9 Johns. 450 | Court for the Trial of Impeachments and Correction of Errors | 1812
The first objection to the decree is, that it decrees a specific execution of part of an entire contract; that the respondent will get a conveyance for 234 acres, instead of 439, to which he was entitled, if any. The agreement of 1787 was executory; it did not vest any legal title in the respondent; but it gave him a right to coerce the appellant and Wisner, by resorting to a court of equity, to a specific execution; or he had the election to sue at law, in case they refused to convey the lands to him, for damages. It cannot be controverted, that a conveyance for a valuable consideration, made bona fide to a third person, without notice of the agreement, and before it had been carried into execution, by a deed, would have passed to a third person the legal title The appellant discloses, by his answer, that he
With respect to the three parcels of the lot conveyed away by the appellant before his answer came in, the same remarks are applicable. The appellant cannot take advantage of his own wrongful acts, to discharge himself of a vested right in the respondent. Whether these conveyances would have stood the test of an inquiry instituted by the respondent is immaterial. He acquiesces in them; and so far the appellant has, by his own act, disabled himself from performing his contract specifically. It is against all my notions of justice, to allow the appellant to excuse himself from performing so much of the contract as he can yet perform, because he has seen fit wrongfully to abridge himself of the power of performing the whole. And I again recur to the observation, that the converse of this proposition would not be just or true. The respondent might insist on having all the land or none, or he may elect to consider the acts of the appellant as his, and thus make valid what was wrongful.
The cases which have been cited, to show that a court of chancery will not decree a partial performance of articles, but will decree all or none, are not applicable to the case before us. As a general principle of equity, the proposition is incontestable; and
-In the present case the land was contracted to be sold at one dollar per acre; and it is not set up by the appellant that the land in the possession of the respondent, and which was decreed to him, is more valuable than the other parts, sold by the appellant; and I am, on the justice of the case, as well as on authority, of opinion, that the decree, in this respect, ought to be affirmed.
The next point made, was the delay on the part of the re.
By the agreement of 1787, the appellant and Wisner bound themselves to give a conveyance, on or before the 1st of December, in that year, at which time the respondent was to secure the purchase-money. These acts were to be concurrent. The conveyance must necessarily have preceded the security. The laches in not perfecting the contract is certainly as much, if not more, attributable to the appellant than to the respondent. . The lapse of time, in a case like the present, where no material inconvenience has been suffered by the appellant, can be urged only on the ground that the agreement has lain dormant; and that this is evidence of the abandonment of it by the parties. In the case of Lloyd v. Collet, (4 Bro. Ch. Cas. 469.)
I have said that no material inconvenience has [been suffered by the appellant; and the counsel have insisted, as a notorious fact, that the lands have appreciated. On this point we have no evidence; but if it be admitted, are we to suppose that the appreciation of the land is greater than the interest of the money, in case no payment has been made ? I cannot say so; and, therefore, in the absence of proof to the contrary, I recur to the observation, that the appellant will suffer no material inconvenience from the lapse of time.
The next point made was, that to allow the respondent to prove payments anterior to the contract, would be impugning the deed by parol proof; and that, therefore, the feigned issue was immaterial ; and under this head, it was contended that the bill contains no allegations of fraud, or mistake, in the agreement itself.
The answer by the respondent’s counsel to this objection.
The last objection to the decree is, that Wisner did not own any part of the land; and, therefore, the payments made to him ought not to be allowed against the appellant.
It does appear that Wisner paid part of the money, for the pur
10th May, 1812.
This being the unanimous opinion of the court, it was, thereupon,
Ordered, adjudged and decreed, that the decree of the court of chancery be affirmed; and that the appellant pay to the respondent one hundred and fifty dollars, for his costs and charges, in and about his defence in this court; and that the cause ¡be remitted to the court of chancery, to the end that the decree of this court may be carried into execution, &c.
Judgment of affirmance.
1 Pow. Cont. 868.
See the chancellor’s opinion fully reported in 4 Ves. jun. 690. in a note. It is very imperfectly stated by Brown. In Ballard v. Walker, (3 Johns. Cases, 60.) there was a written contract to convey on or before a certain day, when the money was to be paid or received, and 4 years having elapsed from the date of the contract, without any tiling being done, and before the vendee gave notice to the vendor that he should insist on the agreement, and five years elapsed before he actually tendered a performance, the supreme court held that the contract must be presumed to be rescinded, and that no action could be maintained upon it by the vendee, though it appeared that the vendor had, within a year after the date of the contract, incapacitated himself to perform on his part, by conveying the land to a third person.