Ong v. Campbell
6 Watts 392
Pa.
1837
Check Treatment

The opinion of the Court was delivered by

Gibson, C. J.

The defendants’ remedy in equity, would be by bill for an injunction in the nature of specific performance, Eden on Injunctions 32; for, though the books mention, as instances of it, injunctions to restrain ejectments against tenants holding by agreement for a lease, the cases are identical in principle. The cause stands, therefore, as it would stand before a chancellor, on a bill by the defendant for specific performance. Now it is settled, that an agreement may be resisted for a waiver of it by parol, or by acts which induce a presumption of -abandonment. 1 Madd. Ch. 407, 8. Thus, even dormancy of the contract precludes a *397party from insisting on it; much more so, does trifling with it, or reluctance to perform it; and, indeed, any act inconsistent with it, is a waiver of it. Besides, a party calling for performance, makes performance on his own part, or tender of it, a condition precedent: and how stands the cause with these principles? The defendant went into possession under a purchase, and, to enable the plaintiff to execute it, stipulated, to extinguish a mortgage which was an incumbrance on the title; instead of which, he purchased an assignment of it, and holds it, not only unextinguished, but in active operation. It will not be pretended, that this was performance to the letter; and it is equally clear, that the mortgage was kept on foot for something different from performance in substance. It is in vain to sa}r, he holds it as security for what he paid for it. His stipulated security was the contract and its means of enforcement. He undertook to abide by it implicitly; and it exacted a thing from him, for which there was to be no equivalent. There is, indeed, a class of cases, in which specific performance is decreed on principles of compensation and indemnity for a variance from the description of the estate sold; with this limitation, however, that there be not a substantial variance from the contract; but in Drewe v. Hanson, 6 Ves. 675, Lord Eldon intimated, and in Alley v. Deschamps, 13 Ves. 228, Lord Erskine asserted, that even in this particular, the doctrine had been carried too far. There the party incautiously promised what, it happened, he could not exactly perform; but no case dispenses with exact performance by one who has power to perform, and refuses to exert it, insisting that something else than performance be taken for it. It is immaterial, therefore, that the mortgage, in the defendants’ hands, was not an obstacle to a conveyance in confirmation of the title: it is enough, that the plaintiff had required, and the defendant had promised, that it should be put entirely out of the way. That the plaintiff should be exposed to it as an instrument of compulsion, is inconsistent with the form, as well as the substance of the agreement. We know not, whether it contains a covenant for payment; but the bonds which were assigned with it, and are in legal contemplation a part of it, were attended with the same effect: and the ^ defendant procured them, for what? Certainly not to get them out of the way of the contract. He assumed an attitude of resistance by the very act. But to insure the assistance of a chancellor, requires an observance of the contract in spirit and in truth; and the defendant could not, consistently with it, so take his measures as to appear in the garb of a purchaser and mortgagee at the same time, and demand a -conveyance or the debt, as the purchase should turn-out to be a good or bad one. It may be, that the fraudulent procurement of the mortgage and personal securities, would preclude him from using them; but as a purchaser has a right to insist on a legal title because it is his bargain, so has the plaintiff a right to insist on a legal extinguish*398ment. Though the defendant could not enforce the mortgage against the terms of his agreement, the procurement of it was an act of such faithlessness, as would at once determine a chancellor to withhold his assistance from him. The procurement of it, however, is not all. He has proceeded on it since the institution of the present suit; and it is unimportant, that he did so only, when the plaintiff had disaffirmed the pinchase by an action inconsistent with it. By closing with him on his own terms, the defendant consented to treat the contract as at an end. It is impossible to say, that a measure whose tendency is to put the title beyond the plaintiff’s control, can be subordinate to specific execution. It was a false move, and a fatal one, even had the game not been lost; nor does the fact, that it was made subsequently to the action, preclude the plaintiff from taking advantage of it. It'is not a part of the title which has sprung into existence since the action, but a circumstance to rebut an equity set up in derogation of the title; and a chancellor, guided by discretion in the use of his extraordinary powers, would disregard the time when a party seeking reconciliation with the contract had repudiated it. Even at law, acts done since the last continuance, may be pleaded in bar; but to say nothing about the inadmissibility of a special plea in ejectment, there can be no such thing by a plaintiff. The case is, undoubtedly, not within the statute of frauds; but on the ground indicated, the defendant, whatever be his rights as a mortgagee, is precluded from calling for specific performance.

Judgment reversed, and a venire facias de novo awarded.