Construction of a contract for the sale of a tract of land.
R. executed a bond to D. conditioned that he would make him a
fair and indisputable title to a certain tract of land on or before
1 January, 1795, and if no conveyance was then made, that R. would
stand indebted to D. in a certain sum of money, being the sum
acknowledged to be paid to R. at the time of the contract.
By the Court:
"No other just interpretation can under the circumstances be put
upon this language than that the parties intended, that R. should
perfect his title to the land by a patent and should make a
conveyance of an indisputable title to D. on or before 1 January,
1795, and if not then made, the contract of sale was to be deemed
rescinded and the forty-five pounds purchase money was to be repaid
to D."
In 1799, the heir of the vendor, he having died, obtained a
complete title to the land by patent, and the vendee did not die
until seven years afterwards. After his death in 1806, no step was
taken by his heirs or devisees for the purpose of asserting any
claim to a performance of the contract for the sale of the land,
until 1819, and no suit was commenced until 1823. In the meantime,
the property has materially risen in value from the general
improvement and settlement of the country.
By the Court:
"The objection from the lapse of time is decisive. Courts of
equity are not in the habit of entertaining bills for a specific
performance after a considerable lapse of time unless upon very
special circumstances. Even where time is not of the essence of the
contract, they will not interfere where there have been long delay
and laches on the part of the party seeking a specific"
performance. And especially will they not interfere where there
has in the meantime been a great change of circumstances and new
interests have intervened. In the present case, the bill is brought
after a lapse of twenty-nine years.
The case as stated in the opinion of the Court was as
follows:
The suit was brought in February, 1823, for a specific
performance of a contract made in January, 1794, for the sale of
land, under the following circumstances. On 6 January, 1794, John
Rogers of Virginia executed his bond to James Dickinson of the same
state in the penal sum of �2,000 upon condition, after
reciting that Rogers had on that day sold to Dickinson a tract of
land lying in Kentucky,
Page 33 U. S. 421
containing about twelve hundred acres, for �120, that if
Rogers, his heirs or assigns, shall make or cause to be made to
Dickinson or his assigns a good and lawful deed for the land when
required, then the obligation to be void. On the same day,
Dickinson executed to Rogers a counter-bond in the penal sum of
�240 upon condition, after reciting the sale of the same
land to Dickinson, and the receipt by Rogers of �45, part of
the consideration money,
"that if Rogers shall, on or before 1 January, 1795, make a fair
and indisputable title in fee simple to Dickinson, &c., of the
said tract or parcel of land, and Dickinson, after that conveyance
being made, shall pay to Rogers the further sum of �75
lawful money, but if no such conveyance of said land shall be made,
then the said Rogers stands indebted to the said Dickinson in the
sum of �45 already advanced as mentioned aforesaid, then
this obligation to be void, or else to remain in full force and
virtue."
At the time of this contract of sale, Rogers had no patent for
the land, but only a plat and certificate of survey of it upon a
military warrant. Rogers died in April, 1794, without children,
unmarried and intestate, leaving his father, George Rogers, his
heir at law, who then lived in Virginia, and afterwards died there
in March, 1802, having by his last will devised the land in
controversy, of which he had obtained a patent in 1799, to his two
sons, Edmund Rogers and Thomas Rogers (the defendants), and to his
four daughters, to each of them one sixth part, and constituted his
said sons trustees for his four daughters during their lives, and
afterwards for their children respectively in fee, with power to
sell the same, &c. He also appointed his two sons executors of
his will.
Dickinson continued to reside in Virginia until his death, in
1806, and by his last will he devised his estate to his wife Mary
Dickinson, under whom the plaintiff, Ann Holt, claims, as her
daughter and sole heiress at law, the land in controversy. The suit
is brought against the defendants, Edmund and Thomas Rogers,
without making the four daughters or any of them or their
representatives parties.
The circuit court dismissed the bill of the complainants, and
they prosecuted this appeal.
Page 33 U. S. 432
MR. JUSTICE STORY delivered the opinion of the Court.
After stating the case, he proceeded:
This is an appeal from a decree of the Circuit Court of Kentucky
District dismissing the bill in equity brought by the appellants
against the appellees.
Three points have been made at the argument by the appellees,
either of which, if established, would be fatal to the bill in its
present shape, and two of them would be fatal in any shape. The
first is that the contract of sale was not absolute, but terminated
by the nonfulfillment of the conditions at the end of the
stipulated period; the second is that the lapse of time is a bar to
all equity in the plaintiffs, and the third is that the proper
parties for a decree are not before the court.
In the first place, then, was the contract such as it is
represented to be by the appellees? We are of opinion that taking
into view the whole transaction, its proper interpretation is such
as their argument supposes. It is true that the bond of Rogers to
Dickinson, taken alone, presents only the common case of a contract
for a sale of land at a specific price, with an undertaking to make
a good and lawful deed of the land when required by the vendee. But
the other bond, executed contemporaneously by Dickinson to Rogers,
is to be taken into consideration in ascertaining the true nature
of the transaction. That bond, however inaccurate in its
phraseology, shows that the real contract between the parties was
that Rogers should make a fair and indisputable title to Dickinson
of the land on or before 1 January, 1795, and if no conveyance was
then made, then Rogers was to stand indebted to Dickinson in the
said sum of �45. Now we think that no other just
interpretation can under the circumstances be put upon this
language than that the parties intended that Rogers should perfect
his title to the land by a patent and should make a conveyance of
an indisputable title to Dickinson on or before 1 January, 1795,
and if not then made, the contract of sale was to be deemed
rescinded and the �45 purchase money was to be repaid to
Dickinson. What strengthens this interpretation is that the
�45 was not at the time actually paid, but was merely the
amount of an antecedent debt due from Rogers to Dickinson, and the
bond of the latter contains no stipulation of his part to pay
Page 33 U. S. 433
the balance of the purchase money except upon a conveyance made
within the prescribed period. If the parties had intended the sale
to be absolute, the bond of Dickinson would have contained an
absolute agreement to pay that balance, as the other bond did an
absolute agreement to make a conveyance, when required. We think
too that the total omission of Dickinson in his lifetime to take
any step to enforce the sale furnishes a strong corroboration that
he so understood the matter.
But in the next place, if this difficulty could be (as we think
it cannot be) surmounted, the objection from the lapse of time is
equally decisive. Courts of equity are not in the habit of
entertaining bills for a specific performance after a considerable
lapse of time unless upon very special circumstances. Even where
time is not of the essence of the contract, they will not interfere
where there has been long delay and laches on the part of the party
seeking a specific performance. And especially will they not
interfere, where there has in the meantime been a great change of
circumstances and new interests have intervened. In the present
case, the bill is brought after a lapse of twenty-nine years. It is
true that the vendor died within the year, and that he had not, at
the time of the contract, a complete title to the land, but a
complete title was afterwards obtained by his father, who was his
heir, in the year 1799, and Dickinson did not die until seven years
afterwards. During the period of eleven years after Dickinson had a
perfect right (if ever) to demand a strict performance of the
contract, he never took a single step to assert his right, or to
compel performance. After his death in 1806, no step was taken by
his heirs or devisees for the purpose of asserting any claim until
1819, and no suit was commenced until 1823. The manner in which
this delay is accounted for in the bill is wholly unsatisfactory.
The grounds stated are the distance of the parties from each other,
their intervening deaths, the difficulty of ascertaining who were
the heirs, and the residence of the latter in a different state.
But any reasonable diligence would have enabled Dickinson and his
legal representatives to have ascertained who the heirs of Rogers
were. His father and their resided in the same state with Dickinson
for many years, and the acting executor under the will of the
father did not remove into Kentucky until several years after the
probate of the
Page 33 U. S. 434
will. There is therefore no ground, upon which the gross laches
or indifference of the parties can be reasonably excused. And such
a long silence does, as we have already intimated, justly lead to
the conclusion of a consciousness that the right, if any, was
exceedingly doubtful. In the meantime, the property has materially
risen in value from the general improvement and settlement of the
country, and thus furnishes an additional reason for not disturbing
the existing rights of property.
This view of the case renders it unnecessary to consider the
other point as to the nonjoinder of proper parties.
The bill contains no alternative prayer for a return of the
�45 if specific performance should not be decreed, and under
the circumstances we are of opinion that it ought not to be decreed
under this bill upon the prayer for general relief, it not being a
case specially made by the bill. The decree of the court below will
therefore be affirmed. As the general dismissal of the bill will
not in our judgment, under the circumstances, operate as a bar to
future proceedings at law to recover the �45 if an action be
otherwise maintainable, we do not think it necessary to dismiss the
bill without prejudice, thereby throwing the burden of the costs of
the reversal upon the defendant. The plaintiff may therefore well
be left to his legal remedy, such as it is, for any indemnification
under the contract.
Decree affirmed.
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
Kentucky and was argued by counsel, on consideration whereof it is
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.
