
    Fitzhugh and Grinnan v. Jones.
    Decided, Jan. 28th, 1818.
    a. Sale of Land — Wiiat Constitutes Contract for-Case at Bar. -A person disposed to purchase a tract of land, wrote to the owner enquiring- whether it was for sale, and what were his terms by the acre; staUnfr also the payments it would be convenient for him to malte; one oi which was to pay $1000 immediately; the answer to this letter stated the price the owner was willing- to take, but that he wished the purchaser to take upon himself the responsibility of establishing the lines of the tract; lie also acceded to the oifered terms of payment, and required the purchaser's answer as soon as possible, in case he was disposed to accede to these terms:-- the purchaser’s reply stated, that he would take the land on the terms proposed. and would have the lines ascertained; though it went on to express his wish that the owner's agent should attend to the settlement of a part of the boundaries, through motives of delicacy in relation to one of the co-terminous tenants; saying nothing however, of waiving or abandoning his acceptance oi the terms proposed. This amounted to a complete and concluded contract for a sale and purchase of the land.
    2. Same -Contract ior .Construction. Tie word immediately used on this occasion, - only meant that the payment should be prompt; in contradistinction to a credit payment. A tender of the money therefore, without any unreasonable delay, was sufficient.
    This case was argued at great length, during six days, by Green and Wickham for the appellants, and Stanard, Call and Leigh for the appellee, in the absence of the Reporter. But, from the transcript of the Record and the opinion of this court, it appears that the only important point in controversy between the parties, was whether Jones, (the plaintiff in the suit in the superior court of Chancery for the Fredericksburg district) had made with the defendant Fitzhugh a complete and binding contract for the purchase of a tract of land of his (called Clark’s) before a sale was made of the same land by the said Fitzhugh to the defendant Grinnan. The bill was filed by Jones, on the ground of his prior bargain-, to set aside the sale to Grinnan, and for a conveyance of the land to him. The material circumstances of the case, as presented by the bill, answers, exhibits and examinations of witnesses, are sufficiently stated in this Court’s opinion.
   CHANCELLOR NELSON

pronounced the following decree, October 2d, 1816.

“The Court, being of opinion that the contract, altedged by the plaintiff to have been made between him and the defendant Fitz-hugh, was prior to that made between the defendants, and the defendant Grin-nan *had full notice of that contract before his posterior contract vías carried into effect, and therefore, that the said contract between the defendants should cot stand in the way of the claim of the plaintiff for an execution of that between him and the defendant Fitzhugh, doth adjudge, order and decree that the plaintiff do, within ten days from the date hereof, pay to the defendant Fitzhugh, the sum of $1000; that the defendants or either of them in possession of the tract of land iu the proceedings mentioned, do, on or before the first day of January next, yield up and surrender, to the possession of the plaintiff, the said tract of land, together with all the title papers thereof in the possession of them or either of them; and (the plaintiff admitting that the said tract of land contains 400 acres, for which, according to thc^ terms of his contract with the defendant Fitzhugh, he is bound to pay at the rate of SIS per acre, and waiving any survey to ascertain the quantity, and whether any deduction should be made, according to the said contract, for any deficiency,) the court doth farther order and decree, that the deed executed by the defendant Fitzhugh and the defendant Grin-nan, so far as it professes to convey the said land to the defendant Grinnan, be, and the same is hereby annulled and vacated; that the defendant Fitzhugh do, at any time after the first day of January next, on the request of the plaintiff, (he execut-1 ing to the said Fitzhugh his bonds, with security to be approved by a commissioner of this court, for the payment of $2500, on the first day of January, 1818, and for the like sum on the first day of January 1819,) convey to the said plaintiff, at the costs of the said plaintiff, the said tract of land, in fee simple, with general warranty; excepting from that warranty any responsibility on the part of the said Fitzhugh that may arise from the interferences of the lines of the lands of coterminous tenants or proprietors and others ; and that the said defendant Grinnan, on the like request of the said plaintiffs, do execute a *deed of release, releasing all right or title he may have or claim, in and to the said tract of land, in virtue of the conveyance from the defendant Fitzhugh to him. And the Court doth farther order and decree, on the execution of the said deed by the said Fitzhugh to the plaintiff, that the plaintiff do execute a good and sufficient deed to the said Fitzhugh, conveying the said land in mortgage, to secure the punctual payment of the said bonds; and, in default thereof, that the lien of the said Fitzhugh on the said land for the amount of the purchase money unpaid and secured by the said bonds, remain unimpaired; reserving liberty to him, at any time hereafter, to apply to this court to decree the sale of the said land for the payment of any part of the money secured by the said bonds that may not be punctually paid. And the Court doth in like manner decree, that, at any time after the first day of January next, on the execution, or tender by the defendant Fitzhugh to the plaintiff of such deed as is hereby decreed to be made by the defendant Fitzhugh to the plaintiff, the plaintiff do execute the bonds, with security aforesaid, to the said Fitzhugh, and the said mortgage on the land to secure the punctual payment of those bonds. And the Court doth farther order and decree, that the defendant Fitzhugh pay to the plaintiff the costs expended in the prosecution of this suit.”

From this decree, the defendants appealed. The following was the opinion of 'this Court, delivered by JUDGE ROANE.

The Court is of opinion, that the letters in the proceedings contained, viz. one from the appellee to the appellant Fitzhugh, of Jan. 15, 1814; the answer thereto, of Feb.'óth, 1814; and the reply thereto, of Feb. 10th, 1814, amounted to a complete and concluded contract for the land the subject of controversy. The first of these letters, (written, too, with the assent of Mr. Brooke the agent of Fitzhugh,) enquires of him whether the said land was-for sale; what were his terms by the acre for the same ; and states the payments it would be convenient for him *to make, one of which was to pay down $1000 immediately to Mr. Brooke. The answer to this letter states the price Mr. Fitzhug his willing to take for the land, but also states his wish that the purchaser should take upon himself the responsibility of “establishing the lines of the tract.” He also accedes to the appellee’s terms of payment, and requires the appellee to answer the letter ‘‘as soon as possible,” in case he is “disposed to accede to the” terms therein stated. Nothing can fall more completely within the idea of an offer, than this letter; in coming into the appellee’s proposals of payment; in requiring him to answer the letter “^s soon as possible,” adding as a reason therefor that he had other offers for the said land; and, above all, in wishing to know whether the ap-pellee accedes to these terms. This expression accede is entirely characteristic of a definite offer of the land, and can not be reconciled to the idea of the letter being only one link of a loose correspondence or treaty relating thereto. The appellee’s reply to this letter, which was promptly made, states that he will “take the land on the terms proposed,” and will have the lines ascertained. He then goes on, however, to express his wish that Mr. Brooke the agent of Fitzhugh, should attend to the settlement of a part of the boundaries, thro’ motives of delicacy in relation to one of the co-terminous tenants; not waiving or abandoning, however, his acceptance of the terms proposed.

If this Contract is not conclusive for the sale of the land, it is almost impossible that any should be so, which is made by means of letters: it would amount to this, that no contract can be made, unless both the parties are personally present.

As for the criticism upon the word “immediately,” used in the first letter, it only meant that the payment would be prompt, and is in contradistinction to a credit payment. The money was tendered without any unreasonable delay; and that delay arose from the intermediate conduct of Fitzhugh in selling the land to another.

With respect to the purchase by Grinnan from Brooke, that agent was not only limited in his power of selling, *but the contract was submitted by-Brooke to his principal with the knowledge and approbation of Grinnan, and was not ratified or concluded by Fitzhugh until his previous sale to Jones had put it out of his power. Of Jones’s purchase, Grinnan was well apprised at the time his purchase was completed, and therefore he can not stand on higher ground in relation to it, than Mr. Fitz-hugh does from whom he purchased.

As to the objection that this contract should not be enforced because it violates the law respecting pretensed titles, it is to be remarked that this point is not put in issue by the pleadings, nor had the ap-pellee such notice of it as would enable •him to meet and obviate it. It is also to be remarked, that it -would be much too rigorous to vacate the sale of a large tract of land, altogether, because on one of the outlines (perhaps,) a few acres might chance to be holden adversely at the time, and which arises too, (for aught appearing to the contrary) from a difference of opinion as to the true position of a given boundary.

The decree is therefore affirmed with costs; and the cause is remanded, to be finally consummated between the parties, according to the principles thereof. 
      
       Note. These provisions were inserted in conformity with the contract. — Note in Original Edition.
     