
    Dannison vs. Robinett, et al.
    
    Where a person» liavi nff the equitable interest in land, is in posses^ sion, yet if such interest is not known, it will not prevail, if established,' over the legal estate eom* mencing subset quentto the equitable interest
    Appeal from a decree of the Court of Chancery, dismissing the bill of complaint of the present appellant. The bill states, that William Smith, one of the defendants, feeing seized in fee of a tract of land called Sugar Tree Vamp, lying in Washington county, containing 100 acres, mortgaged the same to James Bryant in 1788, in consideration of his having paid debts for him to the amount of £59. That Smith had three sons, named Christian, Philip and Peter, (also defendants,) and he was indebted to Christian in the sum of £109 IS 10, as ascertained by a settlement made between them on the 22d of May 1789. That he had no means to discharge the debt, except by a sale of his equity of redemption in the land. That it was agreed between the father and his sons that the former should sell to them the land, and a bond of conveyance was executed ■for the purpose dated the 22d of May 1789. And it was ?lso agreed, that on the sons Philip and Peter, paying to 
      Christian two thirds of the debt due to him, they were equally to have the land. From the time of the contract, 1 p *° 7ear ^^3, the three sons possessed the laude While they were in possession, Moses Rohinett, (another defendant,) who had a knowledge of their equitable right, purchased the same land from William Smith, and obtained a deed, dated the 8th of October 1793. That Peter, one of the sons, was induced by Rohinett to believe his title was invalid, and he contracted with him for the same for the sum of 1215, for which a note was given, but the money has never been paid. That Joshua Wilson (another .defendant,) paid to James Bryant the money due on the mortgage, and obtained an assignment of the same. That Rohinett, having obtained the deed, applied to two magistrates for a writ of forcible entry and detainer, availing himself of a period when the sons could obtain no counsel, and they were induced to believe they would be turned out of possession, and therefore gave up the possession. That the magistrates who attended were those before whom the deed was executed, and one of them the agent of Rohinett. That on the 29th of November 1793, Joshua and Isaac Wilson, (also defendants,) in consideration of 820 paid to Christian Smith, obtained an assignment of his interest in the bond of conveyance, and on the 19th of June 1794, for the like sum paid by Bannison, (the complainant,) reassigned the bond to him. That Peter Smith, on the 1st of March 1794, and Philip Smith, on the 18th of April 1794, assigned their interests in the bond to the complainant for the like consideration. That Rohinett, after ho obtained the deed, paid to Joshua Wilson the money he had paid on the mortgage, and received an assignment. That the complainant tendered to Rohinett the principal and interest due on the mortgage, and tendered and Claimed a conveyance, but that Rohinett refused to receive the money, or execute the deed. The object of the bill was to obtain that conveyance, and for Rohinett to account for the profits of the land from the time he took possession of it.
    The answers of all the defendants, except Rohinett, admit the facts stated in the bill. He does not admit tire debt to the sons, nor the bond of conveyance, or his knowledge of the same, if it did exist, before the deed to him- ' self.
    
      The complainant offered in evidence sundry depositions ■of witnesses, taken under a commission issued from the Court of Chancery, to prove — 1. The execution of the bond of conveyance. 2. The consideration, possession, and notice to Bobinett. S. The assignments executed by the three sons of William Smith to the complainant.
    Hasson, Chancellor, (October term, 1803.) The answer of the principal defendant, who is called on to convey, &c. expressly denies knowledge of an equitable title in the persons under whom the complainant claims, and there is not testimony, winch, according to the principios of this court, is sufficient to refute the answer, taking the whole of the testimony into consideration. Decreed, that the hill be dismissed, but without costs. From which decree (.he complainant appealed to this court.
    The cause was argued in this court before Chase, Ch. J„ Tilghman, Buchanan, Nicholson, and Gantt, J.
    
      Johnson, (Attorney-General,) for the appellant,
    contend - ded — 1. That a prior equitable right to land will prevail over a legal title acquired with a knowledge of that equitable right.
    2. That where the person having the equitable interest is in possession of the land, there, although in fact his equitable interest is not known, still it will prevail, when established, over the legal estate commencing subsequent to the equitable interest. In other words, the possession alone will exclude the legal right from being protected, on the ground of being ignorant of the equitable right. Tie cited 2 Fonbl. 155, (note m). Smith vs. Low, 1 Atk. 490; and 1 Pow. on Cont. 302.
    3. That the appellant may recover two thirds; that is, the proportions of Christian and Philip, supposing the con-duet of Peter may exclude him, or his assignee, from the recovery of die other (bird.
    4. That if Peter, at the time of the conveyance from William SmPh, was ignorant of his right, and that Bobinett, or his agent, contributed to induce him to the belief that he had no right, his one third may be recovered.
    5. That the assignee of Christian alone is entitled to a conveyance of the whole laud, until Peter, or his assignee, pays his portion of |he debt.
    
      6i That the appellant is entitled to an account of ill<2 profits to sink the mortgage debt. He referred to Jarrett vs. West; in this court.
    
      Shaqffi for the appellees.
    A decree for a specific execution of a contract is hot ex debito justitix; but at the discretion of the court. An agreement, to merit the interposition of a court of equity in its favour, must be fair, reasonable, bona fide, certain in all its parts, mutual, useful, made upon a good or valuable consideration, not merely voluntary, free from fraud, &c. 2 Pow. on Cont. 221. Unless a contract has all these ingredients, a court of equity will not decree a specific performance. The Chancellor decreed in this case, upon the ground that notice was not sufficiently proved. And in support of the decree dismissing the bill, it is contended — 1. That there was no contract proved. 2. If there was a contract, it was a voluntary and fraudulent one. 3. The bill has not charged any thing like notice to Robinett. He referred to 1 Pow. on Cont. 302. Butcher vs. Stapely, 1 Vern. 365. Borret vs. Gomeserra, Bunb. Rep. 94. 2 Eq. Ca. Ab. 17, 48.
   The Court oe Appeals

affirmed the decree of the Court of Chancery.  