The complainants, in the Circuit Court of Ohio, filed a bill to
enforce the performance of a contract. The bill states that there
is a surplus of several hundred acres, and by actual measurement it
is found to be 876 acres, the patent having been granted for 1,533
1/3 beyond the quantity mentioned in the contract.
It is a fact of general notoriety that the surveys and patents
for lands within the Virginia Military District contain a greater
quantity of land than is specified in the grants. Parties, when
entering into a contract for the purchase of a tract of land in
that district and referring to the patent for a description, of
course expect that the quantity would exceed the specified number
of acres. But so large an excess as in the present case can hardly
be presumed to have been within the expectation of either party.
And admitting that a strict legal interpretation of a contract
would entitle the purchaser to the surplus, whatever it might be,
it by no means follows that a court of chancery will in all cases
lend its aid to enforce a specific performance of such a
contract.
The powers of a court of chancery to enforce a specific
execution of contracts are very valuable and important. For in many
cases where the remedy at law for damages is not lost, complete
justice cannot be done without a specific execution. And it has
been almost as much a matter of course for a court of equity to
decree a specific execution of a contract for the purchase of
lands, where in its nature and circumstances it is unobjectionable,
as it is to give damages at law, where an action will lie for a
breach of the contract. But this power is to be exercised under the
sound discretion of the court, with an eye to the substantial
justice of the case.
When a party comes into a court of chancery seeking equity, he
is bound to do justice and not ask the court to become the
instrument of iniquity. When a contract is hard and destitute of
all equity, the court will leave parties to their remedy at law,
and if that has been lost by negligence, they must abide by it.
It is a settled rule in a bill for specific performance of a
contract to allow a defendant to show that it is unreasonable or
unconscientious or founded in mistake or other circumstances
leading satisfactorily to the conclusion that the granting of the
prayer of the bill would be inequitable and unjust. Gross
negligence on the part of the complainant has great weight in cases
of this kind. A party, to entitle himself to the aid of a court of
chancery for a specific execution of a contract, should show
himself ready and desirous to perform his part.
If this large surplus of 876 in a patent for 1,533 1/3 acres
should be taken as included in the original purchase, it might well
be considered a case of gross inadequacy of price.
Page 29 U. S. 312
When there was so great a surplus of land in the patent beyond
that which it called for nominally as that it could hardly be
presumed to have been within the view of either of the parties to
the contract of sale, the Court decreed a conveyance of the
surplus, the vendee to pay for the same at the average rate per
acre, with interest, which the consideration money mentioned in the
contract bore to the quantity of land named in the same.
In the Circuit Court for the District of Ohio, James Hamilton,
James Stricker and Frances, his wife, late Frances Hamilton, heirs
at law of Alexander Hamilton and others, grantees of Alexander
Hamilton, filed a bill for a specific performance of a contract
entered into between Elisha King, the father of John W. King, one
of the appellants, and Alexander Hamilton, on 8 February, 1815, for
the sale of certain lands in the State of Ohio within the Virginia
Military District between the little Miami and the Scioto
River.
The contract was in the following terms:
"I this day sell to Alexander Hamilton all my lands lying on the
Miami River, in the State of Ohio, 1,533 1/3, as by patent in my
name; also 333 1/3, taken off the lands patented in the name of
Sackville King, of 1,000 acres. This land of 333 1/3 acres, taken
from S. King's, is to be done adjoining to the entry of E. King's
of 1,533 1/3 acres. He, the said Hamilton, is bound to pay to
Elisha King, for this land, �946 16s. of current money of Virginia,
in three annual payments, beginning December 25, 1805; then to pay
�315 12s. Also, in the years of 1806 and 1807, on each Christ's
day, or before, to make the full payments, as is above. The manner
and agreement made by us is in payment as tenders: the said
Hamilton takes to this country horses, to be sold at twelve months'
credit, taking bond and good security, which bonds is lawful
tenders from year to year; and, on these tenders being made, the
said King is bound to give to the said Hamilton good titles to the
said lands. We do bind ourselves, our heirs, executors,
administrators firmly by these presents,
Page 29 U. S. 313
in the penalty of �2,000, in this our bargain. Given under our
hands and seals."
When this contract was made, Elisha King had a patent for his
entry, No. 1548. Sackville King's entry, No 1549, was held by him
without any title to it, and afterwards, in 1812, Sackville King's
whole entry was conveyed by him to another, who now holds the same.
Alexander Hamilton entered on No. 1548 immediately after his
purchase, supposed to be 1,533 1/3 acres, and, with others holding
under him, made valuable improvements on it, and still holds
possession of the same.
The bill states that Hamilton continued to make payments until
22 June, 1809, at which time, he having paid one-half of the
purchase money of the tract estimated at 1,533 1/3 acres, King made
a conveyance to him of 766 2/3 acres, supposed to be a conveyance
of one-half of the same. The bill charges that there was a large
surplus of several hundred acres, and that this sale was in gross,
and insists on a conveyance of the whole of the lands in No. 1548.
The patent to Elisha King for No. 1548 bears date 10 March, 1804,
and is for "a certain tract of land containing 1,533 1/3 acres," as
by survey bearing date 13 April, 1792, and sets forth the metes and
bounds according to this survey.
The bill claims and allowance for the loss of 333 1/3 acres of
Sackville King's entry, and proceeds to state and charge sundry
payments since the conveyance of 22 June, 1809, the last of which
was made on 26 March, 1818. It then admits that there was due at
the time of filing the bill, on the tract of 1,533 1/3 acres
(deducting the consideration money expressed in the conveyance for
766 2/3 acres, the ratable value of the other tract of 333 1/3
acres which was lost, and all the subsequent payments,) the sum of
$1,700
Page 29 U. S. 314
dollars yet to be paid by Hamilton to King on the contract for
the 1,533 1/3 acre tract, which sum they say they were always ready
to pay since the death of Alexander Hamilton if they could have
procured a fair settlement, and also that they are informed and
believe that Alexander Hamilton, when the could have a settlement
and receive a title, was always ready in his lifetime to make
payments. The bill then goes on to state a number of improvements
made on that part of the land not conveyed by King to Hamilton,
which improvements are stated to have been made by Hamilton and the
other appellees claiming by purchase under him.
The bill then prays an injunction to a judgment in ejectment,
recovered at June term, 1824, for that part of the tract of 1,533
1/3 acres, not conveyed. It asks a decree for a conveyance on
payment of the balance, and for general relief.
The answer denies that the sale was in gross, and also that the
complainants were at any time ready to perform the agreement by the
payment of the purchase money for the tract which was agreed to be
sold, and alleges that the payment of the same was evaded and
delayed, although frequent promises of performance were made. To
this answer there was a general replication.
At January term, 1826, an agreement was entered into by the
parties (which being entered of record, takes the place of an
interlocutory decree) in order to settle so much of the
controversy; that there was then due to King, on the purchase money
and interest, 1,896.88, after deducting $566.66 on account of the
land sold, included in Sackville King's patent, which, with
interest from that time, was all that was to be paid King, if the
court decreed that the contract covered the surplus above 1,533 1/3
acres in the entry 1548. The times for paying that sum were agreed,
and also that on the payment, deeds should be executed by
respondents covering the whole land if the
Page 29 U. S. 315
contract was decreed to be in gross and the injunction be made
perpetual against the proceedings in ejectment, &c. This
agreement reserved for future decision the single question whether
the contract of sale was a sale in gross, or by the acre, as to the
land in the entry 1548, and concludes as follows:
"To avoid all dispute, it is the express understanding of the
parties that the whole question concerning the said surplus land is
reserved for future decision, and all claims for damages respecting
failure in the title for the tract of 333 1/3 acres of land in the
bill mentioned are waived."
At July term, 1826, the court decreed that the sale by Elisha
King to Alexander Hamilton was a sale of the whole of the land in
No. 1548, and that the defendant, John W. King, should within two
months convey to the complainants, in fee simple, with covenants of
special warranty, the lands not already conveyed by E. King to
Alexander Hamilton; that the complainants, within two months,
should pay the balance agreed, with interest; and that each party
should pay their own costs at or before the next term. As to the
other defendants, the bill was dismissed generally.
From this decree John W. King appealed to this Court.
Page 29 U. S. 320
MR. JUSTICE THOMPSON delivered the opinion of the Court.
The bill in the court below was filed for the purpose of
obtaining the specific execution of a contract entered into between
Elisha King, the father of John W. King, and Alexander Hamilton,
the father of James Hamilton, and also to enjoin all further
proceedings at law on a judgment in an action of ejectment obtained
by John W. King for the recovery of possession of a part of the
land alleged to have been comprised within the contract.
The answer to this bill is very inartificially drawn, but no
exceptions were taken to it, and the general replication put in. No
proofs were taken upon the principal matters in dispute, but the
cause came on to a hearing upon the bill and answer, and exhibits,
and the agreement which had been entered into between the counsel
for the parties in the progress of the cause. This agreement puts
at rest many of the questions that might otherwise have arisen, and
reduces the subject of dispute to the single inquiry respecting
what is called by the parties the surplus land, and this involves
the inquiries first, whether this surplus is embraced in the
original contract, and if so, then secondly whether, under the
circumstances of the case, the complainants in the court below have
not lost their right to call upon a court of equity to enforce a
specific performance of that contract.
Page 29 U. S. 321
The contract signed by Elisha King and Alexander Hamilton bears
date 8 February, 1805, and is as follows:
"I this day sell to Alexander Hamilton all my lands lying on the
Miami River in the State of Ohio, 1,533 1/3 acres, as by patent in
my name; also 333 1/3 acres taken off the lands patented in the
name of Sackville King, adjoining to that entry of Elisha King, of
1,533 1/3 acres. He, the said Hamilton, is bound to pay to Elisha
King for this land �946 16s., current money of Virginia, in three
payments, beginning December 25, 1805; then to pay �115 12s., also,
in the year 1806 and 1807, each Christmas day or before, to make
the full payments, as is above. The manner and agreement made by us
is in payment as tenders; the said Hamilton takes to this country,
horses, to be sold at twelve months' credit, taking bond and good
security, which bond is lawful tenders from year to year; and on
these tenders being made, the said King is bound to give to said
Hamilton good title to said lands, &c."
The bill states that there is a surplus of several hundred acres
beyond the specific quantity mentioned in the contract. The answer
alleges that from actual survey, the patent is found to contain
2,409 1/2 acres; which will leave a surplus of 876 acres, a
quantity equal to more than one-half of the whole number of acres
mentioned in the contract.
It may perhaps be assumed as facts of general notoriety that the
surveys and patents for lands lying within the Virginia Military
District contain a greater quantity of land than is specified in
the grant, and that parties would of course, when entering into a
contract for the purchase of a tract of land, and referring to the
patent for a description, expect that the quantity would exceed the
specified number of acres. But so large an excess as in the present
case can hardly be presumed to have been within the expectation of
either party, and admitting that a strict legal
Page 29 U. S. 322
interpretation of a contract would entitle the purchaser to the
surplus, whatever it might be, it by no means follows that a court
of chancery will in all cases lend its aid to enforce a specific
performance of such a contract.
The agreement entered into by the counsel which has been
hitherto and which will be more particularly noticed hereafter puts
an end to all questions respecting the land, to the extent of 1,533
1/3 acres. Otherwise it might well be questioned whether the
complainants in the court below could compel a conveyance for any
more than has already been conveyed under the contract.
In 1809, a conveyance was given for 766 2/3 acres, the full
consideration for which, after deducting $566.66 for defect of
title in Elisha King to the 333 1/3 acres of land included in
Sackville King's patent, had not been paid when the bill was
filed.
If the rights of these parties were to be governed and
determined solely by the question whether the contract covers the
surplus land, we should have no difficulty in coming to the
conclusion that it does. There is nothing upon the face of the
contract from which it can be satisfactorily inferred that it was
intended to be a sale by the acre. The language of the contract on
the part of King is "I this day sell to Alexander Hamilton, all my
lands lying on the Miami River, in the State of Ohio, 1,533 1/3
acres, as by patent in my name." Had it been intended a sale by the
acre, the language would doubtless have been "1,533 1/3 acres of,
or a part of my lands," instead of which it is "all my lands, as by
patent in my name." Reference is made to the patent for a
description of the land and to ascertain the subject matter of the
contract. And whatever would pass under the patent to King would be
included in the sale to Hamilton. The number of acres is mentioned
in reference to what appears by the patent ("1,533 1/3
Page 29 U. S. 323
acres, as by patent in my name"), and not as designating the
precise quantity sold. But admitting the contract covers the
surplus land, it is contended on the part of the appellants that a
court of equity will not, under the circumstances of this case,
enforce a specific performance of the contract. It is insisted,
however, on the part of the appellees that all equitable
considerations are precluded by the agreement entered into by the
counsel which has been referred to, and that the question is
narrowed down to the single inquiry whether the surplus land is
included in the original contract of 1805. If such is the
construction to be given to this agreement, the question has
already been answered. It becomes, therefore, very material to
examine whether this is the fair and reasonable interpretation of
the agreement. It is as follows.
"1. It is agreed that the complainants are at this time, January
6, 1826, indebted to the said John W. King, one of the defendants
above named, for the balance of the purchase money, including up to
the date aforesaid the interest, $1,896.89, for the 1,533 1/3 acres
mentioned in the said bill of complaint. This amount, it is agreed
between the parties by their counsel, is now due to the said John
W. King; after deducting from the gross sum agreed to be paid by
the ancestor of the plaintiffs to the ancestor of the defendants,
which will appear by contract, $566.66, for the 333 1/3 acres
patented to Sackville King, mentioned in the contract, to which the
defendants or their ancestor never had title. The sum of $1,896.88
is the whole amount due the said John W. King for the 1,533 1/3
acres of land, the number of entry 1548, as mentioned in said bill,
and it is hereby expressly understood between the parties, by their
counsel, that the sum last mentioned, if it should be decreed by
the Court hereafter, or by the parties agreed to, that the surplus
lands lying within entry 1548, is covered by the contract before
referred to, for
Page 29 U. S. 324
the gross sum named; the said sum, with interest from this time
until it is paid, is the whole amount due the defendant, John W.
King, upon said land contract; but it is hereby agreed between the
parties by counsel that the question whether the said contract
covers the surplus in said entry No. 1548 shall be reserved for
future decision and determination, and whether the purchase for the
sum mentioned in said contract does not entitle the complainants to
the surplus land said to be contained in said No. 1548, and it is
hereby agreed by the parties that the complainants shall now pay to
the clerk for the said defendants or counsel $730, part and parcel
of the said sum of $1,896.88 before admitted to be due, and that
the said complainant shall pay the balance by the next term of this
court or within a reasonable time afterwards. And it is further
agreed by the parties by their counsel that the said John W. King
and the other defendants do join, if it appear necessary, shall
execute to the complainants a good deed with covenants of general
warranty for the land which the complainants shall be entitled to
under the contract aforesaid, immediately upon the payment of the
purchase money. It is further agreed by the parties by their
counsel that the complainants shall pay the cost in the action of
ejectment brought in this court for the lands named in the bill and
the costs of this suit, to abide the decision of this Court
thereon. It is further agreed by the parties by their counsel that
upon the payment of the whole of the purchase money which may be
due the defendants for said land, then and in that case the
injunction to be made perpetual. And, to avoid all dispute, it is
the express understanding of the parties that the whole question
concerning the said surplus land is reserved for future decision
and that all claims for damages respecting the failure in the title
for the tract of 333 1/3 acres of land are waived."
This agreement is somewhat obscurely worded, and its
construction not without difficulty. Doubts have been entertained
by the Court whether the appellants have not thereby precluded
themselves from resisting a specific
Page 29 U. S. 325
performance of the contract, on the equitable grounds that might
otherwise be set up. We have, however, come to the conclusion that
the appellants, as to the surplus land, have reserved to themselves
the right to set up whatever could have been urged against the
relief sought, as to all the land not conveyed, as if the agreement
had not been entered into. And that as to the surplus land, the
case is open, and to be considered entirely independent of the
agreement.
Some of the leading objects of the agreement appear to have been
to settle and fix the amount of payments that had been made, and
the deduction to be allowed on account of the failure of title to
the land patented to Sackville King, and to ascertain the balance
due, which was found to be $1,896.88, and which by the terms of the
agreement is declared to be the whole amount due for the 1,533 1/3
acres, thereby implying that the consideration agreed to be paid
was for that quantity of land, and that as to that quantity no
further dispute existed, but at the same time providing that if the
court should decree that the surplus land was covered by the
contract, that balance should be deemed the full consideration for
the whole. And then adds, "but it is hereby agreed that the
question whether the said contract covers the surplus land shall be
reserved for future decision and determination." If this had been
the only question intended to be reserved, the agreement would have
stopped here; there is no ambiguity thus far, or any necessity for
putting the same question in a different shape. But the argument
goes on, "and whether the purchase for the sum mentioned in the
contract does not entitle the complainants to the surplus land said
to be contained in No. 1548."
There would appear to be two distinct questions reserved for
future determination. 1. Whether the contract covers the surplus
land, and if so, secondly, whether the complainants are now
entitled to it, by virtue of their original purchase. If this view
of the agreement be correct, the second question reserved must have
been intended to leave open all objections to the claims for the
surplus lands. If, however,
Page 29 U. S. 326
the agreement had stopped here, there might have been serious
doubts whether the question reserved was not whether the contract
covered the surplus land. But the concluding clause in the
agreement seems to have been added to remove all doubts upon the
question.
"And to avoid all dispute, it is the express understanding of
the parties that the whole question concerning the said surplus
land is reserved for future decision."
If the only question reserved was whether the contract covered
the surplus land, there was no necessity or fitness in this last
provision. That question had been explicitly and in terms reserved,
and to superadd to it that the whole question concerning the
surplus was reserved will admit of no other reasonable construction
than that, as it respected such surplus, the case was to stand as
if the agreement had not been made.
This being the construction given by the court to this agreement
of the counsel, it remains to inquire whether the complainants in
the court below made out a case which, according to the rules which
prevail in courts of equity, entitled them to a specific execution
of the contract as to the surplus land.
This part of the case has not been much pressed upon the Court,
and it is difficult to perceive on what grounds it can be
sustained. To have enforced a specific execution of this contract
would, at any time and under any circumstances, have been granting
a strict legal right against the substantial justice and equity of
the case.
To show this it is only necessary to state some of the leading
facts in this case. The contract bears date in the year 1805, and
by it all the payments for the land were to be completed in
December, 1807, on which the title was to have been given. Payment
only of a part of the purchase money, and not even to one-half the
amount, had been made when the bill was filed. No remedy at law
therefore ever did exist. The purchaser never was in a situation
when he could aver performance of the contract on his part. It is
very evident that no consideration whatever has been given for this
surplus land. The price was doubtless estimated by the parties upon
the specific number of acres (although the
Page 29 U. S. 327
sale was not by the acre), and which at that time was probably
supposed to be nearly the quantity of land covered by the patent to
King. This however turns out to be otherwise. The surplus is very
large, amounting to more than one-half the number of acres
mentioned in the contract. There are no grounds for charging either
party with any knowledge of this fact. King manifestly could not
have known it, or it would not have been entirely overlooked in the
sale. And Hamilton ought not to be charged with a knowledge of it
without satisfactory evidence, as it would be imputing to him a
gross fraud. It is therefore a case of mutual mistake or ignorance
of an important fact in relation to the subject matter of the
contract, and that contract still executory, and now sought to be
enforced as to lands for which no consideration has been paid. It
is therefore a case in which the parties ought to be left to their
strict legal rights.
The bill alleges that Hamilton, in his lifetime, made valuable
improvements on that part of the land not included in his deed of
1809. When these improvements were made does not appear. The
contract is silent as to the time when the purchaser was entitled
in the possession, and the bill does not allege that possession was
taken, or the improvements made, with the assent of King, and the
answer expressly denies that King put Hamilton in possession of any
part of the land except that for which the deed was given in 1809,
and alleges that the possession of any other part was without
authority, and unlawful.
In 1818, John W. King, one of the appellants, became the
purchaser of all the lands not included in the deed of 1809. He
was, it is true, a purchaser with notice of the contract between
his father and Hamilton, but he also had notice of all the
circumstances with respect to his failure in making payment, and
that he had not at that time made payment even for the land which
had been conveyed to him, and no further payments had been made
when this bill was filed, or any disposition shown on the part of
the appellees to perform the contract on their part, and the bill
in this case was not filed until nearly seven years from that
time,
Page 29 U. S. 328
and not until a judgment in ejectment had been obtained to
recover possession of the land not covered by the deed of 1809.
All the payments made upon this purchase might well be applied
to the land which has already been conveyed, and was it not for the
agreement entered into by the counsel, the complainants in the
court below would have had no equitable grounds for asking a
specific execution of the contract for any portion of the 1,533 1/3
acres not included in the deed of 1809. But that agreement has put
an end to all question in relation to the residue of the 1,533 1/3
acres, leaving the case open, as we understand it, to all
objections to a specific execution of the contract as to the
surplus land to the same extent as if the agreement had not been
entered into.
Did this case, then, thus made out in the court below, entitle
the complainants to a specific execution of the contract as to the
surplus land? We think it did not, according to the well settled
rules of courts of equity on this subject. This branch of the
powers of a court of chancery is very valuable and important. For
in many cases, even where the remedy at law for damages is not
lost, complete justice cannot be done without a specific execution,
and it has become almost as much a matter of course for a court of
equity to decree a specific execution of a contract for the
purchase of lands where in its nature and circumstances it is
unobjectionable, as it is to give damages at law, where an action
will lie for a breach of the contract. But this power is to be
exercised under the sound judicial discretion of the court, with an
eye to the substantial justice of the case. When a party comes into
a court of chancery seeking equity, he is bound to do justice, and
not ask the court to become the instrument of iniquity. Where a
contract is hard, and destitute of all equity, the court will leave
parties to their remedy at law, and if that has been lost by
negligence, they must abide by it. It is a settled rule, therefore,
to allow a defendant in a bill for a specific performance of a
contract to show that it is unreasonable or unconscientious or
founded
Page 29 U. S. 329
in mistake or other circumstances leading satisfactorily to the
conclusion that granting the prayer of the bill would be
inequitable and unjust. Gross negligence on the part of the
complainant has great weight in cases of this kind. A party, to
entitle himself to the aid of a court of chancery for the specific
execution of a contract, should show himself ready and desirous to
perform on his part. These are familiar and well settled rules in
courts of chancery, and have a strong bearing upon this case. If
this contract had been carried into execution by giving a
conveyance for the land, a court of chancery would not have given
relief to the other party. But the contract is still executory, and
the complainants, after the lapse of twenty years, seek for the
specific execution of a contract which has not been performed on
their part, and the execution of which would be manifestly unjust
and inequitable.
If this large surplus of 876 should be taken as included in the
original purchase, it might well be considered a case of gross
inadequacy of price.
So far, therefore, as the immediate rights of the complainants
are involved, no equitable claims has been sustained for a specific
execution of the contract for the surplus land. It is, however,
alleged in the bill that sales have taken place and valuable
improvements made upon parts of the land not covered by the deed of
1809. This is not denied in the answer, although it is alleged that
such improvements were made without the assent of King. No proofs
have been taken with respect to these improvements. Their value and
extent are left altogether uncertain. But the rights of third
persons, who may be
bona fide purchasers under Hamilton's
supposed title, may be materially affected by dismissing the bill
as to the surplus land. Some diversity of opinion has existed
amongst us as to the final decree on account of those improvements.
We have however come to the conclusion that the complainants in the
court below shall have a decree for the surplus land at the average
rate or price which the consideration mentioned in the contract
bears to 1,866 2/3 acres,
Page 29 U. S. 330
the number of acres specified in the purchase, together with the
interest thereon from 25 December, 1807, being the time at which
all the payments were to have been completed according to the
contract. The decree of the circuit court must be so modified. It
should have required payment of the consideration money before the
conveyance was to be given. Such are the terms of the original
contract and also of the agreement of 6 January, 1826.
The decree of the circuit court as to John W. King must
accordingly be reversed and affirmed as to the other defendants in
the court below, and the cause sent back with instructions to cause
a survey to be made, to ascertain the number of acres contained in
the patent, and that on payment of the balance and interest due
according to the settlement made on 6 January, 1826, and also a
further sum for the surplus land above 1,533 1/3 acres, according
as the quantity shall be found on actual survey at the same average
rate or price as in the original contract, with the interest
therefor from 25 December, 1807, then the said John W. King to be
required to make and execute a good and sufficient deed of
conveyance in fee simple to the complainants in the court below for
all the lands contained in the patent to Elisha King mentioned in
the pleadings, and which have not been already conveyed by the deed
of Elisha King bearing date 22 June, 1809. The money to be paid and
the deed executed at such time as the circuit court shall direct.
The injunction to be continued for such time, and under such
modification, as shall be judged necessary by the circuit court for
the purpose of carrying this decree into effect.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Ohio and was argued by counsel, on consideration whereof it is
decreed and adjudged by this Court that the judgment of the said
circuit court in this cause be and the same is hereby reversed as
to John W. King and that
Page 29 U. S. 331
the said judgment in this cause be and the same is hereby
affirmed as to the other defendants in the court below. And it is
further ordered and adjudged by this Court that this cause be and
the same is hereby remanded to the said circuit court with
instructions to cause a survey to be made to ascertain the number
of acres contained in the patent, and that on payment of the
balance and interest due according to the settlement made on 6
January, 1826, and also a further sum for the surplus land above
1,533 1/3 acres, according as the quantity shall be found on actual
survey, at the same average rate or price as in the original
contract, with the interest therefor from 25 December, 1807, then
the said John W. King to be required to make and execute a good and
sufficient deed of conveyance, in fee simple, to the complainants
in the court below for all the lands contained in the patent to
Elisha King mentioned in the pleadings, and which have not been
already conveyed by the deed of Elisha King, bearing date 22 June.
1809. The money to be paid and the deed executed at such time as
the said circuit court shall direct. The injunction to be continued
for such time and under such modification as shall be judged
necessary by the circuit court for the purpose of carrying this
decree into effect.
