12 Ga. 61 | Ga. | 1852
By the Court.
delivering the opinion.
This was a bill filed by Madison Marshall, against Matthew H. Means and Ephraim Kendrick. It charges, that on the 6th
That on the 26th ol December, 1849, Marshall, the complainant, bought of Kendrick, the land, and took an assignment of the bond for titles, and assumed the payment of the notes given by Kendrick to Means. The original bill charges, that the complainant, “ confiding in the statements and assurances of Kendrick, was induced to make said contract, and promises and agree to take up the note,” but in the amended bill, he states that but for the assurances of Means, that the facts set forth in the bill were true, he would not have made this bargain. The bill further states, what appears by inspection to be true, that the assignment of Kendrick of the bond, omitted to specify the terms of the contracts, both between himself and Kendrick, and between Kendrick and Means.
That the complainant has paid off the notes, which he found transferred to a third person. The bill does not admit that he has received a deed, but it is to be inferred that he has. On
The bill seeks to remodel the contracts between Means and Kendrick, and Kendrick and complainant; and prays that Means be decreed to pay the value of clearing the twelve acres of land, the additions to the house, the lumber and nails, the mistake of $44.95, in the amount for which the notes were given ; also, fifty dollars rent, for holding over the land for two months, together with the value of the manure and rails hauled off by Means, while he held possession in 1850. “ Or if on the coming in of the answer and the submission of the proofs, on investigation, it should appear that all the charges in said bill are false, that then the said Kendrick, for his faurd, be required and compelled to make due and adequate compensation for his default in the premises.”
To this bill a demurrer was filed, on two grounds:
1. Because it was multifarious.
2. For want of equity.
Now, conceding that all the other matters of complaint grew out of the original contract, and are germain to it, what has the rent which is claimed for the occupation of the premises by Means, tor two months after the time when he should have delivered
As to the holding over by Means for two months, and the removal of the manure and the rails, Marshall has an ample remedy at Law, provided he has a title to the land. Pie no where avers that he has not; and it was necessary to make this allegation, before he could ask the aid of a Court of Equity. But it is clearly inferable from the bill, that he has a deed. He took possession of the premises in March, 1850. He states in one place, that he could not induce Means to make him a conveyance, without paying up the whole amount of the notes, which he avers he has done. "While setting forth the specific injuries received at the hands of Means, for failing to perform his various undertakings, and the amount of damages accruing to the complainant from each, he does not complain of his failure to execute titles, as one of them; nor does he pray for titles to be decreed. The conclusion is inevitable, that he has them. And if so, then the Common Law' remedy is complete, for the injuries complained of, other than those arising out of the original agreement.
It is a bare right to file a bill in Equity. Before such an interest can be assigned, so as to give the assignee a locus standi injudicio, in Chancery, the party assigning such right, must have some substantial possession, and some capability of personal enjoyment, and not a mere naked right to maintain a suit. Ibid."
In Prosser vs. Edmunds, (1 Younge and Coll, 481, 496, 499,) Lord Abinger said : “ The assignee purchases nothing but a hostile right, to bring parties into a Court of Equity, as defendants to a bill filed for the purpose oí obtaining the fruits of his purchase. What is this but the purchase of a mere right to recover? It is a rule, not of our law alone, but that of all countries, that the mere right of purchase shall not give a man a right to legal remedies. The contrary doctrine is no -where tolerated, and is against good policy. All our cases of maintainance and champerty, are founded on the principle, that no encouragement should be given to litigation, by the introduction of parties to enforce those rights, which others are not disposed to enforce. There are many cases where the acts charged, may not amount precisely to maintainance or champerty; yet of .which, upon general principles, and by analogy to such acts, a Court of Equity will discourage -the practice.”
Lord Abinger continues-: “ Mr. Gridlestone was so obliging as to furnish me with a case, that of Wood vs. Downs, (18 Ves. 120,) in which it appears to me, that the principle laid down by Lord Eldo?i, goes the full length of supporting the judgment of allowing this demurrer. That was a bill filed to set aside certain conveyances, which it was alleged were obtained by the defendant in consequence of his situation of solicitor to the plaintiff ; the estate comprised in the conveyance, not being in their possession at the time, but subject to litigation. Lord Eldon, in decreeing relief, adopted not only the ground, that the party was the solicitor of the plaintiffs, but that the transaction was contrary
Again, when he went to pay the notes, and discovered that they were drawn for ‡44.95 too much, why did he not at once repudiate the contract ?
Even an express warranty is no protection against visible de
In no view7, therefore, which we can take of the case, can this bill be sustained.