1 Rand. 408 | Va. | 1823
March 27.—Judge
delivered the opinion of the court.
The court is of opinion, that the agreement entered into between Henry Banks and John Harvie, of the 26th of April, 1800, as modified by that of July 9th, 1802, mentioned in the proceedings in this cause, in relation to the lands in Henrico county, are not to be considered as amounting to an executed lease fx'om Harvie to Banks, hut a covenant to make such lease, on Banks’s performing his part of these agreements; and that the said Banks, has not shewn himself entitled to claim a specific execution of the said contracts, in as much as he has failed to perform his part of the said agreement, and does not now offer to perform them, or shew that he is willing or able to do so.
The court is further of opinion, that if the said agreements could properly be considered as executed, and as passing a legal title to Banks, as that title is fox-feited at law, a court of equity ought not to relieve against such forfeiture, upon the mere payment of the arrears of rent, but only on condition that Banks should perform all the stipulations in the said contract on his part to be performed, and especially pay so much of the sum of g 12,000, as has not been applied to making improvements on said