JOHN GALE, Jr., appellant, vs. ALONZO R. CUTLER, appellee, 1 Bur. 92

Opinion of the Court, by Judge Mili.es: Tho bill of complaint of John Galo, jr. filed in this case, sets forth, that on or about the tenth day of March, 1833, Alonzo R. Cutlor, this defendant, was in possession of tho south-east fractional quarter of

section three, township six, of range nineteen, in Milwaukee county, the same then being the property of the United States.

In the expectation and belief that tho same would shortly thereafter he sold by tho United States, the said defendant entered into an agreement, in writing, with complainant, to convoy 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 tho sum of six thousand dollars, or secure tho payment thereof by a mortgage of the premises, after thesame should have been conveyed to complainant by defendant.

That on the execution of said agreement, complainant paid to defendant three hundred and seventy-five dollars, and gave his bond to defendant for the amount of five thousand six hundred and twenty-five dollars, and immediately received from said defendant. possession of the premises, which he continued-to occupy and hold until tho day of the sale thereof by the government and ever since, and for himself and others, expended twenty thousand dollars 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 tho 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 sixteenth 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 tenth 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 noto and mortgage were placed in the hands of said Cush-man, to be delivered to said defendant whenever complainant should receive from said Cushman the said deed.

The said premises were sold by the government, on the seventeenth day of Oct. 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 one dollar and twenty-five cents' per acie therefor, and received from said Receiver a duplicate receipt for such payment.

On the said seventeenth day of October,' 1839, the defendant executed and delivered to complainant, for the consideration of six thousand and thirteen dollars 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 cancelled.

The defendant had advertized in a newspaper printed in Milwaukee county the said premises for sale on the twenty-eighth 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 one dollar and twenty-five cents per acre, be returned to the complainant, and that said last mentioned note and mortgage be can-celled.

At a term of the District Court for Milwaukee county, in June, 1841, the defendant demurred to the said bill, on which issue was joined, and after argument, the court dismissed the hill; from which decree the complainant appealed. Every'bill must contain in itself sufficient matter of fact, per se, 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 accor ing to 'the allegations of the parlies, ; nd if the proofs go to matters not within the allegations,1 the court cannot judicially act upon them as the ground for its decision; 9 Peters? 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 th 1 relief prayed for, or any relief; or set it forth in tho 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 generally, Tho averments in this bill do not disclose any things 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 thirty-first, one thousand eight hundred and thirty, entitled “

an act for the relief of the purchasers o f 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 chanqery 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 such case, the complainant shall ask relief, the court, in which the bill is pending, may proceed to final decree between the parties to the same. The want-of legal evidence of the contract, is not even averred in this bill. It is held that equity will not enforce a discovery that is to lead to a forfeiture; 1 J. C.

Rep. 368; ibid. 439; 2 Dessans, 341; 3 Har. & John. 185; 2 Dallas, 92; 12 Sergt. & Rawle, 46. Hence, possibly, the cause of this provision in the statute. Upon geneial principles of equity, if a party is proceeding in law or equity to collect his notes and mortgage through the instrumentality of the court, that then, on the proper representation and proof of the facts, the court will give him relief without his going further on his part; 5 John. C. R. 136; 3 Bibb, 207; 4 Sergt. & Rawle, 151. But it will abundantly appear in 5 John. C. R. 49, 136; 1 John. C.

R. 368, 439; that if a party is pvocoeding to foreclose a mortgage by advertisement, a court of chancery will not enjoin him, or interfere, until the grantor first does equity on his part. Wells and Aenold, for appellant. Field and Whit orí, for appellee. The judgment of the District Court is affirmed, with costs.