An agreement whereby the purchaser of a plantation
"bound himself to transfer to his son-in-law one-half of the
plantation, slaves, cattle, and stock as soon as the son-in-law
should pay for one-half of the cost of said property, either with
his own private means, or with one-half of the profits of the
plantation"
was deficient in mutuality. The son-in-law was not bound to
render any services nor pay any money. It was a
nude
pact.
It was not in alternative obligation upon the son-in-law,
because the election to pay his half out of the profits would have
been merely paying with another man's money.
Even if the agreement possessed mutuality, there was no
performance, or offer of performance by the son-in-law for
twenty-seven years.
Moreover, fifteen years after the agreement, when the plantation
was likely to prove a ruinous purchase, the son-in-law abandoned
and released all his claim.
This was an appeal from the Circuit Court of the United States
for the Eastern District of Louisiana.
The leading facts in the case are stated in the opinion of the
Court, to which the reader is referred.
Upon the hearing in the circuit court, the bill was dismissed,
and Dorsey appealed to this Court.
Page 53 U. S. 134
MR. JUSTICE GRIER delivered the opinion of the Court.
The record of this case covers 840 pages, and the abstracts and
briefs of counsel nearly three hundred. But as the merits of the
case, when extricated from the mass of matter with which it is
enveloped, depend on the application of undisputed principles and
axioms of the law to a few leading facts, it will not be necessary
that our statement of it should be proportionally voluminous.
Dorsey, the complainant and appellant, filed his bill in the
Circuit Court of Louisiana in March, 1848, claiming the specific
execution of a contract in writing executed on 16 April, 1821,
which is as follows:
"Samuel Packwood, now in the City of New Orleans, having lately
purchased the plantation heretofore belonging to John La Farge,
situated below town on the right bank of the river about eleven
leagues, binds himself, his heirs, and executors to transfer unto
G. Dorsey, his heirs and executors one-half of the plantation above
mentioned, also one-half of the slaves, cattle, and stock, farming
utensils &c., as soon as said G. Dorsey shall pay for one-half
of the cost of said property, either with his own private means or
with one-half of the profits of the plantation, but it is agreed
upon and well understood by said G. Dorsey, that Samuel Packwood,
until said transfer is made, has the right and privilege of selling
and disposing and transferring of said plantation to any person or
persons that he may think proper to sell to, without consulting or
asking the consent of said G. Dorsey, and the consent of said G.
Dorsey shall not be necessary to make the sale good, and it is
further agreed upon that Samuel Packwood is to have the entire and
complete control of said plantation and everything that appertains
to it until said transfer
Page 53 U. S. 135
is made to G. Dorsey; but if said Packwood should sell at any
time previous to said transfer to G. Dorsey, he shall be answerable
for and shall account to said G. Dorsey for one-half of the net
profits of said sale."
At the time this paper was executed, Packwood resided in New
York, but was owner of valuable property in New Orleans, from which
he derived his principal income. Dorsey was his son-in-law, and a
member of the mercantile firm of Morgan, Dorsey & Co. This firm
was in good credit, and acted as the financial agent of Packwood,
lending him their acceptances and advancing money for him to enable
him to complete his purchases up to the time of their failure and
bankruptcy in 1825. At this time, the firm was largely in advance
to Packwood, but the balance due was afterwards paid by him, with
interest. Dorsey had been chiefly instrumental in persuading
Packwood to make this purchase, and owing to his expectation of a
share in the speculation in case it should turn out to be
profitable, the commissions charged for these financial
accommodations were probably not so great as they otherwise might
have been, and for the same reasons also, Dorsey took an interest
in the management of the plantation, made additional purchases,
gave advice and superintendence without at first making such
additional charges as might have been made for similar services
rendered to a stranger.
When this purchase was made, the parties seem to have expected
that after the first payment of $25,000 was made by Packwood, the
profits of the plantation might in a great measure be depended on
to liquidate the balance of its cost. But they were greatly
deceived in this expectation. For many years the crops did not
equal the expenses, so that, at the time of the failure of the firm
of Morgan, Dorsey & Co. in 1825, Packwood was in debt for the
plantation and the additional purchases of land and negroes a sum
exceeding one hundred and fifty thousand dollars, $150,000. Dorsey
had paid nothing and was then unable to pay anything. The
speculation seeming likely to turn out disastrous, he ceased to
expect any advantage from it or claim any interest in it, and
accordingly he advised Packwood to sell the greater part if not all
of it "with the hope that he [Packwood] might get out of the scrape
in four or five years." Indeed, for some years after this it
appeared doubtful whether Packwood would be able to extricate
himself from his pecuniary embarrassments consequent on this
purchase. He finally succeeded, however, after a further struggle
of some twelve or fifteen years, by sales of his other property and
the profits of the plantation, to rescue himself from impending
ruin and pay the debts in which he had been involved. During
all
Page 53 U. S. 136
this time Dorsey was unable to help Packwood out of his
difficulties, and ceasing to consider his expectations from
Packwood's contract with him to be of any value, and as it might be
considered a cloud upon the title, at the request of Packwood, he
voluntarily executed and sent to him the following release,
witnessed by his wife:
"This is to certify that I hereby abandon and release unto Mr.
Samuel Packwood any claim I have or might have to any interest in
or to his plantation in the Parish of Plaquemines or profits of the
same by virtue of any written documents he may have given, or
verbal promises made upon the subject."
"New Orleans, 28 January, 1836 G. DORSEY"
"Witness: E. H. Dorsey"
From this time till 1838, Dorsey had the agency of the
plantation under a power of attorney from Packwood. In that year,
Packwood cancelled his power of attorney and appointed another
agent, alleging that Dorsey had misused his power by endorsing his
principal's name to sustain his private credit. This was the
beginning of a coldness between the parties which, after the
refusal of Packwood to incur liabilities for Dorsey in 1840 and
after the death of Mrs. Alice Packwood, the mother of Mrs. Dorsey,
and the marriage of Packwood to a second wife, became a bitter
family quarrel, followed by much litigation between the present
parties. The nature and result of these suits it is not necessary,
for the purposes of the present case, to specify. Suffice to say
that Dorsey now revived his claim to a share in the Myrtle Grove
property on the ground that his half of the purchase money had been
paid by the rents and profits of the estate, and finally instituted
this suit in March, 1848.
In the original bill, the complainant founds his title to relief
on an alleged lost agreement dated 12 April, 1823. But after the
production by the respondent of this instrument, dated 16 April,
1821, he amended his bill and made his claim under it. The
respondent, in his answer, denies the existence of any other
agreement either written or parol, and there is no proof to show
the existence of either. The right of the complainant to relief
will therefore depend on this instrument of writing, in connection
with the facts, a brief outline of which we have endeavored to give
so far as we think them material to the decision of the cause.
There is no allegation in the bill or proof that any clause was
omitted from this instrument, either through mistake or
inadvertence. It is signed by both parties in presence of attesting
witnesses, and is expressed in clear and precise terms. But there
is one characteristic necessary to give it validity as a binding
contract in which it is entirely deficient. It wants mutuality.
Page 53 U. S. 137
It imposes no obligation on Dorsey whatever. He is not bound
either to render services or pay money as a consideration for
one-half the land. Packwood could not support a suit upon it to
compel Dorsey to do anything. It is not an alternative obligation,
because Dorsey is not bound to perform either alternative. The
allegation that "Dorsey elected the alternative of paying for the
land out of the profits," or, in other words, with Packwood's
money, amounts only to this: that he was willing to accept one-half
of the plantation as a gift, but would pay no part of the purchase
money out of his own pocket. Nor is there any evidence that Dorsey
ever notified Packwood of his election to do anything. On the
contrary, in January, 1825, before the failure of the firm of
Morgan, Dorsey & Co., when the speculation appeared likely to
be a ruinous one, he
elects to have Packwood "get out of
the scrape" the best way he could, and his release, given in 1836,
shows his election to claim no interest in the property whatever.
But even assuming that Dorsey was bound by this contract, it cannot
come within the category of alternative obligations where one of
the alternatives was to pay with Packwood's money and give nothing
of his own.
"An obligation," says Pothier,
"is not alternative where one of the things is not susceptible
of the obligation intended to be contracted, but in this case the
obligation is a determinate obligation of the other. Therefore it
was decided, in l. 72, ยง 4, ff.
de sol, that if a person
promised me in the alternative two things, whereof one belonged to
me already, that he had not the liberty of paying that in lieu of
the other -- not even although it might afterwards cease to belong
to me; because this not being, at the time of the contract,
susceptible of the obligation contracted in my favor, the other
only was due;
cum re sua nemo deberi possit."
Evans' Pothier, Part 2d., C. 3, Art. 6, No. 249. Assuming the
obligation to be mutual, Dorsey was bound to "pay with his own
private means one-half of the cost" of the property, or offered to
do it within a reasonable time, before he could claim the
interference of a court of equity to enforce a specific execution
of this contract. Equity will not decree the specific execution of
mere nude pacts, or voluntary agreements not founded on some
valuable or meritorious consideration. The same rule is applied to
imperfect gifts,
inter vivos, to imperfect voluntary
assignments of debts or other property, to voluntary executive
trusts, and to voluntary defective conveyances.
When the obligation is mutual, the party asking a specific
performance must show that he has been in no default in not having
performed the agreement on his part, and that he has taken all
proper steps towards the performance. He must show himself
desirous, prompt and eager to perform the contract. If
Page 53 U. S. 138
he has been guilty of gross laches, or if he applies for relief
after a long lapse of time, unexplained by equitable circumstances,
his bill will be dismissed.
It is clear, then, from this statement of the facts and law as
they affect this case, that the complainant has not shown a case
which will entitle him to a decree in his favor.
For 1st. If he was bound at all, he has shown no performance, or
offer of performance, after an interval of twenty-seven years.
2dly. The agreement by Packwood to convey one-half of the land
purchased and paid for by himself, in consideration of a payment
"from the profits of the plantation," which equally belonged to
himself, was but the promise of a gift, a nude pact which equity
will not enforce.
3dly. The release of the complainant in 1836, fifteen years
after the agreement, when he had paid nothing for the land, either
out of his own pocket or even "by the profits of the plantation,"
if such could be called a payment was a voluntary abandonment of
all claim under it. Whether, if he had paid one-half the purchase
money, and had a good equitable title to the land, a release
without a consideration would operate as an equitable bar to his
claim, we need not inquire. But as cumulative evidence of a total
abandonment of all claim under an executory agreement of which he
had performed no part, it furnishes an additional reason for
refusing him a decree, to which he would not be entitled even if
such release had never been given.
The decree of the circuit court is therefore
Affirmed with costs.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Louisiana, and was argued by counsel. On consideration
whereof it is now here ordered, adjudged, and decreed by this Court
that the decree of the said circuit court in this cause be and the
same is hereby affirmed with costs.