Roth against M'Clelland, 6 Watts 68

The opinion of the Court was delivered by Gibson, C. J. The decree of the circuit court was interlocutory and conditional. The respondents were required to pay, hy a given day, certain moneys into comt to the credit of the judgment on which the land in contest has since been sold; in default of which, the conveyance recited in the complainant’s bill was decreed to be fraudulent and void. The object of the condition was to reach the equity of the cause without, unless as a last resort, disturbing the conveyance betwixt the parties to it.

In default of performance the decree was to stand as an absolute one; but who was to judge of the fact? Certainly not a court of common law; nor indeed any other than the court which pronounced the decree, for none else had jurisdiction of it. Had the condition been performed to the letter, it would still have required its intervention to restrain proceedings on the judgment against the land in contest. What did the defendant in this ejectment offer to prove?

Not a tender of payment in the terms of the decree, but a tender to the complainant’s solicitor who claimed to receive it, not as a compliance with the decree and consequent exoneration of the particular land, but as a general payment in case of all the lands bound. The pretension of the solicitor was unjust; but why did not the respondent pay directly to the clerk without consulting the solicitor whose sanction was immaterial? His course was a clear one.

Payment into court would have given life to his conveyance without the concurrence of any one; and the court, being satisfied of the fact, would have enjoined from execution of the particular land. Further action by the court was indicated not only by the terms of the decree but by the requirements of the occasion.

But the defendant did not offer to prove even a tender of performance which could be made only by an offer to pay directly into court, such being the terms of the decree; and had there been even actual performance, it would still have rested with the court to make such further order as would have been requisite for the security of the title.

Opposed to it we have á conveyance pursuant to a sale on a judgment and execution entirely regular at law, against which there can be no legal defence; and who is to say whether the plaintiff ought to- have been enjoined?- A court of chancery is not only the best, but the exclusive, tribunal to determine whether a condition imposed by it has been performed; and we cannot say what it might or would do in a case like the present, nor pronounce its requirements satisfied by equivalents. In fine, it was a matter with which no other court had to do, or can now interfere.

We have no choice, therefore, but to consider the conveyance as definitively set- aside, and the title as sold on the execution of a court, into the legality of whose process we have not a right to inquire. The case is an extremely hard one, by reason of the encouragement given to the defendant’s' error by the unwarrantable pretension of the solicitor; but if relief be attainable at all, it can be had only from the court which pronounced the decree, and not from a court of law in a collateral proceeding. Judgment affirmed.