The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1859-03-30
DECISIONS OF THE HIGH COURT

others. upon further reflection. ! thank
you again for your attention. Loud
cheers.
DECISIONS OF THE HIGH COURT.
( Rported expressly FIR hc Eastern Clarion.
NO s553l
John Cobb admir-. ct al. v. Henry Duke ct al.
This bil was filed by the defendants in error
guee- Of certain notes given for the purchase mon
oy ui lands. 90 subject the lands TO the payment Of
TIE material fact necessary to be taken into view,
appear TO Dee a. follows: In November, ls4I, John
rgGthers harGHincd with W. Goodman for two tracts
10 land and being lu-olyent lac procured one Petre.
relative 90 execute his notes for the purchase mon
and to accept bond ortitle in his PetrieS name,
which was soon afterwards assigned hy him to the
wife o t.ruthcr-. ~ February. 1850. CaruherS sold
the land 90 N"whu and johnson, and caused his wife
l the title bond To them. and took from them
seven notes under seal. amounting 70 fix thousand
dollars. signed by NoWlin and Johnson. and other
persons a. saIcues. amongst whom was Humphrey
h',- We -'il ~ 'Htii',i- I" several PERSONS one
90 Humphrey Cobb. for $1,000 two for SlOh1 each 70
re defendant m error. Duke. and foUr for $50 each
Oh iHr defendant Jones. taruher~ ami ms wife ma
Eu- the assignment pom one Of the notes held by
Jones. the money was paid, and suit was brought At
law which was defeated on the ground of failure Of
consideration, the assignment Of the title bond ~
Mrs. t.lUfucTs being considered void. The bill
filed by Duke and Jones ~ aS-ignec~ Of the notes
against the "hEors and Caruthers, and the heirs Of
Pctrir and OF Mrs Caruhers. who were deceased and
against Goodman, the ohlI-or Of the original title
bond. and pr3ys for sale Of the land 20 pay the notes.
aud POO the distinction ioT general relief Cobb was one
ot the nhagnr- Of the notes surety. and was also
fla holder ut ON, 81 them and il proposed IN the
hH fI4f DE should unite with the complalnants IN
-u' Irculg the lands 10 the payment Of the notes
upon bis paving tlem hi proportion Of sum which
they had paid % Goodman On account Of the lands
tn which his rep. ~cutale- after ms death assened.
After various p.,adug-. answers cross bills. and 9TH
az proceedings. sale Of the lands was decreed, and
the Court. and account was ordered stating the
amount dine 70 Jones, Duke and Cobb respectively,
upon their claims. and the pro rata amount of the
proceeds utthe sale 70 which each was entitled which
Ta~ taken and decree rendered thcreupon. order
Ing the proceeds To Dee applied accordingly; and that
the compliments. Duke and Jones. should recover
ri the oIli-oE- jon the bonds given for the purchase
money. the residue due them respectively. after
c,fvng their pro rata Of the proceeds Of the sale
This VIII Of error taken. and j. prosecuted by
The administrators Of Humphrey Cobb.
Tile first error ASST ned j., that the hill filed be-
fore the compliments or their assignees the original
vendors, were ~ condition TO convey the ute and
before the defendants were in default their part
and hence that u could not be maintained.
Whatever force there might have been IN tins oh
lection IS not available 10 the plaintiff in error under
the c- oi the Il appears that they agreed e
unite with rDmpaluants in their effort enforce then
hHs upon the lands. and n the distribution Of the
proceeds ot the sale, TO and among the parties emit
ted They cHnnut. therefore. now be heard here to
object that the bill was prematurely filed.
The next ground Of error i, that after directing
distribution Of the proceeds of the sale pro rata
| was rendered against the obligors TO the notes
Tins presents the question, whether upon bill e
enforce vendors lien upon land for unpaid purchase
money. the vendor having given bond for title, ant
the Nendee having merely given his notes for the pur
chase money! Court Of thancVry. in addition to de
] crgyIu- sale Of the land has power 10 decree tina
the Nandre shall pay the residue Of the debt remain
ing due aitrapplyng the proceeds Of the sale OF tn
I land
I'll. q wen setlad rule that upon Till to forecl-s
/ 1.rt-fg'. a Court Of Chancery has no power Z
/ render decree "a pers0RdH for an unsatshed bal
a1s a.e Lhe mortgage property has been Exhausted
] stark rs. Mercer low 81 And the reason for tn
re Is stated 10 be. that the mortgage has concur
rent remedy W'lrh he may pursue ~ law against IN
person. He proceeds IN equity ia order to forecOs
the equitable interest Of the gagor and to suhec
the wuTrEaged property TO ms debt To that eNten
only Is the mUtgagor menable 10 Court Of Equity
! zfle in Court Of law.
/ The same principles are applicable 10 the case @
vendor and vcndee of real estate where the forme
has bound himself to convey upon the condition tina
the ycndec viii pay his notes given Tor the purcnas
money IN virtue of the contract the vendee has a
equitable interest IN the property. Of which he
! 's Invested except 10y proper and legal steps. tn
vendor retains ms legal ute subject 90 that equity. an
las two distinct remedies or rather Sccurites-he ma
90 INTO equity. 10 subject the property to his deb
and dIye~t the equity Of the Yendee. or he may ~
upon the notes at law. II he proceeds in equity IN
powers IF that Court are exhausted when il mas acte
! uppn that part of the transaction which i of a
/ equitable nature. He concludes the vendee of hi
equity, and subjects ne property 20 his debt-and TIL
! L. ile same that Is done in the Of a mortgag,
I and MS remedy extends no further IN that forum.
- u pc proceeds al law, and sues upon the note
Ae obtains bat his Judgment AZ law and that forul
has no power over the equitable title which rested
/ il" venice The remedies m the two forums al
wholly distinct and exclusive and for the same re.
son that Cont Of law has not jurisdiction in "a ~
upon the diyeSt the equitable interest of III
veui-p and subject the land aI>0yed Of that interp
O. the satisfaction Of ITS Judgment Court Of Equit
/ has NOT power 10 rendera personal decree upon ti
| notes Tor the purchase money. or any part Of il.
I There appears. indeed 20 be no difference in prl
| c'nlc between cases Of vendors h0's. and cases
mort EJge~ % the powers OF a Court Of Equity ov,
them. And the decisions Of this Court clearly egaI
/ the jurisdiction IN both classes Of cases as Resin
/ upon the same foundation, and as having the san
I extent. Tanner vs.. Hicks, :. NJ pa; Hollahi
Orue d. 500. Noslcy - al. ". Wall % Miss 81
Iu stark ". Mercer. the same reason WIS urged
favor Of fhe power Of the Court Of equity TO render
! decree l issr,9E11a for uu~at-ted balance in Il
case of mortgage. that urged IN this case that u
/ court having obtained jurisdiction for one purpoS
should exercise 10 i,r all purposes hut was relrcie
/ ana ua court acted upon the principle that no 60
/ -.a,ratlau~ Of supposed convenience would iusti
the exercise Of Jurisdiction purely legal by a cou
II Is o6ntcndod in behalf Of the defendant, IN ,
rDr. that the decree is proper because it was hill f
the specific performance Of a contract ana in sIl,
cases that Court Of Chsncerv has fun iurisdctio
But such does not appear 20 be-, the true character
the lIi. IT, scope and object appear to be solely
subject the land~ 10 the payment Of the uurcha
money. Tue contract was simply, that the veud
wou'd convey the lands. and that the vendec won
convey the purchase money.
, There were no specific acts TO he done hy the We
dee 900 the performance Of his contract. which IL 7
quirol tae aid Of Court of Chancory 10 compel hi
q perform. In such case. the jurisdiction 81 enni
does not rest unan the ground of specific narf,
nance. but upon it, power over the trust and con
aHg interest Of the rcudcc. Story's Eq. Jur sf2
anal rs i.la1 Is M the nature Of a mortgage
, Nuri this acs~o where a court of equity in the .
o-rl-c OF ~ proper Jurisdiction. ana Ia doin- coi
plety Justice between thH parties may decree, a mn
t'rco-uilahlc at law. such was the case Of Cathcs
! ~ Robinson, Peters, relied on hV the defendant.
error. Then, the vendor filed hill against the We
, I dec for the performance Of specific acts agreed
, / hm TO lee done m completing the purchase. and
/ J which the purchase money was 10 he secured, d
agreement containing clause for stipulated dam
a,.- of one thousand dollars ia default of f,th, N,
( Torrance on either part. Il was properly a case
.uaali,. r,sr4rr9pas according 10 no I'm ~. =
vrndoe claimed thati was the understanding that
ai "a r. CHIT 60 surrender the land and pay tn, stu
lated damages instead Of receiving the land. and IA
, | Jug me whole purchase money: and As the Nepd
could not claim more than that. and u was mere
gal obligation which could be enforced ri law that
tll could not he maintained. The Court held that
e entire equity consisted IA his claim TO surrender
: I land and pay the stipulated damages. and Vitho
that THAI b." would ne compelled 20 specific IN
fornlpuco he must do that which he claimed in N
Of il and though matter which might have heen .,
! nIzabe az law. vet the court would compel him to
= n on 10 submit 10 decree for spccitc nerf,rn,r
= The art here required 20 hs done, was mere IN
dent the Jurisdiction Of the Court IN tho rna !.
tH" rule held T. simply that the court having uriS
il ~ the viii not permit tito hc frustrated
II rhna-erton of clam OF legal nature. hut will
quire the party claiming the benefit Of It to perfoi
: manifest that the principle acted upon in II
y case. Is not applicable 10 the one before rs.
We therefore. think IL clear that generally a co,
= of equity has not jurisdiction 70 render decree
= pa'sgsrai iu cases of this sort.
/ But il is insisted, that under the peculiar cirel,
stances Of ths case o. vas necessary 10 20 into ecu
{ 10 remove the doubts and difficulties existing as
, the ban % the property. and the consideration of
: notes the title being embarrassed by the fact that
q title bond had been assigned To- Mrs. Caruthers a Il
5 c1gyt, whose assignment 60 NoWlln& Johnson, WAS
valid doubtful and by the further fact hat her Il
y was fraudulent the property really belonging 20
o / husband, and the assignment Of the notes being
Il valid hy reason Of The coVerture Of Mrs, Caruthe
she uhlEec and therefore passing no legal title to
V / holders Ii l. said that these being matters N
n which q court of equity alone could give relief 4
having thus acquired jurisdiction. that It was prol
i settle al matters connected with the transaction
l. A. 90 tine Iteration in relation to the doubts
e ouih4rrlsS ment, upon the title, they were very
per a. be presented aud settled in the bill filed 10
If icct the property the vendors lien. They hat
n very important connection with the bill filed for q
: purpose as il was proper in sublectng the land,
II the payment OF the debit 20 remove all emharra
o ment- upon the uue. But IL > not perceived h
. these considerations rendered Il necessary to rem,
~ personal decree against the Nrndces. They were n
% ters with which the yendceS were not charpeahle
Il account of any breach of duty and which should
have been used 10 their prejudice. The mere eq1
II able considerations connected WITH the complanaI
e claim. in addition 10 his general right TO enforce
lien IN equity and afforded no further reason for y
Ceetng TO settle all matters connected with the ira
D, action aud rendering decree ~ pcS0RdiH, than
80 original ground of enforcing the vendors lien NJ
which the hill was fled The same reason, thereto
&c which prevents decree ~ posonan upon the hll
he enforce the lien, would prevent such decree IN
tue of these additional considerations.
y As 10 the inyalidity of the legal title of the &C
+ planaut- by reason ofthe alleged insufficient trans
n Of the notes by the feBss covert the notes paya
10 bearer and the legal title passed by delivery Il
u; The City of Nicksburg, 80 Miss. 2l6l Moreo,
n If u appeared that the notes transferred bv
. joint assignment Of the husband and wife, that wo
4 lie a sufficient assignment TO pass the title. nv
re vs. Gaskhs 80 Miss Ii the notes liable to
N defence Of failure Of consideration arising from de
=, tive title TO the land, that certainly would be no
le son for the compliments resortng to court Of eq
d to enforce the payment Of the purchase money.