Marquat and Marquat agt. Marquat and wife, 7 How. Pr. 417

By the Court, Harris, Justice. The complaint, so far as it states a cause of action at all, states matters of exclusive equitable cognizance. The plaintiffs allege that the defendants had agreed to execute a mortgage to secure a loan of money, and having refused to do so, they bring their action to compel them to perform their agreement. There is some evidence to show that Peter Marquat did promise to execute such a mortgage, but there -was no valid agreement to that effect.

The plaintiffs have therefore failed to sustain their action according to the allegations in their complaint, and, of course, they are not entitled to the specific relief demanded. The question now is, whether they can, in this action, recover judgment against one of the defendants for the money loaned? The 375th

section of the Code authorizes the court in any case in which the defendant has answered, to grant any relief consistent with the case made by the complaint and embraced within the issue. In other words, the judgment must be secundum allegata et probata. It must be appropriate to the facts alleged and proved. Here the case made by the complaint is that the defendants had agreed to secure the plaintiffs for their loan by a lien upon certain premises, and had unjustly refused to keep the agreement. This is controverted by the defendants. No other material isssue has been made.

Whether or not the plaintiffs, when they brought their action, were entitled to a repayment of their loan is not stated. The recovery of the money due them is no part of the claim made in their complaint. It is not embraced in the issue. The defendants have successfully resisted the claim against them, as it is stated in the complaint. The only material, issue in the case is decided in their favor, and yet judgment is rendered against one of them for a cause of action, which if it had been set forth in connexion with that stated in the complaint, would have rendered the complaint demurrable.

The cause of action stated in the complaint is against both defendants, and that upon which the recovery has been had is against one only. Nor does it meet this difficulty to say that the cause of action upon which the plaintiffs have been allowed to recover, is involved in the case stated in the complaint. Suppose an action in the nature of replevin brought by the vendor of goods, on the ground that they have been fraudulently obtained, would it be pretended that if upon the allegation of fraud being controverted he should fail in sustaining his action, he could still recover for the price of the goods?

Or, suppose he should bring his action against the vendee, alleging false representations, and fraudulent devices in making the purchase, as in Field agt. Morse (7 How. Pr. R. 12), would he be entitled to a judgment for his debt, though he failed upon the issues he had tendered by his complaint? The effect in such case would be, what it has been in this, that the successful party would be charged with the costs of the litigation. The party who has prevailed upon the whole issue has judgment rendered against him.

Whatever else may be charged to the account of the reformed practice, it is not justly chargeable with such injustice. If the plaintiffs had brought their action against Peter Marquat alone, to recover their debt, it may be presumed that, if he justly owed them, he would not have defended the action. If he had defended it without success, he would have been justly chargeable with the costs of the litigation. The plaintiffs have, in fact, brought their action for a very different purpose.

That action has been successfully defended, and yet the plaintiffs have recovered not only the amount of their loan with interest, but the costs of their unsuccessful litigation. Thus, though defeated, they have triumphed. I admit that from the facts as they appear in the case, there is some reason to apprehend that the plaintiffs, after having assisted the defendants to secure the title to their property, are not likely to be well requited for their friendly aid. I would willingly, therefore, if it could be done upon any sound principles, relieve them from the payment of the costs of the action.

But wholly misconceiving their remedy, they have brought their action upon a claim which they could not sustain. They have entirely failed upon the issue whichy the themselves chose to make, and they must share the fate of other unsuccessful litigants. I think the judgment should be reversed and that the complaint should be dismissed with costs. Wright, J., concurred.