
    Patton et al. vs. Ashley.
    Contract for the entry and sale of public lands between P. and A. for their joint benefits P. furnishes a pre-emption claim and agrees to furnish the numbers of other lands to be located by A. with donation claims: A. advances the money to enter the pre-emption claim and locates other lands under the contract. Held that they are jointly interested in the other lands located, although the pre-emption claim proves to be invalid.
    Such pre-emption claim was not the sole consideration of the contract, so as to defeat the interest of P. in the other land, upon its failure.
    The agreement to furnish the numbers of other lands for location was an independent stipulation; and might have been the consideration of the contract.
    A defendant must prove the facts set up in his answer, when not responsive to and in avoidance of the allegations of the bill, or they will not be taken into consideration by the court.
    If the defendant, in his answer, sets up a consideration different from that apparent upon the face of the contract, he must prove it.
    A contract under seal imports, prima facie, a legal and valid consideration for every stipulation therein.
    When a cause is set down for hearing upon bill and answer, the facts charged in the bill and admitted or not denied by the answer, are alone before the court.
    
      Appeal from Chicot Circuit Court, in Chancery.
    
    Bill by the heirs and administrators of William B. Patton against Chester Ashley, determined in the Circuit Court of Chicot county, at the November term, 1845, before the Hon. William H. Sutton, Judge.
    
      The bill sets out the contract between Patton and Ashley, as copied into the opinion of the court; and prays a specific performance of the contract, by partition of the lands located by Ashley for the joint benefit of himself and Patton, and offers to pay the amount due him under the contract. The Circuit Court, by its decree, denied partition of the lands; but decreed that Ashley should pay to the administrator of Patton the sum of two hundred dollars, paid by Patton to Ashley, on the 4th day of November, 1835, with interest; and denied all further relief. The complainants appealed.
    For a particular statement of the facts, reference is made to the opinion of this court.
    Ringo & ThapNall, for the appellants.
    Pike <fc Baldwin, contra.
    The question in the case is, whether the facts showed a case for specific performance.
    In cases of covenants and other contracts, where a specific performance is sought, it is often material to consider how far the reciprocal obligations of the party seeking the relief, have been fairly and fully performed. For, if the latter have been disregarded, or if they are incapable of being substantially performed on the part of the party so seeking relief, or from their nature they have ceased to have any obligation by subsequent events, courts of equity will not interfere. 2 Story Eq. 41. If the benefits contemplated by Ashley, in entering into this contract, are entirely gone, specific performance was properly denied. Smith v. Fromont, 2 Swans. 330. Collins v. Plumb, 16 Ves. 454. Duke of Bedford v. Trustees of British Museum, 2 M. & R. 552.
    Courts of equity will not interfere to decree a specific performance, except in cases where it would be strictly equitable to do so. They do not cany into specific execution every contract in all cases where that is found to be the legal intention and effect of the contract between the parties. If in any case the parties have so dealt with one another in relation to the subject matter of the contract, that the object of one party is defeated, while die other party is at liberty to do as he pleases, in relation to that very object: or if, in fact, the character and condition of the property, to which the contract is attached, have been so altered that the terms and restrictions of it are no longer ■applicable to the state of things, equity will grant no relief, but leave the parties to their remedy at law. 2 Story Eq. S3.
    
    The right to maintain a suit in equity for specific performance does not depend upon the parties having a right to maintain a suit at law for damages. It will often be denied where he might maintain such a suit, and be granted where he could not. 2 Story Eq. 44, 45, 46. Connel v. Buckle, 2 P. Wins. 244. Acton v. Pierce, 2 Vern. 480. Davis v. Stone, 2 Sch. & Lef. 347. Lennon v. Napier, id. 684. Williams v. Stewart, 3 Meriv. 486. Weale v. West-medel Water Works’ Co., 1 .lac. & Walk. 370.
    The specific execution of a contract in equity is matter, not of absolute right in the party, but of sound discretion in the court. It requires much less strength of case to resist a bill to perform, than to enforce a specific performance. That will not be decreed where the decree would produce injustice, or where it would be unequitable under all the circumstances. 2 Story Eq. 79. In decreeing a specific performance, a court of equity exercises a discretion, and will not exert its authority for that purpose, if by so doing, injustice will be done. Powell v. Lloyd, 2 Younge & Jen. 272. Seymore v. Delaney, 3 Cowen 445. St. Johns v. Benedict, 6. J. C. R. 111. Ruggs v. Ellis, 1 Desau. 161. Turner v. Clay, 3 Bibb 52. Hall v. Ross, 3 Hayw. 202. Perkins v. Hadley, 4 id. 143. Gi'antham v. Brizzell, 3 Hawk. 196. Schmidt v. Livingston, 3 Edw. 214.
    A specific performance of an agreement for a purchase will not be decreed, where the object of one of the contracting parties would be defeated by delay which has taken place. Crofion v. Ormsby, 2 Sch. & Lef. 604.
    Where an agreement turns out not to be material, so that on one side specific performance could not be enforced, equity will generally leave the parties to law. Per Lord Redesdale, in Hamiilton et al. v. Grant et al., 3 Dow. 42, 46.
    The party who comes to compel specific performance, must show that he has performed on his part or that he has been able and willing, and still is ready, to perform his part of the contract. Thompson v. 
      Scott, 1 McCord's Ch. 39. Watts v. Waddle, 6 Peters 389. Hall v. Ross, 3 Hayvo. 61. Ramsay v. Braidsford, 2 Desau. 582. Bowman v. Irons, 2 Bibb 78. Johnston’s heirs v. Mitchell, 1 A. K. Marsh. 227. Bousher v. Yanbuskirk, 2 id. 109.
    The universal rule in equity is, that he who asks for a specific performance, must be in a condition to perform himself. Morgan's heirs v. Morgan, 2 Wheat. 290, 299.
    Equity will not decree a specific performance where, from a change of circumstances since the contract, performance would be attended with peculiar hardship. Perkins v. Wright, 3 Piar. & McHen. 324. Carberry v. Tannehill, 1 Piar. & John. 224. Anthony v. Left-wick, 3 Rand. 238. Pratt v. Law, 9 Cranch 456. Brashier v. Gratz, 6 Wheat. 528. Western R. R. Corp. v. Babcock, 6 Mete. 346. And where there was a mistake at the time of making the contract, as to the title or identity of part of the land, the rule is the same. Graham v. Hendren, 5 Munf. 185. Cathcart v. Robinson, 5 Peters 264.
    It is clear in this case that there was a total mistake as to the title to the front lands. This was the whole consideration for which Ashley entered into the contract. It would certainly be unequitable and iniquitous to compel him to give up half his own lands, when the consideration for his part of tire contract has wholly failed. , ■
    If there is any error in the decree, it is that Ashley was not allowed interest for the time his money remained in the Land-office. He advanced it for Patton, who was to repay it with ten per cent, interest. The court ought clearly to have allowed that interest against the $200 paid by Patton.
    The complainants were, under no state of case, entitled to specific performance. To decree it, would be to overturn all the cases.
   Oldham, J.

This was a bill in chancery, filed by the appellants as heirs at law of William B. Patton, deceased, against Chester Ashley.

The bill charges that, on the 15th day of July, A. D. 1834, certain articles of agreement were entered into between William B. Patton and Chester Ashley, as follows;

“This agreement, made this 15th July, A. D. 1834, by and between Chester Ashley and William B. Patton, as follows, viz: The said Patton having this day transferred to the said Chester Ashley, the pre-emption right of Thomas Frazier, under, the act of Congress, of 1814, and the said Ashley has this day entered, by virtue of said preemption, the west fractional part of section seven, the north-west and south-west fractional quarters of section eighteen, west of the sloo, in township nineteen south, of range one east: The north-east quarter of section thirteen, and the south-east fractional quarter of section thirteen, west of the sloo, in township nineteen south, of range one east, containing four hundred and nineteen acres and twenty-three hundreths of an acre, and has paid into the Land-office the sum of five hundred and twenty-four dollars and three-cents: Now, this is to witness, that the said lands are held for the joint benefit of said Patton and Ashley, and to be disposed of for their joint benefit, and when sold, the moneys paid as aforesaid, by said Ashley, in entering said land, and the sum of three hundred and eighty-five dollars to said Patton, the estimated value of said pre-emption right of said Frazier, to be first paid to said Ashley and Patton, with interest from this date, at ten per cent, per annum, on each sum; and the said Ashley has this day located the donation claim of Pleasant Womack, near the lands aforesaid, for the joint benefit of said Patton and Ashley, and for which said Ashley is to be paid as aforesaid, with interest as aforesaid, the sum of five hundred dollars; and Ashley agrees to locate as many other donation claims, on the same terms, on lands adjoining, as he may then have, on said Patton furnishing the numbers, and when located to be paid for at the sum of five hundred dollars, with interest as aforesaid. Witness our hands and seals, in duplicate, each party retaining a copy, this 15th July, 1834.

W. B. Patton. [l. s.]

Chester Ashley, [l. s.]”

Upon the agreement, said Ashley made the following endorsement, without date: “The south half of section twelve was located by a donation claim for benefit of Shern L. Daniel, and by said Daniel sold to me, and the south-west quarter of section two, and the south-east quarter of section three, all in township nineteen south, of range one west, and this agreement is to apply to said donation claims, and are to be paid as specified in this contract, with interest from the date of this contract at the rate of ten per cent.”

The bill charges, that there was paid to said Ashley, by the said Patton, on the 4th day of Nov., 1835, in the life-time of the latter, upon the contract, the sum of two hundred dollars, as shown by Ashley’s receipt, and at another time the sum of five hundred and three 71-100 dollars, for which no receipt was given.

The bill further charges, that at the time, or shortly after, the making of the contract, there arose a contest about the validity of the preemption claim of Frazier, which was finally decided by the Commissioner of the General Land-office against the claim, and the sum of five hundred and twenty-four 3-100 dollars paid into the Land-office, thereon by Ashley, was returned to him. That since the pre-emption has been lost, that said Ashley has denied and still denies that complainants have any interest in the residue of said lands so located as aforesaid- That the ten per cent, interest per annum, annually accruing to said Ashley, upon the residue of money so coming to him as aforesaid, is rapidly increasing the incumbrance upon that portion of the lands; That as far as complainants know, or are advised, there have been no sales made of the said lands or any part of them. The bill prays partition of the lands, and also that the court decree the amount to which Ashley is entitled for the donation claims, which the complainants are ready to pay, &c.

The defendant, in his answer, admits the agreement as set forth by the bill, that the pre-emption was located upon the lands specified, and that it was finally decided to be invalid. The answer contends, that Patton, being unable to raise the necessary funds to make the entry of the lands by the pre-emption, applied to respondent for funds necessary to enter those lands, and filed in the Land-office full evidence of his right, as assignee or legal representative, of said Frazier, to said pre-emption claim, and executed to respondent a deed therefor, who entered the lands in his own name as the legal representative of Frazier: That the lands so entered were situated immediately on the west bank of the Mississippi river, and occupied a large front of said river, and were of great value, and formed the only and sole induce-meat to respondent to enter into the agreement with Patton: That Patton represented to respondent that the title to said pre-emption was indisputable, and that it was a bonafide pre-emption: That confiding in such representations, and satisfied of the great value of the lands forming the front lands to those specified in said agreement and endorsement as having been entered with donation claims on said Patton’s furnishing the numbers, respondent fixed the price of the lands so to be entered with donation claims, at the price specified in the agreement (five hundred dollars for each donation claim), being one dollar and fifty-six and one-fourth cents per acre, being scarcely one-fifth of their actual value: That ¿he sole and only remuneration, inducement and motive of respondent, for entering into the agreement with Patton, was the conveyance by Patton of Frazier’s pre-emption, covering four hundred and nineteen acres and twenty-threehundreths of an acre of front land, worth at the time, as represented by said Patton (and still believed by respondent to have been), at least twenty dollars per acre. The answer insists, that, as the pre-emption failed, Patton wholly failed to perform his part of the contract. The answer states, that after the lands were located, and the title believed to have been wholly settled, Patton, in his life-time, was desirous that the whole should be retained, paid to respondent certain moneys, the amount not recollected; but for whatever amount a receipt was given, and that no payment was made for which a receipt was not given. It is admitted drat the amount paid for the entry under Frazier’s preemption was refunded to respondent, at the Land-ófiice at Little Rock, on the 19th April, 1838, without interest; that respondent does not know that complainants are the representatives of Patton, as stated in the bill,, but denies that they are such, and requires the same to be proved. The answer further charges, that respondent, at his own proper costs and charges, caused the claim of Frazier to be defended in the General Land-office, referred to the Secretary of the Treasury, and had the Attorney General of the United States called on for his opinion; that Patton was justly and equitably chargeable with the same, and that those services were reasonably worth five hundred dollars, taking the usual charges in such cases as the criterion: That respondent had located the south-east quarter of section three, the south-half of section two, and the north-west quarter of section twelve, the numbers of which were not furnished, nor the lands examined, by said Patton; that the south half of section twelve had been located for the benefit of Shem L. Daniel, prior to the purchase of the pre-emption of Frazier, by respondent, the same was subsequently purchased of Daniel, by respondent, at the time of the endorsement of the same on the original contract: That the lands have not been sold, that by the contract respondent was to hold the same, and Patton was to receive his portion only on the sale of the land having fully been made by respondent, that the money paid by Patton to respondent, was with the view of changing the terms of the contract, which was to have been done as soon as Patton paid one-half the money expended by respondent, and one-half the price agreed upon for the donation claims, and put upon the pre-emption claims; and as neither event occurred during the life-time of Patton, or since, the contract was not changed: That respondent has ever been ready'to refund any money in his hands (if any) over and above what he is justly entitled to for the use of his money while in the Land-office. The answer insists that, inasmuch as the pre-emption of Frazier was the sole inducement to the cotí tract on the part of respondent, the consideration on the part of Patton wholly failed, and that neither he nor his heirs have any title or interest in the other lands located under the agreement; that since the contract was entered into, respondent has obtained patents for the donation claims, and procured deeds from each of the original claimants to himself, and believes that his expense in procuring' said deeds was at least one hundred dollars each, that being the average cost of procuring said deeds and having the lands recorded.

It is admitted upon the record, that complainants are the representatives of Patton, deceased, as stated in the bill. No testimony was taken, but the case was heard upon the bill, answer, replication, and exhibits. A decree was rendered for the defendant, and complainants appealed to this court.

Many facts are set up by the answer not responsive to the allegations contained in the bill, and in avoidance of them. For the purpose of availing himself of those facts, the defendant should have proven them, and without proof establishing them they cannot be taken into consideration by the court. Hart v. Ten Eych et al., 2 J. C. R. 62. Upon the facts charged in the bill; and admitted; or not denied by the answer; the rights of the parties must be determined.

It does not appear from the agreement entered into by the parties; nor does it appear as an established fact from the bill and answer; that the consideration of tire contract on the part of Patton; was the pre-emption claim of Frazier, and if that consideration failed, he was to have no interest in the other lands located under the agreement The terms of the contract are plain and distinct, and need no construction other than that which the language clearly imports. The parties entered into the contract for a mutual and joint speculation in lands. Patton held a pre-emption claim which he supposed to be valid, which was to be located for the joint benefit of the parties, and Ashley was to advance the necessary funds for that purpose, the price of the claim was fhsed at three hundred and eighty-five dollars, and the money paid by Ashley was five hundred and twenty-four dollars and thrqe cents, from the sale of the land the parties were to be reimbursed, with ten per cent, interest per annum upon the sums respectively, and the residue was to be divided equally between them. This part of the contract failed in consequence of the pre-emption claim being adjudged invalid, and no question arises upon it excepting whether the parties should bear equally, or either of them exclusively, the interest upon the money paid by Ashley into the Land-office, during the time that it remained there. The money was advanced on joint account, and had the pre-emption been held valid, Ashley would have been entitled, from the sale of the lands, to interest at the rate of ten per cent, per annum; and we conceive, that, as the object for which it was advanced failed, he is entitled to a like rate of interest during the time, to be borne equally by the parties.

The agreement recites, that Ashley had, on the day of the date of agreement, located the donation claim of Pleasant Womack, near the lands entered by the pre-emption, for the joint benefit of the parties, and for which he was to be paid in the like manner the sum of five hundred dollars, with ten per cent, interest. But the contract does not shoAV that the pre-emption claim was the consideration upon which Ashley agreed to make the location and hold the land for the joint benefit of himself and Patton. The inference is equally strong, that in consideration of Patton’s furnishing the numbers of the lands upon which the location was made, was that upon which this part of the agreement was entered into. The contract being under seal prima facie imports a legal and valid consideration for eveiy stipulation contained in it, and if the contract, or any independent stipulation contained in it, was without consideration or upon a consideration which had failed, the onus probandi is upon the party seeking to avoid it, to show such to be the fact. Cummins v. Harrall & Scott, 1 Eng. Rep. 308. Each stipulation in the contract appears to be independent of the others. There is nothing from which we can infer, that, in case either or any of the stipulations should fail, the parties should not have an equal interest in the benefits accruing under those remiining. Had such been the intention of the parties they should have expressed it in their agreement. But nothing appears therefrom, from which we are authorized to conclude such a result was intended.

Ashley, by endorsement upon the contract, declared that certain lands had been entered by him, and that the agreement was to apply to them. He insists in his answer, in one part of it, that complainants should have] no interest in those lands, because Patton did not furnish the numbers or examine the character and quality of the land, but in a previous part of the answer, this statement is contradicted by the admission that die lands specified in die endorsement were entered with donation claims upon said Patton’s furnishing the numbers. The position assumed in the answer that Patton’s interest in these lands was in consideration of the pre-emption claim, is at variance with the common sense construction of the contract. The agreement was, that Ashley was to locate as many other donation claims as he might have, to be held for their joint benefit, upon lands adjoining those specified, upon Patton’s furnishing numbers, Ashley to receive from the sales of the land the sum of five hundred dollars for each donation claim, with ten per cent, interest. The consideration upon which this part of the agreement was made, was that Patton should furnish the numbers of the land, and that Ashley should receive five hundred dollars and interest for each donation claim that might be thus located in the manner specified.

It is alleged in the answer, by way of argument, to prove that the pre-emption claim was the sole and only inducement to the contract on the part of Ashley, that “respondent confiding, &c., and satisfied of the great value of the lands forming the front lands to those specified in said agreement and endorsement, as having been entered with donation claims, on said Patton’s furnishing the numbers, he fixed the price of the lands so to be entered with.donation claims at the price specified in said agreement (five hundred dollars for each donation claim, being one dollar and fifty-six and one-fourth cents per acre), being scarcely one-fifth of their actual value.” There is, as we conceive, a very wide distinction existing between a “donation claim’’ and lands¡, entered by a donation claim. The first is the right to select and locate three hundred and twenty acres of land, as a donation, under an act of Congress; the last is the land itself so appropriated. Five hundred dollars may have been a high price for the first, but, by a judicious selection, the land, when located, may have been worth five times that amount. Ashley was to be paid five hundred dollars and interest for the donatibn claim, and not for the land. We must take the price agreed upon between the parties as the value of the donation claims; the value of the lands located by virtue of them, is no criterion. If Patton made selections of lands, the quality of which, with their circumstances, enabled Ashley to make locations, which were immediately worth five times the value of the claims, that information formed a most valuable consideration for the contract. It enabled him to make investment of his claims at five hundred dollars each, bearing ten per cent, interest per annum, secured by real estate worth at the time twenty-five hundred dollars, with the additional profit of one-half of the land or its value, after deducting the price of the donation claim and interest therefrom. It does not well comport with the principles of justice, for a man, under such circumstances, to say that the consideration for which he executed the contract on his part had failed, and appropriate the entire profits of the transaction to himself, to the exclusion of the party who furnished the information under which he was enabled to make such a pro-, fitable investment of his capital. Again, after the validity of the preemption claim was called into question in the Land-office, and before it was determined, Ashley received from Patton, on the 5th of Nov. 1835, two hundred dollars, upon the contract. Trae, he stated that the payment was made after the title to the pre-emption was supposed to have been settled; yet the exhibits to the complainant’s bill show that it was then a subject of investigation at Washington city, and that, on the day the payment was made, he addressed a letter making enquiries in relation to the prospect of obtaining a patent for the land. Although he has long since received back the money paid by him in the Land-office, yet it does not appear that he ever offered to pay back such money, so paid him by Patton, until the filing of the bill in this case. This circumstance might be used as illustrative of his understanding of the contract at tire time, were it necessary, but conceiving the terms of the agreement to be clear, it does not require construction.

The respondent claims, that “at his own proper costs and charges, he caused the pre-emption of Frazier to be defended in the General Land-office, &c.” and that “the services were reasonably worth five hundred dollars;” that “he had caused patents to be issued on the donation claims, and had procured to himself a deed from each of the-original claimants for the lands in fee simple, and believes the expense of procuring said deeds was at least one hundred dollars each.” No proof, however, was introduced in support of these allegations; they are put in issue by the replication, and before the defendant would be entitled to the amount claimed, it would be incumbent on him to show, by proof, that the services were rendered, and the expenses incurred as charged.

The taxes alleged to have been paid were a legal charge upon the land, and, if paid by Ashley, and that is a legal presumption, he is entitled to repayment of one-half of the same.

The court is, therefore, of opinion, that the lands located under the agreement were,.and' are, held by Ashley, as trustee for the benefit of the contracting parties. The lands being so held, the complainants ask partition, alleging as a reason therefor, that tire ten peí-cent. interest annually accruing to respondent upon the residue of money due him, is rapidly increasing the incumbrance upon tliat portion of the land coming to them. To this the appellee has no right to object, as he will receive all that he is in equity entitled to, and hag not shown that by partition he will be prejudiced.

The decree of the Circuit Court in'chancery must be reversed, and this cause be remanded, with directions to state an account between the parties according to their rights, as herein determined, and, upon the payment to Ashley, by the complainants, of the amount with which they are justly chargeable, and which he is entitled to receive from them, to cause partition of the lands to be made according to law.  