#### *Rowland vs. Garman, &c.*

Changer*»

Case 24.

Error to the Warren Circuit; Henry Broadnax, Judge.

*Contract for land by parol. Statute of frauds. Rertsion. Parties. Dismissal of bill absolutely or without prejudice. Practice.*

Frebruary 2.

Bill, answer and proof.

No suit can be maintainrol'^Mt'uc"' for la mb °° Contract not *ipso facto*Yoid'

Tarty in fault cunnot be re-equity.10 If one party performs, the otb^cannct

The character o.1 Garsm n’s sale. Plaintiffs múifit have obtained title Proper parties not made.

If proper parties, decree of *77the court below corieot. Bat dismissal of tbe bill> errorUteJy

*76Judge Robertson,

sitting alone by consent, delivered the following opinion.

Although the bill alleges that the contract for land, .which it seeks to rescind, was not reduced to writing, the only defendant before the court refuses to admit it, and the complainant has taken no proof; but if it be conceded that the contra<A was parol, it does not follow that the chancellor will, for that cause alone, decree its recision; unless it be reduced to writing conformably to the statute of frauds, no suit can be maintained on it, if the fact, of its not having been written appear; nevertheless it may be good between the parties under some circumstances* and for some purposes.

The chancellor will never interfere and relieve one parly from it, if the other has complied with his contract, or is willing and able to do so. If the vendor is not delinquent, the purchaser has no right in equity to a recision. A court of chancery will not lend its aici to the perversion of justice, on the petition of the party iu faalf.

In this case it is evident that Garman did not sell the legal title, and was never expected to convey it; but that the son of the complainant, Rowland, who held the title, was to make it to the appellants. And it not only does not appear, that there was any inability *or unwillingness to conve), but it is quite clear, (hat the appellants might have obtained the title. It is equally plain that they do not desire to obtain it. They have never applied for it: they have not made the holder of it a defendant, nor have they had publication made against the vendor Garman, who is a non-resident.. Their only object seemed to enjoin the payment of the purchase merely until' “a more convenient season.”

If all the parties had been before the court, the decree should have been as it was; unless it had been *77made to appear that Garman was bound by contract to make the title; and that the holder of the title was unable or unwilling to convey;' but as the proper parties were not before the court, the absolute dismission of the bill was erroneous.

Wben a coin*chZwer/has*been guilty of gross neglect, in anTthiírfnílure may be attributed to 6r>esse, the court will direct the bill to be dismissed ; but without prejudice.

Petition for a ro-beanng.

Thomas B. Monroe, *counsel for complainant presented a petition for a re-hearing.*

If, under a.different aspect, this court might in reversing for want of parties, leave the case open on its return, nevertheless, as the complainant below seems to have intentionally failed to make the proper parties, fo r the purpose of giving to their case a more speciouS semblance of equity, and of preventing a clear dis closure of their want of title to relief, and as nothing which has been made to appear indicates a probability that their case’ was, or could be made a meritorious one.

The decree must be reversed, and the case remanded, with instructions to dismiss the bill without prejudice, and each party must pay his own costs.

PETITION FOR A RE-HEARING.

I ask for a reconsideration of, this case with great reluctance, but I believe it is my duty. If the court had done no more than to reverse the decree, dismissing the bill absolutely, and directed the dismissal without prejudice, because Garman had not been made party, I should not have said one word, because I would have supposed the decree according to the settled course of practice. I -deed, nothing else would have been contended for, had it not been for the case of Hoffman and Marshall; in consequence of that case, a hope was entertained, that the court seeing the merits of our case, would give us leave to have a publication against Garman, and the controversy settled without a new. suit; but the court has decided that we have no merit. On this point a reconsideration is respectfully asked.

It is true one bill is brought to enjoin a judgment, on the ground, the obligation it was recovered upon, was given for land we had purchased of •the obligee, for which he has given us no obligation in *78writing; but there is another ground distinctly taken in the bill—that the, obligee, Garman, who had contracted to sell us he land, had no title to it. Let *it*then be granted, the contract was not by parol; and suppose, as the defendant has not admitted, there was no writing, that Garman’s- obligation to convey the land. There is then the allegation of his lack, indeed, total destitution of title; which is admitted in the answer of Edwards. For he insists on this fact, and he admits it in so many words, that the complainants did purchase the land of Garman; and the note, the judgment was recovered upon, was given for a part of the consideration, and he says over again, that it *wnsfrom*Garman the purchase was made. Then the bill and answer present a clear and simple case of a hill, to enjoin a judgment on the ground, that the consideration of the note it was recovered upon, was an executory contract for land, to which the obligee who sold to the obligor of the note, had and still has no title. I say nothing here of parol agreement. Let it be granted Garman was bound by writing. And then, can there be a doubt of our right to relief on this case. I will not cite an authority to prove it; but an attempt is made to make the case otherwise. It is alleged in the answer, that there was a “clear understanding” that the complainants were to look to Archibald Rowland for the title; but where is the proof of this fact? Remember it is-admitted Garman sold the complainants the land, and that they bought of him, and this “clear understanding” is alleged by way of, and is strictly matter of avoidance. Where, I respectfully ask, is the competent proof of this allegation? There is none. Surely a contract by parol, would not bind us. One who is bound to convey land, cannot resist the demand for title; nor can he insist on the consideration, when he cannot convey, by alleging a parol contract, that the purchaser had agreed by parol, to look to another for the title, and certainly he could much less prove such a written contract by parol evidence. The case of Oldham vs. Woods, 3 Monroe, 48, where specific performance or a recision was the question, the court decided that an incumbrance of the land could not be proved without producing the deed of mortgage; but here the defendant does not *79even allege, that either he or the complainants held any written obligation on Archibald Rowland, for a conveyance. And if he had, the existence of the is not proved. The objection then, is to both the validity and competency of the proof offered to establish the alleged agreement, that we were to look to Archibald Rowland to fulfil the agreement we had made for the land. It does therefore seem to me the case was-for the complainants on the merits; and it is important for .them, that the present opinion shall not stand, because when they bring us their new bill, they will be met by it; and certainly barred, if the circuit judge regards it as authority, as he certainly would do. If lam right in supposing no valid contract is proved, that the complainants were to lock to Archibald Rowland for the title, he certainly was not a necessary party.

*78Petition for a re-hearing.

*79Petition for a re-lleariD£-

*Monroe,*for defendants in error.

The petition for a re-hearing, overruled.