1821. Pittsburg.

FLEMING

υ.

ALTER.

The

be William's, and on the 17th April, 1806, did execute a con-
veyance to Lippincott, in consideration of 1183/. 10s.
bonds for the purchase money were given to Robert Fleming.
All had been paid, but the last bond for payment of 100%.,
and Robert Fleming declared he would pay the debts of
William. There can be no question but that Robert Fleming,
in some form of action, was liable to pay this debt, and al-
though the promise was not made to Alter, yet being for his
benefit, he might accede to it, and inforce payment. This ac-
tion for money had and received, is most liberal; it is in
effect a bill in equity. Now if a Court of Equity would de-
cree the payment of this money, no action is more proper than
this. This was money in the hands of defendant, received
by him in trust for the creditors of his son William, in fact
money received for their use. The father held the legal
title in trust for his son, he agrees to convey to Lippin-
cott, does convey, receives the money and promises to pay
the debts of his son ; in good conscience he would be bound
to pay independent of his express promise. In this form of
action, plaintiff can recover no more than has come into the
hands of defendant. It is subject to every equitable defence,
ex equo and bono. The money received for the land was
money received by defendant below, in trust to pay the plain-
tiff, and it is evident that this action was well adapted to the na-
ture of the plaintiff's claim; none could be more so. The Court
will not suffer a party to be taken by surprise by the generality
of the declaration. Here there could be no surprise; the de-
fendant if not informed of the nature of the claim, could have
called on the plaintiff for a specification.

Judgment affirmed.

MARLIN against WILLINK and others.

1821.

Pittsburg.

IN ERROR.

ERROR to the Court of Common Pleas of Crawford county, in an ejectment brought by Wilhelm Willink and others against Ralph Marlin.

September.

After arsale of land,

ticles for the

on which the vendor receives part of the purchase

due is to be

instalments, if the times of

the payment have long expired re- without pay

ment by the

On the trial in the Court below, the plaintiffs gave in evi- money in hand dence articles of agreement made between them, and the de- and the resifendant, on the 26th September, 1808, for the sale of the land paid in several to the defendant. The purchase money was 656 dollars, 30 cents, of which 308 dollars, 62 cents were paid in hand by defendant at the time, for which the plaintiffs gave their ceipt: the residue was by the agreement to be paid in five equal vendee, before annual instalments commencing the 1st April, 1809, with or after the suit brought, the interest, but no part thereof had been paid, or was offered to vendor may be paid before or after this suit was brought. The defen- recover in ejectment. dant requested the Court to charge the jury that the plaintiffs were not entitled to recover in ejectment, but that an action of covenant was their proper remedy. The Court charged, that the plaintiffs were entitled to recover. The defendant excepted to this charge.

DUNCAN J. Delivered the opinion of the Court,

This is the plainest of all cases. It is a case of ejectment, between vendor and vendee, the vendee covenanting to pay the purchase money at certain designated periods, all of which had long expired before the commencement of the action. The hand money had been paid on the execution of the articles. The residue was to be paid by five annual instalments, none of which had been paid, or were offered to be paid, or the money brought into Court on the trial of the cause. The legal title was in the vendors. The plaintiffs below, defendants in error, in a Court of law, unquestionably could recover, and the remedy of the plaintiff in error would be by bill in equity. But equity would not grant relief, nor enjoin the vendors from proceeding on their judgment, but on payment of all VOL. VII-Q q

1821.

v.

WILLINK

the purchase money due. There being no Court of Chancery Pittsburg. here, our Courts grant the same relief that Chancery would. MARLIN The ejectment is in the nature of bill for specific execution, but as the Courts of law cannot compel the execution of a conand others. veyance, the vendee may retain the possession, provided he has complied with his contract, or offer to comply with it by a tender of the purchase money due on the trial of the cause. But if he declines to do this, the vendor can recover the possession. He is not confined to one remedy, he may bring ejectment, or covenant or debt for the sum due on the articles. By the stipulation in the articles, the vendors do not covenant to convey on any particular day, but on the payment of the money. The payment of the money is a condition precedent, until it is paid or tendered, the vendee cannot call for conveyance of the title. He could support no bill for specific execution, chancery would grant no injunction. The equitable relief to which the defendant is entitled, is not however extinguished by non payment of the instalments as they become due, the time is modal and not the essence of the contract. Chancery would relieve against even the lapse of time, when the delay was not unreasonable, and they would where a considerable part of the purchase money had been paid, possession taken, improvements made, be less rigid in the consideration of the time, than where no money had been paid, improvements made, possession taken. The course of proceeding by ejectment, by vendor who has not parted with the legal title is not unusual. In some instances where there is no Court of Chancery, it might be his only remedy. The vendee might reside out of the State, out of the United States, leaving a tenant in possession; no judgment unless by the circuitous and tedious course of foreign attachment could be obtained, and in case of his death, even that remedy would not exist, as attachment would not lie against executors or administrators. What is the legal right of the defendant in error? the land, because they hold the legal title. What is the equitable right of plaintiff in error? A conveyance of the legal title according to his contract. That prescribes payment of the whole purchase money as a condition, and before he has done this, as he has had no legal title, so the time of payment having arrived, and having made default, he has no claim

either in law or equity to hold the possession of that for which

he refuses payment.

1821.

Pittsburg.

V.

The remedies of vendor and vendee, are mutual; for eject- MARLIN ment will lie against vendor by vendee on articles of agree- WILLINK ment, after tender of the purchase money. 4 Binn. 177, and others. 2 Yeates. 344. So vendor may maintain ejectment against vendee if purchase money be not paid. I Yeates. 12. How far plaintiff in error, may still have redress on tender of the purchase money, the Court are not called on to decide. They only decide that the plaintiffs below were entitled to the possession, defendant not having paid or offered to pay the purchase money.

The Court were requested to instruct the jury, that on the equity, disclosed by the plaintiff in error, viz. the articles for the conveyance of the land, and receipt for payment of part of the purchase money, the defendants in error were not entitled to recover in ejectment, but that covenant was the only remedy. This the Court very properly refused, but instructed the jury, that ejectment would lie in such case. There was no error in this. The judgment is therefore affirmed.

Judgment affirmed.

+ ALEXANDER against STOKELY.

IN ERROR.

September.

ERROR to the Court of Common Pleas of West- Ajudgment moreland county.

in a homine replegiando by the mother, in which she

be free, is

Stoke- is decided to plain- conclusive evidence against

This was a homine replegiando, brought by Susannah ly against John B. Alexander, to try the right of the tiff below, defendant in error, to the services of a negro girl de defendant

in such suit, who subse

quently brings a homine replegiando against a third person, in which she claims the daughter of such former plaintiff as a servant till twenty-eight, such daughter being born after the judgment, and her freedom or obligation of service depending on the freedom or slavery of her mother.

V.

STOKELY.

1821. named Nance. Nance was the daughter of Milley, a coloured Pittsburg. woman. If the mother were the duly registered slave of ALEXANDER Mrs. Stokely, then Nance being registered, was her servant till twenty-eight, by the laws of the State; but if she were not, then she was free. The defendant on the trial, offered in evidence, the record of a judgment of the Court of Common Pleas of Westmoreland county, in an action of homine replegiando, brought against Susannah Stokely, by Milley, the mother of Nance, in which Mrs. Stokely pleaded that she held and kept Milley as a slave duly registered. On this plea issue was joined. There was a special case stated for the opinion of the Court, in which the ground of the plaintiff's right to hold Milley as a slave was set out, and her claim was founded on the registry stated in the record, and on that alone, and on this case the Court gave judgment for the plaintiff Milley, which judgment remained unreversed and in full force. This record was rejected by the Court below, and a bill of exceptions taken. The Court below gave judgment for the plaintiff, on a demurrer to the evidence taken by the defendant below.

Forward, for the plaintiff in error, cited 13 Johns. 141. Phill. Ev. 234. 2 Wash. Rep. 64. 2 Hen. & Munf. 193. Co. Litt. 352. 7 Cranch. 271. Act of Assembly, 13th April,

1782.

Foster, contra, cited 3 Yeates. 259. 3 Serg & Rawle, 396. 3 Binn. 161. 1 Sm. Laws, 497.

The opinion of the Court was delivered by

DUNCAN J.-Nance was born after her mother became a free woman, on account of the defect in the registry, as was decided in the action brought by her mother against Susannah Stokely; and the question is, whether Susannah Stokely is estopped by this judgment, from now averring contrary to the title thus found that Milley was her slave. I do not propose the question whether it is evidence to go to the jury, on the issue on trial, but on the ground of its conclusiveness. A recovery in any suit upon issue joined, on matter of title, is conclusive on the subject matter of title. An allegation on record, upon which issue has been once taken