The jurisdiction of the circuit court, having once vested
between citizens of different states, cannot be divested by the
change of domicile of one of the parties and his removal into the
same state with the adverse party
pendente lite.
In a suit demanding the specific, performance of a contract by
conveying lands in the State of Ohio stipulated to be conveyed as
the consideration for other lands sold in the State of Kentucky, or
in lieu thereof requiring indemnification by the payment of money,
it was
held that all the co-heirs of the vendor, deceased,
ought to be made parties to the bill, and that the death of one of
the, heirs ought to be proved in order to excuse his omission as a
party to the bill.
It is a universal rule of equity that he who asks for a specific
performance must be in a condition to perform himself. Therefore
the vendor, being unable to make a title free from encumbrances to
the lands sold in Kentucky, was held not to be entitled to a decree
for a specific performance.
This was a bill in equity filed by the complainants in the court
below (who are the defendants here), founded on a bond conditioned
for the conveyance of 5,000 acres of land to be situated within
certain bounds of the State of Ohio, for which land a conveyance
was prayed if the defendant was possessed of or had the means of
acquiring the title thereto, and in the event of such inability on
the part of the defendant to comply specifically with his
stipulation, a compensation in damages in lieu thereof,
Page 15 U. S. 291
and in this latter case that a tract of 1,000 acres of land,
situate in the County of Bourbon, in the State of Kentucky, which
formed the consideration on the part of the complainants, for the
5,000 acres of Ohio land and for the conveyance of which the
ancestor of the complainants had, contemporaneously with the first
bond, executed his own obligation to the defendant, should be sold
for the purpose of completing such indemnity upon the suggestion of
the insolvency of the defendant, on the ground of the equitable
lien existing on the part of the complainants in that land for the
purpose of such indemnity. The bill further alleged that the
ancestor of the complainants, discovering the inability or
unwillingness of the defendant to fulfill the stipulations of his
said bond, for the purpose of his ultimate indemnity against the
consequences of such failure, had instituted an ejectment in the
Fayette Circuit Court against James Patton, to whom the defendant
had many years before sold, and invested with the possession of the
said 1,000 acre tract, against whom judgment had been rendered in
his favor. That subsequent to such judgment, an adjustment of the
accounts of improvements, rents, and profits had been effected
between them, which was shown by an agreement in writing in which
it was stipulated that the said Patton should pay to the ancestor
of the complainants the sum of $30, in full for rents, and should
yield up the possession of the premises on a day therein named. But
that in violation of the spirit and true intention of this
agreement of compromise, he, the said Patton,
Page 15 U. S. 292
had fraudulently prosecuted a writ of error to the said judgment
in ejectment, and having procured in the appellate court a reversal
of the said judgment, had secretly, illegally, and by combination
with Chilton Allen and others, procured a sale, under color of an
execution for the costs, on the reversal aforesaid, for the sum of
$13.72 1/2 and sacrificed 666 1/3 acres of the said tract, worth
many thousand dollars, for that trivial sum, the said Allen having
become the purchaser, and subsequently conveyed 500 acres thereof
to Patton, and the residue to James Scoby, all of whom are made
parties to the bill. The complainants, for the purpose of giving
legal effect to the lien given them by equity on this tract of
1,000 acres of land for the satisfaction of their demand, pray that
the sale and all other proceedings on the execution for costs be
vacated on account of the fraud and illegality by which the same
was effected.
Morgan, the defendant, in his answer admits that he was unable
to comply with the contract to convey the lands N.W. of the Ohio;
alleges fraud in the original contract, &c.
Allen Patton, and Scoby, deny fraud, &c., and allege a good
title under the sheriff's deed.
On the hearing, the court, at its November term, in 1814,
dismissed the bill as to Allen Patton, and Scoby, but decided that
the defendant Morgan was responsible for the value of the lands in
Ohio and directed a jury to ascertain its value. At the May term,
1815, a jury estimated the Ohio land to be worth, on 11 December,
1795,
Page 15 U. S. 293
$5,000; on 11 December, 1796, $6,250; and at that date, $20,000.
At the November term, 1815, a motion for a rehearing having been
overruled, a decree was rendered on behalf of the complainants for
$6,250, with interest from 11 December, 1796, and costs against the
defendant, Morgan, and execution ordered against his estate.
Commissioners were also appointed to sell the land if the money
could not be made by execution, and the commissioners directed to
convey to the purchaser. The complainants were also directed to
join in the conveyance, and to stipulate to pay, at the rate of 20
shillings per acre, for any of the land that might be lost by a
superior title.
By a copy of the will of C. Morgan, of Pennsylvania, exhibited
in the cause, it appeared that the testator had a son, William
Morgan, who was one of his heirs and who is no party in the cause.
It also appeared that there are two other executors not named in
the bill.
During the progress of the suit, Daniel Morgan, one of the
complainants, removed to and became a citizen of Kentucky. This was
shown to the court, and a motion made to dismiss the suit for the
want of jurisdiction, and overruled.
Page 15 U. S. 297
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
In this case, two questions respecting the formal proceedings of
the circuit court have been made by the counsel for the
appellant.
The first is that one of the complainants in the original suit
having settled in the State of Kentucky after this bill was filed,
that court could no longer entertain jurisdiction of the cause, and
ought to have dismissed the bill.
We are all of opinion that the jurisdiction, having once vested,
was not divested by the change of residence of either of the
parties.
Page 15 U. S. 298
2d. It appearing from the will that at its date the testator had
a child who is not a party in this suit, the bill ought to be
dismissed or the decree opened and the cause sent back to make
proper parties.
It is unquestionable that all the co-heirs of the deceased ought
to be parties to this suit, either plaintiff or defendant, and a
specific performance ought not to be decreed until they shall be
all before the court. It would perhaps be not enough to say that
the child named in the will, and not made a party, is most probably
dead. In such a case as this, the fact of his death ought to be
proved, not presumed. But as the opinion of the Court on the merits
of the cause will render it unnecessary to decide this question, it
is thought best for the interest of all parties to proceed to the
consideration of another point which will finally terminate the
contest,
Page 15 U. S. 299
so far as it is to be determined in a court of equity.
This is a suit for the specific performance of a contract,
either by conveying lands in the State of Ohio, stipulated to be
conveyed as the consideration for land sold in the State of
Kentucky, or, if that be out of the power of the obligor, by paying
money in lieu thereof. Although the contract is not contained in
one instrument, but consists of two bonds, the one given by Charles
Morgan of Pennsylvania, binding himself to convey the land in
Kentucky, and the other by Charles Morgan of Kentucky, binding
himself to convey the land in Ohio, yet it is essentially one
contract, and it sufficiently appears that the land in Ohio forms
the consideration for the lands in Kentucky. It is then a case
standing on those general principles which govern all applications
to a court of equity to decree the specific performance of a
contract.
In cases of this character, no rule is more universal than that
he who asks for a specific performance must be in a condition to
perform himself. This point was fully considered in the cases
decided in this Court in
Hepburn & Dundas v.
Auld, 5 U. S. 321, and the
principles laid down in those cases are believed to be entirely
correct.
Let us inquire, then, whether the plaintiffs in the court below
have brought themselves within this rule.
It is incumbent on them to show an ability to convey to the
defendant in that court a clear estate in
Page 15 U. S. 300
fee simple in the tract of one thousand acres lying in Kentucky,
which was sold to him by their ancestors. Have they done so?
The co-heirs are, some of them,
femes covert and some
of them infants. The decree against the defendant for the value of
the Ohio land is not dependent on their making him a conveyance of
the land in Kentucky, but is absolute. He is to pay the
consideration money and then obtain a title if he can. It is true
that in the event of selling the Kentucky land, which is to take
place after exhausting the personal estate of Charles Morgan of
Kentucky, the complainants are directed to join in the conveyance,
but this contingency may not happen, and if it should, a decree
that
femes covert and infants who are plaintiffs, and
against whom no cross-bill has been filed, should convey, might not
secure a conveyance.
This might be corrected by sending the case back with
instructions to new model the decree so as to adapt it to the
situation of the parties, did it appear to the Court that the
appellees are able to make such a title as the appellant ought to
receive.
But the appellees appear to the Court to be incapable of making
an unencumbered title to the land sold by their ancestor. Six
hundred and sixty-six acres have been sold under an execution and
conveyed by the officer making the sale. The terre-tenants have
been brought before the court. The bill, as to them, has been
dismissed, and from the decree of dismission there has been no
appeal. Can this
Page 15 U. S. 301
Court close its eyes on their title, or declare it invalid?
It has been said that the sale is fraudulent, irregular, and
illegal. But the court empowered to examine these allegations has
decided against them, and from its decree no appeal has been taken.
The encumbrance is an encumbrance in fact, and its legality can be
inquired into by this Court only in a suit to which the persons
claiming the title are parties.
It might be urged that as the appellant sold to Patton, and
Patton holds also under the sheriff's sale, he is not now at
liberty to consider Patton's title as an encumbrance on the
land.
This argument would be entitled to great consideration were it
applicable to the whole land sold by the sheriff. But it is
inapplicable to one hundred and sixty-six acres, part of the tract
which has never been sold by the appellant.
If the titles acquired under the sheriff's sale be such as would
be annulled in a court of law or equity (concerning which this
Court gives no opinion), it was incumbent on the plaintiffs to
annul them before they obtained a decree for a specific
performance.
Other objections have been made to the decree of the circuit
court. It has been said that the contract was in its origin
unequal, and that the ancestor of the appellees had in his
lifetime, by his conduct, disaffirmed the contract. It is deemed
unnecessary to examine these objections, because the Court is of
opinion that the inability of the appellees to make
Page 15 U. S. 302
such a title to the land at this time as the appellant ought to
accept deprives them of the right to demand a specific performance.
Neither party can at present claim the aid of this Court, but ought
to be left to pursue their legal remedies.
Decree reversed and bill dismissed.
