#### WILLIAM P. RICHARDSON *against*J. J. WILLIAMS, *administrator.*

A non-resident who has not a sufficiency of property or effects within this State, to make good damages for the breach of a covenant for quiet enjoyment, will be enjoined from collecting the purchase-money for land, where the title is defective.

This Court will not drive a party to seek redress in the Courts of another State, when a less circuitous and better remedy can be given in our own Courts at less cost.

It is against conscience to enforce the collection of a bond, when nothing has been received for it.

Cause removed from the Court of Equity of Union County.

Thomas "W. Huey, the defendant’s intestate, made a deed to the plaintiff, of which the following is a copy, viz:

“This indenture, made on the 9th day of January, in the year 1852, between T. W. Huey, of South Carolina, and Lancaster District, of the one part, and *W.*P. Richardson of the *117County of TJnion, and State of North Carolina, of the other part, witnesseth — that the said T. W. Iluey, for, and in consideration of, the sum of $800, to him in hand paid by the said W. P. Richardson, the receipt whereof is hereby acknowledged by the said T. W. Iluey, hath given, granted, bargained and sold, and by these presents do give, grant, bargain and sell, alien and confirm, into the said W. P. Richardson, all that tract, piece or parcel of land, situate, lying, and being in the County of Union, and State of North Carolina, on the waters of Richardson’s Creek, containing eight hundred acres, more or less, and more fully represented by reference to the accompanying certified copies of the original grants, Nos. 1386 and 1458, &c., unto the said W. P. Richardson, liis heirs and assigns, forever.” With a covenant of *general warranty.*The certified copies, each, described tracts of land lying in Union County, on Richardson’s Creek; that designated as 138G purported to convey to one Edward Richardson five hundred acres, and that as 1458, to the same person, three hundred acres.

The plaintiff, in his bill, alleges that, at the time of the execution of the said deed, lie paid to defendant’s intestate five hundred dollars in cash, and gave his note, payable twelve months after date, for the remainder of the purchase-money, to wit, $300 ; that lie immediately went into possession of the five hundred acre tract, and has had undisturbed enjoyment of it over since ; but when lie proceeded to locate the three hundred acre tract, embraced in grant 1458, he discovered that it was in the adverse possession of one Hilliard Helms, who had a title to the samo ; for, that the said Helms, and those under whom he claimed, had had actual adverse possession of it, claiming it as their own, for more than thirty years ; that the said Iluey lived in the State of South Carolina at the time the deed was made, and continued to reside in that State until his death, which occurred in 1853 or 1854, and had no property in this State except the note sued on ; that the defendant, having administered on his estate in Union county, brought a suit against plaintiff in the County Court of that *118County, and at October Term of tliat Court, took a judgment against plaintiff on tlio three hundred dollar note, with interest, and threatened to collect the amount against him by execution.

The prayer of the bill is for a-perpetnal injunction, and for general relief. *

The defendant demurred to plaintiff’s bill, and assigned as a cause of demurrer, that the plaintiff had an ample remedy at law on his covenant for quiet enjoyment. lie also answered, insisting that, according to a proper construction of tho deed, one tract was intended to be conveyed, and that ivas the one actually conveyed and enjoyed by the plaintiff, and that the reference to the two grants numbered 138G and 1458 was only intended to fix and identify that one tract more certainly; but that if the description happened to fail as to the 1458 tract, it would he rejected as surplusage, and that this view was fortified by the fact that the one tract, which the plaintiff admits he got, contained in quantity nearly eight hundred acres. He says further, that another construction of the agreement between the plaintiff and the defendant’s intestate, was, that the land should be sold at one dollar per acre; that it was to be surveyed afterwards, and that the plaintiff was to pay the sum determined by the ascertainment of the number of acres at that rate; tliat a survey was subsequently made, and that the one tract which the plaintiff obtained was found to embrace upwards of seven hum dred acres; and he submits that if the Court should not concur in his former view, that, according to the latter, the plaintiff would only be entitled to have the judgment enjoined for the value of the deficiency, to wit, the difference between tho number of acres conveyed and eight hundred.

The cause was set down for hearing upon the bill, answer and exhibits, and for argument upon the demurrer at the same time, and sent to this Court.

*Wilson,*for plaintiff.

*Osb&rne,*for defendant.

*119PeassoN, J.

Upon the facts admitted by the demurrer, the plaintiff is entitled to the relief prayed for. *Green*v. *Campbell,*2 Jones’ Eq. 447, is directly in point. It is true that the plaintiff, having taken a covenant of quiet enjoyment, could maintain an action at law, and recover damages, but that remedy would be inadequate, and this Court will not force the plaintiff to resort to it for two reasons : If the plaintiff sued the defendant, as administrator of the warrantor, the only assets with which he could charge him, would be the amount of the note in controversy, and the defendant might discharge himself by proving a payment of the assets to a debt of equal dignity, and thereby sustain the plea of “no assets and if that was not done, then the only result of allowing the defendant to collect the judgment on the note, would be to entitle the plaintiff to recover it back in his action on the warranty, which would be a useless multiplication of actions, and a vexatious accumulation of costs; or if the plaintiff resorted to his right of action against the heirs-at-law, who are non-residents, upon the warranty of their ancestor, he might be met with the plea “ *mens per descent*y” and, at all events, this Court will not, without a reason for it, drive the plaintiff to seek redress in the Courts of another State, when a less circuitous and a better remedy can be given in our own Courts at less.cost.

But, in the second placeras to the tract in grant No. 1458, containing three lninjdreff'ácres, there is an entire failure of consideration, ancl'ut is against conscience to collect the note of $300, when, by the demurrer, it is admitted that the plaintiff received nothing therefor.

The allegations set out in the defendant’s answer, if consistent with 'the proper construction of the deed, would have met the plaintiff’s equity. But such is not the fact. The legal effect of the deed is to convey all the land contained in the grants which are referred to, viz., Nos. 1386 and 1458, for the sum of $800, and this construction of the deed cannot be varied by proof, *dehors,*that the parties intended to sell the land at one dollar per acre, so that if more than eight hun*120dred acres were conveyed, an additional sum, corresponding with the increase in acres, at tire rate of one dollar per acre, was to be paid, and if a less quantity, then a similar deduction from the sum of $800.

The plaintiff is entitled to a decree for a release and a perpetual injunction, and to'his costs.

PeR Cubiam. Decree accordingly.