Dorsey v. Hobbs

Eccleston, J., delivered a separate concurring opinion. The great lapse of time since the granting of this' injunction, without a motion, on the part of the appellee, to dissolve , it, until very recently, has much influence with me in coming to the conclusion, that the decision below should be reversed, and the injunction continued. Le Grand, C. J., delivered the opinion of this court. The bill in this case was filed by the intestate of the appellant, to restrain proceedings at law by the appellee, to recover the amount of a note or single bill of Daniel Bussard, payable on the first day of October 1816.

The facts of the case, as made by the bill and answer, may be thus stated: On the 16th day of June 1816, the appellee, Hobbs, agreed to sell to Bussard, for the sum of $1150, a house and lot of ground situate in Montgomery county, Bussard agreeing to pay therefor, the sum of $1150 on the first day of October thereafter, and Hobbs agreeing, by a written agreement under his hand and seal, to make to him “a good and lawful deed and title,” and to put him in possession on the same day. Neither at the ⁴¹⁷ lime of the contract, nor on the first day of October 1816, nor since, has Hobbs been seized of the property agreed to be sold and conveyed. He had agreed to parchase it from the father of Daniel Bussard, the party who filed the bill in this case, but never paid for the same nor received a deed for it. On the contrary, Bussard, Sen., instituted a suit for a part of the purchase money, and recovered judgment to the amount of $41.7.15, in the year 1817.

Under this judgment the property was sold by the sheriff to George Kover. The note of Bussard, the complainant, not being paid at its maturity, Hobbs brought suit on it in Baltimore county court, and, subsequently, obtained judgment thereon. It is asserted in the answer of Hobbs, to the bill of complaint, that at the time of the making of the contract, Bussard was well aware of the fact that Hobbs had no title to the property, and that he immediately thereafter entered into possession of the premises. There is no evidence of this latter fact.

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