Reese v. Kirk

RICE, C. J. The evidence shows that, by mistake, the bond for titles executed by the complainant to the respondent did not truly describe the tract of land really sold by the former to the latter. But the evidence also tends, very strongly, to show that neither the complainant, nor his vendor, had such title to said tract as the complainant by his bond covenanted to make to the respondent; that probably he will not be able, within any reasonable time, if ever, to procure or to make such title; and that neither he, nor the respondent, knew of that defect of title at the time the contract was made. If the tract really sold had been truly described in the bond, the respondent, upon discovering the defect of title, would have had the election, to take the necessary steps to entitle himself to a rescission of the contract, or to sue at law for a breach of the covenant contained in the bond. — Younge v. Harris, 2 Ala. Rep. 108; Greenlee v. Gaines, 13 Ala. R. 198; Lanier v. Hill, 25 Ala. R. 554; Munroe v. Pritchett, 16 Ala. R. 785; Foster v. Gressett, at the present term; Hitchcock v. Giddings, 4 Price, 135; Garret v. Yoe, 17 Ala. R. 74; Allen v. Greene, 19 Ala. Rep. 34. And from the evi410 clence before us, we are not authorized to say that, if the-bond had truly described the tract really sold, he would not have elected to proceed for a rescission, rather than for damages for a breach of the covenant contained in the bond. He has not deprived himself of that election, as to the tract, really sold to him, by bringing the suit at law upon the bond as executed to him; because the tract described in it, although embracing part of that tract, was, as a tract, different from that really sold; and because the exercise of the election as to one tract is not the exercise of the election as tó a different tract. Nor has he deprived himself of that election, by defending the present suit, in which his vendor seeks a correction of the mistake in the bond as to the description of the tract really sold. The right to exercise that election belongs to him until lost by his own act. or laches, and cannot be exercised by any court for him. It is laid down in the elementary works on equity jurisprudence, that “there are many cases in which a simple judgment for either party, without qualifications, or conditions, or peculiar arrangements, will not do entire justice ex mquo et bono to cither party. Some modifications of the rights of both parties may be required; some restraints on one side; some adjustments involving reciprocal obligations, or duties; some" compensatory, or preliminary, or concurrent proceedings, to fix, control, or equalize rights; some qualifications or conditions, present or future, temporary or permanent, to be annexed to the exercise of rights, or'the redress of injuries. In all these cases, courts of common law cannot give relief. They have no forms of remedy adapted to the objects.” * * “But courts of equity are not so restrained. Although they have proscribed forms of proceeding, the latter axe flexible, and may be suited to the different postures of the case. They may adjust their decrees, so as to meet most, if not all, of these exigencies; and they may vary, qualify, restrain, and model the remedy, so as to suit it to mutual and adverse claims, controlling equities, and the real and substantial rights of all the parties.” * * * “One of the most striking and distinctive features of courts of equity is, that they can adapt their decrees to all the varieties of circumstances which may arise, and adjust them to all the peculiar rights of all the parties in interest.” [411] 1 Story’s Eq. Jur. §§ 27, 28. Mitford on PI. 3, 4; 1 Woodes. Lect. YIII, pp. 203 to 206. Under the evidence in this case, and the pi’inciples above stated, the decree should have corrected the mistake in the bond, and have dissolved the injunction, and have expressly declared that the respondent may, at his election, proceed with his action at law, or dismiss that action and proceed for a rescission of the contract. The decree should also have declared, that if the respondent elected to proceed with bis action at law, the complainant should consent that the complaint in that action should be so amended as to make it a complaint on the bond as corrected by the decree in this suit, and that for all the purposes of that action, the correction of the bond .should be deemed and taken as having been made on tho day the original bond was executed. The error of the decree rendered by the chancellor consists in this, that it does not properly protect the respondent’s aforesaid right of election. That decree merely declares that the respondent is “allowed to proceed with his action at law,” but is entirely silent as to his right to elect to dismiss that action and proceed for a rescission of the contract; and it fails to make the proper requisitions of the complainant, in the event the respondent elects to proceed with his action at law. That decree is affirmed, so far as it corrects the mistake in the bond, and imposes the costs of the court below on the respondent, and dissolves the injunction; but in all other respects it is reversed,, and in the particulars in which it is thus reversed, it is here corrected so as to make the decree as a whole conformable to the views above expressed by us. The appellee must pay the costs of this court.