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MORGAN'S HEIRS V. MORGAN, 15 U. S. 290 (1817)
U.S. Supreme Court
Morgan's Heirs v. Morgan, 15 U.S. 2 Wheat. 290 290 (1817)
Morgan's Heirs v. Morgan
15 U.S. (2 Wheat.) 290
APPEAL FROM THE CIRCUIT
COURT OF KENTUCKY
The jurisdiction of the circuit court, having once vested between citizens of different states, cannot be divested by the change of domicile of one of the parties and his removal into the same state with the adverse party pendente lite.
In a suit demanding the specific, performance of a contract by conveying lands in the State of Ohio stipulated to be conveyed as the consideration for other lands sold in the State of Kentucky, or in lieu thereof requiring indemnification by the payment of money, it was held that all the co-heirs of the vendor, deceased, ought to be made parties to the bill, and that the death of one of the, heirs ought to be proved in order to excuse his omission as a party to the bill.
It is a universal rule of equity that he who asks for a specific performance must be in a condition to perform himself. Therefore the vendor, being unable to make a title free from encumbrances to the lands sold in Kentucky, was held not to be entitled to a decree for a specific performance.
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 fulfill 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 favor. 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, 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 color of an execution for the costs, on the reversal aforesaid, for the sum of $13.72 1/2 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 its 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 11 December, 1795,
$5,000; on 11 December, 1796, $6,250; and at that date, $20,000. At the November term, 1815, a motion for a rehearing having been overruled, a decree was rendered on behalf of the complainants for $6,250, with interest from 11 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.
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 divested 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 co-heirs 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. 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,
so far as it is to be determined in a court of equity.
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 in Hepburn & Dundas v. Auld, 5 U. S. 321, and the principles laid down in those cases are believed to be entirely correct.
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
fee simple in the tract of one thousand acres lying in Kentucky, which was sold to him by their ancestors. Have they done so?
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 unencumbered 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 terre-tenants 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 encumbrance is an encumbrance in fact, and its legality can be inquired into by this Court only in a suit to which the persons claiming the title are parties.
It might be urged that as the appellant sold to Patton, and Patton holds also under the sheriff's sale, he is not now at liberty to consider Patton's title as an encumbrance on the land.
This argument would be entitled to great consideration were it applicable to the whole land sold by the sheriff. But it is inapplicable to one hundred and sixty-six acres, part of the tract which has never been sold by the appellant.
If the titles acquired under the sheriff's sale be such as would be annulled in a court of law or equity (concerning which this Court gives no opinion), it was incumbent on the plaintiffs to annul them before they obtained a decree for a specific performance.
Other objections have been made to the decree of the circuit court. It has been said that the contract was in its origin unequal, and that the ancestor of the appellees had in his lifetime, by his conduct, disaffirmed the contract. It is deemed unnecessary to examine these objections, because the Court is of opinion that the inability of the appellees to make
such a title to the land at this time as the appellant ought to accept deprives them of the right to demand a specific performance. Neither party can at present claim the aid of this Court, but ought to be left to pursue their legal remedies.
Decree reversed and bill dismissed.
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