16 Me. 92 | Me. | 1839
Lead Opinion
A dissenting opinion was delivered by Emeky J.
It appears from the bill and answer to be admitted, that on the seventeenth day of December, 1830, the defendant and J. O. Rogers purchased of the State, six lots of land in township number two in the old Indian purchase, the defendant taking the whole title and giving his notes payable in one, two, three, and four years with interest annually, and securing the payment of them by sureties and by a mortgage of the premises. These notes remaining unpaid on the eleventh of July 1832, the defendant agreed to sell his half of these lots to the plaintiff according to the terms of the contract now sought to be enforced. It is important in the first place to ascertain the intention of the parties and their rights as exhibited in their contract; and the position of the parties upon the answer and proof introduced. The contract is informally and loosely drawn. The word consideration was used for, or intended to convey, the same idea as the word condition, and with the following words to express the terms to be inserted in the condition of the bond, and required to be performed before a conveyance could he demanded. It could not have been the intention, that the plaintiff should pay each note as it became due, for one had become due and remained unpaid. On the contrary, it could not have been the intention of the parties to permit the whole principal and interest to remain.unpaid for an indefinite period, thereby constantly increasing the amount to be paid. The deed could not be given and the whole contract settled before the last instalment became due ; and the plaintiff could not have expected, nor did the contract contemplate, upon the most liberal construction of it, a longer delay. Perhaps the most correct construction would be, that the plaintiff was to pay the note, which had become due, in a reasonable time, and the others as they should become payable. This only would save the defendant from harm and danger. The contract not only requires the defendant to give a bond, but to convey the land upon the plaintiff’s performing on his part. The fair conclusion from the testimony of Jordan is, that some advance upon the price was secured to the defendant in his settlement with
It remains to state some of the principles upon which courts of equity will or will not decree a specific performance ; and to apply them to the facts presented in this case. It is a matter of discretion in the court, whether or not to decree a specific performance, not dependent however upon the arbitrary pleasure of the Judge, but regulated by general rules and principles. When the contract is in writing, is certain, fair in all its parts, is for an adequate consideration, and is capable of beiug performed, it is a matter of course for a court of equity to decree performance. 2 Story’s Eq. ■§> 751. And performance may in a proper case be decreed where the party has lost his remedy at law. Radcliffe v. Warrington, 12 Ves. 331. But ladies and negligence in the performance of contracts are not thereby to he countenanced or encouraged, and the party seeking performance must shew, that he has not been in fault, but lias taken all proper steps towards a performance on his own part, and has been ready, desirous, and prompt to perform. Milward v. Earl Thanet, 5 Ves. 720, note (b) ; Fonb. Eq., ch. 6, §2.
There has been some difference of opinion whether a contract, which could be enforced by one party only, ought to be decreed to be specifically performed. Chancellor Kent, in Clason v. Bailey, 14 Johns. R. 485, says the weight of argument is in favor of the construction, that the agreement concerning lands to be enforced in equity should be mutually binding ; but be reviews the cases, and says the point is too well settled to be now questioned, that it may be thus enforced, if binding upon one party only. This appears now to be the generally received doctrine, and it has boon admitted in this State. Getchell v. Jewett, 4 Greenl. 350. The grounds upon which courts of equity have proceeded in such cases appears to be, that the statute of frauds, as decided in the courts of law, requires only the signature of the party to be charged to become legally binding upon him ; and equity, finding a contract legally binding, will decree its performance. Where the contract is binding at law therefore, the want of mutuality is no objection. Flight v. Bolland, 4 Russell, 298. Wiiere its binding efficacy has been lost at law by lapse of lime, courts of equity are in the
It will be perceived, that the court cannot in this case decree a specific performance without a violation of these well established rules. Allowing that the defendant had waived all compliance up to the time when he refused to give the bond, that left the parties upon their legal rights, and should have put the plaintiff upon bis guard to perform punctually, when the time arrived for a final close of the business, and not to cast himself upon the favor of one, who had just admonished him, that he did hot mean to perform, if he could avoid it. This refusal to give a bond might have justified the plaintiff in refusing to pay, if the bond had been essential to enable him to obtain the title, hut it was not; the contract which he had, was sufficient for that purpose, for it is agreed in it, that a deed is to be given upon payment. The plaintiff offers no reason for neglecting to pay from the 17th of December to 30th of March,
Bill dismissed without costs.
Dissenting Opinion
Dissenting from the opinion of the majority of the Court.
The bill asks for specific performance and relief. He who asks it, should show that he is in a condition to perform his own part of the contract. And in general that the remedies are mutual; that there has been no change of circumstances affecting the character or justice of the contract; that compensation for delay can fully and beneficially be given, and that he has shown himself ready, desirous, prompt and eager to perform the contract. If he has been guilty of gross laches, or applies for relief after a long lapse of time, unexplained by equitable circumstances, bis bill will be dismissed.
Yet a Court of Equity frequently decrees specific performance, where the action at law has been lost by the default of the very party seeking the specific performance, if it be notwithstanding, conscientious, that the agreement should be performed. And in Lennon v. Napper, 2 Sch. & Lef. 684, the Lord Chancellor says, that in all cases of contracts for estates in land, courts have been in the habit of relieving, when the party from his own neglect had suffered a lapse of time, and from that and other circumstances, could not maintain an action to recover damages at law. And even where nothing exists to prevent his sueing at law, so many things are necessary to enable him to recover at law, that the formalities alone render it very inconvenient and hazardous so to proceed. Nor could in many cases, the legal remedy be adequate to the demands of justice. Relief is granted to the man who has acted fairly, though negligently. 2 Sch. & Lef. 684. The courts of equity regard time so far as it respects the good faith and diligence of the parties. But if circumstances of a reasonable nature have disabled the party from a strict compliance, or he comes recen-ti facto, to ask for a specific performance, the suit is treated with indulgence, and generally with favor by the Court.
In the ordinary course of the purchase of an estate, and the fixing of a particular day for the completion of the title, the Court seems to have considered that the general object, being only the sale of the estate for a given sum, the particular day named is merely formal. And the stipulation means in truth, that the purchase shall be completed within a reasonable time, and regard being had to all the circumstances of the case, and the nature of the
If tbe contract be unobjectionable, it is as much a matter of course to decree specific performance as to give damages at law. 3 Cowen, 445, 505. In the sale of lands, time may make part of tbe essence of the contract, and on default at tbe day without any just excuse, or any acquiescence, or subsequent waiver, by the other party, the Court will not help tbe party in default. Benedict v. Lynch, 1 Johns. Ch. R. 370.
It would be very dangerous to permit parties to lie by with a view to see whether the contract will prove a gaining or a losing bargain, and according to the event either to abandon it, or considering the lapse of time as nothing to claim a specific performance, which is always the subject of discretion. Alley v. Deschamps, 13 Ves. Jr. 225.
If one come to a court of equity for a specific performance, he must be able to state some contract, legal or equitable, concluded between the parties, which the other one refused to execute. 14 Ves. Jr. 408. The jurisdiction is not dependent upon the form or affected by the form or character of the instrument. The Court will be satisfied that in substance, the transaction amounts to, and is intended to be, a binding agreement for a specific object, whatever may be the form, or the character of the instrument. If a bond with a penalty should be made upon a condition to convey certain lands upon the payment of a certain price, it will be deemed in equity an agreement to convey tbe land at all events, and not to be discharged by the payment of the penalty, though it has assumed the form of a condition only. Newl. on Contracts, c. 17, p. 307 to 310; 2 Story’s Eq. 22. And the purchaser ofland is considered as the equitable owner of the laud, and the vendor as the owner of the money. The purchaser may devise it as land even before the conveyance is made in equity. Lingan v. Sowray, 1 P. Wm. 172; 2 Vern. 679.
Our own stat. of February 28, 1829, c. 431, provides, that the interest which any one has by virtue of a bond or contract in writing, to a conveyance of real estate upon conditions to be by him performed, whether he be original obligee or assignee, may be attached on mesne process, or on execution and sold, and the purchaser have remedy to compel conveyance by bill in equity. This
We must dispose of this cause upon an unequivocal meaning of the contract of the parties, and their various acts, which have a relation to the execution of the contracts. Pratt & al. v. Low & Campbell, 9 Granch, 456, 488.
The bill affirms distinctly, that the plaintiff was in embarrassed circumstances at the time of making the agreement, of which he claims specific performance. This is not denied in the answer, nor is it pretended that the fact was unknown to the defendant when on the 11th of July, 1832, he made the contract with the pilaintiff. So that there does not appear to have been any change for the worse on the part of the plaintiff. It does not present a case of bankruptcy, arising after the entering into the contract, which might furnish strong reasons for considering it abandoned. The answer admits the purchase of the State of the six lots, and the mode of payment secured by the suretyship of Jacob O. Rogers and the plaintiff to the four notes signed by the defendant, alleges that timber was cut on the premises, and it was agreed, that the proceeds should be appropriated to the payment of the notes to the State, and extinguishment of the mortgage, and that the principal part of the timber remained in the stream, into which it was hauled, till after the 11th of July, 1832. And the plaintiff received the proceeds to his own use. The answer further alleges, that the defendant being apprehensive that controversies would ensue between him and said Rogers on the settlement of their dealings relating^ to the lands, and being desirous of a speedy adjustment of the same, and to be fully discharged from all further costs and trouble, and to be wholly exonerated from his liability to the State, by reason of said notes, agreed to relinquish to the plaintiff his interest in the lots, and for that purpose, gave the written agreement, referred to in the bill, but the answer also says, that he, the defendant, was also to be paid the costs, expenses, and trouble he had incurred in procuring a deed of the lots, and in the care and management about cutting the timber, which was to be the plaintiff’s property. It has been said by high authority, that the motives inducing a party to enter into a contract are not to be considered, unless expressed in
That part of the answer, which says the plaintiff did not express any intention to perform, appears to be contradicted by the defendant’s witness, Fatten, who says, that on the 7th of Nov. 1833, when the defendant asked the plaintiff to pay a note of hand he had against him then, so that he could send the money to Boston by the deponent, and take up defendant’s note, given to the State for some land, and if he did not, the defendant should not feel bound, or consider himself holden to give Rogers a deed of the land, Rogers said he would bring or send the money to pay the notes to Bangor, before the witness left Bangor. The answer further says, the defendant never agreed nor consented to any such arrangement, procured from the land agent as stated in the bill, disbelieves it, but does not call for proof. And if he did, it might be very difficult to make it out directly, as the land agent is dead. But the defendant asserts that he was not advised of it, and has never assented to any delay, and it was in violation of the agreement with the plaintiff. The defendant also says, the agreement was not mutual, and he, the defendant could not compel the plaintiff to perform.
The procurement of the bond and offer of it by Rogers to the defendant to be executed, is admitted, and so is the tender, on the 1st of April, 1835. But the defendant objects, that these acts were not till long after Saunders had demanded of the plaintiff performance, and notified him that he would not be holden. And the defendant further alleges, that from the plaintiff’s neglect, the defendant was induced to believe that the plaintiff did not intend to comply, unless after the lapse of time, the enhanced value of
At the time of entering into the contract of July 11, 1832, none of the notes to the State had been paid. One had been payable seven months, and Saunders, if he did not know that delay had afterward been procured from the land agent, remarked to Rogers, that the State would be glad to take the land back again, if he could not pay the notes. If he did not cut the timber off would give him lenity; he had no doubt he could get lenity. Saunders said there was nothing further to be done by said Rogers to entitle him to the bond. It does not appear that the land agent had ever felt insecure, or urged the payment of the notes. And all this goes to corroborate the statement of the plaintiff as to the arrangement about the notes, the last of which was not payable till the 17th of December, 1834. The plaintiff was surety on the notes for the defendant, to the State, and yet the plaintiff had no indemnity. The whole title was in the defendant, subject to the mortgage. When the agreement of July 11, 1832, was made, the plaintiff was amenable for the purchase money. And had he been compelled afterwards to pay it, and had sought from the defendant an indemnity, and the same proof had been introduced in a suit at law, as has been here, no court or jury acting on equitable principles, would have permitted a recovery against the defendant, provided he had tendered a deed of his interest in the land to the plaintiff.
In the fall of 1833, an action was commenced in the names of the defendant and Jacob O. Rogers, for taking logs from the land in controversy, against Daniel A. Cressy, and he settled it with the
In the fall of 1834, Rogers made a demand of Saunders for a bond for a deed as sot forth in the bill. A written bond was presented, which Saunders declined executing. In 1834, the plaintiff paid the taxes. In the fall of 1833, the defendant told Jeffcrds he had sold his interest in the land to plaintiff.
^áaron Ingalls testified, that in October, 1834, the plaintiff employed him to examine this land, to see if any one was trespassing on it, and he did examine it. And a few days after, saw defendant, and asked him if ho and plaintiff was going to give permits to cut timber, defendant replied, he had sold his interest in the land to the plaintiff. Two or three years ago, perhaps more, he told Charles Bailey, he had sold out his part or right in the land back of Rogers’ mills to the plaintiff. In June, 1834, he told Jacob O. Rogers, that he had sold out his interest in the land for which they had given their notes to the State to the plaintiff, and inquired if the notes had been paid, and was informed that they had not been demanded, when it was demanded they would see it paid.
No one has heard the plaintiff say, that he abandoned the agreement. None of his acts look like having abandoned it. It is true he did not pay. And certainly, in looking at the contract, informally drawn as it is, there is not in its terms any thing that binds him to pay at a certain time. This is a transcript, “ Oleman, July 11, 1832, I agree to give Z. Rogers a bond for a deed of | of 6 lots of land, being the same that I and J. O. Rogers bo’t of the Stale, in December, 1830, the consideration of said bond, when said Rogers shall pay, cause to be pay to the State their claim, and then I agree to deed to order, and 1 further agree to give up all claim for stum page cut on said land by other people. James Saunders, Jr.” A court of equity is to be governed by this principle. It is to examine the contract, not merely as a court of law does to ascertain what the parties have in terms expressed to be the contract, but what is in truth the real intention of the parties, and to
A reasonable excuse is made for the omission to pay. Taking into consideration all these circumstances, it may well be doubted whether the defendant was really serious in his notice on Nov. 7, 1833. And if he were so, his subsequent conduct up to October,
[I am aware of the argument of Livingston J. in Hepburn v. Auld, 5 Cranch, 279, raised in respect to a claim originating in 1799, to assign a certain contract in payment of a debt, but think it cannot be invoked as bearing on the facts in this case. That contract respected 6000 acres of land in Ohio, and after great delay of nearly twenty years, to get a good title to the land, the bill was brought to compel the defendant to take the assigned property and discharge the debt. And though that bill was dismissed not because time was material, which the court omitted to decide, but held that if a good title could be procured at the decree, the specific performance would be granted. The bill was dismissed, but in effect supported by the result of a suit to compel payment of the debt, by deciding that the tender of the assignment was good, which had before in the Supreme Court’s judgment been held not to have been presented to the court in pleading, as well tendered. Hepburn & Dundas v. Auld, 1 Cranch, 321. And though the bill was dismissed, one of the court said he supported the decision because the person who sought payment of the debt would now get his pay in no other way than by the assignment. Besides, if the English rule suggested by Livingston as inapplicable to our country, be considered in regard to value, it should also be considered as inapplicable to our modes of dealing. For in all the English cases, there is not a single one precisely like this, nor indeed substantially. So of Brazier v. Gratz, 6 Wheat. 528. Gratz of Philadelphia had purchased of one Craig of Kentucky, a tract of land, of 1000 acres by the survey. No patent had then issued. Afterward, one was issued in Craig’s name, who sold part to Key-ser. Gratz sued Craig & Keyser to compel a conveyance; Gratz in the mean time having sold 824 acres of it to Robert Barr.
The case of Lloyd & Young v. Collat, 4 Brs. C. C. 469, cited Harrington v. Wheeler, 4 Ves. Jr. 689, noticed again in Omerod v. Hardman, 5 Ves. Jr. 737. The chancellor says, that the conduct of the parties, inevitable accident, Sic., might induce the court to relieve. And he inquires, is there any case in which without any previous communication at all between the parties, the time has been suffered to elapse. In most of the cases there have been steps taken. That was a case by vender, who had given no abstract nor filed a bill till 16th November, though the contract was to have been completed on the 25th of March preceding. The Lord Chancellor considered the conduct of the vendee, as evidence of an abandonment of his contract.
The defendant on the 10th of August, 1792, agreed by writing to purchase the premises for £2609,17 the purchase to be completed on or before the 25th of March, 1793, and the defendant paid Young, the auctioneer, £100 as a deposit. In defendant’s answer, he stated that the value of the ground rents had diminished £560 and upwards.
Bayley v. Corporation of Leominster, 1 Ves. Jr. 475. On neglect to apply for a renewal from 1763 to 1792, the plaintiffs should have applied when one life dropt, but omitted till two lives had expired. Defendants were held not bound to renew. In City of London v. Mitford, 14 Ves. 41, a renewal of a lease for 40 years and covenant to renew every 40 years was claimed. The city had taken possession of part of the property for public purposes, between 1736, when the first lease of 40 years was executed, and 1773, and attempted to gain some advantage by obtaining a lease from a widow, Mrs. Turner, of a moiety of which she was seized for life. It remained till Mrs. Turner’s death in 1800. In 1802 the plaintiffs filed their bills, and in 1807 it was determined. And the question was, whether after the change in the property, without the consent of defendants, the city can call for the execution of a lease in its nature and terms such, that the enjoyment of the property in the mode in which it was to be enjoyed, is utterly impracticable. And if the city have
In the present case, though no act was done between the demand of the bond in the fall of 1834, and it was refused, and the time when the defendant chose without notice to take up the notes; yet that was a fault on the part of the defendant, and he ought not to he allowed to shelter himself from accountability on that account ; the very refusal constituted an apology and excuse for the plaintiff.
What is evidence of being ready, desirous, prompt, and eager according to English decisions ? In Milward v. Earl of Thanet, in note to 5 Ves. 720, the parties differed as to the construction of an agreement, and the bill was delayed 7 years! Can it be surprising that the bill was dismissed ? Yet this case was the origin of the remark of Lord Alvanly, then master of the rolls, that a party cannot call upon a court of equity for a specific performance, unless he had shown himself ready, desirous, prompt and eager. This was in March, 1801. But in the case, the Marquis of Hartford v. Barre, and Aston v. Barre, 5 Ves. Jr. 719, on the 6th of Feb. 1801, the court held, that the filing of a bill by a vendor 14 months after the correspondence upon objections to the title had ceased, ivas in season, defendant returning no answer to a letter threatening a bill, nor having called for his deposit. It was referred to a master. The defendant in his answer submitted that at that distance of time, he was induced to consider the contract abandoned. The chancellor observed, that “the plaintiffs took a good deal of time, upon their saying they should be under the necessity of filing a bill, but one may easily imagine circumstances might have happened that would have made it peevish to have done it immediately.”
No change in the character or justice of the contract is here made known, 2 Story’s Eq. 87, and compensation for the delay can be fully and beneficially given. Rules in equity cannot be
In Arminger v. Clark, Bunb. Rep. 111, 112; the Lord Chief Baron took this difference, if a man comes for a specific performance as to the land itself, a court of equity ought to carry it into execution, because there is no remedy at law, but if it is to have performance in payment of money, they may have remedy for that at law.
In the Earl of Ross v. Elizabeth Worsop, Widow & al. 1 Brown’s Parliamentary cases, 281; it was held, that where a lessor covenants for the perpetual renewal of a lease, upon the lessee’s naming a new life and paying a fine within a certain time after the death of any of the cestui que vies, a court of equity will, upon slight circumstances, relieve the lessee against a forfeiture for not literally complying with the terms of the covenant, and in this case, determined in 1740, Sir Dudley Rider & J. Browne, opposing the application for renewal, argued, that the proviso was intended to be strictly and precisely executed. And the rather because there was not a mutual stipulation for renewal, the Earl being bound to renew upon payment of the fine, and naming a new life within the time limited for that purpose, but Sir Thomas Worsop and his heirs though liable for the payment of the £100 upon the death of a certain quo vie, were not obliged to add any farther life or accept of a renewal. The renewal was decreed before the appeal to Parliament, and that decree was affirmed with costs. The defendant is more in the nature of a trustee, who is not permitted to buy for his own advantage. See 10 Ves. Jr., Ex parte Bennett, 381, at page 393, 394; Legard v. Hodges, 1 Ves. Jr. 477. The demand of the bond was made in the fall of 1834 and refused, and supposing that “ the most that can bo made of the acts and declarations before that time be that they go to show that the defendant considered the contract as subsisting, and assented to all the previous delay;” the bond being then refused, was enough to para-lize exertions of the plaintiff’. Certainly it would relieve the case from the pretence, that hazard was thrown on the defendant from hazard of fire between that time and the 30th of March, 1835, when the defendant chose to pay. No one has heard of timber land suffering from fire late in the Autumn and Winter. “ When-
“ A favored right the court should not suffer to be defeated by a technical and critical interpretation of a concession made by an ignorant man in a case in which the justice as well as the law was strongly with him. The rule of construction ought to be plain and simple without refinement and subtlety.”
In the case, Alley v. Deschamps, 13 Ves. Jr. 225, a bankruptcy of Home had intervened. The agreement was in 1797. Having paid £100, he became bankrupt in 1800. The premises had been purchased by the London Dock Company, for £3500, and the assignee claimed part of the money. The Lord Chancellor called it an extravagant case. And he took it that the agreement was not abandoned or rescinded, though there was evidence for that. This was decided in 1806. Afterwards, in 1807, in Hearne v. Tenant, 13 Ves. Jr. 287, on a motion to restrain an ejectment, the plaintiff was assignee of a lease of a house demised by the defendant. Upon the expiration of the lease, a treaty for a new lease took place, the defendant insisting upon a rent of £84, and the sum of 1000 guineas. The plaintiff, after fruitless endeavors to procure an abatement, consented to give that rent and premium. A memorandum was put down in writing, dated the 23d of Oct. expressing that the lease was to be granted for 24 years, to commence'upon the expiration of the old lease, upon condition of the plaintiffs paying on or before the end of the month 1000 guineas. Two copies of the memorandum were signed, plaintiff taking one the defendant the other. After the expiration mentioned in the memorandum, for payment of the 1000 guineas, the plaintiff calling on the defendant apologized for not bringing the money. Plaintiff produced the memorandum. The defendant, taking it, observed, that the time of payment was expired, and therefore the memorandums were of no use, and it was better to destroy them, and he then took the other out of the bureau and tore them both. The answer stated as to that transaction, that the plaintiff did not ex
Returning now to Rogers and Saunders, the parties now in conflict, we become convinced, that afterward on the 29th of March, 1835, without apprizing the plaintiff of his design, and without any new demand being made of him, and without any intimation from the State that payment was required, Saunders, the defendant, proceeds to pay the notes to the Treasurer, and have the mortgage cancelled. Bor what purpose could this have been done but to speculate on events 1 As soon as the plaintiff was informed of this course, he came freshly and zealously to preserve bis rights. And on the first day of April, 1835, tendered all the money to defendant, and demanded a deed. Jt was refused. And on the 8th of April, 1835, he filed his bill in this suit for relief.
Without any inclination to encourage laches, I am not satisfied that the plaintiff has conducted unfairly; and his negligence may, at first, have received some countenance from the defendant. It appears, to me, that the defendant, on being paid the amount of all the notes and interest given to the State, and the balance of the
But I should not give costs.
See 1 Vesey, Jr. 477, Legard v. Hodges. The Lord Chancellor “considers it a universal maxim, that whenever persons agree concerning any particular subject, that, in a court of equity, as against the party himself, and any claiming under him voluntarily, or with notice, raises a trust.”