text:
    Charles W. Howard, Eliza M. Howard, James M. Howard, Samuel G. D. Howard, and Isabella Howard, Abraham J. Turwilliger and Minerva his Wife, Gilbert Turwilliger and Ann B. his Wife, James Burren and Sally his Wife, and John W. Allen v. George Babcock and Clarissa his Wife, Eliza A. Williams, Eunice Williams, Hannah E. Williams, Oliver S. Williams, and Hiram Weston.
    Administrators make a beneficial arrangement to rescind an unexecuted contract of the intestate, for the purchase of lands; chancery will not aid the heir to set it up again.
    This is a ease in chancery reserved in the county of Portage.
    The complainants, with the exception of John W. Allen, are the heirs at law of Horatio Howard and Harvey E. Howard, and Allen claims to be the assignee of the other complainants. The defendants are the heirs at law of Paul ^Williams, and with the exception of Geoi-ge Babcock and wife, are infants.
    It is unnecessary for the understanding of the principle decided by the court to give a full history of this case, as it appears upon the record. So far as material it will be done. It appears from the bill, answers, exhibits, and testimony, that on February 11, 1828, a contract was entered into between the said Paul Williams of the one part, and the said Horatio and Harvey A. Howard of the other, whereby Williams agreed to sell to the Howards, at and for the sum of five thousand dollars, his interest in certain town lots in the town of Akron, and also some land adjoining. The said sum to be paid as follows, to wit: one thousand dollars on May 1, 1828, with the interest from the first day of April preceding, and one thousand dollars upon the first day of May annually thereafter, until the whole should be paid, provided a certain contingency specified in the contract should happen. But if said contingency did not happen, then the balance of four thousand dollars to be paid in annual installments of five hundred dollars each, on the first day of May, commencing May 1, 1820.
    Tho Howards were to have the possession of a part of the premises, which was taken accordingly. It was agreed that on May 1, 1828, “ upon the payment of tho sum. of one thousand dollars,” Williams should execute a deed with lull covenant for the premises to the two Howards, who agreed at the same time to execute a bond and mortgage to secure the deferred paj^ments.
    No payment was made on May 1, 1828, and the reason assigned is, that on that day Horatio Howard lay dangerously sick, and continued for about ten days thereafter; at the same time Harvey E. Howard was absent from the country. Complainants allege, that Williams assented to the delay of payments, but of this there is no sufficient proof. It is in evidence, however, that at and after the said first day of May, he was anxious to receive payment. On the 17th day of the same month, he died after two days’ sickness, no payment having been made upon the contract, and no mortgage having been executed. Within three or four months thereafter, both the Howards died, no payment having been hitherto made.
    Owing to sickncsss and other causes, real property in Akron depreciated in value, and continued to depreciate until 1831 *or 1832. In March, 1829, the property sold by Williams the preceding year to the Howards, for five thousand dollars, and which, at the time of the sale, seems to have been no more than a fair price, was notworth more than three thousand, and could not, in the opinion of witnesses, have been sold for more than twenty-five hundred. Since 1832, it has been rapidly increasing in value, and is now worth from thirty to forty thousand dollars.
    After the death of the original parties, the administrators of Williams pressed those of the Howards for payment of the purchase money due upon the contract. Payment, however, was refused, upon the ground that if made the consequence would be that all the property of the Howards would be exhausted; and that the avails of these lands, in connection with other funds belonging to the estate, would not be sufficient to pay the contract price of the land and the other debts due from the estate. At length the administrators of the several parties entered into the following agreement, which was indorsed on the original contract: “Middlebury, March 30,1829. In consideration of three hundred dollars, by Isaiah Brown, administrator of Horatio Howard, and Isaiah Brown and Jonathan F. Finn, administrators of Harvey A. Howard, paid to Amos Shin, jr., and William Slater, administrator of Paul Williams, it is mutually agreed that the within agreement be wholly rescinded, and the same is hereby wholly and entirely rescinded, annulled, and the heirs and executors and admininistrators of the said Horatio and Harvey A Howard are entirely discharged from the observance and performance of the same.
    “Administrators of P. Williams, deceased, William Slater, Amos Shin, jr. Administrators of Horatio and Harvey A. Howard, Isaiah Brown, Jonathan F. Finn.”
    It was with much reluctance that the administrators of Williams entered into this agreement.' Nor did they do it until after consulting with the widow and only heir of Williams of full age, and the guardian and friend of the infant heirs. Charles W. Howard, one of the complainants, was also consulted and assented to the arrangement, but at the time he was a few months within age; at the time this arrangement was made, the land was worth but little, if any more than one-half the money Howard had agreed to pay for it, and the ^rescission was supposed to be highly beneficial to their estates, while it was equally injurious to that of Williams.
    After the rescission, the heirs of Williams took possession of the land, and it has since been partitioned among them.
    At the March term of the court of common pleas of Portage county, 1832, the administrators of the Howards filed their final settlement accounts, and the balance in their hands to be distributed was found to be about thirty-two hundred dollars.
    After the lands began to rise in value, Charles W. Howard, who had then become of full age, expressed regret that the contract had been rescinded, and this regreat seemed to increase in the same ratio with the increase of the value of the land. But he always spoke of the contract as one that had been rescinded or abandoned.
    The prayer of the bill is for a specific performance of the contract, and that the defendants may be decreed to convey to John W. Allen, who claims to have the beneficial interest in the contract, by assignment from those of his co-complainants, who are of full age, and from the guardians of such as are infants. It ought to be stated that the heirs of the Howards, at the time of their death, were either feme covert or infants, with the exception of one, and that a female.
    Wilcox, for the complainants:
    It can not be seriously insisted that the arrangement made between the administrators of the parties was in any respect binding upon the heirs. Upon the death of Williams, the legal title descended upon his heirs, and upon the death of the Howards, the equitable title descended to their heirs, and neither can be divested, except by the order of some court of competent jurisdiction. The interest of the Howards was real estate, and the administrators could not control it. 6 Johns. Ch. 398.
    Although Charles W. Howard was consulted, he was then a minor, and at "the time, and ever since, has been, doubtless, mistaken as to the powers of administrators. Since arriving at full age, he has done no act to confirm the arrangement made by the administrators. 5 Ohio, 150; 10 Pet. 58.
    The first installment was not paid when it became due, in consequence of the sickness of Horatio Howard, and since that time the situation of the parties concerned has been such *thal the contract could not be performed without the aid of a court of chancery. The complainants are not, therefore,» chargeable with laches.
    Powers, for defendants:
    There is-now no equity to set up this contract against the defendants. Courts of equity decree specific performance of contracts, when the action at law has been lost by the party seeking such performance, only in cases where it is conscientious that the agreement should be performed; and has the arrangement made on March 30, 1829, no bearing upon the question whether it be now equitable and conscientious to insist upon the performance of the contract of February, 1828?
    Circumstances were such at the time this arrangement was made, that had the adminhtrators of the Howards attempted to comply with the contract, the entire estate of their intestates must have been sacrificed; but by making the arrangements, they were enabled to save for the heirs more than three thousand dollars. Having received this benefit, it is not eonscionable that they should now, because eironmstances have changed, seek and receive a further benefit by disaffirming that arrangement, which, when entei’ed into, saved their estate from annihilation.
    But there is another view of the question, resting upon common and familiar principles, which is of great weight. The personal and legal representatives of Paul Williams had the same power and control over the contract on his part as he would have had if living. By the failure of the Howards to pay the first installment of one thousand dollars on May 1, 1828, and the refusal of their administrators in March, 1829, together with the probability of great delay, the representatives of Williams had a right to rescind the contract and resume the land. They did so, and the .act had the concurrence of all concerned. Sugden on Yendors and Purchasers, 439, mar. 511, top paging.
    The present complainants can be in no better situation than would the Howards had they lived. The case, then, would be this: The contract was made in 1828, one thousand dollars to be paid on the first day of May of that year, and the balance of four thousand to be paid in four or eight annual installments, depending upon a contingency. *The payment in May, 1828, was
    not made, and in March, 1829, payment still being refused, the vendor declares the contract at an end, and resumes the possession of the land. This conduct of the vendor is seemingly acquiesced in. The land in 1832 begins to rise in value, and continues rising until it is worth five or six times what it was when the contract was made. Still nothing is done by the vendor; no offer of payment; he lies by until 1835, and then files his bill for a specific performance. Under such a state of facts, a complainant would not, according to the rules of equity, be entitled to relief. 1 Mar. Ch. 417; 13 Vesey, jr. 225; Sug. Yend., 9 ed. 429; 6 Wheat. 528.
   Judge Hitchcock

delivered the opinion of the court

In the argument of this case, counsel for the complainant have labored to convince the court that the delay in paying the amount due upon this contract ought not to excuse the defendants from performance. And the strong reason urged is, that, owing to the death of the original parties, the stipulation of that contract could not have been complied with. There was a defense, however, on the part of those under whom the complainants claim, while all the parties to the contract were in full life. The first payment was not made when it fell due, and it is not a sufficient excuse to say that one of the vendors was then sick. The other being well, might have attended to the business. It would seem, however, that the vendor was not disposed to take any advantage of this default; for from anything that appears in the case, he was willing to the day of his death to have received this payment. After his death, although there would have been more difficulty in carrying the contract into execution, still it might have been done. Power is vested in the courts of common pleas to authorize administrators specifically to execute the contracts of their intestates relative to the realty. And in this case no reason is perceived why the execution of a deed might not have been compelled, upon making the first payment, and tendering a mortgage to secure the deferred payments. By payment of the whole purchase money, the execution of a deed by the representatives of Williams might have been compelled without any mortgage. In truth, the case shows that his representatives were urgent upon the subject, and would undoubtedly have been willing to have sought the aid of the court, in ^carrying into effect the contract, but for the refusal of the administrators of the Howards to make payment. That there has been gross and culpable negligence on the part of the Howards, and those representing and claiming under them, there can be no doubt. Whether this of itself would be sufficient to exonerate the defendants from performing, it may not be necessary for the purposes of this case to determine. There is one feature in the case which seems to us to be decisive of its merits.

On March 30, 1829, this contract was rescinded, so far as it could be, by the act of the administrators of the respective parties. This arrangement was manifestly most beneficial to the Howard heirs. At the time it was made, the,land was but about one-half as valuable as when purchased, and this value was constantly depreciating, and did depreciate for two or three years thereafter. Had the administrators of Williams insisted upon the purchase money, as they had a right to do, not only the other property of the Howards must have been exhausted, but the land itself must have been sold; and even then, if any reliance can be placed upon the testimony, the avails, in connection with the other assets in the hands of the administrators, would not have been sufficient to pay the original purchase money and interest. In the language of the defendants’ counsel, the estates of the Howards would have been “ annihilated,” and not one cent left for the heirs. Whereas, by making this arrangement, those estates were relieved from a heavy burden, and a property amounting to more than three thousand dollars secured to the heirs. This arrangement was altogether lavorable to the heirs of the Howards, and it was equally unfavorable to the heirs of Williams. At least it was so considered at the time, and for this reason his administrators were unwilling to enter into it, and did not do so, until after consulting his widow and all interested. Considering all these things, these complainants do not, so far as abstract justice is concerned, appear before this court under very favorable circumstances. Nor would they have appeared here but for the circumstances that these lands have greatly increased in value, and are now actually worth some five'or six times as much as they wore when purchased of Williams. This circumstance, however, is not one which will induce the court to look upon their case any more favorably; on the contrary, it might furnish a reason why we ^should not interfere. It seems to us clearly, that it would be altogether unconscionable to permit these heirs, who, so far as property is concerned, were saved from ruin by the indulgence of Williams’ administrators, now to enrich themselves at the expense of Williams’ heirs, and certainly the complainant, who claims as assignee, can be entitled to no other relief than are those under whom he claims.

But it is urged by complainants’ counsel, that these administrators have no right to rescind this contract. That here was an equity in real estate, which descended to the heirs, with which the administrators had no concern, and of which they could not deprive the heirs. Is this true ? To a certain extent it may be, but not, I apprehend, to the extent insisted upon. By our law, real as well as personal property is assets in the hands of administrators for the payment of debts. The only difference is, -that the personal property must first be exhausted. And further, that the real property can not be disposed of without an order of the court of common pleas, acting as a court of probate. Here was an equity which descended; but it was such an equity that it could not be made perfect, or draw after it the legal estate, without exhausting itself, the legal estate, and much more. It was valueless, and worse than valueless. Under such circumstances, an administrator having made such an arrangement as was made in the present instance, this court acting as a court of equity, would not be disposed to interfere. If these parties have any remedy at law, they can pursue it. If their legal remedy is lost, chancery ought not to grant them relief.

I am not prepared, however, to adopt the principle in its fullest extent, that an administrator can have no right to interfere with an equitable interest in lands. In the case of Livingston v. New;kii-k, 3 Johns. Ch. 316, the chancellor says, “an equitable interest founded upon articles for a purchase, and which a court of equity will specially enforce, is real estate which will pass by a devise subsequently made, and if there be no devise, will descend to the heir, and the executor must pay the purchase money for the benefit of the heir.” In the case of Champion v. Brown, 6 Johns. Ch. 402, he expresses doubts whether an administrator can assign such a contract, so as to vest any interest in the assignee without the assent of the heirs, and inclines to the opinion that he can not. These principles seem to be founded in reason, and are *substantially recognized in our statute defining the duties of executors and administrators, which treats equitable interests in land as real estate, and requires that they should be sold with the same formality. 29 Ohio Stat. 239.

Where lands are sold by articles of agreement, and not conveyed, the purchaser is held to be a trustee to the vendor for the purchase money, and the vendor is considered as holding the land in trust for the purchaser. But where the purchase money has been paid-, and the vendor refuses to make a deed, the purchaser has his election to resort to equity for a specific performance, or to a court of law to recover back the purchase money. And in case of the death of the purchaser, I see no objection to permitting his administrator under similar circumstances, if it be most for the interest of the estate, to sue for and recover the purchase money. And if he may do this, he may make any other arrangement with the vendor, which shall be beneficial to the estate of his intestate.

Again, this case shows that the administrators of Williams were pressing the administrators of the Howards for payment of that part of the purchase money which was due; but payment was refused; and the case further shows that these latter administrators were unable to pay. It is laid down in Sugden on Tendors, 9 ed. 439, that “ where circumstances are such that the purchase money can not be paid for a length of time, as if the purchaser die or become bankrupt before the contract be carried into effect, and his executors are not able to get in the assets or effects, the vendor is entitled to have the contract rescinded.” But counsel say Ibis should be by proceeding in chancery. Why go into chancery, when the representatives of the vendor are willing to rescind without? It can not be necessary. And it would be strange, indeed, that a court of chancery should decree the specific performance of a contract against those who had a right to rescind that contract, and who had, in fact, done all they could to rescind it.

Whether we consider this case upon the principle that this contract was rescinded by the administrators of the respective parties by an arrangement, under the circumstances, highly beneficial to the heirs of the Howards, or upon the principle last adverted to, it seems to the court that the defendants are entitled to a decree; the bill is, therefore, dismissed at the costs of the com'plainants.


source: Caselaw Access Project

author: Judge Lane

license: Public Domain

text:
    *State of Ohio, on the Relation of Jacob Linley, v. Thomas Bryce.
    A trustee of the Ohio University can not he regarded as having vacated his place, if he has not resigned, unless there is a judicial decision that such vacation has taken place. A legislative appointment of a successor, without such resignation or adjudication, confers no legal right upon the person appointed.
    This was a motion for a writ of quo warranto, to inquire by what authority the defendant holds the office of trustee in the Ohio University. A rule to show cause was served, and cause shown at the term of the Supreme Court, in 1836, in the county of Athens. The questions arising upon the rule were reserved for decision in the court in bank.
    The reporter has no arguments of counsel, or information who were counsel on either side.
   Judge Lane

stated the case, and delivered the opinion of the court:

The Ohio University was incorporated in 1834. 2 Ohio L. 193. The governor of the state, the president of the institution, and tw'elve trustees compose the corporation, who are authorized to suspend any member of their body, who, from misconduct, may become unworthy, or from age or other infirmities may be rendered incapable of performing his duties. If any such removal shall occur in the recess of the legislature, they are authorized to fill the vacancy, by an appointment, to endure until the end of the next session of the legislature. When a vacancy occurs, by death, resignation, or otherwise, it shall be supplied by the legislature at its next session.

In 1805, Linley was appointed a trustee by resolution. 3 Ohio Stat. 459. He then resided in Athens, and he regularly performed his duties at the board until 1828. He removed to the neighborhood of Cincinnati during that year, having the care of the church at Walnut Hills. In 1829, he removed to the flats of. Grave creek in Virginia, one hundred and twenty miles east of Athens. He afterward removed to Washington county in Pennsylvania, and resided there, on January 11, 1832. Between the time of his removal from Athens in 1828, and January 11, 1832, he appears to have been present at but one meeting of the board, which was in 1830, when he transacted business with them without objection.

On January 11, 1832, by a resolution of the general assembly, 30 Ohio L. 326 the defendant was “appointed a trustee of the Ohio University, to fill the vacancy occasioned by Jacob Linley having removed out of the state.”

It is conceded that the legislature have no'power of appointment, except in the event of “a vacancy.” Unless, therefore, *tbc non-residence or non-attendance of Linley renders his office vacant, the appointment of Bryce is not good. • It is well settled that neither a neglect to exercise corporate powers, nor even an abuse of them, ipso facto, works a forfeiture of the franchise; that the corporation subsists until the forfeiture be ascertained and declared by a competent tribunal, in a judicial proceeding instituted for that purpose against it by government. 2 Burr. 869; 5 Mass. 230; 16 Mass. 94; 7 Pick. 344; 2 Term, 515; 9 Crunch, 51; 6 Cowen, 23; 5 Johns. 380; 16 Serg. & R, 140; 1 Blackf. 267. It is equally well settled that n*o member of a corporation shall be disfranchised, no officer removed, without the agency of a tribunal competent to investigate the cause and pronounce the sentence of the loss of right. The office is not vacant by neglect, or abuse; it requires an act done, or the exercise of power, to work the forfeiture and determine the title to the office, 2 Black. 156; 4 Kent’s Com. 127; for it is the forfeiture of a vested right for the breach of a condition in law. Where the charter prescribes the terms under which the power of a motion is to be-exercised, they must be pursued; where the organic law is silent,, the corporation itself possesses the inherent power to ascertain and declare the forfeiture either of franchise or office. 2 Kent’s-Com. 297; 1 Burr. 517 ; 2 Binn. 441; 4 Binn. 448 ; 5 Binn. 486; Angell & Ames on Corp. 237.

This proceeding is essentially adversary in its character. The-justice of the common law permits no investigation of facts which may be followed by the loss of a right, or by the infliction of a penalty, to be conducted ex parte. It is essential to its validity that the party should be duly summoned. 4 Black. Com. 282; 1 East, 638; 6 Conn. 542; 2 Serg. & R. 141; 1 Burr. 540; Doug. 174.

In the present case, if the relator had forfeited his office by neglecting his duties, it was necessary that the corporation, after-reasonable notice to him and an opportunity for hearing, should investigate the facts, and determine his title to the office by sentence, and thus create the vacancy. Until this was done the relator was entitled to his seat, and the contingency had not happened in which the legislature could lawfully appoint a trustee.

As no statutory provision has prescribed a rule of proceeding in cases of quo warranto, the forms of proceeding are as-*at common law. As this application is made by the prosecuting attorney of the county, and the defense sets up a title to the office without objection to the authority for prosecuting, the court have adjudicated no other questions.

Writ awarded.


author: Judge Wood

text:
    Julius House v. John Beatty and others.
    On a bill for a specific performance of a contract to convey lands, the defendant can not object to the antiquity of the claim, if the case shows his inability to perform at the time stipulated.
    Defense set up against specific performance avails nothing where testimony is-equally balanced.
    Tender of performance avails nothing unless the party is in a condition to-perform at the time of tender.

      .Plea of innocent purchasers for a fair consideration, interposed in support of family conveyances, can only be sustained upon clear and satisfactory proofs.
    This cause was adjourned from tbe county of Huron. The material facts are all recapitulated in the opinion of the court.
    Boalt and Worcester, for complainant
    F. D. Parish, for respondents.
   Judge Wood

stated the case, and delivered the opinion of the court:

An original and supplemental bill have been filed, in this case, in which the complainant claims the specific execution of a contract.

It is set out in these pleadings by the complainant, that the respondent, John Beatty, in April, 1815, bought of Perkins, of Connecticut, two thousand six hundred acres of land in the north part of section 1, in the township of Perkins, in the county of Huron, which was conveyed to him by deed, and to secure the payment of the purchase money he executed to said Perkins a mortgage. In the same year Beatty sold a part of the tract called “ the mile square,” in the southwest corner of his purchase to Amherst C. Ransom, gave him a deed, and received a mortgage to secure the consideration. Ransom afterward, in 1815, conveyed by deed the “ mile square ” to Eleazer Lockwood,' who agreed to perform Ransom’s contract with Beatty; and Lockwood, on October 1, 1815, entered into the contract set out in the original bill, by which he agreed to sell to Ebenezer Ransom one hundred acres of the “ mile square ” off the east side, and to execute to him a good and sufficient conveyance by October 1,1819, in consideration of two hundred dollars, for which sum he received the note or bond of the purchaser, to be paid on the execution of the deed.

*The bill further states that Ebenezer Ransom then went into possession of the one hundred acres, and made improvements, and in 1817, sold his interest to the complainant, House, who, with his assignees, have since held the actual possession of the land; that Lockwood, in 1822, sold his interest in this land to Beatty. The consideration which House agreed to pay to Ransom lor his interest in the land was two hundred dollars, payable on obtaining the title, and Beatty, by the sale from Lockwood in 1822, became entitled to this payment, when the conveyance should be made. Beatty then procured from Judge Lane, the agent of Perkins, a release of his mortgage so far as it covered this one hundred acres. He also obtained a deed from Lockwood, and Beatty and wife joined in another conveyance to House, and tendered the deeds, which House refused to accept, alleging, as a reason, that the land was incumbered. The bill states that House, after he acquired his interest in the land from Ebenezer Ransom, some time in 1817, or 1818, sold the west half to Hubbard, who afterward prosecuted House because he could not make a title, and the complainant was compelled to buy his peace; that in 1818, the complainant sold the east half to Robinson, who went into possession, made valuable improvements, planted an orchard, and erected a barn. That Hubbard, after the compromise with him, abandoned the land, and the complainant then went into the possession and occupied the west half himself until 1829, when he sold to Dickinson for the consideration of two hundred dollars; but knowing there would be difficulty in procuring the title, as he had then ascertained one Asa Nowler and others had a claim on the land, he gave to Dickinson his note for the consideration money paid, and agreed to convey to Dickinson only when he could obtain the title from Beatty:

The bill states further, that Beatty having thus become entitled to the debt from the complainant of two hundred dollars, which he was to pay Ransom, induced Lockwood to convey the land to his brother, Dempster Beatty, and that Dempster, prior to 1832, conveyed the west half to James; and, after the filing of the bill, but before service of the subpena on Dempster, he conveyed the east half to John W. Beatty, both grantees being sons of John Beatty; which sales, respectively, are alleged to be fraudulent, and without consideration, and with full notice of complainant’s equity.

It is further stated that neither Perkins, Lockwood, nor either of the Beattys, could have made a legal title until after *the partition, which was made in 1832'; but that forty-five hundredths of the title was in Nowler et al., prior to that date, who brought their action of ejectment in the Circuit Court of the United States; and John Beatty, long after the conveyance was made to Dempster, made himself a defendant in the ejectment, and defended for himself and those claiming under him. The plaintiffs succeeded in the ejectment, and recovered their proportion of the land. John Beatty sued out a writ of error, but the judgment was afterward affirmed. In 1830, the plaintiff in the ejectment, whose title had been affirmed by the suit in error, applied for a partition of the land, the whole tract of two thousand six hundred, acres; that Dempster and James joined in partition, and that this one hundred acres was, by an arrangement made with John Beatty, set off to Dempster and James ; that then John, immediately after the partition, brought ejectments in the names of Dempster and James for the portionsallotted to them; the tenants supposed the complainant would defend, and he, believing no attention was necessary until the second term, judgment was rendered by default. The bill avers that John Beatty then compelled Dickinson to purchase the land of him by representing that House, the complainant, under whom Dickinson claimed, had failed in the action, having no title, and' that Dickinson took a conveyance from James and gave him four notes for seventy-five dollars each, and assigned the two hundred dollar note given him by the complainant for the consideration, for the purchase of him, to John W. Beatty; that John W., at the instigation of his father, brought a suit on this two hundred dollars, and that John Beatty caused the other notes to be assigned to one George Donnell, and suits upon them were afterward enjoined ; that all the notes belonged to John Beatty, and that the conveyance of James Beatty to Dickinson was made at the instigation of John, and without consideration.

. The complainant avers that, since the partition, he has, at all times, been willing to receive a conveyance for the land from the Beattys, the brother and sons holding it, in trust, for John Beatty, and asks for the specific execution of this contract.

Lockwood answered the original bill, in'which answer he says the contract between Ransom and the complainant was canceled by an arrangement between him and the complainant, and that he paid to House a pair of steers at forty dollars for relinquishing the contract. The supplemental bill is not answered *by Lock-

wood, but is taken as confessed. John Beatty refers to the answer of Lockwood for the facts it contains in relation to the abandonment of the contract, and of which he personally knows nothing. He relies on the tender of the deeds to House in 1823, and alleges' •that House had no knowledge of any defect in the title at that time. He denies fraud in his conveyances to Dempster, and from him to James and John W., but admits he made the contract with Dockwood, and that the conveyances from him to Dempster and from Dempster to James and John W. wore made at bis request, in consideration of their work and services ; that their purchases were for a good consideration, and without notice of any claim of the complainant. He admits the ejectments, partition in 1832, possession, and improvements.

James Beatty’s answer sets up that the land belonged to him as ■a gift from his father and for services rendered.

Dempster Beatty, in his answer, says that John Beatty caused the deed to be executed to him by Lockwood, and that he gave .John Beatty a deed of lands in another part of the county, calculating to live on the one hundred acres himself, but did not like ■it, and took other lands in full, and gave James Beatty a deed of fifty acres, and afterward sold John W. Beatty the other fifty for a valuable consideration, and has received his pay; he denies all knowledge of the complainant’s claim, or that he held the land by •any understanding, in trust for John Beatty.

John W. Beatty, Dickinson and, Robinson have not answered the bill; as to them, it is taken as confessed. A reapplication has ■been filed by the plaintiff and much testimony taken; a large :portion of it, however, is in answer to leading questions by the party taking it, is objected to, and should be rejected; and a .greater portion still has relation to a marshal’s sale of Beatty’s lands, and is irrelevant to any inquiry before the court. The questions which seem naturally to arise in this case, so far as they can be gathered from the confused mass of papers, many of which are prepared by John Beatty, the principal defendant himself, are ■these :

1. Stateness of the contract, without an attempt by House, the complainant, to enforce it for so many years ?

2. Was this contract abandoned by House, as set up by John Beatty, in his answer?

3. Did John Beatty comply with the oontract, by the tender *of the deeds to House in 1823, and if so, had he the right to -consider the agreement as rescinded ?

4. Was the conveyances to Dempster Beatty, the brother, and by him to James and J. W. for a valuable consideration, and without notice of the complainant’s equity?

As to the first point, the antiquated nature of the claim, it is,, perhaps, a sufficient answer to say to the principal defendant, John Beatty, that before he can claim anything on this ground, he must show that he has performed, or has been ready to perform, all substantial conditions precedent, on his part, and that the complainant has omitted some obligation or duty resting on him; and, then, from the lapse of a reasonable time for performance by the complainant and his omission, a relinquishment of the contract by him, or a rescission of it, might be presumed, but not without this.

2. Was the contract abandoned by House ? If so, there is an end of this case. Lockwood, in his answer to the original bill, to which John Beatty refers, says such was the fact. That ho paid the complainant forty dollars for his interest in the contract he had taken from Ransom, and the complainant relinquished all right under it. Lockwood’s deposition has, however, been taken, and in that he states that he did not intend to swear to any such thing. That his answer was prepared by counsel; that he stated to his attorney he had paid House, the complainant, twenty dollars, which amount House, the complainant, had paid for him in taxes for school purposes on the land; but that he did not state to his attorney, nor was such the fact, that the complainant abandoned or relinquished any rights under this contract; that if such statement was contained in his answer, it was a mistake. Here, then, is the whole evidence on this point. The witness for the complainant and respondents is equally worthy of credit, for he is the same person. There is no preponderance of testimony, and the fact must be determined against him who sets it up.

3. Did John Beatty comply with the contract; in other words, did he make a tender of a sufficient deed ? It will hardly be pretended. The title to forty-five hundredths of this identical land was in Nowler et al. until the partition was made in 1832. In 1823, therefore, the title of Perkins, and Beattys, and Lockwood, who claimed under him, was defective, and the complainant was not bound to receive it. John Beatty says this fact, that the title was defective, was not *known to the complainant when the tender was made. One witness, however, swears that House, the-complainant, informed him of the claim of Nowler et al., and that the witness communicated it to John Beatty, and before Ms tender of the deed was made. Beatty, then, did not, nor could previous to-the partition in 1832, convey such title as the complainant was bound to accept, and as the complainant by the terms of the contract, was not bound to pay till the title was tendered, and as such tender has not yet been made, there has been no laches on his part, which should defeat his right to the execution of the-contract; nor any performance by the defendant, John Beatty, which should discharge him from liability.

4. Was the conveyance to Dempster, James, and John Beatty for a valuable consideration, and without notice of complainant’s equity?

This is most positively averred by John Beatty, Dempster, and James Beatty, in their answers; but such denials have not carried conviction to my mind, that such is the fact. The answers of the three Beattys are too loosely drawn, too general and sweeping in their denials and averments, and too destitute of any tangible point; the facts stated are too much out of the usual and ordinary course in which honest men transact business, to obtrude themselves on tho credence of the chancellor. John Beatty says the conveyance to Dempster was made by Lockwood, at his request, and by Dempster to James, because he was indebted to James for work and services; but when, where, or in what amount, or the nature of these services, are not specified. Dempster Beatty says he bought the land for himself, and gave other lands in exchange, in another part of the county; but when, where, or the quantity, are entirely overlooked. There is no deed with the exhibits, nor any reference to any. James Beatty says he received the deed as a gift from his father, and for services rendered. Who can believe that these conveyances were made with any other than a fraudulent design against this complainant, and because he would not receive a defective title, and pay his money ? If not, why was John Beatty so careful that the title should not pass through him, but from Lockwood directly to D. Beatty, and then to his sons ? There is much testimony, however, in addition to these circumstances, which go to establish the fraudulent intention of all these parties, and it is equally clear that there is no evidence to establish the facts, that Dempster, James, *or John W. Beatty, ever paid any consideration for this land, and the conveyances on that ground are voluntary and fraudulent as to the complainant.

But had not the defendants all notice of the complainant's equity f They all lived i. the same neighborhood, and the frequent conveyances and reconveyances of this property, and assignments of contracts, partition, and ejectments, could hardly have escaped the observation of all; but here was that notorious actual possession of the land for more than fifteen years, by House and his assignees, who were making valuable improvements on the land, and which possession is admitted by some, and must have been known to all the defendants, which was at least, if not notice in fact, sufficient to put the defendants on inquiry, and should be held to be constructive notice to all of the complainant’s claim. We are, on the whole, of the opinion that the complainant is entitled to the specific execution of this contract; and, as it may be uncertain what amount is due by complainant to Beatty, and on payment of which a specific execution will only be decreed, the case is referred to a master to take an account, and the cause continued.


author: Judge Grimke

text:
    Jesup W. Soott v. Wm. Fields and others.
    On a hill for the specific performance of a contract for the sale of lands, time is to he regarded as of the essence of the contract, if the parties have so stipulated in the agreement sought to he enforced.
    This was a bill for specific performance, and the material facts growing out of the bill, answers, and exhibits are these: On January 13, 1835, the defendant, William Fields, by a written agreement of that date, sold to the complainant the land in controversy, for the sum of eight hundred and thirty-one dollars, payable as follows: one hundred dollars in hand, two hundred dollars on March 13, 1835, two hundred dollars on June 13, 1835, and three hundred and thirty-one on January 13, 1836. The third installment to be with interest from March 1, 1835, and the last from the date of the agreement. The contract was signed by both parties; the defendant, Fields, agreeing,in consideration'of the above payments, to convey to the plaintiff by a good and sufficient deed. But the contract also contained this clause, that “the said party of the second part (Scott) agrees and binds himself to make the ^payments for the said land in all respects as above specified, and in case of his failure to make said payments, he agrees to forfeit the payment now made, and to have this agreement considered null and void ; and it is further agreed that the said party of the first part is to give possession of the said lot on the first day of March next.” The vendee went into possession. The one hundred dollars were paid in hand. The second installment was paid 27th February, fourteen days before it was due. The third was not paid at all, but on 29th July, forty-five days after it was due, the complainant told the respondent he had the money and was ready to pay, but made no tender and gave no further evidence of his ability to do so. On the 21st July, Fields sold and conveyed the land to Anderson, Justice, and Ransom, the other defendants, who had actual notice. On the 29th of July, when Scott informed Fields that he had the money to pay the third installment, Fields informed him that he had sold, and that he was ready to refund the second installment, and same offer was made about August 1,1835. At the time the last installment was due, the vendee tendered all the purchase money and interest, which was refused.
    The case was elaborately argued by Wilcox, Cofrinbciry, and ■Speck, for the complainant, and by G-oodenow and Purdy, for the respondents.
    For the complainant it was argued that the vendor is attempting to enforce a rigid rule of forfeiture, and that in such a case all ■doubts should be resolved in favor of the vendee. That there can be no forfeiture until there shall be a failure to make all the payments. The language is not as in (1 Johns. Ch. 370,) either of ■said payments or any of said payments, but only the said payments. The case of Gibbs v. Champion, 3 Ohio, 335, was also relied upon; as also 4 Ves. 667-686; 13 Ves. 224; Cro. Car. 241.
    For the respondents it was said that it was no longer the rule that time is of the essence of the contract, not even where it is not expressly made so, and a fortiori, where it is made a positive •stipulation of the agreement; that the dictum attributed to Lord Hardwicke and the decisions of Lord Thurlow have been disapproved of and repeatedly overruled both in England and America. 4 Ves. 686; 5 Ves. 722, 818; 13 Ves. 225; 3 Leigh, 187. That the error, in reference to the *iapse of time has arisen out of the doctrine of courts of equity on the subject of mortgages, trust estates, and penalties,, in -which time has been considered immaterial. 7 Ves. 273; 12 Ves. 326 ; 1 Johns. Ch. Cas. 370. That lands in this country were a species of merchandise, and that even if the rule were as contended for by the complainant, in England, that it would produce manifest injustice to establish it here; that where the subject matter, which is bought and sold, is, in its nature, exposed to daily variations in value, time is of the essence of the contract. 1 Russ. 397. The cases in 2 Scb. & Lef. 544, 603; 2 Br. C. C. 447; 6 Madd. 26; 12 Yes. 326; 3 Meriv. 84; 4 Br. C. C. 333, 393; 2 B. & B. 94; 4 Br. C. C. 469, were also commented upon and examined.
   Judge Grimke

delivered the opinion of the court:

This cause has been argued with great ability, and I am obliged to the counsel for the assistance they have afforded me in the investigation of a very difficult department of the law. The law, with regard to the specific performance of contracts, has been surrounded with so much uncertainty that it is almost impossible to extract from the reported cases any definite rule to guide us in our researches. We are compelled to say, as was said by Sir Samuel Romilly when applied to for advice, that he would give an answer to the questions propounded to him, when the precise point had been determined. In equity jurisprudence, we expect to find distinctions less rigorous than 'are to be met with in a court of law, because it is one object of that jurisdiction to mitigate-the unyielding and inflexible temper of the common law, and when this is attempted, we come necessarily to deal more with the intentions of men, and to make inquiry into what may be the consequences of their actions, instead of confining ourselves to a strict and literal interpretation of their contracts. . But it is evident that this course, unless conducted with the greatest prudence and discretion, will be calculated to defeat its own object, and that instead of introducing the genuine principles of equity into our-jurisprudence, we will render it more dark and intricate than it was before. The specific performance of contracts constitute a. great head of chancery relief, and yet to this day, when the question is asked whether time is ever of the essence of the contract, we are disposed to say with Sir Samuel Romilly that we will answer *the question whenever the precise point is determined.

Lord Uarkwicke, it is said, first laid down the rule in Gibson v. Patterson, 1 Atk. 12, that time is not of the essence of the contract, but Lord Loughborough, in Lloyd v. Collet, 4 Br. C. C. 469, says he had looked into Lord Hardwicke’s note book, and that no such dictum is to be found; that the case was a clear one for the complainant, without any reference to the lapse of time; and that it was determined entirely on the evidence, of which the reporter has taken no notice. Nevertheless, Lord Eldon, in Levy v. Lindo, 3 Meriv. 84, observes that Lord Thurlow, “ on occasions without number,” did declare that time was immaterial in contracts. It is easy to see, however, that there are reasons in Great Britain for holding this doctrine, which do not exist in this country. There titles are exceedingly complicated, in consequence of their refined and artificial modes of conveyance, and they are not all on record as they are with us. The consequence is, that it is a matter of great labor, and one which requires time, to make out what is called an abstract of the title. Most of the English cases, when examined, will be found to turn on this point. Even in Gregson v. Biddle, before Lord Thurlow, in 1784 (which contains the strongest declaration he ever made on this subject), that was the case. There was an outstanding legal title which could not be got in within the two months. It was the ease also in Gibson v. Patterson, and although the dictum attributed to Lord Hardwicke in that case, has been denied, yet I see no improbability in supposing that he-made it. Where the titles to real estate are so universally intricate, and so well known to be so, it does not seem very unreasonable to suppose that a purchaser had made allowance for it. The consequence is, that the English courts were disposed to regard time only as a circumstance and not as possessing sufficient force of itself to avoid the contract. But this rule was soon found to be attended with infinite mischief, and that in endeavoring to do justice, injustice would be inevitably done. Accordingly, in Lloyd v. Collet, 4 Br. C. C. 469, which was the first well-considered case on this subject, it was held that, although the conduct of the parties, inevitable accident, etc., might be a ground of relief, yet, that it was a very different thing to say the appointment of a day should have no effect. The chancellor says, “ if a given default-will not do, what length of time will do ? ” “ The plaintiff says, by nay own default an equity *has arisen to mo. It is a singular head of equity.” And this doctrine has been followed up and • sustained by Harrington v. Wheeler, 4 Ves. 686; Omerod v. Hard-man, 5 Yes. 722; Guest v. Homfray, 5 Ves. 818; and Alley v. Deschampe, 13 Ves. 225. In this last case Lord Erskine says, “my judgment proceeds upon a plain principle, that a bill for specific performance of an agreement will not be endured, nothing farther having been done than the payment of one hundred pounds.” “ It would be a very dangerous thing to permit parties to lie by, to see whether the contract will prove a gaining or losing bargain.” And I believe the mind of every man who has reflected much on this subject has been convinced that this is the correct •view. The great difficulty consists, not in deciding what is right, but in settling a doctrine which has hitherto been considered unsettled. You are afraid of taking parties by surprise. As long as a rule of law is attended with uncertainty, both parties seem to have a right to take advantage of that uncertainty. But it is obvious that this can not always continue to be the case. ’ No court could be true to itself, much less to the interests of those whom it is bound to protect, if it were instrumental in confusing the boundaries of the law.

In all the cases which I have referred to, except Gregson v. Biddle, there was a clause inserted in the contract expressly declaring •time to be.of its essence. That is the case in the present instance •also. It is expressly agreed by the parties, that on failure to make the payments the agreement shall be considered null and void. Gregson v. Biddle, I have shown, has been overruled. In Seton v. Slade, 7 Ves. 265, there was a clause inserted, that on failure to pay, the proprietor should be at liberty to resell. Lord Eldon says: “I incline much to think, notwithstanding what is said in Gregson v. Biddle, that time may be made of the essence of the contract.” A specific performance, however, was decreed*; first, ■because although the vendor, on non-compliance with the conditions, had liberty to resell; yet the contract was not declared (as •in this case) to be at an-end, a distinction which I confess does not seem to me to have much force; and secondly, that tho vendor ■had done acts which unequivocally amounted to a waiver of any default on the part of the plaintiff: so that this case also over\.-ruled the dictum in Gregson v. Biddle.

In Vernon v. Stephens, 2 P. Williams, it is denied that any agreement can be so framed as to make time of the ^essence of a contract. But it was unnecessary to make any such declaration ; for there, also, there were unequivocal acts of waiver. An idea seems to have been entertained that such an agreement would, be an attempt to oust the court of chancery of its' jurisdiction. But surely the jurisdiction of that court does not depend upon the mere circumstance that a contract has been made, and that the specific performance of contracts belongs to it exclusively. It depends also upon the fact whether the contract is such as to entitle it to be executed. It is now admitted that the lapse of' time is a matter which must be taken into consideration, even-where it is not declared to be of the essence of the agreement. Time, then, is an important ingredient in contracts. Would it not, then, be extraordinary if the parties were not permitted to declare it so. A mere agreement to refer a matter to arbitration would not deprive the courts of their jurisdiction ; but an agreement that there should be no suit at law or in equity would do so; because it would be simply giving effect to a plain contract without violating any rule of public policy. Indeed, I take it that no rule is now more firmly established than that parties may make time of the essence of the agreement. Such a rule seems to be absolutely necessary to the administration of justice, and even to the being able to see our way with any degree of clearness in the interpretation of contracts. The very desire to introduce a principle of equity and a liberality of construction in expounding those contracts where the intentions of the parties remain doubtful; ought to constrain us to pause at so„me boundary beyond this uncertain field of conjecture; otherwise, instead of applying a rule of equity professing to be founded upon the intentions of the parties, we shall openly proclaim that we have no regard to those intentions when they are expressed in the most unequivocal manner. In Jackson v. Ligon, 3 Leigh, 187, the chancellor says : “ That the ■ pai’ties may make time of the essence of the agreement is now clearly admitted, and seems to follow from their unquestioned right to frame their contracts as they please.” It is not like a ■ case of forfeiture; the penalty of a bond, for instance, from which a court of equity will relieve, on the same principles of public-policy, as have occasioned the enactment of usury laws.

But the leading case on this subject is Benedict v. Lynch, 1 Johns. Ch. Cas. 370. It is an American case, and I shall always-*give a preference to the American over the English cases, other things being equal; for I do not believe that a judge is bound to deal only with abstract principles of law. It is his duty also to understand the habits and condition of the people among whom he lives, and this he will be best able to do by studying the adjudications which have been made in his own country. Benedict v. Lynch contains the most thorough and perspicuous examination of the law on this subject of any case which is extant. There was a stipulation “that if the plaintiff failed in either of his payments the agreement was to be void ;” and the chancellor upheld the stipulation and dismissed the bill. But it is said there is a difference between the stipulation in that case and in the one now before the court; that in the former the agreement was to be void if the plaintiff failed in either of his payments, and in the latter it is to be void if he fail to make the payments. But no human ingenuity will be able to satisfy the mind that there is any substantial or even any plausible difference between the phraseology in the two contracts. The last secures the punctual performance of ail the payments; the plaintiff has failed to pay the third installment, and if the whole includes the parts, nothing is more certain than that he has neglected to make the payments. How, then, can it be said that the complainant is entitled to a specific performance when he has been guilty of a violation of his contract — a contract drawn with the most guarded precision and care, and intended to impose terms upon the respondent as well as upon himself? The law is intended to be a help to morality; it is intended to set an example to the community, with how much ease the great principles of justice may he maintained and dispensed, and of how great importance it is to the welfare of individuals that they should be inviolably preserved. But if a loose morality should begin here, and a loose administration of the law is nothing more or less than a loose morality, it will be impossible for parties to feel that degree of confidence in our courts which they are entitled to feel. And however the technical forms in which our law is wrapped up, may contribute to blunt our feelings as men, yet it is impossible for an upright tribunal not to desire both to do justice and to inspire confidence. On the whole, ■the conclusion to which we are brought is, that the parties have made time of the essence of this contract; that the complainant has violated the ageement by failing to pay *the third installment, and the bill is therefore dismissed, but with a decree for the payment back of the second installment, since that also was the stipulation of the parties. ■


author: Judge Hitchcock

text:
    Sylvester Rummington v. Israel and Thomas R. Kelley.
    Although a contract for the sale of lands contains no express stipulation that a failure to pay shall authorize the vendor to rescind, yet the vendor may upon such failure, hy prompt action and proper notice, put an end to the contract, so that equity will not decree a specific performance.
    This is a case in chancery reserved in the county of Cuyahoga.
    The case, as made by the bill, answer, exhibits, and testimony, is as follows. On June 16,1831, a contract was entered into between the complainant and defendants, by which the defendants agreed to sell to the complainant a certain piece or parcel of land, as described in the contract, in the then village of Cleveland, for the sum of four hundred and sixty dollars, to be paid in four annual installments, and when paid they were to execute a deed. The complainant gave four several notes for the purchase money, payable as follows, to wit: one hundred and twenty-four dollars on June 16,1832; one hundred and eighteen dollars on June 16,1833; one hundred and twelve dollars on June 16, 1834; and one hundred and six dollars on June 16, 1835. It was further agreed that the complainant might pay these notes before they fell due, and in case of such payment, interest was to be deducted. There was no stipulation in the contract that the vendee should have possession of the land.
    The first note which fell due on June 16, 1832, was not paid a* maturity; and in the latter part of the same month, or in the beginning of July following, the defendants stated to the complainant, that inasmuch as he had not complied with his contract, in making the first payment, they considered the same forfeited or void, tendered to him his notes, and upon his refusal to receive them, deposited them in the bands of a third person for his use.
    On May 9, 1833, the complainant tendered to the defendants one hundred and thirty-one dollars, the amount supposed to be due upon the first note; and on June 16, 1835, he tendered the-sum of five hundred and sixty dollars, the full amount due upon the contract. This money was refused; the defendants insisting that the contract was at an end, and no longer obligatory upon them.
    *It is alleged in the bill, that immediately after the contract was made, the complainant took possession, and made lasting- and valuable improvements upon the land, and that the defendants-have recovered a judgment against him in ejectment, and are-about to turn him out of possession. The answer admits that tho complainant is in possession, but denies that he took possession until after July, 1832, and after his notes had been tendered to him. It further insists that he took the possession and made the improvements against their express prohibition, without their knowledge, and during their absence from Cleveland, of which place they are residents. Upon this part of the case there is testimony taken which is somewhat conflicting.
    The prayer of the bill is for an injunction against-the judgment in ejectment, and for a specific performance of the contract.
    Willey, for complainant:
    Insisted, that inasmuch as the parties had not by express stipulation made time of the essence of the contract, the failui’e of the complainant to pay the first installment, as it fell due, did not release the defendants from the obligation resting upon them to make a title. It did not put it in their power to rescind. The assent of both parties is equally as necessary to rescind as to make a contract.
    He stated that one of the modes of conveying in the northern part of the state was by land contract. That this mode was adopted as being more convenient than the circuitous mode of' conveying by deed, and then taking back a mortgage to secure the-payment of the purchase money. In either case, the object was the same, to secure to the vendor the price for his land ; and he contended that the same rule of decision should be adopted. As in the case of a mortgage, the mortgagor, remaining in possession, •would be allowed after any length of time to redeem; so the vendee, holding under contract, should be allowed to compel a title upon the payment of the purchase money, although that payment had not been made within the time prescribed.

      He iurther urged, that in the case before the court, even admitting the right of the' defendants to rescind, it was not sufficientfor them to have tendered the notes merely; they should also have tendered to the complainant compensation for *his improvements. Having failed to do this, he insisted they were still bound by the contract.
    He, cited 1 Vern. 449 ; 16 Ves. 102 ; 19 Yes. 143 ; 2 Price, 200; 3 Campbell, 138, n. a; Newland on Contracts, 316-318; 2 Swift’s Dig. 84-90; 3 Ohio, 335; 2 Johns. Cas. in Error, 314; 6 Wheat. 195; 5 Cranch, 262; 3 Johns. Ch. 316; Powell on Contracts, 268.
    Andrews and Foot, for defendant:
    Insisted, that as the contract did not give the complainant a right to take possession of the land, the fact that he was in the actual possession could be of no avail to him. But they argued that the weight of evidence was in favor of the answer, which denied that the complainant went into possession until after July, 1832, and insisted that the possession then taken was tortious, being in contravention of the express prohibition of the defendants. They further claimed that the defendants had the right to rescind the contract upon the failure of the complainant to make payment; that they had rescinded it, and were no longer bound by its terms. In support of the defense, they relied upon the following authorities : 9 Johns. 34-331; 4 Dev. 235 ; 4 Bro. C. 469; Newland on Contracts, 242; Sugden on Vendors, 3d ed. 268; 1 Johns. Ch. 370; 4 Dev. 559
   Judge Hitchcock

delivered the opinion of the court :

So far as the facts of this case are concerned, there can be but little difficulty. The only controversy is, whether the complainant took possession of the premises before the tender made to him of his notes, and whether before that period he had made any lasting and valuable improvements.

The contract did not give him the right of possession in express terms or by implication; still, with the consent and acquiescence of the defendants, he might have taken possession ; and if, under such circumstances, improvements should be made which are lasting and valuable, it would seem to be equitable that a vendor, before he shall be permitted to rescind a contract of sale, should make compensation for such improvements. We have carefully examined the evidence, and without recapitulating the testimony of the several witnesses, shall merely state the impression made upon our minds by that examination. There can be but little doubt that the complainant ^exercised some acts of ownership over the property after the contract, and before the tender referred to, but that he made any valuable improvements is not shown. Nor does it appear that he had any exclusive possession. The lot was vacant until after the period of the tender. There is no evidence that the defendants knew of the exercise of these acts of ownership, but the contrary is inferable from the circumstances that when they made the tender, they forbade the complainant to take possession. The only improvements of consequence which have been made upon the lot, is the erection of a small dwelling house, and the weight of evidence conclusively shows that this house was erected in the spring of 1833, during the absence of the complainant from Cleveland. The circumstance that it should have been .done at such a time is, to say the least of it, somewhat suspicious.

An opinion seems to have prevailed to a considerable extent, ithat in contracts for the purchase and sale of real estate, time is ■of little consequence. In the case of G-regson v. Biddle, cited in 7 Wes. 268, Lord Chancellor Thurlowis said to have intimated that .time could not be made of the essence of the contract, even by a positive stipulation of the parties. This opinion, that time constitutes no part of the essence of the contract, has been strengthened probably in the northern part of the State of Ohio, and especially ■on the Connecticut Beserve, by the peculiar situation of the country, .and the manner in which lands have been sold. This tract of country was originally conveyed by the State of Connecticut to purchasers from the state, comparatively few in number. In its early settlement, these purchasers, who have been usually denominated original .proprietors, sold out small tracts to actual settlers, .and generally upon credit. Lands, thus sold, were not, however, generally conveyed by deed, but the purchaser took a contract, in which the terms and.times of payment were specified, and in which it was stipulated, that upon payments being made, the vendee should be entitled to a deed. Under these contracts, possession was generally taken with thq assent of the vendors, and large improvements made. As is frequently the case in now countries, most of these actual .settlers, if not absolutely poor, wore in but .moderate circumstances; consequently, payments were not made according to the stipulations of their contracts. In most instances, these delays were acquiesced in by the original proprietors. It ^was their interest thus to acquiesce, for otherwise the country could not have been settled, and their lands must have remained a burden upon their hands. So uniformly has this been the case, that scarce an instance can be found where an original proprietor has attempted to defeat a vendee of his purchase, merely upon the ground that punctual payment had not been made. Consequently, it has been pretty generally supposed that failure to pay punctually on the part of the vendee, could not operate to exonerate the vendor of his liability, and that the time of payment specified in the contract was of little consequence. I am not aware, however, that the decisions of our courts, when carefully examined, will be found to have favored this opinion. Whatever may have been the opinion of Lord Chancellor Thurlow, all the modern cases go to show that time maybe made of the essence of a contract. This subject is fully examined in the case of Benedict v. Lynch, 1 Johns. Ch. 370, in which Chancellor Kent comes to the conclusion that time may be made a part of the essence of the contract, if it is not so in all cases. On this subject, too, reference may be made to Sugden on Vendors, 9 ed. 441, and the cases there cited.

It seems to us that this is a reasonable principle. There is nothing in the character of contracts for the sale and purchase of lands, that places it in the power of either party to trifle with the other by violating a contract on his part, and then, at his own convenience, by offering to make compensation, compel a specific performance. In courts of law, time is considered as of the essence of all contracts, and courts of equity are as much bound to see that contracts are executed as courts of law. That man who would call upon a court of equity for a specific performance must, in the language of the books, show himself to have been “ ready, desirous, prompt, and eager.” If, therefore, a vendor or vendee wish to compel the other to observe a contract, he immediately makes his part of the agreement precedent; for he can not proceed against the other without an actual performance of the agreement on his part, or a tender and refusal. Sugden, 9 ed. 245. But although courts of equity are bound equally with courts of law to enforce contracts, still there are cases, and they are not unfrequont, where they will relieve against lapse of time, and decree specific performances. But this is owing rather to *the peculiar circumstances of each particular case, than to the consideration that time is not of the essence of the contract.

In case there has not been on the one part a strict compliance, still if the conduct of the opposite party has been such as to evince acquiescence in the delay, such acquiescence will be construed favorably for the party apparently in default, and the opposite party can not be exonerated from performance. For instance, a vendee takes possession of the land purchased, and with the knowledge and assent of the vendor makes lasting and valuable improvements; in such case, a court of equity would be inclined to enforce a specific perfomance, although payment of the purchase money had not been punctually made. More especially would this be the case where improvements had been made without objection, after default of payment. So the receipt of a part or the whole of the purchase money, after the time of payment had elapsed, might be construed into a waiver on the part of a vendor, of any advantage he might have taken in consequence of the default of the vendee. And the same would be the case, should the vendor by any other conduct manifest that he did not intend to insist upon a strict and literal performance by the other party. . And even where the purchase money is payable in installments, and there should be a failure in the punctual payment of one of these installments, I am not prepared to say that a vendor should be exonerated from performance, if, within a reasonable time, the vendee should make payment. But where either party has been guilty of gross, inexcusable neglect, he can not obtain relief in a court of equity. It is apprehended that no specific rules can be established with respect to specific performances, which can be applied in every case, but each particular case must be governed more or less upon its own peculiar circumstances.

In the case before the court, the parties have not by express stipulation, made time of the essence of the contract; and the question for consideration is, whether, under the circumstances, the complainant is entitled to the relief sought for; or, in other words, whether, where one of the parties is in default without any available excuse, he can call upon the other for a specific performance.

1 am not aware that a case analogous to the present has been before the court, although the case of Gibbs v. Champion, 3 Ohio, 335, was somewhat like it. Champion sold land ^to Gibbs by contract, and Gibbs agreed to pay the purchase money — one-half on the 26th day of January, and the other half on July 26, 1826. Nothing was paid until the latter day, and then the whole amount due was tendered. The court held that Gibbs was entitled to a specific performance; and one prominent reason assigned for the decision is, that after the default in not paying the first installment, Champion held on to the contract,-and neither offered to return the notes, nor took any other steps to exonerate Gibbs from his liability. In this particular, that case is different from the one now before us. Here the defendants offered to return the notes, and when refused, they were deposited in the hands of a third person, for the use of the maker. At'the' time this offer was made, there had been no material change in the situation of the property or parties. No improvements had been made, no money expended, and there is no evidence to show that the value of the property had in the least changed.

It is urged by the counsel for the complainant that it is not in the power of one of the parties to put an end to or rescind a contract without the assent of the other. This, as a general rule, is undoubtedly correct, and is so as a universal rule where neither party is in default. But where there has been a default, unless the same has been occasioned by circumstances not within the control of the party in default, he can not well complain that the opposite party should not hold himself bound by a contract of which he himself is utterly regardless. In fact, such default is at least equivalent to an express assent to a rescission of the contract, and may be so considered unless acquiesced in by the opposite party.

In the case under consideration the complainant had agreed to pay the first installment of the purchase money on June 16, 1832, but failed to do it. The only excuse offered for this failure is that he was disappointed in the receipt of money. It does not appear that he made the least effort to procure the money or to comply with his obligation. He admits that he had been informed by one of the defendants that prompt payment would be expected, but states that he supposed the sole consequence of non-payment would be that a suit at law would be prosecuted against him for the money. The first installment being due, the defendants, instead of acquiescing in the delay, informed the complainant within a few days thereafter that they considered *tbe contract at an end, tendered him his notes, and did all they could do to free themselves from liability. By this conduct the complainant was notified, if he had not been before, of the intention of the defendants to hold him to a strict compliance. Yet notwithstanding this notice he lay entirely still for more than ten months, and then, just before the second installment fell due, offered to pay the first. Has the complainant shown himself to have been “ ready, desirous, prompt, and eager?” Has he shown any sufficient excuse for his default of payment ? We think not. On the contrary, he appears to have been guilty of gross and culpable negligence, and upon no principle can be entitled to relief in a court of equity.

So far as respects the improvements, they were made after the default and without the knowledge or consent of the defendants. Of course there can be no relief on this ground.

There is much ingenuity in the argument of counsel in attempting to assimilate a contract of this kind to a mortgage; but the analogy will not hold. In the case of a mortgage, the only object of the security is the payment of the money. In case of a land contract one great object is a transfer of the estate. 1 Johns. Ch. 370.

Upon mature consideration, the court are unanimous in the opinion that the relief sought ought not to be granted. The injunction is therefore dissolved, and the bill dismissed with costs.


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    Thomas Davis v. The Administrators of Catherine Ford.
    No action accrues for a guardian against his ward upon account of advance» made to the ward, until the relation of guardian and ward is determined.
    Assumpsit is the proper action to be brought to recover a balance due to a guardian from a late ward, even where such balance has been declared by a court of probata.
    Tms case was adjourned from the county of Hamilton. It was an action of assumpsit. The declaration contained three counts. The first recited that the plaintiff was the guardian of Catherine Ford whilst a minor; that in 1823, during his guardianship, he presented his accounts, for settlement, to the court of common pleas, and a balance was found due to him of throe hundred and seventy-four dollars and sixty-eight cents. That in March, 1832, he again presented his guardian accounts for settlement, and a further balance was found due to him of two hundred and fifty-three dollars and twenty-eight cents, for advances made to the ward. Upon these recitals the declaration averred a promise to pay.
    *The second count was general for money advanced,' goods sold and delivered, labor performed, etc.
    The third count recited the guardianship, the death of the ward, and the payment of filty dollars for funeral expenses, whereof the administrator had notice, with the averment of his undertaking to pay, etc.
    The defendant pleaded specially to the first count in the declaration non assumpsit, within six years. The plaintiff replied that at the settlement of the first item of three hundred and seventy-four dollars and sixty eight cents, he was the legal guardian of the intestate debtor, and so remained, until within six years of the commencement of the suit, and to this replication the defendant demurred.
    There is a report of this case in Wright’s Reports of the circuit decisions of the Supreme Court, .page 200. Alter the decision there reported was announced, leave was obtained to withdraw the demurrer, and a general order made to amend the pleadings. Upon this order the case was again presented for hearing, and was adjourned upon the point now presented by the demurrer.
    Strait, for the plaintiff.
    The statute of 1816 (11 Ohio L. 158, sec. 36) was in force when this account was settled, March 17, 1823, and if not wholly repealed by the statute of 1821, February 6, (reprinted 29 Ohio L. 247), must govern the case. The difference in the two statutes is not so great as to vary this matter, though they are otherwise strikingly variant.
    By both of these statutes it is made the duty of the court to call the guardian to account, and the duty of the guardian to present his accounts with the ward to the court for settlement, and the court are empowered to settle with the guardian and allow him such compensation as they may think reasonable. The statute of 1821 compels a settlement within three years trom the date of the letters, and every two years thereafter, and that the settlement of the accounts between the parties shall be final, unless the ward, within two years after arriving at full age, shall impeach the same in chancery.
    The court of common pleas then had full power to settle the accounts and strike the balance, either for or against *the guardian ; and does it not follow, that the law provides a remedy to recover that balance in the ordinary way; or is the settlement a dead letter, a mere form, and no validity farther than to equalize the accounts and balance the one against the other? Why should the resort be to a court of chancery? Why take an extraordinary remedy to recover a simple account? Wherever the law can give a proper remedy, it should be resorted to, and the extraordinary remedy in chancery only, when the other fails.
    The notion that the relief is in chancery is prevalent, because in England, the court of chancery controls all matters concerning guardians and wards. It is the proper jurisdiction of the chancellor, in England, to appoint guardians, call them to account, order them to pay any balance found against them on settlement of their accounts, and provide for their compensation and advances. That court has everything connected with the matter under its control, and provides the proper remedy. Not so here. This peculiar jurisdiction of the court of chancery is given to the court of common pleas as a court of probate, except that the power to enforce payments by attachment, sequestrations, and the like is not an incident of the power granted. The appointment of administrators, and the settlement of decedent’s estates, Wm within the peculiar province of the ecclesiastics in England; here it is given to the court of common pleas, and who has ever doubted the right to sue at law for the balance of the accounts settled by the court in favor of the distributee. These suits are of every day’s occurrence, and never questioned. How is it? Wrjght, in his book, says these settlements are conclusive upon the guardian, but not upon the ward; he may controvert them, though the statute provides, “ that the settlement thus made shall be final between the parties, saving to the ward the right to review it in chancery within two years after coming of age.” Unless the ward does so review the settlement, I think it is not only final, but conclusive upon him. The provision is, to review the settlement within a given period, not to controvert it collaterally at all times, as the inference is from the report of the case.

      I consider these accounts like the accounts between ordinary parties, or adults; when settled and the balance struck, either the action of debt or assumpsit lies to recover that balance, as upon an account stated. In the case of adults, the ^parties state their own accounts, but in this case they are stated by the probate court; the statute empowering the court to state the accounts for the minor, because his statement of them would not be binding. Such, it seems, was the intention of the legislature, and such is the good sense of the law. The action is nothing more than the ordinary action of assumpsit, founded upon an account stated. The accounts so stated in either case are final and conclusive upon the parties, unless for some mistake clearly pointed out the settlement is opened to correct that mistake and not to investigate again the items of the accounts.
    V. Worthington, for the defendant:
    IJpon the case now presented, we possibly are precluded from investigating the points designed mainly to be discussed. The issue raised is upon the first count in the declaration, as the demurrer in its operation falls back upon the first defect in the pleadings, without regard to what follows. The sufficiency of this count was considered in 1833, and it is somewhat remarkable that the pleadings should now be so framed as to involve precisely the same point, and upon the same count. The opinion of the court is reported by Judge Wright, in his Circuit Court Reports, page 200, and probably it is only necessary for me to advert to that decision. The court say: “If this is an action of debt, as is contended, it is not barred by the plea of the statute of 1810. If it be assumpsit, it is barred. There is no assumpsit laid in the count, the liability is otherwise deduced; yet the defendant has plead non assumpsit and the statute of limitations, and the writ is in assumpsit. We think the record of the proceedings of the probate court not the gist of the action, but only an incident to the plaintiff’s title; no profert of the title is made. The proceeding is conclusive upon the guardian, but not upon his minor ward. He may controvert it. The suit is a novel one, and we doubt if it can be sustained, or if the plaintiff have any relief at law; but, however that may be, there is no assumpsit in the declaration, and of course no title in the plaintiff is shown. If there was a right of action set out, it would be barred by the statute of limitation.” The plaintiff’s counsel then contended this count was in debt. The court, howpver, held the character of the suit was ascertained from the writ, and not the declaration. *Such, surely, is the correct doctrine, at least since the writ has been made a part of the record. A departure in a replication from the declaration is fatal on demurrer (Gould’s Plead. 453), and it is believed a departure in the declaration from the writ is equally fatal under our system of jurisprudence. I am aware some interesting propositions may arise in this cause when the pleadings are properly framed; but until that is done, it seems to be a matter of supererogation to discuss them. I may, however, be permitted to remark that the replication can not aid the declaration, nor does it, in fact, attempt it as to the exception taken. It is, I believe, now well established that the plaintiff must recover upon the case made in his declaration. 7 Pet. 252. There is also another point deserving some consideration, and perhaps arises upon the present state of the pleadings. It is this: will an assumpsit lie upon a final settlement of accounts by a guardian with his ward before the probate court? On the circuit, this court, at its last session in this county, seemed to intimate, if my memory serves me, that the cause of action in this case was a record debt, and therefore doubted whether assumpsit could be maintained. In my view of the law, a settlement by a guardian or administrator with the probate court is not a record debt, and has not the force and effect of either a judgment or recognizance. It is, in fact, nothing more than a final settlement — prima facie, correct, and obligatory upon- guardian and ward, bub subject to be impeached, as all other final settlements are, by bill in chancery or otherwise. 2 Chase’s Stat. 235, sec. 36; 29 Stat. 247; 7 Ohio, 71; Wright, 200. It does not follow, because the court audit under the law the accounts of a guardian, that they are not to be impeached, or are res adjudicates. Were the settlements of a guardian with the probate court made by law of the same force and effect with a judgment, then we should readily concede that they could not be opened or impeached; but as the law only makes those “settlements final,” we conclude they are to have the force and effect of all final settlements between contracting parties laboring under no disabilities, and not that of a judgment at law. The intervention of the court in adjusting these accounts does not, per se, constitute the action of the court into a judgment. Many of the powers exercised by our courts are not judicial. In many cases they act as commissioners or ministerial agents, and in all such eases their acts *are to b,e viewed as the acts of all other known commissioners and ministerial agents of the law. In the ease now under consideration, the record of the court is not properly the foundation of the action, but an item of evidence conducing, prima facie, to establish a right of action in the plaintiff. The foundation of the action is the disbursement made by the guardian. The record establishes that the disbursements have been audited by'the proper agents of the law, and ave-prima facie correct, but nothing more. The action of the court upon the account current of a guardian or administrator, does not impress upon it the character of a judgment at law or recognizance, nor attach to it any of the consequences that flow from either, but simply gives to it the importance of a final settlement in pais, prima facie correct and obligatory, but subject to be impeached as all other settlements are, by putting your finger upon the excepted items. If this view of the law be correct, and an action at law can be maintained at all, it would seem that the remedy is assumpsit, and not debt. If so, then the plea of non oritur actio infra sex annos is a good plea and a bar to the action, unless the relation of guardian and ward prevents the running of the statute, a matter that does not properly arise in the present state of the pleadings, and need not be discussed.
   Judge Wood

delivered the opinion of the court:

The question which these pleadings submit for decision is, whether the matter set up in the replication is a sufficient answer to the special plea? Or, in other words, can the guardian sustain an action to recover for advances made to his ward, on a balance found due to him, on a settlement with the court, while the relation of guardian and ward subsists ? We hold the negative of this proposition.

It is the duty of the .guardian to prosecute for and defend his ward. He can not, in our opinion, for himself sustain an action against his ward, while the relation of guardian and ward subsists between them. The guardian stands to the ward in loco parentis. In 2 P. Williams, 119, it is said a testamentary or other guardian can not be sued by the ward, in an action of account, until the guardianship determines; for the rule of the common law is, that the action does not lie while the guardianship continues. *If the action of account would not lie, because of the relationship, why, reasoning from analogy, should the action of' assumpsit be maintained? And if not, by the ward against the guardian, when the ward is favored by, and regarded as under the peculiar protection of the law, why should the action be sustained for the guardian against the ward? As the guardian is bound to sue for and defend the ward, a suit against the ward would be substantially a suit by the guardian against himself. This would be an absurdity which, we are of opinion, ought not to be recognized. In this view of the facts of the case, no right of action against the ward arose during her life time, and as she has not been six years dead, and died in wardship, we hold that the replication is good.

The defendant’s counsel has assumed that the question .of the validity of the plea and replication could not properly arise on the demurrer, because, by it, the case was thrown upon the validity of the first count in the declaration, which, it is alleged, contains no allegation of an assumpsit. As we read it, it does contain such an allegation. The averment is, that the defendant was liable to pay, and “ being so liable, undertook and promised, etc.”

The action is properly assumpsit, as the counsel on both sides admit.

The demurrer is overruled, and the cause remanded for further proceedings.


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    Frances H. St. Clair v. Jacob Williams.
    A widow evicted of lands assigned to her as dower by title paramount to her husband, can not sustain an action upon the covenant of warranty to her husband.
    This is an action of covenant reserved from the county of Hamilton.
    Williams, the defendant, conveyed a tract of land, with warranty, to Davis, in 1816. Davis afterward conveyed the same land to St. Glair, who died seized in 1820, leaving the plaintiff his widow, to whom the premises were set off as dower. She has been evicted by a recovery in ejectment, under a paramount title, and she brings this action against Williams, upon the warranty in his deed to Davis, claiming that it passed with the land to her.
    *Fox, for plaintiff.
    Y. Worthington, for defendant.
   Judge Lane

delivered the opinion of the court:

The question arising in this case is, whether the right of action upon a covenant of warranty annexed to a conveyance in fee, passes to one who holds but an estate for life in the land. It is no subject of doubt that an assignee is entitled to the benefits of all covenants running with the land. 3 Ohio, 219; 5 Ohio, 156. Nor is it doubted where a covenant running with the land is divisible in its nature, as if the entire interest of separate parts of land pass to different individuals, that a right of action accrues to each party, to recover his proportion of the warranty. 1 Paige Ch. 455; 2 Paige Ch. 78; Touchstone, 199; Co. Lit. 385, 386. But a plain distinction is made between the holder of a part of the land, and the holder of a part of the estate; the former may vouch as assignee, or bring warrantia chartce; the latter has the benefit of the warranty by aid prayer, or by the voucher of him who holds the remainder. Co. Lit. 385, a; 4 Dane, 51; Wood’s Conveyancing, 373. The same distinction is carried into the modern action of covenant. The assignee, upon whom is cast the benefit or the obligation of covenants, is he who holds the whole estate or term. Doug. 183;. 1 East, 502. These principles settle the present suit. The plaintiff could not vouch as assignee, nor have warrantia chartce under the ancient law, nor can she sustain an action of covenant, because she does not hold the whole estate. The right of action on the warranty passes to the heirs, and her remedy is by a new assignment of dower. Judgment for defendant.