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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


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,

Page 15 U. S. 291

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,

Page 15 U. S. 292

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,

Page 15 U. S. 293

$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.

Page 15 U. S. 297

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