If the obligee of a bond obtain titles in his own name for part
of the lands, the assignment of which to the obligor was the
consideration of the bond, and suffer the titles to the residue of
the lands to be lost by the nonpayment of taxes, a court of equity
will not lend its aid to carry into effect a judgment at law upon
the bond.
A court of equity will annul a contract which the defendant has
failed to perform and cannot perform on his part.
The facts of the case, as they appear upon the record, are as
follow:
Skillern put into the hands of Richard May several land warrants
to locate in Kentucky under an agreement that May should have half
the land for locating the whole, who accordingly located the
quantity of 2,500 acres in the name of Skillern, but not to his
satisfaction, and the matter was not settled between them as the
time of R. May's death, when his interest in the lands so located
descended to his son, John May, the defendants' testator. Skillern
afterwards came to an agreement with John May on 6 March, 1785, by
which Skillern was to assign to J. May one military warrant for 200
acres of land and all the Treasury warrants located in the name of
Skillern, with the entries and locations made thereon, which
assignment was on the same day executed, but never lodged in the
land office or the office of the surveyor of the county where the
lands were situated. In consideration of this assignment and in
full of all demands by Skillern against the representatives of R.
May's estate, John May gave to Skillern a bond, dated March 6,
1785, to convey to Skillern 1,000 acres of the land to which R. May
was entitled at his death, and which remained unsurveyed, to be
chosen by Skillern before 15 June, 1786.
Page 8 U. S. 138
It was also agreed by another writing of the same date that if
Skillern would give up the bond for 1,000 acres, John May should
convey to him 1,100 acres of other land described in the writing,
and Skillern was to make his election of the one or the other
before 1 October, 1786. This last agreement was afterwards
cancelled, and a bond in lieu thereof given by J. May to Skillern
dated October 9, 1787, to convey to the latter on or before 1
December, 1788, "eleven hundred acres of first rate elkhorn land,
well watered, and lying within ten miles of Lexington."
Skillern, notwithstanding the assignment of his military and
Treasury warrants to J. May, afterwards obtained patents thereon
for 1,050 acres, of the value of $4,416.66.
There was no evidence that Skillern ever offered to convey those
lands to May or his representatives.
The bond of 6 March, 1785, and that of 9 October, 1787, were
both fraudulently placed by Skillern in the hands of his agent for
the purpose of enforcing payment of both. The agent, supposing both
bonds to be due, entered into an agreement with J. May's executors,
the present defendants, for the discharge of the bond 6 March,
1785, and the same was given up by Skillern's agent to the
defendants, with a receipt thereon. But the agent finding
afterwards that the bond of 6 March, 1785, was vacated by that of 9
October, 1787, refused to carry that agreement into effect, but
brought an action of covenant upon the condition of the last
mentioned bond, and recovered damages to the amount of
$8,433.33.
John May devised his lands to his executors for the payment of
his debts, and this bill was brought by Skillern in his lifetime to
subject the same to the payment of the judgment recovered at law.
Pending this suit in chancery, Skillern died, leaving infant heirs,
and the suit was revived in the name of his executors. Sixty acres,
part of the 1,050 acres, had been sold for the payment of the state
tax due from Skillern,
Page 8 U. S. 139
and the two tracts of 300 and 250 acres had been sold for the
direct tax due to the United States, but were redeemed by the
purchaser of the 60 acres.
After the filing of this bill and after the death of Skillern,
John May's executors filed a crossbill against Skillern's
executors, and it was agreed that both suits should be tried at the
same time.
The court below decreed a perpetual injunction as to $4,416.66,
part of the judgment at law, the same being the value of the 1,050
acres patented in the name of Skillern, and decreed payment of the
residue out of the real estate of John May, unless it should be
otherwise paid, by a day named in the decree.
Both parties sued out their writ of error.
It was contended in behalf of May's executors
1st. That inasmuch as both bonds,
viz., that for 1,000
acres and that for 1,100 acres, were given for one and the same
consideration, a discharge of either was in equity a discharge of
both, and that having discharged the first bond by a new
engagement, the executors of Skillern could not in equity claim
satisfaction of either.
2d. That Skillern having taken to his own use part of the land
which he had agreed to assign to May as a consideration of the
bonds, could not enforce them in equity.
3d. That as Skillern had suffered a part of the lands to be lost
by not paying the taxes, he had thereby made himself chargeable for
the lands, and had in fact received a full equivalent for the
consideration of the bonds, and therefore there ought to have been
a decree for a perpetual injunction as to the whole amount of
the
Page 8 U. S. 140
judgment at law, especially as the fact of fraud on the part of
Skillern is expressly found by the jury. The half of 2,500 acres
was all he was entitled to if his conduct had been fair. But as it
has been found otherwise by a jury, a court of chancery ought not
to have given its aid to enforce any part of the judgment at
law.
For Skillern's executors it was said that it was not in the
power of Skillern alone to put an end to the contract. That by
surveying and patenting the lands, he had saved them from
forfeiture for not surveying within the time limited by law. That
although the lands had been sold for taxes, yet the redemption
enured to the benefit of the right owner.
The jury found the value of the 1,050 acres of land, but not the
value of the title. The land may be worth $15 an acre, but the
title may be worth nothing.
The patents had issued by mistake in the name of Skillern, and
that mistake was owing to May's not having filed the assignment in
the proper office. Skillern's executors are ready and willing to
transfer those titles to the defendants.
This Court gave no other opinion in this case than is expressed
in the following decree.
"It is the opinion of the Court that G. Skillern, by acquiring
to himself the legal estate to 1,050 acres of land, the equitable
right to which he had transferred to John May on 6 March, 1785, and
having never conveyed or offered to convey the said lands to May or
to his legal representatives, and it appearing that at the time of
the decrees rendered in these causes, certain parts of the said
entries to which Skillern had thus acquired the legal title, and
which constituted a part of the consideration of the bond on which
the judgment at law was entered, had been lost in consequence of
the neglect of Skillern to pay the taxes due thereon, the
complainants below in the original suit were not entitled to the
aid of a court of equity to enforce
Page 8 U. S. 141
the execution of the obligation of 9 October, 1787, or to obtain
satisfaction of the judgment at law founded thereon."
"It is therefore decreed and ordered that the decree of the
district court rendered in the original cause be reversed and
annulled with costs, and this Court doth remand the same to the
said district court for further proceedings to be had therein in
order that an equal and just partition of the 2,500 acres of land
mentioned in the said assignment of 6 March, 1785, be made between
the legal representatives of the said George Skillern and the said
John May."
"And as to so much of the decree in the cross-suit as enjoins
$4,416.66, part of the judgment at law, this Court doth affirm the
same, and as to the residue of the said decree it is decreed and
ordered that the same be reversed and annulled with costs, and this
Court, proceeding to give such decree in the said cross-suit as the
said district court ought to have given, it is further decreed and
ordered that the judgment at common law mentioned in the said bill
be perpetually enjoined."