Homer v. Purser , 20 Ala. 573 ( 1852 )

DARGA.N, C. J.

The question in this case is, does the mistake in the sale of the land, connected with the subsequent offer of the plaintiff to return the deed of the defend- • ant to him, and the offer to rescind, entitle the plaintiff to sue at law to recover the purchase money which he had paid. I am of the opinion they do not. If we allow the plaintiff to recover back the purchase money at law, the legal title to the land actually conveyed would still be in him. He may therefore hold on (at law, at least), both to the money and the land. After recovering the money, he would still be the owner of the land conveyed by the deed. The contract, therefore, at law, would not be rescinded, nor the parties placed in statu quo. In the case of Cullum v. The Branch Bank at Mobile, 4 Ala. 21, it appeared, that tbe note sued on bad been given in part payment of a lot of land purchased by Cullum of S. Andrews, and 'the contract was fully executed by a conveyance with full covenants. It further appeared, that Andrews bad fraudulently represented to Cul-lum, that tbe lot was free from all incumbrances, when, in truth, he had previously mortgaged it, for a large amount, and by virtue of the mortgage the mortgagee, some time after the sale, took possession of the lot. In that case, as in this, the vendee, when he discovered the true condition of the title, offered to rescind the contract, which Andrews refused to do. Upon these facts, this court held, that at law a recovery must be had, and that equity alone could afford relief. The main principle on which the court relied was, that a court of law was incapable of doing complete justice between tbe parties, whilst the powers of a court of equity were ample for this purpose. In the case of Knight v. Turner, 11 Ala. Rep. 631, tbe same principle was again recognized, and, indeed, the whole current of our decisions tends to establish it. See 1 Stewart, 490; Dunn & White v. McCurdy, 1 Ala. Rep. 645.

In the case before us, a court of law is incapable of doing complete justice. It cannot order a reconveyance, or take notice of any incumbrance, that may have been created on the land actually conveyed by the plaintiff since his purchase. But equity can do this. In that forum, complete justice can be done, and protection afforded to both parties. We therefore must remit tbe plaintiff to that jurisdiction.

Let the judgment be reversed, and the cause remanded.