HAYNES VS. FARLEY, ex'or and BELL, 4 Port. 528

HOPKINS, C. J. — On the twenty-sixth of April, eighteen hundred and nineteen, the plaintiff in error, received a- bond in the penal sum of seven hundred dollars, payable to himself, and made by James R. Pinkston, and several other persons. According to the condition of the bond, it was to be void, if the ob-ligors should, within five years from the date thereof, make to the plaintiff and his heirs, a sufficient deed for the land described in the condition.

At March term, eighteen hundred and twenty-nine, of the Circuit Court of Montgomery county, the plaintiff obtained a judgment at law against Pinkston, upon the bond, for the sum of two hundred and nine dollars. On the fourteenth of September, eighteen hundred and twenty-nine, Pinkston obtained an injunction of the judgment, and in his bill, which was filed on the equity side of the same Court, and upon which the injunction was granted, he prayed for a specific execution of the contract for the sale and purchase of the land.

He alleged in the bill, in addition to the facts which have been mentioned, that Haynes had been in the possession of the land, ever since the sale of it to him: That when the obligors sold it to him, it was understood between them and him, that the title was in the United States, and that it should be conveyed to him as soon as the obligors, who were purchasers of the United States, could obtain it from the latter : That the time for the conveyance of the title to Haynes, which was limited in the condition of the bond, was supposed by the parties, to be sufficiently remote to enable the obligors to obtain the title from the United States: That some irregularity in the surveys, which had been made for the United States, caused a difficulty in obtaining the title, and that without any default on the part of the obligors, no patent was issued for the land, until after the commencement of Haynes’ action upon the bond: That immediately after the obligors obtained the title, they offered to conyey the land to Haynes, and he refused to accept a conveyance.

A supplemental hill was. afterward filed.by Pink-sio i and Bushrod Bell, in which they alleged that a judgment had been obtained against Bell for the amount of that against Pinkston, for (he failure of Bell, as a Sheriff, either to return or make the money upon an execution, which issued on the judgment against Pinkston.

Upon this bill, an injunction of the judgment against Bell, was granted. ■ The answer of Haynes, denied that there was any other understanding between the obligors and himself, as to the time at which the’title to the land should be conveyed to him, than that which appeared in the condition of the bond. Other facts are stated, both in the bill and answer, of which it is unnecessary to take any notice. Before the cause was heard, Pinkston died; and his executor, Jonathan C. Farley, made himself a party to it.

It was heard upon the bills, answer, the bond as an exhibit, and the admission of Haynes’ solicitor, th'at the obligors in the bond, were then able to make a good title, and that a sufficient deed, from them, ■was deposited in Court, for the acceptance of Haynes. It is unnecessary to decide the question, whether a person who seeks the specific execution of an agreement ought to be permitted to show by parol proof, that the day for the performance of the contract, was a different one from that fixed in the written agreement.

In this case, the allegation in the bill, that it was understood between the parties, the obligors should convey the land to the plaintiff in error, as soon as they could obtain a title from the United States, is denied in the answer, and the answer is uncontradicted by any proof. Nearly five years .elapsed after the expiration of the time within which they had bound themselves to convey the land, before Haynes obtained the judgment at law, on the bond. During all that time, Haynes could not have obtained, had he desired it, a specific execution of the contract.

The title was in the United States, and the obli-gors were incapable of performing their agreement. No decree for a specific performance would have been made, if they, instead of Haynes, had applied for it, during that time, to a Court of equity. Equity neither requires a vendor to do what he has no right to do, nor compels a vendee to accept less than the complete title for which he has bargained. When Haynes commenced his action at law, for the breach of the condition of the bond, neither of the parties to it had any remedy in equity.

Haynes had a right to his action, and had been entitled to it, from the time the breach occurred. A vendee, with a valid agreement, may, after a breach of it, elect to proceed at law to recover damages, or in equity, for a specific execution.

After he has elected to pursue the former course, the vendor can not, without some ground of equity, compel him to accept a conveyance.' It does not appear, in this case, when the vendors made full payment to the United States, for the land ; and the allegation-in the bill, that a difficulty in obtaining the title from the United States, arose from an irregularity in the surveys, is denied, in the answer, and there is no proof of it.

If this allegation consisted of matters of fact, so distinctly stated as to be capable of proof, and that the effect of them could be determined by the Court, it would, denied, as it has been, and without proof as it is, be disregarded. As Pinkston proved no excuse for the long delay, in obtaining the title, which he and the other obli-gors agreed to convey to Haynes, it is not necessary to determine what ground would be sufficient for a Court of equity to interpose in favor of vendors, and compel a vendee to abandon his remedy at common law, and accept a specific performance of the contract.

The view we have taken of the subject, is supported by the decision of the case of Long vs Coldsim; and it is opposed by no principle, that we know of, upon which a Court of equity acts, in disposing of applications for specific performance.

If a vendee retain the possession of the land, after the vendor’s breach of the agreement, in not conveying on the day fixed for the purpose, it may be evidence of his acquiescence in the delay, and that he continues to look to the fulfilment of the contract; but if, afterward, and before the vendor is able to convey, the vendee bring his action for damages, the assertion of his legal right, is a termination of his previous acquiescence, and evinces his election to rely upon his common law remedy. Possession held by a vendee, after he brings such an action, is not

an act in part performance of the contract. The contract is abandoned, as to all the claim which could be made upon it to a specific performance. The claim of Bell, if he had any, to relief, rested upon the ground on which Pinkston relied; and as we are of opinion that the execution of the contract, ought not to have been decreed, the decree must be reversed and the bill dismissed. GOLDTHWAITE, J., not sitting. 2Sto.Eq. Eq b./ich! jjlVua 290’299' iso. ' ’