but as a fact in connection with others, the price obtained in this instance elucidates the conduct of Hotchkiss, and explains and gives force to the evidence on the part of the complainants in the cross bill, which is in conflict with that of the defendant’s sons, so as to establish the fraud practised on Fortson; on which foot this cause is decreed.

A decree is next resisted on the ground that a long time had intervened between the malting of the contract and the filing of the bill; the contract having been made in 1822, and this cross bill filed in the year 1829.

From Fortson’s situation no laches could be imputed to him before he died; and after his death his wife and children were helpless and insolvent, as this record shows. Three hundred and twenty dollars of the purchase money was to become due two years after the contract was made. Judgment at law had been had against Mrs. Fortson as administratrix of her husband; the plea of fully administered was found for her, and then Hotchkiss filed his bill to enforce his lien against the land for the unpaid purchase money. To this bill the widow and heirs filed their answers, and also their cross bill to be relieved from the contract. The legal title now rests in Hotchkiss, and he is, in fact, asking a specific performance by his bill. We imagine that his claim to enforce the contract resting in covenant, opens that covenant to be set aside as voidable for fraud, unless some change in the property, rendered if impossible to restore the parties to their former situation; and on this ground the objection mainlj'-rests.'

It is admitted the land is worth much less now than in 1822; perhaps it is nów not worth more than three him-dred dollars. The fences-and improvements are dilapidated, and the cleared lands waste. This is easily adjusted. We adjudge the tract to have been worth six hundred dollars in 1822, and its cash value will now be ascertained, and the difference between the present value and six hundred dollars will be abated from the sum to be refunded by Hotchkiss to the administratrix of Fort-son. In other words Hotchkiss will be compelled to belund the present value of the land. To this end the , . , , . - _ contract and covenant is declared void lor fraud.

On this last ground} the majority of the court have found themselves somewhat embarrassed. The rule is, that where the estate is a grossly inadequate consideration for the purchase money, equity will in general leave the parties to their remedies at law, withoht affording relief to either. Such is the opinion of Judge Green, and such were Judge Catron’s first impressions. But to dismiss both bills in this instance, as in Day vs. Newman, (2 Cox, 77: Sug. on Ven. 189) would ieave in the hands of Hotchkiss the six hundred and eighty dollars, the judgment against the éstate of Fortson; and he would, of course eject the widow and family of Fortsoh from the land by force of his legal title. The mind shrinks from an injustice so gross; and upon looking into the cases, so far as an opportunity has been afforded, no decisioh has been found dismissing the bill for specific performancia, and also the cross bill to be relieved from the contract, involving like unjust consequences. Here Fortson, by the covenant for title, was not to have a deed until the three hundred and twenty dollars were paid. At law his heirs have no remedy on the covenant until they pay up the judgments; and that is to abide by the fraud practised upon their father to its utmost limit. We grant if this were a naked case, where an extravagant price bad been promised, (the parties dealing originally on equal terms) equity would not interfere. It must often happen that men will give extravagant prices, and that a vendor would not be justifiable in parting with a home on reasonable terms. We recognize the force and justice of the argument of the counsel of Hotchkiss, which assumes that equity cannot make contracts for men; and in this case, if Fortson had not been imposed upon, and advantage taken of his situation, we would, regardless of consequences, dismiss both the bills; yet that the consequences of such a decree are entirely destitute of weight, cannot be said. The pecu™ li'arity of the covenant for title, leaving the legal estaté with Hotchkiss, and cutting off Fortson’s remedy until the whole purchase money was paid, is not the kind of covenant on which the English, decisions are founded; there, the parties have been left to their mutual remedies at law; here, Fortson’s heirs can have no remedy, as this case is circumstanced.

We decree that the use of the land be set off against the interest of the six hundred and eighty .dollars; that the eighty dollars be refunded; that the present value of the land be ascertained immediately by the master; and the amount refunded to the administratrix of Fortson.— That the judgment at iaw must be perpetually enjoined, and Hotchkiss pay all costs of these suits and the suit at law.

Hecrefe reversed.  