Heacock v. Fly

The opinion of the court was delivered by Burnside, J. — This ejectment was brought by Anthony Fly, against Heacock, John Alshouse and Susanna Alshouse his wife. On the trial, a special verdict was found by the jury, under the [542] direction of the court, in which all the material facts are stated. The jury found that Anthony Ely- and wife, being • seized of the premises in dispute, on the 23d day of November, A. D. 1889, executed a deed of conveyance for the same, consisting of a lot of land of about seven acres, to William Heacock, in trust, to and for the sole and separate use of the said Susanna Alshouse, wife of John Alshouse, and to her heirs and assigns, for the sum of $500. That at the time of the execution of said deed, the defendant paid to the said plaintiff the sum of one hundred and fifty dollars in cash; and the said Susanna Alshouse at the same time executed a mortgage upon the said tract or lot of land, dated November 23d, 1839, to secure the payment of three hundred and fifty dollars, the balance due on the purchase of said property, together with a bond of even date, pro ut mortgage and bond. The said Susanna Alshouse was at the time of the execution of the deed and mortgage aforesaid, and still is a feme covert, being the wife of the said John Alshouse ; that the said jury in point of law are ignorant on which side they ought upon these facts to find the issue; that if upon the whole matter the court shall be of opinion that the issue is proved for the plaintiff, they find for the plaintiff upon this condition, that if the said defendants shall pay to the said plaintiff the sum of four hundred and fifty-six dollars and fifty cents, on or before the first day of April, 1850, with its interest, then the said verdict shall be void and of no effect; but if the court shall be of an opposite opinion, then they find for the defendants. The court were right in the opinion that the plaintiff had no remedy on the bond and mortgage, because given by a feme covert, without joining her husband, but they reasoned themselves into the belief that the purchase-money mentioned in the bond and mortgage, which they very properly declared to be void, might be recovered in this action of'ejectment, and entered a judgment for the plaintiff on this special verdict, which is, that unless the defendants paid the plaintiff $450.50, with interest, on or before the first of April, 1850, they lose the land. The entering of the judgment is the error assigned in this court. It would seem to be settled in Pennsylvania, that an ejectment cannot be maintained by the vendor of land against his vendee, or any person claiming under him, to enforce payment of the purchase-money, where a conveyance has been made, and a bond taken for the purchase-money: McGargel v. Saul, 3 Wharton 19. Nor will ejectment lie in this State to enforce a provision in a' deed for the support of the grantor, which was part of the consideration, and amounting to a covenant, but not a condition: Cook v. Trimble, 9 Watts 15. The court are bound to notice the real parties litigating : 1 Yeates 20. Here the defendant in error had parted with his title, and he took a void security for his balance of purchase-money. He cannot recover in this form of action, unless a chan [543] cellor would rescind the' whole contract. We use the ejectment in Pennsylvania, instead of a bill in equity. Would a chancellor rescind this contract, and administer justice between the parties? Here they were both mistaken. The vendor got no security that he could enforce either at law or in equity. The vendee believed she gave a lien on the land in question, to secure the balance of purchase-money. Equity will grant relief against acts done and contracts executed under a mistake of facts: Champlin v. Layton, 18 Wend. 407 ; and in such cases it is extended as well to the refunding of money paid under the contract as to the annulling of the contract: 18 Wend. 407-8, and the cases there cited. I am aware that the civilians are divided on the question, whether money paid under a mistake of law is liable to restitution ; with us it is well settled that money paid with a full knowledge of all the circumstances, cannot be recovered back on the ground that the party was ignorant of the law: 7 W. & Ser. 253, Good v. Herr; 2 East 469; Doug. 467; 12 East. In Kentucky, relief may be granted for mistakes in law: Fitzgerald v. Peek, 4 Littell Rep. 127. And the law to the same effect is ruled in South Carolina: Lowndes v. Chisolm, 2 McCord’s Ch. Rep. 455. In the latter State, where they are so fond of splitting hairs, they have taken a distinction between ignorance and mistake of the law: Lawrence ¶. Beaubien, 2 Bailey’s S. C. Rep. 623. Here it is manifest the parties were led into error by the conveyancer. Justice requires that the contract should be be rescinded. Their mistake was mutual; and when it is again tried, let there be a verdict for the plaintiff, on his paying Mrs. Susanna Alshouse the $150 without interest, before an execution of hab. facias issues. This is the equity and justice of the case. Judgment reversed and venire de novo awarded.