HEPBURN and DUNDAS, plaintiffs in error, v. COLIN AULD, defendants in error; and HEPBURN and DUNDAS, appellants, v. COLIN AULD, appellee, 5 Cranch 262

March 14. Marshall, Ch. J. delivered the opinion of the court as follows, viz. By the agreement of the 27th of September, 1799, the plaintiffs bound themselves, in the event of not páying, on the 2d of January, in bills of exchange, or money, the amount of the award to be rendered between the parties, to assign and transfer, on that day, to the defendant, a contract they had made with Graham, by which they had sold to him a tract of land containing 6,000 acres for the sum of 18,000 dollars, payable at differenttimes, with interest.

They also bound themselves to execute an irrevocable power pf attorney enabling the defendant, in their names, to recover the possession of the-land, or to enforce, the payment of the purchase-money, at his election. . The defendant covenanted to accept this assignment, towards the discharge of the award, and, if it fehould exceed the amount thereof, to pay the excess. On the part of the defendant it has been contended that this assignment was to be received as security for, and not as payment of, the debt due to Dunlop & Co. But on this point it is impossible tip entertain a doubt.

The contract itself is conclusive. The word towards” was obviously introduced because, the award not being then made, it was uncertain whether the assignment would completely discharge its amount. But the words of the agreement admit of no other construction than that it was to bé received either in part or in full payment, as the sum awarded might be of a greater or less amount than the stipulated value of the contract to be assigned, All.the testimony connected with the agreement of September, 1799, tends to confirm this construction. The( next inquiry respects the transactions of the 2d of January,, 1800.

The plaintiffs insist, and the defendant denies, that the tender made by Hepburn and Dundas on that day was a legal offer Jo do, what they had covenanted'to perform., . The efficacy of the assignment itself is not questioned ; but it is contended on the part of the defendant that the instrument is vitiated by the'clause which is introduced into it, reciting, as a part of the consideration on which it was'jhade, that a release of all claims and demands whatsoever, on. the part of John Dunlop & Co. against them, had been given.

The contract of September, 1799, certainly does not,,.in'terms, stipulate; for sucha release; and if this recital in the deed of assignment could possibly prejudice John Dunlop & Co. that circumstance would unquestionably invalidate the tender. But if it should be deemed an unimportant recital, .then the tender is a substantial performance of the contract, so far as it was to be performed on the 2d of January, 1800, and at least imposed on Colin Auld the duty of preparing an unexceptionable deed, and demanding its execution.

It has already, been stated that, under the agreement- of September, 1799, the assignment of Graham’s contract was to be received in payment, and consequently that assignment, accompanied with a proper power of attorney, would discharge the award as fully as a payment in bills of exchange or money. Had the deed, therefore, limited its recital to a discharge of all claims and demands under the award, it would have been. strictly correct; for to such a discharge Hepburn and Dundas were entitled.

The deed of assignment, properly executed and received, and the power of attorney would, in law, have been a full payment of the award ; and the subsequent'claims of John Dunlop & Co. would grow' out of the agreement of September, 1799. The inquiry,- whether the general terms of the recital.affords any substantial'objection to the deed, produces two questions. 1. Could John Dunlop & Co. have had any other claim's and demands on Hepburn and Dundas, than were comprehended in this award ? 2. Would this recital in the deed of assignment .impair those claims which grew out of the agreement ? 1.

The papers themselves sufficiently show that every claim whatever of John Dunlop & Co. on Hepburn and Dundas was settled in the award. The general complexion of the agreement óf Septena her, 1799, provea this; hut the particular stipulation to give “ a full receipt and discharge of alf claims and demands of John Dunlop & Co. against them,” in the event of payment, of the award being made in money or bills of exchange, places the subject beyond any doubt. Dunlop & ,Cq. had no claims and demands on Hepburn and Dundas, which were not settled in the award* 2.

Could this recital impair the rights of Dunlop & Co. under the agreement of 1799? The covenants of that agreement which were not completely satisfied were, 1st. That Hepburn and Dundas would not, after executing the deed of assign-) xnent, interfere with the measures which Colin Auld might think proper to pursue for the recovery of either the land sold to Graham, or the money due under Graham’s contract; 2d. That they would convey the said lands in fee-simple, after the termination of the suit then depending, to the person who should be decided to be entitled tp them* 1.

The covenant not to interfere was not a present dutv. The obligation it created did not come into existence until after the execution of the deed of assignment. It was to be a consequence of that deed. At the time of its execution, this was not a claim or a demand. Taking the \yords in their most literal sense, the covenant not to interfere would »ot, in the opinion of the court, be released by them: but the court is also of opinion that, if this was in any degree doubtful, these general terms would be restrained by the manifest intent of the parties, apparent on the face of the papers. 2.

This release could not discharge the obligation to convey the lands, after the termination of the suit with Graham; for the reasons assigned against the foregoing objection, and for this additional reason ; the deed intended to transfer tq Auld all the rights of Graham under the contract, an¡d is so expressed ; and.one of the covenants in the contract assigned .was* to make a conveyance with a general warranty of a title free from all encumbrances.- The recital,, then, presents no solid objection to the deed of assignment^. because, it could not inipair the rights of Dunlop & Co.

Yet it is unusual and unnecessary, and had Colin Auld prepared a deed which was perfectly unexceptionable^ and Hepburn and Dundas had refused to execute it, this court, although the tender might have been good at lav?, would probably have held them responsible for any injury which might have been sustained in consequence of such refusal. The power of attorney, which was tendered at the same time with the deed of assignment, appears entirely unexceptionable.

It is, then, the opinion of the court that, on the 2d of January, 1800, Hepburn and Dundas offered to do every thing which it was at that time incumbent on them to, do ; and that the tender made on that day, with the refusal of that tender, do in law amount to a performance, so far as to place Hepburn and Dundas in the same situation, with regard to„the claims of. Dunlop. & Co. under the award, as if Colin Auld had accepted the deed.

This, however, did not discharge them from the duty of executing a proper deed when required, nor from the duty of making conveyances for the land which was the subject of the agreement of September, 1799. If a. doubt existed on this point, the subsequent conduct of Colin Auld would, in a court óf equity, •amount to a waiver of the day, so far as respects the tender of the deed, and a consent to accept such deed at an after day within a reasonable time.

The subsequent demand of a deed by Colin Auld, when he tendered the money which was due op ac.coant of the excess of value in the estimated price óf the land over the sum awarded to John Dunlop & Co. was made in a manner, and under circumstances, which are hot deemed reásonable. Hepburn and Dundas had a right to consider and to take counsel on the deed they were required to execute ; and although their delay was unnecessarily great, yet the offer they made might have been acceded to.

In fact, they might reasonably insist on leaving the transaction on the ground on which it was placed by the contract of September, 1799, which would h^ve been done in a manner free from all exception by executing such a deed as that tendered on the 2d of January, 1800, after striking out that part of the recital which respected the release. The interference of Hepburn and Dundas, in accommodating the suit with Graham, is also urged as an objection to their conduct. They had certainly no right to interfere without the consent of Colin Auld.

But when the correspondence is inspected, and it is perceived that they interfered only to effect the object he had himself desired, and which he had avowed his own inability to effect without their consent, the interference must be considered as innocent in point of intention, and unproductive of injury in fact. The court, then, perceive nothing in the conduct of the plaintiffs, up to the decision of the suit with Graham, which ought to defeat their right to demand a specific performance of this contract. Could they at that time have conveyed a good title, Colin Auld ought to have accepted it.

It is alleged that the title, sold by the heirs of West to Hepburn and Dundas, was not a title to 6,000 acres of land in severalty, but an undivided interest in a much larger tract, and that, as this purchase was made, not for the purpose of acquiring an estate, but for the purpose of immediately selling and paying a debt which Auld was authorized to collect, the time of executing the contract is very material. it Js not to be denied that circumstances., máy bender the tinae material; and the court does ndt decide that this case is not of that description.

But the majority of the court is of opinion, that the éstate is tó be considered s;s an estate held in severity.- That a complete partition ibas made by an agreement; binding on all the parties who were interest-fed, Is in flail proof.

This partition would unquestionably have been protected in equity, and the majority of the court conceive that after such a lapse Of time, ahd such a long sepárate possession, a deed of partition ought to be presumed; and that the feourt, in which the verdict in the ejectment against Graham was fotmd, might so have directed the jury'. tt remains, then; Only to inquire whether Hepburn and Hundas hold a title under West, which is so free from exception that the defendant ought. to bfe decreed to take it.

Long previous to- the contract-with Colin Auld, Hepburn and Dundas had obtained deeds from all the devisees of John West, jun. who were entitled to undivided parts of the 6,000 acres lying On the Ohio. But the deeds from Thomas West, and Hugh West, were’not recorded; and the privy examination of MbS. Broiiaugh, One bf the devisees, does not appear. By her deed, therefore, nothing passed, and the deeds of Thomas and Hugh West Were liable to very serious objections.

Had Colin Auld refused to receive a conveyance froiti Hepburn and Dundas after the.termination of Graham’s suit, because they were unable to make a good title; the objection would certainly have been entitled to very serious consideration. But his rejection of the conveyance then offered was not induced by any defect in the title. He previously determined not to receive a conveyance, because Graham’s contract had not been assigned in such manner as he conceived to be a full execution of the agreement of September* 1799.

These omissions, then, to record the deeds of Thomas and If ugh West, and the total want of title as to M'rs. Bronaugh’s part, have produced no real inconvenience to Colin Auld.

Had the title been unexceptionable, it would still have been refused; and this contest would still have been carried on with the same determined perseverance which marks the conduct of the parties; Under these circumstances, it is the opinion of the majority of the court, that this case ought to be governed by those general, principles which regulate the conduct of a court of chancery in decreeing a specific performance, if the defect of title, which existed at the time of contract, be cured before the decree. Are Hepburn and Dundas now able to convey a perfect title ? Mrs. Bronaugh and Mrs.

Turner, two of. the devisees of John West, jun. are dead’. On the death of Mrs. Bronaugh, her real estate descended on her brothers and sisters, who were her coheirs. Deeds of confirmation from Hugh and John West, and from Dade and wife have been obtained. Thomas West joined in the deed from Bronaugh and wife for the purpose of releasing his supposed reversion; but there is no conveyance from Francina Turner.

The court-is not satisfied that Thomas West, by uniting in the deed for the purpose of conveying his reversionary interest, has conveyed a title which afterwards descended on him, or has estopped himself from asserting that title. To Thomas West’s part of Mrs. Bronaugh’s 1,000 acres, then, Hepburn and Dundas have no title. On the death of Francina Turner, her interest in her sister Bronaugh’s estate, passed to her brothers and sister, who were her coheirs. 16 Thomas West’s share Hepburn and Dundas have no title. The undivided interest of Thomas West, which descended on him, at the death of Mrs.

Bronaugh, -- is 166 2-3 acres ; and. the undivided interest whiph descended on him, at the death of Francina Turner, is 41 1-3 acres; making 208 acres, to which Hepburn and Dundas have, at this time, no title. The omission to record the deed from Thomas West is. not cured; and this court is now to decide whether, under these circumstances, Hepburn and Dundas are entitled to. claim a specific performance.

Had there been simply a deficiency of 208 acres, the majority of the court would have considered it as. a case for compensation ; or had the parties entitled to this land been before the court, a division ■ might possibly have been, directed, and compensation for that quantity ordered : but,- however this might be, as persons not before the court hold this interest, no order can be made respecting it; and it may very much embarrass those acts for asserting the title which -may possibly , be necessary.

The part actually conveyed by Thomas West, too, never having been confirmed by a deed from himself or his heirs, properly recorded, might impose on Colin Auld the necessity of bringing a suit in chancery to perfect his title ; or of being subjected to the inconveniences constantly attending the establishment of a deed not recorded, and the risks inseparable fronv such a deed. ’ This, therelore, is thought-by a majority of the court to be a case not proper for a specific performance ; and the bill is to be dismissed.

Livingston, J. expressed his non-concurrence in the reasoning of the court, in the latter part of the opinion just delivered by the chief justice. He would dismiss the bill, even -if a good title could now be given by the complainants. This court can no more dispense with punctuálity as to time, in Any case, than with any other part of the agreement. But in this particular case;, time, was of the. essertee of. the contract.

The object was.payment of á debt; and frofn the anxiety of thé de- . fendant to resist a decree for a conveyance,' and the desire of the complainants to urge it upon him, it is. to be presumed that, the lands have fallen in valúe during this delay of the title. The remedy hy a decree for a specific performance is a departure from common law, and ought to be granted only in cases where the party who seeks it has strictly entitled himself to it. It is said that by the English authorities, the lapse of time may be disregarded in equity, in decreeing A specific execution of a contract for land.

But there is a vast difference between contracts for land in that country and in. this. There the lands have a known, fixed, and stable value. Here the price is continually fluctuating and uncertain. A single day often makes a great difference; and in almost every case time is a very material circumstance. H.e dissented also from another part of the opinion, which intimates that if this were simply a deficiency of a few hundred acres, it would be considered as a case of compensation.

This part of the opinion does not seem to be necessary, and does not affect the present case; but this court can in no case compel a specific performance on terms and conditions. We‘cannot decree a special, execution for part, and assess damages as to the residue. This is like a contract for 5,000 bushels of wheat. A tender of 4,500 would not be good; and we cbuld not compel the purchaser to take a less quantity than 1 he contracted for. So here the contract was for .6,000 acres.

The compláinants have a title tb a part only; vve could not compel the defendant to take that part, and gi've him damages for the non-conveyance of the residue. Johnson, J. observed, that he had perhaps taken a peculiar view of this subject, but he should be irt favour of decreeing a specific performance generally; leaving Auld tó his remedy upon the warranty of the complainants for any defect of title which might appear. Auld, perhaps, thought it would be a good speculation, and had stipulated for a general warranty.

He acquiesced, however, in dismissing the bill, because he considered the judgment in the-action at law brought by Auld against the complainants, as equivalent to a decree for a specific execution of the agreement, inasmuch as it prevents him from obtaining satisfaction in any other way for the sum awarded. Marshall, Ch. J. declared the opinion of the court, in the action at law, to be, that the tender of the assignment of Graham’s contract, and the power of attorney, was good as pleaded, and that Auld ought to have accepted it. Judgment reversed.