10 W. Va. 677 | W. Va. | 1877
delivered the opinion of the court:
On the 8th day of April, 1873, the plaintiff brought his suit, in chancery, in the circuit court of the county of Fayette, against the defendant, L’Hommedieu. Afterward at the rules for the following May, the plaintiff filed, in the clerk’s office of said court, his bill against the said defendant.
The plaintiff’s said bill is as follows, viz:
“ Humbly complaining, your orator, L. L. Abbott, respectfully shows unto your honor, that on the 11th day of December, 1858, your orator’s father, Isaac H. Abbott, entered into an agreement, in writing, with the above named defendant, Charles L’Hommedieu, which agreement is signed by the said defendant, by which the said defendant covenanted and agreed, upon payment to him of the sum of $464.00, with legal interest thereon from September 5, 1853, to convey to the said Isaac H. Abbott a tract of land containing 509 acres, on Laurel creek, in Fayette county, West Virginia; that under the said agreement there has been paid to the said defendant, two sums of money on account of the said sum of $464.00, aforesaid, viz: $200.00 on July 1, 1859, and $72.83 on November 1, 1860 ; that subsequent to the agreement aforesaid, the said Isaac H. Abbott, for a valuable consideration, assigned, transferred and conveyed his interest in the aforesaid agreement to your orator, which assignment is in writing, and together with the first agreement hereinbefore described, is recorded in the office of the clerk of the county court of Fayette county, West Virginia; that this complainant, by virtue of the aforesaid agreement and assignment, is in possession of the said tract of 509 acres; that he is entitled to a deed therefor ; that he has been ready and has offered to pay to the said defendant the balance due him, according to the tenor and effect of the said original agreement; that he has paid the taxes on the whole tract for many years, and for the defendant’s proportion*680 thereof he is entitled to a credit — (he files an account of *he taxes as a part of this bill, marked taxes); that he has ma(^e a legal tender of the actual amount due thereon to the said defendant, but the said defendant has hitherto, and still continues to refuse to receive and accept the same, and to convey to your - orator the said tract of land. Inasmuch as your orator is remediless except in a court of equity, he prays for a specific performance of the said agreement; that a decree be made by your hon- or requiring the defendant to convey to your orator the tract of land in said agreement specified; which agreement, with the assignment aforesaid, are herewith filed, marked A and B, and prayed to be read as part hereof; and that such other orders and decrees be entered as your orator’s cause may require. And as in duty, &c.
This bill appears to have been sworn to by the plaintiff therein, the agreement or contract between the defendant, L’Hommedieu, and Isaac H. Abbott, and the endorsements thereon and alleged assignment to plaintiff, referred to in the bill, are as follows, viz : “ Memorandum of agreement, made and entered into this 11th day of December, 1858, between Charles L’Hommedieu, of the one part, and Isaac H. Abbott, of the other part, both of the county of Fayette, and State of "Vucinia, witnesseth: That we have this day agreed upon a division line through the tract of land which I, said L’Hom-medieu, bought of Samuel McD. Reed, agent for Magda-line Reed, which land lies on Laurel creek, in the said county and state aforesaid, joining the land of Jackson Burgess, T. S. Robson, Cassady and others. It is hereby agreed that the division line begins at two spruce pines and gum on the west bank of Laurel creek, below the mouth of the branch running down from the “ old house” in which Brogan now lives, and running north 84 degrees west 476 poles to two chestnut oaks on top of a mountain, at the head of the Orchard branch. It is hereby agreed that the said L’Hommedieu is to have*681 tbe land on tbe south side of said line, joining Tatum Cassady and Myles, and that tbe said Isaac H. Abbott is to have the land north of the said line, joining Jackson Burgess, T. S. Robson, Landige and William Grinsted ; the said line was run and marked through on the line by T. S. Robson, surveyor, on the 4th of July, 1857, which marked line is the one we are to abide by. And the said Charles L’Hommedieu further' binds himself to make unto the said I. H. Abbott a general warranty deed to the said land on the north side of said line upon the payment (by the said Abbott) of $464.00, with interest from the 3d day of September. 1853, till paid.
In testimony whereof, we, Charles L’Hommedieu and Isaac H. Abbott, do hereunto set our hands and seals, this the day and year first above written.
“Chas. L’Hommedieu. [Seal.]
“Isaac H. Abbott. [Seal.]
“Teste:
“Thos. S. Robson.”
“ Received of Isaac H. Abbott, his note for the within amount of $464.00, payable one day after date^ with interest from 5th September, 1853, agreeably to the within article, this the 11th day of December, 1858.
“Charles L’Hommedieu.”
“Fayette County, Va., July 1, 1859.
“$200.00. — Received of Isaac H. Abbott, $200.00, on the note held by me, of which the above is a memorandum.
“ Charles L’Hommedieu.”
“Fayette County, Va., Nov. 1, 1860.
“$72.83. — Received of Isaac H. Abbott, $72.83, on the note held by me, of which the above is a memorandum.
“Charles L’Hommedieu.”
“State op WestVirginia, Fayette CouNty, 1 Recorder’s Oppice, August 29, 1872.1& j
“1, G. M. Blume, recorder for .the county and state*682 aforesaid, do certify that Thos. S. Robson, of the parties whose names are signed to the foregoing title bond, bearing date on the 11th day of December, 1858, personally appeared before me, in my office, and made oath that Charles L’Hommedieu, whose name is also signed to said writing, signed and sealed the same before them, to be his act; and Isaac H. Abbott, in his own proper person acknowledged before me, the said writing to be his act, and the same is thereupon admitted to record.
“Teste: “G. M. Blume, Recorder
“This assignment, made this 17th day of August, 1867, between Isaac H. Abbott, of the county of Fay-ette, and State of West Virginia, party of the first part, L. L. Abbott, of the same place, party of the second part, witnesseth : That the said party of the first part, for and in consideration of the sum of $1,500.00, lawful money oí the United States of America, to him in hand paid by the party of the second part, at or before the en-sealing and delivery of these presents, and the receipt ■whereof is hereby acknowledged, hath assigned, transferred and set over, and by these presents doth assign, transfer and set over to the party of the second part, his heirs, executors, administrators and assigns, all his right, title and interest in and to a certain agreement and title bond, executed to the party of the first part by Charles L’Hommedieu, on the 11th day of December, 1858, to sell and convey to the said party of the first part, a certain tract of land lying on Laurel creek, in the county aforesaid, and on which the said Isaac H. Abbott now resides — the said tract containing 509 acres, be the same more or less, and which said title bond is hereto annexed; and the said party of the. second part hereby binds himself, his heirs, executors, administrators and assigns to release the said party of the first part from any further payments on said land.
*683 “In witness whereof the parties have hereunto set their hands and seals, the day and year first above written.
“Isaac H. Abbott. [Seal.]
“L. L. Abbott. [Seal.]”
“ Witness:
“W. F. Bahlman,
“J. H. Abbott.”
“State of West Virginia, CouNty of Fayette, \ Recorder's Office, August 29, 1872. j
I, G. M. Blume, recorder for the county of Fayette, state aforesaid, do certify that Isaac H. Abbott and L. L. Abbott, parties whose names are signed to the foregoing assignment, bearing date 17th day of August, 1867, personally appeared before me, in my office, and ac-knowleged the same to be their act, and the same being-stamped, $1.50 cents, is admitted to record.
“Teste : “G. M. Blume, Recorder.”
On the 14th day of September, 1873, it appears that defendant, L'Hommedieu, appeared in court and with leave of the court filed his answer to plaintiff's bill, to which the plaintiff replied generally. The answer of said L’Hommedieu is as follows: “Respondent, for answer to so much of said bill as he is advised it is material for him to answer, says, that it is true that he, to-wit: on the 11th day of December, 1858, sold to Isaac H. Abbott, not five hundred and nine acres of land, but one-half of a tract previously purchased by respondent of Samuel McDowell Reed, agent of Magdaline Reed, which last mentioned tract contained eight hundred and forty-eight acres, more or less, and divided said eight hundred and forty-eight acre tract so as to give to said Isaac H. all that portion of the latter tract lying north of a certain line agreed upon by the parties for the one-half of the said Isaac H. Said Isaac H. Abbott executed a bond for $464.00 for said one-half, and made the two payments upon said bond specified in said bill. At the time of said sale to said Isaac H. Abbott, said respondent was embarrassed pecuniarily, and made the last mentioned
The writing alleged to be signed by said Isaac H. Abbott, and referred to in the foregoing answer, is as follows: .
“Suit has been brought in the circuit court by Morris Harvey to satisfy a bond given by Charles I/Hommedieu, in the purchase of a tract of land, bought of Samuel McD. Reed, as agent of Magdaline Reed. And as the said Charles L’Hommedieu has since sold to me a part of the land, and holds my bond for the purchase money, and would have brought suit at the August term for the payment of said bond, this is to certify that, to avoid the expenses of suit, should the bond held by the said L’Hommedieu not be satisfied by the time the land is brought to sale, I agree that a portion of my land shall be sold, sufficient to pay the balance due on said bond, and half the cost that' may accrue by the action taken by the said Morris Harvey.
“Witness my hand and seal.
“Isaac H. Abbott, [Seal].
“Fayette County, June 23, 1870.”
This last quoted writing is alleged, in L’Hommedieu’s answer, to have been made on the 8th day of June, 1870. The account of $1,635.60 referred to in the answer of defendant, Charles L’Hommedieu, is as follows:
“Amount of bond, dated Dec. 11, 1858, and drawing interest from September 5, 1853; principal.S 464 00
Interest' to July 1, 1859 -five years, nine months, twenty-six days. 162 09
Principal and interest...,.$ 626 09
Deduct first payment.J. 200 00
Principal.$ 426 09
Interest to November 1, 1860 — one year'four months. 34 08
Principal and interest.$ 460 00
*687 Deduct second payment. ..... 2 837
Principal...5 387 34
Interest to February 3,1871 -- ten years, three months, twenty-two days. 239 63
Amount of bond at the time of sale.$ 626* 97
One-half Cost of suit. 75 00
$ 701 97
I. H. Abbott, in account with 0. L’Hommedieu.
Amount of note dated May 1,1850.$ 150 00
Interest to February 23,1871 - twenty years, nine months, twenty-two days. 187 30
Amount for horse, November 1,1861. 100 00
Interest to February 23, 1871 — nine years, three months, twenty-two days. 55 86
Amount loaned August 20, 1862.675 00
Interest to February 23, 1871 — eight years, six months three days. 344 58
One third crop tobacco, May 1, 1867. 100 00
Interest to February 23,1871 - three years, nine months, twenty-two days. 22 86
$1,635'60
On the 4th clay of September, 1873, the court made this order in the. cause, viz:
“This cause came on this day to be heard, upon the bill, answer and exhibits, and by consent of parties, the court, without passing upon the issues presented by the pleadings, doth adjudge, order and decree, that this cause be referred to G. M. Blume, Esq., who is appointed a commissioner for that purpose, to take, state and report the following accounts:
“1st. What quantity of land the defendant agreed to convey to Isaac H. Abbott, by the contract set out in, and filed with the bill.
“2d. How much money the said Isaac H. Abbott agreed to and did in part pay thereon.
“3d. How much of the land agreed to be conveyed to the said Isaac H. Abbott, by defendant, the said defendant has, since the date of such contract, conveyed to other parties, and to whom.
*688 “4th. What abatement, if any, the plaintiff is entitled to on the balance due on said contract by reason of such conveyances or sales by the defendant or others,and also by reason of the payment of taxes, by complainant, on the whole of the tract described in the bill.
“5th. At what time Isaac H. Abbott assigned the contract in the bill mentioned to the complainant, and what was the consideration for such assignment. In taking such account the said commissioner shall give the parties to this suit at least ten days’ notice.”
The commissioner made his report to the court, and he reports :
“1st. That by the said agreement, or contract, of the 11th day of December, 1858, the defendant, L’Hommedieu, agreed to convey to Isaac H. Abbott, one-half of the land purchased by the said defendant from Samuel McD, Need, agent for Magdaline Need, supposed to contain-acres, and by subsequent survey found to contain 1,020 acres, and that the defendant, L’Homme-dieu, and Isaac H. Abbott agreed upon a division of said land, giving unto Isaac H. Abbott 509 acres as his portion out of the said survey of 1,020 acres.” The commissioner reports :
“2d. It appearing by said contract that there was a settlement between Isaac H. Abbott and said L’Hom-medieu up to the 11th day of December, 1858, whereupon said Isaac H. Abbott executed to the defendant his bond for $464.00, that being the balance then due to the defendant, I take this as the basis of this settlement for balance due.
The commissioner then proceeds thus, to-wit:
“Bond executed by I. H. Abbott to Charles L’Hommedieu, 11th December, 1858, consideration in title bond.$464 00
Interest on same from September 5, 1853, to July 1, 1859... 162 09
$626 09
Subject to credit, July 1,1859. $200 00
Taxes paid by I. H. Abbott on whole tract for the years 1858 and 1859, $26 23; Abbott’s one-half. 13 10H&213 09jS
$412 87i
*689 Interest on same from July 1, 1859, to March 1, 1860. 38 02^
$446 00
Taxes paid by Abbott for 1860, $20 00; Abbott’s one-half.--¡f 10 00
'Credit on title bond, November 1,1860. 71 83 — $ 82 83
$ 363 17
Interest on same from November 1, 1860, to March 1,3 865.. 108 95
$ 472 12
By taxes by Abbott for the years 1861,1862; 1863, 1864 and 1865, $58 86; Abbott’s one-half. 29 43
$ 442 69
Interest on same from November 1, 1865, to November 1, 1866 . 26 66
$ 469 25
By taxes paid by Abbott for 1866, $33 06; Abbott’s one-half 16 53
$ 452 72'
Interest on same from November 1, 1866, to November 1, 1867. 27 16
$ 479 88
By taxes paid by Abbott for the year 1867, $41 99; Abbott’s one-half... 20 99
$ 458 89
Interest on same from November 1, 1867, to November 1, 1868.. 27 53
$ 486 42
By taxes paid by Abbott for 1868, $42 79; Abbott’s one-half 21 39
$ 465 03
Interest on same from November 1, 1868, to November 1, 1869. 27 90
$ 492 93
By taxes paid by Abbott for 1869, $20 95 : Abbott’s one-half 10 47
$ 482' 46
Interest on same from November 1,1869, to November 1, 1870. 28 94
$ 511 40
Taxes paid by Abbott for 1870, $28 03; Abbott’s one-half— taxes refunded by Board Supervisors to C. L’Homme-dieu, defendant, for the years 1861,1862,1863 and 1864, $43 61; Abbott’s one-half $21 80 (see order Board Supervisors, marked P, herewith filed). 35 81
475 59
*690 Interest on same from November 1,1870, to November 1, 1871. 28 53
$ 504 12'
“Showing a balance due upon bond executed by Isaac H. Abbott to defendant, with interest thereon to November 1, 1871, amounting to $504.12.
3d. And that on or from the 1st to 25th May, 1871, the defendant conveyed to one J. S. Davis 12 acres of land out of the boundary contracted to be conveyed to I. H. Abbott by said title bond, and for which he received the sum of $10.00 per acre, amounting in all to $120. And that in the latter part of the spring, or early part of the summer, of 1873, the defendant conveyed out of said boundary to George A. Burnside and Stephen Arthur, 4 acres of land, for the sum of $100, and as your commissioner cannot get the date of the sale of said land to said Davis and others, interest is brought up to November 1, 1871, on the balance due the,defendant upon the land. The above amount found due November 1, 1871,. is subject to a credit of $120.00, May or June, 1861, and also a credit of $100.00, May or June, 1873.
To balance as above due November 1, 1871.$504 12
Credit by land sold to J. S. Davis.. 120 00
$384 12
Interest on same from November 1,1871, to June 1, 1873...., 36 48
$420 60
Credit by land sold Burnside. 100 00
Showing a balance due defendant up to June 1, 1873.$320 60
The commissioner reports also that of the land agreed to be sold by the defendant L’Hommedieu, to said Isaac H. Abbott, the defendant has sold and conveyed, since the date of said contract, to other persons the two parcels stated in number three of his report. And he also reports, that on the 17th day of August, 1867, Isaac H. Abbott assigned to the plaintiff, the title bond filed and referred to, for, and in consideration of the sum of $1,500. Several exceptions were filed to this report by the counsel of defendant L’Hommedieu, which it is un
“ I. H. Abbott was this day made a party defendent, to this suit, and thereupon appeared and filed his answer to which the plaintiff replies generally. And this cause came on this day to be heard upon the plaintiff’s bill, answer of defendant L’Hommedieu, answer of I. H. Abbott, plaintiff’s replications to said answers, exhibits filed, depositions and exceptions thereto, reports of commissioner G. M. Blume, and exceptions thereto, and orders heretofore entered, and upon arguments of counsel. Upon consideration whereof, and plaintiff having withdrawn all his exceptions, the exceptions to the deposition of Bahlman is overruled, and all the other exceptions taken by defendant to depositions are sustained. And the court is of the opinion that the plaintiff, L. L. Abbott, as the assignee of the defendant, I. H. Abbott, is entitled to a specific execution of said contract, and to a conveyance from defendant Charles L’Hommedieu of the legal ¡title to the tract of land of five hundred and nine acres in the bill and proceedings mentioned, except the one acre sold to G. A. Burnside, and the twelve acres sold to Davis, upon the payment to the defendant, Charles L’Hommedieu, of the balance of the purchase money; but to ascertain what that balance is, this cause is again referred to commissioner G. M. Blume, without passing upon the exceptions taken to his report, and said commissioner is directed to ascertain and' report said balance of said purchase money still due and unpaid on said tract of land, together with such other*693 matters specially stated, touching said bálance as he may deem pertinent or any party requires.” '
The defendant, Isaac H. Abbott, in his answer says that it is true as stated in the bill, that he and his co-defendant purchased the tract of land in the bill mentioned of S. McD. Reed, agent, &c.; that they afterwards made the partition of the tract as charged and that they then made a settlement of their just indebtedness up to that time, and they held in severalty ever after, each claiming up to that partition line and occupying up to that line, and no further; that he sold his said land to his son, the plaintiff, and transferred the benefit of his title to him, who has held and claimed the same ever since. He also admits that the said sale to plaintiff was made for a fair and full consideration without fraud, and the consideration has been paid. He also admits the facts, generally to be true as charged in the bill. The commissioner made his report to the court in pursuance of said last named decree, and ascertains the balance due the defendant L’Hommedieu, on the first day of September, 1875, for said lands to be $284.462. This report is made up in a good dergee of the'same items as his first reports, if not entirely so, although he ascertains the balance due to be, less than in the former reports. To this report of the commissioner, the defendant L’Hommedieu, filed several exceptions as follows, to-wit: 1st. Because the commissioner did not allow said defendant credit for note' bearing date on-1st May, 1840; 2d. Because he does not credit for horse of said L’Hommedieu, taken off by Abbott; 3d. Because he did not allow credit for amount loaned August 20th, 1862; 4th. Because he does not allow credit for interest of defendant in tobacco crop.
On the 5th day of April, 1876, the cause was again heard by the court and a decree rendered therein as follows :
“This day this cause came on again to be’further heard upon the papers formerly filed, and the proceedings for*694 merly had therein; also on the third report of commis- ' sioner G. M. Blume made in this cause, and filed in the , office of the clerk of this court, on the 12th day of August, 1875, and the several exceptions endorsed on said report by the defendant, L’Hommedieu, and was argued by counsel. Upon consideration, the court is of opinion to, and doth accordingly, overrule the said exceptions, and each of them, and doth approve and confirm said report. And being further of opinion that on the payment of the sum of $284.46, with interest thereon from Sept., 1, 1875, until paid, which is the amount due from complainant to the defendant, L’Hommedieu, on the contract between said defendant and Isaac H. Abbott, set out in the bill and proceedings herein, which sum has heretofore been tendered by complainant to said defendant, but which was refused, the complainant is entitled to a deed for the land in said contract described, it is adjudged, ordered and decreed that James H. Nash, who is hereby appointed a special commissioner for that purpose, do, on the payment to him of the. sum aforesaid, with interest as aforesaid, execute and deliver for record to the complainant in this cause an apt and proper deed, conveying to the said complainant the land and estate which by the terms of the contract between Charles L’Hommedieu, and Isaac H. Abbott, described in the bill, the said L’Hommedieu agreed to convey to- said Abbott; but said L’Hommedieu may execute said deed in person, if he do the same within the next thirty days. And it is further decreed that out of the said sum of money the said Nash shall retain $5.00 as an allowance for making said deed, if he execute the same, and the balance he shall apply — first, in payment of the costs of this suit, including an atlowance of $20.00 to complainant’s attorney, and the residue he shall pay'to the defendant, L’Hommedieu, or his attorney. Before receiving any money under this decree, the commissioner shall giveibond in the penalty of $400 before the clerk of this court, with' condition according to law.”
“The Court should have refused a specific execution of the contract of sale made December 11, 1858, because—
“1. The plaintiff and his father, Isaac H. Abbott, had for fifteen years neglected and refused to execute said contract on their part, or offer to do so.
“2. Isaac H. Abbott, the vendee, having become utterly insolvent as early as 1862, the contract ceased to be mutual. After this time it could not have been enforced by the defendant, and therefore, a court will not compel its execution for an assignee of the vendee, especially after such great delay, and when the land has enhanced to twice its value at the time of the sale.
“3. The vendee, Isaac H. Abbott, voluntarily abandoned and cancelled the contract. Had it not been for this abandonment the defendant would have allowed the land to go to sale under the decree in favor of M. Harvey, and purchased it for the balance due under the agreement with Abbott," of June 23, 1870, but upon the faith of said cancellation of the purchase, the defendant prevented said sale to his own prejudice. To allow Abbott or his assignee to repudiate this agreement, would be to reward him for his own fraud.
“The court should have required the plaintiff or his assignor to pay the account due the defendant, as well as the balance due on the land purchased. The said account was created upon the faith of said bond as security, ■ and the defendant desisted from suing upon the solemn agreement of the said Isaac H. Abbott that the land should be the property of the defendant. The said Ab*696 bott is now insolvent, and said account barred by the statute of limitations.
“The Court should have sustained the second exception to the deposition of the witness, "W. F. Bahlman, upon the ground that there was no affidavit filed of his non-residence.”
For the sake of convenience I will consider the third assignment of error made by the appellant, before considering the others. This assignment presents an interesting question in practice, and one, it must be admitted, is not devoid of difficulty, owing to the language employed in the 34th section of chapter 130 of the Code, and a manifest intent in the Legislature by that section and the 33d section of same chapter, to change the law upon the subject, as it existed for a long time previous, and as contained in the Code of Virginia, of 1860, in section 30, chapter 176 thereof. The 30th section of chapter 176 of said Code of 1860, so far as it relates to the subject under consideration, provides as follows: “ On affidavit that a witness resides out of the state, or is out of it, in the service thereof, or of the United States, a commission to take his deposition may be issued bv the clerk of the court wherein the case is pending, directed, if the deposition is to be taken out of this state, but within the United States, to any commissioner appointed by the governor of this state, or to any justice or notary public of the state wherein the witness may be, and directed, if the deposition is to be taken in a foreign country, to such commissioner or commissioners as may be agreed upon by the parties or appointed by the court, or if there be none such, &c., * * any person, or persons, to whom a commission is so directed may administer an oath to the witness, and take and certify the deposition with his official seal annexed; and if he has none, then the genuineness of his signature shall be authenticated by some officer of the same state or country, under his official seal, unless the deposition is taken by a justice out of this state but in the United States, in which case his certifi
I will now proceed to consider the appellant’s first assignment of error, which seems to be divided into three de-visions. Before considering the facts disclosed by the record in this cause, I deem it proper to ascertain and state, at least, some of the settled law which governs courts of equity with us in compelling the specific execution of contracts for the sale of land. The exercise of this whole branch of equity jurisprudence, respecting the recision and specific performance of contracts is not a matter of right in either party, but it is a matter of discretion in the court; not, indeed, of arbitrary or capricious discretion dependent upon the mere pleasure of the Judge, but of that sound and reasonble discretion which governs itself, as far as it may, by general rules and principles; but at the same time which grants or withholds relief according to the circumstance of each particular case, when these rules and principles will not furnish any exact measure of justice between the parties. 2d vol. Story’s Eq. Jur., §742, and authorities there cited, §693 and §769 of same book. “When, indeed, a contract respecting real property is, in its nature and circumstances, unobjectionable, it is as much a matter of course for courts of equity to decree a specific performance of it as it is for a court of law to give damages for a breach of it. And generally, it may be stated, the courts of equity will decree a spe
“ A contract cannot be rescinded by one party, nor without the mutual consent which gave rise to the obligation, where nevertheless a purchaser or vendor is so far in default as to have lost the legal right to enforce the agreement, justice requires that the opposite party should have the privilege of naming a reasonable time within which, if the agreement be not fulfilled, all right under it shall cease. This modification is of comparatively recent growth, and reduces the doctrine that time is not of the essence of the contract to the reasonable proportions, which are not inconsistent with the justice that should not be lost sight of in administering equity; Remmington v. Kelly, 7 Ohio, 432; Kirby v. Harrison, 2 Ohio N. S., 326, 332; Brasher v. Gratz, 6 Wheat., 528; Jackson v. Ligon, 3 Leigh, 161; Wisnell v. McGowan, 1 Hoffman, Ch. 125; Thompson v. Dulles, 5 Richardson’s Eq. 370; Smith v. Lawrence, 65 Mich., 489; Hatch v. Cobb, 4 Johnson, Ch. 559.” In same book, page 1,056, it is said, “if one of two parties, concerned in a contract respecting lands, gives the other notice that he does not hold himself bound to perform, and will not perform the contract between them, and the other contracting party to whom the notice is given, makes no prompt assertion of’his right to enforce the contract,*713 equity will consider bim as acquiescing in the notice, and abandoning any equitable right he might have had to enforce the performance of the contract, and will leave the parties to their remedies and liabilities at law. Guest v. Hemphrey, 5 Ves., 818; Heaphy v. Hill, 2 S. & S., 29; Watson v. Reid, 1 Russ. & M., 236; Walker v. Jeffreys, 1 Hare, 341.” Time is not ordinarily of the essence of a contract for the sale of land. It is clear to my mind that neither of the parties to the contract of the 11th day of December, 1858, regarded the prompt payment of the purchase money as of the essence of'the contract. They certainly have not so stipulated. In the volume last cited, at page 1,110, it is said: “it results from the principle above stated, that as the immediate effect of the contract is to vest the ownership of the land in the vendee, and that of the purchase money in the vendor, so the right thus acquired will not be forfeited by a failure to execute a conveyance or pay the price at the appointed time, unless the circumstances or the terms employed are such as to take the case out of the general rule. In other words, the contract, although executory in form, is regarded by a chancellor as executed in fact, and consequently within the rule which would be applied at law if the vendor had given a deed.” In the case of DeCamp v. Feay, 5 S. & R., Gilson, Judge, said : “ Where time admits of compensation, as it perhaps always does where the lapse of it arises from money not having been paid at a particular day, it is never an essential part of the agreement.” The plaintiff has offered to perform the contract of the 11th day of December, 1858, by tendering to defendant, L’Hommedieu, the full amount of the balance of said purchase money, before the commencement of this suit, but the defendant, LTIommedieu, refused to receive the same and to execute a deed for the land, as clearly appears by the record before us. And the plaintiff avers that he is still ready and willing to pay said balance of of purchase money,
But it appears that the defendant, L’Hommedieu, in 1871, sold, and perhaps conveyed, then or afterwards, to one John S. Davis a boundary of land, including about twelve acres of the land embraced by the contract or agreement of said L’Hommedieu and Isaac H. Abbott, dated the 11th day of December, 1858, at the price of $10.00 per acre, or, in other words, about twelve acres of said tract or boundary so sold by L’Hommedieu to said Davis, lies on the north side of the division line in said contract or agreement. (See printed record.
Decrees Affirmed.