4 Ky. 313 | Ky. Ct. App. | 1809
OPINION of the Court, by
It appears that Bibb purchased the tract of land in the bill mentioned, of Morehead, with the knowledge and assent of Prather and Smiley, who were interested in the land, and held the bonds of certain individuals for the conveyance of the same. From Bibb, Morehead, among other things, received two bonds, for the payment of two hundred and fifty pounds ¡ these bonds were by Morehead assigned to Prather and Smiley, and the amount of one of them was finally collected by said Pra-thcr and Smiley, of said Bibb. But previous thereto, Bibb had exhibited his bill in chancery, suggesting, among other things, a misrepresentation by Morehead of the boundary and quality of the land, alleging pri-vity between Morehead and Prather and Smilejq &c. and praying for relief, &c. On the hearing of the cause the inferior court decreed that the contract should be set aside, that Prather and Smiley should refund to said Bibb what they had received, and appointed commissioners to estimate the rents and profits, &c. So far there is no irregularity or error complained of by either party,
Whilst the rents and profits, as decreed to be ascertained by the court, remained unliquidated and yet depending, viz : on the 6th September 1805, a certain writing, purporting to be a contract of compromise, appears to have been executed by Morehead, in the following words : “ Whereas I stood indebted to Prather
The Nelson circuit, at their June term 1807, took up the cause upon consent of parties by their attornies, upon the written evidence of compromise, &c. decreed the contract (sougkt to be relieved against) to be rescinded, &c. and that Morehead should pay Bibb what Bibb had paid to Prather and Smiley ; that Bibb might collect the same by execution. And they further decreed, that Morehead should pay to Prather and Smiley the £. 250, with interest and costs, by a certain day, and that if not paid by that day, the aforesaid land in-Bullitt should be vested in commissioners, who were directed to sell the same at auction for cash, having first given three weeks notice, &c. Of this decree, both Bibb and Morehead complain, and each of them have sued out a writ of error, and have separately made assignments of error.
In the case of Bibb, the decree is evidently erroneous, in decreeing that Morehead should pay to him the sum he had paid to Prather and Smiley, and thereby exonerating the latter. Bibb having paid his money* under the circumstances, to Prather and Smiley, was entitled to a judgment against them. It was a right which the court could not deprive him of without his consent. It has been contended, that the record does not shew that Morehead was not good for the sum, and therefore that Bibb was sufficiently certain of getting his money : but this view of the case, if true, cannot justify the court, in compelling him to relinquish his actual debtor, for another of their’ own selection, and it is the more insupportable because it constrains him to relinquish an additional security, to which he was entitled 5 had the decree been against Prather and
The decree is erroneous in not reserving the land for the ultimate security of Bibb, or making some provision equivalent thereto ; for it is an undeniable principle of equity, that where one has paid his money for land, in the sale of which such a fraud has been committed upon him as to rendey it necessary to have thq contract rescinded, he shall nevertheless hold the land subject to the reimbursement of the money he has laid out. And it cannot be pretended, that there is any thing in the agreements of compromise, from which it could be inferred that Bibb had consented.to the decree ; the first agreement of compromise, seems to be wholly and exclusively between Morehead and Prather and Smiley, and that in fact conclusively evinces that it was the expectation of the parties, that the decree for Bibb should have been against Prather and Smiley. In the second agreement of compromise, Morehead and Bibb are the only parties ; from this, there is no reasonable ground to infer a relinquishment of his right against Prather and Smiley, by Bibb ; nor does any thing else seem to have been within the contemplation of the parties, other than the adjustment of the rents, profits and improvements, which were without this agreement to have been ascertained by commissioners appointed for that purpose.
The assignment that the decree does not perpetuate the injunction, does not appear to us to be supported by the record.
The decree against Morehead is erroneous : he was never in court at the suit of Prather and Smiley, nor had the pleadings in this case assumed such a shape, that under them he could introduce any equitable de-fence, that he might have against them ; if he had testimony that would have completely exonerated him from all responsibility to them, yet he could not have introduced it, for there was no point in the pleadings that could hare justified its introduction ; since evidence, to be legal, and to merit the attention of a court, must be relevant and illustrative of some point made by the pleadings»
In this case, Morehead, if disposed to plead non est factum to the contract of compromise with Prather and Smiley, could not do so, because it never had been alleged or set up against him. He cannot be considered as having admitted any thing by implication, because till charged he was neither bound to admit or deny. He could not be considered as bound to set up any equity in opposition to them, because he had never been charged by them as answerable for any thing. He could not be put upon his defence till he was attacked, and he could not be attacked in this case but by legal process and due course of proceeding, according to established precedents. To justify the decree against Morehead' in favor of Prather and Smiley, it was incumbent ott them to have filed their bill against him ; and while reason points this out as the only proper course, authorities are not wanting to support it as such. The rule is, that where there are two or more co-defendants, Saving interests adverse to each other, be they of what description they may; for any one thus situated, to have relief against his co-defendant, he must file his bill; or that the court, seeing that complete justice cannot be done in the whole case, may sometimes direct a bill to be filed for the purpose of settling the whole matter of controversy : and this seems to be particularly necessary ; for two defendants, not wishing immediately to enter into a controversy with each other, might unite cheerfully in-making their defence against the complainant; as, for example, in the case supposed, viz. that Morehead had' bought the land of Prather and Smiley under the same circumstances that attended his sale to Ribb, they would-be mutually interested in defending themselves against-
But it is contended that the agreement of compromise contains Morehead’s consent that the decree now complained of should be given, and that his attorney consented thereto, being fully authorised to do so. Whether the instrument of writing, if it could be admitted to be genuine by the attorney, justifies the decree that was pronounced, it is not material to enquire into, because we are clearly of opinion he had no right to make any such admission, as Morehead was not in court at the suit of Prather and Smiley. The case of Lindsey and securities vs. M'Clelland
Ann 263.