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MORGAN's heirs v. MORGAN et al.

March 11, 1817


APPEAL from the circuit court of Kentucky. This was a bill in equity, filed by the complainants in the court below, (who are the defendants here,) founded on a bond, conditioned for the conveyance of 5,000 acres of land, to be situated within certain bounds of the state of Ohio; for which land a conveyance was prayed, if the defendant was possessed of, or had the means of acquiring, the title thereto, and, in the event of such inability on the part of the defendant to comply specifically with his stipulation, a compensation in damages in lieu thereof; and, in this latter case, that a tract of 1,000 acres of land, situate in the county of Bourbon, in the state of Kentucky, which formed the consideration on the part of the complainants, for the 5,000 acres of Ohio land, and for the conveyance of which the ancestor of the complainants had, contemporaneously with the first bond, executed his own obligation to the defendant, should be sold for the purpose of completing such indemnity, upon the suggestion of the insolvency of the defendant; on the ground of the equitable lien existing on the part of the complainants in that land, for the purpose of such indemnity. The bill further alleged, that the ancestor of the complainants, discovering the inability or unwillingness of the defendant to fulfil the stipulations of his said bond, for the purpose of his ultimate indemnity against the consequences of such failure, had instituted an ejectment in the Fayette circuit court, against James Patton, to whom the defendant had many years before sold, and invested with the possession of the said 1,000 acre tract, against whom judgment had been rendered in his favour. That subsequent to such judgment, an adjustment of the accounts of improvements, rents, and profits, had been effected between them, which was shown by an agreement in writing, in which it was stipulated that the said Patton should pay to the ancestor of the complainants the sum of 30 dollars, in full for rents, and should yield up the possession of the premises on a day therein named. But that in violation of the spirit and true intention of this agreement of compromise, he, the said Patton, had fraudulently prosecuted a writ of error to the said judgment in ejectment; and having procured, in the appellate court, a reversal of the said judgment, had secretly, illegally, and by combination with Chilton Allen, and others, procured a sale, under colour of an execution for the costs, on the reversal aforesaid, for the sum of 13 dollars 72 1/2 cents, and sacrificed 666 1/3 acres of the said tract, worth many thousand dollars, for that trivial sum; the said Allen having become the purchaser, and subsequently conveyed 500 acres thereof to Patton, and the residue to James Scoby, all of whom are made parties to the bill. The complainants, for the purpose of giving legal effect to the lien given them by equity, on this tract of 1,000 acres of land for the satisfaction of their demand, pray that the sale, and all other proceedings on the execution for costs, be vacated on account of the fraud and illegality by which the same was effected. Morgan, the defendant, in his answer, admits, that he was unable to comply with the contract to convey the lands N. W. of the Ohio; alleges fraud in the original contract, &c. Allen, Patton, and Scoby, deny fraud, &c., and allege a good title under the sheriff's deed. On the hearing, the court, at their November term, in 1814, dismissed the bill as to Allen, Patton, and Scoby; but decided that the defendant, Morgan, was responsible for the value of the lands in Ohio, and directed a jury to ascertain its value. At the May term, 1815, a jury estimated the Ohio land to be worth, on the 11th day of December, 1795, 5,000 dollars; on the 11th of December, 1796, 6,250 dollars; and at that date, 20,000 dollars. At the November term, 4815, a motion for a re-hearing having been overruled, a decree was rendered, on behalf of the complainants, for 6,250 dollars, with interest from the 11th December, 1796 and costs against the defendant, Morgan, and execution ordered against his estate. Commissioners were also appointed to sell the land, if the money could not be made by execution, and the commissioners directed to convey to the purchaser. The complainants were also directed to join in the conveyance, and to stipulate to pay, at the rate of 20 shillings per acre, for any of the land that might be lost by a superior title. By a copy of the will of C. Morgan, of Pennsylvania, exhibited in the cause, it appeared that the testator had a son, William Morgan, who was one of his heirs, and who is no party in the cause. It also appeared that there are two other executors not named in the bill. During the progress of the suit, Daniel Morgan, one of the complainants, removed to, and became a citizen of, Kentucky. This was shown to the court, and a motion made to dismiss the suit for the want of jurisdiction, and overruled. March 8th. Mr. M. B. Hardin and Mr. Jones, for the appellants. 1. The voluntary change of citizenship by one of the complainants, pendente lite, is a waiver of the privilege of maintaining a suit in the circuit court, which exists only between citizens of different states, and ceases by the parties becoming citizens of the same state. The general rule is, that a court, once having jurisdiction of a cause, will keep it; but that relates to the subject matter of the suit: here it is a personal privilege, which the party waives by removing into the same state with his adversary; and in this case, into any other state; because all the parties on one side must be citizens of one state, and all the parties on the other, citizens of another state. 2. There is a defect of proper parties to the bill. 3. This is, substantially, a bill by a vendor to compel the vendee to complete the contract, and ought not to be sustained; because the contract was unequal, and the vendor had himself disaffirmed it. Where there is inequality in the contract, a court of equity will not decree a specific performance even in a case where damages might be recovered at law, but will remit the parties to their legal remedy. 4. In order to obtain a specific performance, the vendor must show that he has a good title to give; which is not the case here, the land being incumbered by the judicial sale, which gives at least a presumptive title against the vendor's claim. 5. The decree is inequitable in its details. If damages ought to have been decreed, the estimated value of the land stated in the written contract was the true measure of damages, and not the sum stated in the decree. The order for the sale of the land under incumbrances was improper; as some of the complainants were infants, some femes coverts, and one of the heirs not made a party to the suit; so that no legal title could be acquired by a purchaser, without time, trouble, and expense. Mr. Talbot, contra. 1. The removal of one of the parties cannot oust the court of its jurisdiction. The citizens of different states have not an individual, peculiar, personal privilege; but it is a classification of persons, who, under the constitution, have a right to sue in the national courts. 2. As it regards the primary object of the suit, the title to the Ohio land, the bill is that of daily and familiar use; that with a double aspect, requiring of the chancellor a specific execution of the stipulation for conveyance, in pursuance of the defendant's bond, or in the event of inability, (in relation to which the complainant is ignorant,) upon the ascertainment of such entire inability, compensation equivalent to the value of the land in lieu thereof. The enforcement of the equitable lien, held by the complainants on the Bourbon land, the possession of which (but not the title) their ancestor had transferred to the defendant, Morgan, is the peculiar and exclusive province of the equitable tribunal; and especially in Kentucky, by the laws of which, the equitable claims to real estate are not made subject to execution. The equity of the lien on behalf of the complainants is irresistible, on the supposition of the inability of the defendant, Morgan, to convey the Ohio land; the Bourbon land constituting the entire consideration for the stipulation of the defendant for the conveyance of the other; and the ancestor of the complainants having taken no personal security, but retained the legal title as his only guarantee for the faithful execution of the stipulation on the part of the defendant, Morgan; and the embarrassments in which the title and possession of the Bourbon land had become involved by the acts of the defendant, Morgan, and those claiming through and under him, in relation to the fraudulent and illegal sale of that land, under colour of the execution, forms another distinct and unquestionable ground for the interposition of equity jurisdiction; the tribunal of the chancellor alone possessing competent powers by a single suit (avoiding multiplicity of harrassing litigation) to embrace all these various subjects of controversy, and by its decree, co-extensive with the matters in contest, to do final and complete justice to all the parties. 3. The subsequent, fraudulent, or illegal sale and purchase of the Bourbon land, effected through the agency of Patton claiming and holding possession of the same, under the defendant; a sale effected not only in violation of the solemn stipulations between said Patton and the ancestor of the complainants, by the terms of which the proceedings under the ejectment and all matters in relation thereto, were finally compromised between them; but, also, in defiance of the various provisions of the acts of the Kentucky legislature, authorizing the sales of real estate under execution, ought not to affect or prejudice the right of the complainants to recover of the defendant, Morgan, an indemnity for his failure to convey the Bourbon land. 4. The sale of the Bourbon land under colour of the execution or costs was irregular and illegal in the following particulars: 1st. That the act of the Kentucky legislature, under which this sale is attempted to be justified, only authorizes the sale of real estate on execution for debt or damages, and not executions for costs alone, as was that from the court of appeals, in the present case. 2d. The act requires that the sale to be effected under such executions shall be advertised on the door of the court-house, on a court day; thereby clearly intending that such advertisement should be placed in that situation, in time to afford the requisite information to all persons attending court, for the entire day; which was not done on this occasion, the advertisement not having been put up until the latter part, or afternoon of the day. 3d. The said sale was not advertised at the court house, and some meeting-house door, and at the other most public places, within the county, as required by the said act; in consequence of which omissions to comply with those important requisitions of the law, the land of the complainants, worth several thousand dollars, was sacrificed for a paltry and insignificant sum.

The opinion of the court was delivered by: Mr. Chief Justice Marshall delivered the opinion of the court.

In this case two questions respecting the formal proceedings of the circuit court have been made by the counsel for the appellant.

The first is, that one of the complainants in the original suit having settled in the state of Kentucky after this bill was filed, that court could no longer entertain jurisdiction of the cause, and ought to have dismissed the bill.

We are all of opinion that the jurisdiction having once vested, was not devested by the change of residence of either of the parties.

2d. It appearing from the will that at its date the testator had a child who is not a party in this suit, the bill ought to be dismissed, or the decree opened and the cause sent back to make proper parties.

It is unquestionable that all the coheirs of the deceased ought to be parties to this suit, either plaintiff or defendant; and a specific performance ought not to be decreed until they shall be all before the court. It would, perhaps, be not enough to say that the child named in the will, and not made a party, is most probably dead. In such a case as this, the fact of his death ought to be proved, not presumed.*fn1 a But as the opinion of the court on the merits of the cause will render it unnecessary to decide this question, it is thought best for the interest of all parties to proceed to the consideration of another point which will finally terminate the contest,

This is a suit for the specific performance of a contract, either by conveying lands in the state of Ohio, stipulated to be conveyed as the consideration for land sold in the state of Kentucky; or, if that be out of the power of the obligor, by paying money in lieu thereof. Although the contract is not contained in one instrument, but consists of two bonds, the one given by Charles Morgan of Pennsylvania, binding himself to convey the land in Kentucky, and the other by Charles Morgan of Kentucky, binding himself to convey the land in Ohio; yet, it is essentially one contract; and it sufficiently appears that the land in Ohio forms the consideration for the lands in Kentucky. It is then a case standing on those general principles which govern all applications to a court of equity, to decree the specific performance of a contract.

In cases of this character, no rule is more universal than that he who asks for a specific performance must be in a condition to perform himself. This point was fully considered in the cases decided in this court between Hepburn and Dundas, and Colin Auld as the agent of Dunlop & Co., and the principles laid down in those cases are believed to be entirely correct.*fn2 b

Let us inquire, then, whether the plaintiffs in the court below have brought themselves within this rule.

It is incumbent on them to show an ability to convey to the defendant in that court a clear estate in

The co-heirs are, some of them, femes covert, and some of them infants. The decree against the defendant for the value of the Ohio land is not dependent on their making him a conveyance of the land in Kentucky, but is absolute. He is to pay the consideration money, and then obtain a title if he can. It is true that in the event of selling the Kentucky land, which is to take place after exhausting the personal estate of Charles Morgan of Kentucky, the complainants are directed to join in the conveyance; but this contingency may not happen; and if it should, a decree that femes covert and infants who are plaintiffs, and against whom no cross bill has been filed, should convey, might not secure a conveyance.

This might be corrected by sending the case back with instructions to new model the decree so as to adapt it to the situation of the parties, did it appear to the court that the appellees are able to make such a title as the appellant ought to receive.

But the appellees appear to the court to be incapable of making an unincumbered title to the land sold by their ancestor. Six hundred and sixty-six acres have been sold under an execution, and conveyed by the officer making the sale. The terretenants have been brought before the court. The bill, as to them, has been dismissed, and from the decree of dismission there has been no appeal. Can this court close its eyes on their title, or declare it invalid?

It has been said that the sale is fraudulent, irregular, and illegal. But the court empowered to examine these allegations has decided against them, and from its decree no appeal has been taken. The incumbrance is an incumbrance in fact, and its legality can be inquired into by this ...

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