16 Ala. 196 | Ala. | 1849
If we are to consider the failure of the complainants to deliver to the Register, the plates and maps within the time prescribed by the decree, in the nature of a default in not observing the rules of a court of equity, or even as not observing an order made in the progress of a cause, it is very certain that the chancellor may, in the exercise of his discretion, relieve them from the legal consequences of such default. Beekman v. Peck, 3 Johns. Chan. Rep. 414; Wooster, et al. v. Woodhull, 1 Johns. Chan. Rep. 538; and it is said in the, case of Ashe v. Moore, 2 Murphy, that every order made in the progress of a cause may be rescinded or modified upon a proper case being made out.
But we think the decree of the chancellor, prescribing the time, within which the maps and plates were to be delivered to the the Register by the complainants, and the money to be paid by the defendant, must be considered in the nature of a contract of which the time of its performance is a material part. In the opinion of the chancellor, the complainants were not entitled to relief, but as both parties expressed a willingness still to comply with the contract, &c. ordered the complainants to deliver the plates and maps to the Register of the court, within six months from the dale thereof, and if they made default the bill to be dismissed; and the defendant, within the same time, to pay the money into court, and if he made default, a decree of foreclosure to be rendered. Under this decree, the entire equity of the complainants depended upon their compliance with the order of the court. If Ihey did not perform within the time prescribed, they wen xuithout equity,. If, therefore, the