Case One of Two
8 Ky. 477
1 A.K.Marsh. 477
Court of Appeals of Kentucky.
Benjamin Mills v. John Metcalf.
Apr. 21, 1819.

Where a contract for sale of land has not been performed, though a party complaining might have had an action at law on his covenant, yet he may resort to equity for specific performance, and may shape his bill either to obtain specific performance or cancelment of the contract.

This is an appeal from a decree of the court below, sustaining the appellee's demurrer, and dismissing the bill brought by the appellant as the assignee of Thomas Jones.

The bill appears to have been filed with a double aspect, either to obtain the specific execution or cancelment of a contract, alleged to have been entered into between the appellee and Jones, the assignor.

Jones is alleged in the bill to have, by the contract, sold and transferred the plat and certificate of survey to a claim of 1,600 acres of land, entered in the name of Walker Daniel, and for which the appellee is charged to have executed his obligation, covenanting, at his own cost and expense, to institute suits, as soon as the nature of the case would admit, for the purpose of recovering the land, or so much thereof as might be recoverable, and stipulated to pay to Jones two dollars per acre for all the land that might be recovered, &c.

The demurrer seems to have been filed, and the bill dismissed upon the ground of the appellant's remedy not being proper for equitable jurisdiction.

A complainant though he may maintain an action at law for the breach of a covenant may, if he elects to do so, resort to equity for a specific execution; he may also give his prayer a double aspect, either that the contract be decreed specifically, or dissolved.

If the circumstance of an action at law being sustainable by the appellant for the recovery of damages furnishes any objection to the interposition of the chancellor, relief, most clearly, should not be given in the present case. For, assuming the allegations of the bill to be true, and as the cause stands upon a demurrer, they must certainly be so considered, it is perfectly clear, that an action at law might be maintained.

But the appellant having a right to maintain such an action, we are of opinion can not, under the circumstances of this case, preclude relief in equity.

As the contract, upon which relief is sought, is for the sale of land, there is no doubt but that, according to the settled doctrine in equity, if it had not been executed on the part of Jones, the appellee, by making out a proper case, might obtain the chancellor's aid in compelling the specific execution.

Upon the principles of reciprocity, therefore, it would seem to follow that, as Jones appears to have performed the contract on his part, his assignee, the appellant, ought to be permitted to pursue a similar remedy, for the purpose of compelling a specific execution on the part of the appellee.

He might, it is true, as has been already said, have maintained an action at law, upon the covenants contained in the obligation: but in such an action, the relief would, certainly, not be so ample as that which may be given in a court of equity.

The amount to which the appellant is entitled would no doubt be the same in both courts, but as the vendor retains a lien upon the land for the sale money, equity certainly may, whilst it decrees the specific performance in ordering the price to be paid by the purchaser, give more complete relief, by following the lands, and subjecting it in his hands to the payment of the price.

We are of opinion, therefore, that the appellant properly resorted to court of equity, for the purpose of obtaining the specific execution of the contract on the part of the appellee; and that it was also regular, under appropriate allegations, to shape his bill with a double aspect, either to obtain its execution or the cancelment of the contract.

The decree of the court below must, consequently, be reversed with cost, the cause remanded, and further proceedings had not inconsistent with this opinion.

Bledsoe, for appellant; Haggin, for appellee.

Ky.App. 1819.

Benjamin Mills v. John Metcalf.

8 Ky. 477, 1 A.K.Marsh. 477, 1819 WL 1053 (Ky.)

Case Two of Two
13 Ky. 421
Court of Appeals of Kentucky.
Mills v. Metcalf.
Jun. 13, 1823.


HARRISON for the appellant; BLEDSOE for the appellee.
1. A bill in chancery, claiming the rescission of a contract, dismissed on the merits.
2. A court of equity will not enforce the lien of a vendor for the purchase money of lands, unless the bill, by appropriate allegations and prayer, entitles the complainant to that particular relief.


Statement of the case.
This case was formerly before this court, on an appeal taken by the complainant from a decree of the circuit court, dismissing the bill on a demurrer to it; and, as will be seen by adverting to the report of the case, 1 Marsh., 477, the decree was reversed, and the cause remanded for further proceedings. When the cause went back, the defendant answered, and the circuit court, on a final hearing, refused to decree a rescission of the contract; but decreed the defendant to pay to the complainant $2 per acre, with interest, for 53 3-4 acres, which the defendant alleged he had obtained and sold, of the land contained in the survey assigned to him, and from that decree the complainant has again appealed to this court.

By the errors assigned, it is insisted, that the circuit court erred: 1st. In not rescinding the contract; or, if that was improper, in not decreeing the stipulated price for the whole land: And, 2dly. In not enforcing a lien upon the land, for the sum decreed.

The substance of the contract being stated in the former opinion, we have not thought it needful again to repeat it, and shall only notice, occasionally, such parts of it as may have a bearing on the points made.

The grounds for rescinding the contract, as charged in the bill, are, 1st. The delay of the defendant in causing the survey on Daniel's entry to be registered, and a patent therefor to be issued, whereby others having later surveys on vague and void entries, obtained elder grants, interfering with it: And, 2dly. The failure of the defendant to institute suits for the recovery of the land from those having interfering claims

The first of these grounds is clearly untenable. In the contract assigned to the complainant, the defendant is not bound to have the survey registered, and the patent issued; but if he had been, there appears to have been no delay in having it done; for the contract bears date on the 7th of November, 1799, and the patent issued on the 21st of May, 1800, leaving an intervening period of a little more than six months, within less than which time after the survey was returned to the register's office, a patent could not by law have been issued. Besides, there is not a particle of proof to show, that any of the elder patents upon the land, were obtained in virtue of surveys made of a later date than that of the survey on Daniel's entry, and, of course, no injurious consequence could have resulted from the delay in obtaining the patent, if there had been any.

It is equally clear, that the second ground assumed in the bill for the rescission of the contract, is untenable. The whole of the tract, except the 53 and 3/4 acres for which the defendant was decreed to pay, is covered by elder patents, and there is not only no sufficient affirmative evidence to show that the entry of Daniel could be sustained; but, as far as a negative could well be proved, it is demonstrated that the entry was vague and uncertain, and could not be supported; and it appears, too, that shortly after entering into the contract, the defendant consulted three different lawyers, distinguished in their profession, all of whom, without hesitation, gave their opinion that the claim of Daniel was hopeless, and advised him against bringing suits against the interfering claimants. Now, according to the plain import of the contract, the defendant was bound only to bring suit for such part of the land as could be recovered. The language of the contract is, that the defendant "is to institute suits, as soon as the nature of the case will admit of, for to recover said land, or as much of it as is recoverable, by virtue of said Daniel's claim." From this language, the inference is obvious, that it was the intention of the parties that suits should be brought only for so much of the land as was recoverable. Any other construction would render the latter alternative unmeaning and inoperative; and as the entry could not be sustained, it is clear that no part of the land within elder adverse patents could be recovered. We concur, therefore, with the circuit court, in the opinion that there is no sufficient cause for rescinding the contract, and it follows, as a necessary consequence, from what has already been observed, that the complainant is not entitled to a decree for more than was decreed by the circuit court; for the defendant was bound to pay for only so much of the land as he should recover, and having in fact recovered no more than that for which he was decreed to pay, and being, as we have seen, in no default for not recovering more, he can, upon no rational principle, be made liable for more.

Whether the circuit court erred in not enforcing a lien upon the land for the sum decreed, is a question of more doubt. There is, indeed, no doubt but that the complainant had in equity a lien upon the land, in the hands of the defendant, for the purchase money; and although the defendant has alleged that he had sold the land, yet, as there is no proof of the allegation, it can not be taken to be true. But the bill does not claim an enforcement of the lien, nor is it framed for that purpose. It contains no suggestion of the insolvency of the defendant, or that he has not other property sufficient to satisfy the demand; nor does it insist upon the lien, or ask for the land to be made subject to be sold for the purpose of satisfying the sum which might be decreed. On a bill thus framed, we are inclined to think that it was not erroneous not to enforce the lien on the land for the sum decreed.

The decree must be affirmed with costs.

Ky.App. 1823.

Mills v. Metcalf.

13 Ky. 421, 1823 WL 2322 (Ky.)

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