Henry v. . Elliott

59 N.C. 175 | N.C. | 1860

The plaintiff, admitting in his bill that his intestate, when he purchased the land in question, knew that the defendant's intestate had but a life-estate as tenant by the curtesy in it, puts his claim to relief in this Court upon the alleged ground that the vendor promised to procure from his two children, who were the owners of the remainder in fee in the land, deeds to the vendee for such remainder. This allegation is not admitted by the answers, and there is no proof in support of it, so that the defendant contends that the bill must be dismissed for the defect in the proof of a material allegation. (177)

But the plaintiff insists that, as there was a partial failure of the consideration, he can not, in equity and good conscience, be required to pay the full price of the land. Supposing that there was no objection to his recovery, because of the variance between his allegata et probata, there is a decisive objection to his claim; it is, that he admits that his intestate, when he purchased the land, relied upon the vendor's warranty as a security for the amount paid, until the alleged verbal agreement of the vendor to perfect the title should be complied with; and there is no pretense that the intestate's estate is not fully sufficient to answer all the damages which he can recover in an action on the covenant of warranty. He had then a full remedy at law; and he has it still, unless by his own act of purchasing the outstanding title he has deprived himself of it.Hauser v. Mann, 5 N.C. 411, and Richardson v. Williams, 56 N.C. 116, cited and relied on by the plaintiff's counsel, were decided mainly upon the ground that the defendants, who were non-residents of this State, and had no property here out of which a recovery at law could be made effective, ought to be enjoined, in equity, from the recovery of a debt or damages which could not be recovered back at law, except by means of a suit in another State. The principle of such cases is, that our Court of Equity will give redress where, otherwise, the party seeking it would be driven into the Courts of another State for the purpose of obtaining it. The other case of Jones v. Edwards,57 N.C. 257, was simply an order for continuing an injunction until the hearing, on account of the evasiveness of the defendant's answer. Neither case affords any support for the argument that the Court of Equity ought to interfere in behalf of a person, who has a plain and adequate remedy at law in our courts; particularly when he had that remedy in contemplation, and relied upon it when he entered into the engagement out of which the controversy arises.

PER CURIAM. Bill dismissed with costs.

(179)