Bradford et al. v. The Union Bank of Tennessee.

stood on the footing both parties intended, namely, that a good title should be given when the purchase-money was paid.

But here there was no agreement to sell on the one side or to buy on the other. The agreement was to give Bradford the benefit of the sale already made, and to make him such a title as the defendants were under obligation to make to Brown. It was in truth but an assent on their part to an agreement on the part of Bradford with Brown that he should be substituted in his place in that sale- a sort of subrogation of the surety to the rights of the principal. The mode adopted to carry out the arrangement would have conformed to the intention of the parties had the facts been as the defendants had every reason to believe, namely, that no change had taken place in the condition of the title. The mistake as to this fact has given an effect to the instrument far beyond the agreement and real understanding of the parties, and which will operate most unjustly and inequitably, if permitted to stand.

The hardship of the case, as well as the unconscientious advantage sought to be obtained, will be more apparent, when we recur to the fact, that the defendants had no interest whatever in consenting to the change of the contract in favor of Bradford. Their debt was secure and in a situation to be immediately realized, as it was in judgment, and execution, and it is admitted he was able to meet it. They were actuated altogether from a disposition to assist him in obtaining some indemnity as surety for this debt, which it belonged to Brown to pay. And as it was a matter of indifference to them whether they made the deed to Brown or to him, they readily assented to the proposed arrangement. Indeed, it would have been hardly creditable, under the circumstances in which the application was made, to have refused it.

We are satisfied, therefore, that the case falls within the established principles of equity, in granting relief against contracts entered into upon a mistake, and misapprehension of the facts, and where the enforcement of which would enable one of the parties to obtain a most unconscientious advantage over the other.

The next question is as to the disposition to be made of the case. The former course of proceeding in chancery, which was most usually adopted, would be to dismiss the bill without prejudice, and which in this case would lead us to affirm the decree of the court below. The effect of this would probably be to open up a new scene of litigation between the parties; as the complainant, John D. Bradford, could resort to his remedy at law upon the title-bond; and the defendants would be obliged to file a cross-bill for the purpose of staying his proceedings, and reforming

Bradford et al. v. The Union Bank of Tennessee.

the contract so as to make it conform to the real understanding of the parties.

The more modern course of proceeding is to dispense with the cross-bill and make the same decree upon the answer to the original bill that would be made, if a cross-bill had been filed, if the defendant submits in his answer to a performance of the real agreement between the parties. The answer is viewed in the light of a cross-bill, and becomes the foundation for a proper decree by the court. This practice has been adopted as most convenient and expeditious in settling definitively the rights of the parties, and for the sake of saving further litigation and expense.

In the case of Staplyton v. Scott, 13 Ves. 425, the master of the rolls dismissed the cross-bill with costs, considering it unnecessary, as the court would upon the answer decree a specific execution of what was the real agreement.

This practice was followed by Lord Eldon in Fife v. Clayton, 13 Id. 546, on the ground that it was right in principle, and would save expense. A specific performance was also decreed upon the answer in Gwyn v. Lethbridge, 14 Ves. 585, and it appears now to be a very common practice in chancery proceedings. 1 Daniell, Pr. 436 and note; 2 Id. 101, 102 and note; Story's Eq. Pl. sect. 394.

These cases refer more particularly to the right of the defendant to have a decree for a specific execution of the agreement according to the answer so that he may be saved the expense of a cross-bill, even against the claim of the complainant to have his bill dismissed.

The same principle, however, seems to be equally applicable to the complainant where he insists upon the decree for specific performance of the contract as established by the proofs, although different from that set up in the bill. Indeed, we perceive no solid distinction between the two cases. In both, the contract, of course, when ascertained and conformed to the real understanding of the parties, must be such a one as the court deems fit and proper to be enforced. 2 Daniell, Pr. 1001, 1002; London & Birmingham Railway Co. v. Winters, Craig & Phil. 62.

We shall adopt this practice in the disposition of this case, as it will save all further litigation and expense, and settle the rights of the parties, as, in our judgment, the principles of equity and justice demand.

The bill was dismissed by the court below without prejudice, leaving the complainants at liberty to resort to any other remedy in the case which they might deem expedient.

We shall, therefore, reverse the decree, and remit the proceed

Bradford et al. v. The Union Bank of Tennessee.

ings to the court below, with directions that the defendants execute a deed of the two sections of land in question to John D. Bradford with covenant of warranty, subject however to any oustanding title or titles accruing from tax-sales since the sale, and title-bond to John L. Brown, 12th Oct., 1841, and deposit the same with the clerk of the court to be delivered to the said Bradford on his surrendering and cancelling the title-bond made to him on the 9th January, 1845, and paying the judgment the defendants have against the complainants for the purchase-money, with interest; also that the injunction be dissolved, and the defendants be at liberty to enforce the execution of the judgment; that no costs shall be allowed to the appellant in this court, and that costs shall be decreed to the defendants in the court below.

Mr. Justice DANIEL and Mr. Justice GRIER dissented.

Order.

This cause came on to be heard on the transcript of the reeord from the District Court of the United States, for the Northern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed, by this court, that the decree of the said District Court in this cause, be, and the same is hereby reversed, and that this cause be, and the same is hereby remanded to the said District Court with directions, that a decree be entered that the defendants execute a deed of the two sections of land in question to John D. Bradford, with covenant of warranty, subject, however, to any outstanding title or titles accruing from tax-sales since the sale, and title-bond to John L. Brown of the 12th of October, 1841, and deposit the same with the clerk of the said District Court, to be delivered to the said Bradford on his surrendering and cancelling the title-bond made to him on the 9th of January, 1845, and upon his paying the judgment the defendants have against the complainants for the purchase-money with interest; also that the injunction be dissolved, and the defendants be at liberty to enforce the execution of their judgment.

And it is further ordered and decreed that each party pay his own costs in this court, and that costs shall be decreed to the defendants in the court below.

The Richmond, &c. Railroad Co. v. The Louisa Railroad Co.

THE RICHMOND, FREDERICKSBURG, AND POTOMAC RAILROAD COMPANY, PLAINTIFFS IN ERROR, v. THE LOUISA RAILROAD COM

PANY.

The legislature of Virginia incorporated the stockholders of the Richmond, Fredericksburg, and Potomac Railroad Company, and in the charter pledged itself not to allow any other railroad to be constructed between those places, or any portion of that distance; the probable effect would be to diminish the number of passengers travelling between the one city and the other upon the railroad authorized by that act, or to compel the said company, in order to retain such passengers, to reduce the pas

sage-money.

Afterwards the legislature incorporated the Louisa Railroad Company, whose road came from the West and struck the first-named company's track nearly at right angles, at some distance from Richmond; and the legislature authorized the Louisa Railroad Company to cross the track of the other, and continue their road to Richmond.

In this latter grant, the obligation of the contract with the first company is not impaired within the meaning of the Constitution of the United States. In the first charter, there was an implied reservation of the power to incorporate companies to transport other articles than passengers; and if the Louisa Railroad Company should infringe upon the rights of the Richmond Company, there would be a remedy at law, but the apprehension of it will not justify an injunction to prevent them from building their road.

Nor is the obligation of the contract impaired by crossing the road. A franchise may be condemned in the same manner as individual property.

(Mr. Justice DANIEL did not sit in this cause.)

THIS case was brought up from the Court of Appeals of the State of Virginia, by a writ of error, issued under the 25th section of the Judiciary Act.

The facts in the case are stated in the opinion of the court.

It was argued by Mr. Robinson, for the plaintiffs in error, and Mr. Lyons and Mr. Johnson, for the defendants in error.

Mr. Robinson, for the plaintiffs in error, made the following points :

1. That, under the act passed the 25th of February, 1834, incorporating the stockholders of the Richmond, Fredericksburg, and Potomac Railroad Company, Sess. Acts, 1833-4, p. 127, there is, by force of the 38th section, copied in the record, at p. 165, and of what has been done under the act, a contract, the obligation of which cannot be impaired by any State law. Fletcher v. Peck, 6 Cranch, 135, 136, 137; Terrett, &c. v. Tay-. lor, &c. 9 Id. 50; Wilkinson v. Leland, &c. 2 Pet. 657; State of New Jersey v. Wilson, 7 Cranch, 166; Green v. Biddle, 8 Wheat. 92; Providence Bank v. Billings, &c. 4 Pet. 560; Dartmouth College v. Woodward, 4 Wheat. 637; State of New Jersey v. Wilson, 7 Cranch, 164; Armstrong, &c. v. Treasurer

The Richmond, &c. Railroad Co. v. The Louisa Railroad Co.

of Athens Co. 16 Pet. 289; Gordon v. The Appeal Tax Court, 3 How. 133.

2. That a court of equity has jurisdiction to protect the plaintiffs in the enjoyment of their chartered privileges, and should award an injunction to restrain the defendants from any acts which would impair the obligation of the contract under which the plaintiffs claim; from any acts which the defendants are bound (whether by contract or duty) to abstain from. Green v. Biddle, 8 Wheat. 91; Opinion of Kent, J. in Livingston v. Van Ingen, 9 Johns. 585 to 589; Coats v. Clarence Railway Company, 1 Russ. & Mylne, 181; 4 Cond. Eng. Ch. Rep. 378; Frewin v. Lewis, 1 Mylne & Craig, 255; 18 Eng. Ch. Rep. 255; Canal Company v. Railroad Company, 4 Gill & Johns. 3; Osborn v. United States Bank, 9 Wheat. 838, 841; Stevens v. Keating, 2 Phillips, 334; 22 Eng. Ch. Rep. 334; The AttorneyGeneral v. The Great Northern Railway, 3 Eng. Law & Eq. 263; The Great Western Railroad Company v. The Birmingham and Oxford Railroad Company, 2 Phillips, 597; Williams v. Williams, 2 Swanst. 253; Dietrichsen v. Cabburn, 2 Phillips, 52; 22 Eng. Ch. Rep. 52, and class of cases there referred to; Kemp v. Sober, 4 Eng. Law & Eq. R. 64.

3. That the exercise of such jurisdiction should not be declined, because of the provision in the 18th section of the act incorporating the stockholders of the Louisa Railroad Company, Sess. Acts 1835-6, p. 174, sect. 18, or in the 13th section of the act prescribing general regulations for the incorporation of railroad companies. Sess. Acts 1836-7, p. 107, sect. 13. For even if those provisions apply to the defendants' work between the junction and Richmond, (and the plaintiffs, p. 22, insist they do not,) yet following, as they do, sections relating to proceedings for ascertaining the damages to a proprietor for the condemnation of his land, it is manifest they were only intended for the case of such a proprietor, asking for an injunction to stay the proceedings of a company which is taking-his land for its work, and though under the case of The Tuckahoe Canal Company v. The Tuckahoe and James River Railroad Company, 11 Leigh, 42, cited in the answer, p. 169, 174, they may apply to land of one corporation taken for the work of another, yet they are not intended for, and are inapplicable to the case of a company enjoying a right under a contract with the State, which asks to be protected in that enjoyment against another company, claiming, not under a prior but a subsequent grant. And 2, whatever may have been the intention of those acts, yet being passed after the grant in the 38th section of the plaintiffs' charter, they cannot be allowed to impair the obligation of the contract arising under that grant; but the plaintiffs claiming under it, are entitled