Harrison v. Deramus , 33 Ala. 463 ( 1859 )

BICE, C. J.—

It maybe admitted,that “exhibit A” to the bill shows what the contract originally was between the parties, and that if the complainant had not after-wards accepted the conveyance, bearing date February 5, 1852, and treated it as a valid conveyance, after notice of the deficiency in the quantity of the lands, he would have been entitled to redress in a court of chancery.-—Springle v. Shields, 17 Ala. Rep. 295; Thrasher v. Pinckard, 23 Ala. R. 616 ; Hill v. Buckley, 17 Vesey, 393; Couse v. Boyles, infra.

It may be further admitted, that if the complainant had proved the allegations of his bill, as to the circumstances which induced him to accept the conveyance, and to treat it as a valid conveyance, he would, under the other allegations of his bill, and the proof in the cause, be still entitled to redress in a court of chancery.—Pharr v. Russell, 7 Iredell’s Eq. Rep. 222; Bailey v. Snyder, 13 Serg. & Rawle, 160; Huckabee v. Albritton, 10 Ala. 657.

But he has failed to prove the matters which he alleged, in explanation of the established fact, that he did accept the conveyance, and treat it as a valid conveyance, after-notice of the deficiency in the quantity of the lands. That fact being established as one of the facts of the case, and being unexplained by evidence, the question is, whether, upon the case as now presented, the complainant is entitled to any relief in a court of chancery.

It is too clear for argument, that he is not entitled to a rescission of the contract, upon the facts as presented by the record. His right to rescind has been lost by the line of conduct he has elected to pursue, after he obtained notice of the difference in quantity between the- lands as represented in the original contract, and as represented in the conveyance.—Kern v. Burnham, 28 Ala. Rep. 428; Askew v. Hooper, 28 Ala. 634.

Nor is he entitled to a specific performance of the contract originally made; because he has subsequently accepted a conveyance for all the lands mentioned in the original contract, to which the respondent ever had any title, and he has treated that conveyance as a valid one, after he had notice that it conveyed to him a less quantity than was- mentioned in the original contract. He has, after-such- notice, even sold and conveyed hack to the respondent a considerable portion of the very lands embraced in the original contract, and in the conveyance of respondent to-him. A court of chancery will not do the vain thing of decreeing that the respondent shall convey to the complainant the very lands which it appears he had, before the filing of the bill, conveyed to complainant, by a deed! which complainant had treated as valid, after notice that it did not embrace all the lands in the original contract:: nor will the court of chancery decree that the respondent shall convey the lands not embraced in the conveyance of' respondents complainant, because, although they are embraced in the original contract, it appears that the respondent never had any title to them; and that court will never-decree that a vendor shall convey lands, to which it appears he never had any title.—Fitzpatrick v. Featherstone, 3 Ala. Rep. 40.

[2.] The case, as presented by the evidence, is then reduced to a mere case by the vendee for the recovery of damages, by way of compensation, for the deficiency in the quantity of lands; and must be treated as a suit by him, the sole object of which is to recover such damages or compensation, and in which it is impossible to decree to him such damages or compensation “as incidental to other relief sought by the bill and granted by the court.” No special equity appears. The vendor is a resident of the State, and not pretended to be insolvent. No discovery is sought, but, on the contrary, an answer from him under oath is expressly waived in the bill. No excuse is proved for the conduct of the vendee in accepting the deed, which on its face disclosed the deficiency in quantity, and in treating it as valid after he knew of the deficiency. No obstacle to a complete remedy at law is alleged ; and the remedy at law (if one exists in any forum) is plain, adequate, and complete. The authorities compel us to hold, that in such a case, the vendee cannot recover damages or compensation in a court of chancery..—Morgan v. Patrick, 7 Ala. 185; Minge v. Smith, 4 Ala. 415; Pritchett v. Munroe, 16 Ala. 785; .Gibson v. Marquis, 29 Ala. 660; Knotts v. Tarver, 8 Ala. Rep. 743; Russell v. Little, 28 Ala. 160; Sims v. McEwen, 27 Ala. 184; Couse v. Boyles, 3 Green’s Ch. R. 212; Meek v. Bearden, 5 Yerger, 467; Frederic v. Campbell, 13 Serg. & R. 136.

' Decree affirmed, at the costs of appellant.

Seone, J”., not sitting.