13 Pa. 278 | Pa. | 1850
The opinion of the court was delivered by
The prayer of the plaintiff’s bill is that the defendant, Patton, shall be compelled to deliver up the bond and mortgage, and enter satisfaction on the record thereof; that the articles of July 12, 1837, be surrendered for cancellation; and that the defendants be restrained, by perpetual injunction, from suing, at law, the bond and mortgage executed by the testator.
That prayer, in effect, calls upon the court to exercise its authority in revocation of the agreement of July, 1837; thus invoking its action, not to enforce the specific performance of a contract, but to decree its destruction. Now, nothing is better ascertained than the distinction which works a practical difference between a chancellor’s interference for the purposes of execution, and the exertion of his authority in avoidance of an undertaking legally valid. He may refuse to lend his assistance to consummate an unconscionable bargain, accompanied by circumstances of suspicion, though not positively unfair; yet it by no means follows that hardship, or even suspicion of unfairness, is always potent enough to move him to action; and it has been truly and forcibly said, a consequence of this distinction is, that though equity will refuse to interfere to execute wherever it would revoke, it may refuse to revoke where it would decline to execute. Delamater’s Estate, 1 Wh. 374. The cases in which this peculiar jurisdiction is properly exercised are said, by the same authority, to be reducible to one of the four heads of fraud, mistake, turpitude of consideration, and circumstances entitling to relief upon the principle of quia timet; and each of these should be established by positive and definite proof. It has not been urged that the case presented by the plaintiff is embraced by the last mentioned division; and we are, consequently, confined to the inquiry, whether he has exhibited any evidence which sufficiently brings it under either of the three preceding heads ?
This question, we are of opinion, admits of ready answer. Though the complainant’s bill suggests that the agreement of the 12th of July, which constitutes the defendant’s, Rose Gragg’s, title to the mortgage in controversy, was unfairly obtained from Elliott, while laboring under some mistake or misapprehension of his rights, and the duties he owed to himself and his son-in-law, we find nothing in the proofs laid before us positively establishing
The indenture executed between Elliott and Patton, declaring the trusts upon which the bond and mortgage were held by the latter, bears date the 30th of June, 1837. But prior to this, on the first of that month, we find that Elliott was in correspondence with Mr. Brown, who appears to have been his legal adviser, in reference to some important business about to be transacted. After this came the note of June 20th, by which Elliott requested Brown to prepare an instrument of writing, declaring the propositions and arrangements Cragg had or might make with the banks, (doubtless in respect to the notes endorsed by Elliott,) and suggesting that he would call, personally, on Mr. Brown in a few days. The next step, so far as we are informed, was the execution of the mortgage and accompanying agreement by Elliott and Patton; and this was followed, on the 3d of July, by a note from Mr. Brown to his then client, Elliott, in which is stated the understanding entertained by the former, of the terms and conditions upon which Cragg was to take an interest in the mortgage. This correspondence clearly indicates a prior negotiation between, and a conclusion arrived at by, Elliott and Cragg, which had been communicated to Mr. Brown, with the intent of having it put in a formal and binding shape. Upon the letter is an endorsement,
But the validity of the agreement in dispute is principally assailed for alleged want of consideration. To make this objection available, it is insisted the contract was executory, and being
Again, it is affirmed to be against rule that courts of equity will not interfere to carry-into effect unexecuted voluntary contracts, inter vivos, but will leave the parties to their remedies at law. And this in the absence of fraud or mistake, is the extent to which the principle is carried, for the doctrine is to be understood with the qualification that although chancery will withhold its aid to consummate a voluntary agreement, unexecuted, where something remains to be done by the contracting parties, yet where it is executed, equity will give effect to all its consequences: 1 Story’s Eq. 433, N. 3. In such a case a consideration is unnecessary: Delamater’s Estate, l Wh. 375. Upon this distinction rests the determination in Pennington vs. Getting, 2 Gill & John. 209, where the court refused to give effect to an intended gift, by a parent to a child, of certain bank stock, of which the certificate was handed to the contemplated donee, but no transfer of it was made on the books of the bank, which was the only recognized mode of passing an interest in the shares; of Duffield vs. Elwees, 1 Bligh R. 529, where the Master of the Rolls refused to compel an executor to complete a proposed donation, inter
But are they so ? I am inclined to think they are not. Even supposing the original notes were endorsed for the accommodation of Cragg, with the purpose of advancing him by a donation of a portion of his father-in-law’s estate, his undertaking to assume upon himself the liabilities imposed by Elliott’s agreement with Patton, amounted to a consideration. True, he was legally bound for the payment of his own debts, but he was not compellable to discharge them in the manner and time stipulated by that agreement. Now, it is not to be disputed that if one at the request of another, assume to do a thing he is not compellable in law to do, from which that other derives a benefit, this will constitute a good consideration, and its mere inadequacy, compared with the benefits to be derived by the performing party, will not affect the validity of the contract.
But the plaintiff further objects that the debts, to secure the payment of which the bond and mortgage were executed, having been paid, these instruments must be treated as functus officio.— Were this even so, I doubt whether it would afford ground for administering the remedy prayed here. But, waiving this, a little examination will demonstrate the objection is untenable. It is founded upon the modern doctrine of the English Chancery, adopted by Mr. Justice Story, in his treatise upon Equity Jurisdiction, which denies to a paying surety the use of the instrument taken to secure the debt paid, upon the technical notion that payment extinguishes the instrument, and so renders it worthless for every purpose. But this supposed effect of payment has never been recognized in Pennsylvania. On the contrary, we have expressly repudiated it, as may be seen by consulting Fleming vs. Beaver, 2 R. 128; Croft vs. Moore, 9 W. 451;
It is further urged that Cragg failed to comply with his contract, and thereby lost whatever benefit he would otherwise have been entitled to under it. But it is in full proof that his partial failure was caused by the bad faith of the other contracting party, who sought to make his own breach a ground for invalidating the agreement. This was a fraud upon his contract, and falls within the maxim, that no man shall be permitted to take advantage of his own wrong.
Besides, Cragg’s default may be pecuniarily compensated, and therefore cannot be used to defeat, in toto, his interest in the mortgage. It operates to affect it only pro tanto.
Another objection is, that the contract of July is in violation of the rights of Elliott’s creditors, and therefore void. But these creditors are not before the court; nor have we the means of ascertaining whether the remaining portion of Elliott’s estate is insufficient for the payment of his debts. Even then, conceding the contract to be purely voluntary, and void against creditors, there is no pretence for so declaring it, until, at least, the plaintiff shows the insolvency of his testator’s estate.
I have, I believe, noticed all the grounds upon which the plaintiff’s prayer for relief has been pressed, and find none of them of
Decree at Nisi Prius, dismissing the bill with costs, affirmed.