Pulliam v. Owen

GOLDTHWAITE, J. — We agree with the chancellor, that the only consideration for the bond for titles, as shown by the record, was the indebtedness of Owen to Bussell to the amount of $224 ; so that, regarding the purchase money as fully paid, the first question is, whether the conduct of Bus-sell has been such as to entitle him To the assistance of the court, had he been the complainant. It is true, that all applications to compel a specific performance are addressed to the discretion of the court; but this is not an arbitrary or capricious discretion, but one which is regulated, as near as may be, by general rules. White v. Damon, 7 Ves. 30. We have found no case where the contract was fair and reasonable, where a court of equity has gone entirely outside of the agreement to find a ground for refusing to interfere, unless it was to sustain an equitable set-off. — Lindsay v. Jackson, 2 Paige 582; Gay v. Gay, 10 ib. 377. We see great difficulty, if the chancellor, in withholding relief, is to institute an inquiry into the complainant’s conduct in relation to the matters that have no connection with the contract sought to be enforced; and the authorities tend very strongly to show 497 that equity will not, in the exercise of its discretion, in applications for a specific performance, look to circumstances entirely independent of the agreement (Poole v. Shergold, 2 Brown’s C. C. 118; Buckmaster v. Harrop, 7 Vesey 341; Croom v. Ledyard, 2 M. & K. 251); and in Byrd v. Odem, 9 Ala. 755, it was held, that a vendor could not resist the specific performance of Ms contract, by showing an indebtedness of the vendee to him, independent of his contract. — See, also, Seaman v. Van Rensselaer, 10 Barb. Sup. Ct. 81. In the ease before us, Owen had, as we have seen, received the purchase money. It was paid by his indebtedness to the ven-dee, and the only reason why the arbitrators did not require him to make titles immediately, must have been because he had not then obtained the title from the government. He stands as the mere naked trustee for Russell, and unless he can hold the title to indemnify himself against the damages resulting from the trespasses of the latter on the ground of his insolvency, he is not entitled to do so on any other ground. There may be cases where the insolvency of a party authorizes a court of equity to set-off a debt, which would not under other circumstances be allowed as a set-off, either at law or equity (Tuscumbia R. R. Co. v. Rhodes, 8 Ala. 206); but unliqui-dated damages, sounding in tort, are not the subject of a set-off in either court.—Vose v. Philbrook, 3 Story’s R. 335; 3 Johns. Ch. R. 351; Livingston v. Livingston, 4 ib. 292.— Again; the purchaser of land, having paid the purchase money, has a lien for it upon the estate. — Sug. on Ven. 386; Kennedy v. Woolfork, 3 Hay. 197; 1 Meigs 52; 3 A. K. Marsh. 179; Har. Ch. 225; ib. 414. The vendor and ven-dee are trustees for each other — one of the land, and the other of the purchase money. — 2 Story’s Eq. 790, 793. But the lien of the vendee does' not extend to other lands ; and although, upon the same principle which passes the lien of the vendor to his assignee (Roper v. McCook, 7 Ala. 318), the assignee of the vendee would be entitled to enforce his lien against the land, yet the lien of the vendee or his assignee does not extend to other lands, and for this reason a sale by the vendee before title passes ought not to take with it the burden of discharging a distinct and separate liability in no wise connected with the sale. 498 The chancellor should, under the circumstances, have compelled the defendant Owen specifically to perform his contract, and enjoined him from the prosecution of his suit at law ; and the decree rendered by him must therefore be reversed, and the cause remanded, in order that a decree may be rendered in conformity with tliis opinion, — the costs of this court to be taxed against the appellee Owen.