Peter Charles & al. vs. John W. Dana, 14 Me. 383

The action was continued for advisement, and the opinion of the Court was afterwards delivered by Weston C. J. The money advanced by the plaintiffs, which was appropriated in part payment of the timber conveyed to the defendant, was procured by Stone, and received by the defendant, on account of his part of the purchase. Stone had entered into certain stipulations with the plaintiffs, to secure the performance of which, the defendant united with Stone in a bond to them. This excludes any assumpsit, which might have been implied by law, upon the receipt of the money.

The terms, upon which it was advanced, and the benefits to be enjoyed thereupon by the plaintiffs, were expressly and distinctly provided for in tire condition of the bond. Aside from any claim they might have in equity, to enforce specific performance, and having regard only to remedies at law, the bond with its condition was the measure and limit of the defendant’s liability. If he fulfilled the condition, the penalty was saved. If he failed to do so, he was liable to have judgment rendered against him for the penalty, and to be in execution for a sum equal in amount to the damages sustained by the plaintiffs.

It is insisted, that the defendant and Stone violated the condition of the bond, in certain particulars pointed out, and attempted to be sustained by authorities cited. What then ? The contingency is provided for in the condition. In that case, the obligation of the penal part of the bond is to remain in foil force. The appropriate remedy of the plaintiffs is upon the bond; and we are not aware that at law they have any other. It is contended, that the defendant held the land, or part of it, in trust for the plaintiffs; and that having sold it, a part of the consideration was received for their use.

We are very clear, that no trust resulted from the payment of part of the purchase money. A - trust of this description arises from the original transaction, and attaches at once upon the conveyance of the land. Buck v. Pike, 2 Fairf. 8, and cases there cited. When the plaintiffs advanced the money, they had not decided, that they would be interested in the purchase. Their election, to this effect, was made at a subsequent period. And when the defendant was apprized of it, their right and his duty rested in contract.

It presented a case of very common occurrence, where one man has given a bond, conditioned, upon certain terms, to convey land to another. Equity may compel specific performance, even although it may affect a subsequent purchaser, who- buys with notice of the prior contract. But at law, the remedy is on the bond. It is a personal obligation, wherein the obligor binds himself to pay a certain sum of money, if he fails to fulfil the condition. The remedy is adequate ; and it is matter of positive contract. There is no occasion to resort to any implication of law, to do justice between the parties.

The obligor is to fulfil, or to make full indemnity. This is all he binds himself to do, and all the law awards. Where an express promise remains in full force, one is never implied by law. Still less can it be implied in favor of a party, who has the security of an instrument under seal. If the obligor in a bond conditioned to convey land, refuses to fulfil the condition, and sells to another, assumpsit by the obligee, for the money received, cannot be sustained, without confounding legal remedies, and unsettling the principles of the common law. Nonsuit confirmed.