Thompson v. Jackson

• Decision Date: 28 October 1825
• Citation: 24 Va. 504
• Parties: Thompson v. Jackson
• Court: Virginia Supreme Court

24 Va. 504

Thompson v. Jackson

Supreme Court of Virginia

October 28, 1825

This was an appeal from the Richmond Chancery Court. It was argued in this Court by Daniel, for the appellant, and Leigh, for the appellee. The subject of controversy, and the arguments of the bar, will be seen by the following opinions.

Decree affirmed.

Judge Carr, delivered his opinion. Judges Coalter, Judges Green and Cabell, concurred.

OPINION

Carr Judge

Lucy White, residing in the county of Louisa, directed by will that her executor Jackson, should sell her land, lying in Hanover; and divide the money in certain portions, among certain legatees. The executor, wholly unacquainted with the land, employed Street to survey it. He did so, and made out a plat, shewing a tract of 278 acres. By this survey the land was sold at public auction and bought by the plaintiff. The contract was executed, by the delivery of a deed to the purchaser, and his giving a deed of trust on the land, which also included some slaves; and executing his bond for the purchase money. After this, he discovered that one Wright, claimed title to a part of the land included in his deed; which is considered by the witnesses to amount to one-fourth in value of the whole tract. Upon this, he proposed to rescind the contract. The executor refused, but offered to survey the land, and abate for any deficiency which might be found to exist. This proposition was not acceded to. The time of payment came round. The trustee advertised to sell, under the deed of trust; and the plaintiff filed this bill to stay the sale, and to rescind the contract. The Chancellor dissolved the injunction, except as to $ 500; and the plaintiff appealed.

The first question is, ought this contract to be rescinded? In the argument for the appellant, it was contended, that there was no difference in reason and principle, between an application for specific execution, and an application to rescind. Many cases were cited to prove, that in a case like this, equity would refuse a specific performance; and hence the conclusion was pressed upon the Court, that we ought to rescind the contract. I had thought it well settled law, that the two cases were separated by a broad and strong line of distinction. Executory contracts for real property, and some other subjects, offer to the party the alternative, of either suing at law for damages, or asking the aid of equity to obtain the specific thing. The application to equity is not ex debito; but merely presents to the sound discretion of that forum, this question: Is it better, for the furtherance of justice, considering all the circumstances of the case, to give the party a specific execution, or to leave him to his legal remedy? Very different is the question, where a party asks the Court to rescind a contract, especially an executed contract. In the first case, the Court merely decides which of two remedies a party shall pursue. In the second, it annihilates a solemn contract, rendered still more imposing by the fact, that the parties have carried it into execution; thereby changing materially their situations, and giving birth to new rights and obligations. The vendor has parted with the title and possession of his land, and has taken his money, bonds, or other equivalent. The vendee has entered into possession, clothed with the fee or other estate purchased; and for security of his title, has taken a deed with such covenants and warranty, as his contract called for. To undo all this, is a strong handed measure, and none but a clear and strong case will justify it. Accordingly, we find it laid down, in all the equity books, that the Court is in the daily habit of refusing the specific execution of contracts; which, at the same time, it just as promptly refuses to rescind. Thus, in Mortlock v. Buller, 10 Ves. 306, Lord Eldon says, " It is much too late to discuss now, whether this Court ought to order a contract, that it would not specifically perform, to be delivered up; and to decree the performance of a contract, which it would not order to be delivered up; for the distinction is always laid down, that there are many cases in which the party has obtained a right to sue at law, and under such circumstances, that his conscience cannot be affected here, so as to deprive him of that remedy; and yet on the other hand, the Court, (declaring that he ought to be permitted to sue at law,) will not actively interpose to aid him, and specifically perform the contract." The cases are numerous, in which we see bill and cross bill, the one for specific execution, the other to have the agreement delivered up to be cancelled, and both dismissed. Many of the following authorities, are of that kind, and all of them state the settled distinction between the two cases. Underwood v. Hithcox, 1 Ves. 279; Barnardiston v. LingoodAtk. 133; Twining v. Morrice & al. 2 Brown Ch. 326; Day v. NewmanCox's C.C. 77; Tilly v. Peers, cited in Mortlock v. Buller, (ubi sup.) Mason v. Armitage, 13 Ves. 25; Clifford v. Brooke, 13 Ves. 131. See also, 14 Ves. 413; 16 Ves. 86; 17 Ves. 167; 18 Ves. 335. After decisions so numerous and so uniform, the point must surely be considered at rest.

When the application is to rescind an executed contract for land, the English books lay it down as a general rule, (admitting of but few exceptions,) that to justify such decree, fraud must appear; and this fraud must be distinctly put in issue by the pleadings. If the charge be a mere failure of consideration, arising from the sale of a defective legal title, unmingled with fraud or mala fides of any kind, it is generally laid down, that the vendee will be left to the covenants and warranty in his deed. See 1 Fonb. 374, (n); Co. Litt. 384, Butler's note; 4 Cruise 90; Sugd. 314-15-16-17, and the cases cited; Bampus v. Platner, 1 Johns. Ch. 213; Abbot v. AllenJohns. Ch. 519; Governeur v. Elmendorf, 5 Johns. Ch. 84; Edwards v. M'Clay, Coop. Equ. Rep. 307.

To this general rule, there are some exceptions of cases, which may be classed under the head of mistake; but the mistake must be plain and palpable, and must affect the very substance of the subject matter of the contract. As where the executor of a mortgagee assigned the mortgage to the heir, upon the mistaken idea, that the latter was entitled to it. Turner v. TurnerCh. 81. So, if there is an agreement for the purchase of an estate, and the purchase money has been paid, if it turns out that the estate was the vendee's, the Court will order the purchase money to be refunded. Bingham v. Bingham, 1 Ves. 126. This doctrine has been also laid down in our own Reports. Armstrong v. Hickman, 6 Munf. 287; Tucker v. Cocke51.

In the case before us, the...