Loxley v. Douglas , 121 Ala. 575 ( 1898 )

SHARPE, J.

— Upon the principle that one seeking equity must do equity it has been held that one coming into equity to avoid and have cancelled a deed upon the ground of its imperfect execution as a conveyance of the homestead will as a condition to equitable interference, be required to refund whatever of value.he'has received as a consideration for the deed.—Grider v. Amer. F. L. & T. Co., 99 Ala. 281; Pounds v. Clarke, 14 So. Rep. (Miss.) 22, s. c. 70 Miss. 263.

This requirement is upon the consideration that to allow one to retain the benefits of an agreement which he repudiates yvhen by doing so he derives an advantage, while the uncomplaining party is silbjected to loss would be plainly inequitable.

It appears from the bill that the complainant received a part of the purchase money of the land for which he gave the deed he now seeks to have declared void. Instead of offering to return the money the complainant presents a charge against the defendant for timber cut upon the land. Respecting this claim the statements of the bill are “that since the alleged execution of said deed said Loxley however, cut from said lands therein described much valuable timber which was then and is now worth about two hundred and fifty dollars and which said Loxley appropriated to his own use; that in equity and good conscience said Loxley is justly indebted to complainant in said sum of two hundred and fifty dollars for said timber so cut from said lands and that by way of doing equity complainant hereby sets off or offers to set off against and on account of said sum so due for said timber so cut by said Loxley the money so paid by said Loxley to complainant as and on account of the purchase money of said lands.” The bill further proposes that in case the value of the timber is found to be less than the money received, tlie complainant will pay the excess and prays that in case the timber value exceeds the money received, a decree be rendered in favor of complainant for such excess of value.

Whether the obligation upon the complainant to do equity could under possible circumstances be less than the actual return of the.purchase money received we need not inquire. Here lie seeks to avoid such return simply by presenting a claim against the defendant and offering to extinguish it pro tanto with the money he received when it does not appear that there was any agreement for such mutual extinguishment or that there is any intervening equity requiring it unless by the assumed right of set off as asserted' in the bill.

It is true that equity may require cross demands to be set off against each other where from the nature of the claim or the situation of the parties justice cannot otherwise be done. A set off however does not exist until there is a counter-claim, and in a case like the present the defendant asserts no claim, and the principles upon which set off may be enforced are without application.

The return of the purchase money by the complainant is not made obligatory upon him except as a condition to the relief which he seeks and which the defendant resists. The design of the equitable requirement is the restoration of the parties upon the granting of the relief, to as nearly as practicable the status quo they occupied before the transaction assailed was had, in respect of matters incident to and growing out of it. Such object would not be accomplished by thrusting upon the defendant the necessity of submitting to or defending against a claim which though for timber cut from the land embraced in the deed is yet wholly extraneous to and independent of the transaction involving the making of the deed in question.

To give the court jurisdiction to decree the return of the purchase money upon declaring the deed void it was necessary that the bill should have contained an offer to so refund, and because of its failure to do so the demurrer should have been sustained.

The decree appealed from will be reversed at appel-lee’s cost and the cause will be remanded.

Reversed and remanded.