Burger v. Potter

Mr. Justice Breese delivered the opinion of the Court: We do not agree with the. defendants in error, that this record presents a case provided for by section thirty-four of chap, twenty-four, title “ Conveyances.” That section is as follows: The executors, administrators, or heirs of any deceased person or persons who shall have made such contract, bond or memorandum in writing, as aforesaid, in his or her lifetime, for the conveyance of land for a valuable consideration, when such consideration has been paid and fulfilled, as aforesaid, may, upon application in writing, obtain such decree, as aforesaid, upon giving notice to the party to whom such deed is intended to be made, and under the same condition as is provided in this chapter. Seates’ Comp. 163. The case shows, and that is the burden of the complaint, that the consideration has not been paid and fulfilled, and resort is had to this proceeding to enforce payment. ¡Neither this statute, nor any other, provides for such a case as this is. Here, the purchaser, enjoying the property for which he has bargained, the consideration money for which has not been paid, is in no mood himself to call into action the power of the court to vest him with the legal title, preferring to use his money for purposes other than the fulfillment of a contract he has made, and which he is honestly bound to perform. And it may be, the land has depreciated since he executed the note, or other inducements may have their influence, whilst the estate of the vendor may be embarrassed by his non-compliance with his contract. There must be, somewhere, a remedy for this state of things, and if no special statute can be found to meet the case,.the power of a court of equity cannot be ineffectual. It may be, possession, of the premises could be obtained by an action of ejectment, but- this would not settle the equities of the parties, or put an end to the case. A court of equity alone, can do complete justice between the parties, and end the controversy forever. It is objected, by the plaintiff in error, that the complainants have no right to exhibit this bill, and join the executors and infants in it as co-complainants, their interests not being identical. We understand the rule of chancery practice to be, where improper parties are made plaintiffs, the defendant must demur, and cannot make the objection on error after the bill has been taken for confessed. Admitting the County Court had no power to appoint a third executor, two having been appointed by will, and qualified, advantage should have been taken of that fact by plea. It is now too late. The two qualified executors represented the estate. The other complainants are alleged to be the heirs-at-law of the deceased vendor, and represented the title which the law vested in them to the land contracted to be conveyed by their ancestor, and were proper and necessary parties. The infant complainants sue by their next friend, as provided by the fourth section of the Chancery Code. Scates’ Comp. 138. It is true, as urged by the plaintiffs’ counsel, the thirteenth section of chap, forty-seven, title “ Guardian and Ward,” empowers minors to sue in all cases by any person they may select as their next friend, he giving bond for costs; but this is not a case within that statute, and if it was, the statute does not inhibit them from joining in a suit with other parties, in a proper case, suing by their next friend. We are also referred to sections thirty-one, thirty-two, thirty-three, thirty-four and thirty-five of chap, twenty-four, title “ Conveyances,” Scates’ Comp. 163. Those sections, taken in connection, have in view cases where the consideration-money has been paid, and we have already said, this case is not within the purview of either of those sections, or of that statute. It is a case, sui generis, where great injustice would be done and great hardship result, if a court of equity, in the exercise of its undoubted powers, could not interpose to relieve. It is urged that the infant heirs-at-law should have been made defendants and not complainants, as the scope of the bill is to divest them of title to land, and -prima faoie is against their interest. This is not a correct view of the case. The bill prays the aid of the court to carry out the contract of their ancestor, which they can be compelled to perform if proceedings were instituted against them for such purpose, and on proper proofs. A proceeding which divests a minor of an estate in land, is not, necessarily, against his interest, so that he must, in every possible contingency, be made a defendant, and have a guardian ad litem appointed to protect his interest. It is only in those special cases arising under the statute, in which he must be made a defendant, and all the evidence affecting him, preserved in the record. It is asked if these minor heirs could not, hereafter, set aside this decree. We are at a loss to perceive on what grounds. They are parties to a proceeding for their own benefit, to carry out the contract of their ancestor, which they are bound to perform, and which they seek to, and do perform in this mode. But it is urged the decree is defective in awarding a vendor’s lien upon the ‘land, personal security having been taken for the purchase-money. The rule is well settled in the courts of this country, that no lien exists in a vendor who has taken a note with security for- the purchase-money. 4 Kent’s Com. 153; 1 Paige Ch. 20. In this respect the decree is erroneous and must be modified. It is manifest, the representatives of the estate of the deceased vendor, are wholly remediless by any proceeding at law, and can only have relief in a court of equity, but that court cannot, as a general principle, revive a lien which has been once waived, or other security taken in lieu thereof, but it can decree the legal title in the owner of the equitable title, on his paying the purchase-money at a day to be named. On failure to make the payment, then a sale of the interest of the vendee in the premises may be ordered, and if not sufficient to satisfy the amount due upon the note, then an execution to issue for the residue. It has been settled by this court, that when the purchase-money of land has not been paid, the vendor may file his bill for a specific performance to coerce the payment of the money, and to subject the land to sale for satisfaction, although an action at law would lie upon the note. Andrews et ad. v. Sullivan, 2 Gilm. 332. This being so, we can perceive no reason why his personal representatives may not proceed in the same manner. But there is a fatal objection to the decree found in the fifth point, made by the plaintiffs in error, which has not been obviated or answered. The contract and bill both described the land in the same manner, as contained within two lines, one running west eighty rods, thence south fifty rods to the place of beginning, which inclose nothing. The decree is for a tract of land bounded by the following lines: West eighty rods; thence south forty rods; thence east eighty rods; thence north forty rods to the place of beginning. There is no averment in the bill of a mistake in description, or prayer to $ correct the mistake, the court, therefore, had no power to correct it by the decree. The allegations and proofs do not correspond. The decree is not in conformity to the case made by the bill and the proof. The decision is therefore reversed, and the cause remanded with leave to amend the bill. Decree reversed.