By the Court
Benning, J.
delivering the opinion.
[1.] This bill is like a bill for specific performance. It is true the prayer of it is not that the State may perform its contract and make a conveyance of the legal title to the complain-, ants, but it is that the Court may, itself, do what shall serve in place of such a conveyance. The prayer is that the convey-, anee made by the State to Towns may be cancelled, “and that it may be decreed that the legal title to said lots of land is in the estate of orator’s testator.” The decree of the Court shall serve for a conveyance — this is the prayer. And the prayer-is made to take this extraordinary form, perhaps, from the difficulty which the complainants felt to lie in the way of the, ordinary form of bill and prayer in such cases. The ordinary form requires the person who ought to make the conveyance to be a party to the bill, and also requires him to be decreed to make the conveyance. But in this case, the State is that party, and the State cannot be sued; and if it could be, a judgment against it, rendered by a Court, one of its own creatures, could not be enforced. Hence, perhaps, the form of prayer, and the form of bill in this case — a form which omits from the. [26]*26bill the party that is the indispensable one in ordinary cases of this sort — the party that is, perhaps, the only one that is to be the ultimate loser or gainer by the event of the suit.
Eor such a bill I know not of any precedent. And in my opinion, for such a one there is no law.
If, however, there is for such a bill any law, it must be the-law of specific performance — the law applicable to the specific-performance of contracts.
One of the parts of that law is thus stated by Judge Story in his Commentaries on Equity Jurisprudence: “ In truth the exercise of this whole branch of Equity Jurisprudence, respestingtho rescission and specific performance.of contracts, is not a matter of right in either party, but it is a matter of discretion in the Court — not, indeed, of arbitrary or capricious discretion,, dependent upon the mere pleasure of the Judge, but of that sound and reasonable discretion which governs itself as far as it may, by general rules and principles.” And this statement of the law is well supported by the authorities which he cited. (2 Story Eq. §742.)
It is not a matter of right, then, in either party to have a specific performance decreed. The Court may decree one or not, according to the facts and its discretion.
The judgment assigned for error in this case was that which, on the motion of the defendant, dismissed the bill. This judgment the Court- put upon two of the three specifications of the ground taken in the motion to dismiss — -these two — that the complainants had given no evidence of any contract of purchase by Everett from the State — that they had given no evidence showing Towns to have had notice of any contract of purchase by Everett from the State, before he, Towns, purchased from the State.
What evidence did the complainants give on these points ?'
On the first, they gave three receipts from the Comptroller Genera], dated respectively in 1830, 1831, 1832, acknowledging the receipt from Everett of three instalments for several lots of land, and among them the two lots in dispute in this-[27]*27case. This is all the receipts specify, and this is all the evidence ■the complainants gave of the contract of purchase.
Now it is true that it is difficult to account for the existence ■of these receipts, except upon the hypothesis that Everett had, by some contract, purchased these two lots from the State. But, then, it is equally true that there are in the case some other things which it is as difficult to account for, on the hypothesis that he did purchase the lots, at least by any such contract of purchase as the law allowed of. If he purchased the lots, why did not the complainants show the certificate of such purchase, given to him at the time of purchase by the Sheriff, who, as the State’s agent, sold him the lots ? Why did they not show the return of the Sheriff to the State Treasuxy, which, if he, Everett, had been such purchaser, would have contained a statement of that fact? If Everett purchased under any law authorizing him to purchase, it is to be presumed that the certificates and the return both exist — the certificates in the possession of the complainants themselves — the retuxm in the possession of the Treasurer of the State, and so within their reach for evidence — for the only' law existing to authorize him to purchase the lots — that is, to authorize any sale of the lots, is a law which requires the Sheriffs, whose duty it is made to sell such lots, to give to the purchasers certificates “stating the amount paid, and the amount of such purchase money then due and to be paid, in three equal annual instalments to the Treasurer of this State,” and “within sixty days after the sales of said lo$,” “to make a report of their proceedings to the Treasury,” “pay over to him the money received, and deposit a schedule of the lots sold, the amount of sales, cash received, balance due for each lot and from whom due.” (Daw. Com. 270, 266.) And it is to be presumed, until the contrary be shown, that the Sheriff who sold this lot to Everett, if one did sell it to him, did his duty, and so gave Everett a certificate of purchase, and made a report of that fact to the Treasurer. Besides, Wiley Williams testifies that the Sheriff, who, if any, must have been the one to sell these two lots, if they were sold •according to law and at the time when it is alleged in the bill [28]*28they were sold, viz: in 1828 or 1829, did give certificates for all the lots which he sold, and did make a report of his sales, &c. to the Treasurer. Williams, testifies that he himself wrote the certificates in blank, and that the Sheriff filled them and gave them to the purchasers. He says, the Sheriff made his return and settlement for the sales at the Treasurer’s office, or that he did it for the Sheriff.
Here, then, is matter from which "a strong presumption is to be made, that if Everett purchased the lots, he had a certificate of such purchase, and also written evidence of the purchase in the Sheriff’s return to the Treasury.
If, then, Everett was the purchaser of the lots, why did the complainants not show these certificates, or show some reason for not doing that ? Why did they not show the return of the Sheriff, with the statement in it that he, Everett, was the purchaser ? Why they did not do these things is difficult to account for, if we suppose Everett to have been, as alleged in the bill, the purchaser of the lots.
But this is not the only difficulty. How could Everett have purchased, if he was not at the place of salej and Williams, the witness, says that to the best of his recollection, Everett was not there ? The complainants offer no proof that he had an agent there.
And this is not all: Everett, in his life time, in 1845, told Towns that he did not own these lots, and that he knew not who did.
But this statement of Everett is, derived fronj the answer of Towns, and is a statement which, • according to the argument of the plaintiffs in' error, is not responsive to any allegation in the bill. In that, however, they are mistaken. The bill alleges that Everett “purchased of the State of Georgia”,the two lots. It alleges that Towns knew that “the lots had been bought and paid for by” Everett.
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By the Court
Benning, J.
delivering the opinion.
[1.] This bill is like a bill for specific performance. It is true the prayer of it is not that the State may perform its contract and make a conveyance of the legal title to the complain-, ants, but it is that the Court may, itself, do what shall serve in place of such a conveyance. The prayer is that the convey-, anee made by the State to Towns may be cancelled, “and that it may be decreed that the legal title to said lots of land is in the estate of orator’s testator.” The decree of the Court shall serve for a conveyance — this is the prayer. And the prayer-is made to take this extraordinary form, perhaps, from the difficulty which the complainants felt to lie in the way of the, ordinary form of bill and prayer in such cases. The ordinary form requires the person who ought to make the conveyance to be a party to the bill, and also requires him to be decreed to make the conveyance. But in this case, the State is that party, and the State cannot be sued; and if it could be, a judgment against it, rendered by a Court, one of its own creatures, could not be enforced. Hence, perhaps, the form of prayer, and the form of bill in this case — a form which omits from the. [26]*26bill the party that is the indispensable one in ordinary cases of this sort — the party that is, perhaps, the only one that is to be the ultimate loser or gainer by the event of the suit.
Eor such a bill I know not of any precedent. And in my opinion, for such a one there is no law.
If, however, there is for such a bill any law, it must be the-law of specific performance — the law applicable to the specific-performance of contracts.
One of the parts of that law is thus stated by Judge Story in his Commentaries on Equity Jurisprudence: “ In truth the exercise of this whole branch of Equity Jurisprudence, respestingtho rescission and specific performance.of contracts, is not a matter of right in either party, but it is a matter of discretion in the Court — not, indeed, of arbitrary or capricious discretion,, dependent upon the mere pleasure of the Judge, but of that sound and reasonable discretion which governs itself as far as it may, by general rules and principles.” And this statement of the law is well supported by the authorities which he cited. (2 Story Eq. §742.)
It is not a matter of right, then, in either party to have a specific performance decreed. The Court may decree one or not, according to the facts and its discretion.
The judgment assigned for error in this case was that which, on the motion of the defendant, dismissed the bill. This judgment the Court- put upon two of the three specifications of the ground taken in the motion to dismiss — -these two — that the complainants had given no evidence of any contract of purchase by Everett from the State — that they had given no evidence showing Towns to have had notice of any contract of purchase by Everett from the State, before he, Towns, purchased from the State.
What evidence did the complainants give on these points ?'
On the first, they gave three receipts from the Comptroller Genera], dated respectively in 1830, 1831, 1832, acknowledging the receipt from Everett of three instalments for several lots of land, and among them the two lots in dispute in this-[27]*27case. This is all the receipts specify, and this is all the evidence ■the complainants gave of the contract of purchase.
Now it is true that it is difficult to account for the existence ■of these receipts, except upon the hypothesis that Everett had, by some contract, purchased these two lots from the State. But, then, it is equally true that there are in the case some other things which it is as difficult to account for, on the hypothesis that he did purchase the lots, at least by any such contract of purchase as the law allowed of. If he purchased the lots, why did not the complainants show the certificate of such purchase, given to him at the time of purchase by the Sheriff, who, as the State’s agent, sold him the lots ? Why did they not show the return of the Sheriff to the State Treasuxy, which, if he, Everett, had been such purchaser, would have contained a statement of that fact? If Everett purchased under any law authorizing him to purchase, it is to be presumed that the certificates and the return both exist — the certificates in the possession of the complainants themselves — the retuxm in the possession of the Treasurer of the State, and so within their reach for evidence — for the only' law existing to authorize him to purchase the lots — that is, to authorize any sale of the lots, is a law which requires the Sheriffs, whose duty it is made to sell such lots, to give to the purchasers certificates “stating the amount paid, and the amount of such purchase money then due and to be paid, in three equal annual instalments to the Treasurer of this State,” and “within sixty days after the sales of said lo$,” “to make a report of their proceedings to the Treasury,” “pay over to him the money received, and deposit a schedule of the lots sold, the amount of sales, cash received, balance due for each lot and from whom due.” (Daw. Com. 270, 266.) And it is to be presumed, until the contrary be shown, that the Sheriff who sold this lot to Everett, if one did sell it to him, did his duty, and so gave Everett a certificate of purchase, and made a report of that fact to the Treasurer. Besides, Wiley Williams testifies that the Sheriff, who, if any, must have been the one to sell these two lots, if they were sold •according to law and at the time when it is alleged in the bill [28]*28they were sold, viz: in 1828 or 1829, did give certificates for all the lots which he sold, and did make a report of his sales, &c. to the Treasurer. Williams, testifies that he himself wrote the certificates in blank, and that the Sheriff filled them and gave them to the purchasers. He says, the Sheriff made his return and settlement for the sales at the Treasurer’s office, or that he did it for the Sheriff.
Here, then, is matter from which "a strong presumption is to be made, that if Everett purchased the lots, he had a certificate of such purchase, and also written evidence of the purchase in the Sheriff’s return to the Treasury.
If, then, Everett was the purchaser of the lots, why did the complainants not show these certificates, or show some reason for not doing that ? Why did they not show the return of the Sheriff, with the statement in it that he, Everett, was the purchaser ? Why they did not do these things is difficult to account for, if we suppose Everett to have been, as alleged in the bill, the purchaser of the lots.
But this is not the only difficulty. How could Everett have purchased, if he was not at the place of salej and Williams, the witness, says that to the best of his recollection, Everett was not there ? The complainants offer no proof that he had an agent there.
And this is not all: Everett, in his life time, in 1845, told Towns that he did not own these lots, and that he knew not who did.
But this statement of Everett is, derived fronj the answer of Towns, and is a statement which, • according to the argument of the plaintiffs in' error, is not responsive to any allegation in the bill. In that, however, they are mistaken. The bill alleges that Everett “purchased of the State of Georgia”,the two lots. It alleges that Towns knew that “the lots had been bought and paid for by” Everett. A statement of what Everett, himself, said with respect to his title, would be responsive to either of these allegations.
The result is that there are things in the case which it is as hard to account for, on the supposition that Everett did pur[29]*29chase the lots, as it is to account for the Treasury receipts on the supposition that he did not purchase the lots. And that is but saying that the evidence on one side of the case balances the evidence on the other.
In such a case, the discretion of the Court to refuse a specific performance, or what is equivalent to one, and dismiss the bill, ought not to be disturbed. In every such case, the complainants ought, at least, to show a preponderance of evidence in favor of the contract on which they insist.
But in this case the preponderance is, if any thing, the other way, for in addition to what has already been stated as being adverse to the idea that Everett purchased the lots, there are the following circumstances : Everett never took possession of the land — never took out grants for it — never, as far as appears, claimed title to it, although he had almost twenty years within which to do any or all of these things, according to the statements in the bill; for, according to those statements, he purchased in 1828 or 1829. And his executors, the plaintiffs in error, did not commence this suit until 1852; until after all of the purchase money had been paid the State for the land as sold a second time — if it had ever been sold a first time.
Indeed, taking the bill to be true, the complainants need no help from Equity. Their legal title, they say, is complete. They say the legal title vested in Everett, at the time when he paid the purchase money to the State. If so, what use is there for this bill ? None.
And I may say for myself, that I know of nothing that gives to a Court of Equity the power to grant the prayer of this bill. Whence did a Court of Equity get the power to nullify an act of one of the departments of Government. If it can nullify a grant made by the Executive Department, why may it not equally nullify a commission issued by that department — a military order made by that department — in a word, any act of that department ? If it can do things of this sort, it must be by virtue of some grant of power to it in the Constitution, or in the law. I know of no such grant. Such a power English Courts of Equity do not pretend to have.
[30]*30It is, however, the opinion of the whole Court that the Court below was justified in dismissing the bill on one of the grounds on which the decision was put, viz: that which has been considered — the ground that the contract of purchase was not sufficiently proved.
So the judgment ought to he affirmed. And it becomes unnecessary to notice the other ground on which the Court placed its judgment.