Waters v. Travis , 9 Johns. 450 ( 1812 )

Spencer, J.

The first objection to the decree is, that it decrees a specific execution of part of an entire contract; that the respondent will get a conveyance for 234 acres, instead of 439, to which he was entitled, if any. The agreement of 1787 was executory; it did not vest any legal title in the respondent; but it gave him a right to coerce the appellant and Wisner, by resorting to a court of equity, to a specific execution; or he had the election to sue at law, in case they refused to convey the lands to him, for damages. It cannot be controverted, that a conveyance for a valuable consideration, made bona fide to a third person, without notice of the agreement, and before it had been carried into execution, by a deed, would have passed to a third person the legal title The appellant discloses, by his answer, that he came to a partition with the other tenant in common, of the lot, an undivided part of which,, commensurate to his interest therein, he had covenanted to convey to the respondent. I have not understood the appellant’s counsel to urge this partition as an objection to a specific execution of the agreement; and had it foeen urged, it could not avail him. The respondent has a right to consider the appellant as acting for him in that partition. ’ The act itself did not vary the rights of the parties; it was reducing to a certainty what was before uncertain; it was merely locating the three fourths of a half of the lot; and if the respondent acquiesced in that arrangement, he had a right to do so. The idea cannot be tolerated, that a man shall, by his own act, prevent another with whom he has contracted from receiving the benefit of his contract, when the thing contracted for substantially resides ill the party contracting; but has merely undergone a modification. As it respects the appellant, therefore, it cannot be pretended that he is exonerated from a specific execution of his contract, because, he has ascertained and located the interest he had in the tract as a tenant in common. Had the respondent complained of this interference, the result, probably, would have been different; but he is contented with it. He elects to consider the appellant as his agent, in that transaction.

With respect to the three parcels of the lot conveyed away by the appellant before his answer came in, the same remarks are applicable. The appellant cannot take advantage of his own wrongful acts, to discharge himself of a vested right in the respondent. Whether these conveyances would have stood the test of an inquiry instituted by the respondent is immaterial. He acquiesces in them; and so far the appellant has, by his own act, disabled himself from performing his contract specifically. It is against all my notions of justice, to allow the appellant to excuse himself from performing so much of the contract as he can yet perform, because he has seen fit wrongfully to abridge himself of the power of performing the whole. And I again recur to the observation, that the converse of this proposition would not be just or true. The respondent might insist on having all the land or none, or he may elect to consider the acts of the appellant as his, and thus make valid what was wrongful.

The cases which have been cited, to show that a court of chancery will not decree a partial performance of articles, but will decree all or none, are not applicable to the case before us. As a general principle of equity, the proposition is incontestable; and wherever it has been applied, as far as my researches go, it has been to a case, where the party called into equity to perform, has the ability of performing the whole, and where the other party was desirous of selecting a part of the subject matter, and taking it, unencumbered by another part. There is a settled distinction, when a vendor comes into a court of equity to compel the vendee to a performance; and when a vendee resorts to equity to compel a vendor to perform. In the first case, if the vendor is unable to make out a title as to part of the subject matter of the contract, which was the principal object of the purchaser, equity will not compel the vendee to perform the contract pro tanto. There are also other distinctions which it is unnecessary now to advert to. But where a vendee seeks a specific execution of an agreement, there is, says Mr. Sugden, (Sug. Law of Vend. 193.) much greater reason for affording the aid of the court at the suit of the purchaser, when he is desirous of taking the part to which a title can be made. And a purchaser (he observes) may in some cases insist upon having the part of an estate to which a title is produced, although the vendor could not compel him to purchase it. Thus in the case of The Attorney-General v. Gower, (1 Ves. 218.) tenants in common contracted for the sale of their estate, and one of them died, it was held, that the survivors could not compel the purchaser to take their shares, unless he could also obtain the shares of the deceased. But the converse of the proposition was denied; and it was held that the purchaser might compel the survivors to convey their shares, although the contract could not be executed against the heirs of the deceased. In another case, (10 Ves. jun. 315.) Lord Eldon held that if a man, having a partial interest in an estate, enters into a contract agreeing to sell it, as his own, he cannot afterwards say he has valuable interests, but not the entirety; and if the vendee chooses to take as much as he can have, he has a right to that, and an abatement. There are other cases to the same effect. (1 Ves. jun. 221. 2 Bro. Ch. Cas. 118. 326. and 1 Bro. Ch. Cas. 140.)

-In the present case the land was contracted to be sold at one dollar per acre; and it is not set up by the appellant that the land in the possession of the respondent, and which was decreed to him, is more valuable than the other parts, sold by the appellant; and I am, on the justice of the case, as well as on authority, of opinion, that the decree, in this respect, ought to be affirmed.

The next point made, was the delay on the part of the re. spondent from 17Í57 to 1802. It was insisted that after such a lapse of time he had forfeited all right to a specific execution. Generally speaking, the obligation of an agreement binds the parties from the moment it is entered into; and place and time are circumstances affecting only the performance of the engagement; and do not import, in a court of equity, conditions by which the parties are to be considered as contracting on the ground of a strict compliance, but are mere circumstances admitting of compensation.^* It would be a great and unnecessary labour to examine all the cases on the subject of a strict compliance as to time, and to state the distinction between those cases where the lapse of time is an objection to a specific execution, and those in which it is not.J) In the present case, the agreement being in writing, the possession of the respondent, and the improvements he has made on the land, are not necessary to be regarded as a part execution of the contract, to take it out of the operation of the statute of frauds and perjuries. The ground I take, in considering the lapse of time from 1787.to 1802 as no objection in this case to a specific performance, is peculiar to the facts in the case, either proved or admitted.

By the agreement of 1787, the appellant and Wisner bound themselves to give a conveyance, on or before the 1st of December, in that year, at which time the respondent was to secure the purchase-money. These acts were to be concurrent. The conveyance must necessarily have preceded the security. The laches in not perfecting the contract is certainly as much, if not more, attributable to the appellant than to the respondent. . The lapse of time, in a case like the present, where no material inconvenience has been suffered by the appellant, can be urged only on the ground that the agreement has lain dormant; and that this is evidence of the abandonment of it by the parties. In the case of Lloyd v. Collet, (4 Bro. Ch. Cas. 469.) ^(a) Lord Loughborough said, the conduct of the parties, inevitable accident, &c. might induce the court to relieve, notwithstanding the lapse of time. Here, then, has been a continued possession, on the part of the respondent, from the period of the agreement to this time; not as a tenant, liable to rent, but as holding under the agreement. Had the respondent entered as a tenant originally, and then made the agreement, and continued to possess, the possession might have been viewed as a tenancy, and it might have been insisted that the possession was not an affirmance of the agreement. But as the case is, the continuance of the possession, by the tacit consent of the appellant, until he instituted the ejectment suit, was a constant and continued affirmance on the part of the appellant that the holding was under the agreement. This is irresistible evidence that the agreement was not abandoned by the parties; and their conduct was such as to leave no doubt that they both looked to the future performance of it. This case, then, comes within the principle laid down by Lord Loughborough. It is in vain to say that the respondent did not originally enter under the agreement. He did not enteras a tenant; and unless he held under the agreement, he was a trespasser. It would be absurd to suppose that he was tolerated to live on the land for such a length of time, as a trespasser. The fair and natural interpretation of the act of possession is, that it was because the agreement had been entered into, and was expected by both parties to be performed. ^

I have said that no material inconvenience has [been suffered by the appellant; and the counsel have insisted, as a notorious fact, that the lands have appreciated. On this point we have no evidence; but if it be admitted, are we to suppose that the appreciation of the land is greater than the interest of the money, in case no payment has been made ? I cannot say so; and, therefore, in the absence of proof to the contrary, I recur to the observation, that the appellant will suffer no material inconvenience from the lapse of time.

The next point made was, that to allow the respondent to prove payments anterior to the contract, would be impugning the deed by parol proof; and that, therefore, the feigned issue was immaterial ; and under this head, it was contended that the bill contains no allegations of fraud, or mistake, in the agreement itself.

The answer by the respondent’s counsel to this objection. strttck me with force; that after the party has been put to the expense of a feigned issue to ascertain the verity of disputed facts, acquiescence in the order for that issue, and after taking a chance to disprove the alleged facts, the appellant comes here with an ill grace to say the facts were immaterial, and the finding of the jury nugatory. I will not, however, say that the issue is conclusive on the appellant, and that he was bound to appeal from the order, or that he cannot now allege that the agreement, ex vi termini, precludes the proof by parol or anterior payments. This, however, I will say, that the appellant’s acquiescence in the feigned issue, his controverting those payments on the trial of that issue, and especially, his not setting up, or pretending, that the precedent payments were considered at the time the written agreement was entered into, and thrown in, are leading and controlling facts to show that such payments were omitted to be noticed in the agreement, and were entitled to be deducted from the purchase-money. One thing is clear to me, that the price of the land was precisely one dollar an acre, and no more. This is' evident from the agreement itself, and from the consideration that the appellant does not pretend that any more was given, or to be given for it; and admitting that the respondent was to give security to that extent, when he received a conveyance, he would have been entitled to have any demands he had against the appellant and Wisner set off, had they subsequently sued him on that security, if he could establish the facts that the price of the land was one dollar an acre, and that he had made payments to them for which he had not been credited. A receipt for the last quarter’s rent is presumptive evidence that the rent for former quarters has been paid. This presumption may be rebutted, and it may be shown that the prior quarters were not paid. So if A. give B. his bond for a sum of money, it is to be presumed that it was given for what was then due; but it may be shown that B. was indebted to A. before, and that the bond was given upon a distinct transaction. It follows, that if the payments found by the verdict on the trial of the feigned issues, were made towards the purchase of the land, and the land was sold at one dollar an acre, those payments must be állowed, and in this respect the decree is correct.

The last objection to the decree is, that Wisner did not own any part of the land; and, therefore, the payments made to him ought not to be allowed against the appellant.

It does appear that Wisner paid part of the money, for the purchase, and pro tanto, he was equitably interested in the land. But it is too late for the appellant to make the objection against the respondent. The appellant and Wisner joined in the agreesnent of 1787. This is a decisive answer to that objection. It was a solemn recognition, as respected the respondent, that Wisner was interested in the land agreed lo be sold. It is also controlling evidence of the fact, that Wisner had a legal or an equitable interest in the subject of the contract. No man should be permitted to say to another that he has led him into an error by holding out false appearances; but that the party deceived must, nevertheless, bear the loss resulting from that error. It makes no difference whether the payments were made to Wisner before or after the execution of the agreement. Wisner, it is admitted on all hands, died insolvent; and who can say, if the appellant had not thus solemnly admitted Wisner to be interested with him in the land, that the respondent might not have indemnified himself against the loss, by getting back the money he had paid ? This the appellant has prevented, by recognising Wisner as an owner of the land, and he must abide by the consequences. In every view of the case, I am satisfied that the decree ought to be affirmed, as well on principles of justice and equity, as on principles of law.

10th May, 1812.

This being the unanimous opinion of the court, it was, thereupon,

Ordered, adjudged and decreed, that the decree of the court of chancery be affirmed; and that the appellant pay to the respondent one hundred and fifty dollars, for his costs and charges, in and about his defence in this court; and that the cause ¡be remitted to the court of chancery, to the end that the decree of this court may be carried into execution, &c.

Judgment of affirmance.

* 1 Pow. Cont. 868.

(a) See the chancellor’s opinion fully reported in 4 Ves. jun. 690. in a note. It is very imperfectly stated by Brown. In Ballard v. Walker, (3 Johns. Cases, 60.) there was a written contract to convey on or before a certain day, when the money was to be paid or received, and 4 years having elapsed from the date of the contract, without any tiling being done, and before the vendee gave notice to the vendor that he should insist on the agreement, and five years elapsed before he actually tendered a performance, the supreme court held that the contract must be presumed to be rescinded, and that no action could be maintained upon it by the vendee, though it appeared that the vendor had, within a year after the date of the contract, incapacitated himself to perform on his part, by conveying the land to a third person.