#### BENTON RAY, *Adm’r., and others against*EDWARD M. SCOTT *and others.*

A suit in equity seeking to set aside a deed, because of incapacity on the part of the bargainor, and fraud and imposition on the part of the bargainee, is not for the same matter as one alleging that a deed was intended to be only a contract to convey on payment of the purchase-money, and was erroneously worded, because of the ignorance, mistake or fraud of the draftsman, and a plea alleging the matter of the former suit in bar of the second, was over-ruled.

Cause removed from the Court of Equitylof Orange>county.

The bill alleges that Moses Leathers agreed with the defendant, Scott, that.he would sell him the tract of land, in question, lying on Eno river, at the price of $2000, whenever the purchase-money for the same was paid to him, and that such purchase-money was to be paid within thirty days thereafter, and that the parties proceeded, as he supposed, to reduce this contract to writing, and that a writing was then and there prepared by the defendant, Edward M. Scott, which he supposed was an instrument embracing the terms of their contract as above set out, but that in fact and in truth, the instrument was an absolute conveyance of his land to the said Scott in fee simple: that thi's departure was by the mistake, ignorance or fraud of such draftsman ; that the instrument in ques^ tion is not formal in its terms, and was well calculated to mislead Leathers, who was himself ignorant and unacquainted with the business of conveyancing; that Scott paid him no money then, nor has he since paid him any; that th¿ said Scott was well known to him to be at the time utterly insolvent, and that he never would have thought of selling.him his only tract and homestead without some security for the purchase-money. The bill further alleges, that the said Scott has conveyed the land, in question, to the defendant, Webb, as a trustee, to secure the debts of the other defendants, Sims and the McOawns, and that they had notice of Leathers’ equitable claim; that the said trustee has sued him in an action of ejectment and threatens to turn him out of possession. The *284prayer is, that the deed, in question, may be reformed, and that it may stand, as it was intended to be, a bond to sell and convey the land, in question, to the said Scott on the payment of the purchase-money, and that the defendants may be enjoined from proceeding, at law, to oust him of his possession, 'and for general relief.

This suit was originally instituted in the name of Moses Leathers, but his death having been suggested, Benton Ray, his administrator, and the children and heirs-at-law of the said Moses, by their next friend, the said Benton Ray, were made parties plaintiff. The defendants pleaded in bar that the plaintiff’s intestate, Leathers had, before the commencement of this suit, brought suit in the court of equity, alleging that Scott and Sims, being both very desirous of getting his land, came to his house, and finding him in a debauch of several /days duration, when he was totally unfit to make a contract, persuaded him to sign a paper, the contents of which, he was too drunk and stupified to know and understand, but which turned o'ut to be a deed in fee-simple to Scott for his land for $2000, which it was expressed in the said instrument, the said Scott was thereafter to pay; that the land was after-wards conveyed by Scott, in trust, for the benefit of Sims and the McCawns, and that the whole transaction was in pursuance of a fraudulent combination between Scott, Sims and John and William McOawn, the prayer of which former bill, is stated to be for a declaration that such deed is void for the fraud, and that it be surrendered for cancellation. The plea avers the identity of the parties and of the cause of action, and concludes in bar of the said suit.

The-cause was set for argument on the bill and plea of defendants.

*Graham,*for the plaintiffs.

*Phillips,*for the defendants.

PeaesoN, C. J.

The only question presented is this : taking the matters alleged in the plea to be true, is the equity *285which the1 plaintiff seeks to set up by their bill now filed, the same as the equity which the intestate attempted to 'set up in the first bill, and which was adjudged against him: in other words, does this bill seek to enforce the *very equity*which has been adj udged and decided by the decree in the first- suit.

Upon this argument the Court is confined to- the matters alleged in the bill and the matters set out in the plea, and for this reason, very great particularity is required in framing the plea. Without deciding whether this plea is informal in this, that it does not set out, in so many words, the bill in the first' case, and does not set out the decree in that case, but simply states the substance and effect and material parts of 'the bill and decree, we piit our decision on the ground that the equities are not the same, and that the equity of the bill, now before us, was not adjudged by the former decree.

, The equity, which the bill seeks to set up is, that the intes-’ tate of the plaintiffs, having made a contract to sell his land to the defendant, Scott, the intention was to reduce- the *contract of sale*to writing, and in drafting the writing, either by the mistake or the-ignorance or the fraudulent design of the draftsman, who was tliQ defendant, Scott, the paper was so worded as to be a *conveyance*of the land instead of a *cont/raet to convey*on the payment of the purchase-money.

The equity of the first bill wras, that the plaintiffs’ intestate never intended, either to convey, or to contract to convey, his land, and that he was induced to sign and execute the paper, at a time when, from the effects of drinking, he was incapable of making a contract, and so the deed was obtained from him by fraud, and was void by reason of his incapacity.

These equities are wholly distinct and different: The first bill would' have made the deed void and of no effect, against all persons, either as a contract to convey, or asa conveyance of the estate, or any part of it.' This bill seeks to make the deed void as a conveyance, but establishes it as a contract to convey upon the payment of the purchase-money. Let the plea.be over-ruled and the defendants be required to answer.

Pee CubiaM, Plea over-ruled.