Armour v. Alexander , 10 Paige Ch. 571 ( 1844 )

The Chancellor.

I have no doubt the decision of the vice chancellor was right in this case, upon the settled principles of equity. It is true, that as between the people of the state and these settlers upon Indian lands, the settlers had no legal rights, or any other rights except such as depended upon the good will of the legislature. Still, as between themselves, the good will of the state to give to actual settlers the benefit of their improvements, and the preemptive right of purchase, the exercise of which good will was a matter of frequent occurrence, was a fair subject of contract between them. Contracts in respect to such rights depend upon the same principles as contracts respecting the good will of renewal in leases, where the landlord is in the habit of renewing from time to time upon such terms and conditions as he may think fit to prescribe. And this court constantly treats interests in such good will as valuable interests,- and protects them accordingly. (See Phyfe v. Wardell, 5 Paige’s Rep. 279, and cases there referred to.)

Here, it is evident that the defendant obtained the passage of the act giving him the pre-emptive right to purchase the whole lot, upon the supposed equity arising from the previous act of 1823, and the refusal of his brother to join in the application for the act. That refusal of the brother, however, after he had parted with his interest to the complainant, did not justify the defendant in equity in depriving the complainant of his share of the lot; especially as his right to pre-emption under the previous law had been lost by the neglect of the defendant himself. In the recent case of Felt v. Kinney, (In Chan., Dec. 5th, 1843,) this court went still further, and held that where the rights which two parties, under a state certificate, had in lands, were sold, in consequence of the neglect of both to pay their shares of the money due to the state, the one could not become the purchaser on his own account solely, without giving the other the right to share in the benefit of the purchase, on equitable terms.

But here, the equity of the complainant is much stronger. For the proof shows that the defendant had agreed to pay his proportion of the money to secure the original right of pre-emption, and that owing to his neglect to furnish his proportion of the money the complainant was unable to obtain the title for his ten acres. Whatever may have been the merits of the controversy between the defendant and his brother James, the latter could not confess away or deprive the complainant of any of his rights, after a sale of his whole interest in the land, and with the knowledge of the defendant. And I agree with the vice chancellor, that there is no sufficient evidence that the complainant himself ever intended to relinquish his claim to the ten acres of the lot No. 9; although he had a right to suppose that he would have a claim against James Alexander, personally, if the pre-emptive right to the ten acres should be defeated by the misconduct of the latter. The legislature might, in this case, grant the second pre-emptive right to the defendant, for his own use and benefit, if they thought proper to do so. But it is perfectly evident that they never would have done so upon any others terms and conditions than that the complainant should be entitled to his share of the lot, upon paying his just proportion of the purchase money, if all the facts and circumstances had been stated in the defendant’s petition, correctly and truly, as they appear by the pleadings and proofs in this case ; unless the legislature had been satisfied that a court of equity would compel the defendant to do what was just towards the complainant.

The question whether James Alexander has discharged his claim to payment for the lot, by releasing the surety upon the note, is one between him and the complainant, with which the defendant has no concern. For the complainant’s equitable rights as against the defendant are the same, whether James Alexander does or does not think proper to collect the debt which is due to him.. The decree appealed from must be affirmed with costs ; and the reference which was .directed to a particular master, may be executed by any master in the county of Madison if the master named in the decree is not now in office.