#### *Burnham vs. Oldham &c.*

Chancery.

Case 136.

Error to the Madison Circuit; George Shannon, Judge?.

*Vendor and vendee. Sel ojf in equity. Dower.*

Contract for land.

Judgment for part of the purchase money.

Judgment on the obligation to deliver possession.

Bill for the title; decree and conveyance accordingly.

Burnham’s bill for set-t against the judgment.

December 2.

Judge Owsley

delivered the Opinion of the Court.

Burnham purchased a tiact of land of John R. Oldham, took Oldham’sbond for a title,, and his separate covenant to deliver the *possession,*and at the same time Burnham gave his notes to Oldham for the purchase money.

One of the notes, for $250 in Commonwealth’s bank paper, afterwards, by assignment, was transferred to Crews, who brought suit thereon against Burnham, and recovered judgment at law for the amount thereof, Crews having endorsed his willingness to accept bank notes in payment of the judgment.

Burnham brought suit at law against Oldham, upon the covenant to deliver possession, and recovered judgment for $71, and cost.

He also brought a suit in chancery for a title, and having obtained a decree therefor, a conveyance was accordingly made by a commissioner appointed by the court for that purpose, and the deed approved and recorded.

After this, Burnham filed his bill in equity, with injunction against the judgment recovered by Crews, in which he sets out the preceding facts, charges that Oldham’s wife has not relinquished her dower to the land purchased by him, and threatens that she will never do so; that Oldham is insolvent, and unable to pay the damages recovered by him in the action on the covenant, for the delivery of possession; that the entire possession has never as yet been delivered; and he claims compensation for the rent of the land, which has accrued since the judgment on the covenant. He prays that the damages recovered in the action upon the covenant, the rent of the land which has since accrued, the cost of the suit at law, and the cost of the suit brought in chancery for a title, be set off against so much of the judgment of Crews, after reducing that judgment *653to its value in specie, and also that such decree Be 3endered as may secure Burnham a just indemnity against the claim of Oldham’s wife for dower in the land.

Decree of the circuit court.

payment of no part of the Pprc^(j“0~ rou ted on the grounds vender’s11 dovrafter a conveyance gUiYiioquity.

Vendee cun-- ■ not set off oftho purchase money ihe damtention of the ¡and in posvendor subsequentto are-e deliver the premises,

d’K,S* vn-ed may Té setoffinequity^because ot ¡0'®_corinex'

On hearing, the bill of Burnham was dismissed, with cost and damages, and he appealed.

The equity set up on account of the failure of Mrs. Oldham to relinquish her dower, is, under the circumstances of this case, of no avail. Having brought suit, obtained a decree for a title, and accepted the conveyance made by the commissioner under the decree, it is too late now for Burnham to object to paying for the land on the ground of possible danger from any future claim which may asserted by Mrs. Oldham for dower, even were it admitted that the claim of Mrs. Oldham for dower might have been availing, (but which is not intended to be decided) if the suit had not been brought for a title, and the conveyance made.

*Nor can the claim for accruing rents,*since *the*judgment recovered by Burnham on the covenant, be sustained. In the action upon that covenant, breaches were assigned for not delivering the possession of the land, and having recovered judgment at law, equity cannot give its assistance by again trying the breaches of the covenant, and assessing damages heyond what has been found by the jury at law.

The damages recovered at law ought, however, we think, to have been set off against the judgment of Crews. Those damages were assessed for the breach of a covenant, which formed a part of the consideration of the note upon which the judgment of Crews was recovered, and ought, therefore, in equity and justice to be applied in extinguishing so much of Crews’judgment as will be equal in amount to the damages and cost, after reducing that judgment to its specie value. The cost of the suit in chancery for a title, upon the same principle, forms a good set off. Those costs are incidents to the same contract, and should be applied in extinguishing the judgment of Crews in the same way.

The decree must -be reversed with cost, *the*cause *654remanded-to the court below, and, after taking the account according to the principles-of this opinion, the injunction must bo made perpetual for so much as the complainant, Burnham, may be found to be entitled to a set off for; and as to any balance of the judgment, the injunction must be dissolved, with cost and damages.

Mandate.

*Turner and Break*for plaintiff; *Caperton*for defendant.