January Term. of the only matter which the court is required to 1879. decide, to-wit: whether or not the appellants are entitled to a specific performance of the contract of the 29th November, 1862. Stearns & als. V. & als. It is unnecessary to discuss or pass upon the question of estoppel, raised by the appellees in their answer Beckham to the bill of the appellants, as the case is disposed of on other grounds, and this opinion has already been extended further than I could have wished, in a discussion, deemed proper and necessary, of other important questions involved in the decision of the case. When I first read the record, I rather inclined to the opinion that the contract which is the subject of the suit should be rescinded upon equitable terms, but on further examination and mature reflection, I have come to the conclusion that rescission cannot properly be ordered. A party seeking as plaintiff to rescind a contract is required to make out a stronger case for the relief sought than he would be required to make if as defendant he were resisting specific performance of the same contract. Upon the same facts proved he might succeed as defendant in the latter case when he would fail as defendant in the former. A court of equity is always reluctant to rescind, unless parties can be put back in statu quo. If this cannot be done, it will give relief only where the clearest and strongest equity imperatively demands it. 1 Story's Eq. Jur. § 769; Grimes v. Sanders & others, 93 U. S. R. (3 Otto), 55; Graham v. Pancoast, 30 Penn. Rep. (6 Casey) 89. After the great lapse of time and the changes which have taken place since the date of the contract in this case, it would be very difficult, if not impossible, to put the parties in statu quo; but, in addition, the decree of this court made in the case of Beckham VOL. XXXI-53. 1879. Term. V. & als. & others v. Botts & others would seem to be an insuperable barrier to any decree for rescission in this case. The object of that suit was not only to cancel the Stearns deed of the 10th of December, 1862, but also to & als. rescind the contract of the 29th of November. The Beckham circuit court refused to do either. On appeal, this court reversed the decree of the circuit court, and entering such decree as the circuit court should have rendered, set aside and overruled the deed, but did not rescind the contract. On the contrary, liberty was granted the then appellees (who are the appellants here now) to file a bill for specific performance. This was substantially an adjudication, that although it was a case in which the purchasers of the property might perhaps show themselves entitled to performance, it was not a case in which the vendors were entitled to rescission. The adjudication of the question of rescission in that case is conclusive of the same question in this case between the same parties. Upon the whole matter I am of opinion that there is no error in the decree appealed from, and that it should be affirmed. ANDERSON, J., concurred in the opinion of Burks, J. STAPLES, J., concurred in the opinion as to the refusal of the specific performance of the contract. MONCURE, P., and CHRISTIAN, J., dissented. They thought the specific execution of the contract should be enforced. Upon the rehearing: STAPLES, J. A decree was entered at the March term of this court affirming the decree of the circuit court of Term. Stearns Culpeper. The effect of that decision was to place the 1879. appellees, the heirs of Mr. Beckham, in possession of the January "Auburn estate," and to leave the appellants, Stearns and the heirs of Mr. Botts, to their action at law to recover damages for a breach of contract. A petition has been since filed for a rehearing of so much of the decree Beckham as dismisses the appellants' bill without decreeing a return of the purchase-money. The sole question we now are to consider is whether the decree shall be corrected in that particular. I do not propose even to attempt to notice all the points made by counsel, or all the authorities cited. My effort will be in as brief a way as possible to give my own views of the law governing the case, and of the facts as shown by the record. In the first place, I think there is a wide distinction between an application to a court of equity to assess damages arising from a failure to convey, and an application for the repayment of the purchase-money, when the vendor is unable or unwilling to convey. In the first case, as is universally conceded, a court of law is generally the more appropriate tribunal, where the jury, being confronted with witnesses, may award the purchaser such damages as he may have sustained by the breach of the contract. The second case relates to matters of accounts, questions of rents and profits, improvements made, and payments of the purchase-money, which can be most satisfactorily settled by a commissioner under the supervision of a chancellor than any jury that can be impanelled. This distinction was recognized by Lord Eldon in Todd v. Gee, 17 Ves. R. 273, 277. He there said he should be inclined to support the whole force of previous authority against Denton and Stuart, not being aware that this court would give relief in the shape of damages, which is very different from giving compensation out of the purchase-money. His opinion was that a court of equity ought not, except under very peculiar & als. V. &als. 1879. V. circumstances, as there may be upon a bill for specific January performance, to direct an issue or reference to the master to ascertain damages-that is, purely at law. It has no Stearns resemblance to compensation. And in Anthony v. Left&als. witch, 3 Rand. 238, 265, Judge Green took the same view. Beckham He said, as to the measure of compensation, it ought to be precisely what Anthony, the purchaser, was out of pocket in consequence of the acts done by him upon the contract. No allowance can be made to him for any disappointment in the non-execution of the agreement. That would be to decree damages, and no damages can be decreed in equity. & als. A failure to advert to this distinction has given rise to much of the confusion and difficulty in the various cases on this subject. Because the equity courts have, as a general rule, refused to entertain bills for damages, it is taken for granted they will equally refuse application for compensation, except specially as incidental to some other relief. But whatever may have been the rule heretofore, there is no doubt that a court of equity, even where specific performance is refused, will now decree compensation to the purchaser in many cases. It will do so where there is no adequate remedy at law, where some peculiar equity intervenes; it will do so to prevent multiplicity of suits, and where it has obtained jurisdiction of the case on other grounds. Where the bill is framed with a double aspect and contains a prayer for alternative relief, if the court is unable to execute the contract, it will go on to decree the repayment of the purchase-money. I do not mean to affirm it will do so in every instance. There may be cases in which the conduct of the purchaser is such as to preclude him from all relief in the equity forum. What I mean to say is that upon a bill properly framed the court, as a general rule, will decree the purchaser his purchase-money instead of turning him around to an action at law to recover it. In January Term. Virginia this doctrine may be regarded as now firmly 1879. settled. I shall content myself with a simple reference to the decisions on the subject without attempting to discuss or comment upon them. Anthony v. Leftwich, 3 Stearns Rand. 238; Payne v. Graves, 5 Leigh, 561, and the authorities there cited; Bowles v. Woodson, 6 Gratt. 78; Mc- Beckham Comas v. Easley, 21 Gratt. 23-31; Nagle v. Newton, 22 Gratt. 814. The same view is taken by the supreme court of the United States in Watts v. Waddle, 6 Peters R. 389; Holt and wife v. Rogers, 8 Peters R. 420-434; King's heirs v. Thompson and wife, 9 Peters R. 204; and by Chancellor Kent in the several cases referred to in the Virginia decisions. There are numerous other American authorities to the same effect. Aday v. Echols, 18 Alab. R. 357; Payne v. Atterbury, Harrington Eq. R. 414; Shirley v. Shirley, 7 Black. R. 452; 2 Chy. R. 196; 5 Jones N. C. Eq. 155; and other decisions in vol. 2, part 2, 1153, Leading Cases in Equity. In some of these cases it is held that the court will go on to decree compensation under the prayer for general relief; and if this cannot be done consistently with the case made in the bill, leave will sometimes be given to amend the pleadings in order that the plaintiff may properly present his case. In Parkhurst v. Van Cortlandt, 1 John. Ch. R. 273, Chancellor Kent refused to execute the contract, and although the plaintiff did not in his bill ask any relief on account of improvements, not looking to the alternative of losing it, yet the chancellor directed an account to be taken between the parties, crediting the purchaser with a reasonable compensation, and charging him with a reasonable rent. There is another class of cases in which a court of equity will decree compensation although specific performance cannot be enforced. Whenever the court & als. V. & als. |