
    Celia Huntington and others v. Lucy Rogers and others.
    Where a vendor of land recovers judgment against the vendee in possession under the contract of sale, for the purchase money unpaid, causes the land to be levied on and sold under execution at law, himself becomes the purchaser, takes the sheriff’s deed therefor, and enters into possession; and the vendee thereupon tenders the balance due upon the original contract of sale, after deducting the amount ostensibly made by the sheriff’s sale, and files his petition to compel a specific performance of the original contract for the conveyance of the land: Held, that on this state of fact a decree for specific performance will be denied.
    Reserved in the district court of Wood county.
    This case was reserved to -the Supreme Court, from the district ■court of Wood county, upon the following agreed statement of facts:
    “ On December’25, 1838, Henry Zeigler, by'article of agreement under seal, sold tract 11, Maumee and Western Reserve road-lands, Wood county, Ohio, to Elijah N. Knight for $1,800, payable in installments extending to December 25,1843. Zeigler covenanted to convey by good deed or deeds, in fee simple, free from all incumbrances, on payment of the purchase money. He also covenanted to give possession April 1, 1839, and full control of the premises from January 1, 1839, reserving rights of a tenant whose lease extended to April 1,1839. Knight went into possession *under the agreement, paid part of the purchase money, and continued to -occupy under and by virtue of the contract, until November, 1847. In March, 1843, Zeigler brought suit in Wood common pleas, in •covenant on the article of agreement, to recover the purchase money then due, and from the judgment rendered in the common pleas, Knight appealed to the Supreme Court. There Zeigler obtained judgment for $1,206.65, besides penalty and costs. In June, 1844, Zeigler brought covenant, in Wood common pleas,-on the article of agreement, to recover the amount falling due in December, 1843, and at October term, 1845, obtained judgment for $421.71, being the full balance then remaining due on the contract. On 5th January, 1847, Zeigler assigned the two judgments to Icbabod Rogers, who agreed to save Zeigler harmless from cost and counsel fees that had accrued. He made no other stipulation with .Zeigler. No assignment of the article of agreement was made by .Zeigler to him. Everything coming to Zeigler at that time was adjusted and settled by judgment; the assignment of the judgments was in these words:
    “‘Henry Zeigler v. E. N. Knight. Supreme Court Wood county, Ohio. Judgment August term, 1845; damage, $1,216.64; penalty, $60.85 ; $1,277.48. Henry Zeigler v. E. N. Knight. Wood oouuty, Ohio, common pleas. Judgment September term, 1845; damages, $421.71. The above are all the judgments of said Zeigler in Wood common pleas and Supreme Court, and this description is believed to be accurate, for a valuable consideration to me this day paid, and given by Ichabod Rogers, I hereby assign and transfer to him the judgments above referred to, and authorize him to use all lawful means for the collection of the same, as well as all moneys due me on account of said judgment, to his own use and benefit. I am not to be liable for any costs that have accrued, or may accrue, on-'said judgment; costs advanced by me to inure to the benefit of said Rogers. The said Rogers to fulfill the agreement made by me with *Josiah Scott, in reference to the collection of the moneys due on said judgment, the same as I am bound thereby. Witness my hand and seal, this 5th January, 1847.
    “ ‘ Henry Zeigler. [seal.] ’
    “On January 17, 1847, a fi. fa. was issued on the smaller judgment levied on the land mentioned in the article of agreement, on. the property of Knight. It was appraised at $2,166, and on October 5, 1847, sold to Rogers for $1,444. On the 28th of October, 1848, the sale was confirmed, and the overplus of moneys, under order of court, applied on the larger judgment, upon which execution had been issued, and was then in the sheriff’s hands. In October, 1848, debt was brought in Wood common pleas, on Huntington’s appeal bond. By way of defense, he pleaded specially the above facts, and also averred that Rogers had obtained from Zeigler a deed of conveyance for the land, and an assignment of the article of agreement, and covenanted to perform all the-stipulations of the article of agreement binding on Zeigler; that upon payment of the balance of the judgment in the appeal case,, amounting to $690, Rogers was bound to convey tbo land to Knight, and that, on October 17, 1849, he tendered to Rogers said balance, and demanded of him said deed, and that Rogers refused to-receive the tender or execute the deed. To this plea the plaintiff demurred. At the October term, 1850, the demurrer was sustained,, and judgment rendered against Huntington, with an order for execution to issue for $743.78, in district court, Wood county, bcingr the whole amount, including interest due on the contract, and cost of suit, to date of judgment. Huntington sued out of the Supreme Court a writ of error to reverse the judgment. At the December term, 1853, the Supreme Court affirmed the judgment, with costs. In October, 1848, Eogers conveyed the land to one-Hart, and took a mortgage for the purchase money. Hart and his representatives having failed to pay, Eogers foreclosed the mortgage, *and obtained decree for the amount remaining unpaid, and an order for the sale of the land. An order of sale was issued November 11,1852, by virtue of which the lands were sold January 15, 1853, and bid in by Lucy Eogers, administratrix of Ichabod Eogers, for the benefit of the estate. December 24, 1853, Knight conveyed to Huntington the land in controversy, and February 20, 1854, Huntington tendered to Lucy Eogers the balance due on said contract, and demanded a deed of said premises, which was refused. It was also agreed that, January 5, 1847, Zeigler conveyed said premises to Eogers by a regular deed of conveyance.”
    It is averred in the petition that the tender is kept good. It appears that, prior to the commencement of this suit, Eogers died, and his administratrix and heirs are made parties defendant, and since the commencement of the suit Huntington has died, and his heirs are made parties plaintiff. It appears, also, that neither Knight nor Huntington ever received a deed for said premises.
    
      James Murray, for plaintiffs.
    
      Adams and Plants, for defendants.
   Brinkerhoff, C. J.

The problem presented by this case, when Yeduced to its simple elements, is this:

The vendor of real estate (here represented by Eogers), retaining in himself the legal title, and the purchase money being unpaid, recovers judgment at law for the purchase money against the vendee in possession (Huntington), and under an execution issued on the judgment, sells-the land, himself becomes the purchaser ior an amount less than the whole purchase money, takes a deed from the sheriff, and goes into possession. The original vendee (defendant in the judgment) then tenders the amount duo upon the original contract of sale, after deducting the amount ostensibly made by the sheriff’s sale, and files *his petition to compel a conveyance of the land to him as a specific performance of the original contract of sale.

On this state of case, ought a specific performance to be decreed ?

It has boon held in this state that a mere possession of land is a species of title, and such an interest as may be sold by process of execution at law. Scott v. Douglass, 7 Ohio (pt. 1), 227; Baird v. Kirtland, 8 Ohio, 21. This doctrine, though much questioned as one of universal application, has never been overruled ; and thereupon has been often mooted the further question, whether the purchaser under such execution takes the naked possession of the judgment debtors merely, or, in addition to that, the equities also under which the possession may have been obtained and held. Counsel, in argument, seem to suppose that these questions necessarily arise in this case, and that the case depends on their solution. "We do not think so.

Counsel admit, and indeed it is very clear, that if it were to be held that such a sale carries with the possession all the equities of the judgment debtor, then the complainants can have no standing in this court; for their equities passed with the sale on execution, and are gone.

But suppose we adopt the contrary alternative, and hold that nothing but the naked possession, disconnected from all the equities under which it was acquired and held, passed by the sale on execution — the question then arises, has the complainant, on that hypothesis made out a case for the enforcement of a specific performance ? Let it be granted, as matter of argument, that the court would not now interfere, and would not at any time heretofore have interfered, at the instance of these defendants, to avoid this sale on execution, still it by no means follows that a specific performance will be decreed in favor of the opposite party. Matthews v. Terwilliger, 3 Barb. 50; State v. Baum’s Heirs, 6 Ohio, 383; Watkins v. Collins, 11 Ohio, 31; Kirby v. Harrison, 2 Ohio St. 327.

*A specific performance of a contract of sale rests in ‘the sound legal discretion of the court, in view of all the circumstances of the case. It is not a matter of right, but of grace; and the defendant will succeed in procuring the dismissal of the bill, if he can convince the court that the exercise of their jurisdiction will be inequitable under the circumstances. 2 Leading Cases in Eq. (pt. 1), 547, and cases there cited. “ There are few eases in which equity will insist on the maxim, that he who seeks equity must do it, with more rigor than in those of suits for specific performance.” Ib. 550. And it makes no difference whether the circumstances which render the claim for specific performance, when made, inequitable, arose prior or subsequent to the date of the contract sought to he enforced. Perkins v. Wright, 3 H. & McH. 326. In either case, a court of equity will leave the parlies to their remedies at law.

On this hypothesis, then, how stands the case? The defendant bought the land at sheriff’s sale at two-thirds of its appraised value, considered as an estate in fee simple; the plaintiff insists that he thereby acquired but a naked possession merely, and yet asks this court to decree to.them an absolute conveyance of the premises on the tender by them of the balance due under the original contract, after deducting the amount for which the land ostensibly and nominally sold at sheriff’s sale. If there be any equity in this demand, we are unable to see it. It is asking us to accept of shadow for substance, and to make that shadow the foundation of a decree.

But it may be said, that the possession, both in law and in fact,, did pass by the sheriff's sale; and that, peradventurc, that possession may have been fully equal in value to the amount at which the land was bid off. This is certainly a supposable case; but all ordinary presumption is against it, and nothing of the kind is-either alleged in the petition or pretended in argument. If the plaintiff had averred in his petition an offer and a continued willingness *to pay the full amount of the purchase money due 'upon the original contract without reference to the sheriff’s sale, after deducting therefrom the value of rents, issues, and profits of the land, over and above the taxes paid and the value of permanent improvements made thereon, while held by the defendants, the question would be a different one from that now before us, and one which we are not now called on to decide. And now, if he desires to amend, he can have leave to do so within a reasonable time to be named in the order ; if not, the petition will bo dismissed.

Scott, Suture, Peck, and Gholson, JJ., concurred.  