Gale, Jr. vs. Cutler, 1 Pin. 253

Miller, J. The bill of complaint of John Gale, Jr., filed in this case, sets forth, that on or about the 10th day of March, 1838, Alonzo It. Cutler, the defendant, was in possession of the south-east fractional quarter of sec. 3, T. 6, of R. 19, in Milwaukee county, the same then being the property of the United States.

In the expectation and belief that the same would shortly thereafter be sold by the United States, the said defendant entered into an agreement, in writing, with complainant, to convey to him by warrantee deed the said premises, when the same should be purchased of the United States; upon the condition that complainant should pay to him the sum of $6,000, or secure the payment thereof by a mortgage of the premises, after the same should have been conveyed to complainant by defendant.

That on the execution of said agreement, complainant paid to defendant $375, and gave his bond to defendant for the amount of $5,625, and immediately received from said defendant possession of the premises, which he continued to occupy and hold until the day of the sale thereof by the government and ever since, and for himself and others expended $20,000 in improving said premises.

At the time of the sale of the said premises by the government, complainant was ready, willing and desirous to purchase the land in his own name, but said defendant absolutely refused to allow him to do so, and insisted on buying it himself, and threatened to bid against complainant at the sale to the full value of the property. On the 16th day of October, 1839, being the day previous to the sale of said premises by the government at the Milwaukee land office, said defendant executed to complainant a warrantee deed for'the same, which was lodged in the hands of Peter N.

Cushman, to be delivered to complainant, after defendant should have obtained a title to said premises, according to the agreement of the 10th of March, 1838, and that at the same time, complainant executed to defendant his promissory note and mortgage of said premises, to secure the payment of the balance of said purchase-money according to the condition of the bond referred to, and agreeably to, and in pursuance of the said agreement; which said note and mortgage were placed in the hands of said Cushman, to be delivered to the said defendant whenever complainant should receive from said Cushman the said deed.

The said premises were sold by the government on the 17th day of October, 1839, by public auction at the Milwaukee land office, and were purchased by defendant, who paid to the receiver at said office, therefor, the minimum price of $1.25 per acre therefor, and received from said receiver a duplicate receipt for such payment.

On the said 17th day of October, 1839, the defendant executed and delivered to complainant, for the consideration of $6,013 therein expressed, a warrantee deed for said premises, and thereupon the complainant executed and delivered to defendant his promissory note for said consideration, payable in one year thereafter with interest, and to secure the payment thereof, executed and delivered to defendant a mortgage of said premises, and the papers placed in the hands of Cushman were canceled.

The defendant had advertised in a newspaper printed in Milwaukee county, the said premises for sale on the 28th day of January, 1841, by public auction, by virtue of the power of sale contained in said last mentioned mortgage, the said sum of money secured thereby not having been paid. The bill prayed an injunction to restrain said sale, and also prayed for a decree, that the overplus paid by complainant over and above the price of the land at the rate of $1.25 per acre, be returned to the complainant, and that said last mentioned note and mortgage be canceled.

The defendant demurred to the bill, and, after argument, the court dismissed the bill, from which decree the complainant appealed. Every bill must contain in itself sufficient matter of fact to maintain the case of the complainant, so that the same may be put in issue by the answer, and established by proofs. The proofs must be according to the allegations of the parties, and if the proofs go to matters not within the allegations, the court cannot judicially act upon them as the ground for its decision. 9 Pet. 483. Whether a bill in equity contains any grounds for relief, or any equity, is a question of merits.

The inquiry is, has the complainant averred any matter which, if true, entitles him to the relief prayed for, or any relief; or set it forth in the manner required by the rules of equity ? If the bill contains no equity or sets it out defectively, it is a good cause for demurrer. The averments in this bill do not disclose any thing of themselves to entitle the complainant to the interposition of a court of chancery. But it is contended that this is a proper case, as set forth, for the action of the court, under the fifth

section of

an act of Congress, approved March 31, 1830, entitled, “

An act 'for the relief of the purchasers of the public lands and for the suppression of fraudulent practices at the public sales of the lands of the United States.” Whether this is- a contract or not, in violation of this statute, cannot be decided on this bill, for the complainant does not so charge it, nor does he even refer to it. He leaves the court to infer from his bill that it is so, which cannot be done, for a court of chancery does not act upon inferences or uncertainties, but upon allegations and facts.

By that statute, the contracts therein referred to are void, and the party aggrieved may sue in any court having jurisdiction ; and if he has no legal evidence of the contract, he may, by bill in equity, compel a discovery thereof; and if in suck case, the complainant stall ask relief, the court in wMck the bill is pending may proceed to final decree between tbe parties to tbe same. Tbe want of legal evidence of tbe contract is not averred in tbis bill. It is beld that equity will not enforce a discovery that is to lead to a forfeiture. 1 Johns.

Ch. 368; id. 439; 2 Dessaus. 341; 3 Har. & Johns. 185; 2 Dallas, 92; 12 Serg. & Rawle, 46. Hence, possibly, tbe cause of tbis provision in tbe statute. Upon general principles of equity, if a party is proceeding at law or in equity to collect bis notes and mortgage through tbe instrumentality of tbe court, then, on tbe proper representation and proof of tbe facts, tbe court will give him relief without bis going further on bis part. 5 Johns. Ch. 136; 3 Bibb, 207; 4 Serg. & Rawle, 151. But it will abundantly appear in 5 Johns.

Ch. 49, 136; 1 id. 368, 439; that if a party is proceeding to foreclose a mortgage by advertisement, a court of chancery will not enjoin him, or interfere, until tbe mortgagor first does equity on bis part. Tbe decree of tbe district court is affirmed, with costs.