16 N.C. 398 | N.C. | 1830
This cause now comes on upon a motion of the plaintiff for further directions; and he claims the assistance of the Court upon the ground that as the contract for the purchase of the land, being by parol, cannot be executed, the payments made by him ought to be decreed back. The question of jurisdiction has been much debated at the bar. In general it may be assumed, with certainty, as the rule that equity does not entertain a bill in the alternative, upon a parol contract for the sale of land — that is to say, to have a conveyance of the land, or the payment of the money back; because, as far as concerns the land, the contract is merely void, and the money can be recovered at law, as money had and received. There have been some cases in which a decree for the repayment of the money has been made in this Court, upon a bill for specific performance. But they turned on their own circumstances; as in Phelps v. Thomson, 1 John. Ch. 132, where it was (400) clear that relief at law would be inadequate; and in Clinan v.Cook, 1 Sch. and Lef., 43, where there was a particular agreement to return the fifty guineas if the main contract could not be performed. But it is unnecessary to consider the cases further, because this point in the present case rests on very special grounds, also. The plaintiff might not be able to get at law that very thing to which alone he has the right. He contends, indeed, that he ought to recover in money the nominal sum which he gave for the land. But as he gave that in a bond on Stanton and Peel, he may not be entitled to the money, unless the defendant has collected it or failed to collect it by his own fault. If no *230 laches could be imputed to the defendant, the plaintiff would be limited to the bond only. It may be said that it could be recovered in trover. So it could, if it had been merely delivered over to the defendant by the plaintiff. But in the present case it came to the defendant by the endorsement of Horn, the plaintiff's guardian, to whom it was payable. The legal title of the bond is therefore in the defendant, and at law the plaintiff could not recover it. Indeed, it appears by one of the exhibits that the debt was put into suit in the name of the defendant against Stanton and Peel, and has ripened into judgment. The jurisdiction in this particular case may be sustained on this clear ground, without reference to the doubt at law at the time the bill was filed, and the supervening bar of the statute of limitations, upon which I wish to give no opinion.
The next and important inquiry is, What is the extent of the relief which the plaintiff can have? The case is that the plaintiff being entitled to the sum of about $700 from Horn, the guardian of his wife, and her brother, agreed to give it to the defendant for a tract of land. Horn had invested that sum and about $400 more in the bond of Stanton and Peel, for $1,100 payable to himself as guardian. After some (401) treaty about dividing the bond, it was finally agreed that Horn should endorse the whole bond to the defendant, as the price of the land, and guarantee all above the plaintiff's own share. This was done, and the plaintiff gave his bond, with the defendant as his surety, to Horn for $424.79, the difference between his portion and the amount of Stanton and Peel's bond. The plaintiff entered upon the land, and the defendant brought suit against Stanton and Peel, and recovered judgment, but has received no money from them, as it turned out that they were insolvent at the time of the contract between these parties. It has been much disputed at the bar whether this bond was received by the defendant in absolute payment for the land, or as a payment if it should be collected. We do not consider it worth our while to determine that, because the decree is upon another reason. We would not, however, help by forced construction to take a man's land away without his receiving anything for it, when he gave such strong evidence of his determination to have good security, as retaining the title. The evidence on this point is, at best, not clear for the plaintiff. But admitting that the contract was as the plaintiff says, where is the ingredient of equity against the defendant to make the bond good? Or what is the plaintiff's equity to anything more than restoration to that which he parted from? The Court has declared the contract, as such, void. The parties are therefore remitted to their original rights. It is said that the plaintiff is entitled to get back what he lost. This was his wife's portion. On the other hand, I think the defendant is to pay back only what he gained. *231 It is his gain, and not the plaintiff's loss, which must regulate our decree. If not, this is not a case of restitution, contract, or trust, but of damages. But if the plaintiff's loss is to be the measure, what part of it is owing to the defendant? It is admitted all around that the obligors were bankrupt while the bond was in Horn's hands. Horn only guaranteed the surplus above plaintiff's portion. He was not bound to do so, (402) if that bond was his ward's property, and he acted bona fide. Then the loss was incurred before the defendant had anything to do with the paper, and not by his fault. If Horn had not acted faithfully, then the plaintiff has a redress against him yet. The defendant has none. The plain rule of right is that the parties should be in statu quo. As the defendant did not receive money from him, nor collect it out of his effects, the plaintiff can ask only for his bond back. The defendant must therefore assign to the plaintiff, without liability, the judgment against Stanton and Peel.
As for the other dealings between the parties consequent upon the contract, they appear to be these: That the defendant brought an action of ejectment against plaintiff, in which he recovered the land; and then recovered also the sum of $200 for mesne profits, in September, 1827; that he likewise sued Horn on his guarantee of the surplus of the bond of Stanton and Peel over $700, and recovered $638.63, including interest, in September, 1828; that the plaintiff had found means to get in from Horn's executor his bond for $424.79, in which the defendant was surety, and that he has caused the same to be put in suit, in the name of Henry Horn, as executor of Jacob. Upon these facts the plain equity is that the last mentioned suit on the bond should be perpetually enjoined, and that, after deducting the $200 recovered for mesne profits, with interest thereon, from the said sum of $638.63, the residue of this latter sum be paid into court by the defendant for the use of the plaintiff, and that the defendant acknowledge satisfaction of his judgment at law against the plaintiff. As the defendant offered to transfer to the plaintiff the judgment against Stanton and Peel, and also that against Jacob Horn's executor, the plaintiff must pay the costs of this suit, to (403) be taxed by the clerk; for which execution may be issued, or the same deducted out of any money which may come into the office for the plaintiff in this cause.
PER CURIAM. Decree accordingly.
Cited: Chambers v. Massey,
