Lamkin v. Reese , 7 Ala. 170 ( 1844 )

ORMOND, J.

— The argument of the counsel for the plain-. tiff in error, has been mainly directed to establish the position .that the "decree of the Orphans’ Court for the sale of the land, which the complainant purchased was absolutely void. That for the cause assigned for the sale of the land in the petition- to the Orphans’ Court, the personal representative of the deceased, should have been the actor, and not as in this case one of the heirs. We shall decline the examination of this question, because, conceding the argument to be true, the bill is fatally .defective.

The entire purpose of the bill is to rescind a contract for the purchase of a tract of laud, at a sale made by commissioners appointed bythe’Court. Notes were executed for the purchase money, and possession of the land taken and kept by the. complainant for upwards of two years; during which time he exercised ownership over it by clearing a considerable portion of the timbered land, and it was not until after the lapse of. more' than two years, and suit brought for the purchase money, that this bill is filed for a rescission of the contract.

If it be true, as supposed, that from want of jurisdiction in the Orphans’ Court, the title of the heirs was not divested by the sale, it by no means follows, that the complainant may at his pleasure rescind the contract. He has sustained no injury, if he can now obtain the title, whilst on the other hand, the in-, jury to the heirs may be irreparable, if the contract can thus be, arbitrarily rescinded by one of the parties to it. Nor is it an .unimportant element in the consideration of this question, that this was a judicial sale; that the authority of the commissioners to sell was matter of record, and that the complainant, in the absence of fraud, which is not alledged, must be presumed to have knowledge of the facts; and if, in truth, as alledged in the bill, he was ignorant of the irregularities in the proceedings of the Orphans’ Court, it will not avail, as it was his duty to inform himself before he'pdrchased. Whatever, therefore, may have been his right to a rescission of the contract upon this ground, if a seasonable application had been made for that purpose, no such right exists, after such a lapse of time, and where the interests of the heirs might be so materially affected thereby, unless the heirs were unable or unwilling to make title. As already observed, the object of the bill is not for a'rescission of the contract if the title is not made, but in this aspect of the case, it is framed upon the supposition, that although the heirs may now be able and willing to make the title, that the complainant may at this distant period abandon the possession and rescind the contract.

The heirs are not made parties to the bill, but it appears from the record that they filed a cross bill, in which they offered to affirm the contract and convey the title. This bill the Chancellor, with the consent of the complainant, dismissed, upon the ground that as the heirs were not parties to the original-bill, they could not file a cross bill.

It is also alledged in the bill, that although the lands of the deceased were correctly described in the petition to the County Court, that in the decree of the County Court for the sale thereof, and in the advertisement of the commissioners, it was incorrectly described — a part thereof being described as being in section twenty, instead of section twenty-one. It is admitted in the bill that Lassiter, the deceased, died seized of the lands as described in the petition. The sale, it appears, was in fact made upon the tract lying in section twenty-one — that no one was deceived by the mistake in the decree of the Court, and in the advertisement of the commissioners. That they supposed they were selling, and the complainant supposed he was purchasing, the land lying in section twenty-one, which was the land designed to be sold, and of which it appears he went into possession.

The fact that there was a mistake made in describing the lands intended to be sold, does not of itself give a Court of Chancery jurisdiction to correct the misdescription of the lands, if that was the object of the bill. Before a Court of Chancery will entertain a bill for that purpose, it must be shown that application has been made to the opposite party to rectify the mistake, and that he refused to do so. This was explicitly declared in Long & Long v. Brown, 4 Ala. Rep. 622.

Nor is it any ground for rescinding a contract for the sale of land, that it is not correctly described in the contract, the ven-dee having obtained possession of the land he intended to purchase, and the vendor being able and willing to correct the mistake, and make a title to the property. [Evans v. Bolling, 5 Ala. Rep. 550.]

It is quite obvious from the frame of the bill, and all the facts of the case, that the object of the bill is not to quiet the title, but to get rid of the contract. This was the view taken by the Chancellor, and we fully agree with him in opinion, that he is not entitled to the aid of Chancery to rescind the contract. The decree is therefore affirmed with costs.