After a long possession in severalty, a deed of partition may be
presumed.
In equity, time may be dispensed with if it be not of the
essence of the contract.
A vender may compel a specific execution of a contract for the
sale of land if he is able to give a good title at the time of the
decree; although he bad not a good title at the time when, by the
contract, the land ought to have been conveyed.
But a court of equity will not compel a specific performance
unless the vendor can make a good title to all the land contracted
to be sold.
The first of these cases was a writ of error to the judgment of
the Circuit Court of the District of Columbia, in an action of debt
at common law brought by Auld, agent and attorney in fact for
Dunlop & Co., against Hepburn and Dundas for $45,000, the
penalty of the same article of agreement which are recited in the
case of
Hepburn and Dundas v.
Auld, 5 U. S. 321.
The second of these cases was an appeal from a decree of the
same court dismissing the bill in equity brought by Hepburn and
Dundas against Colin Auld, to compel him to accept the land and pay
the difference between the agreed value of the land and the
award.
The questions in the two cases being substantially the same,
they were heard and argued together.
The breaches assigned in the declaration in the action of debt
by Auld were that Hepburn and Dundas did not, on 2 January, 1800,
pay the amount of the award in cash, nor bills of exchange, and did
not on that day assign and transfer to Auld the contract of Graham
with full powers, &c.
Hepburn and Dundas pleaded a tender of the assignment of
Graham's contract in three different pleas, the pleadings upon
which ended in demurrers. The first raised the question whether
Auld was obliged to accept a deed of assignment, the preamble of
which stated a part of the consideration of the assignment to
be
"a full acquittance and discharge
Page 9 U. S. 263
of all the claims and demands of the said John Dunlop & Co.
against them being made and executed by the said Colin Auld."
The other two demurrers brought into view the title of Hepburn
and Dundas to the land sold to Graham.
The bill of Hepburn and Dundas alleges that the agreement by
Auld to accept an assignment of Graham's contract towards the
discharge of the debt due from them to Dunlop & Co. and to give
an acquittance and discharge of that debt and of all demands was
the inducement for them to submit the accounts to arbitration. It
also states the acts and letters of Auld subsequent to the tender,
to show that he considered himself bound to accept the assignment.
That on 27 June, 1801, after recovering judgment in ejectment
against Graham's heirs, Hepburn and Dundas offered to make him a
deed for the land, but he refused to accept it.
The answer of Auld denies that he was bound to accept an
assignment of Graham's contract which should bind him to give an
acquittance and discharge of all demands of Dunlop & Co.
against Hepburn and Dundas. He endeavors to explain his conduct and
letters subsequent to the tender by saying that he was induced to
do it by the representations of Hepburn and Dundas that it was
necessary, and that the money due to them by Graham might be sooner
recovered or raised by sale of the land than by any contest at law
relative to the transaction of 2 January, 1800. He denies that he
ever considered the tender as good, but was willing to cooperate
with them in bringing to an end the suit with Graham, until which
time it would be doubtful whether a sufficient title in fee simple
could be obtained from them.
He avers that the compromise made with Graham's heirs was
without his consent, and may be set aside when they come of
age.
He says the offer of a deed on 27 June, 1801, was after he had
brought suit against them
Page 9 U. S. 264
upon the award, and when it was apparent that their title was
bad, or at all events doubtful.
In an amended answer he states that he had requested them to
exhibit to him their title papers, which they refused to do, and
requires that they should produce them in court. He avers his
belief that their title is defective.
Hepburn and Dundas filed a supplemental bill which states their
title. It avers possession ever since 1773, and refers to certain
title papers; they say that they verily believe their title to be
good, and never heard a doubt till long after the tender of the
assignment; that as soon as the objections were made known, they
took pains to remove them, and have lately obtained deeds of
confirmation from the surviving patentees. That the title of Sarah,
one of the co-devisees of John West, after her death in 1795,
descended upon her brothers Thomas, John, and Hugh and her sister
Catharine, and that John, Hugh, and Catharine have lately confirmed
their title, and refer to the deeds, and they suppose that Thomas
had passed all his title to Sarah's part by a deed executed before
her death.
The title which they show in their supplemental bill is as
follows,
viz.:
The six thousand acres were included in a patent for 51,302
acres of land, granted on 15 December, 1772, by the State of
Virginia to George Muse, Adam Stephen, Andrew Lewis, Peter Hog,
John West, John Polson, and Andrew Waggoner. This tract of 51,302
acres was in 1773 divided between the patentees, who have occupied
in severalty ever since. One of the shares containing 6,000 acres,
was allotted to John West, who died seized thereof and devised all
his Ohio lands to be equally divided among his children Thomas,
John, Hugh, Catharine, Sarah and Francina, excepting that Hugh was
to have 1,000 acres more than any of the other children. The
testator had but two tracts on the waters of the
Page 9 U. S. 265
Ohio,
viz., that of 6,000 acres on the banks of the
Ohio, and one of 1,400 acres on Pokitallico Creek. The devisees
made a partition among themselves; Francina's one thousand acres
were allotted to her out of the 1,400 acres on Pokitallico Creek,
and she and those claiming under her have ever since held and
enjoyed the same exclusively.
The tract of 6,000 was divided between the others, Hugh having
2,000, and the other four having 1,000 each.
Thomas, by deed of 20 May, 1788, conveyed his 1,000 acres to
Hepburn and Dundas.
John, by deed of 21 February, 1790, also conveyed his 1,000
acres, in which deed Thomas was a party.
Hugh, also, by deed of 24 April, 1788, conveyed his 2,000
acres.
Catharine intermarried with Baldwin Dade, who, with her and
Thomas West, by deed of 20 June, 1788, conveyed to Hepburn and
Dundas her 1,000 acres.
Sarah intermarried with John Bronaugh, who, with her and Thomas
West, conveyed to Hepburn and Dundas her 1,000 acres by deed of 21
February, 1790.
Thomas, also, by deed of 25 April, 1788, quitclaimed to Hepburn
and Dundas the 2,000 acres conveyed by Hugh.
By virtue of these deeds, Hepburn and Dundas aver that they were
seized of the 6,000 acres, and so continued seized and possessed
until the contract with Graham.
They then proceed to answer some objections to their title which
had been suggested by Auld.
Page 9 U. S. 266
They say that he had objected that the original patentees were
joint tenants, and that it does not appear that partition was made
among them by deed.
To this they answer first that after such a lapse of time, a
deed ought to be presumed. And secondly that upon inquiry they
found that George Muse, Andrew Lewis, and Peter Hog died before
1787; that Adam Stephen died since 1787, and Andrew Waggoner and
John Polson were still alive, who made deeds of confirmation to
Hepburn and Dundas. That they also obtained a like deed from the
residuary devisee of Adam Stephen.
They also state that Auld had objected, that the partition
between the devisees of John West, not being by deed, was not
valid, and that Francina, although she had consented to take her
thousand acres on Pokitallico Creek, might yet claim a share of the
6,000 acres.
To this they answer that a parol partition among the devisees
was valid.
They state that it was further objected by Auld that Sarah
Bronaugh had never duly conveyed her 1,000 acres to Hepburn and
Dundas and that she was not privily examined according to the laws
of Virginia.
To this they answer that they believe she was privily examined
but the commission is lost or mislaid so that they cannot find it.
And further that Sarah Bronaugh died in 1795, without issue, and
Francina, who had intermarried with Charles Turner, died without
issue in 1796, and her husband in 1802, by which deaths the
interest of those ladies in the 6,000 acres, if any they had,
devolved upon their brothers Thomas, John, and Hugh and their
sister Catharine Dade, whereupon Hepburn and Dundas obtained from
John and Hugh, and Baldwin Dade and Catharine Dade deeds of
confirmation as to the shares of Sarah and Francina. They did not
get such a deed from Thomas, because he
Page 9 U. S. 267
had before conveyed to them his interest in those lands.
Auld's answer to the supplemental bill denies that any division
ever took place between the devisees of John West under his will
and avers that Francina always refused to sell her interest in the
Ohio lands to Hepburn and Dundas, and that it was settled upon her
husband Charles Turner, who died leaving two children by a second
marriage.
That the interest of Sarah Bronaugh never passed from her to
Hepburn and Dundas for want of her privy examination.
That the deeds from Hugh West and Thomas West were not recorded
within the eight months, so as to be valid against creditors or
subsequent purchasers without notice. That Thomas was embarrassed
in his circumstances for many years previous to his death, and
there are still debts due from him by bonds and judgments which
bind any lands which descended to him from his sisters Sarah and
Francina.
Page 9 U. S. 270
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
follows:
By the agreement of 27 September, 1799, the plaintiffs bound
themselves, in the event of not paying, on 2 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,
Page 9 U. S. 271
payable at different times, with interest. They also bound
themselves to execute an irrevocable power of 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 should 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 to 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 be 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 2 January, 1800.
The plaintiffs insist, and the defendant denies, that the tender
made by Hepburn and Dundas on that day was a legal offer to 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 made, that a release of
all claims and demands whatsoever, on the part of John Dunlop &
Co. against them, had been given.
Page 9 U. S. 272
The contract of September, 1799, certainly does not in terms
stipulate for such a 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 2 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 claims 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
Page 9 U. S. 273
general complexion of the agreement of September, 1799, proves
this; but the particular stipulation to give "a full receipt and
discharge of all 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 & Co. 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 assignment, 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 to them.
1. The covenant not to interfere was not a present duty. 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 words in their most literal sense, the covenant
not to interfere would not, 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 to
Page 9 U. S. 274
Auld all the rights of Graham under the contract, and 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 impair 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 law, 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 2 January, 1800,
Hepburn and Dundas offered to do everything 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 of 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 the tendered
the money which was due on account
Page 9 U. S. 275
of the excess of value in the estimated price of the land over
the sum awarded to John Dunlop & Co. was made in a manner and
under circumstances which are not deemed reasonable. 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 have been done in a manner free from
all exception by executing such a deed as that tendered on 2
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.
Page 9 U. S. 276
It is not to be denied that circumstances may render the time
material, and the Court does not decide that this case is not of
that description. But the majority of the Court is of opinion that
the estate is to be considered as an estate held in severalty.
That a complete partition was made by an agreement, binding on
all the parties who were interested, is in full proof. This
partition would unquestionably have been protected in equity, and
the majority of the Court conceives that after such a lapse of time
and such a long separate possession, a deed of partition ought to
be presumed, and that the court in which the verdict in the
ejectment against Graham was found might so have directed the
jury.
It remains, then, only to inquire whether Hepburn and Dundas
hold a title under West, which is so free from exception that the
defendant ought to be 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, Jr.,
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 on Mrs. Bronaugh, one of 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 from 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
Page 9 U. S. 277
the agreement of September, 1799. These omissions, then, to
record the deeds of Thomas and Hugh West, and the total want of
title as to Mrs. 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,
Jr., 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. To Thomas West's share Hepburn and Dundas have no
title.
Page 9 U. S. 278
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 which 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 from such a deed.
This, therefore, 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 nonconcurrence 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
punctuality as to time in any case than with any other part of
the
Page 9 U. S. 279
agreement. But in this particular case, time was of the essence
of the contract. The object was payment of a debt, and from the
anxiety of the defendant 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 value during this delay of
the title. The remedy by 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.
He 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 could not compel the purchaser to
take a less quantity than he contracted for. So here the contract
was for 6,000 acres. The complainants have a title to a part only;
we could not compel the defendant to take that part and give him
damages for the nonconveyance of the residue.
JOHNSON, J. observed that he had perhaps taken a peculiar view
of this subject, but he should be in favor of decreeing a specific
performance generally,
Page 9 U. S. 280
leaving Auld to 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.
MR. CHIEF JUSTICE MARSHALL 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.
