Hepburn and Dundas' Heirs v. Dunlop & Co.
14 U.S. 179

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U.S. Supreme Court

Hepburn and Dundas' Heirs v. Dunlop & Co., 14 U.S. 179 (1816)

Hepburn and Dundas' Heirs v. Dunlop & Company

14 U.S. 179




A court of equity will in general decree a specific performance of an agreement for the sale of lands if the vendor is able to make a good title at any time before the decree is pronounced, but the dismission of a bill brought by the vendor to enforce a specific performance, on account of a defect in the title, is a perpetual bar to a new bill brought for the same object, unless perhaps in a case where an original bill in the nature of a bill of review might be entertained.

The inability of the vendor to make a good title at the time the decree is pronounced, though it forms a sufficient ground for refusing a specific performance, will not authorize a court of equity to rescind the agreement in a case where the parties have an adequate remedy at law for its breach.

The alienage of the vendee is an insufficient ground to entitle the vendor to a decree fair rescinding a contract for the sale of lands, though it may afford a reason for refusing a specific performance as against the vendee.

But if the parties have not an adequate remedy at law, the vendor may be considered as a trustee for whoever may become purchasers under a sale by order of the court, for the benefit of the vendee.

Where the vendor is indebted to the vendee and the sale is made in order to pay the debt, the vendor must pay interest from the time the debt is liquidated until he makes a good title, and the vendee is accountable for the rents and profits from the time the title is perfected until the contract is specifically performed.

The facts are stated in the opinion of the court, and the controversy is the

Page 14 U. S. 180

same as in the suits between the same parties reported in 5 U. S. 1 Cranch 321, and 9 U. S. 5 Cranch 262.

WASHINGTON, J., delivered the opinion of the Court.

The material facts upon which the questions now to be decided arise are as follows:

Hepburn and Dundas being indebted to John Dunlop & Co., of Great Britain, on account of certain mercantile dealings which had taken place between those parties, the precise amount whereof was disputed, an agreement in writing was entered into on 27 September, 1799, between the said Hepburn and Dundas and Colin Auld, the attorney in fact of John Dunlop & Co., whereby it was stipulated that the parties mutually agreed to submit all matters in dispute respecting the demand of Dunlop & Co. to certain arbitrators named in the agreement whose award should be made on or before 1 January following. That Auld, as the agent of Dunlop & Co., would on the next day, to-wit, 2 January, 1800, accept from Hepburn and Dundas the sum which should be awarded to Dunlop & Co. in bills of exchange or in Virginia currency at the par of exchange, and upon such payment being made in either way, that Auld would give to Hepburn and Dundas a full receipt and

Page 14 U. S. 181

discharge of all the claims and demands of Dunlop & Co. against them; that in case Hepburn and Dundas should not on the said 2 January pay the amount of the said award either in bills of exchange or money, they should on that day assign to Auld, as attorney of Dunlop & Co., in the fullest manner a contract entered into in the year 1796 by Hepburn and Dundas with a certain William Graham for the sale of 6,000 acres of land lying on the River Ohio, for the recovery of which, on account of the nonpayment of the purchase money by Graham, Hepburn and Dundas had brought an ejectment, which was then depending; that this assignment should be accompanied by a power of attorney irrevocable to enable the said Auld to pursue all legal means to recover the possession of the land, or to enforce the payment of $18,000, the amount of the purchase money, whichever of these measures Auld might prefer. Dundas further stipulated not to interfere with the measures which Auld might choose to pursue for the recovery of the land or the purchase money, and further that whenever any suit brought or to be brought for the land should be judicially determined or otherwise settled by an amicable compromise, Hepburn and Dundas would convey the same to the person who by such determination or compromise should be acknowledged to be entitled to it in the manner expressed in the contract with Graham. It was also stipulated that if the purchase money for the said land, with interest thereon to 2 January, 1800, should be insufficient to discharge the sum which might be

Page 14 U. S. 182

awarded to Dunlop & Co., Hepburn and Dundas should on that day pay to Auld as much money as should make up the deficiency, and if, on the other hand, the said purchase money and interest should fall short of the sum awarded, that Auld would on the same day pay to Hepburn and Dundas the excess over and above the sum awarded.

Lastly it was stipulated that if Auld should recover the land and be enabled to sell the same for more than was allowed to Hepburn and Dundas by the said agreement, together with the costs and expenses attending the recovery, Auld should pay to Hepburn and Dundas the expenses incurred in prosecuting the suit commenced by them for the recovery of this land.

In pursuance of these articles, an award was made by the day mentioned in the submission, which award stated that the sum of

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