4 Tenn. 274 | Tenn. | 1817
This bill states, that Mark Robertson, in the month of October, 1783, agreed to sell two locations or descriptions of land, of 5,000 acres each, situated on Duck River and Fountain Creek, in the middle district of the State of North Carolina, and to superintend the surveying thereof. The said James Holland agreed to convey to said Mark Robertson one equal fourth part of the lands, to be secured as soon as titles should be obtained. And as evidence of and security for performance of said agreement, said James Holland gave his bond, on the 8th of October, 1783, in the penalty of ¿£1,000, with the condition following : “ That whereas the said Mark Robertson hath furnished the said James Holland and William Gilbert with two locations containing 10,000 acres, upon Duck River and Fountain Creek, and also is faithfully to superintend the surveying of the said land, and provided the said Holland and Gilbert should obtain indefeasible titles to the same by virtue of said entries and lands when surveyed, then, and in that case, the said Holland and Gilbert should transfer and convey to the said Robertson, his heirs and assigns forever, 2,500 acres of the said land, of equal value in proportion to the quantity, then the above obligation to be void, otherwise to remain in full force and virtue.” Before
The second ground of defense is,’ that Mark Robertson, attending at Hillsborough for the purpose of selling locations, is to be considered in the , same light as if he had got, the warrants to locate as a locator, and is liable for a faithful discharge of his duty ; that these numbers being early ones, to wit, 421, 442, * ought to have been laid on better land. It is in proof, that at that date, to wit, in 1783, it was generally believed that all the land on Duck River was land of the first quality, that
A third ground of defense is, that Mark' Fobertson did not superintend the surveying of these tracts faithfully. The survey of the Holland tract began 275 poles, below the mouth of Fountain Creek, on the river,- and ran south 30, west 130 poles, thence south 880 poles thence east, 820 poles, thence north 1,010 poles, crossing Duck Fiver, then 760 to the beginning. If the second line was extended north from the second corner, it would pass the beginning 60 poles * distant at a point due west therefrom, which would be near the river, so that the survey covers within a few acres the same land as if it had begun one mile below the mouth of Fountain Creek. The Gilbert tract begins in the southwest corner of the Holland tract, and runs west 74 poles, but measures 94 poles, then south 696 poles, then east 1,220 poles, crossing Fountain Creek at a little upwards of two miles from the southwest corner, then north to Holland’s line 696 poles, then west to the beginning, crossing Fountain Creek at nearly three miles from the northeast corner. All the testimony goes to
My opinion is, that these authorities do not apply to the present case. It does not appear that the plaintiff hath shown a backwardness, and permitted his claim to lie dormant further than what, by the circumstances of this case, may be fairly accounted for. The grants issued in 1788; in 1792 the defendant came into this State for the first time afterwards. He was then applied to for a specific execution. Upon his removal into this State, he was applied to for the same purpose, and even urged upon the occasion; and finally suit was brought within a short time after he had procured a legal title to the Gilbert tract and became enabled to' perform his contract specifically. But why is it said in the books, that time raises an objection to a specific performance ? Because, say they, in one class of cases, it is evidence of a waiver, or an abandonment of the contract. But what kind of cases will raise this presumption and furnish a justification for the court to take this ground ? Surely not this kind, where the plaintiff has paid the full consideration, hath performed all on his side, and fully entitled himself to the benefit of an execution from the other. It would be an extraordinary presumption, this, indeed, and such as no case introduced warrants. The authorities, when looked into, show this, that upon a contract for the purchase of an estate generally, some deposit is made by the vendee, which he forfeits if he flies from the contract, or if the vendor flies, the vendee takes his deposit back again ; but
Decree for the plaintiff.
See, as to the duty of locators, Hall v. Ross, 3 Hay. 200. As to lapse of time in bills for specific performance, Buchanan v. Brown, Cooke, 187; Smith v. Christmas, 7 Yer. 576; Cocke v. Evans, 9 Yer. 287. As to plats and certificates as evidence, Roberts v. Cunningham, Mar. & Yer. 73; Bell v. Hickman, 6 Hum. 398; Dallum v. Breckenridge, Cooke, 152; Patton v. Carothers, Cooke, 148; Mitchell v. Churchman, 4 Hum. 218; Polk v. Hill, 2 Tenn. 153; Tate v. Gray, 1 Swan, 73. See King’s Digest, 1751, 2878, 2912-23, 2925 et seq., 6001, 7925, 7927.