1860.

NEWTON

V.

be restrained from maintaining any dam by which the plain- June Term, tiff's land should be overflowed. The answer was, among other things, that the dam was erected in 1843; that the defendant had always been ready and willing to make compensation for damages, pursuant to the provisions of the statute in relation to mills and mill dams, but that no proceeding had been taken under that statute, to obtain such. compensation.

On the trial the circuit court refused to receive any evidence of the damages sustained by the plaintiff, on the ground that the action was improperly brought, and could not be sustained; to which ruling the plaintiff excepted. The plaintiff then asked leave to strike out of the complaint "so much of the prayer as sought greater relief than damages;" which was refused by the court, and the plaintiff excepted. Judgment of nonsuit.

Edward S. Bragg, for plaintiff in error, contended that the mill dam law prescribed the substance of the complaint, but not its form, and that the complaint in this case was within its requirements. R. S., chap. 56, § 5; 11 Mass., 462. 2. The law applies only to streams "not navigable," and the defendant had introduced no evidence to show that the stream in question was of that character. ment of nonsuit was granted prematurely. ought to have damages for a period of time not covered by the mill dam law. A right of action for those damages existed at the time of the passage of the act of 1857.

J. M. Gillet, for defendant in error:

Hence the judg

3. The plaintiff

The repeal of the mill dam law of 1840 did not affect the right of a party whose land had been injured by the erection and maintenance of a mill dam while the law remained, to relief under its provisions. Stevens vs. Marshall, 3 Chand., 222. The present action is not maintainable under the existing law; not even for damages resulting from a maintenance of the dam while no statute on the subject was in force. R. S., 1858, chap. 56, §§ 26, 28; Fisher vs. Horicon Iron Co., 10 Wis., 351; Thomas vs. Same, decided at the last term of this court, but not reported.

ALLIS.

June Term, 1860.

NEWTON

V.

ALLIS.

July 30.

By the Court, PAINE, J. This suit was brought, obviously, as a common law action, for the flowing of the plaintiff's land by the erection of a mill dam. The judgment demanded was for damages, and a perpetual injunction against maintaining the dam. While the suit was pending, and after an answer had been put in by the defendant, setting up the mill dam law by way of defense, the decision of this court was announced, holding the mill dam law constitutional. The plaintiff then claimed that his complaint was sufficient as a proceeding under that law to recover his compensation, and asked leave to amend by striking out his prayer for an injunction, which the court refused.

The only question here presented is, whether he should have been allowed to go on with his action as a proceeding under the statute to recover compensation for the taking of his land. It may be that the facts averred in the complaint would be sufficient in a proceeding under the statute, but it is obvious that they were averred for an entirely different purpose. The theory of the common law action was, that the land had been wrongfully flowed, and that the plaintiff was entitled to damages therefor, and to prevent a continua tion of the trespass, the equitable and legal relief being sought in one suit under the Code. The theory of the statutory proceeding is, that the land is lawfully taken for public use, and that the owner is entitled to his compensation. The one proceeding is different in its entire scope and object from the other, and they are founded upon entirely different rights. This being so, we do not think the party should be allowed to change the one into the other. He should stand or fall with the right which he made the foundation of his suit. Suppose a party should bring a suit to set aside a contract on the ground of fraud, and the defendant should set up a complete defense to the charge of fraud. If the complaint happened to contain sufficient facts to show a liability on the contract by the defendant, ought the plaintiff to be allowed to abandon the entire object of his suit, and take a judg ment such as he might be entitled to under the contract? We think not. For that might have been a liability that the defendant never would have contested. And the same is

true here. If the plaintiff desires to proceed under the June Term, statute, he should commence for that purpose.

The judgment must be affirmed, with costs.

1860. LANE et al.

V.

WHITE.

LANE and another vs. WHITE.

Where property was offered for sale by a sheriff under a judgment of foreclosure, and struck off to a person who bid by the direction of the plaintiff's attorney, and who showed the sheriff a note from said attorney, stating that the bid was satisfactory to him, and that he would give a receipt to the sheriff for the amount: Held, That although the sheriff might have demanded his fees in advance, yet, not having done so, he had no right to disregard the bid, and proceed to re-sell the property, because such bidder was not prepared at the moment to pay his fees and disbursements.

APPEAL from the Circuit Court for Fond du Lac County. This was an appeal from an order of confirmation of a sheriff's sale of land under a judgment of foreclosure. The objections made to the confirmation, are stated in the opinion of the court.

R. P. Eaton, for the appellants, contended that the sheriff was bound by his instructions as to the sale (2 Paige, 99; 3 id., 339; 11 Wend., 329–331); and having been duly informed that the plaintiffs were satisfied with the sale to Loomis, had no right to ignore that sale and re-sell at a sacrifice, before giving the plaintiffs' attorney notice, and time to pay his costs, 9 Paige, 259; 13 Wend., 226.

E. S. Bragg, contra.

By the Court, PAINE, J. We think the order of confirmation appealed from must be reversed. It appears from the affidavits that the property was struck off to one Loomis, who bid by the directions of the plaintiffs' attorney, and who gave a letter to the sheriff from the attorney, to the effect that this bid was satisfactory to the plaintiffs, and that they would receipt the debt to him thereon. But Loomis not being prepared to pay the amount of the sheriff's fees and

July 30.

1860.

SMITH et al.

V.

WOOD & al.

June Term, disbursements in cash, the latter disregarded the bid, offered the property again for sale, and sold it for the exact amount of his fees and disbursements, being about one-third of the previous bid. This we think he had no right to do. The sheriff has no power to control the proceedings in executing a judgment, as against the solicitor of the plaintiff, merely for the sake of obtaining the immediate payment of his fees. He may demand his fees in advance, if he chooses, but if he does not do that, but proceeds to sell, and strikes off the property to a person bidding for the benefit of the plaintiff, he has no right, merely because such person is not prepared to pay his fees at the moment, to disregard the sale and sell the property over again. It is obvious that the interests of both the plaintiffs and defendants might be sacrificed, as they were here, by allowing the sheriff to take such a course. The order must be reversed, with costs.

SMITH and another vs. WOOD and others.

A bill for specific performance of a contract is addressed to the sound discretion of the court, and a contract, to be enforced, must be fair, just and certain, and founded on an adequate consideration, and if deficient in either of these requisites, a court of equity will not enforce it.

A and B entered, at the U. S. land office, forty acres of land, upon a part of which C and D had been mining and taking out lead ore, the two latter having also purchased of one E another part of said tract for $2,500-neither C, D nor E having any right to said land or the ore therein. After A and B made their entry, C and D claimed the land, representing that their diggings, and the lot bought of E, were included within such entry; and A and B then executed their bond to convey the land to C and D upon obtaining a patent for it, if it should appear that the lot bought of E was situate thereon. The patent having been obtained, and it appearing that the lot purchased of E was situate upon the land, C and D filed a bill for a specific performance of the contract: Held, That the bond was without any consideration, and although under seal, could not be enforced.

APPEAL from the Circuit Court for La Fayette County. Bill for specific performance of an agreement to convey land. The facts are stated in the opinion of the court. The

1860.

circuit court found for the plaintiffs, and made a decree ac- June Term, cordingly.

James H. Knowlton, for appellants.

Mills & Barber, for respondents.

By the Court, COLE, J. This was a bill in chancery, filed under the old practice, to enforce the specific performance of a bond for the conveyance of land. It appears that the case went to hearing upon the pleadings and bond, which is made an exhibit in the cause, and the circuit court decreed that the title to the forty acres in controversy be passed to, and become vested in, the respondents, under the provisions of our statute. But upon the facts disclosed in the case, we are unable to concur in this judgment.

We

It is well settled that a bill for the specific performance of a contract is an application addressed to the sound discretion of the court, which withholds or grants relief according to the circumstances of each case, and that a contract, to be enforced, must be fair, just and certain, and founded on an adequate consideration, and if deficient in either of these essential requisites, a performance will not be enforced. This is the common and uniform language of all the authorities upon this subject. 2 Story's Eq. Jur., §§ 751, 793 a, 793 b; Willard's Eq. Jur., pp. 266, 267; Seymour vs. Delaney et al., 6 John. Ch. R., 222; Minturn vs. Seymour, 4 id., 497. cannot see that the bond to convey in the present case was founded upon an adequate consideration. It appears that the respondents, in the spring of 1837, were engaged in mining upon a quarter section of land in La Fayette county, and had purchased, before that time, of one Jamison, for the sum of $2,500, a lot upon said quarter section, known as the "Jamison lot," and were mining and taking out from said tract of land large quantities of mineral or lead ore, when the appellant Wood, and one Carlin, entered forty acres of the said quarter section, at the United States land office, and obtained a receiver's receipt of entry. The respondents, upon being informed of the entry by Wood and Carlin, procured affidavits establishing the fact of their occupancy and mining upon the land, and went to Wood and Carlin and

SMITH et al.

V.

WOOD et al.

July 30.