After the decision above made, the complainant, Purcell, asked
leave of this Court to file a petition for a bill of review in the
court below. He had already asked in that court, leave to file such
a petition, but the leave was not granted.
The petition asked the leave on two grounds.
The first ground consisted in the material evidence which it
Page 71 U. S. 520
was said could be given by Purcell himself, he being rendered
competent to testify in his own behalf since the final decree in
March, 1864, by the Act of Congress of 2 July, 1864, which, for the
first time, enabled parties to testify in their own cases. And it
being alleged that the new evidence which he would be able to give
would establish:
1st. The clear and definite terms of the contract of
exchange.
2d. Part performance of the verbal contract, by each party
taking possession of the exchanged property in execution of the
contract, and by improvements made.
3d. The tender of a deed of conveyance from the petitioner to
Coleman, and his refusal to accept it.
All which facts it was alleged were in the exclusive knowledge
of the petitioner.
Besides this new evidence, the petition set forth newly
discovered evidence by one Calvert, and others, tending to show
distinct and unequivocal acts of possession, by Coleman, of the
farm in Virginia, and his improvements thereon under, and in
pursuance of the contract of exchange.
MR. JUSTICE GRIER delivered the opinion of the Court.
We have just decided this case and affirmed the judgment below
because by the complainant's own statement in his bill he has shown
no sufficient grounds for a court of equity to grant him the relief
sought. We will not repeat the points there decided. The case was
too plain to leave any possible doubt respecting the correctness of
our decision. Moreover, the record showed an application made in
the court below, before the appeal to this Court, for a bill of
review, which was decided by this Court to have been properly
refused. But it seems that the appellant is not satisfied with the
judgment of the Court, and
Page 71 U. S. 521
now makes an application to the court for leave to file another
bill of review in the court below.
We have no doubt that the complainant honestly believes that he
has been greatly wronged by the defendant below, who has taken the
liberty of breaking his promise with regard to a parol contract for
an exchange of property with the complainant, but we had supposed
that in the opinion just delivered, we had shown clearly to the
satisfaction of any person who did not suffer under some obliquity
of mental vision, that by his own statement of his case, the
complainant had mistaken his remedy, and that although he may have
suffered a wrong by the defendant's want of good faith, he had not
presented a case which required a court of equity to disregard the
statute of frauds, because it had been used for the purpose of
committing a fraud. As if a party to a contract of exchange had
received a deed and kept the land; refusing to give a conveyance
for the land given in exchange.
But in this case there was nothing shown but a breach of promise
and scrambling possession, followed by litigation. The present
application shows more perseverance and faith in the applicant than
discretion or judgment, and presents not a single feature of a case
proper for a bill of review.
By Lord Chancellor Bacon's rules, it was declared:
"No bill of review shall be admitted except it contain either
error in law appearing in the body of the decree without further
examination of matters in fact, or some new matter which hath
arisen in time after the decree; and not on any new proof which
might have been used when the decree was made. Nevertheless, upon
new proof that is come to light after the decree was made, which
could not possibly have been used at the time when the decree
passed, a bill of review may be granted by the special license of
the court and not otherwise."
We will not put ourselves in the position of seriously noticing
the reasons offered for a review of this case. Suffice it to say
that the petitioner has not presented a single feature of a case
within the rules. He offers no new evidence, but what he might as
well have produced before, and which, if it had been produced,
would not have justified a decree in his favor.
Motion denied.
