Cureton v. Gilmore

| S.C. | Sep 4, 1871

The opinion of the Court was delivered by

Wright, A. J.

Sometime during the month of March, 1867, one James Pagan, a commission merchant, doing a large business in making advances to planters, secured by agricultural liens, made advances to one W. T. Gilmore, who was a planter, upon the faith of the said Gilmore, promising to give a lien upon his then growing crop. Gilmore died suddenly, in June of the same year, without having given the said Pagan a lien on the crop as agreed.

Administration on his estate was granted to complainant, and bill filed to marshal the assets of the estate, which was insolvent. The claim of the said Pagan was allowed by the Commissioner, before whom it was established, and he (Pagan) reported as being a creditor standing “upon a high equitable ground.” To this report exception was taken, which was sustained by the decree of the Circuit Judge, from which decree the said James Pagan appeals.

There is no dispute as to Pagan furnishing Gilmore with that which was requisite to raise the crop, and that a good crop was raised that year. These facts are well established by the testimony. It is clear that Pagan had no ben upon the crop of the deceased, as a statute was made to create an agricultural lien, and no lien could be created without strictly complying with that Act, which will be found in Vol. 18, p. 380, and reads as follows: “That if any person or persons shall make any advance or advances, either in money or supplies, to any person or persons who are engaged, or are about to engage in the cultivation of the soil, the person or persons so making such an advance or advances, shall be entitled to a lien on the crop, which may be made during the year, upon the land in the cultivation of which the advances so made have been expended, in preference of all other liens existing or otherwise, to the extent of such advance or advances : provided, an agreement, in writing, shall be entered into before any such advance is made to this effect, in which shall be specified the amount to be advanced, or in which a limit shall be fixed beyond which the advances, if made from time to time during the year, shall not go, which agreement shall be recorded in the office of the Register of Mesne Conveyances for the District, in which the person to whom the advances are made resides, within thirty days from its date.”

By this Act it is perceived that there were certain duties to be performed by the party to make the advance or advances, as well as the other party, who was to receive the advance or advances, previous to any money or supplies being delivered to the party of the second part. This Act is plain and complete for the protection of all parties to the contracts created by it. Pagan, according to his own testimony, began to make advances to Gilmore in February. The Act provides that “ an agreement in writing shall be entered into before any such advance is made.” Those who violate the law must expect to abide the consequences. When a person comes into a Court of Equity to ask the Court to compel specific performance of a contract, he must first show that all has been done that could be done on his part to comply with the law; because where there is negligence and neglect of duty, as is plainly shown in this ease, and that is left undone which ought to have been done by him who asks the aid of the Court, equity will grant no relief. It is very clear to this Court that it was in consequenee of the laches of the appellant that he did not have a lien upon the crop of the deceased; and it is a well settled rule of equity that where there is gross negligence, the Court will not lend its aid to complete the contract, for to do so would be to encourage and foster negligence in parties making contracts. In Fonblanque’s Treatise on Equity, 1st Book, p. 391, he says: “ He, therefore, who demands the execution of an agreement, ought to show that there has been no default in him in performing all that was to be done on his part; for, if either he will not, or through his own negligence cannot, perform the whole on his side, he has no title in equity to the performance of the other party, since such performance could not be mutual. And, upon this reasoning, it is that where a man has trifled or shown a backwardness in performing his part of the contract, equity will not decree a specific performance in his favor, especially if circumstances are altered.” The same doctrine is fully sustained by our own Court in the case of Thompson vs. Dulles, 5 Rich. Eq., 391.

It is ordered that the decree be affirmed, and the appeal dismissed.

Willard, A. J., concurred. Moses, C. J., absent at the hearing.