
    Reed vs. Noe and others.
    
    Where an entire tract of land was sold, and tlie ■complainant, the vendor, at the tíme he filed his bill, did not have a legal title to a part, it was held, that as he was not in a condition to perform the contract on liis part, he had no ground of equity, or right to enforce a specific performance of the agreement.
    The court will not decree a specific performance against the purchaser of land, if the complainant cannot make out a title clearly good and free from all incumbrances.
    When a bill may be demurred to, and the defendant instead of demurring answers the bill, the court will not, upon dismissing the bill, allow the defendant against the. complainant "costs which accrued after the return of the subpoena.
    This is a bill brought by the complainant for the specific execution of a contract for the sale of a tract of land.
    The original bill alleges, that about the 2d day of November, 1824, the complainant entered into a contract with the defendant, Noe, for the sale oftwo tracts of land, adjoining each other, in Grainger county, containing together 70 1-2 acres, and that he executed his obligation to Noe to make him a general warranty deed for said land, on or before the first day of February 1826, for which Noe executed his six several notes for $50 each.
    
      The bill further charges that complainant, has a good and sufficient title to the said land, and had offered before the first day of February 1826, to make to defendant a deed therefor, but that defendant had waived its acceptance, and that notwithstanding he had always been willing to make a .deed to defendant, yet defendant had sued him on the title bond for not having executed a deed according to its terms. The bill prays that the suit at law may be enjoined, and that .defendant may be compelled to receive a title for the land.
    The amended bill alleges that sometime before the sale of the land to defendant, one Andrew Davis, had entered and .obtained a grant for 25 acres of the land sold to defendant: that complainant had purchased said 25 acres from Davis, ;and had taken his bond to convey — but that Davis had since .sold the said land to one Isaiah Midkiff, who had sold it to Solomon Noe, the son of the defendant, Joseph Noe — that both Midkiff and Solomon Noe, knew of complainants equity •when they purchased — and that the transaction was the result of a fraudulent combination between Joseph Noe, Davis, Midkiff and Solomon Noe, to embarrass" complainants title. The bill prays that Davis, Midkiff and Solomon Noe, be made defendants to the bill, and that the legal title to said land be decreed out of Davis, and vested in Joseph Noe.
    The defendant, Joseph Noe, insists in his answer, that he ought not tobe compelled to take the land in controversy, because the complainant has not a good title to the whole tract ¡agreed to be sold. He denies any combination with the other defendants to embarrass complainants title.
    The defendants, Midkiff and Solomon Noe, deny any ■knowledge of complainants title to the 25 acres at the t:me they purchased, and deny all fraud. The defendant, Davis, says complainant obtained the bond for a .title to the 25 acres from him by means of fraud and oppression, and without an •adequate consideration. That he had offered to refund the seventeen dollars received from complainant, and hád demanded a recission of the contract, but that complainant had refused to rescind, admits he then sold to Midkiff, for a valuable consideration, but did not tell Midkiff that he had previously executed a bond to complainant for a title, because he believed that contract was void for the fraud, and that he could make Midldff a good title.
    There is much testimony in reference to the boundary of the tract of land, part of which, also constitutes a part of the land sold by Reed to Noe, and also in reference to the fraud charged in the amended bill — but it is unnecessary to state these facts, as the court from the statements of the amended bill alone, was of opinion the complainant was uot entititled to a decree.
    
      Robert McKinney, for complainant.
    
      Pryor Lea, and R. Hynds, for defendants; insisted 1st,
    That complainant is not entitled to have a specific execution, because his conduct at making the contract was not free from all blame, but amounted to deception — and the subsequent transactions aggravated the embarrassment of the purchaser. 2 Hov. on Frauds, 4: 18 Yes. 11, Codmanvs. Horner: 13 Ves. 77, Halsey vs. Grant: 1 Jacob and Walker 129, Cler-mond vs.- Losburgh.
    
    From the original and amended bill, it is fairly to be inferred that complainant did not disclose the true condition of the title — and the proof confirms this impression. The bond itself indicates a concealment of the true case. The complainant, says he was willing and offered to convey, but he then had not a title, as the amended bill shows; and the proof further shows that for want of title, complainant declined af-terwards to make a conveyance. The purchaser was not bound to take a conveyance which would not give the title, nor was he bound to go into equity for the title; he had a right to his remedy at lav/.
    2. Complainant cannot insist on a specific execution because he is unable to convey a legal title. An equitable title will not authorise him to force the purchaser, and the legal owner, into equity to adjust the title among them. And when part is thus situated, the purchaser shall not be compelled to accept compensation. Hov. on Frauds, p 5, note 5: 2 Bibb 410, Jones vs. Shacklaford: 9 Johns. Rep. 450, Wd~ ters vs. Travis.
    
    
      As to 25 acres the legal title is in Solomon Noe, as appears from the amendment of the bill, and complainant has nothing except a controverted equity. Nor can complainant aid his right to specific execution, by showing if he were able, that the purchaser knew of complainants equity against Davis, before Davis conveyed his legal title to Midkiff, for complainants knowledge could not change the rights of the other parties.
   Green, J.

delivered the opinion of the court.

The bill admits that at the time it was filed, the complainant did not have a legal title to the entire tract agreed to be couveyed. This being true, he was not in a condition to perform the contract on his part, and as he could not ask the defendant to take an imperfect title, he had no ground of equity upon which to come here for the enforcement of his contract. The amended bill was therefore demurrable for want of equity. The fact that Davis in whom the legal title was vested, having been made a party does not alter the case. He was improperly joined with the defendant Noe. The complainants right to a specific performance from his vendor, Davis, is an entirely distinct cause of action from his right to have his contract with his vendee, Noe, enforced. The fact that the two contracts are for the same land, does not authorise them to be joined in a bill for their enforcement. For this reason also, this amended bill was demurrable.

If it were admitted that as to the balance of the land, the complainant had an unquestionable title, still he cannot insist that the defendant shall accept a part performance of the contract. 2 Bibbs Rep. 410; nor will the court decree a specific performance against the purchaser of land, if .the complainant cannot make out a title clearly good and free from all incum-brances. 1 Des. Rep. 382» The bill will therefore be dismissed, but because the defendants, Davis, Midkiff, and Solomon Noe, failed to demur to the amended bill, the court will not give them costs against the complainant, after the return of the subpmna.

Bill dismissed.  