Rives v. Toulmin , 25 Ala. 452 ( 1854 )

GOLDTH WAITE, J. —

One of the conditions on which the liability of Toulmin depended, was the execution of the trust which devolved upon Rives under the deed. — Rives v. Toulmin, 19 Ala. 288; Rives v. Baptiste, at the present term. The object of the bill was, to obtain a discovery as to what property had been sold under the trust, and to force an account for the value of a portion as to which it was charged there had been an improper execution. The answer of Rives showed that the trust had not been executed as to two of the slaves, and thereupon a decree was rendered enjoining him from the prosecution of his suit at law, with leave to move for a dissolution of the injunction. As the suit on the bond could not be maintained until the execution of the trust, and as the discovery made by Rives showed that this had not been done, equity could go on and administer the appropriate relief, if within the ordinary exercise of its authority.- — Story’s Eq., § 71, and cases there cited.

It is urged on the part of the appellant, that as Toulmin in his bill does not insist on the non-performance of the condition as a bar to his liability, coming into equity to enforce the due execution of a trust, he is bound to do equity, and that this principle would require him to receive a credit for the full value of the property which has not been sold. But equity has no power to change contracts fairly entered into. It cannot, unless under special circumstances, relieve against the consequences of the non-performance of a condition precedent.- — Barnett v. Passumpsic Turnpike Co., 15 Verm. 757; Wells v. Smith, 2 Ed. Ch. 78; Bucks v. Jouitt, 3 Litt. 229. Upon the discovery that the act upon which the liability of the appellee depended had not been done, he had a right to demand that equity should afford him the proper relief, without the imposition of terms which would substitute a different condition in the place of one agreed upon by the parties, and thus change the nature of their contract in an essential particular.

Decree affirmed ; the appellant paying the costs of this court.