
    Donelson vs. Weakley and others.
    
    Fraud or misrepresentation of any material circumstance upon the part of the vendor, in relation to the land sold, will authorize a rescisión of the contract of sale upon a bill filed by the vendee.
    When the vendor promises and agrees with the vendee, that he will do some further act to inprove and enhance the value of the land sold, and such promise appears to be one of the inducements to the purchase, if the act agreed to be done, be not done in a reasonable time, it will be a fraud, and be sufficient cause for a court of equity to interfere and rescind the contract, in toto.
    
    An agreement and promise by the commissioners of a town, or their agent, when selling the lots, that a canal shall be cut and a basin formed, at their own expense, for the use of the town, if it appear to be one of the inducements for the purchase, and is the cause of increased prices to be given for the lots, if not performed in a reasonable time, will be such an agreement or promise as will authorize a court of equity to rescind the contract
    The opinion of the vendor as to what the future value of the land will be, or what it. is — that can be as well judged of by the vendee as himself — will not authorize a rescisión of the contract.
    If one of the commissioners of a town become the purchaser of lots at the sale, and is induced to purchase under a belief that the promises of the commissioners will be performed, he has the same right to file his bill for rescisión of the contract, as other purchasers, and is as much entitled to relief; when he becomes a purchaser, so far as his own purchase is concerned, he changes his situation, and is a stranger to the commissioners.
    This bill was filed 9th May 1827, and states, that in 1819 a company associated themselves together for the purpose of speculation, calling themselves “the Muscle-Shoal Land Company, south of the Tennessee river.”-— bald company agreed to lay on a town on a tract of land they had purchased, and for that purpose appointed the defendants trustees or commissioners, who proceeded to lay out a town south of Tennessee river, near the lower end of the Muscle Shoals, about three-fourths of a mile from said river, into lots of one-quarter or half acre each, which they called Bainbridge. The lots were advertised for sale on the 2d March, 1817. High expectations were excited in the public mind by the puffing and artifices of those interested, which brought many people to the sale, and among the rest the complainant.
    As an inducement to purchasers, said commissioners represented that a large basin, as a harbor for boats, was to be excavated at a point designated near said town; that a canal was to be opened, &c.; that the Little Muscle Shoals, below said town, was to be improved, &c.; that a road was to be opened to intersect the military road, &c.; that a bridge was to be erected over Shoal creek, -&c. All of which was to be done by said company, at their own expense, in a short time. A ferry was to be established over the Tennessee river, and a horse-boat kept. •
    It was also stated, that no purchaser should be called on for payment until this canal was completed. One of the commissioners, in a speech, portrayed the future glory of the place in such poetic strains, that complainant was transported. And then, at a credit of one, two and three years, they were offered for sale by public outcry, and went off at high prices. Some of the company would hid off lots themselves at extravagant prices, which was done to enhance the prices of the other lots. Sales were effected to the amount of $140,000; and complainant was thus gulled into the purchase of ten lots, at the price of $¡5,905, payable as aforesaid; gave his notes for the money, and took a bond for title upon the last payment being made, which hie offers to destroy. On the 7th August 1821, the said commissioners voluntarily offered to deduct 20 per cent. on the amount of his purchase, on account of a deduc-^on Price the company had bought at, by an act of congress; but fearing complainant would not renew his notes, they offered him, beside the deduction, further time for the payment, and renewed their promises of internal improvement. All which they did, just to get the appearance of complainant’s having abandoned his equity against the original purchase; and sure enough, they fooled him again, for he was so anxious to get clear of the twenty per cent, that he thought he would at any rate do that, and then look out as well as he could as to the balance, and so executed his four notes for $1197 each, the first payable the 31st December 1821, and the other three in one, two and three years after the last date.
    The commissioners about that time had commenced cutting the canal, and the hope that they would finish it and to get clear of the twenty per cent, was the only inducement he had to renew his notes. Said commissioners have not completed the canal, nor made the other improvements promised. Said town has not improved, and the commissioners do not intend to complete said works. The lots are not worth five dollars, and the commissioners have surrendered the notes of some of the purchasers, and he hoped they would give up his; but they refused to do so, and have obtained judgments against him upon the note due in 1824, and sued him upon the two which are due in 1822 and 1823. Prays perpetual injunction, that the contract be cancelled, and general relief.
    The answer of Levi J. Gist, admits the plaintiff’s narrative up to the time of the sale of the lots, except as to the means employed to produce any false excitement.— States, that complainant is one of the company; that complainant owned land and resided within a few miles of Bainbridge, and was at the sale, and was himself loudest and most eloquent of all others present, in portraying to the company the many advantages of the location and the certain prospect of the future grandeur of Bainbridge. He denies any promise or undertaking of the commissioners to make any of the improvements mentioned by complainant. The commisioners did design to cut a canal, and that intention was spoken of, and no other improvement was ever spoken of, according to his knowledge. But he positively denies that any time was set or promise made as to when the canal should be opened, or that purchasers would not be required to pay until the canal was completed; but on the contrary, the commissioners relied exclusively upon the funds to be raised by said sale, to effect the opening of the canal. Denies the poetic oration altogether, and if complainant was greatly excited and gave high prices, it was the result of a spirit of speculation, which was very general, and which the respondent had so far imbibed, that at said sale he bought three inferior lots at the price of $¡1850, which he has paid up to the company according to his contract.
    In consequence of an act of congress, passed to relieve the purchasers of public lands in Alabama from the pay. ment of part of the purchase Imoney, containing a condition, that all purchasers of lots in any town laid off on any of said lands should have a deduction of 20 per cent, on the purchase, the commissioners gave notice to the purchasers of lots in Bainbridge, that they were entitled to this deduction, by advertisements in newspapers. The' complainant voluntarily came forward on the 7th August 1821, took the deduction, and renewed his notes, as he has stated, for the balance; and he does particularly say, that the commissioners neither made nor renewed any promise about canal making or any other improvement; nor did the complainant make the least complaint or insinuation that the commissioners had failed to comply with any promise, nor in any way express any dissatisfaction on any account. Notwithstanding the general failure of purchasers to pay, the commissioners have in fact, through much difficulty, completed the canal, except a few hours’ work where the road crosses it, &c. Denies that any purchaser’s notes have been surrendered without payment. William White, one of the company, having sued the commissioners for a breach of covenant in not paying his proportion of profits, the complainant’s note, due in 1824, was given him in payment, and judgment has been obtained for his benefit, and the other suits brought, as complainant has stated. Denies any and all fraud, &c.
    The answer of Robert Weakley states in substance, that he had very little to do with this business, but from his information and belief sustains all that Gist has said in his answer. Believes the place a very good site for a town, and gives his reasons for. that opinion, and a rational account of the failure of the prospects of Bain-bridge.
    Answer of Charles Boyles. The commissioners had determined to make the canal, in a meeting held the morning before the sale, and that determination was made known, and Saunders, one of the commissioners, stated the advantages of the location; but no promises were made. He has ceased to be a commissioner, and has no interest, &c.
    The answer of R. P. Currin, B. Reese and T. Saunders, states, that the commissioners had determined to cut the canal and a road to the river; this was made known, but it was well understood that it was to be done out of the proceeds of the sales of lots, and the same was relied on also to pay the balance of government price. „ It was a good site for a town, and the company purchased the tract at the price of $>106 per acre. No promise was made to cut the canal and road, nor to make any other improvement. The purpose to open the road and canal was entertained in good faith, but it was not a condition of the sale, nor was’there any condition or stipulation, but what was contained in the written obligation of defendants and notes of complainant, and they object to the setting up of any other by parol proof. Defendant Saunders purchased lots to the amount of $>5999, Reese to the amount of $>4810, Currin to the amount of $3586, which they have paid, except the deduction of twenty per cent., have settled up with the company, and have no interest. Complainant’s notes are transferred to White and Martin, two of the company, in payment of their dividends. $>‘10,000 has been expended on the canal, and $2000 more would complete it. The whole speculation has not met the expectations of the company. Complainant acted for himself upon his own judgment, as the balance of the company did; and if disappointed in his hopes, it has only been their common fate, and he should bear for himself his loss, as each has done.
    A decree was rendered for complainant below, and an appeal to this court.
    The testimony of complainant in effect establishes^ that on the day of sale, Turner Saunders, one of the trustees, in a public speech, set out the advantages of the situation, and stated a canal, &c. should be cut in two years, which statement made lots sell much higher.— Some witnesses understood lots were not to be paid for until the canal, &c. was completed; but others however, did not understand there was any condition, but a mere promise. There seems from the evidence to have been a great excitement amongst all classes, and property to have sold high. Several witnesses say, that upon renewal of notes in 1821, it was said and understood, the situation of purchasers would not be made worse. It does not appear that there was any by-bidding, and the purchases were all bonajide. Other necessary facts are stated in the opinion of the court.
    
      
      Craighead and Fogg, for complainant.
    It appears that on the morning of the sale, the commissioners agreed upon the description of the town they would sell.— There was to be a canal, and a basin; the military road was to be turned through the town; a regular ferry was to be established across the Tennessee river, and a bridge was to be made across Shoal creek; and all these things were to be accomplished before any money was to be exacted of purchasers, or at all events within the space of two years. This description was not merely read to the assembled multitude, but it was embellished and adorned by the eloquence of Saunders, and carried still further by the ingenuity and artifice of the crier, who spared no pains to force the lots to the highest possible pitch of extravagance, who frequently more than insinuated that the Little Muscle Shoals were to be opened; and Saunders in public speeches, declared to as many as he could prevail upon to listen, that each commissioner would bring his family or a store to the town within two years.
    He who sells property on a description given by himself, is bound to make good that description; and if it be untrue in a material point, although the variance be occasioned by mistake, he must still remain liable for that variance. See M’Lenon vs. Taylor and Massie, 1 Cran. Rep. 530: Kelly’s heirs vs. Bradford, 3 Bibb, 318: Grantland vs. Wright, 2 Munf. 179: JolifFe vs. Hite, 1 Call, 301: 4 Dessau. Ch. Rep. 135: Ridléy vs. Barrow, S. C. T. (manuscript:) 2 Dow’s Rep. 266: 1 Ja. and Walker 125: 2 Equity Ca. Abr. 5: Calt vs. Wollarton, 2 P. Williams, 154.
    The town for which they wish to coerce payment is without a basin, a canal, military road, or any ferry under the direction of the commissioners. No store is sent there by any of them, nor other capital vested there, except an expenditure on a ditch begun for form, and abandoned for very shame, because, ⅛ in the answer they admit it is worth nothing now, nor is it likely ever to be of value. But it is said that some of the purchasers would not give their bonds according to contract, and others failed to pay; yet the commissioners took upon themselves the mode of securing payment and coercing pun ctuality. Their undertaking was with all purchasers; but one purchaser was in no respect answerable or subject to any loss for the misconduct of another; besides in all their speecliesand puffs, they were not only silent as to punctuality of payment, but they actually declared no money would be required until all should be fulfilled.
    As to confirmation, if this could be established by circumstantial evidence, there is no such testimony here. Complainant’s notes for a given amount being due to defendants, they, unsolicited, proposed to reduce the sum, and to postpone the day. To this complainant made ho objection. This proves nothing, unless it be, that defendants, ashamed of their imposition, voluntarily receded from the rigor of it, and delayed a conflict and an exposure of the contract until coerced by others, which they now offer as their apology for being before the court in such a transaction.
    On the subject of confirmation, we refer the court to the following authorities, 1 Vesey, 215: 12 Yesey, 373: 1 Ball and Beaty, 341, 354-5-8-9: 2 Ball and Beaty, 317: 3 Brown’s Ch. Rep. 120: 2 Sch. and Lef. 486.— As to fraud being proved by parol evidence, 2 Ball and Beaty, 47: 4 Dow’s P. 248: Blake vs. Marvell, 2 Vernon, 371: Boyce vs. Grundy, 3 Peters’ Reports, 219.
    Anderson, for defendants.
    It is insisted that there was no fraud practised in the sale.
    1. In the declaration that they had resolved to cut a canal and road, there was no fraud, for that was the truth. It is not nor cannot be pretended, but that they had so resolved, and in good earnest, which is proved by their proceeding with the work and spending their mo* nej thereat, so long as they had any to spend.
    2. The remarks made as to the advantages of the site, no doubt were the candid opinions of the speaker. In these remarks no facts were falsely stated; if his deductions were too sanguine, every one had the right and power to draw his own deductions from the facts. No one can. be heard to complain that he was deluded by adopting another’s opinion, for two reasons: 1st,because there is no method by which the truth of the allegations can be ascertained, and 2d, if any chooses to act so idly his conduct is too foolish to deserve any assistance from a court. Moreover, it is in the nature of man to form sanguine opinions of the value of what he owns, and to express that high opinion when in treaty for its sale, and this is found to be so universal and natural, that the morality of the law is not so refined as to condemn it; but on the contrary, allows every one to praise and extol his property. See 1 Wheat. Rep. 189: Cro. Jac. 4, Chandler Vs. Lopez: 5 Yes. 807, Oldfield, vs. Round: 2 East’s Rep. 314, Parkinson vs. Lee: 20 Johnson’s Rep. 196, Suett vs. Colgate: 3 Cain’s Cases, 48, Seixas vs. Woods: 2 Kent’s Comm. 374, and references. I observe no difference between personal and real property as to this rule. 2 English Ch. Rep. 7, Scott vs. Hanson. 2 Mer. 704, Trower vs. Newcome.
    The declaration that a canal and road would be cut, can be considered alone in the light of a promise; and under this view of it, the first question presented is, was it a promise made to he a condition precedent to the payment of the purchase money.
    1st. The defendants say, the proof does not make out such a case.
    2d. It is not competent to the complainant to make out such a case by parol evidence, because such evidence would not only add to, but would be in direct contradiction of the written obligation of the parties entered into upon the subject. 8 Vesey, 334, n. c. Sug. on Vend. 106, and reference. 1 Sch. and Lefr. 38, Sli-nan vs. Cook. 4 part Stark. Ev. 1002, and references.
    A confirmation of a contract bj a renewal of the obligations, when all the objections to it were well known, will preclude the party thus confirming from urging any of these objections. 4 Bro. Ch. Ca. 494, Fordycc vs. Ford. 6 Vesey, 670. 10 Vesey, 508. 1 Vesey, 241, Col-croft vs. Roebuck. 4 Des. Rep. 126, Roach vs. Rutherford.
    Specific performance will be refused, if the party asking it has delayed in performing his part of the conditions, or has delayed in asking a specific performance, or by any other acts has authorized the other .party to. conclude that he has abandoned the contract; and less indulgence in delay will he allowed to him who asks to rescind, than to him who asks performance.
    Slighter evidence arising from the delay, acquiescence or other conduct of him who would ask to rescind, will, be. sufficient to produce a reasonable belief that he has been satisfied with the bargain, than what in reason-would seem to be necessary to justify a belief that one had abandoned a contract. 1 Vesey, 221, Calcraft vs. Roebuck. 3 John. Rep. 23, Lawrence and others vs. Dale and others. 17 John. Rep. 437. 1 Ball and Beaty, 118,150. 1 English Ch. Rep. 100, Parker vs. Frith.
    ■Bidding for the seller is no fault, if they were all real bidders, and the bidder for the seller did not in fact run up the property to the price given, and a payment of part of the price is a waiver of the objection. 3 Vesey, 620, Bramby vs. Alt. 2 Vesey, 625, note c, Cand-ley vS. Parsons.
    The party cannot have the option to rescind or perform, as circumstances, the rise or fall of property, may make it his interest. He ought to decide promptly in his course where the contract is in fieri, and shall be held lo that course, which his conduct indicates he has elected. 1 English Ch. Rep. 302, Doloret vs. Rothschild. Two years too much delay, &c. 1 English Ch. Rep. 332, Heaphy vs. Hill.
    The court are much disinclined to rescind or refuse the specific performance or execution of a contract — where it can be executed, or where complaining _party can have compensation for the matter of which he complains. See 6 Yes. 675, Drewe vs. Hauson: 1 Cox Ca.. 58, Howland vs. Norris: 13 Yesey, 81, Homibleau vs.. Shirley: 10 Yesey, 505, Hargrave vs. Dyer: 9 Yesey, 368, Fordyce vs. Ford: 6 John. Ch. Rep. 38, King vs. Bardeam.
    Considering the promise to cut the canal in the light of a promise, then the time at which it may be done, is or is not material, according to the circumstances of the case, or rather it is a question of fact whether it was so understood by the parties at the time, or has been so treated by them since. That time was not of the essence of the contract in this case, is manifest from the manner it has been treated at all times by the parties. See 3 Merivale’s Rep. 81, Levy and others vs. Linde and others: 13 Yes. 289, Iiearne vs. Tenent: 12 Yes. 325, Radcliff vs. Warrington: 2 Sch. andLefroy, 685, Lennon vs. Nappen: 7 Yes. 265, Sitonvs. Stade: 3 Madd. Rep. 477, Hudson vs. Bertram.
    Specific performance is refused if the complainant-seemed by his conduct to have abandoned his bargain. The same principle would deny a rescisión of a contract to one who seemed to have abandoned his right to rescind. 4 Bro. C. C. 469, Lloyd vs. Collet. 1 Atk. 12. 13 Yes. 225, Alley vs. Deschamps. 2 Sch. and Lefroy, 604, Cropton vs. Ormsley 4 Bro. C. Rep. 329, Peechi vs. Lamtibs. 3 Anst. 924, Jones vs. Price.
    In rescinding contracts, it is now an important inquiry whether the court can place the parties in statu quo; on this principle they never set aside marriage contracts; "but enforce notwithstanding the adultery of complainant. 3 P. Williams, 289, Sidney vs. Sidney, note 2. Winter vs. Blount, 13 Ves. 439. Seagrove vs. Seagrove, 1 Maddox C. 270. 2 P. Williams, 619, North vs., Ansell. 2 Equity Cases Abrid. 391.
    It is impossible to place the parties in statu quo; many of the parties were purchasers at the same large prices, and have paid up; much of the money of the firm has been expended in the improvements, and other purchasers not of the firm, may compel the company to complete the canal and road, and a final settlement between the members of the company. Doneison can claim his division of the money for which lots have sold. The company would have abandoned the purchase from the government, but for the renewal of the contract in 1821; on account of which, however, they were induced to complete the purchase from the government at an enormous price. If the purchasers can rescind their purchases after this ratification, by which the company were induced to expend such a large sum of money, they will be irreparably injured by this ratification of the purchasers. This would be an injustice and injury, that the purchasers at this late day, connected with their acquiescence and confirmation, can surely not expect a court of equity to inflict upon the company.
    
      Smith, on same side. The questions seem to be, 1st. Was it a condition of sale that the canal, &c. should be dug, before the money was to be paid?
    2d. Or, was there a promise or stipulation to that effect?
    3d. If there were such promise,is it valid or obligatory?
    4th. If it were a condition of sale, or a promise valid and obligatory, does the conduct of the parties amount to a waiver, and are the complainants in circumstances to call for a rescisión of the contract, it not being in their power to place defendants in statu quo?
    
    
      Is a glowing description of the value of property, and local advantages founded on facts and circumstances of which all can judge, (there* being no intention of fraud) sufficient to rescind a contract, especially where a rescisión would be ruinous, and parties cannot be placed in statu quo ?
    
    As to the first, it could not have been intended or understood asa condition precedent, for it is not pretended the canal was to have -been cut in less than two years,, and one fourth of the money was to be paid in one year. And also from the circumstances of the parties; the Trustees had no corporate funds, and could not expend money in making improvements until they received it from purchasers. The purchasers may be supposed to say, we will purchase lets atan advanced price, if you, will appropriate a sufficiency of the price to dig a canal, &c. and this may iairly-be said to have been the agreement.
    The second point is subject to the same remarks. If instead of being a parol promise, it had been a sealed covenant, complainant could not have called for its performance, either before they paid the money, or at the same time, as it was in effect an independent covenant, not intended to be performed until the prior performance on part of complainants; as to which, see Com. Dig. Condition, (B. 1.)
    As to the third point, would such condition, promise or stipulation, being by parol, affect the rights of the parties under sealed instruments, under the circumstances? It is a principle of our municipal law, fostered with sedulous care, that no parol averment shall be received to vary, add to, or diminish the terms of a written agreement. 1 Philips’ Evidence, 480, &c. 3 Mer. R. 53,63. Powell vs. Edwards, 12 East, 6. Rich vs. Jackson, 6 Yes., 334, note. 1 H.B1. R. 273, 89. Sug. Yen. 106, 7, 8.— This rule is universal, where the party who offers such evidence calls for the aid of the court founded on such. Variation. The exception is, where defendant is resist-mg specific performance, &c. he may give evidence of a parol variation. (Sag. Yen. 98, 99,100, 102.) Party may resist performance, &c. by parol evidence. Au-thoritics upon this point are abundant. As to verbal declarations of auctioneer, see Gunnis vs. Erhart, 1 H. Blac. 289: and 13 Yes. 471, 546: 15 Yes. 516: 1 Peters, 599: 1 Dessauseure’s Ch. R. 573. The before cited case, Powell vs. Edwards, 12 East, 6, proves that a verbal warranty by auctioner, is not binding. 3 Star-Me, 1008, 1017.
    In the case now under discussion, there is a plain contract for sale of a lot at a stipulated price committed to writing, a bond given for title, and notes executed for purchase money. It is attempted on part of complainant, to prove the written agreement does not contain the true real agreement, but that in reality the contract is materially varied by parol; in this, that before the writings were made, it was stipulated the lot was never to be paid for, but upon the performance of certain very important acts upon the part of the vendors. If such important variation can be made by parol, it is difficult to conceive a case where the purchase, however deliberate and solemn in form, may not be wholly overturned by verbal additions. As upon sale of land and notés given for money upon suits brought, purchaser may prove vendor was to erect on the premises a valuable house, dig an expensive mill ditch, erect valuable mills, iron works, &c. in fine, such a contract may be clogged with every conceivable condition, and every variety of stipulation. In such a state of things, what becomes of the rule as to the sanctity of written agreements, and in what particular will they be found superior to parol averments? In Coke L. 225, it is said an express condition cannot be without deed. Com. Dig, Condition, (A. 1.) Again; a.covenant to operate as a condition, must go to the whole consideration. See 1 H. Blac. R. 273, Boone vs. Eyre, in a note. In this case, if the ca*' nal is cut and the road not opened to the ferry, is the whole contract void thereby, or does it rest in compen sation? and so of any other stipulation; as to which, see 1 Cox’s Ch. Cases, 59; also same hook, 273 : 2 Kent’s Com. 369,74 : 3 Starkie 1002 and 1006. Where the ternis of a contract-are in writing, it is the only evidence. 3 T. R. 413. N. R. 270.
    With regard to the fourth point. If it were originally a good condition, or a valid contract or stipulation, does the conduct of the parties amount to a waiver? By purchasers not relying on their objections, they have induced trustees to clear the land (covered by the town) it being of little worth 'but for- a town. They have suffered them to go on and expend $>10,000 in nearly completing the canal, insomuch that a small additional sum would finish it as originally contemplated. If the sale is now rescinded, it is apparent it must he ruinous to defendants; they cannot he placed in statu quo. In 2 Sch. and Lef. 604, it is said, “where the object of one of the contracting parties would be defeated by delay in the execution of it, if the other party delay, he shall not after-wards he allowed to insist on performance.” Wow here the trustees evidently wished to sell the town; they did not purchase it to keep; hut complainant, by lying hack and saying nothing about rescinding for about 7 years, enjoyed all the chances of a rise in value, and having failed in that speculation, now asks to avoid the contract entirely. See 13 Yes. 225, where a contract for purchase in Nov. 1797, possession taken, small amount of money paid, purchaser became bankrupt ApriH800, property rose in value, assignees filed bill for specific performance, dismissed, the contact considered as abandoned; also same book, 73, Halsey vs. Grant; and 81, Hamilton vs. Shirley. In 5 Yes. 818, Guest vs. Homfray, hill for specific performance dismissed for laches of vendor. See 4 Bro-C. R. 469, Lloyd vs. Collett, a strong case; also same book 490. Fordyce vs. Ford, 1 Cox 259. 3 John. Ch. R. 23, and indeed an almost'endless host of authorities might he referred to, upon this point, but it is believed not to be necessary.
    As to the fifth point. It seems to be settled that a man may properly commend his property. In a late case in K. B. it was held, that a false representation by the buyer in a mattpr merely gratis dictum, in respect to which he was undejf no legal pledge or obligation to the seller for the precise accuracy of his statements, and upon which it was the seller’s own indiscretion to rely, was no ground of action. See 2 Kent’s Com. 381, 2, Vernon vs. Keys: 12 East 632, Seymour vs. Delaney: 6 John. Ch. 222: 2 Kent’s Com. 385: Sugdon on Vendors, 3 &c: 6 Mod. 6.
   Catron, Ch. J.

delivered the opinion of the court.

The minor matters presented by the bill and proofs will be first disposed of. 1. The charge of by-bidding is denied by the answer, and not sustained by proof. 2. That Mr Saunders promised that a store should be established by each of the commissioners, is not alleged in the bill, and if alleged, was a loose conversation, entitléd to no weight. 3. There is no proof that the commissioners promised to open the Muscle Shoals; nor that they promised to build a bridge across Shoal Creek; or that they promised to establish a horse boat across Campbell’s Ferry.

This narrows the controversy to the promise on the part of the commissioners, to the making of the canal and roads. On this ground of relief the bill alleges, that to influence purchasers to bid the highest prices for lots, it was held out and stated by the commissioners, that a large and extensive basin, as a harbor for boats, was to be excavated near to said town, at a particular place designated; that a canal was to be dug and opened with suitable locks along the northern margin of said town, connecting said basin with the Tennessee river, suitable and convenient for boat nav igation, affording a body of water twenty feet in width, and four feet in depth, which was to be fed by Hawkins’ creek; but should the creek not furnish a supply of water sufficient, the canal was to be fed by a sluice from the river. That roads were to be cut and opened on either side of said river, intersecting the great military road; which was to be done by the commissioners in a short time, and at the company’s expense; that the caiial should be finished in one and two years, and that no collection should be made from purchasers for the lots they might purchase, until the canal should be completed; that these considerations, and many others, were held forth in a public speech by one of the commissioners, before the biddings opened, were urged by the commissioners and their agents, and a high excitement produced on those present; that the lots sold at prices most extravagant, under which influences complainant purchased, and at such extravagant prices. The commissioners admit they promised to make a canal, but deny that they promised to make any locks on it, or a basin, as alleged. They also deny that a canal was to be made in one or two years, or that they promised the payment of the purchase money bid for lots, should not be required until it was completed; but answer, the canal was to be made in a reasonable time, and that the first instalment due for lots sold, was the fund looked to as the means to make the canal. They deny they promised to make roads, save from the town site to Campbell’s ferry.

The proofs established, that the commissioners did promise and undertake, just before the biddings opened, through Turner Saunders, in a public speech delivered by him, that they would make the canal with a basin and locks,d as charged. This was often repeated by Clements, the crier, during the sale, and was urged as a prominent reason why the town would enjoy future advantages. The locality of the canal and basin had been surveyed and marked, and was as well defined and known as the town plat. In the neighborhood of the basin, lots sold higher, because of their nearness, it is also proved, that between the town site and river, (about three fourths of a mile,) the ground was spongy and the road miserable. That the canal was necessary to the growth and prosperity^ of the town, was an admitted fact at the day of sale, and is undoubted from the proof, and that the lots sold much higher by reason of the promise to make it, is clearly proved; that the commissioners promised to complete the canal in one or two years, is not satisfactorily proved. They spoke of two years as sufficient time, and Mr Saunders said it would be completed before any payment would be required from the purchasers, but this was obviously the mere expression of an individual opinion, (in the most perfect sincerity we do not doubt,) that the canal would be completed within the first year, and before the first instalment was due from the purchasers of lots. As to the promise to make roads, we do not think it had any material influence on purchasers; it is not proved that it had, or is it probable. As to the canal, however, the proofs or probability produce a widely different conviction. That the promise was made to produce high prices for lots, and that it was made in the utmost good faith by the commissioners, and its speedy and faithful execution confidently relied upon by the purchasers, is free from doubt. It is also true, that most delusive and extravagant prices were given for lots, and those purchased by complainant among that number; but the principal cause for the delusion is found in the history of the times, and the rage for speculation in land and town lots then prevailing. This common folly is no ground for relief, and must he laid out of the question. Seymour vs. Delaney, 6 John. Ch. C. 223.

In reference to the promise to make the canal, the commissioners, from their deservedly high character for integrity, had accorded to them by the purchasers, the most unbounded confidence at the time of the sale. The certainty that the canal would be constructed in a reasonable time, induced the purchasers of lots to bid prices something like equal to what would have been given, had the canal and basin actually been made at that time. The town site described to the purchasers, was one on the high grounds, a distance from the river; the situation more healthy than if nearer to the river, and connected therewith by a navigable canal and basin, to serve as a harbor. Such the town site was to be made by artificial means, and forthwith by the commissioners, at the expense of the company. In reference to a site thus improved, did the complainants buy the lots. The advantages of the site described, induced much higher prices to be given for lots; and it lay upon the company to make good the description; and if it failed, the purchaser was clearly imposed upon, and has a right to have his contract rescinded upon the ground, that his mind assented to the contract, influenced (and deluded) by the undertakings of the company. 2 Dow, 265. To permit the company to take the benefit of the increased price without making the canal, would be to violate a standing maxim at law and in equity, that no one shall take advantage of his own wrong.

That it would be a wrong to permit the company to retain the money the canal would have cost, and to collect the full price the lots sold for, is admitted; but it is insisted that much money (near $10,000) was expended on the canal before it was abandoned, and that it was not abandoned until it had become apparent that the town would not be settled, and the canal of no sort of use. As to the labor done on the canal, it would have been of no sort of benefit to the town, had it flourished equal to the extravagant anticipations of the purchasers of lots at the time of the sale. The» commissioners in 'their answer deny, that they undertook to make the locks or basin, and thereby admit that they never pretended to comply with their promise. That -a canal from the grounds above the level of the river at a low stage of water, could be made without one lock or more? would be impossible. The commissioners before the sale had surveyed the ground where the canal was promised to be made, had marked it out, and declared it easily and certainly practicable; if they were mistaken, they must abide by the consequences of a false representation, upon the principle, that if A sells B land not known to the purchaser, representing it to have a mine on it, or- other advantages it does not possess, the contract shall be set aside for this representation, although it may have been made through mistake. 5 Johns. C. C. 174, 182, Stout vs. Bales. 2 P. Wms. Rep. 217. 1 Jac. and W. 12, 112. 4 Price’s Rep. 135. 2 Dow’s Rep. 266. 3 Cra. Rep. 281. The parties must be placed as nearly the situation they were in when the sale took place, as maybe; and if the property continued of the same value nominally, they would be so on a mere rescisión of the contract; but it is insisted the lots are at this day ,of no value as town property. This is true; the town plat is of no more value than other lands of equal quality in the neighborhood; yet if the land itself were of the nominal value, any change of price, growing out of any change of times and public opinion, is no sufficient reason why this town company should enforce payment for the town sold, without having made good the description by artificial means, in reference to which the lots were purchased. It is not certain, had the canal and other improvements been made as promised, at an early day, but that the town would have become respectable as others in the neighborhood, and the purchasers suffered but partially. This is probable. The company were bound in equity to make good their description promised, and that in a reasonable time, before neighboring towns on the river acquired the ascendency by the location of capital and population, so as to blight the prospects of purchasers at the Bainbridge site. Some one town near the foot of the Shoals was to be respectable, and the others worth little or nothing. Every means were used, so far as promises of improvements, and high, not to say extravagant praises, of local advantages could be used, to induce purchasers of lots to believe that Bainbridge must be the great town on Tennessee river below the Shoals, to the prostration of its rivals. These praises, aside from promises to improve the site, were matters of opinion, of which the purchasers had the means to judge as well as the commissioners, and are no grounds for relief. But then there was a swampy bottom between the town site and the river, hardly passable with wheels heavily laden, especially in the winter and trading season; which obstacle to the improvement of the town, it was necessary to overcome before the town could commence improving to the extent anticipated. The witnesses say, the commissioners promised in the public speech made by Mr. Saunders, and in private conversation during the bid-dings, that the company would bring the river to the town, “and give it a start;” that they were selling a town in fact on the bank of the river. The commissioners did not make the canal with a basin and locks; the town has not improved; the lots have become worth nothing as town property, and a canal at this day .would be useless to the complainant; but this is no sufficient excuse for the commissioners to resist the bill; their want of good faith conduced to produce the present state of things, and they can take no advantage of their own wrong.

It is insisted, that although the contract was subject to he set aside previously, yet by the renewal of their notes in the fall of 1821, complainants confirmed their contract, regardless of the breach of duty in not constructing the canal and basin, on part of the commissioners. It is true, if the vendee intends to abandon an ex-ecutory contract, he is bound to do so promptly and decidedly, on the discovery of the breach on the part of the vendor; or on discovery of a defect of title, or an imposition in the description of the property sold; and if he negotiate with the vendor afterwards, and partially changes the contract, with full knowledge of the facts upon which the contract is sought to be set aside, he shall be deemed to have abandoned this ground of equity, and is estopped to set it up. 3 John. C. C. 42. Do the facts in this cause warrant the application of this rule? The notes were renewed by the purchasers in 1821, in strict conformity to the act of Congress passed in the spring of that year, for the relief mainly of the complainants as purchasers of public lands. The answers and proofs clearly show that this was the exclusive object, and was intended for the benefit, of both sides; but what is more satisfactory, the canal was then in progress, and the purchasers not having been called on for payment, assented, and were willing a further time should be al- , lowed for its completion. Had it been finished in any reasonable time, say one or even two years, after the notes were renewed, this court would without hesitation dismiss the bills.

It is next insisted, the complainants did not ask to be relieved in time, and therefore the bills must be dismissed.

This depends greatly upon the nature of the contract between the vendors of the town, and the purchasers, and the situation of the respective parties. The company dealt with all the purchasers alike. Payment was of course demanded of all at the same time. The conduct of the company, and the purchasers, conformed to this course. The company determined, as appears by the answers, not to enforce payment from the purchasers until the whole instalments were due. During a portion of this time, the canal was in progress; when it was finally abandoned, does not appear. But after it was abandoned, the notes of the purchasers of the lots, were divided among the stockholders of the company, when for the first time payment was demanded of the complainants, and the other purchasers, and then payment was resisted promptly and decidedly by the complainants. Considering the indulgence extended to the commissioners, so that the canal might be completed, and the indulgence extended in turn by the company to the purchasers, because of the change of times mainly no doubt, there is nothing in this ground of defence.

It is next insisted as to Donelson, that he was, and now is, one of the company who sold the lots, and cannot he heard to complain of himself.

He asks for relief in the character of a purchaser, from a contract distinct, and independent of the partnership; as a partner he must suffer the consequences in common with his co-partners, for non-compliance in not constructing the canal; hut as an individual purchaser, he is entitled to the same measure of justice that Haynes, the other complainant is. We therefore order the decrees to he affirmed, and that the complainants surrender their title bonds for the lots into this court, to he cancelled.

Decree affirmed.  