Castor v. Mitchel , 4 Wash. C. C. 191 ( 1821 )

■WASHINGTON, Circuit Justice.

Upon the question of jurisdiction, we have no doubt but that the plaintiff removed to the state of New Jersey, with the bona fide intention of changing his domicil, and making that state the place of his permanent residence. Apparently he had no other motive at the time he removed to that state; and as he could not then have anticipated this controversy, it is not to be presumed that he contemplated a fraud upon the jurisdiction of this court. On the contrary, the evidence in the cause furnishes reasons for his removal which are entirely consistent with the reality of a bona fide change of domicil. In December, 1810, he, together with his brother, purchased a farm in New Jersey, and in the month of March following, as soon as the season would well permit, they both removed to it, and continued jointly to occupy and to cultivate the land, until the separate conveyance made by the defendant to Daniel Castor in the autumn of ISIS; when the plaintiff, being a single man, removed to the house of Mr. Denny, in Gloucester county, where he remained as a boarder until the latter end of November, 1S19. after this suit was brought, when he returned to Philadelphia. During his abode with Denny, he occasionally visited his friends in this state, but his room was always reserved for him. So far as any inference can be made from his declarations to the witnesses, during his residence in New Jersey, he considered himself to be a citizen of that state. We are of opinion, upon the whole, that the objection to the jurisdiction is not supported by the proofs in the cause.

As to the relief, there is no doubt. Taking it as granted, that the plaintiff was not ready to complete the contract, and that he even refused to do so, there is no principle of law, or equity, upon which the plaintiff could found a claim to retain the money paid him by the purchasers, together with the evidence of a further sum to be paid as the consideration of the purchase, and also to hold the land, otherwise than as a security for the residue of the purchase, and still less to sell it to a third person. The defendant had clearly a right to compel the purchasers to perform their contract, by paying the balance of the purchase money; and his lien upon the land was quite as strong as if the mortgage deed had been executed. But, if he chose to put an end to the contract, if under all the circumstances of the case he could do so; the purchasers were surely entitled to be placed in the situation they would have been in if the contract had not been made. Had the defendant sued the purchasers in equity for a specific performance, it would have been an essential part of his case to show that he had made a conveyance, or was ready to do so; and the court would decree a. conveyance as the condition of the payment of the residue of the purchase money.

These principles being premised, it follows, that, since the defendant has conveyed the land to Daniel Castor, and thus disqualified himself to perform his part of the contract, the plaintiff ought not to be exposed to the payment of the bond for $1,000, which was given in part consideration for the' land. The decree of this court cannot affect the jurisdiction of the court where the suit upon that bond is depending. But it may operate in personam upon the defendant. As to the $2,000 paid by the plaintiff, there is no proof that it was the separate money of the plaintiff. It might as well have been the money of Daniel Castor, or of the joint purchasers, and the presumption is in favour of the latter. This being the ease, and Daniel Castor not being a party to this suit, the court cannot decree this sum to be repaid to the plaintiff. We shall therefore decree the bond for $1,000 to be delivered tó the plaintiff, can-celled; and shall dismiss the bill as to the $2,000, but without prejudice.