Westbrook v. M'Millan

17 S.C.L. 259

• Court: Court of Appeals of North Carolina
• Decided: May 15, 1829
• Status: Published

Opinion

Nott, J.

delivered the opinion of the Court.

This case, in all its essential circumstances, corresponds with that of Bordeaux v. Cave, which has just been disposed of. The defendant has paid about half of the purchase money; he has been in possession of the land about ten years; and yet his title is thought to be insecure. To what extent, however, it is impossible to ascertain. Whether he ought to receive back the money he has paid, or pay up the balance ; whether he must give up the land, and pay the value off the rents and profits, or whether he can be made secure in his title and possession, have not, and cannot be tried in this Court. I do not differ with the presiding Judge, nor with the counsel for the defendant, with regard to the principles of law applicable to the case, but merely as to the mode of redress. It is in vain to attempt to limp on in the dark in this lame and imperfect manner. The rules of law must be adhéred to, and the rules of equity resorted to, where justice cannot otherwise be done.

The line of demarkation between the two Courts must be observed, and if it cannot be marked out with exact precision, it is sufficiently distinct for all practical purposes, and as well defined in this, as in most other cases. I am of opinion, therefore, that the defence cannot be sustained, and that a new trial must be granted.

Motion granted.