34 Ala. 663 | Ala. | 1859
In giving directions to the register, as to the mode of ascertaining the complainant’s damages in this case, the chancellor erred. The correct rule is laid down in Stow v. Bozeman, 29 Ala. 397, and Williams v. Mitchell, 30 Ala. 299.
2. It is contended for appellant, that the complainant’s bill should have been dismissed — 1st, because he had an adequate remedy at law; and, 2d, because he fails to establish by credible testimony any material misrepresentation by Eennell of the boundaries of the land.
The various questions growing out of contests between vendors and vendees of land, have probably furnished material for as much litigation in this State as any other class of contracts. Like most other subjects which have been often before this coui’t, it is somewhat difficult to reconcile all that has been said in the several cases. This renders it unsafe to affirm, with certainty, any absolute rule, which shall, in all cases, inform the practitioner when his defense is at law, and when he may resort to equity. We do not propose to remove any difficulties, save those which seem to be called for by the present record.
The present bill charges, that Eennell, the agent of Kelly, in negotiating the sale to complainant, misrepre
The complainant, at the time he commenced the present suit, had a clear right to maintain an action at law against his vendor, for the damages he complains of. Munroe v. Pritchett, 16 Ala. 785; Gibson v. Marquis, 29 Ala. 668; Gordon v. Phillips, 13 Ala. 565; Morgan v. Patrick, 7 Ala. 185. On the facts disclosed in this case, the vendor could not, at the time he filed this bill, defend, on the ground stated, against a suit for the purchase-money. — Patton v. England, 15 Ala. 69 ; Dunn v. White, 1 Ala. 645; Calloway v. McElroy, 3 Ala. 406; Elliott v. Boaz, 9 Ala. 772; Horner v. Purser, 20 Ala. 573 ; see, also, Newell v. Turner, 9 Por. 420. He could, under the Code, make such defense. — Holley v. Younge, 27 Ala. 203 ; Marquis v. Gibson, 29 Ala. 668.
Having at the time an adequate remedy at law to sue and recover damages, and having, under the decisions of this court, no right to make his defense at law when sued for the purchase-money, did this confer on him the right, in a case in which no rescission was sought, to file a bill in chancery, obtain an injunction, and, in this way, recover compensation in damages for the fraud or misrepresentation ? Can a bill be maintained for compensation, as an independent ground of relief, when the damages complained of' are susceptible of certain ascertainment, or will such relief be granted in chancery only as an incident to some other relief of equitable cognizance ?
In Aday v. Echols, 18 Ala. 353, a bill was filed for specific performance of an oral contract for the purchase of land, and failing in that, was retained as a suit for compensation. The principle declared is sustained by many decisions, a leading one of which is Denton v. Stewart, 1 Cox, 258 ; see, also, Greenaway v. Adams, 12 Vesey, 395; City of London v. Nash, 3 Atk. 512, 517 ; Cud v. Rutter, 1 Pr. Wins. 570; Phillips v. Thompson, 1 Johns.
The principle, perhaps, rests on an extension, of doubtful propriety, of the doctrine of cy pres. It has been assailed in many able and well considered opinions. We do not pronounce on it now, as this case rests on a different principle. — See the following authorities : Jenkins v. Parkman, 1 Cooper’s Sel. Cases, 179, 8 Eng. Ch. 430 ; Clinan v. Cooke, 1 Sch. & Lef. 22, 25 ; Guillim v. Stone, 14 Vesey, 129; Todd v. Gee, 17 Ver. 274 ; Hatch v. Cobb, 4 Johns. Ch. 559; Kempshall v. Stone, 5 Johns. Ch. 193 ; Sims v. McEwen, 27 Ala. 184, 192 ; 2 Story’s Eq. § 778, and note.
It is manifest to us that, as a mere defense, in the absence of a special equity, the bill in this case should not be maintained. — See Harris v. Deramus, 33 Ala. 463; McLemore v. Mabson, 20 Ala. 137; Magee v. McMillan, 30 Ala. 420 ; Long v. Brown, 4 Ala. 622.
We are aware that two cases have been before this court, in which relief in the shape of compensation was decreed, on bills filed solely for that purpose. — See Stow v. Bozeman, 29 Ala. 397, and Wright v. Wright, in manuscript. In each of those^cases, the appeal was prosecuted by the complainant; and no question was, or could be raised on the equity of the bills. Although they were probably not distinguishable from the present one, even if Ave regard this as a bill solely for compensation, without special equities ; still we do not regard them as committing us to the proposition, that those bills were well filed.
We need scarcely add, that there are many cases, in which there exist special equities, which justify a resort to chancery. The following are instances:
1st. When the vendor makes false or fraudulent representations as to a matter material to the boundary or title, and the vendee on that account seeks a rescission. — Harris v. Carter, 3 Stew. 233 ; Pitts v. Cottingham, 9 Porter, 675 ; Young v. Harris, 2 Ala. 108; Clemens v. Loggins, 2 Ala. 514; Camp v. Camp, 2 Ala. 632; Spence v. Duren, 3 Ala. 251; Duncan v. Jeter, 6 Ala. 604; Elliott v. Boaz, 9 Ala. 772; Griggs v. Woodruff, 14 Ala. 9; Patton v.
2d. When the defense relied on is a'defect in, or incum-brance upon the title, and the vendor is insolvent, or unable to respond in damages; or, if the incumbrance be of such a character that it does not admit of reduction to a money value, chancery will interfere, and indemnify tlie purchaser, by arresting, jiro tanto, the collection of the purchase-money. Christian v. Scott, 1 Stew. 490; Smith v. Pettus, 1 S. & P. 107 ; Wilson v. Jordan, 3 St. & P. 92; Wiley v. White, 3 St. & P. 355 ; Larkins v. Bank of Montgomery, 9 Por. 439; Stone v. Gover, 1 Ala. 287 ; Clemens v. Logging, 1 Ala. 622; Dunn v. White, 1 Ala. 645; Bliss v. Smith, 1 Ala. 273 ; Giles v. Williams, 3 Ala. 316; Olay v. Dennis, 3 Ala. 375 ; Cullum v. Bank, 4 Ala. 21; Starke v. Hill, 6 Ala. 785 ; Bates v. Terrell, 7 Ala. 129 ; Tankersley v. Graham, 8 Ala. 247 ; Bird v. Daniel, 9 Ala. 302; Knight v. Turner, 11 Ala. 636 ; Hunter v. O’Neal, 12 Ala. 37; Greenlee v. Gaines, 13 Ala. 198; Parks v. Brooks, 16 Ala. 529 ; Springle v. Shields, 17 Ala. 296 ; Read v. Walker, 18 Ala. 323 ; McLemore v. Mabson, 20 Ala. 137; Thrasher v. Pinckard, 23 Ala. 616; Wray v. Furniss, 27 Ala. 471.
3d. There are, also, other special equities, which will uphold such bill; and acquiring jurisdiction for one purpose, the court of chancery will go on and do complete justice between the parties. — Williams v. Mitchell, 30 Ala. 299 ; Stewart v. Stewart, 31 Ala. 207.
We think, however, that this bill does present a special equity, which will uphold the jurisdiction of the chancery court. Mr. Kelly, the vendor, had removed from the State, and had died; and his estate was settled up and distributed in the State of his last residence. The complainant iu this bill could not defend at law, as was then well settled by several decisions of this court. This, we think, justified a resort to the process of injunction, which
The giving of the new notes, and the promises made to pay them, being without any new consideration, do not estop the complainant, from making defense. — Finn v. Barclay, 15 Ala. 626; Ware v. Cowles, 24 Ala. 446; Carroll v. Malone, 28 Ala. 521.
If this were an independent suit for relief, the question of laches would demand a much more serious consideration, than it does in its present form. This suit, however, is defensive. It seeks to recover nothing, but simply to reduce the recovery of the plaintiff in the suits at law. It concedes a liability, but controverts the extent of it. Being defensive, we can not apply to this case the doctrine of staleness. As well might it be urged, that a defense which rested on fraud, or failure of consideration, in the sale of a chattel, was lost by a failure to rely upon it, until a suit for the purchase-money rendered its assertion necessary.
In aid of this view, it is proper to say that, as we under
The decree of the chancellor is reversed, and the cause remanded.