author: Hempstead, Special Judge,

text:
    Folsom vs. Fowler, ad.
    A complainant in chancery may, upon a rule for that purpose, obtain the testimony of one of the defendants in the cause, saving exceptions as to his interest, &c.
    A party defendant, who disclaims all right to the property in controversy, and holds the legal title only as a trustee for the benefit of others, is a competent witness against his co-defendant — the possible liability for costs not disqualifying him in chancery, where it is discretionary with the Court to adjudge costs against him; but in such case the answer is not evidence against the co-defendant according to the principle decided in Blakéney vs. Ferguson, 14 Ark.

    An arrangement between two judgment creditors and the debtor, that a slave belonging to the latter be sold under execution, and bought in by the attorney oí one of the creditors, who should hold the legal title, but the slave should pass into the possession of the other creditor and remain on hire until the debts were satisfied, with leave to the debtor to redeem in a reasonable time: Held, That the nature of the transaction was, that the slave be pledged or mortgaged, and that the creditor must account for the slave and all hires after satisfying Ms debt.

      Appeal from Jackson Ci/rcmt Gourt m Oha/ncery.

    Hon. B. H. Neely, Circuit Judge.
    BeveNs and FaieChild, for appellant,
    Nowlee, contra.
   Hempstead, Special Judge,

delivered tbe opinion of the Court.

The deposition of William Byers, one of the defendants, was taken in behalf of the complainant, under an order of Court, subject to all just exceptions. A motion was made to suppress it, on two principal grounds: (1) that he was a party defendant to the suit; and (2) that he had an interest in the event of the suit. The motion was overruled, the deposition admitted to be read as evidence at the hearing, and Folsom excepted.

It is not only competent, but a very common practice to obtain the testimony of parties to the record in suits in chancery. The rule in that forum goes further than at law; for there a party to the record cannot be examined as a witness, unless it is by the aid of some statute to authorize it. Dixon vs. Parker, 2 Ves. Senr. 222. The usual course is to obtain an order for leave to examine a party to the record, and previous notice is not necessary. Theorderisgrantable of course, “saving just exceptions,” which means on account of interest, or incompetency. 2 Daniels Ch. Pr. 1044, 1045; Plairville vs. Brown, 4 Hen. & Munf. 402; Neville vs. Demeritt, 1 Green. Ch. R. 321.

The fact, that Byers was a party to the record, could not prevent the complainant from obtaining his testimony; and as the usual order was made for that purpose, the first ground of objection ought not to prevail. But next comes the more important question as to whether he was interested.

The tendency of modern decisions is to discourage and narrow exceptions to the competency of witnesses, and let objections go» to their credit. And this practice, well calculated, as it doubtless is, to elicit the truth, and afford a fair view of the whole transaction, has in some States been extended so far by legislation, as to make even interested witnesses competent. Iiow far the experiment may prove successful, remains to be seen; and whether it does not offer too strong a temptation, to perjury, may well admit of question.

With us, the principle of the common-law prevails, that a person who is interested in theresult of a cause, is incompetent. The interest must be real and direct, but the magnitude or degree of' the interest is immaterial, because, be it ever so small, the effect is the same as if thousands, were at stake. If the interest is direct, certain and vested, it amounts to a disqualification. 1 Greenl. Ev. 391, 386.

A direct and certain liability for costs in a suit, is sufficient to exclude a witness, and render him incompetent. But Byers cannot be said to stand in that categoiy, because in chancery costs are discretionary, and it does not follow that the losing party must pay costs as at law. It is therefore not a certain and direct, but only a contingent liability, and not a sufficient interest to render the party incompetent asa witness, within the meaning of the rule of exclusion adverted to. 1 Atk. 451; 2 Atk. 228; 1 Johns. 556; 2 Cowen 186; Daniel's Ch. Pr. 1515, 1516; 6 Johns. Ch. R. 205; 1 Johns. 577.

Byers disclaimed all right to the slave in controversy, and only pretended to hold the naked legal tille, as a trustee for the benefit of others. IS o decree was taken against him; none rendered in his favor; and his testimony was in fact against his own interest; because the effect of it was to divest the title out of himself. In all cases, a witness is competent to testify against bis own interest. 1 Greenleaf’s Ev. 410. We are unable to perceive any ground upon which he should have been excluded as incompetent; and entertain the opinion that his deposition was properly admitted.

According to the rule in Blakeney vs. Ferguson, 14 Ark. 642, the answer of Byers could not be read against his co-defendant, (Byers vs. Fowler, 14 Ark. 105,) and the allowance of it was no doubt erroneous; but in chancery, the rule is well settled, that if there is sufficient evidence to sustain a decree, besides that which is incompetent, a party cannot be permitted to derive any bene fit from that objection. Excluding the answer of Byers, still leaves sufficient competent evidence to maintain this decree.

The bill is founded on a claim, on the part of the complainant, to redeem the slave little Ben, or to accountfor him and his hire. It appears that Byers, as attorney for McKinney, had control of an execution against Stone, which was levied on the slave as the property of Stone. Eolsom, the defendant, had„an execution also, which was levied on the same slave, and cumberance. Stone was in embarrassed circums was the only remaining property, out of whicmjJ^i prospect of realizing these debts, and they amounted to more than its value. Byers, Eolsom, and Stone attended ■+1KE'. the latter appears to have been averse to the saleN without some right to redeem; and designed, as Byersuearned and believed, to run off the negro, and thus defeat the collection of the McKinney and Folsom debts. To prevent that, Byers succeeded, after a good deal of difficulty, in effecting an arrangement, by which he was to bid off the slave under these executions, and hold the legal title; that the slave was to go into the possession of Folsom, and remain on hire until his debt was satisfied; and then that Stone, or any one of his family, might, in a reasonable time, redeem the slave by paying the amount of the McKinney debt. This was the substance of the arrangement; and it was verbal. It resulted from the fear, doubtless well founded, •that, without it, the negro would be run off, or put out of the wa]; andindeed the conduct of Stone was such as not to commend him to the favorable consideration of a chancellor, or entitled him to the distinction of a law-abiding citizen; and were the facts less clear than they are, we should not hesitate to deny such a suitor any relief whatever.

Byers acted as the agent of Eolsom; took control of his execution; bid off the negro at the sale; and took the title in his own name, so as to have the control of him; which was no unnecessary caution, seeing that he was a sort of a mediator between hostile parties. Byers paid nothing towards his bid, except the costs of the two executions, it being understood that he was not to do so, but receipted for the amount realized on the Eolsom execution, as if it had been actually paid. There seems to have been arnis-understanding as to the extent and precise nature of the arrangement, as made on that occasion: Eolsom claiming that the slave had been purchased for his benefit, and was to be his, on paying the McKinney debt; leaving in Stone and family only a right of redemption within twelve months.

But there is no proof that any such arrangement was made; and the circumstances show that the only one which existed, was that set up in the bill and proved expressly by the deposition of Byers. In support of this view, it is to be observed, that the McKinney debt was discharged by Stone, and not by Eolsom at all; nor did the latter ever tender the amount of that debt, so as to make the contract which he sets up available, even supposing such a contract to have existed. It is true that Eolsom in his answer denies the arrangement, respecting this negro, as alleged in the bill; but then it is established by one positive witness and corroborating circumstances, and that is sufficient to overturn the answer, (Barraque vs. Siter, 4 Eng. 550,) and warrant the relief sought by the bill.

The real nature of the transaction was, that this slave was pledged or mortgaged for the payment of these debts; and when •they were discharged, the owner, Stone, had the right of redemption; because once a mortgage, always a mortgage. And Courts of Equity are inclined to construe contracts to be mortgages, rather than sales, whenever their real character may be doubtful. Scott vs. Henry, 13 Ark. 112.

Folsom has no reason to complain, because, by the arrangement, which was made, the means of discharging his debt was placed in bis own hands, and the debt actually discharged by the labor of the slave, and which, as shown by the evidence, was as valuable to him as money.

As Folsom failed to surrender the slave, he became responsible for his value, which, on sufficient testimony, was fixed at eleven hundred dollars; and also for hire, which was fixed by the Court at thirty six dollars and twenty-five cents a month, from the 8th day of January 1848, to the 19th of November 1851, amounting in the aggregate to one thousand six hundred and seventy-five dollars.

After giving the Folsom debt the credits admitted by him in his answer, the hire, up to the 8th of January 1848, extinguished the residue.

The value of the slave we do not consideras estimated too high. Nor can we say that the hire was put at an unreasonable rate, although we should have been satisfied with it, under all the circumstances, if it had been less. ¥e do notfeel warranted, however, in abating the amount of hire, or reversing the decree for excess; because the testimony of those best acquainted with the negro, fully sustains the finding of the Court. Indeed, some of them go beyond it. The negro seems .to have been very likely and of good habits, and an engineer and blacksmith, and in fact the preponderance of proof is that such a negro was worth eleven hundred dollars, and his hire worth what it was fixed at by the Court. Affirmed.

"Watkins C. J., not sitting.


source: Caselaw Access Project

author: Hon. S. H. Hemfstead, Special Judge,

license: Public Domain

text:
    Davis vs. Tarwater.
    A deed, sufficiently formal as a deed of conveyance, with Twhendum clause, declaring that the grantee shall have and hold the lots and appurtenances to his heirs and assigns forever, but with a covenant to make a good and sufficient deed with warranty of title when required, is a present conveyance of the fee, with a covenant for further assurance, and not a more agreement to convey.
    Upon a bill in equity by the purchaser of real estate for the rescisión of the contract of sale and re-payment of the purchase money, the complainant must show .a surrender of the property, or an offer to surrender it to the person entitled, and that the vendor can be placed in statu quo. The allegation that he had “abandoned and yielded the possession of the land,” is insufficient.
    A complainant, who seeks the rescisión of a contract, must do so in a reasonable time: and so, after more than ten years had elapsed from the date of the contract, and five years after the discovery of the imputed fraud, a court of equity will refuse to rescind the contract.

      Appeal from, Hempstead Circuit Cowrt in Chancery.

    Hon. John QuilliN, Circuit Judge.
    PiKE & Cummins, for the appellant.
    On the point that the instrument executed to Tarwater, wasaconveyancempresentí,and nota covenant or bond to convey in future, cited Chiles vs. Candy's hei/rs, 2 Dana 2i / Jackson vs. Bladjet, 16 J. JR. 172/ Jackson vs. Kipelbrack, 10 J. JR. 336/ Fisdale vs. Essex, JBJob. 34/ Baxter vs. Brown, 2 W. Bla. 973/ Jackson vs. Delacroix, 2 Wend. 433.
    Cubban, for the appellee.
    The words used in the deed: “ bargained and sold, conveyed and confirmed,” do not import a covenant of warranty. The statute, (Digest, 264, s. 1,) merely provides that the words “grant, gargain and sell,” shall "be a covenant of seizin in fee, free from incumbrances; Cee vs. Phamr, 5 Ala. 586/ and the statute being in derogation of the common law, must be strictly construed. Although there be words of conveyance in pwsenti, in a contract of purchase and sale of lands, still if from the whole instrument it is manifest that further conveyances were contemplated by the parties, it will be considered an agreement to convey, and not a conveyance;-and the intention is clear, from the stipulation, that Davis should, “ when required,, make a deed in fee simple with covenants of warranty.” Jackson ex dem. vs. Moncreif, 5 Wend. 26/ Smith vs. JSobmson, 13 Ark.;: Ives vs. Ives, 13 J.. Ii. 235.
   Hon. S. H. Hemfstead, Special Judge,

delivered the opinion of' the Court.

The first enquiry to be made, is, whether the instrument, executed by Aquilla Davis to George T. Tarwater, on the 19th of January 1839, was a conveyance of the four lots adjoining Spring Hill, or only an agreement to convey; in other words, whether the contract was executed or executory.

The intention, when apparent, and not contrary to any rule of law, will control; because the intent, and not the words, is the* essence of every contract. In the construction of deeds, we are-to consider the entire instrument, and not merely any particular part of it; and such exposition should"be given, as that every part of a deed may, if possible, take effect, and every word operate... 3 Johns. 394; 16 Johns. 178; 2 Bl. Com. 379.

The mere form of an instrument is not material, (2 Sumner 490,) and Kent says, a deed would be perfectly competent, in any part of the United States, to convey the fee, if it should be'to the-following effect: “I, A. B., in consideration of one dollar to me paid by C. D., do bargain and.sell to C. D., and his heirs, the-lot of land; (describing it.) "Witness my hand and seal.” 4 Kent 461, Any writing that identifies the parties, describes the land,, acknowledges a sale without reservation of the vendor’s right,, for a valuable consideration, and is sighed and sealed by the grantor, is a valid deed of gargain and sale. Chiles vs. Conely's heirs, 2 Dana 21.

The deed in question, is sufficiently formal. It contained the names of the grantor and grantee, expressed a valuable consideration, used technical words of conveyance fit and appropriate to pass the fee to the vendee and his heirs, and which would have been improper in a mere agreement to convey, and finally contained the hdben&um clause, declaring that the grantee should have and hold the lots and appurtenances, to his heirs and assigns forever. The language used was amply sufficient to convey an estate in fee simple.

The covenant, on the part of Davis, to make a good and sufficient deed with warranty of title, when required, connot certainly be construed so as to convert the whole instrument into an execu-tory agreement, because that would be to destroy a part of it, •and thus violate the rule that every part must stand, and every word operate if possible. It is to be regarded, then, as a covenant for further assurance. By placing that construction on the deed, the whole may stand; and this would seem to conform to the manifest intention of the parties.

Although not in form, it is essentially a covenant for further assurance, because the covenantor, to comply with such a covenant, would be obliged, as we take it, to make a deed, answering -substantially to the description as contained in that clause.

'The covenant, for further assurance, does not prove that a contract is executory; but rather the contrary. The general warranty of title, contained in ancient deeds, has been long disused, and a set of covenants substituted in its stead, which are generally inserted in conveyances, by those who think, with Lord CoKE, that it is not advisable to depart from the formal and orderly parts of a deed, which have been well considered and settled. Rawle on Cov. for Title, 164, 165.

These covenants are, (1) that the grantor is seized in fee; (2) that he has good right, and full power to convey; (3) that the grantee shall quietly enjoy the premises; (4) that the premises are free from incumbrances; and (5) that the grantor will make further assurance of title; the effect of which is, that the grantor binds himself and Ms heirs tó make all such farther assurances of the land, as shall be lawfully and reasonably required by the .grantee, or his heirs. (4 Cruise Dig. 408.) And all these -.covenants are probably contained in most English deeds, where there is not some more limited agreement. They pertain to complete «conveyances nf the fee to jpresentí, rath-er than to executory agreements.

Under our statute, the wordsgrcmt, barrga/m cmd sell,” import •the first four covenants above named, unless limited by express words. Digest, 264.

The case of Jackson vs. Blodgett, 16 John. 178, is aveiystrong one to support this deed as a present conveyance, and is directly to the point in hand. In that, the instrument in the form of a bond, conveyed the land for the consideration therein expressed, using the terms grant, bargain and sell, and then a clause was inserted to the effect, that the vendor .should, by a legal conveyance in the law, convey the land to the vendee and his heirs and assigns, as soon as he should be vested with the title. The court held the instrument to operate as a present conveyance, SpeNCER, C. J., in his able opinion, citing various authorities, amply -sustaining that view of the case, and moreover .¿bowing that it was conformable to reason. The doctrine as to leases, was referred to by way of illustration, and it was said that when there are •apt words of present demise, and to these are superadded a covenant for a further lease, the instrument is to be considered alease, -and the covenant as operating in the nature -of further assurance. 10 John. 337; 5 Term Rep. 165; Cro. Car. 207.

Perhaps the best proof that the parties intended this deed to •operate as a present conveyance, Is, that no period was fixed when the deed, alluded to in the clause, was to be made. It was only to be done when required, thus -evincing that the vendee was ■quite willing to rest, for the present at least, on the deed he had received with the possession; leaving it to future events to determine whether it would be necessary to make the demand or not; and which, in. point of fact never has been made at all, unless we are to consider this suit as a sufficient request.

Considering this deed, then, in all its parts, and to give effect to the whole, there can be but little, if any doubt, that it ought to be held as a present conveyance of the fee, with a covenant for* further assurance, and not as amere agreement to convey. When, this same instrument was before this court, in an action of covenant between the sanan parties, (2 Eng. R. 153, 157,) it was not deemed essential to determine whether it was a bond for title, or deed conveying the lands therein described; the court remarking, however, that “ were it necessary,., they did not conceive that it would be difficult to show that it was a deed of conveyance, with a covenant to execute, upon request, a good and sufficient deed in fee simple with warranty of title.”

Inasmuch as the incumbrance, created by the- mortgage to the Neal Estate Bank, cannot be removed at present, this bill has-for its scope and object, the rescission of the contract of sale between Davis and Tarwater, and the repayment of the purchase money, with interest to the latter. Passing several interesting questions discussed by counsel, we are to enquire whether Tarwater is- in a position to demand rescission, because if he is not, it would be-quite useless to ascertain in what cases,, and for what causes an executed contract may be rescinded.

■ There are two obstacles in the way of the relief sought by the-bill; first, that it does-not appearthat the vendee ever surrendered the land, or gave notice of an intention to. abandon the contract", and second, lapse of time:

The language of the authorities is uninformed, that he who seeks the rescission of a contract, must be in a situation to restore to the opposite party whatever he may have received from him; or, as more briefly expressed, he shall put his adversary in statu, quo. This- is the dictate of natural justice,- as well as a clear principle of law.. If the vendor cannot be placed m statu quo, the contract cannot be.rescinded. And the rule is the same, whether the rescission is sought on the ground of fraud, mistake, or for any other cause. McDonald vs. Fithian, 2 Gilman 269; 13 Ark. 182; Cunningham vs. Fithian, 2 Gilman 651. In tbe case of tbe rescission of a contract, it is well settled, says tbe court in Griffith vs. Depew, 3 A. K. Marsh. 180, “that tbe court ought to place tbe parties back in statu quo, as near as eafi be equitably done; that tbe vendor ought to refund tbe money with interest, and tbe vendee ought to restore tbe subject purchased with rents, and payment for waste, receiving credit for tbe valuable and lasting improvements be may have made. Williams vs. Carter, 3 Dana 201; Caldwell vs. Caldwell, 1 J. J. Marsh. 53.

In personal property, tbe rule is tbe same in actions at law. As where goods do not correspond with tbe order given, or with tbe sample, or are unsound, tbe purchaser ought immediately't© return them back to tbe vendor; or give him notice t-o take them back, and thereby rescind tbe contract. "Without this, be can not rescind tbe contract and recover back tbe price, (2 Kent 380; 1 H. Bl. Rep. 17; 1 Term Rep. 133) although be may sue for a breach of warranty without retiirning tbe goods. A party defrauded in a contract, has a’choice of remedies : be may stand on tbe bargain and recover damages for tbe fraud in an action at law; or be may rescind tbe contract and return tbe goods bought, and receive back what be paid -or sold. Campbell vs. Fleming, 1 Adolph. & Ellis 40. And this doctrine as to placing parties in stain quo, as nearly as possible, conforms to tbe civil law; and the application of a vendee to a court of equity to rescind a contract of sale, closely resembles tbe rescissory action of tbe civil law on tbe part of tbe buyer. .The object of this action is ’ to rescind tbe contract of sale, and it cannot be commenced but by virtue of letters of rescission obtained in chancery, by which a recission is_ directed, if tbe injury set forth by tbe buyer shall appear to tbe judge.

Tbe seller must render to tbe buyer tbe price which be has received, upon condition that tbe latter render him tbe estate sold; which must be restored in tbe condition in which it was found; with all tbe augmentations subject to tbe contract, whether natural or alluvious, or artificial,, as buildings erected upon the land. The seller, however, must make allowance for necessary repairs and erections, and the buyer is' liable for rents and profits, Pothier on Contracts of Sale, part 5, c. 2, sec. 374, 381, 382.

The duty and obligation of vendor and vendee, do not differ essentially, under our system and under the civil law, because under both, the vendee may obtain the purchase money with interest, and must restore the estate. And while he is accountable for rent» and profits, he may be reimbursed for necessary repair® and erections, and also for taxes and assessments.

And indeed it would be most extraordinary for any tribunal, professing to dispense equal and impartial justice between man and man, to allow a vendee of an estate to rescind a contract, recover the purchase money back, and neither restore, nor offer to restore', the estate.

Sir Edwakd SugdeN declares that where one party fails to perform a contract, the other, if he means to rescind it, must give a clear notice of his intention to do so. The case of Reynolds vs. Nelson, 6 Mad. Ch. Rep. 19, is to the same effect. 1 Sugden on Vendors, 279, 382; Hunter vs. Geridy, 1 Ham. 449.

And so with regard to a sale of personal property, where there is fraud, the purchaser, if he wishes to rescind the contract, must tender back the property, before he can bring his action at law to recover the consideration. And it is not enough that he give notice to the vendor, and call on him to come and receive his goods; but he must himself return them back to the party defending him, before any right of action accrues. Bain vs. Wilson, 1 J. J. Marsh. 202; Stewart vs. Dougherty, 3 Dana 467; Norton vs. Young, 3 Greenl. 30; Butter vs. Blake, 2 Har. & J. 353; Ketletas vs. Fleet, 7 Johns 331. Tender would doubtless have the same effect, and although the rule is less stringent in regard to real estate, yet in chief ingredients it is the same.

In Murphy vs. Officer, 8 Yerg. 502, it was held that, on rescinding the contract, the purchaser was bound to give up the land; and until he did so, an adverse title in himself, procured after the decree of rescission, could not be set up by him.

And in Fitzpatrick vs. Featherstone, 3 Ala. 40, it was expressly held, that a contract for the sale of land could not be rescinded, where the purchaser did not offer to return the land to the vendor.

This principle, so necessary to be enforced in these hinds of suits, is only a counterpart of the maxim, that he who asks equity must do equity.

It may therefore be asserted, as a rule well sustained by reason and authority, that if the vendee has gone into the possession of the estate, and wished to rescind the contract, he must give fair-notice of his intention to do so, and must surrender, or offer to surrender the estate to the vendor, or, in case of death, to him on whom the descent is cast. He has no right to abandon it to the mercy of the public without notice, because the inevitable consequence would be waste and dilapidation, even if should escape a, sale for taxes, and thus pass beyond the reach of vendor and ven-dee forever.

If after notice to the vendor, the possession is abandoned, the vendor can see that the land is properly taken care of, and taxes- and assessments paid, as they accrue, and if he neglects it, he cannot charge the vendee with unfair conduct. But in the absence of notice, and without the return or offer to return the land purchased, or showing that it can be restored, the vendee comes-into a Court of Equity with a poor grace to ask for the rescission of the contract, and under such circumstances is not entitled to it.

And it is for the person asking for the exercise of this highest power of a Court of Equity to show clearly, that he can restore the land on rescission, and that the parties can be placed in statu quo, and it is not for the opposite party to show that it cannot be done. 1 S. & M. 146. Contracts are not to be anuulled on slight grounds, and a clear case must be presented to warrant it. 1 S. & M. 443; 3 S. & M. 394; 5 Munf. 295. Now Tarwarter alleges in his bill that, immediately after he found that the land was incumbered, and that he had been deceived and imposed on, he “abandoned a/nd yielded the'possession of said la/nd.” lie does not state when, nor to whom, but as he avers that he ascertained in 1845, that the land purchased by him was embraced in the mortgage to the Neal Estate Bank, we may infer that that was the time of the abandonment, and that would give six or seven years as the length of his actual possession, according to the showing made by himself. This bill was filed in 1850, and who had the charge or control of the land during the intervening five years, or whether any one had, or whether the taxes were paid, or whether it could be restored when the bill was filed, or the decree pi’onounced, does not appear, and no notice appears to have been taken of that point by the Court below. The bill does not offer to- restore it; nor is there a shadow of proof that any such offer was ever made; and which of itself, according to the case of Fitzpatrick vs. Featherstone, 3 Ala. 40, is a fatal objection. As all pleadings must be construed most strongly against the party pleading, we must take it that the possession of the land was not surrendered to any one, as it is not stated to whom. It cannot be contended that the surrender was made to the legal* representatives of Davis, or his executrix, or that any notice was given to them, or any of them of his intention to abandon the contract. There is not the slightest foundation for such a surmise, and in fact none such has been made. It comes then to this, that Tarwater, choosing to abandon the contract in 1845, left the premises without giving notice to those interested, or offering to surrender the land; and five years after asks a Court of Equity to restore to him the purchase money with interest. It is very clear, from the facts and circumstances of the case, that he is not in a situation to demand it. If he was entitled to a rescission, the Court should have decreed the can-celation of the deed, and the restoration of the - land, so as to do full justice between the parties, and the decree is erroneous in any view in which it may be considered. But this form of the decree is less important, as we do not deem Tarwater entitled to> tbe relief asked.

We now come to consider tbe effect of lapse of time.

Tbe bill was not exhibited, until more than ten years bad elapsed from tbe date of tbe contract, and, according to Tarwater’s own statement, five years bad elapsed from tbe discovery of the-imputed fraud. No excuse is offered for this delay, nor bas it been explained.

A complainant wbo seeks tbe rescission of a contract, must show clearly tbe defect in tbe title, and that there bas been fraud, accident or mistake, and tbe remedy must have been- pursued in good time. Moss vs. Davidson, 1 S. & M. 112; Flecther vs. Wilson, 1 S. & M. Ch. R. 376, 134; Pintard vs. Martin, ib. 126; Ayers vs. Mitchell, 3 S. & M. 690.

A party seeking rescission, must do so in a reasonable time. Davis vs. James Exr’s., 4 J.J. Marsh 9; 7 Johns. 331.

And in Lawrence vs. Dale, 3 J. C. R. 42, it was said by chancellor KbNt, that if tbe law allowed a party to abandon a contract while im, fieri, be ought at least to act promptly and decidedly on-tbe very first discovery of tbe breach.

Tbe case of Roach vs. Rutherford, 4 Desaus. 126, is more in point, and in many respects resembles tbe case at bar. 'It was there decided, that tbe purchaser after having remained in possession more than five years without being disturbed, could not resist tbe payment of tbe purchase money.

A party bas no right to ly by for a long time for tbe purpose of first ascertaining whether be may not be able to realize a profit out of tbe contract, nor until tbe property, by a fall in prices, bas greatly depreciated in value, nor until tbe title to tbe property by neglect has become doubtful or impaired. 1 Gilman 269; 2 Gilman 651.

Where a person has b¿en guilty of negligence and slept on his rights, Courts of Equity will refuse to enforce such rights,, deeming that tbe best interests of society require that causes of action should not be deferred an, unreasonable time. Since tbe decision of this Court in Taylor vs. Adams, 14 Ark. 62, this can hardly be considered as an open question in this State. It was there said that when a party seeking redress is apprised of his rights, or if they be fraudulently concealed from him, whenever the fraud is discovered, or might reasonably have become known, he must assert his rights in Equity within the period limiting the analogous remedy at law, unless he come within some saving or .exception.

And it was also said that the objection that the claim is a stale one, may be taken at the hearing and when such a case is disclosed, the Court may-of its own motion deny relief to parties who have slept upon their rights.

hi ow it cannot be successfully controverted that, if Tarwater had brought his action at law, for the recovery of the purchase money, he would, on his own showing, would have been barred by limitation; so in analogy to the statute, he must beheld barred by the lapse of time when he comes into another forum.

Indeed, Equity will sometimes, under peculiar circumstances, hold a party barred of equitable relief when he is not of his legal right. Then it simply withholds its hand, and leaves a party to his remedy at law. Mason vs. Crosby, Davies R. 313.

Lapse of time is not founded upon statutory provisions, though the statute may be referred to at fixing a reasonable time for its operation. The rule is applied by Courts on a broad view of all the circumstance of the case. And even in cases where the demand is not barred by positive limitation, Courts of Equity refuse to interfere after a considerable lapse of time, from considerations of public policy and from the difficulty of doing entii'e justice. Nothing can call a Court of chancery into activity, but conscience, good faith, and reasonable diligence, and where these are wanting, the Court is passive and does nothing. Piatt vs. Vattier, 1 McLean 164; S. C., 9 Peters 415; McKnight vs. Taylor, 1 How. S. C. Rep. 168.

Without adverting to other errors which exists in the decree, we are satisfied, for the reasons above expressed, that it should be •reversed, and tbe bill dismissed at the cost of the complainant. ¡Reversed.

Mr. Chief Justice Watkins not sitting in this case.


author: Mr. Obief Justice WatKINS

text:
    Phelps vs. Henry & Cunningham.
    'The proprietors, having projected a town, laid it off into blocks and lots according to ■ét survey permanently establishing the initial point and designating the blocks and lots by stakes, and caused a map thereof to be recorded, and proceeded to sell the ■lots. Afterwards, a mistake in the survey being discovered, a resurvey is made, which is .generally acquiesced, in by the property holders and accepted by the corporate authorities of the town, though, not assented to by the purchaser o'f lot No. 2, the assignee of the original purchaser — who had bought the -lot and was put into possession according to the original survey, but after the resurvey accepted a bond for title describing the lot by number — by the resurvey lot Ho. 1 laps several feet over lot Ho. 2, the entire depth; and lot No. 2 laps over lot No. 3, &c., Held, That the lots must conform to the resurvey, and the prior purchasers hold accordingly.
    The principle, that quantity shall yield to course and distance in surveys, and that course and distance shall yield to natural objects or artificial monuments, is peculiarly applicable to irregular and large surveys, where quantity is not material: but where land is laid off into compact town lots, quantity is an object of importance, and when it is done according to a-regular plan, it is expected that purchasers will buy with reference to it.
    Questions in relation to locations in a new country, and in respect of projected towns, which have their first existence on paper, may be regarded differently from disputes between adjacent proprietors in cities, where existing foundations have been fixed by long acquiescence.
    The presumption in a Court of Equity, upon a question of limitation between the owners of adjacent town lots, is that they hold according to their deeds, notwithstanding a mistake in the actual division between them, unless after acquiescence for a long period of years, or the possession becomes hostile.-

      Appeal from Crawford Ci/remt Cowrt in Chancery.

    lion. B. H. Neely, Circuit Judge, presiding.
    "WalKER & GrREEN, for the appellant.
    The proof is that Brown and all who purchased at the auction sales, did buy by the stakes,, and with the understanding that their deeds describing the lots according to their numbers vested in them the area included within the boundaries indicated by the stakes: as in the case of the United States surveys, where the boundary lines actually run and marked by the public surveyors, are to betaken and considered as the true boundaries, whether they be right or wrong. Campbell vs.. Cla/rk,. 8 Missowi Rep. 553/ Gown aad others vs.. Pemil 1 Pet&rs C. C. Rep. 496;
    The deed to Phelps, and indeed all the deeds describe the lots-according to their respective numbers, and their boundaries ckn be proved even by hearsay evidence, Qlb).. The mistakes committed by the surveyor, cannot prejudice the purchaser of town lots,, when the boundaries are designated by the monuments erected on the lines run; and where town lots have been sold and held according to a survey, possession in respect to boundaries will be-respected. Ralsten et al., vs.. Miller et ad.. 3 Rand. 44, 49.
    Peke & Cummins, contra,
    argued’ this causé at length, contending that the whole survey was governed by, and started from one fixed point and a front line, neither of which has ever been changed, and must govern in ascertaining the boundaries and lines of all the lots; that in the bond for title to Brown, which stipulated for title in accordance with the plat, there are no calls for cotu’se and distance except by reference to the plat, and no calls at all for any stakes or natural boundaries other than the fixed beginning point. The bond calls for the lot as designated on the-plat. ' The intention, which was to run off the town with streets at right angles, must govern, and a mere blunder in the survey could not be allowed to mar tbe symmetry of tbe town, citing Jaekson vs. Wendell, 5 Wend. 146/ Jaekson vs. Wilkinson, IT J.P. 156/ Jadksonvs. More, 6 Gcwen V06/ Ohmowethvs. Haskel, 8 Peters 96/ JBwrela/y et al. vs. HowelVs Lessee, 6 Peters 516 / Lodgds Lessee vs. Lee, 6 Orcmch 281 ¡ Medveds Lessee vs. Wcd-.1ser, 4 Wheat. 444/ Ma/rm cl¡ Toles vs. Pearson, 2 J. R. 40/ Jaek-son vs. Ogdon, 1 J.B. 238/ Bogan vs. Leelvright, 4 Hen. <& M%mf.. 120/ Thomas vs. Patten, 1 Sh&p. 333.
   Mr. Obief Justice WatKINS

delivered tbe opinion of tbe Court.

Henry and Cunningham, tbe complainants in tbe Court below, •exhibited their bill in chancery against tbe appellant Phelps, tbe mayor and aldermen of tbe -city of Tan Burén, Jesse Turner and 'Others, tbe object of which was to settle boundaries of certain lots in block No. 13, in Yan Burén, and to enjoin actions of tres-p^s brought, or threatened to be brought by Phelps against tbe •complainants.

It appears that, in tbe year 183V, Thompson and Drennen, who are admitted to have been the owners of the land upon which Yan Burén is situated, determined to lay off tbe town of that .name, and proceeded to have the site divided into convenient blocks and lots for sale, with intervening streets and alleys for public use. The land bordered on the left bank of the Arkansas river, which there runs in a southeastwardly direction.

The plan projected by the proprietors was rectangular, fronting ■on tte river. They accordingly causéela straight line to be run -and established, corresponding with the general direction of the .river, and át a convenient distance from it, .so as to form what is ■called Front or W ater street; and at an arbitrary point upon that .line, they set a stake and established the south-east corner of what was to be Main street, to be projected at right .angles from the ■north east line of Water street; and which point bee.ame the south ■west corner'of one of the blocks fronting on Main street, next to the river. The line of Water street, so run and established, and the place fixed upon it for the starting point of Main .street, have never been changed, and, as they could at all times be identified and ascertained, are to be regarded as the base of the projected subdivision. The surveyor employed by Thompson & Drennen, then proceeded to run off Main street, and the other streets intended to be parallel with it, and at right angles with the north east line of "Water street, and also the cross streets parallel with and at right angles with Main and those streets leading from the river. As the survey progressed, stakes were driven in the ground to mark the corners of the different blocks, and also of each lot, according to the measurement made at the time. Every block was divided by an alley, ten feet in width, and all the lots were intended to be of the uniform size of 33 feet wide by 127 feet deep, and fronting on the streets leading from the river, except those next to the river, which were 125 feet in depth and made to front on Water street. The blocks were numbered in tiers, beginning on Water street, at the south west corner of the site. A pla^Jof the town, thus projected and surveyed, was made, and, on the21st of October, 1837, filed and recorded in the office of the clerk and ex-officio recorder of Crawford county. It does not appear that any field notes were made at the time the lines of the streets and blocks were run and measured, or any memorial kept of course and distance, or location of the stakes set by the surveyor, nor does it appear, from any memorandum on the plat, what the base of the actual survey was, but the plat as exhibited shows a rectangular survey as before described, with the names, width and dimensions of the streets and alleys, and numbers of the designated blocks and lots, delineated upon it, and the fact is abundantly proved, as admitted by the answer of the defendant, Phelps, that the extension lines were projected in accordance with the plan designed by the proprietors, from the north east line of Water street, and the point fixed upon it for the corner of Main street. ■ Soon after the survey and map were completed, Thompson & Drennen commenced selling lots by auction, and afterwards at private sale. In most instances, the auctioneer, and the persons accompanying him, moved about from block to block, and cried the lots, answering t o the description, contained in the plat, upon the ground, where the stakes indicating their location were visible to the bidders. On the 28th of June, 1838, the proprietors sold to one R. O. S. Brown, lots No. 1 and 2, in block 13, on the usual terms of sale, which were on credit, they agreeing to make title on the final payment' of his note for the purchase money. Lot No. 1 is at the south east corner of block 13, which is in the third tier from Water street, and fronting along the north west line of Main street. The adjoining lots - 3 and 4, in the same block, were owned by the defendant Turner. A large portion of the stakes remained standing for several years, after the original survey was made, and when Brown purchased the lots indieaied by the numbers on the plat, he went to the place where the stakes were pointed out to him by Drennen, as the corners of the lots in question, and he was put in possession of them. Subsequently, one Hazen became the owner, by transfer, of lot number 1, and at the February term, 1846, of the Crawford Circuit Court, he filed his bill, and at the August term of that year, obtained a decree for title to it against Drennen and the representatives of Thompson, who had deceased, and at the August term, 1848, it was sold under execution against Hazen, and purchased by Henry & Cunningham, On the 20th of June, 1841, Drennen, the survivor of Thompson, executed his bond for title to Brown, for lot No. 2, reciting and confirming the previous sale of it to him, and conditioned to make title on the receipt of the purchase money. In this bond for title, accepted by Brown, the lot is no otherwise described than as “a parcel of land situate in the town of Yan Burén, &c., and known, according to the plat of said town, duly filed for record &c., as the lot No. 2, in block No. 13, fronting on Main street 33 feet. ” On the same day, Brown sold his interest in the lot, and assigned the .title bond to the defendant, Phelps, who soon after built a house upon it, and at the February term, 1846, filed his bill, and at February term, 1848, obtained a decree for title predicated upon the bond of Drennen and the description of the lot contained in it.

Iii the year, 1842, it was discovered that the original survey was erroneous, that is to say, it did not correspond in its actual lines and distances, as run and measured, with the plan projected by the proprietors, or the plat filed in the recorder’s office; owing to carelessness, -it may be supposed, of the surveyor, there was a slight deviation in some óf the lines from a right angle. But the more important fact is, that the measurement going north •eastwardly from Water street, was inaccurate; whether because it was surface instead of horizontal, or because of a defect in the ohain. or line used, does not appear. The result of the measurement falling short, would be to derange the plan of the town, and ■diminish the size of some of the lots, unless the streets were infringed upon for quantity. In the same year, Drennen», in conjunction with the administrators of Thompson, the defendant Turner being one of them, caused a resurvey to be made, and a •plat of it, with .some additions to the town, was filed in the recorder’s office. This survey, by which several permanent monuments •of Stone were erected, is admitted to be accurate,- according to the plan originally projected, and assumes the first line of Water ■street and the starting point of Main street, to be the base of the extensions. The change made by it affecting these parties is, that the location of lot 1, ascertained by exact measurement, was found to be about four feet further from the river, than it was before understood to be, and it lapos over that much along the entire length of lot 2, in order to have its complement of front on Main ■street. In like manner, lot 2 laps over four feet on‘the adjoining lot 3, owned by the defendant Turner. Phelps never gave his consent, in any form, to the-new survey, but, so far as shown, it was acquiesced in by the prppoerty-holders generally, and recognized by the mayor and aldermen, who required the buildings thereafter erected and the laying down of poavements, to be in .conformity with it. And the recognition of the corporate authorities is to be inferred from the accepotance of the charter granted by the General Assembly, on the 24th of December, 1842, to incorporate the town of Yan Burén, so far as it contemplated that an authentic survey should be made and recorded under their direction, or adopted by them, if already done, and of the subsequent act of January 4th, 1845, incorporating Yan Burén as a city, with reference to the limits fixed by the town authorities,, and the survey and plat recorded in 1842. The houses built in Yan Burén, previous to that time, were, intended to conform to the original survey, and in some instants would be partially interfered with by the resurvey. Altogether, they exceed in number those erected after that time, but were mostly built of wood,, and not so permanent or valuable as the recent structures.

In the year 1849, Henry & Cunningham built a brick storehouse covering the entire surface of their lot No. 1; and conforming to the resurvey, it occupies a strip four feet wide, and the length of the adjoining lot 2, claimed by Phelps,, in virtue of his purchase, according to the original survey, and to which by his answer he asserted title, in opposition to that of the complainanis-Decrees fro confesso were taken against all the other defendants, and, at the final hearing, the Court below decreed in favor of the complainants, confirming the boundaries of all the parties-according to the resurvey, and giving to Phelps the full front and depth of lot No. 2, by requiring Turner, the owner of lot No. 3,. to remove the house adjoining that of Phelps, and which obtruded four feet upon his lot as fixed by the decree.

The opinion of the Court, upon the case stated, is that the decree appealed from is just and equitable, and ought to be affirmed. In coming to this conclusion, we are not unmindful of the correctness of the general proposition contended for, on behalf of tlie appellant; that where an actual survey has been made, calling for natural objects, marked trees, or any artificial monuments, the objects described will govern, in ascertaining the'boundaries of the tract conveyed according to the descriptive calls in the survey, in preference to given courses and distances, in which, from various accidental causes, errors may have occurred; and so again, that quantity, the least important matter of description in a deed, and seldom essential for any purpose, unless it can be construed into a warranty of the extent of area sold, yields to course and distance, where either cannot be made to correspond with another. But that principle is peculiarly applicable to irregular surveys, usually on a large scale, where natural objects or established corners become more important than course or distance, and exactness of quantity is immaterial, compared with the repose and quiet of a country. It must be admitted that if Thompson & Dren-nen had sold to the appellant, or to Brown,, the original purchaser, whose right he acquired, any isolated portion of their tract, and caused it to be surveyed off to Mm, and marked by monuments even as perishable as the stakes here used, the actual location on the ground would control in a conflict between that and any other subsequent survey. But where a tract of land is laid off into compact town lots, it is obvious that the quantity stipulated for becomes an object of importance, and' where it is done according to some well understood and regular plan, it is to be expected that purchasers will buy with reference to it. No one ought to have exclusive rights in preference to others. The public have an interest in the easement afforded by the streets, alleys, or landings, and ordinarily the corporate authorities are charged with the duty of preventing their symmetry and regularity from being marred, or the use of them obstructed by unsightly projections. Questions of this kind in a new country, and in respect of projected towns, which have their first existence on paper, may be regarded differently from disputes arising between adjacent proprietors in cities, where existing foundations have been fixed by long acquiescence, and where it may be assumed that the location of any one street or corner is as correct as another. There if streets are to be widened, or obstructions removed, it is done upon some equitable principle of compensation by the public at large, or those more immediately benefited, to the person, who is to be deprived of his property. But the purchaser of lots in a new town, designed to be built up according to a regular plan, open to his inspection, must have some concern in assuring himbelf, before he builds a house, of the correctness of its location. Errors may occur from carelessness, or inattention, without any fraud of intentional wrong being imputable to any one, and nothing of that kind is alleged here. Thm appellant insists that Brown, the original purchaser of both lots, bought by the stakes; but it cannot be doubted that he bought the lots indicated by the numbers and description on the plat shown him and with reference to a consistent whole, as well as by inspection of the stakes, which he supposed, and were intended to mark the boundaries of the lots in question. If so far deceived as to lessen materially the value of his purchase, he might have recourse upon the vendors for damages, or obtain a rescission of the contract, or he might have a just claim for compensation, upon the corporate authorities, if his improvements had been improperly located by their direction. But conceding that such-was the understanding of Brown, at the time of his purchase, the contract between him and the original proprietors became merged in the bond for title, which he subsequently accepted from them, and the rights of the appellant, as assignee of Brown, depend upon the terms of the bond, and the decree for title which he obtained in fulfillment of* it. That called for a particular lot of a certain extent and front, as designated upon the recorded plat. "Where a map is projec. ted from the field notes of a survey, of. which it is a, representation, a sale by the map is a sale according to' actual survey, on the supposition that the courses, distances and objects called for, are correctly delineated upon it. But, in this instance, the plan preceded the survey, and the map was a representation of the plan instead of the survey, of which no memorial was preserved, except the planting of corner stakes; and in the event of their removal or decay, the survey so called could not be retraced, but might be renewed, in conformity with the original plan, by starting from the initial line established on "Water street. Wfien the government of the TJnited States adopted the system of square surveys, dependent upon arbitrary base lines, and in which a regular consistent plan precedes the survey, it was deemed advisable to provide against-discrepancies between the practical result and the theory, by tbe enactment of February 11th, 1805, to the effect, that the lines and corners actually ran and marked, the courses, distances and areas returned, should be held and remain as permanent and true, without regard to mistakes and errors, which may afterwards appear to have been committed by the surveyors, in endeavoring to conform to the general plan.

The question of limitation argued by the counsel for the appel-lees, does not seem to be relied upon by the appellant. The bill was filed in April, 1850, and no contest about the right to the possession of the strip of four feet in controversy; arose until 1849, when Henry & Cunningham built their store house upon it. Admitting that Phelps was in peaceable possession of lot 2, since June, 1841, and under a claim of title, the statute of limitations then in force would not avail him, even if it applied to a case of this kind. The presumption in a Court of Equity would be, that he and the owners of adjacent lots held according to their deeds, notwithstanding a mistake in the actual division between them. An acquiescence, for a long period of years, in such a division,. would raise a presumption that it had been originally agreed upon, and so ought not to be disturbed. But where the possession of land is held without title or claim of right, and only in ignorance of the true boundary, the intruder will be entitled to the-protection of an adverse holding, computing it from the time when, his possession became hostile by some unequivocal act, such as a refusal to move. Affirmed,


author: Mr. Chief Justice WatKINS

text:
    Daniels vs. Street.
    Where a defendant in chancery, avails himself of whatever benefit he could have by means of his sworn answer, without objecting the want of jurisdiction at the hearing; and raises that question for the first time in the appellate court, the court would lay hold of any vestige of chancery jurisdiction before it would dismiss the cause, and send the plaintiff, to begin anew, in a court of law.
    'There can be no doubt of the vendee’s right to recover compensation of his vendor, for a breach of warranty, upon proof that he has lost, or been deprived of, the beneficial enjoyment of the property, by means of a title paramount, though the property, being negroes and having volition, were seduced away from him, and he was placed in the attitude of plaintiff, instead of defendant.

      Appeal from Ashley Owcmt Cov/rt in Ohcmce/ry.

    The Hon. Shelton "Watson, Circuit Judge.
    Pike & Cummins, for the appellant.
    There is no prayer in this case, for a reformation and correction of the bill of sale ; nor under the prayer as connected with the special relief prayed, •can a decree be rendered for such correction. 1 Bibb 468 ; 2 Ath. 3; lb. 141; J. R. 590; 16 Ret. 194.
    There is no proof of notice to Daniels, of the suit in Alabama, as would render the proceedings conclusive against him, (3 Watts 306; 9 Lou. Rejo. 575; IS Wencl. 449,) and if there were, the recovery in Alabama is no evidence that the recovery was on a title paramount. 4 Oond. Rep. 43.6 ; 4 Mass. 349; 9 Cow. 156 ; 3 Bibb 280 ; 2 H, Hemp. 190 ; 3 Yerg. 403 ; 6 8m. & McW. 85 ; 10 Ala. 17. Hence the proof here of good title destroys the effect of the recovery.
    Tell, contra.
    It is the peculiar province of a court of chancery, to relieve against mistakes in drawing instruments of writing. Cook vs. Preston,■ 2 Root 78; Elmore vs. Austin, ib. 415. Remaster vs. Burkhea/rt, 2 Bibb 29; 3 /. J. Mcvrsh 190; ib. 232.
    After a party baa once answered to a bill in chancery, it is too late to urge that the opposite party bad a remedy at law; unless tbe court of chancery is wholly incompetent to grant the relief. sought by the bill. Crandin vs. Leroy, 2 Pcdge 509 ; JRa/w-ley vs. Cramer, 4 Cowm 717.
    If a writing is so framed or drawn by fraud, accident, or mís-tate, as not to express the true intent of the parties, chancery will relieve by letting in parol evidence to explain it. Anderson's Ex. vs. Bacon, .1 A. RR. IRan-sh. 50; Ma/rtinvs. Lewis, 1 ib / 3 Conn. Rey?. 146 / 6 Rla/r. db John. 24.
    In a sale of personal property, it is not necesssary to suffer an eviction to enable the party to recover; the vendee has his action at law without it. Payne vs. Rolden, 4 Bibb. 304 ; Read vs. Stratton, 3 Ilayw. 159 ; Raws of Slcmery 149.
   Mr. Chief Justice WatKINS

delivered the opinion of the Court.

The appellee exhibited his bill in chancery, against the appellant, setting forth that, on the 28th of July, 1843, in the State of Alabama, the defendant had sold, and delivered to him, four negro slaves, for the consideration of three thousand dollars then paid and satisfied, partly in certain debts due. by the defendant, or for which hehad become responsible as security, to the heirs of Jesse Street, of whom the complainant was one, and the residue in cash; and the defendant Daniels, at the time, executed his bill of sale, which was exhibited, under his hand and seal, whereby he declared, that he had that day, bargain ed and sold the four slaves, therein described, for the consideration above mentioned, and covenanted to warrant and defend the same from the just claims of all other persons whatsoever: but that the “ complainant,” either by fraud or mistake, omitted to insert the name of the “defendant ” therein as vendee, in the bill of sale; though it was intended to be made to him as the purchaser and was delivered to him as such. But the defendant, at the time had no title to George and Solomon, two of the negroes; and one Alfred Tann, claiming them adversely, secretly contrived to get them out of his possession, so that he was obliged to, and did, shortly afterwards, on the 20th, of April, 1846, institute his action of detinue in the Circuit Court of Sumpter county, Alabama, against Tann for their recovery, and which suit he caused to be diligently prosecuted up to the 12th of May, 1849, when the negroes were adjudged to be the property of Tann, a transcript of the record being exhibited. The defendant had in the meantime removed to Arkansas, and the complainant avers that the defendant promised 'him, that if he would go on and prosecute his suit with due diligence against Tann, and if he lost the same, he, the defendant, would pay him for the two negroes in question, and all attorney’s fees and costs that he was compelled to expend about the suit, and that the defendant after-wards induced him to come out to Arkansas, under promise of paying him for the negroes, and the expenses and costs, which he had incurred. The complainant represents that, in the trade with the defendant for the four negroes, George andjSolomon were estimated at sixteen hundred dollars though worth a thouand dollars each, when Tann clandestinely obtained the possession of them, and the service or hire of each, was worth one hundred and fifty dollars a year from that time forward, and proceeds to set forth the items' of costs, attorney’s fees, and expenses incurred by the complainant in the unsuccessful prosecution of the suit against Tann. The prayer of the bill is, that the defendant berequired to admit the consideration and execution of the bill of sale to complainant, and the omission above menitoned considered as supplied therein; for decree against defendant for the value of the two negroes and their hire, and the amount of costs, attorney’s fees and expenses incurred by complainant, and Jpr discovery and general relief.

The chancellor, who rendered the decree appealed from, must have been unfavorably impressed with the answer of the defendant, which is, in some material matters respecting his knowledge of the pendency of the suit in Alabama, overturned by the evidence. And so in regard to the alleged omission, by mistake, or inadvertance, of the complainant’s name in tbe bill of sale; while he admits the sale or transfer of the negroes, and at the price stated, he denies that there was any mistake, and attempts to explain it in a manner which is unsatisfactory,* and contains internal evidence of being improbable. True there was a mass of testimony in the cause, and much of it conflicting; but we think the chancellor was justified in ascertaining, as he did, the main facts to be, that the defendant sold and intended to warrant the title of the negroes to the complainant; that the two negroes in question were taken at the estimate of sixteen hundred dollars; that Tann, an adverse claimant, contrived to obtain [possession of them secretly, so that the complainant was compelled to bring an action at law to recover them. That, in prosecuting that action, he relied upon the title of this defendant, Daniels, and that he was defeated in the prosecution of thesame, because of the adverse title older and puperior to that of Daniels, there relied upon by the complainant, and so lost the negroes; that the defendant in Arkansas was apprised of those facts, and advised about the prosecution of the suit against Tann, and furnished to an agent, who' came to Arkansas, on his request for that purpose, documents and evidence of title to be used by Street on the trial in Alabama, and gave him assurances of indemnity in case he lost the negroes; that Street prosecuted the suit in good faith with the assistance of two eminent counsel, whose fees he paid, and also the costs of the suit, which was adjudged against him.

The equity of the case appears to be with the complainant, and the decree of the chancellor, requiring the defendant to pay him the sum of sixteen hundred dollars, with interest at six per cent, from the time he instituted the action of detinue against Tann, and two hundred dollars the actual costs of suit, ^ot including counsel fees or other expenses incurred by him, making an aggregate of twenty-four hundred and twenty-four dollars, cannot be objected to as excessive.

It is true, as contended for the appellant, thát the court below did not formally decree the correction of the mistake, though al-legecl and proven, and implied in tbe terms of tbe decree, so that the complainant appears to have obtained the substantial relief sought, being a compensation in damages for a breach of warranty, in spite of the mistake or disregarding it. Admitting the complainant could have had a remedy at law, the question of jurisdiction is now, for the first time, made in the appellate Court, Such being the case, where there has been a resort to chancery in the first instance for relief, and it has acquired jurisdiction by the submission of the defendant, to answer and make the discovery prayed for, and he has availed himself of’ whatever benefit he could have by means of his sworn answer, without objecting the want of jurisdiction by plea, answer, or motion at the hearing, the appellate court should lay hold of any vestige of chancery jurisdiction before it would unravel the proceedings, direct, the cause to be dismissed, and send the plaintiff to begin anew in a court of law. See Price vs. The State Bank, 14 Ark. 55; Cockerill vs. Warner, Ib. 354.

"We are not required to decide the questions argued, whether the notice to call in the warrantor', to maintain the title he has conveyed, should not be in writing, or whether any such notice can be effectual, if given to the warrantor in another jurisdiction foreign to that in which the suit is pending. And it may be conceded, that the notice or demand upon the warrantor, to prosecute-a suit for the recovery of personal property, of which the ven-dee, subsequent to the sale, may have lost the possession, is an anomaly not-falling within the contract of warranty to defend the title, and, imposing no- obligation upon the warrantor to obey it, it may even be supposed that the defendant, in this particular case, is not concluded, by his voluntary participation, in the suit instituted by Street, in Alabama, and that the record of that suit would be no further evidence against him, than to establish the fact of the existence of the judgment there rendered; but there can be no doubt of the vendee’s right to recover compensation, for a breach, of warranty, upon proof that he has lost, or been deprived of, the beneficial enjoyment of the property by means of a title adverse 'and paramount to that conveyed to him by his vendee. The complainant ought not to be placed in a worse position, because the negroes, having volition, were seduced away from him by Tann, so as to place him in the attitude of plaintiff, instead of defendant, and the covenant of warranty would be equally available to him, if the failure to recover, or the recovery suffered,, was owing to a want of title in the vendor. Affirmed.


author: Me. Chief Justice WatKINS

text:
    Cain vs. Leslie.
    0., the purchaser of an improvement on public land subject to entry, and L., who is security for the purchase money, enter into a parol agreement that L. shall advance the money to enter the land, and shall enter it, and hold the legal title as security for his advance and for his seeurityship: L. makes the entry accordingly: Held# That he holds the land as trustee, and equity will enforce the performance of the agreemeht.
    A sale of an improvement on public land, is recognized by statute, and the purchaser acquires a possessory right, which the law protects, and which is good against every body but the government or its grahtee.

      'Appeal for Hempstead Owomt Court m Chancery.

    Tbe Hon. SheltoN WátsoN, Circuit Judge.
    ■ CukRAN & Gallagher for tbe appellant.
    Tbis case falls clearly within tbe principles recognized and settled in the case of Hector vs. Keatts, 1 Ark. Hep. 191.

      PiKE and CuitRAN, contra.
    The agreément between Cain and Leslie, was without any valuable or meritorious consideration; and equity will not enforce a voluntary -agreement. 3 Story Eg. Ju-ris. 430, seo. 43, n. 3/ 18 Ves. 84/ 4 J1 0. R. 497/ 1 Gowen Rep. 711. In this case, tbe very essence of a contract is wanting; there is no mutuality, no reciprocity in the contract. 2 Story’s Eg.. Jv/ris. 60, n. 2. There is no time specified in which the contract is to be performed, nor is the agreement in writing. It is a mere parol agreement, indefinite as to time, and within the statute of frauds. Eig. 540, seo. 1/2 Story’s Eg. Juris. 60, seo. 751, 752; 1J. G. It 273.
   Me. Chief Justice WatKINS

delivered the opinion of the Court.

The substance of the bill of complaint in this cause, which was adjudged insufficient upon demurrer in the Court below, is, that, in the year 1851, the complainant Cain purchased of one Start an improvement on a certain tract of public land, belonging to the United States, for the consideration of one hundred dollars, of which he paid twenty-five dollars, and gave his note for the residue, being seventy-five dollars, with the defendant Leslie as security. The improvement consisted of between five and ten acres o'f cleared land, with a comfortable loghouse, and out buildings upon it, of which the .complainant was put in possession. That, in October, 1852, Leslie, professing to be uneasy about being security for complainant, and at the same .time his friend, and disposed to assist him in purchasing the land, proposed that he, Leslie, would advance the amount of money required to enter it, at the land office; and would mate the entry in his own name, as a means -of indemnity against loss, in respect of his securityship, and the purchase money to be advanced, and that when the complainant would pay him the amount of their joint note to Start, so that he might discharge it, and refund the entrance -money with interest, he would hold the title to the land and improvements in trust for the complainant, and convey the same to him by a valid deed. That the complainant being poor, not having the amount of money required to pay for the land, desirous to save his improvements, and fearful that some other person might enter the land, and deprive him and his family of their home, and confiding in the representations and promises of Leslie, consented to the arrangement proposed, and furnished him with the numb el’s of the tract, and authorized him to enter it at the land office in the way proposed and agreed upon; -and which was accordingly done. That complainant continued in possession, and-ón the faith of the contract with Leslie and his promise to make a deed, on payment of those sums of money, went on to clear more land,, and make additional improvements thereon. That, in the month of January, 1853, Leslie conveyed an undivided half of the tract in question to the other defendants, Steele and Mc-Fall, with intent to cheat and defraud the complainant, and put it out of his power to obtain a title. That Steele and M'cFall, being unfriendly with complainant, had confederated with Leslie to propose to enter complainant’s improvement for him, and them induced Leslie to convey an undivided half of it to them; their object being to force the complainant to abandon the place, on pay them a high rent, or purchase their half at an exorbitant price, and further, to compel him to pay them some money which he did not justly owe, and of all'which designs on their part, Leslie was apprised. That, in the early part of the same year, Steele and McPall notified the complainant, that they would require him to give security for the rent of their undivided half of the-place, or else surrender possession of it to them. That complainant, as soon as he could raise the money, tendered to -Leslie the full amount of their note to Start, and the hundred dollars advanced to enter the land, together with the interest accrued on both of those sums, and requested him to comply with the agreement by executing a deed then prepared and presented' to him conveying the land to complainant. That Leslie would not receive the money or execute the deed. Prayer, that the defendants be decreed to hold the laud as trustees- for complainant; that they be compelled to accept the money tendered, and execute proper conveyances to vest title in complainant.

The bill makes out a stronger case for relief, upon the facts confessed by the demurrer, than that of Keatts vs. Rector, 1 Ark. 391, where specific performance of a parol agreement respecting an interest in land was decreed, .and comes directly within the principles there adjudicated upon the construction of the statute of frauds. It is true, that the complainant, not .having a right of pre-emption, Leslie or any other person was at liberty to enter the land with the improvements upon it, and eject the occupant ; and that any subsequent promise to compensate him for his improvement, would have been without consideration. But the sale of improvements on public land is recognized by statute, and the complainant, by his purchase from Start, acquired a pos-sessory right, which the law .protects, and good against every body but the government or its grantee. Though a mere chattel interest, a possession held by the sufferance of the United States, it was a sufficient consideration for the note given to Start; as was not doubted in Nick's heirs vs. Rector, 4 Ark. 252; see also Brock vs. Smith, 14 Ib. 431, and cases there cited. The equity of the complainant consists in the fact, that relying upon the agreement, which was designed to be, as it was, immediately executed, he relinquished the undoubted privilege of entering, or causing it to be done by some other person for his own benefit, the land which included his improvement. Begarding him as being up to that time an intruder upon public land, though it was in market under a standing offer of sale, then, if there was no agreement, be became at once a trespasser liable to be evicted by Leslie. There was indeed no change of possession, for being in, he continued to occupy. But his possession became for the first time •lawful under the title acquired from the government, and with express reference to the agreement, and upon the faith of it, the complainant went on to clear more land and make additional improvements, without objection from Leslie.

Taking into consideration the other allegations in the bill, of confederacy between tbe defendants to defraud and injure the complainant, it seems to be clearly a case where, unless tbe agreement be performed, an unconscionable fraud and deceit will bave been practiced upon tbe complainant.

Decree reversed, and tbe- cause remanded,, with instructions to overrule tbe demurrer.


author: Hon. S. H. Hempstead,- special Judge,

text:
    Trustees of R. E. Bank vs. Bozeman et al.
    The Real Estate Bank brought an action at law, on a protested foreign bill of exchange;, against the acceptor and endorsers, who pleaded mora assumpsit, but afterwards filed, their plea, puis da/rrien continuance, that the plaintiff had assigned the bill to certain Trustees. Upon a bill in chancery by the Trustees, for the recovery of the bill of exchange, Held: That the endorsers were not estopped by the plea, puis datrrien continuance in the case at law, from objecting want of notice of non-payment and protest.
    A defendant in chancery, legally served with process to appear, is bound to take notice of any subsequent amendment of the bill, and answer any material allegation, and if he fails to do so, the complainant is entitled to a decree pro cimfesso.

    But if the complainant does not prosecute his bill with due diligence against a defendant failing to answer — as where ho does not take a decree pro confesso against him, — and proceeds against the other dfefendant, and upon the merits, he is not entitled-to a decree against the defendant answering, the court may well dismiss the bill as to. all.

      Ajypeal from PulasJd Owowit Court'm Chcmo&ry.

    Tbe Hon. "William: H. Eeldd, Circuit Judge..
    PiKE & CummiNS, for tbe appellant.
    Tbe- question wbicb we present is, whether it was necessary to aver, or prove tbe fact of notice, and whether Bozeman can be allowed, after bis plea j¡ná»

      da/rrien continuance, to insist tbat there was no notice given to Mm.
    The plea puis da/rrien continuance waived all- previous, pleas, and every thing is confessed except the matter contested by the pleayms. Morris vs. 6Wr,19 Wend. 699; 2 Wmd. 300; 10 Wend„ 675/ 14 Wend. 161/ 1 Salic. 178 / Oro. Miz. 49. The suit in chancery is in the nature of an equitable soi. fa. to revive and continue the suit against the defendants, in the names of the trustees, and Bozeman could not avoid his confession of the issue, which he had made when he filed his plea jrnis darrien continuance. As to the effect of confessions and admissions, see 1 Oreenl. Ev.‘ sec. 27,169/ 1 Mees, dé Weis. 508 / Oresley onEq. Ev. 349 / 2 Gowens EMU. n. 192, 331.
    CukRAN, contra.
    Admitting that the plea puds da/rrien continuance in the suit at law, was a waiver of the previous pleas, and that if the matter of the plea had been determined against the pleader, it would have been a confession of the matter in issue, contended that if the chancery suit were a continuation of the suit át law, the defendant is not estopped by the plea, because it was not determined against him. Bac. Abr. 479/ Oro Eliz. 49/ JTelv. 181. That if the plea had been adjudged insufficient, the defendant was not precluded from relying on the'defence of want of notice in his answer, and referred to the case of Heyfron et al. vs. The Miss. Union Banh, 7 8m. dé Ma/r. Rep. 434, decided upon a statute like that of this State allowing the defendant to plead as many pleas as he may tMnk proper; and denied that any confession or admission in pleading, would conclude Bozeman from denying, in another action, the want of notice.
   Hon. S. H. Hempstead,- special Judge,

delivered the opinion of the Court.

The object of this bill was to obtain payment of a bill of exchange, drawn by Gray and Turner on Simeon Buckner, the 1st of May, 1840, payable nine months after date, at the Canal and Banking Company, New Orleans, Louisiana, which was accepted •by Buckner, endorsed by Michael Bozeman and Badford McCar--.go, and discounted by the Beal Estate Bank, for the benefit of Buckner; and was protested for non-payment. The bill was for ■the accommodation of Buckner.

On the 17th of July, 1841, suit was instituted on the bill, in Pulaski Circuit Court, against all the parties, by the Bank, as holder and endorsee, and afterwards the defendants Cray, Turner, Buckner, Bozeman and Me Cargo, plead non-assumpsit to the action ; and issue was made up on that plea. At the September Term, 1842, all the defendants pleaded puds darrien continuance, '.that after the commencement of the suit, the bank had assigned the bill to trustees; to which the bank replied, that the bill was assigned by deed and not otherwise; to which replication the defendants demurred. No further -step seems to have been taken an this suit.; but it is alleged that, by consent of parties, it was :to stand and abide the decision of the Supreme Court on a similar replication in another suit. This however is denied in the answer of Bozeman, and not proved. As held in Buckner vs. Real Estate Bank, 5 Ark. 536, this was a good replication and sufficient to avoid the plea; and if the case had progressed, the demurrer must have been overruled. Biscoe vs. Sneed, 6 Eng. 104.

On the 2d of April, 1842, while that suit was pending, the 'bank assigned all her assets, choses in action, property and effects to trustees, (Conway Ex parte, 4 Ark. 302;) and on the 29th of July, 1845, the corporate franchises of the bank, on a writ of quo loammic, were, by the definitive judgment of this court, declared forfeited and seized into the hands of the State. The State vs. The Real Estate Bank, 5 Ark. 595. Thus ended her corporate existence, and she was no longer able to sue in her own name.

The trustees, having no adequate remedy at law, were obliged to resort to a court of chancery, and accordingly the present bill was filed, on the 2d of January, 1845, and was subsequently amended, which was answered by Bozeman only; and the case was heard on the bill, answer, replication and exhibits, without testimony ; and the bill was dismissed.

The principal question is whether the complainants were entitled to relief, as against the endorsers, without averment and proof of notice.

For the complainants, it is insisted, that the plea of non-assump-sit in the suit at law, put in issue the fact of protest and notice, and that the effect of the plea, puis darrien contmuance, was to displace that plea, and leave only the single issue as to assignment after suit instituted. In other words, that it operated as-an admission of notice, and that the parties are estopped from setting up that defence in this suit. "Where the plea puis da/rriem continuance goes to the whole action, there can be no doubt that, it is a waiver of previous defences ; and that by operation of law every-thing is confessed, except the matter contested by the plea. puis. 1 Salk. 178; 1 Ld. Raym. 693; 2 Wend. 300; 10 Wend. 680; 19 Wend. 699.

The reason of the rule, originally, was to attain singleness of issue, and prevent prolixity and confusion in pleading; but it never was any thing else than a strict technical rule, and as such, has been maintained. As an admission in the suit, in which it was interposed, it was doubtless equivalent to proof of the fact admitted. But when we come to apply it in another proceeding,, and to claim that the party is equally estopped by it, quite a different question is presented.

Now it is to be remarked that estoppels are not favored; because the truth may be excluded,, (4 Mass. 181; 1 Greenl. Ev. 22,) and more especially where the- effect would be to prevent a just defence.

And it sounds strangely in a court of equity, to hear a technical estoppel insisted on, to make out a case against a surety, as-Bozeman appears to have been in this- affair.

It is no doubt perfectly correct doctrine, that a party, who puts-himself on one issue, admits all the rest, and could not controvert such admission -by proof. It is called an admission in pleading;, and becomes effectual in the suit in which it was made, but certainly, on neither principle nor authority, could it be used as evidence in another suit or proceeding. -And to make the principle applicable, it is contended by the counsel of the appellants, that this suit is in the nature of an equitable soi. fa. to revive and continue the suit against the defendants in the name of the trustees. But we think it must be regarded, as a regular bill in chancery, praying discovery and relief; and the gravamen of which is the collection of the bill of exchange. It necessarily contains a history of the proceeding at law, and the extinction of the corporate existence of the bank, and the failure of the remedy at law, as a reason for coming into a court of chancery, and without which indeed there would be a clear want of jurisdiction. 6 Eng. 113. We are not able to regard this proceeding as a mere continuation of the suit at law; because, to say nothing of, the anomalous character of sucha proceeding, — partly at law and partly in chancery — no authority hasbeen produced to showthat it should be so treated; and it seems to us that it would be impossible to view it as a part of the other proceeding, without disregarding plain and well established principles of law.

It is then a separate and independent suit in chancery, brought in consequence of the abatement of the other; and whatever admission might have been made, in pleading, in that suit, iteannot be used as evidence in this. It follows that Boxeman was not estopped from showing that he did not owe the debt demanded ; and as notice to him was neither averred nor proved, and moreover was expressly denied by him, the dismissal of the bill, as to him, was proper and correct.

Notice of' the dishonor of a foreign bill, is necessary to charge either the drawer or endorsers with its payment; and if it is not duly given, they will be discharged from all liability. Story on Bills 381. And the protest and notice are material averments; and an omission to aver notice, or some excuse for failing to give it, is said to be fatal even after verdict. Chitty on Bills 576; Rushton vs. Aspinall, Dougl. 679; 7 East 231.

For this reason, no decree could be had against Gray and Me-Cargo, on the original bill, because it was silent as to notice. Independent of that, McCargo was not served with process in such manner as to make him a party to the suit. No decree pro eon-fesso, was taken against either of them. But Gray was regularly served with process; and although there did not appear to be any equity against him on the original-bill, yetan amendment was filed averring that the bill of exchange was drawn, accepted and endorsed by the parties, with a full knowledge that Buckner had not, nor would have, funds in New Orleans, to meet it at maturity ; that the drawers had no funds in the hand of Buckner, or at the Canal and Banking Company, to meet the bill. This allegation as to a want of funds, was met by the answer of Bozeman, and not being proved could not affect him. But Gray, who was one of the drawers of the bill, and on whom a subpoena in chancery had been duly executed, was bound to answer it without any new subpoena. Digest 233. Having failed to do so, the complainants were entitled to a decree jpro eonfesso against him, if they had sought it at the proper time. But they suffered the case to progress to a hearing as to others, without asking it, although nearly two years had elapsed from the filing of the amendment. In fact, they appear to have abandoned the prosecution of the suit, as to all parties except Bozeman; and as it is competent for a court to dismiss a bill, which has not been prosecuted with due diligence, we think on the whole case that the decree ought to be affirmed. Affirmed.

Mr. Chief Justice WatKINS not sitting in this cause.


author: Chief Justice WateiNS

text:
    Baker vs. Hollobaugh.
    A verbal agreement for a division of public land, when either party should'enter it; btít indefinite as to time, where no trust is created between the parties, and there are no ■peculiar circumstances that would make it unconscionable for either party to resist a specific performance, is not entitled to favorable consideration, because clearly against public policy.
    The Court, in the exorcise of an equitable discretion to grant or refuse the specific performance of contracts, should refuse to enforce a voluntary agreement resting in parol, for the sale of land, where the agreement is not clearly and distinctly proved; or where the complainant fails to allege any sufficient equitable circumstances of fraud in the defendant, inducing hardship and loss to himself, unless the agreement be specifically performed.
    It would not be an infringement of the salutary policy of the statute of frauds, to decree a specific performance of a parol agreement for the sale of land, as between the parties to the agreement, to the extent of the admission, in the answer, though differing in some degree from that charged in the bill, where the statute of frauds is not relied upon as a bar to the relief.

      Appeal from Searcy Circuit Court in Oha/ncery.

    Tbe Hon. B. H. Neely, Circuit Judge.
    S. IT. Hempstead, for tbe appellant.
    1. Tbe agreement between tbe parties to tbe conditional line between them, was made when tbe lands belonged to tbe United States, and so tbe agreement was utterly void. (1 Scam, lié, ”170, 396, 472/ 5 JBlachf. 64/ 1 How. Miss. R. 150/ 5 Eng. 560/ Moyd vs. Rides, lé Arid) No agreement as to tbe public lands can be binding so as to affect tbe legal title of tbe proprietor.
    2. Tbe establishment of a boundary by partition, or otherwise, is within tbe statute of frauds, and to be valid must be reduced to writing. Dig. 510/ 12 S. & M. 431/ Roberts on Fra/uds 282.

      3. But if a disputed boundary may be established by parol, it must be by those who are owners of the soil when the agreement is made. 2 Games 198/ 12 Wend. 130/ 9 John. 69/ 2 Gilmcm 419/ 4 Wheaton 513/ 6 Wend. 469.
    4. It may be insisted on in the answer, that an agreement relating to lands is not in writing, without formally pleading the statute of frauds. 2 Paige 118/ 2 Sand. Oh. P. 144/ 6 Eng. 411.
    Anri where a parol agreement is alleged in the bill, and a different one admitted in the answer, no decree can be had without amending the bill. 2 Edw. Oh. P. 445/ 6 John. 559/ 1 John. Oh. P. 146/ 12 Yes. Jr. 18.
    W. Byers, for the appellee,
    argued this cause upon the answer of the defendant, which he contended was' evasive, and admitted all the material allegations of the bill; and that, upon the facts, the complainant was entitled to the decree.
   Chief Justice WateiNS

delivered the opinion of the Court.

The appellee, Hollobaugh, exhibited his bill of complaint in the Searcy Circuit Court, against Baker, the object of which was to enforce the specific performance of a parol agreement for the sale of land, and to settle a boundary alleged to have been agreed upon, in the division of the tract between them; and obtained a decree in accordance with the prayer of the bill.

In considering this case, we have allowed to the complainant in the Court below, the benefit of all just exceptions which might have been taken there to the answer of the defendant for insufficiency or evasion, by’supposing to be true every material allegation of fact, charged in the bill, apparently within the knowledge of the defendant-, and not specifically denied or admitted in the answer.

Without detailing the allegations in the pleadings, the substance of the issues may be understood from the statement of the case which follows: The complainant was the owner of the west-half, and the defendant the owner of the east-half, of the same quarter section, at the time of filing the bill in February, 1853. The tract owned by Baker had been entered by him, at the ITnitfed States Land Office, in February, 1846, and he also owned the forty acre tract immediately south of his half quarter. The complainant had entered his eighty acre tract, in January, 1849 ; adjoining and south of that lies the forty acre tract, which is the subject of the present controversy. Each party resided upon his half of the quarter section referred to, upon which improvements had been made some years before either of the tracts was entered, and while they were public land. The complainant bought the improvement on the west-half from one Keener, and which had been originally made and. occupied by one Dean. A branch running from north to south, along the open line divided the quarter section nearly equally between the owners of it; but on reaching the south boundary of the tract, the stream turned its course towards the west, so as to run somewhat diagonally across the forty acre tract in controversy, dividing it so as to leave the larger portion on the west side of the branch. A road ran in an east and west direction across this tract, dividing it nearly equally. Baker had an improvement upon it, on the east side of the branch, and the clearing of the complainant extended over upon it, on the west side, to the extent of about ten acres, - the enclosure of his field coming down within a short distance of the road before mentioned.

The complainant represents, that before he purchased the improvement of Kesner, there had been an agreement between Baker and those occupying the west-half of that quarter, that the branch described should be the boundary between their respective improvements, and that the same branch, in its course through the adjoining foi’ty acre tract, should continue tobe the boundary between their improvements thereon, and that whoever entered that tract, should allow to the other, refunding his due proportion of the purchase money, the part of it lying on the east or west side of the branch, as the case might bo, so as to include their respective improvements. On the 6th of February, 1852, the defendant, Baker, without previously notifying' the Complainant, entered the forty aeré tract in question ; and, during the course of that year, the complainant tendered to him an amount of money sufficient to pay for the quantity of land supposed to lie on the west side of the branch, asked to have it ascertained by survey, and for conveyance from the defendant, which was refused. Baker,1 in his answer, denies that there was ever any such agreement, as that charged in the bill, between-him and the complainant, or any other person, but admits that while the lands belonged to the government, there was a verbal understanding between him and the former settlers on the west-half of the quarter section, to this effect: that the branch should be the division line as far down as the road; Independent of the fact, that the agreement charged is not satisfactorily proven, there is another objection to the existence of its being a ground of relief. It was made concerning public land, for aught that appears in market, and subject to entry by any person, who chose to apply for it, and between parties who could not claim any thing more than a temporary occupancy, which was the extent of their rights; and regarding it as a settlement of boundaries, it was only for the time being, and did not have the effect of enlarging their title. If the parol agreement had contemplated the immediate or future purchase, when in market, of the tract in controversy, and it had been so acted upon as to make it unconscionable for one party to resist a specific performance sought by the other, relief might be had under peculiar circumstances, as intimated in CaÁn vs. LesTÁe¡ at the present term; because there is no reason why a trust may not arise under a contract having direct reference to the purchase of land from the United States, oi* from any third person. But here the alleged understanding about the prospective entry and division for their mutual accommodation of the forty acre tract, was vague and indefinite as to time, and it remained un-acted on by the parties for several years, during all which time the title might have been acquired from the government, and the agreement consummated. The declared policy and design of the United States, is to bring tbe public domain into market, and facilitate the sale of it; giving, it may be, a preference to actual settlers, where they choose to avail themselves of it on the terms .prescribed; and that also, in order to encourage immigration, is not only the policy of the State, but she has a vital interest in .being able to raise a revenue by taxation from lands alienated by •the general government. So far as the long continued occupancy and appropriation to themselves by these parties of public land, was calculated to delay the sale of it, or to deter other persons from purchasing, any mere parol agreement respecting it would not be entitled to favorable consideration, because clearly against public policy.

The complainant also insisted upon having a specific performance upon other grounds, which may be briefly stated. It appears that the defendant, a few days after he entered the forty acre tract, called to see the complainant at his house, and told him in substance, that in making the entry, he had been compelled to take a part of his improvement, but did not intend to deprive him of it, and would sell it to him, he paying for the same a due proportion of the. purchase money, at Congress price. Now the complainant alleges that, during the conversation on that occasion, the defendant agreed to let him have all that part of the tract lying on the west side of the branch, upon his verbal assurance not to fence up the wood land during his life time, and a day was appointed to have it run off and measured by a surveyor, and that on the faith of this agreement, he made some additional improvements. A material part of these allegations is ■denied by the defendant, who declaring his willingness to abide ■by the agreement, which was made, admitted that, on the occasion referred to, he did verbally agree with the complainant to ■sell him the improved land and the wood land to the branch, and as far down as the road, and no farther, with a proviso that he , should never fence up the wood land, and he did not admit the making of any improvements beyond the resetting of a fence.

There are two grounds upon which, taken together, the court ' below, in tbe exercise of an equitable discretion, to grant or refuse the specific performance of contracts, should have denied the-relief sought in this particular case. The agreement itself, as-claimed by the complainant, and upon which the decree is based, was not against the denial of the answer, so clearly and distinctly proved, as to entitle the complainant to a decree. Scarcely any two of the witnesses understood it alike, or profess to have heard the whole of the conversation. A short time afterwards, during the spring of the same year, when the parties met by appointment to survey off the complainant’s portion of the land, their disagreement and mutual misunderstanding of the terms of the agreement manifested itself. The complainant then seemed willing to accept the deed, which the defendant proposed to make to him for the part west of the branch and down to the road, but the next day when they met again to have the deed executed, he refused it, and claimed all of the tract west of the branch;

The defendant, becoming the absolute owner of the land by purchase from the government, his offer to sell a portion of it to-the complainant was voluntary, and the agreement resting in parol, the complainant has failed to allege any sufficient equitable circumstances, of fraud in the defendant, inducing hardship and loss to himself, unless specifically performed, so as to take it out of the operation of the statute of frauds. The continued possession of the complainant, to the extent of the agreement admitted by the defendant, was lawful. The improvements made by the complainant, after the conversation with the defendant, and' before they met to have his portion surveyed off, were comparatively xmimportant, such as any tenant in possession might be expected to make, and not ordinarily exceeding in value the use of cultivated land. ■»

It would, in our opinion, be no infringement of the salutary policy of the statute of frauds, for the complainant to have a decree for the specific performance of a parol agreement for'the sale of land, as between the parties to the agreement in full life, where an agreement, though differing in some respects from that charged in tbe bill, is admitted, and tbe statute is not relied upon as a bar to tbe relief; but, in sucb case, an amendment of tbe bill might be requisite.

Tbe decree appealed from, will be reversed, and tbe cause remanded, with instructions to permit tbe complainant to amend bis bill, and to decree in bis favor, but at bis costs, to tbe extent ■of tbe admission of the agreement contained in tbe answer, that portion of tbe tract to be surveyed, tbe quantity ascertained and paid for by the- defendant, at tbe minimum government price, with interest, if be will accept sucb decree, and otherwise to dismiss tbe bill.