Fitzpatrick v. Featherstone , 3 Ala. 40 ( 1841 )

COLLIER, C. J.

It is not insisted that the injunction was improperly dissolved, nor indeed can it be, as the answers contain a direct denial of the allegations of the bill on which the complainants rest their claim to equitable relief.

Though it does not explicitly appear whether .the bill was dismissed upon a hearing of the cause, or on a motion to dissolve the injunction, yet we will suppose, that it was disposed of on the motion to dissolve. The question then is, do the facts as stated by the complainants, and the general prayer of the-bill, entitle them to further relief?

The only relief which the plaintiffs could claim upon a contract such as that shown by the- record, beyond the injunction, is either a specific performance, ora rescission of the contract. But they do not seek either of these, and the premises do not authorise a decree either for the one or the other.. It is charged that Featherstone has not, nor even had at the time of the-sale to. the plaintiffs, the approved contracts- for the lands in question. Assuming this to be true, as against the plaintiffs^ and chancery would not decree a specific performance. The interference of Courts of Equity in such cases, is discretionary,, and a specific performance will not be enforced where it is obvious that the vendor has no tille — such a decree would compel the party to an unlawful act. 2 Story’s Eq. 52-3, 79, 80-1.

In order to rescind a contract, the parties must- be placed in statu quo. that is, the one party must have the property, with which he parted, and the other the money. The plaintiffs do not offer to-relinquish their claim- to the lands purchased., nor do they ask a return.of the money,, with.'which they parted; but they declare their willingness and readiness to pay the judgment recovered against them. There is nothing ih all this, which-shows, a wish to be relieved from their contract, but it' manifests an anxiety that titles should be made to them by their vendor, that they may with safety to their interest, satisfy the judgment against them.

Upon neither of the grounds examined, are the plaintiffs entitled to relief on their hill as framed, and it was therefore, properly dismissed. It is no objection that the dismissal was general, instead of without prejudice, as it will not bar an original bill for relief, in which other questions shall be presented, than those litigated in the present case.

The contract between the parties appears, to have been made in Georgia, and the note on which the judgment was recovered, is there dated; as it does not contemplate payment ‘elsewhere, the lex loci 'eontractus must determine its legal effect. And even if it be doubtful whether the laws of this State arc the rule of decision, if McDougald became the proprietor of the note here, there can be no doubt, but the laws of Georgia are conclusive of his rights, if the indorsement was made there. What are the laws of that State, it is unnecessary (from the view taken) to .inquire!

The fact that the plaintiffs are not, nor ever have been in the actual possession of the lands, is every way immaterial; They doubtless have the constructive possession, “ which is transferred to the vendee eo instanti, with the execution of the conveyance, by the statute of uses.” Bliss, adm’r. v. Yancey, (1 Ala. Rep. N. S. 273.)

We have only to add that the decree is affirmed with costs.