IN EQUITY.

#### Littlejohn v. Patillo.

From Granville.

An act which a party is bound to perform only by honour and moral duty, can be enforced only by considerations addressed to his feelings, and would not be tbe subject of a legal action.

A bill to enforce performance of such an act, will therefore be dismissed for want of equity, for equity must here follow the law, which designs to gire effect to contracts founded on the mutual exigencies of society, and not to undertakings which are merely gratuitous.

The bill stated that Complainant had become the purchaser for the consideration money of fifteen thousand dollars, of the tract of land in the county of Granville, on which the court-house of that county was erected ; that shortly after his purchase, certain individuals excited discontent among the citizens of the county, by representing that Complainant enjoyed a monopoly in being sole proprietor of the public houses near the courthouse, and a petition to the Legislature of the State was circulated by them for subscriptions, praying that the seat of justice might be removed, if Complainant would not, permit a town to be laid off on bis'land at the courthouse; that Complainant, to prevent tbe ruin which would ensue to him from the removal of the; seat of jus*303tice» assented to the petition to the Legislature, and ac-'..ordinsfy, in 1811, an act was passed appointing commissioners to contract with Complainant for fifty acres of land to erect a town upon ; that to the application of these commissioners, Complainant replied, that his situation forbade his fixing on a specific sum, an the price of the land, but that he left the matter to their consideration and sense of justice, and expressed ids intention of conveying to them the land for any sum which they might assign as its value 5 that the commissioners declared their wish that Complainant should have the full benefit of all the said land would bring, and that by a private agreement among the commissioners, unknown, to Complainant, he was to receive such sum, above that for which l¡e sold it, as the land would yield upon the sale of it in lots, by the commissioners ; that the sum of §2636 was proposed by the commissioners, and accepted by this Complainant, and a conveyance, executed accordingly 5 that this Complainant wats so situated that he was compelled to accede to any terms which might be offered by the commissioners, and therefore made no stipulations, but relied on the justice of the commissioners to adopt such measures as would secure to this Complainant the value of the, property. The cainmissionerf, sold the land in lots on credit, for the sum of $4360 84, and bonds were given by the purchasers to John F. Pa-tillo, county trustee of the county of Granville, that Pa-lillo had assigned to Complainant bonds to the amount of g?,636, and refused to assign the residue. The bill prayed that Patillb might be, directed to collect the money due, and pay it over to Complainant, or that it might be decreed that the remaining bonds might be assigned by Patilio to Complainant.

Muffin moved to dismiss the bill for want of equity-

1st. Because it appeared, on the face of the bill, that Gomplr inant had made a written contract in the sale of *304hjs laud, and did not allege any fraud or mistake in'that contract, as a ground for the interference of Equity.

2(1 ly. If it were even admitted that the commissioners acted as the agents of the Complainant in the bargain, it was an unlawful act, inconsistent with the exercise of their duties as agents of, the public.

3dly. That there was here no good cause for complaint on the ground of compulsion, for Complainant was bound to know, that by law, the interests of individuals must yield to the publiok good, and he purchased the land subject to the contingency of a removal of the courthouse, he was not obliged to sell it to the commissioners, but he did so by a conveyance voluntarily given.

Seawell and Gaston opposed the motion, on the ground that the written contract was not the whole contract, and that when the situation of a man .does not permit him to act as a free agent, conscience requires that Equity should relieve him.

Ruffin, in reply,

iusisted on the circumstance that the case presented a certain contract, made in •writing by competent parties, and urged the inadmissibility of parol evidence to vary that contract.

Hall, Judge.

Consider this case independent of the contract, and the justice of it would be, that the Complainant should be entitled to the value of the land, that is, the amount it sold for. But viewing it under the contract made with the commissioners, and the law arising thereon, I think he is entitled to nothing. The Complainant is not to be viewed in the light of an oppressed man : he liad it in his power either to keep the land or sell it: lie was not bound to take for it what the commissioners offered him, unless he had determined-to have a town located there at any price they might value the land at, however low — if this was the fact, he had in *305view a greater benefit to himself than the difference in price between what he got for the lend, and what it sold for. it is clear, if the land had sold for less than was given for it, the comity could ha ve had no deduction made from the stun contracted to be given. Jlny esc parte consi derations or conclusions, which the oomniissionors had or (.right have come- to, would have been urged in vain in support of such a claim, and righily too. The, contract v.as the rule to go by ; when the commissioners executed that, their agency was at an end.

If tin; price paid for the land, by Complainant, on which the town was located, was a great one, or, account of the court-house being situated thereon, this Court cannot fake It. at circumstance itsio consider ti ion ; because ií musí Scive been, or ¡night have been known to Complainant when he purchased, that the county had a right to remove it.

1 do not doubt about the propriety of dismissing the bill.

Taylor, Chief-Justice.

The, hill does not make out a case which eniit es the, Complainant to relief. The contract of sale was completed between the parties, and the price, an indispensable ingredient in such contract, •fixed and agreed upon. The additional sum now sought to be recovered, entered in no degree, into the views asid calculations of the parties ; there was no mutual agreement, and understanding between them concerning it, and it could form no part of the inducement with the Complainant to sell the land, for from him it was concealed ii,l an after period ; consequently, no valid obligation to pay the, money was incurred. - If the Comíais» sioners, upon an after reflection, thought it an act of justice to allow the Complainant the sum which the laud Blight sed for above the stipulated price, the performance of an agreement to that effect must be left to the same, sense of justice by which it was prompted. But it may be, doubted, whether they could bind their principáis by *306an agreement relative to a purchase which was then completed, and as to which, their authority was Junctus offi io, even if a valid contract had been made. If the agrément to pay this money could, by any construction, form part of the price of the land, then it cannot be proved by parol; otherwise, part of the contract would rest in deed, the other depend on the memory of witnesses | but the deed is the best evidence of what the contract was. It may be confidently inferred from this, that, however strong tiie sentiment of justice might be, under which the commissioners made, the agreement, or however deliberate their purpose of fulfilment, they did not mean to subject themselves to l.egal responsibility. The Law designs to give effect to contracts founded on the mutual exigencies of society, and not to undertakings merely gratuitous, nor does Equity differ in this respect. If damages are sought in the one Court, the Plaintiff must be able to state some valid legal contract, which the other party wrongfully refuses to perform ; if a specific performance is sought here, the party must state some contract, legal or equitable, concluded between the parties, which the other refuses to execute. But a voluntary conveyance cannot be enforced in this Court, any more than damages can be given at Law for the breach-of a voluntary promise — (1 Ves. 133, 280 — 3 Atk. 399—18 Ves. 149.) It would be impossible to frame a declaration at Law, upon the case made, in this bill; the agreement was made amongst the commissioners themselves, and not with the Complainant, or any one in his behalf; and the consideration, if any existed, was altogether passed and executed — (Dyer 272—2 Strange 933.) It may therefore be said, as it has been in another case, “ This agreement, resting on private, contract and ho-nour, may, perhaps, be fit to be executed by the parties, but can only be enforced by considerations which apply to their feelings, and is not the subject of an action. The law encourages no man to be unfaithful to his promise, but legal obligations are, from their nature, more cir-*307cuinscribed than moral duties.” — (1 H. Blackstone 327.) Lot the bill be dismissed, without costs.

Henderson, Judge,

having been of counsel in this case, gave no opinion.