#### JESSE H. CANNADAY AND OTHERS *against*JACOB K. SHEPARD AND OTHERS.

The transfer of an equitable chose in action, to be entitled to the protection. of a Court of Equity, must bo founded on a valuable consideration.

The compromise of a controversy, wherein the legal owner of a chose in action, supposed he was bound to the performance of an onerous and oppressive contract, when in truth he was not, is not such a sufficient consideration as will entitle the transferee to a decree for a specific performance.

Where the contract sought to be enforced, is hard and oppressive, this Court will not interfere to enforce a specific performance, but will leave the parties to their remedies at law.

Cause removed from the Court of Equity of Onslow County.

The defendant, Jacob Shepard, agreed by parol, to purchase of the plaintiff, Jesse II. Cannaday, a tract of land, described in the pleadings, at the sum of twelve hundred dollars. Cannaday executed to him a penal bond, conditioned to make title for the land on the purchase money’s being paid; at the *225same time Shepard delivered, in part payment, -without endorsement, a hond on the defendants Daniel B. Henderson and Eobert Aman, payable to him, Shepard, for four hundred and twenty-five dollars, dated 25th of November, 1845, payable twelve months after date, and gave his own note for the balance of the sum of $1200. Shortly after the trade was made, Shepard became dissatisfied, and earnestly pressed a rescission of the contract, which was finally agreed on, and which took place in this wise: Cannaday gave up to Shepard his note, and also gave him the individual obligation of him, Canna-day, for twenty-five dollars, pajrable in goods; he also took back the bond which he had given to make title, but insisted on retaining, and did retain, the note for $425 on Henderson and Aman, claiming it as his property, and insisting that it-was but a fair equivalent for the damages he had sustained for *vexation, loss of time cmcl expenses.*The plaintiff had not been out of possession of the land; and the whole time, from the original trade, until the rescission of it, was but a few days, — less than a week.

The plaintiff alleges in his bill, that the parol agreement was fairly and deliberately made, and the land sold for not more than its value, and that it was done at the earnest request and solicitation of the defendant Shepard, and very reluctantly entered into by the plaintiff Jesse; that after this trade, he changed the character of his business, and made other arrangements for his employment, maintenance and support in life ; that this rescission was thus a great loss to him, and that the four hundred and twenty-five dollar note, minus the twenty-five which he was to pay Shepard, was not more than a remuneration for this *loss of*time, *vexation and expense.*The bill further alleges, that this note for twenty-five dollars has been since paid b;^ him to the said Shepard, and that the bond on Henderson and Aman was transferred, by delivery, to one Green Cannaday, for a full and valuable consideration, and that the said Green sold and transferred the same, by delivery, to the plaintiff John A. Averitt, without endorsement, in either case ; that Averitt brought suit on *226tills bond against Daniel R. Henderson and Robert Aman in tlie Comity Court of Onslow, in tlie name of the defendant, Jacob K. Sliepard, who went forward, in person, and had the same dismissed from tlie docket; and that Henderson, well knowing the premises, afterwards, on being indemnified by Shepard, paid him tlie whole of the amount due on tlie bond.

The prayer of the bill is, that “ the defendants may be conn pelled to perform tlieir contract and agreement, and pay and satisfy to John A. Averitt, tlie full amount of principal and interest due upon said bond.”

The defendants plead the statute of frauds, requiring all contracts concerning land to be in writing. The defendant, Jacob K. Shepard, also answers, and denies that he ever made any legal or valid contract for the land alleged to have been sold him ; he says that the bond on Henderson and Aman was obtained from him by Jesse Cannaday when he was very drunk, so much so that he did not know what liad become of it, until afterwards informed, and in its place was found by him a paper, which he since has discovered was a title bond for the land, executed by the said Jesse Cannaday; that he did not want the land, and was not able to pay for it, and that $1200 was an exorbitant price for it. lie says that he went to Cannaday as soon as he could, after this pretended trade, and insisted on a recantation on account of the fraud practiced upon him, and he was able to get back the note which he gave for the purchase money, and to get a note on said Cannaday, payable in goods, and he delivered back to Can-naday his bond to make title, but he was unable to get back the bond on Henderson and Aman; that this, the said Jesse Cannaday kept, without making him any compensation for it, or giving him one cent of value ; that even the twenty-five dollar note, payable in goods, he never paid. He says further, that under these circumstances, he felt himself fully at liberty to dismiss the suit brought by Averitt, in his, defendant’s name, and he felt justified in receiving from the obligors in the said bond, and did receive, the whole amount thereof, principal and interest, having first indemnified the said Hen*227derson in paying the same to him. He saj^s further, in his answer, that he does not know whether Green Cannaday paid any thing for the bond in question or not; nor does he know whether Averitt paid any thing to Green; but he does not believe that either of them paid any thing, and believes that tliis transfer was merely colorable; nor does he know whether either of them had notice of the fraud or imposition practiced on him in the bond’s being obtained from him, but he has little doubt that both were fully aware of the fact. As a reason for this belief, he states, that very soon after this transaction, he made public advertisement of the nature of the transaction at the Court-house, and at a neighboring store, and at other public places in the county, and cautioned all persons against buying the bond of which he had been defrauded. He denies that the plaintiff, Cannaday, was in any manner damaged or incommoded by rescinding the pretended land trade, for that it all happened within one week, and that he, Cannaday, retained the possession during the whole time.

There was replication to the answers and proofs taken, and the cause having been sot down for hearing, was sent to this Court.

*Winslow*and *Reid,*for plaintiff.

*W. A. Wright,*for defendant.

Hash, O. J.

The plaintiffs’ bill cannot be sustained. The substantial facts upon which the case turns, are not controverted, and are as follows: The plaintiff Cannaday, was the owner of a tract of land, which he contracted to sell to the defendant Shepard, at the price of $1200. Shepard transferred, by delivery to Cannaday, a bond for $125, executed by Daniel R. Henderson and Robert Aman, and executed his bond to the plaintiff Cannaday, for the balance of the stipulated price ; Can-naday at the same time executed a bond for title, when the money should be paid. Subsequently, on the application of the defendant Shepard, the parties cancelled the bargain, upon condition that Cannaday should retain the bond of Hen*228derson, and give Shepard his note for $25. Upon this agreement, Cannaday executed and delivered to Shepard, his note for the $25, and surrendered to him, his (Shepard’s) note, or bond, and the latter surrendered the title-bond to Cannaday ; the latter retaining the Henderson bond. Cannaday transferred the latter bond to Green Cannaday, and he to Averitt, one of the plaintiff’s. A suit was brought upon it by Averitt, in the name of Shepard, who, at the return term, appeared in Court and dismissed it. The bill is brought upon the alleged equity of Cannaday, to recover the amount against Henderson and liis surety and Shepard ; the former having paid to Shepard the amount due, with full knowledge of the claim of Cannaday.

The first enquiry is, what is the equity of Cannaday, admitting for the present, that the contract for the sale and purchase of the land, was valid ?

The transfer of the Henderson bond, left the legal title to it still in Shepard. It could be legally transferred only by endorsement. If transferred, however, for a valuable eonsidertion, it would convey to the transferree an interest which a Court of Equity will protect. The bill is one for specific performance ; and when such a decree is asked, there must be a valuable consideration to support the equity. Adams’ Eq. *79.*It is not protended that any money was paid by Cannaday ; but it is alleged that the compromise was a sufficient consideration. The compromise of a doubtful right, is certainly a sufficient consideration to support a contract; but there ivas here no compromise, properly speaking, but simply a rescinding of a contract upon the condition imposed by the plaintiff Cannaday. The contract of sale between the parties was absolutely void as to Shepard. _ He had signed no memorandum or note of the contract, either by himself or any other person, (Bor. Stat. ch. 50, sec. 8,) nor did the execution of the bond for title hy Cannaday, alter the position of Shepard. The contract, as to him, was void, and he had nothing to compro-miso. The title to the Henderson bond, both at Law and in Equity, was in him. The plaintiff paid no valuable consider*229ation for the Henderson bond, whereon to ground an equity. The first requisite for the enforcing of a contract is that there he a valuable consideration, either of benefit bestowed, or of disadvantage sustained, by the party in whose favor a contract is sought to bo enforced. Adams’ Eq. 78; *Minturn*v. *Seymour, 4*John’s. Ch. Rep. 497. What benefit was bestowed on Shepard, by the contract transferring the Henderson bond to Cannaday ? — or what disadvantage was sustained by the latter? We cannot see any.

But again, the contract sought to be enforced must not be oppressive on the defendant. Adams’ Eq. 83. Where a contract is hard and destitute of all equity, the Court will leave the parties to their remedy at law. *King*v. Hamilton, 4 Peters’ Rep. 311; *Leigh*v. *Crump,*1 Ire. Eq. 299.

The specific performance of a contract in equity, is not a matter of absolute right in the party, but of sound discretion in the Court. To be carried into execution by a Court of Equity, the agreement must be “certain, fair and just in all its parts.” Per Gaston, J., in *Leigh*v. *Crump, ubi supra.*The contract here was not fair. The defendant was made to believe that the agreement, as to the purchase of the land, was binding on him. The whole course of the plaintiff in rescinding the contract,, as appears from the bill itself, shows this to have been the-fact. It is not just that the plaintiff should keep the land, and’claim the amount of"the Henderson bond, for four hundred dollars. The contract was hard and oppressive on the defendant. There is no equity in the claim of the plaintiffs. If there was, it is not superior to that of the defendants. Where equities are equal between the parties, the Court will not interfere ; much less will they displace a superior, to make way for an inferior equity. Here, the defendant Shepard lias not only a superior equity, but also the legal title.

The bill alleges that Green Cannaday and Averitt, each, paid a valuable consideration for the Henderson bond ; there is no evidence to support the allegation; but if proved, it would not avail the plaintiffs, for they had full knowledge that the *230legal title to the bond was in Shepard,' and all they can claim is to stand in the shoes of Jesse H. Cannaday, for whose benefit, no doubt, tho action at law was brought, and this bill filed.

PeR Cueiam. Bill dismissed with costs,