Opinion
(June Term, 1841.)
The plaintiff alleges in his bill a contract which he cannot prove; but the defendant in his answer sets forth a contract in relation to the same transaction, upon which the plaintiff might have had relief if he had alleged it in his bill. Held, that the plaintiff cannot recover upon these admissions of the defendant, as they show a contract different from that for which he sought the aid of the court of equity, especially where the defendant does not submit to any decree.
THIS was an appeal from a decree of his Honor, Battle, J., pronounced on the hearing of this cause before him at Spring Term, 1841, of HAYWOOD Court of Equity. The pleadings and proofs are stated in the opinion of the Court.
No counsel appeared for either party in this Court.
In 1835 the Legislature granted certain lands, situated in the country of Haywood, to the justices of the county court in trust for the county, and to be sold for the benefit of the county upon terms to be determined by the county court. In 1836 the lands were offered for sale, and among the terms established by the court a right of preemption was allowed to persons then living on the tracts, but upon what particular conditions is not stated in the pleadings or proofs. (377) At the sale the defendant Cunningham became the purchaser of 115 acres of land (of which Robert Herron was an occupant) at the price of 37 1-2 cents per acre, of which he paid one-fourth down and gave his three bonds for the other three-fourths, payable in one, two and three years; and Robert Herron also executed those bonds as the surety of Cunningham.
The bill states that the plaintiff is the son of Robert Herron, and that the latter was entitled to the preemption of the said land, and before the sale transferred it to or waived it in favor of the plaintiff; but that the plaintiff was an infant at the time and the commissioners refused to receive his bid, and that thereupon he applied to Cunningham to purchase the land for him, the plaintiff; and that Cunningham, with the consent of the plaintiff's father, agreed to do so and to allow the plaintiff to make the payments, and when they should have been made to convey the land to the plaintiff. The bill further states that Cunningham accordingly bid off the land as the agent of the plaintiff and for his benefit, and that immediately afterwards the plaintiff put into Cunningham's hands the money to make the payment required down, and subsequently and before the second installment of $10.78 1/4 fell due, he also put into his hands money to pay that. The bill then charges that Cunningham denied having made a contract with the plaintiff or that it was obligatory on him by reason of the plaintiff's infancy, and had subsequently agreed with the plaintiff's father, Robert Herron, for the purchase of the equitable title from him, and hath since obtained a deed from the county and refuses to convey to the plaintiff, although the latter has offered to pay the residue of the purchase-money. The prayer is that the defendant Cunningham may be declared a trustee for the plaintiff, and that an account may be taken of the sum due for principal and interest of the purchase-money, and also of the rents and profits received by Cunningham, and that upon payment of the balance, if any, by the plaintiff, the defendant may be decreed to convey to him.
The answer states that Robert Herron, who was entitled (378) to the preemption, was considerably indebted and insolvent, and in consequence thereof he stated to the defendant on the day of sale that although he wanted the land he could not bid it off because his creditors would immediately seize it, and therefore he requested the defendant to purchase it for him. This the defendant admits he agreed to do, and to convey the land to Robert Herron upon his paying the purchase-money; and he states that thereupon the said Robert drew from his pocket one-fourth of the purchase-money and delivered it to the defendant, and the defendant made the purchase and paid the first installment on that day, and gave bonds for the others as already stated. The answer denies that the defendant made any contract with the plaintiff to purchase for him, or that anything whatever passed between them before or at the sale on the subject. But it states that after the sale was completed and Robert Herron and the defendant were returning home together the former asked the latter whether he would not be willing to make the title to his son Anderson, the present plaintiff, provided he paid the purchase-money, and the defendant replied that he would. The answer then admits that before the first note fell due the defendant received from the plaintiff ten dollars to be paid on that note, but states that before the time of payment arrived Robert, the father, after having often done so before, proposed to sell the land to the defendant, and that they finally agreed upon the following terms: That the defendant should pay the three notes to the county, should return to the plaintiff the sum of ten dollars received from him, and should pay to Robert, the father, fifty dollars for the equitable right; and that he accordingly made the payments to the county and to the father and offered it also to the plaintiff, who refused to receive it. The answer insists that the beneficial interest in the premises was in the said Robert Herron and never belonged to the plaintiff.
Replication was taken to the answer and the parties proceeded to take their proofs, and on the hearing in the Court of Equity for Haywood it was declared that the defendant purchased the premises at the sale made by the commissioners for the plaintiff, and was a trustee for him, and there was a decree that the defendant should convey to the plaintiff upon the (379) payment of the balance of the purchase-money and interest; and the defendant appealed.
Very voluminous depositions have been taken and sent up in the record, but it is not deemed necessary to advert to them particularly, as but a small portion of them is material to the point on which the cause turns, as it strikes us.
The plaintiff has taken the deposition of his father, and if the Court were at liberty to yield full faith to it we should consider the statements of the bill established. The witness denies that he was in debt or afraid from any such cause to purchase in his own name; and he says that before the sale he relinquished to his son, and that the only reason why the son did not purchase was because he was an infant and could not give bond; that such being the case they, the father and son, together applied to the defendant to become the purchaser in his name, but for the benefit of the son, and that the defendant agreed to do so and did so, and agreed to convey to the son upon the purchase-money being paid. The witness also states that to enable the defendant to make the purchase he, the witness, advanced to him the first installment, which he gave to his son because he had worked for money to pay the father's debts. The witness further states that this contract was made in the presence of no person but himself; and he admits that during the next year he sold the land to Cunningham and received $50 for his right: but he says he had no right and did not claim any in the land, and that Cunningham bought at his own risk.
The material difference between the contract stated in the bill and by this witness and that stated in the answer is that the former is an original, distinct and complete agreement between the plaintiff personally and the defendant that the latter should purchase for the former and with money advanced by the plaintiff, and on a declaration of the truth of that allegation the decree is founded; whereas the statement of the answer is that the money advanced to the defendant at the purchase was the money of the father, was advanced by the father, and the contract of the defendant was altogether with the father (380) and for his benefit; and therefore that if the plaintiff have any right he must have derived it under the father subsequent to the sale. It is obvious that those contracts are different, being made with different persons. Now Robert Herron is the only witness who speaks of such a contract between the defendant and the plaintiff; and even he admits that the son did not pay the money, but that he paid it. This single witness could not overrule the positive denial of the answer on this point were there nothing particular against the witness. But, besides the shock given to his credit by his admitted sale of the very land in dispute to the defendant, his character is stated by many witnesses to be such as not to entitle him to belief on his oath. And above all, another witness, who is unimpeached, states in conformity with the answer that on the evening of the day of sale, as the parties were returning home from the sale, Robert Herron applied to the defendant to know if he would not as willingly convey to the son as to the father. We are obliged, therefore, to reverse the declaration that the defendant purchased for the plaintiff, and to declare that he purchased for the plaintiff's father; and consequently the plaintiff cannot have a decree, because there is nothing in his bill to show how the title, thus placed in the father, was derived by him. The defendant admits a case in the answer on which, perhaps, if stated in the bill and admitted or proved the plaintiff might have had relief, but we cannot anticipate what defenses the answer might have set up to such a case if made in the bill; and the answer does not submit to any decree in favor of the plaintiff upon the transaction as stated by the defendant. The allegations and proofs of the plaintiff do not, therefore, correspond as they ought to do to enable us to relieve him without danger of surprise on the other party. A bill cannot be founded on a contract made with the plaintiff and the decree founded on a contract made with another person and coming to the plaintiff by assignment.
The decree must, therefore, be reversed and the bill dismissed with costs in this Court; but, for greater caution, without (381) prejudice to any bill to be brought by the plaintiff hereafter.
PER CURIAM. Bill dismissed without prejudice.
Cited: Grant v. Burgwyn, 88 N.C. 100, 101.