27 Ala. 503 | Ala. | 1855
It is an admitted principle of law, that where parties stand in cequali jure, with reference to liabilities arising ex contractu, equality of burthen becomes equity. 4 Kent, 390, 391, ed. of 1854.
In this case, the parties, being equally bound by the covenants in their joint deed to Cavender, were equally bound to bear the burthen of any loss which might accrue therefrom ; but this equality can be destroyed by the act of the party in superinducing the loss, or by their mutual contract subsequently entered into. If the goods of a party are necessarily thrown overboard in order to save the ship, he has the right to have contribution; but if such party occasion the distress by boring a hole in the vessel, he is -legally the cause of his own loss, and must suffer it. In the case at bar, by a written contract entered into after the joint conveyance was made to Cavender, Johnson undertook to obtain a grant for the land which they had so conveyed. The bill shows that this was practicable, and his failure to do so resulted either from his negligence, or wilful refusal. The failure to obtain the grant, which Johnson had bound himself to obtain, is the cause of the loss, a portion of which he is seeking to recover from Crayton ; and such being the case, he has not even a plausible pretext for instituting his action for contribution. — 24 Ala. 285. If the allegations of the bill be true, the complainant has a clear, adequate, and complete remedy at law ;■ and as he comes into equity for relief, and not for discovei’y merely, the chancellor properly remitted him to his legal defence, by dismissing his bill. By an express provision in the Code, aside from the rule so generally recognized before its adoption, the powers and jurisdiction of courts of chancery do not extend to cases in which a plain and adequate remedy is provided in the other judicial tribunals. — § 602.
Decree affirmed.