Hidden v. Jordan

Temple, J., delivered the opinion of the Court:

This is the fourth appeal which has been had in this case. On the first appeal the rights of the parties are fully considered, and the law of the case, with reference to the subject-matter of controversy, settled. A new trial was had, which developed no new fact that could affect the rights of the parties; but, upon the second appeal, the case was sent [62]back for a new accounting. • A similar order was made upon the third appeal. A new trial of the case has not been had since the second appeal, and there was, therefore, nothing at issue in the Court below except such questions as legitimately arise upon the accounting, which was to be had upon the judgment entered upon the new trial had after the first appeal, and in accordance with the intimations of this Court.

The evidence, therefore, offered by the plaintiff for the purpose of establishing a different relation of the parties to the subject-matter of the suit was inadmissible. But if it were otherwise, the evidence is insufficient to authorize us to relieve the plaintiff from the terms of the contract he has set up in his pleadings, and which he has been able to establish by judgment.

From such doubtful acts as plaintiff has attempted to show, and which he claims are inconsistent with the original contract, the Court will not infer any agreement different from the express agreement alleged and proven by the plaintiff, nor will it make the defendant a compulsory purchaser of lands he never contracted to buy, but which he holds simply as security for money advanced for the plaintiff, unless it be in accordance with the agreement under which he holds it.

The action seems to have been commenced upon the supposition that the rents and profits of the farm had more than paid the debt and interest. It being now ascertained that a large portion of the debt remains unpaid, the plaintiff will not be allowed to change his position and induce this Court to make a better bargain for him than he made himself.

The first error alleged to have been made in the accounting is the allowance to defendant of $378 for a fence, which is claimed to have been a partition fence between the premises in controversy and Bussell, and that, therefore, defendant received, or ought to have received, one half the cost of the fence from Bussell; the fence was built in 1859. There is some evidence which tends to prove that the lands had been previously cultivated with Bussell’s land in a common inclosure, but counsel have failed to point us to any evidence, and we have failed to find any which tends to show