A decree of a specific performance of a contract to purchase a
tract of land refused in consequence of delay and a defect of
title.
The aid of a court of chancery will be given to either party who
claims specific performance of a contract if it appear that in good
faith, and within the proper time, he has performed the obligations
which devolved upon him.
It is not in the power of one state to prescribe the mode by
which real property shall be conveyed in another. This principle is
too clear to admit of doubt.
In the argument before this Court, a new ground of relief was
assumed which had not been made in the circuit court. That if the
court should not decree a specific performance of the contract to
purchase the land, yet as the purchaser had been in the possession
thereof, the complainants are entitled to a decree for the rents
and profits of the land while he was in possession. By the
court:
"There is no rule of court or principle of law which prevents
the complainants from assuming a ground in this Court which was not
suggested in the court below, but such a course may be productive
of much inconvenience and some expense."
Although there is no specific prayer in the bill to be paid the
rents and profits, yet the Court thinks that under the general
prayer, this relief may be granted. Under this prayer, only relief
may be given for which a basis is laid in the bill. In this case,
the possession of the land by the defendants is alleged, and the
demand for rents and profits would result from this fact. There is
no pretense that this demand was taken into view in the action
at law. As it consisted of unliquidated damages, it was not a
proper subject for an offset.
In the Circuit Court of Ohio, John Watts a citizen of the State
of Kentucky, filed a bill in chancery against John Waddle and
William Lamb, the appellees, to obtain a perpetual injunction to
stay proceedings by John Waddle on a judgment obtained in the
circuit court against him, for damages for the nonperformance of a
contract made by him with John Lamb in November, 1815, which
contract had been assigned
Page 31 U. S. 390
by him to John Waddle, and also to compel Waddle or Lamb to a
specific execution of the contract. The contract was for the sale
of certain lots of ground in the town of Chillicothe to William
Lamb, for which John Watts agreed to give a good and sufficient
general warranty conveyance, by 1 February, 1816, or as soon as a
final decree should be rendered in the circuit court of the United
States, in a suit instituted to compel Nathaniel Massie and others,
to make a conveyance to the complainant of the legal title to the
said lots, the elder equitable title thereto being in the
complainant. William Lamb, or his assignee John Waddle, was in
possession of the premises at the time of the contract, and
continued to hold the same until and after the judgment for the
damages.
Numerous and continuing obstacles, arising, as was alleged, from
other causes than the fault or laches of John Watts interposed and
prevented the conveyance of the premises by a sufficient legal
title until 1826.
In 1824, William Lamb assigned the contract between him and John
Watts to John Waddle, who thereupon instituted the suit against
John Watts he having been found in Ohio, and obtained a judgment
for damages for the nonperformance thereof, amounting to
$7,745.50.
In 1826, John Watts tendered to John Waddle, as the assignee of
John Lamb, a deed of conveyance of the lots, in conformity, as was
alleged, with the contract of 1815, which was refused by him.
The Circuit Court of Ohio dismissed the bill of the
complainants, and the executors and legal representatives of John
Watts thereupon prosecuted this appeal.
The facts of the case are stated more particularly in the
opinion of the Court.
Page 31 U. S. 391
MR. JUSTICE McLEAN delivered the opinion of the Court.
This suit was brought into this Court by an appeal from the
decree of the Circuit Court for the District of Ohio. The bill was
filed in that court by the complainant to compel the specific
Page 31 U. S. 392
execution of a contract, entered into with the defendant Lamb,
on the 1 November, 1815, by which the complainant bound himself to
convey certain out-lots and other land, adjacent to the Town of
Chillicothe, to the said Lamb, for the consideration of $4,716.66
2/3. The conveyance was to be made on the 1st day of February
ensuing, or so soon as a final decree should be rendered by the
United States Circuit Court for the District of Ohio, in the suit
then pending in said court, wherein the said Watts was complainant
and Nathaniel Massie and others defendants.
That suit had been brought by Watts against Massie and others,
including the above defendant Lamb, to recover one thousand acres
of land, which included the land sold by the above contract, to
which Watts derived title from Ferdinand O'Neal, who claimed under
an entry made by virtue of a warrant which had been granted to him
for military services. To recover this tract of land, Watts first
brought a suit against Massie in the federal court of Kentucky,
charging him with having fraudulently surveyed the lands of O'Neal,
so as to throw it within the lines of a survey, in the name of
Powell, which was owned by Massie, or in which he had an interest.
In this suit Watts prevailed, and an appeal being taken to the
supreme court, the decree of the circuit court was affirmed.
To carry this decree into effect in the State of Ohio, suit was
instituted by Watts in the circuit court, and this was the suit
referred to in the contract between Watts and Lamb.
By the decree in Kentucky, which was affirmed by the supreme
court, O'Neal's entry 509 was made to embrace the land specified in
the contract, and the decree required Massie to convey to Watts all
the land covered by the survey of the above entry, although within
entries No. 503 and 2462, amounting to one thousand acres, and
Watts was required to convey one thousand acres, which were within
the calls of entry 509. Neither of these conveyances has been
executed.
A final decree was obtained in this suit in the Circuit Court
for Ohio, in favor of Watts in January, 1818. Neither Lamb nor
Massie took an appeal in this case to the supreme court, but it was
appealed by some of the defendants, who, it is stated, had no
interest in the land now in dispute. A final decree in
Page 31 U. S. 393
favor of Watts was entered in the supreme court in September,
1822.
In the year 1818, it was ascertained that no patent had been
granted on O'Neal's warrant, and consequently that Massie did not
possess the legal title; but, on application, a patent was issued
to Watts on 1 March, 1826. It appears, however, that a patent had
issued to the heirs of Powell; on an entry 503, on 4 November,
1818, which covered a part of the land that Watts had sold to
Lamb.
Finding that the legal estate was vested in Powell's heirs,
Watts commenced a suit against them in the Circuit Court of
Kentucky and obtained a decree for the land contained in their
patent, which interfered with his title, in the fall of the year
1826.
Lamb having assigned the covenant to his co-defendant Waddle, in
January, 1824, he commenced a suit against Watts for the recovery
of the consideration paid: and at July term 1826, obtained a
judgment in the circuit court for $7,745.50 damages and costs.
On 3 July, before the judgment, Watts tendered to Waddle a deed
in fee simple for the land in the contract agreed to be conveyed,
with the costs of the suit, which he refused. A bill was then filed
by Watts to enjoin the judgment and compel the defendants to accept
of a deed. The bill contains also a prayer for general relief. By
the decree of the circuit court this bill was dismissed, from which
the complainant appealed to this Court. Watts having died since
this suit has been pending in this Court, it is now prosecuted by
his heirs.
The complainants insist that under all the circumstances of the
case, they are entitled to a specific execution of the contract. Of
this there can be no doubt if it shall appear that there has been a
substantial compliance with the covenant on the part of their
ancestor. The aid of a court of chancery will be given to either
party who claims a specific execution of a contract if it appear
that, in good faith and within the proper time, he has performed
the obligations which devolved on him.
It is insisted that the delay which occurred in making a
Page 31 U. S. 394
deed was unavoidable, and is in no manner attributable to
negligence or want of good faith in Watts. That it grew out of
facts which were alike unknown to him, and the defendant Lamb, at
the time the contract was made. That the defendant Lamb and his
assignee Waddle have had the unmolested possession of the land
purchased, enjoying the rents and profits of it, and that no
circumstance has been proved which goes to show that the
defendants, or either of them, have suffered any injury from the
delay in making the deed.
Various facts are adverted to which go to prove vigilance on the
part of Watts in prosecuting different suits and in other respects,
in order to obtain the legal title, that he might make the
conveyance. And that so soon as he was enabled to do so, he lost no
time in tendering the deed duly executed, and also the costs which
had accrued on the action at law.
On the part of the defendants, it is contended that as the
contract was the result of a compromise, they are entitled to a
strict execution of it.
Under a purchase which Lamb had previously made of Massie and
others, he was in possession of the land embraced by the contract,
at the time it was concluded. And he was no doubt induced to enter
into the contract with Watts under the impression that he had the
equitable, and would soon possess himself of the legal title. The
suit then pending had been brought for that purpose, and as Lamb
was one of the defendants, and had no title either legal or
equitable, he was desirous of obtaining a title from Watts.
If Lamb did not enter into the possession under Watts it seems
that he acknowledged Watts to possess the better title, and by
making the contract with him, was willing to hold the possession
under him.
It is not perceived, therefore, that there is anything in the
circumstances under which this contract was made, which would take
it out of the rule of law generally applicable to cases of contract
for the purchase of real property. The contract, it is true, was
the result of a compromise respecting a legal controversy; but it
was entered into with a full knowledge on the part of Lamb, that
Watts did not possess the legal title, but expected to obtain it by
a final decree in the case referred to.
Page 31 U. S. 395
A final decree was obtained in that case in the circuit court in
January, 1818, and it is insisted that it was the duty of Watts at
that time to execute the conveyance, and that, not having done so,
he is guilty of such negligence as to prevent the relief he now
asks in equity.
In the contract there was a reference to the final decree of the
circuit court, but as the decision of that court was not final in
the case, and as an appeal was actually taken by some of the
defendants to the supreme court, it may reasonably be inferred that
this contingency was within the calculation of both parties at the
time of the contract. It must have been known to them that an
appeal would vacate the decree of the circuit court, and that after
it was taken, any conveyance made under such decree would be
inoperative. The final decree, therefore, in the circuit court, as
referred to in the contract, could only mean, in the event that the
decree of that court should finally determine the matter of
controversy. But if an appeal should be taken from such decree,
then the final decree should be made in the supreme court. There
can be no difficulty in coming to the conclusion that both parties
referred to a final decision of the case, and to such a decree as
should vest the legal title in Watts. And as such a decree was not
obtained until 1822, it is clear that until that time no negligence
is imputable to Watts.
It would be within the spirit of the contract to say that Watts
was bound to use ordinary diligence in the prosecution of the suit
both in the circuit and supreme court. But there is no charge of a
want of diligence in this respect.
Until 1818, Watts as well as the defendants, supposed that the
legal title was vested in Massie. There is no ground to impute
fraud or imposition to Watts in reference to this fact. When he
made the contract, and up to the time specified, there can be no
doubt that he believed a final decree against Massie would give him
the legal title. When he made the contract with Lamb, had he known
the fact that Massie had not the legal title, and concealed it,
equity could give him no relief. The concealment would have been a
fraud on Lamb, which would have enabled him to annul the contract.
But Watts acted in good faith, and being mistaken, unless some
injury consequently resulted to Lamb, or an unreasonable delay
followed,
Page 31 U. S. 396
equity would look with a favorable eye to the specific execution
of the contract.
Finding that the legal title was vested in Powell's heirs to a
part of the land embraced by the contract, Watts commenced a suit
in chancery against them in the Circuit Court of the United States
of Kentucky, and obtained a final decree for the land. In pursuance
of this decree, a commissioner appointed by the court, under a
statute of Kentucky, executed a conveyance in the fall of 1826.
In July, 1826, a few months after Watts obtained a patent for
the land, he tendered a deed to Waddle, and in November, 1826,
after the decree was obtained against Powell's heirs, it is
insisted a deed was again tendered, both of which were refused by
the defendant Waddle.
The suit of Waddle to recover back the consideration money was
commenced in October, 1824, and prior to its commencement, Waddle
offered to surrender the possession of the premises.
When this bill was filed by Watts, it appears from the facts in
the case that he did not possess the legal title. The conveyance
under the decree against Powell's heirs had not at that time been
executed. But this deed being afterwards obtained, Watts may be
considered as vested with all the title conveyed by it, and also
the title under the patent, which was granted to him, and the
question arises under these facts and other circumstances in the
case whether the complainants are entitled to a specific execution
of the contract.
It appears from certain depositions taken in the cause, in the
spring of 1829, that this property, since the purchase, has
depreciated in value one-half; but the witnesses do not state how
much of that depreciation has taken place since 1822.
The defendants' counsel insist, that independent of the
objection founded upon the lapse of time, there are several
material defects in the title of Watts, and that the court cannot,
under such circumstances, compel the defendants to receive it.
It is objected that a suit is now pending in the general court
of Kentucky by one Henry Banks, who claims the warrant on which the
entry was made under which Watts claims, and it is alleged that the
decree against Powell's heirs did not give Watts a good title.
Page 31 U. S. 397
In October, 1821, it appears Banks filed his bill against John
Watts and the unknown heirs of Ferdinand O'Neal, in which he stated
that O'Neal was entitled to land for services as a captain, in the
Virginia Line or continental establishment, amounting to at least
four thousand five hundred acres; and that for a valuable
consideration, he transferred his right to one Thomas Washington;
that Washington, in November, 1790, authorized one Thomas Shields
to make sale of said lands; and that on 1 March, 1791, for a
valuable consideration, he transferred the said lands to the
complainant.
He further states that after the above assignment to Washington,
O'Neal fraudulently transferred a warrant for four thousand acres
of said land; and that a certain John Watts had procured grants for
a part of the said four thousand acres, under an assignment from
Francis and Charles Scott, made on the 11th of October 1799. And it
is alleged that Watts had full notice of the previous transfer by
O'Neal, before the grants were obtained. The bill contains a prayer
for a conveyance of the land specified, and also for general
relief.
The assignments set forth in the bill are proved by the exhibits
in the case.
Process appears to have been served on Watts 24 October, 1821,
and the cause was regularly continued until August, 1826, when an
order was made, that public notice be given in a newspaper printed
at Frankfort, to the unknown heirs of O'Neal, under a special
statute of Kentucky. And from this time the cause seems to have
been regularly continued, up to January term, 1829.
It is insisted by the complainants' counsel, that the pendency
of this suit cannot affect injuriously the title of Watts; as the
court of Kentucky has not jurisdiction of the subject matter, so as
to transfer the title to land in Ohio; and that from the dilatory
manner in which the suit has been prosecuted, it is manifest that
Banks can have no expectation of success.
The general court of Kentucky has jurisdiction of the
controversy, and as process was served on the defendant Watts their
powers are ample to enforce their decree,
in personam, or
to direct the execution of a deed, should the land be decreed, by a
commissioner, as the statute of Kentucky authorizes.
Page 31 U. S. 398
Banks has certainly been dilatory in the prosecution of his
suit, but it is by no means clear that by his negligence in this
respect, he has lost any of his original equity against Watts. And
this is the question now under consideration. It is not the case of
an innocent purchaser for a valuable consideration without notice,
but, the inquiry is limited to the rights of the litigant parties.
If Banks has been negligent, what vigilance has been shown by Watts
to terminate the controversy.
It is said, there has been no rule for answer on Watts. The
record does not show whether there has been a rule for answer, and
as such a rule, if entered, ought to appear, it may fairly be
presumed that no such order has been taken. But this did not
preclude Watts from taking an order, which would compel the
complainant either to dismiss his bill or bring it to a
hearing.
It would seem, therefore, if Banks has been negligent in pursuit
of his rights, Watts has shown no vigilance in the defense of
his.
No part of the proceeding in the suit against Powell's heirs, in
the Circuit Court for Kentucky, is contained in the record, except
the decree. The persons named defendants, are John M. Powell,
Francis Powell, Robert Powell, Margaret P. Bledsoe, formerly
Margaret P. Powell, wife of Joseph Bledsoe, Nancy J. Rickets, wife
of Charles H. Rickets, formerly Nancy J. Powell, Mary B. Jones,
wife of William Jones, formerly Mary B. Powell and William M.
Powell and Susan W. Powell, _____ Carr, and Fanny his wife, heirs
and representatives of Robert Powell deceased. By the decree, the
defendants were required to convey to the complainant, six hundred
and eight acres of land particularly described in the decree. And
if the defendants or any of them failed to make the conveyance, the
court appointed John H. Hanna commissioner, under the statute of
the state, to make the deed. It is admitted that the deed was duly
executed by the commissioner.
As the record of this case is not before the Court, it does no
appear whether process was served on all the above defendants, nor
whether they answered the bill. But in reference
Page 31 U. S. 399
to the object for which this decree is introduced, the
preparatory steps may be presumed to have been regularly taken.
Several objections are made to this decree. It being entered
against
femes covert, it is insisted that the interest of
the husbands cannot be affected by it. This seems to be considered
as a matter of form by the complainants' counsel, and if it be a
matter of substance, it is contended that the full record would
show that all necessary and proper parties were made by the bill.
And it is denied that the decree furnishes any evidence that the
husbands of the females named as having been married, were living
at the time of the decree.
The females are stated to be the daughters of Powell, and the
wives of the persons named. This must be considered as conclusive
of the fact that their husbands were living. If they had been dead,
the females would not have been named as the wives of certain
persons. Under the circumstances, no presumption arises that the
husbands are dead; nor can it be necessary for those who impeach
the decree to show that they are living.
As the husbands of the daughters of Powell, where issue has been
born, have a life estate in the premises in question, their
interests cannot be affected in a case where they are not
parties.
That some or all of the persons referred to are possessed of
this interest, may fairly be presumed from the circumstances. A
decree, to be operative, must contain sufficient certainty in
itself. It cannot be aided by presumption.
It is clear that the record at length could not obviate this
objection. The defendants are named, and there is no reference by
which the decree could be made to operate on the rights of the
husbands. But if it were admitted that a full record might obviate
this objection, it is not incumbent on the complainants to produce
it. It rests with them to make out their case. To obtain the object
of their bill, it is essential to show that a clear title was
tendered to the defendant Waddle, or at least, that they are able
to make him a good title. And this they cannot show, unless there
was a full divestiture of the title from Powell's heirs.
It is also objected that the widow of Robert Powell is still
living, and is entitled to her dower in the premises. She is
Page 31 U. S. 400
proved to have been living since the commencement of this suit,
and there is no evidence of her death, and one of the witnesses
states that she had an agent or assignee at Chillicothe a few years
since, claiming her right of dower.
But it is contended that the widow of Powell could not recover
dower in this land, as, at most, he could only be considered as
holding the land in trust for Watts. In proof of this, the decree
against his heirs is referred to.
If such were the fact, under the law of Ohio the widow would not
be entitled to her dower, but the decree referred to could not be
considered as conclusive of the rights of the widow. That decree
may have been entered by collusion, or under circumstances that
would not bind the parties to it, if the proper steps were taken to
set it aside. It is presumed that the widow, in setting up her
right of dower, would be permitted to show the nature of the title
under which her husband claimed. This claim, therefore, may not be
so destitute of all merit and legal propriety, as the counsel for
the complainants seem to consider it.
But the most decisive objection to the decree against Powell's
heirs is, it is contended, that it does not vest the legal title in
Watts.
A decree cannot operate beyond the state in which the
jurisdiction is exercised. It is not in the power of one state to
prescribe the mode by which real property shall be conveyed in
another. This principle is too clear to admit of doubt; but it is
insisted that the deed executed by the commissioner, under the
decree, by virtue of a statute of Kentucky, was a legal conveyance
in that state, and as such, by a statutory provision, is good in
Ohio.
The words of the statute referred to are,
"That all deeds, mortgages and other instruments of writing for
the conveyance of lands, tenements and hereditaments, situate,
lying, and being within this state, which hereafter may be made and
executed and acknowledged or approved in any other state, territory
or country, agreeably to the laws of such state, territory or
country, or agreeably to the laws of this state, such deed,
mortgage or other instrument of writing shall be valid in law."
The deed executed by the commissioner in this case must be
considered as forming a part of the proceedings in the court
Page 31 U. S. 401
of chancery, and no greater effect can be given to it than if
the decree itself, by statute, was made to operate as a conveyance
in Kentucky, as it does in Ohio.
The question then arises whether, by a fair construction of the
above provision, it is in the power of a court of equity, sitting
in Kentucky, by force of its decree, to transfer real estate in
Ohio.
Can this effect be given to such decree by this statute? It is
believed that no state in the union has subjected the real property
of its citizens to the exercise of such a power. Neither sound
policy nor convenience can sustain this construction, and unless
the language of the statute be imperative, no court could sanction
it.
The Legislature of Ohio could never have intended by this
provision, to place the real property of the citizens of that state
at the disposition of a foreign court. The language used in the act
does not require such a construction. It refers to deeds executed
by individuals in any other state, and not to conveyances made by
the decree of a court of chancery. This is the true import of the
section, and it does not appear that the courts of Ohio have given
it a different construction. Thus construed, it promotes the
convenience of nonresidents who own lands in Ohio, and may desire
to convey them, and in no point of view can it operate injuriously
to the interests of citizens of the state.
In this view it appears, that Watts did not acquire the legal
title from Powell's heirs under the deed of the commissioner, and
consequently he was unable to convey the legal title to Waddle.
The objections then to the deed tendered by Watts are, that the
husbands of the
femes covert named in the decree, were not
made defendants, and that there is no divestiture of their right;
that the right of dower remains in the widow of Robert Powell, and
that, at most, Watts derived only an equitable estate the decree
against Powell's heirs.
These objections are deemed decisive by the court. Under the
deed tendered to Waddle, he could not defend himself against an
action of ejectment commenced by Powell's heirs, or by any other
persons claiming under a legal conveyance from them. A decree of a
court in Ohio, having jurisdiction
Page 31 U. S. 402
of the subject matter, is necessary to give a legal effect to
the decree in Kentucky. And even if this had been done, there would
still exist serious objections to the title.
The principle is too well settled to require any reference to
authority in support of it, that a vendor to entitle himself to a
specific execution of the contract must be able to make a clear
title. No court of chancery will force a doubtful title on the
vendee, and it is always necessary that the vendor should not only
show a proper degree of vigilance on his part, but that in all
things he had complied, or was able to comply, with the contract
when he seeks a specific execution of it.
Although in the present case a willingness has been shown by
Watts to convey to Waddle the land embraced in the contract, it is
evident that he cannot convey a good title. The title is not only
shaded with doubt, but there are defects which cannot be obviated,
except by the action of a court of equity. The contract which is
the foundation of this suit, was entered into by Lamb to get clear
of a legal controversy, and if his assignee shall be compelled to
accept a title radically defective, he would be left in a worse
condition than Lamb was in before the compromise. The consideration
money has all been paid, and the result to the assignee would be,
should he be compelled to receive the deed tendered, one or more
law suits. The Court is therefore clear that the complainants, for
reasons stated, are not entitled to a specific execution of the
contract.
A new ground of relief has been assumed in the argument here
that was not made in the circuit court, which is that although this
Court should be of the opinion that a specific execution of the
contract ought not to be decreed, still the complainants are
entitled to a decree for the rents and profits of the land while it
was in the possession of the defendants.
The defendants object to this relief first because the bill is
not so framed as to embrace it, and secondly because this claim was
adjusted in the action at law, or might have been set up to lessen
the demand of the plaintiff in that action.
There is no rule of court or principle of law, which prevents
the complainants from assuming a ground in this Court, which was
not suggested in the court below, but such a course may be
productive of much inconvenience and of some expense.
Although there is no specific prayer in the bill to be paid
the
Page 31 U. S. 403
rents and profits, yet the court think that, under the general
prayer, this relief may be granted. Under this prayer, any relief
may be given for which the basis is laid in the bill. In this case,
the possession of the land by the defendants is alleged, and the
demand for rents and profits would result from this fact.
There is no pretense that this demand was taken into view in the
action at law. As it consisted of unliquidated damages, it was not
a proper subject for an offset, and it appears that the judgment at
law was rendered for the consideration money and interest.
That part of the decree of the circuit court which refused a
specific execution of the contract, is
Affirmed, but in order to afford relief for the rents and
profits, the decree dismissing the bill is opened, and the cause
remanded for further proceedings.
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
ordered, adjudged, and decreed by this Court, that that part of the
decree of the said circuit court in this cause which refused a
specific execution of the contract, is affirmed, but in order to
afford relief for the rents and profits, it is further ordered and
decreed by this Court, that the decree of the said circuit court
dismissing the bill is hereby opened, and that this cause be and
the same is hereby remanded to the said circuit court for further
proceedings to be had therein, according to law and justice, and in
conformity to the decree of this Court. And it is further ordered
that each party pay his own costs in this Court.