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is itself a meritorious act, authorized by the decree and creating an equity; and it is a matter of interest to all parties, and to the public, that such sales, if fairly made, should be sustained, and they are sustained, though such decree be afterwards reversed. They are sustained, too, though the purchaser be the successful party to the suit, because he does not get the land by the direct operation of the decree itself, but by proceedings which it authorizes; and for this reason he is not compelled, upon a reversal, to restore the land, but to restore the price or money which it brought, and which alone he gets by the direct operation of the decree. On these, and perhaps other grounds, may be placed the distinction which has been uniformly held between the effect of reversing decrees for sale, or under which sales have properly taken place, and decrees for conveyance of title where that is the object of the suit, and the very thing decreed.

That tribunals and remedies have been provided for the revision and reversal of decrees, shows that it is not a matter of public interest to sustain erroneous decrees, but the contrary. And the law effectuates, as far as can be justly done, the just principle that what a man has lost by an erroneous decree, sball be restored to him on its reversal. But other principles and an enlarged view of all interest involved have limited the operation of this principle to the direct loss of one and the direct gain of the other, by the direct operation of the decree. If this loss has been in money, the money is restored; if the land, or the title to it, the land or title is restored or regained. It is by reason of the permanency and identity of this latter subject, that third persons may become involved in the consequences of this right to restitution, in case of the reversal of decrees for title, in a manner which could scarcely occur with respect to decrees for money. But it must be known to all, that decrees are subject to reversal, and, therefore, that a title resting exclusively on a decree, and identified with it, may be divested by its reversal, and, therefore, is not indefeasible until there bas been an affirmance, or until the remedy for reversal is barred. The legislature, by limiting the time within which the remedy for reversal must be sought, has limited the period of this uncertainty in titles; and however inconvenient such an uncertainty may be, a writ of error prosecuted at any time within the prescribed period, is entitled to its full effect. If a title conveyed by a decree is purchased in actual ignorance that there is a remedy for reversal open to the unsuccessful party, and the decree is afterwards reversed, and the principle decided in Debell v. Foxworthy, and other cases, by which the reversal of the decree would defeat the immediate purchase, would doubtless in many cases produce great hardship. But a writ of error upon a decree for title would be of little avail, if the title could be placed out of the reach of the party or the court by a private bale immediately after the decree. And it can only have its full effect by regarding the intermediate purchaser, as being according to the principle of the case of Debell v. Foxworthy, either a privy to the decree, or a pendente lite purchaser.

But in the case now before us there is less difficulty in holding Mrs. Farrow subject to the effect of the reversal and mandate of this court, because she is herself a volunteer and not a purchaser for value; and because her father, who received the conveyance from Farrow, is not only not proved otherwise than by the recitals of the deed and his own statements to have been a creditor of Farrow, but appears in fact to have received the conveyance from him before the final decree was rendered, while the suit was actually pending in court, and before the receipt of the balance of the purchase money by the agent of Clark's heirs, which is relied on as an estoppel. And even Mrs. Farrow received the conveyance to her before the commissioner's deed was made, and bofore the entire balance of the purchase was paid. With regard to the receipt of the purchase money by the agent, under the provisions of the decree, we do not consider it as in any manner affecting the right of his principals to prosecute a writ of error with full effect, or as estopping them from claiming the full benefit of the result. And as Mrs. Farrow has shown no equity against them which was not involved in the original suit, we are of opinion that her interest is bound by the decree and mandate of this court formerly rendered, and that the same should have been and must now be carried into full effect.

Wherefore, the decree is reversed, and the cause remanded, with directions to disiniss Mrs. Farrow's cross-bill with costs, and to decree a rescission of the contract between Farrow and Clark's heirs set up in the original bill; and the circuit court is also directed to ascertain the value of improvements, etc., as directed in the former opinion and mandate, and determine the claims incident to the rescission on equitable principles.



performance on the part of the party prevented, and he may maintain

his action immediately. AssumPSIT FOR PARTLY PERFORMED WRITTEN CONTRACT will not lie, though

further performance is prevented by the other party to the contract. PREVENTING PERFORMANCE OF CONTRACT is not necessarily a rescission of it.

ERROR to the Woodward circuit. The opinion states the facts.
Porter and Smith, for the plaintiff.
U. Turner, for the defendant.

By Court, SIMPSON, J. The parties entered into a written contract, which they both executed, for the performance by the plaintiff of certain specified work for the defendant, in the manner therein described; for which the latter bound himself to pay to the former the sum of two hundred and forty dollars, one year and six months after the completion of the work, and to board him and his wife, and the bands in his employ, during the time he was performing the contract.

The plaintiff sued the defendant in an action of assumpsit, for work and labor done, and it was proved upon the trial that the work was performed under the written agreement between the parties, and according to its terms, so far as it had progressed, and that the plaintiff was proceeding to perform it agreeably to the stipulations of the written contract, when he was prevented by the defendant, who refused to permit him to complete it, he having at that time finished all the work, except a small part of it, not exceeding in value a sum from twenty to forty dollars. Thereupon he immediately commenced this action.

Upon that testimony the court below instructed the jury to find for the defendant, and a verdict and judgment having been rendered accordingly, the plaintiff has brought the case to this court for revision.

When a written contract has been performed in part, and its full performance bas been prevented by the defendant, the plaintiff may maintain an action of covenant, upon the written Agreement, a complete performance on his part being excused by the act of the other party: Jewell v. Blandford, 7 Dana, 473.

It is argued, however, that notwithstanding the action of covenant may be maintained, the action of assumpsit will also lie, the plaintiff having either remedy, at his election. The

argument is based upon the assumption that the act of the defendant in preventing the plaintiff from performing the contract, is such a violation and abandonment of it by the former, that he can not rely upon it for any purpose, and gives to the latter the right at his option, to regard it as still obligatory, or to treat it as rescinded, and bring an action of assumpsit for the value of the services reudered under it.

We do not deem it necessary to decide definitely at this time, whether the acts of a party to a written contract like the one under consideration, would in any state of case, authorize the other party to regard the contract as rescinded. But in a case like the present, where there has been a partial performance by both parties, and the contract has not been repudiated by the defendant, although he may have disregarded it, in preventing the plaintiff from finishing the work according to its terms and stipulations, and where the plaintiff's remedy is complete upon the written contract, the mere act of the defendant in preventing full performance by the plaintiff does not amount to or authorize the plaintiff to regard it as a rescission of the contract.

The remedy by action of assumpsit upon the implied contract is, according to well-settled principles, merged in the remedy allowed upon the covenant, and as the written agreement was still obligatory upon the parties, the plaintiff's only remedy was an action of covenant upon the writing.

Wherefore, the judgment is affirmed.

One Wuo is READY TO AND OFFERS TO PERFORM his part of the con. tract may maintain an action against the other contractor who refuses to permit the contract to be performed: Davis v. Crawford, 12 Am. Dec. 682. And so where a person gave an attorney his note to defend him in a criminal action, and committed suicide before the trial, and the attorney was thereby prevented from performing the principal part of the service, it was held that as the non-performance was the result of the obligor's own act, there was no ground for the plea of a want of consideration: Mitcherson v. Dozier, 22 Id. 116.

QUANTUM MERUIT IS GENERALLY PROPER REMEDY IN CASES OF PART PERFORMANCE of a contract if any remedy exists: IIelm v. Wilson, 28 Am. Deo. 336, and note; Eldridge v. Rowe, 43 Id. 41, and note 46, where other cases are collected; but it would seem that if the fault for non-performance be upon the other party, or arise from sickness, the remedy is upon the contract itself, and not in assumpsit: Green v. Linton, 31 Id. 707.



ceed to land at their own residence which is beyond the reach of the


DECEASED OWNER who died there, nor are they accessible to any process upon a judgment against the heir here. ERROR to the Garrard circuit. The opinion states the facts. Burton, for the plaintiff. Burdett, for the defendant.

By Court, MARSHALL, C. J. This case, which commenced by warrant from a justice of the peace, presents the question whether Bashford, a resident citizen of this state, can be made liable as heir to his father, on a simple contract debt of the father, by reason of the descent to him, from his father, of lands in the state of Ohio, where he died, and where his widow and heirs, except the defendant, reside upon the land, which remains still undivided. It does not appear that the defendant has derived any advantage from the land, or from the death of his father, except the mere title by descent, the heirs having agreed that the mother with her family should reside upon the land. The question, then, is, whether this title by descent to lands in another state is to be regarded here as such assets in the hands of the heir, or descended to him, as makes him liable here for the debts of the ancestor.

Upon principle, we think this question should be answered in the negative, upon the grounds: 1. That the assets in Ohio can not be reached here, and therefore do not seem to be the proper ground of a judgment, which according to its terms, which indicate its real foundation and object, should be levied on the assets descended; and, 2. Because we do not and can not know without evidence, of which the record furnishes none, that this land would, by the laws of Ohio, constitute assets for the payment of simple contracts of the ancestor.

According to the common law, a title or interest which could not be subjected to the judgment, by legal proceeding upon it, was not, though descended, assets which rendered the heir liable, as in the case of an equity of redemption. And even a vested remainder upon an unexpired freehold estate was not present assets, because it could not be subjected until it became an estate in possession. Our laws have subjected both of these

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