Bruffey v. Brickey

delivered the opinion of the court.

Brickey brought his action in the circuit court of Washington county against Brufley, on a bond for the payment of three hundred dollars, and obtained a judgment; to reverse that judgment, Brufley prosecutes this appeal.

Brufley filed three pleas in bar to the declaration in this case: 1. That the bond was fraudulently obtained. 2. That this bond was made and delivered to one Jones, in consideration of land that Jones had sold to him; that he had been induced to execute to Jones the bond by the false representations of Jones, that he had a good title in fee simple to the land, whereas the title really was in another. 3. That the said bond was made to Jones, who assigned it to Brickey, in consideration of land to which Jones represented that he had, before and at the time of making the bond sued on as aforesaid, the complete right and legal title; whereas it is averred that Jones had not the complete right and legal title to the same, but that the title to the same was in the heirs of one McCoy.

To the two first pleas replications were filed, denying the fraud, and issue was taken on them. To the third plea the plaintiff' demurred, and his demurrer was sustained by the circuit court.

The defendant then filed a bill of discovery under the statute, stating, as in the third plea, that Jones, to whom this bond had heen made, and by whom it had been assigned to Brickey, the plaintiff, had represented to Bruf-fey that he, Jones, had a good and sufficient title in fee simple to the land sold to him, Bruffey, and for which the bond sued on in this case was made; but that since the making and delivery of the bond here sued on to Jones, he, Bruffey, had been informed and believed that the title to the said land was in the heirs of said McCoy, as in the third plea stated; and that McCoy, in his lifetime, contracted by bond to make a deed for the same to one Imboden. The bill further states that the defendant, Bruf-fey, knows of no person but Jones who has a knowledge of the facts therein stated, and prays that he, Jones,may be compelled to make a discovery.

To this bill for a discovery a. demurrer was filed, which was sustained by the decision of the circuit court.

The parties then went to trial on the issue made on the two first pleas. The defendant offered in evidence a bond made by McCoy to Imboden, referred to in the defendant’s petition, for a discovery, by which McCoy covenants to convey to Imboden, for and in consideration of a sum of money therein mentioned, a certain tract of land, on the payment of the consideration money by Imboden. The circuit court excluded the testimony thus offered, and the defendant excepted to its opinion. The defendant then moved for a new trial, and the court overruled the motion.

It is assigned for error that the circuit court sustained the demurrer to the third plea, as well as to the bill or petition for a discovery, and also that the motion for a new trial was overruled.

1. The third plea(to which the demurrer was sustained,) and the bill for a discovery, are m substance the they will then be both considered under one head.

The tenth section of the fourth article of the act regulate the practice at law, passed 17th March, 1835, under which this bill for a discovery is filed, reads thus:

“ Either party to a suit in any court of record shall be entitléd to a discovery from the other party of all matters material to the issue in such suit, in all cases where the same party would, by the rule of equity, be entitled to the same discovery m a court of equity m aid of such Suit.”

lí) then, the facts here set out in the bill praying a dis-eovery would not, in a court of equity, avail the dant any thing, they would not here. From the statement in the bill, we learn that the bond here sued on is a part only of the consideration of the land alleged to be sold by Jones to Bruffey, the defendant in the circuit court and appellant here. From the written argument of the counsel of the appellant, it may be inferred that Jones claimed this land under Imboden, though it is not stated in the bill that he did hold under Imboden. If, as stated in this bill, the bond here sued on was given eonsideration of land purchased from Jones, the assignor of Brickey, by the appellant, a court of chancery, before It interposed its authority to relieve Bruffey, the appellant, would have required him to show something more than he has stated in his bill, or even in his argument. The bond is absolute to pay the sum of three hundred dollars on a given day to Jones, or order, without any condition whatever. What may be the character of Jones’s deed or obligation to Bruffey, the appellant, we *402cannot tell from any thimg on the record. If, as is reasonable to suppose, Bruffey contented himself with Jones’s covenant to convey at a future day, when he plight have power; or if he contented himself with Jones’s covenant that he then had a good title, &c. &c. a court of chancery would leave him to his remedy at law, unless he showed more cause than is here shown. It is true, as it is argued, that Jones may become insolvent and unable to refund the purchase money, in case it should now be paid, as adjudged to be done by the circuit court. This is saying but little more than that it is not now convenient for him to pay, and he is unwilling to do so. He knew before he purchased the land and executed his bond for the purchase money, as well as he now knows, that it was possible for Jones to become insolvent and unable to refund the purchase money, in case his title to the pur-.-chased land proved to be bad, yet it seems that he chose to incur the risk; and if now he wishes to restrain the appellee from the collection of this money, he should have stated the whole contract between him and Jones, pie should have produced Jones's deed for the land, or his covenant fo make a deed, as the case may be, in order that when the court decreed that Jones’s assignee •should be restrained from collecting this money, complete justice might be done to Jones, by a decree that his obligation (of whatever character it may be) to Bruft fey might be cancelled, and Brufley deprived of the power of harrassing him with a’suit. The complainant m such a cause might also, perhaps, be required to show not only that Jones’s title to the purchased land was bad., but that there was some probability that he would become insolvent, or already was so. Thus much a court of chancery would requ’re to be done before it would extend relief to the complainant; a court oi law has not the power to do so much.

*402The circuit court, sitting as a court of law, had no authority’ to require the complainant to bring in the deed or obligation which Jones must have executed to him on the sale of the premises; he did pot offer to deliver it up; and-had the demurrer either to his third plea or to, the bill for a discovery been overruled and judgment been rendered for him, he might, notwithstanding, have sued Jones on whatever covenant he may have made for title. The circuit court, then, it seems, committed no error in sustaining the demurrer, first, to the third plea, and, secondly, to the bill for a discovery.

2. The next inquiry is, did the circuit court commit *403any error in refusing to grant the appellant a new trial?

The trial was on the issues made on the twro first pleas, to wit, that the bond sued on was fraudulently obtained. In support of his pleas, the appellant produced no evidence, as it appears from the bill of exceptions, but what is called a memorandum of a contract between A. McCoy and B. Imboden, by which McCoy promises, in consideration of seventeen hundred dollars, to be at a time then future, to convey to Imboden a certain tract of land lying in the township of Bellevue, in ington county. This writing was excluded by the c*r" cuit court. No evidence appears to have been to show its relevancy to the issue made on either of the pleas of the defendant in that court, appellant here.

The circuit court, as it seems to me, committed no ■error in excluding this instrument of writing from the jury; and consequently it committed no error in overruling the motion for a new trial, as this deed was all the evidence offered by the appellant.

The demurrer to the third plea and the bill for a discovery being, in my opinion, correctly sustained by the circuit court, and the motion of the appellant for a new ■trial correctly overruled, it is my opinion that its ment ought to be affirmed, and the other judges concurring, it is affirmed.