#### H. H. MITCHELL, Adm’r. and others, v. F. D. WOOD.

An intestate sells B a tract of land for '$800, putting him in possession and giving him a bond to make title when the purchase money is paid; B pays part and refuses to pay the balance of the purchase money. A, the Administrator, sues B, demanding 1st, a rescission of the contract; 2d, a writ of possession; and 3d, damages : Held, that he is entitled to neither; but that he was entitled to a judgment for the unpaid balance, and to a sale of the land, if such judgment is not satisfied.

*(Buttier*v Cthaffin, Phill. 497. cited and distinguished from this.)

CrviL actioN, tried before Logan, *J.,*at Fall Term, 1873, of the Superior Court of RuthbRFOed County.

The plaintiff, H. M. Mitchell, administrator of W. L. Mitchell, and others, his heirs at law, .bring this suit, alleging that on the 8th day of January, 1868, his intestate, and their ancestors, sold to the defendant a house and lot for $800, giving him a boud to make title when the purchase money and interest was paid ; the purchase money, to-wit: $800, was payable in installments, the last being due 1st January, 1870. That there is still due of said purchase money $400 and interest, which defendant refuses to pay, &c. Wherefore they demand judg. ment.

1. That the contract of sale of said land be rescinded and declared void.

2. That the Court grant plaintiffs a writ of possession.

3. That they have judgment for $50 and costs.

Defendant admits the material allegation in the complaint, and demurs to plaintiffs’ demand for judgment, as being illegal, &c.

On the trial, several issues of fact and law, were submitted; and the former being admitted by the pleadings, the latter was disposed of, his Honor, by granting judgment in favor of the administrator, for the amounts still due on the notes given for the purchase of the lands, and refusing to grant a writ of possession. From this judgment plaintiffs appealed.

*298*L. W. Barringer*and Gray, for appellants.

*J. G. L.*Harris, contra, submitted.

I. As to prayer for recission of the contract:

Courts have no power to rescind contracts, except in cases of fraud, mistake, surprise, &c. Neither of these requisites are alleged in the complaint. Adams Eq. 174.

Ii. As to prayer for writ of possession :

A recission of the contract having been refused, as a matter of course, a writ of possession could not issue.

III. As to prayer for damages:

“ Where the vendor of land lets the vendee into possession, reserving the title, he has no claim upon the latter for rents and profits, as the interest upon the unpaid money is in lieu of that.” *Pearsall*v. *Mayees,*64 N. C. R., 549.

IY. Plaintiff having commenced his action *in*personam, having set forth insolvency of the defendant, the complaint containing no prayer for specific performance, therefore, plaintiff is not entitled to the usual decree for specific performance. Because it is a well-settled principle at the common law, that plaintiff cannot recover except *modo et*forma, as alleged : Ex. gr.: If plaintiff declares upon a special contract, he cannot recover on the common count, and *vice versa.*This rule was equally applicable to equity proceedings. *Gratge*v. *Graige,*6 Ir. Eq. p. 191; *Belvin*v. Robinson, I Ir. Eq. p. 80.

Y. Any judgment rendered in this suit will not operate as a bar to another suit seeking specific performance of the contract, because the principle of estoppel is that the former suit must be between the same parties, involving the same subject matter, and seeking the same relief as the latter one. *Arm-field*v. Moore, Busbee 159 ; *Rogers*v. *Ratcliff,*3d Jones, 225; *Redman*v. Coffin, 2 Dev. Equity, 437.

YI. An error which resulted in a judgment more favorable to the party appealing than he -was entitled to by his pleadings, cannot be made the foundation for a *venire de novo. State*v. Cowan, 7 Iredell, 239.

*299PeaesoN, C. J.

The allegations of the complaint makes a plain case, for the specific performance of a contract to sell land. These allegations are admitted, and the only difficulty grows out of the fact that the plaintiffs, instead of demanding-judgment for the balance of the purchase money, and an order to sell, the land in case such balance was not paid, demand judgment:

1. That the contract be rescinded.

2. For a writ of possession.

3. For damages for withholding the possession.

The plaintiff's had no right-, to demand judgment for either of these particulars. -

1. There is no ground on which the Court can rescind the contract;

2. In order to enforce its performance, there is no reason why the plaintiff’s should be put into possession inasmuch as they do not elect as vendors, holding the title as security for the purchase money to take possession, and account for the rents and profits in discharge of interest and principal, and there is no allegation of a demand of the possession and notice to quit, as in *Butner*v. *Chaffiin,*Phillips 497, but elect to close the contract by enforcing payment of the balance of the purchase money, as mortgagees seeking to foreclose. *3*They are not entitled to damages by way of rents and profits, for a vendee or a mortgagee, who is let into possession, receives the rents and profits, in lieu of the interest for which he is liable. But because the draftsman of the complaint was under a mis apprehension as to the i elief to which the plaintiff's are entitled, it does not follow that they are not entitled to relief according to the case made by the *allegata et probata,*and are to be put off simply with a judgment upon the note for the unpaid part of the purchase money, under which they could not sell the land. *Camp*v. *Cox,*1 Dev. & Bat., 52.

The judgment will be modified, by adding: In the event that the amount is paid into the clerk’s office by1 the defendant, or is made by the sheriff and paid into office with the return *300of the execution, the plaintiff, H. H. Mitchell, as administrator, will file a deed in the office conveying the land in fee to the defendant, the deed to be approved of by the clerk before the money is withdrawn from the office.

In the event that the amount is not paid, aud the sheriff having the execution cannot make the money; then he will sell the land to satisfy the execution, and the excess, if any, pay over to the defendant. As the judgment is modified, the costs of this Court will be taxed against plaintiffs and defendants, each to pay one-half.

Pee Cueiam. Judgment accordingly.