delivered the opinion of the Court:
Several of the assignments of error were not pressed in the argument at bar. Those remaining may be disposed of under a few general propositions.
The three papers executed on June 18, 1889, must, of course, be considered together in determining the import of the agreement upon which complainants base their bill. "When so con
While it is true that it must appear that the party seeking specific performance of a contract has acted in good faith, it is also true that the facts and circumstances of each case must control the court in its determination of this question. The record discloses that Louden and his wife were ignorant and uneducated people, and that Nash was a man of considerable business experience. In the light of what subsequently took place, it is reasonable to presume that, after entering into the agreement, the Loudens became suspicious of the absolute good faith of Nash, and therefore endeavored to repudiate their agreement with him. But they were not successful in this, for the record shows that Nash obtained possession of the premises, by the assertion of a right secured to him by the very agreement upon which the bill in this case is based. It would be unconscionable, it seems to us, to deny relief because Nash was caused some inconvenience in securing possession under the contract. He then made his election, and, having undertaken to carry out the provisions of the trust, must be held responsible therefor.
It was January 1, 1897, before complainants were entitled to specific performance under the contract. There was a delay, therefore, of only about a year in filing their bill. This delay
Under this agreement Nash and his heirs had absolute control of this property. They were to manage it, and did in fact manage it, as their own; and until compelled by this bill to account, it was impossible for complainants to know whether the time had arrived when they could demand specific performance under the contract. It does not appear that the delay in any way prejudiced the defendants. The point is urged that action should have been taken by Louden after the sale under said second deed of trust in May, 1890, the evidence showing that he was present at such sale. Here again we must take into consideration the situation of the parties. Nash had been for some months occupying the premises under said trust agreement. The sale was in direct violation of his trust and in no way relieved him from the obligations of that trust. The parties are dead, and no evidence other than the inferences to be drawn from his inactivity has been introduced to show acquiescence on the part of Louden. Mere submission to an injury cannot generally, in the absence of other circumstances, take away a right of action unless continued for the period limited by statute for the enforcement of such right. Kilbourn v. Sunderland, 130 U. S. 505, 32 L. ed. 1005, 9 Sup. Ct. Rep. 594; Pryor v. McIntire, 7 App. D. C. 417.
The property in this case is still in the hands of parties charged with knowledge of the original agreement, for, of course, their right as heirs is precisely the same as the right of Nash were he living. The agreement continuing in force not
There are several assignments of error based upon exceptions to the auditor’s report which involve mere findings of facts and which were not pressed in the argument and will not be considered here. Such findings will not be set aside unless it appears that there has been an error in law or a conclusion of fact unwarranted by the evidence. Hutchins v. Munn, 209 U. S. 246, 52 L. ed. 776, 28 Sup. Ct. Rep. 504; 28 App. D. C. 271. Neither of these propositions appears in this case.
One other contention remains. In 1897, fire entirely destroyed the building on these premises. It was rebuilt in a much more substantial manner by the appellants. Other improvements had theretofore been made by them. They now insist that they should only be charged with such rents and profits as the property would have yielded without the improvements made by them. In the circumstances of this case this is quite a remarkable contention. They held this property in trust and were only entitled to be reimbursed for such improvements as were reasonable and necessary to preserve the income-producing capacity of the property, and made in good faith. Since the premises should have been surrendered under the trust agreement at the close of 1896, and prior to the making of most of these improvements, appellants are certainly not in a position to challenge the ruling of the court below charging them with the income on the property unjustly withheld from its true owners. Jackson v. Ludeling (Jackson v. Vicksburg, S. & T. R. Co.) 99 U. S. 513, 25 L. ed. 460; Tatum v. McLellan, 56 Miss. 352. There is no foundation for the contention that appellants made these improvements under the bona fide impression that they were the lawful owners of the property, for they were charged with knowledge of the trust agreement and bound thereby. It would be inequitable to charge the estate with the cost of the improvements, and, at the same time, deprive it of the benefit of such improvements. The cost of these improvements has been allowed on the theory that they were made for
Tbe decree is affirmed, with costs.