Majority
Syllabus
A court of equity will de'cree a specific performance, of a contract for the sale of land, if the vendor is able to make a good title at any time before the decree is pronounced ; but the dismission of a bill to enforce a specific performance in such a case, is a bar to a new bill for the same object.delivered the opinion pf the court. These causes comebefore the court upon appeals from the circuit court of the district, of Columbia, for the county of Alexandria. The material facts upon which the questions now to be decided arise, are as follows:
Hepburn & Dundas being indebted to John Dun-lop .& Co., of Great Britain, on account of certain mercantile dealings which had taken place between those parties, t;he precise amount whereof was disputed, an agreement in writing was entered into on the 27th of September, 1799, between the said Hepburn' & Dundas, and Colin Auld, the attorney in fact of John Dunlop & Co.; whereby it was stipulated that the parties mutually agreed to submit all matters in dispute, respecting the demand of Dunlop & Co., to certain arbitrators named in the agreement, whose award should be made on or before the 1st day of January following. That Auld, as the agent, of Dunlop & Co., would, on the next day, to wit, the 2d day of January, 1800, accept, from Hepburn & Dundas, the sum which should be awarded to Dunlop & Co., in bills of exchange, or in Virginia currency, at the par of exchange; and upon such payment being made in either Way, that Auld would give to Hepburn & Dundas a full, receipt and
' Without noticing, particularly, the conduct of those parties subsequent to the transactions. of the 2d of January, 1800, as well as on that day, it may be sufficient to say, that if the tender made by Hepburn & Dundas was, upon the condition asserted by Auld, to have, been annexed to it, and if, in consequence thereof, any legal advantage accrued to him, it was waived by, his subsequent conduct, As late as February! 1807, Auld made a tender of the difference between, the sum awarded to Dunlop & Co., and the purchase money and interest due upon Gra - ham’s contract, and demanded a deed; but this demand was made in a manner, and under circumstances, which this court, upon a former occasion, deemed unreasonable.
Things remained in this situation, until some time, about April, 1801, when Hepburn & Dundas instituted a suit at law against Auld, for the difference, between the sum awarded to Dunlop & Co.’ and the amount of the purchase money and interest due by Graham’s contract, on the 2d of January, 1800. About the same time a suit at law was commenced by Auld, against Hepburn & Dundas, upon, the agreement of the 27 th, of September, 1799, tore-cover the whple ¡?um. awarded. In., the first case,
In the other case,. the pleadings presented the question, whether the recital of such a release in the deed of assignment offered to be deliveréd by Hepburn & Duhdas, invalidated the tender? Upon a writ of error, it was decided, by this court, that the. recital of the release could not Impair the rights of Dun-lop & Co., under the agreement of September, 1799, and that it formed no objection to the assignment; consequently, that the tender and refusal amounted to a performance, in like manner as if. Auld had accepted the 'assignment; but that Hepburn & Dundas would still be obliged to execute a proper deed of assignment, and a conveyance of the land, whenever they should be required to do so. Judgment was, accordingly, rendered in this suit against Auld.[2]
Hepburn & Dundas having been thus. defeated in their attempt at law, to enforce a performance of the agreement, filed a bill in equity, praying-for a specific performance. The answer of Auld contained, amongst other objections to .a specific performance', an allegation that the title of Hepburn & Dundas
a a 1 Crunch. 321.
b b 5 Crunch, 262.
Presuming that this decree, which seemed to close for ever the doors of a court of equity against Hepburn & Dundas, opened them to Dunlop & Co. to get rid of the contract altogether, Auld filed the bill which' is now under consideration, stating, amongst other things, the -previous and present inability of Hepburn & Dundas, to make a good title to this.
c c 5 Cranch, 262 ,
Hepburn & Dundas seem to have given a very different construction to the above decree, and supposing that if, within a reasonable time after it was pronounced, they could remove the objections to their title which were pointed out in the decree, they might still call for a specific performance, they soon obtained a conveyance from the heirs of Thomas West, of all their’right, title, and interest, in and to this land,, and on the 27th of March, 1809, less than a month after the decree of dismission by this court, they offered to convey to Auld a good and sufficient title. This offer being refused, Hepburn & Dundas'filed a bill against Colin Aúld, as attorney of Dunlop & Co., getting forth their ability and readiness to convey an unexceptionable title to this land, and praying that Auld, or Dunlop & Co., might be compelled to accept of a conveyance, and to pay the difference between the agreed value of the land and the sum awarded.
These suits came on to be heard at the same time. In the suit brought by Dunlop & Co., against Hepburn & Dundas, it was, decreed by the court below that Hepburn and the heirs of Dundas should páy to Dunlop &.Co., or their agent, the sum of 33,060 dollars 37 cents, being the amount of the sum award»
In the other suit, brought by Hepburn & Dundas against ■ Auld, a decree, was made, that upóh the complainant’s paying to Auld, as attorney of Dunlop & Co., the sum of 11,966 dollars 37 cents, and conveying to the said Auld, in trust for Dunlop & Co., On. of before a certain day, the above-mentioned land, the said Auld, as attorney of said Diinlop & Co., should execute and deliver to Hepburn & Dundas such, a receipt and discharge of all the claims and demands of Dunlop & Co. against them as the court might approve. From this decree both sides agaip • Appealed.
Against so much of these decrees as -compel Auld to accept of a conveyance in trust for Ddnlop & Co.,in part discharge of the debt decreed to be’paid by Hepburn & Dundas to Dunlop & Co., the following objections-have -been made, and are now to be considered.
1st., That- Hepbürn & Dundas were, guilty of a fraudulent misrepresentation of . the value of this land; and, also, of a wilful concealment of the defects in the title, whereby Auld was induced to enter into the agreement of September, 1799.
2d. A want of authority in Colin Auld to enter into an agreement for taking a conveyance of land in discharge of the debt due to Dunlop & Co.
4th. That the title to the land is yet defective.
5th. That the former decree, dismissing Hepburn & Dundas’s bill for a specific performance, is, a perpetual bar to the relief sought by their present bill.
6th. That. Dunlop & Co. being aliens, and incapable of holding lands .in Virginia, a court of equity will not compel them to. execute their agreement, even if. Hepburn & Dundas had .been always in a condition to perform it on their part.
1. The first objection appears to be unsupported, by the evidence. In respect to the value of the.land, the representations made of it in the letters of Hepburn & Dundas to Dunlop & Co., and to Colin Auld, affirm no fact which is proved to be untrue. Those letters contain expressions of the opinion of Hepburn & Dundas, that the land was an ample security for the debt due to Dunlop & Co.; and it must be admitted, that in their letter to Colin Auld of the 6th. of Septembér, 1799, they seem to have indulged themselves in very extravagant notions of its valué. But it is to be remarked that the grounds of this calculation are fairly stated in the letter, and an opportunity is afforded to Auld to inquire, into them and to judge for himself: besides which, it should be recollécted that Auld having agreed, in his letter
As to the alleged concealment by Hépburn & Dundas of defects in their title,.there is every réason to believe that they were unknown to them until some time in the year 1805, when they endeavoured to remove them, and supposed they had. done so. The only objection suggested by the special verdict in the ejectment, was the want of a partition deed between- the original grantees of this land, which objection this court has declared to be- insufficient to bar Hepburn & Dundas from asking/ for a specific performance of the agreement.
2. The next objection to the decree, below is, that Auld had no authority, in virtue of the power of at- ■ torney from Dunlop & Coi, to enter into an agreement to receive ]and in discharge of the debt due by Hepburn & Dundas.
This, like the former, is a new objection, no* thought of, or argued, as a reason against a specific performance in the former suit, it is unnecessary to examine, with criticál nicety, the import of the expressions- used in the power of attorney to Auld. He was empowered to sue for,, and to compound and agree, for all debts due to Dunlop 6^ Co., and,.in
3. The third objection to the decrees below., is the refusal of Hepburn & Dundas to assign Graham’s contract on the 2d January, 1800, except upon a condition which he had no right to exact, and their interference in the suit with Graham’s heirs, and the compromise made with them. In answer to the different parts of this objection, it might be sufficient to remark, that they were urged by Colin Aiild in his answer to Hepburn & Dundas’s former bill; that they were considered by this court, and decided to be insufficient to deprive Hepburn & Dundas of the, relief prayed for. However true the allegation may be, that Hepburn & Dundas refused to assign Gráham’s contract, and to deliver the power of attorney to Auld on the 2d of January, 1800, unless Auld would first execute a release of all claims and demands of Dunlop & Co. against Hepbúrn & Dundas, yet the subse
As to the compromise said to have been made by Hepburn & Dundas with the claimants under Graham, their conduct,. upon that occasion, appears to have been unexceptionable. That a judgment against those claimants, at an early day, was anxiously desired by Auld, and the assistance of Hepburn & Dundas, to effect that object, was expected and required by him, is apparent, from the above letters from him to Edward Graham, and from many other facts' proved in the former suit. The endeavours of. Auld to hasten the decision of- the ejectment, and to obtain a judgment, for the land, seem to have been unremitting, until some time in December, 1800, when he declined interfering any farther in the business- ; but, neither then, nor at any subsequent period, did he express to Hepburn & Dundas a disin-"" clination to obtain a judgment, nor did he forbid them from proceeding to effect it. It is objected, under this head,, that Hepburn & Dundas, contrary to an express stipulation in the agreement with Auld, re-.
4. The next objection is, that the title of Hep
In the opinion given by this court, at February term, 1809, in the suit brought by Hepburn & Dundas, fora specific performance, the title was declared to be unexceptionable except, 1st. As to 208 acres, being the part of Sarah Bronaugh’s 1,000 acres, to which Thomas West was entitled as one of the heirs of Mrs.. Bronaugh, and Of Francina Turner, and, ,2dly. As to 1,000 acres, the original share of Thomas West, which had b'een conveyed by him' to Hepburn & Dundas by a deed which had not been recorded. These defects. have since been cured by a conveyance to Hepburn & Dundas by the heirs of Thomas West, bearing date the 20th of March, 1809, of all their title to the aforesaid parcels. of land.
. It.is,- nevertheless, contended, that' this' conveyance is insufficient to pass a clear and undisputed title inasmuch as the land may be bound by the claims of creditors, or of purchasers subsequent to the deed from Thomas West to Hepburn & Dundas. The answer given at the bar to these suggestions is en-, tircly satisfactory to the court. If the land be exposed to the claims of subsequent purchasers or 'mortgagees under West,. to be effectual against Hepburn & Dundas, the deeds must have been recorded within eight months after the death of West, at the latest period, either in the. general court, or in the district or. county court where the land lies.. Had any such, deeds been so recorded, it was in the power of Auld to have proved the fact by the re
As to judgments against West, they too must be of record; and, after a lapse of 10, years since,his death, the co.urt cannot presume the existence of such judgments. As to specialties in' which'-the heirs of West are bound, if there be such, which is not proved, they cannot affect this land in the hands of a bona fide purchaser under those heirs.
5. The next objection made to the decrees below, is, that the dismission of the former bill of Hepburn & Dundas, for. a specific -performance, is a bar to their present bill for the same object. This objection is well founded. If a bill, by the vendor of land, seeking a specific performance of the contract, be dismissed on account of a defect in the title, the doors of a court of equity are, and ought to be, for ever closed against him, notwithstanding he should, afterwards, have it in his power to make a good title; unless, perhaps, in a case where an original bill, in the nature of a bill of review, might be entertained. But the present bill is not founded upon new matter,' discovered since the hearing of the former cause, and which it -was not in the power of Hepburn & Dundas to produce at that time. It is not pretended that he was ignorant who were the heirs of Thomas West, or that he could not as well have procured a deed from them before, as after the former decree. His ignorance was not of a matter of feet, but of law. He erroneously supposed that his .title was good, and on account of the defects existing
The questions, then, which remain to be .decided,, are, 1st. Whether Dunlop & Co. are entitled to the relief for which they specifically prayed ? and if not, then, 2dly. Are they entitled to any other, and what relief, under the general prayer in their bill?
1st. The relief specifically prayed for consists of two parts, 1st. That the agreement of September, 1,799, may be rescinded, and the sum awarded, with interest, decreed to be paid. If this should be de-. nied, and Dunlpp & Co..be compelled to receive, a conveyance of the land, then, 2dly. That the reasonable value only of the land at the time .when the title was perfected should be allowed.
As to the 1st. Most of the objections which' have been urged against the decrere of the court below, for a specific performance, were relied upon by the counsel for Dunlop & Co., as sufficient to set aside the contract. These have already been considered;, and the result has been shown -to be, that, if the bill
But if the contract oúght not, in conscience, to bind one of the parties, as if he had acted under a mistake, or was imposed upon by the other party, or the like, a court of equity will interpose and- afford a relief, which a court of common law cannot, by setting aside the contract j and having thus ob-. tained jurisdiction of the principal question, that, court will proceed to make such other decree as. the justice, and equity of the case may require. Whether inability in the vendor to make a title, is, of itself, unattended by some peculiar circumstances of hardship, sufficient to justify the court in. setting aside
It appears by the contract* and the previous correspondence between these parties, that they contemplated a sale of. this land, in- the event of the eon-
2d. The other specific relief prayed for, is, that Hepburn & Dundas may . be credited on account , of the land. for no more than its real value in March, 1809, when a conveyance was tendered and refiised. A decree, of this sort would be an anomaly in the jurisprudence of á court of equity. It would be an affectation of decreeing a. specific pérformance contrary, to the terms of the contract upon which the decree is to operate. It would be, in fact, to make a contract for the parties altogether different from what they had made for themselves, and hén to de
The only remaining question, then, is, whether, under the general prayer, the court can grant any, and what relief?
There can be no question but that it is competent to Dunlop & Co., to ask for a specific performance of the agreement, so far as it can now be performed, ..although the court, cannot listen to a similar prayer from Hepburn & Dundas. But this is not the relief specifically stated in this bill; and it is supposed to be unreasonable to compel a specific, performance under the general prayer for relief, in opposition to the specific prayer that the contract may be set aside. To this objection, it may well be answered, that if it be improper to rescind, or to modify, the contract, nothing remains to be done, under thé general prayer, but to dismiss the bill, or to decree an, execution of the contract. But, as the former cannot be presumed to be the object of the general prayer, it would seem to follow that an execution of the contract was intended to be asked for,, in case the specific relief should be denied. •
For these reasons the court will decree á specific performance, so far as it is practicable^ and considering Hepburn & Dundas as trustees for the person • or persons to whom this land may be sold, the conveyance will be decreed to be made tb such persons
The residue of the decree below, which allows to thé complainants, Dunlop & Co., interest upon the slim awarded from the 1st of January, 1800, to the time of the decree, is objected to by Hepburn & Dundas, upon the ground that the purchaser of land, to whom neither a conveyance has been made, or possession delivered, is to be considered in equity as the owner, and, of course, entitled to the rents and profits; and that the right of the vendor to the purchase money draws after it a correspondent right to demand interest upon the same until it is paid. This, it must be acknowledged, is the general principle which prevails in the courts of equity.
But it would seem to be inequitable to apply it to a case like the present. Here the purchase money was in the hands of the vendor at the time the contract was made. It consisted of a debt due by the vendor to the purchaser, which the former bound himself, by his agreement, to discharge by bills of exchange or cash,, or by an assignment of a contract for land, and a conveyance of a good title to it, and with money to make up any deficiency which might arise by the agreed price of the land falling short of the debt. Neither bills nor cash were paid, nor was the contract assigned, or a conveyance made, for it turned out that the vendor could not make a good title to" the whole of the land until March, 1809. They have always retained pos.session, and the land is, in reality, unproductive of profits in any measure equal to the. interest on the '
The written arguments of the counsel, which have been sent'to the cohrt, present two questions in re?, lation to interest, which remain to be noticed. It is contended, by the .counsel for Dunlop & Co., that interest ought to'be calculated upon, the sum composed of principal ana interest, stated, by the arbitrators, to be due on the 1st of January, 1800, at the rate of 6 per cent, per annum, from that day. On the other side it is insisted that no-more than 5 per cent, per annum should be allowed, and this not op the suit found by the arbitrators to be due, but upon the principal sum only.
The court is of opinion; that, although the award .does pot direct the. sum which is found to be due, by Hepburn & Dundas to be paid to-Dunlop &-Co., yet it ascertains the sum which was due' 'on the 1st of January, 1800, and the agreement, upon which the submission .was made bound Hepbúrn & Dundas to pay that sum. when it should be so ascertained. The two instruments, taken together, amount to a contract to pay a specific sum, and are clearly within the words, as well as the fair interpretation of the law of Virginia, passed in the1 year 1796, which fixed the rate of interest at 6 per, cent., per annum. This principle being settled, it follows. that, the interest must be calculated upon the sum
It. is therefore the opinion of the court, that Hepburn & Dundas ought to pay interest upon the sum awarded by the arbitrators, after the rate of 6 per Cent, per annum, from the 1st of January, 1800, to the 27th of March,. 1809, when they were .able to make, and did in fact tender, a good and sufficient conveyance to the agent of Dunlop & Co. From the 27,th of March, 1809, interest ought to stop; hut Hepburn & Dundas ought to account with Dunlop & Co,, for the rents and profits of the 6,000 acres of land from that period to the time of rendering this decree.[4]
d d In the'progress of society the defects of the common law to ariswer the exigencies of a oivilized and commercial age became manifest. It was particularly in' not furnishing an adequate remedy for the breach of contracts; where the spirit of the agreement required a specific performance, that these defects were disclosed. For, except in real actions and ejectment, where the proceedings are in rem, and the actions of detinue and replevin, where the. thing sued for is specifically recovere.d, a court of common law uniformly gives a compensation in money for civil injuries, whether arising ex contractu or ex delictu. This remedy is frequently insufficient to repair the • injury sus» tained by the parties, and to place theta in the sanie situation they were in before the breach of the contract. Hence the origin of that jurisdiction, which, although it was long contested by the courts of common law, has at length been firmly established, and maturecf into a regular system. This system is, however, remarkably sub* ject to the exercise of discretion according to the peculiar circumstances of each particular case, But few inflexible rules can therefore be laid down concerning ifo *204 Among those admitting of the fewest exceptions are the following: — 1st. This equitable jurisdiction extends to all cases where either the res in dispute, or the party, is within the jurisdiction of the court; for it proceeds' in personam as well as in rent, and wherever the land or other thing in controversy is not within its reach, it will compel the specific performance of an agreement by means of its appropriate process acting on the parties. 1 Ves. 447. ‘454. — 2d. A specific performance will not be decreed of an agree-sent Whereupon' damages could not be recovered, at law. But if a.n action at law cannot be maintained on account 6f a mere format defect of the instrument, the agreement, will be enforced in equity. 1 Ves. 256.1 P. Will. 243. And there are also several other cases of exceptions to this general rule, where, although the agreemont was void at law, a specific performance has been decreed, there being a clear ground for the interference of equity, according to the general' rules of the court, 2 Eq. Cas. Ahr. 32. pl. 43. 2 Vern. 480. 2 P. Will. 243. 2 Vern. 24. 3 P. Will. 187. — 3d. A specific performance will not he decreed-where the parties have, an adequate remedy at law. 8 Ves. jan. 163, 2 Schoales Lefroy, 553. And the court will exercise its discretion, and leave the contract at law, rather than compel,a purchaser to take a doubtful title; 1 Ves. jun. 565. 2 P. Will. 198. 2 Fes. 679. 1 Bro, C. C. 74. 4 Bro. C. C. 80. 4 Ves. jun. 97. 5 Ves. jun. 186. — 4th. If the vendor can make a gobd title at the time the Conveyance is to he nade under the decree of the court, a specific performance will be decreed. 2 P. Will. 630. 1 Atk. 12. 10 Ves. jun, 315. 5 Cranch, 262 . 8 Ves. jun. 655. 7 Ves. jún. 202. — 5th. In the construction of a contract; it is considered as executed from the time of its being entered into, unless some other time, be stipulated for its execution. And so powerful is this rule, that by an equitable fiction, it is held tcf alter the very nature of things, to make land money, and, on the contrary, to make money land. ' Upon this principle, land which is sold is cop-; sidered in equity as the property of the vendee from the making of' the contract, and descendible and; devisable as such. 2 Vern. 536. 1 P. Will. 872. 3 P. Will. 215. 7 Ves. jun, 294. — 6lh. In decreeing the specific performance of an agreement', time may be dispensed withifitbenotof the essence of the contract. 1 Atk. 12. 2 P. Will. 630. 5 Cranch, 262 . 7 Ves. jun. 273. 12 *205 Ves. jun. 326. 4 Bro. C. C. 329. 1 Ves. 450. But where there has l een gross laches on the part of She plaintiff, a bill.for specific performance will be dismissed. 5 Ves. jun. 145.736..81.8. 4 Ves. jun. 667. 686. 1 Bro. P. C. 27.' 2 Eg. Cos. Mr. 686. pi. 51 — 7th. r raud will vitiate a contract in equity as well as at law, and consequently a fraudulent agreement will not Be specifically enforced. And the morality of a court of equity, if the expression may be allowed, is even more strict than that of a court of law in .this particular, for suppress sio veri, as well as 'suggeslio falsi. is a ground for refusing to carry an agreement into effect. 3 Aik. 383 . 2 Atk. 271. 1 Bro. C. C. 440. Ambl. 42r. 10 Ves. jun... •ios;
And it is further decreed and ordered, that the decree in the suit of John Dunlop & Ce. against William Hepburn and the heirs and executors of John Dundas1 be reyersed, each party paying his own. costs in this court. And this court, proceeding to give such decree in the said suit as the said circuit court ought to have given, it is decreed and ordered that the .defendants, William Hepburn and the executors and executrix of John Dundas, do, on or before the first day of April next, pay to the complainants, John Dunlop & Co. or to their agent or attorney, duly authorized to receive the
It is farther decreed and Ordered, , that the 6,000 acres of land in the proceedings mentioned, be sold at public auction to the highest bidder, at such times, in. such proportions, and upon such terms as John Dunlop & Co., or their agent or attorney in fact, may direct, and that the proceeds of such sáles. be paid over to the said John Dunlop & Co., or their agent Or attorney as aforesaid; and upon such sale or sales being made, it is decreed and ordered, that the said William Hepburn, or his legal representatives, and, the legal representatives of John Dundas, deceased, do, by' good and sufficient- deed, or deeds, in law, to be prepared at the expense of John Dunlop & Co., convey the aforesaid land to the purchaser or purchasers thereof, in fee simple, with a general warranty, and free from all incumbrances. And it is farther ordered and décreed, that the sales of the' aforesaid land be . made under the superintendance
And it is- farther ordered and decreed, that the defendants,.William Hepburn and the executors and executrix of John Dundas, decéased, do make up, state, and settle, before a commissioner, or commissioners, tp be appointed by the said circuit court, an account of the rents and profits of the said 6,000 acres of land since the 27th day of March, 1809, and that they pay oyér the same to the complainants, John Dunlop & Co., or to their lawful agent or attorney.
And this cause is remanded to the said circuit court for such proceedings to be had therein, for carrying into executipn the decree of this court in the premises.[5]
e e Mr. J. Livingston and Mr. J. Story, did not sit in tins cause.