
    Caldwell’s heirs vs. White, Long, &c.
    Chancery
    Appeal from the Franklin Circuit; Henry Davidge, Judge.
    
      Injunctions. Practice. Specific performance. Rescission of Contracts. Lapse of time. Rents.
    
    April 27.
    Caldwell sells a house and lot in Frankfort, to White, receives payment, delivers possession and gives his bond with Long surety for the conveyance, and dies.
    White sells to Sebree, receives part oí the price, and gives possession.
    Sebree’s bill for rescission, against White.
   Judge Mills

delivered the Opinion of the Court.

[Absent Chief Justice Bibb.]

On the 30th of January, 1813, Adam Caldwell sold to Thomas White, a house and lot in the town of Frankfort, and received payment therefor, and White took possession of the estate. Upwards of three rears thereafter, Caldwell hating then heroine a non-resident of Kentucky, executed his bond to White, with Thomas Long as his surety, conditioned to convey the, said house and lot, by deed, with general warranty, ‘‘within eighteen months or two years from the date thereof,” and to keep White in peaceable possession of the estate. This instrument is dated the 26th of July, 1816. Some time after this, Caldwell departed this life, the precise time not certainly shewn.

On the 14th March, 1817, White still being in possession of the lot, sold the same to John Sebree, and gave his bond with surety, conditioned to convey the same on or before the first day of March, 1819 Sebree took possession — paid part of the price, and executed his notes for the residue, by instalments.

These bonds or notes for the purchase money, were assigned away by White, and Sebree was sued, and judgment had against him for the purchase money. The time when White was to make the conveyance having elapsed, Sebree demanded, his conveyance, and White having no title from Caldwell, Sebree filed his bill enjoining the purchase money, because he could get no title; and moreover, alleging that White not only had no title, but could not get or make a good title, according to his contract. He prays a conveyance or a rescission of the contract.

White’s answer making Caldwell’s and Sebree’s heirs defendants.

Decree in the case of Sebree against White, dissolving their contract.

White’s action of covenant against Long, as Caldwell’s surety, for the failure of Caldwell to convey.

On the 6th of March, 1821. While answered this bill, shewing his bond on Caldwell, and alleging Caldwell was dead, and that his heirs were infants, and non-residents; that he had found the title to Incomplete in Caldwell’s heirs, except a small triangle thereof, the title to which was conveyed, by the trustees, to Francis Ratcliffe; that Caldwell had purchased this triangle, of Ratcliffe, and received a writing, stipulating a conveyance. which writing was lost; that Ratcliffe was dead, and had numerous heirs, some infants, and others? femes covert. To his answer, he-made Caldwell’s heirs and Ratcliffe’s heirs defendants, and called upon them to answer the allegations of his answer; and that they might be compelled to convey to him; and that Sebree might be compelled to receive a conveyance from him, and complete his purchase.

White does not appear to have taken any steps to bring these new parties before the court, except getting a guardian ad litem appointed for the infant heirs of Ratcliffe, until Sebree brought the case to trial as between himself and White, and in the month of October, 1822, Sebree obtained a final decree rescinding the contract, compelling While to restore the purchase money which he had received, with interest, arid to take back the estate; Sebree accounting for the rents and profits thereof, during the term which he held it.

But before Sebree had obtained even an interlocutory decree against White for a rescission of the contract, White see.ms to have abandoned the idea of defending further, and of procuring the title for Sebree, and commenced his action at law upon She bond of Caldwell and Long, against Long, as the surety, for the value of the house and lot and made no further opposition to Sebres’s obtaining a decree of rescission.

Long and Caldwell’s bill for injunction against White’s proceeding at law, and to compel him to accept the title.

Answer of Ratcliffe’s heirs.

White’s answer resisting the specific performance prayed by Long and Caldwell.

Long and Caldwell’s heirs feeling the pressure of the action at law against Long, before Sebree had obtained his decree against White, appeared, filed their bill against White and Ratcliffe’s heirs; that the title was regularly vested in Caldwell, except the small triangle, which was vested in Ratcliffe, and had descended to his heirs; that for this fraction, there was a sale from Ratcliffe to Caldwell and a writing securing a conveyance, which was lost or mislaid: of which they offer proof; that so soon as this is obtained, there is no obstacle to making a dear title; and that the possession of the whole lot has remained with White undisturbed, from the date of his purchase from Caldwell, and no inconvenience in the enjoyment had been experienced from the want of title. And they prayed for and obtained an injunction against White, to restrain him from further proceeding in his action at law against Long, till the matter can be heard in equity.

Ratcliffe’s hears answered this bill, professing their ignorance of any sale or writing between their ancestors, of the. small triangular part of the lot, the title of which is in them by descent, and require the production of the writing, or proof of its existence and loss, before they are compelled to convey.

White answers, denying knowledge of any sale between Caldwell and Ratcliffe, for the triangle— resists the taking of any title, or his being competed specifically, to perform his contract; alleges the loss which he had met with in the sale to Sebree, by the rescission of the contract; and that Sebree had brought bis action at law against him for his failure to convey, and recovered the whole stipulated price; and by these suits, he had suffered much for the want of a title; and avers that the estate is greatly depreciated in value, so as to be now, not worth more hundreds of dollars than he gave thousands; and that, having, for the want of a title, lost, his sale to Sebree, for as much as he had given for the lot, if would be a great hardship upon him to ho compelled to receive the conveyance.

Answer of Caldwell’s heirs to White’s bill, for specific performance; admitting its allegations, agreeing to convey according to the prayer of the bill.

Amendment of Caldwell’s heirs, charging the combination between Long and White.

Caldwell’s heirs afterwards, finding the bill of White against them, annexed to his answer to Sebree’s bill, wherein he prays for a decree against them for the title, still depending am! never dismissed by him, although Sebree had long since got his final decree, dismissing (he controversy as to him; they immediately answered, and agree to convey according to ids prayer, arid this progresses onto trial jointly with the bill of Caldwell’s heirs; so that or a final hearing, White presented this singular attitude of being a complainant against Caldwell’s and Rafriiffe’s heirs, praying that they maybe compelled to convey to him and citing up the lost bond or writing from Ratcliffe to Caldwell; and at the same time, a defendant to a bill of Caldwell’s heirs, against him and Ratcliffe’s heirs, praying that be may be compelled to accept the title, and he resisting its acceptance with all his energies, and denying the existence of any citing between Ratcliffe and Caldwell for the triangular part.

Caldwell’s heirs also filed an amendment to their original bill, wherein they make Long a defendant, who is joint complainant with them in their original bill, and never dismissed therefrom, and charge Long and White with collusion and combination against their interest; that Long bad suffered White to take a judgment against him at law, and to issue execution thereon, and by virtue thereof, Long’s estate had be, n sold by a friendly arrangement between them, without any notice or advertisement whatever, and White had become the purchaser, and had agreed by writing, to convey it back to Long, after Long should have a reasonable time to seek his recourse against Caldwell’s estate, which was fully solvent, and procure from them the money to pay to White. They, however, wore fully set out this matter in their answer to White’s bill annexed to his answer to Sebree, and in turn make this answer a cross bill, with appropriate, interrogatories, and pray that this friendly arrangement between Long and White, may be cheeked; and that as far as they have gone therein their acts may be set aside.

White responded to this matter, admits there has been no disturbance in the possession of the lot, and he discloses the writings entered into between him and Long, which he alleges contains all their agree merits, and alleged combination between them, and which he declares fair and righteous.

White’s answer to the amendment of Caldwell’s heirs.

Long’s answer.

Agreement between Long and White, and sale of Long’s property accordingly.

White’s judgment against Long, the injunction notwithstanding.0

This new matter, set up by Caldwell’s heirs, places Long also, in the attitude of both complainant and defendant, on each side of the same controversy, and he accordingly answers these charges.— He pleads his distressed situation as a security for Caldwell, and the utter ruin likely to overtake him by White’s judgment. He also alleges that all the arrangements between them are contained in the writings to which he refers. He, however, does not very earnestly resist the relief sought by Caldwell’s heirs, or any other relief that will relieve him from his dangerous dilemma, as security for Caldwell.

By the writings between White and Long, disclosed by their answers, it appears that the sheriff, within three or four days after the levy of White’s execution on his judgment against Long, sold the house and lot of Long, on which he resided, and White became the purchaser thereof, for the full amount of the execution, and the sheriff conveyed it to White, who immediately entered into an article with Long, in which Long stipulates to pursue with all due speed, his recourse on Caldwell’s estate for the same amount, and when he shall get a judgment, to assign it to White, to redeem his residence; or if he shall fail in his recourse against Caldwell’s estate, and shall pay up the demand within two years, White stipulates to release this estate to Long.

It is worthy of remark here, and is a circumstance which we may again have occasion to notice, that all these answers and writings do not explain how White got out from under the effect of the injunction of Long and Caldwell’s heirs, and was permitted to proceed to a judgment, unless it was by an arrangement with Long. Nor does any part of the record explain it. That injunction was all the while hanging over him, and no dissolution thereof appears, although White once moved for its dissolution, and the court gave no answer to the motion.

Decree of the circuit court dissolving the contract between Caldwell and White.

Decree against Ratcliffe’s heirs for a conveyance of part of the lot approved.

Subject of the diliquidations dismissed for want of proof.

In this situation these two causes came to a final hearing together. The court below supposing the equity of Caldwell’s heirs against Ratcliffe’s heirs, for the triangular portion of the lot established, gave to Caldwell’s heirs a derive for a conveyance, as to Rafcliffe’s heirs; but dismissed heir bill as to White and Long, and refused to enforce the contract or to interfere in the arrangements between White and Long; and also decreed a rescission of the contract between White and Caldwell, causing White to account for the rents and profits. From this decree, Caldwell’s representatives leave, appealed.

We concur with that court in supposing that Caldwell’s heirs have made out a valid claim in equity for the triangular piece of ground, against, the heirs of Ratcliffe. The proof is clear that Ratcliffe gave a writing acknowledging a sale of the ground, and a receipt of the purchase money. That writing appears to have been placed in the hands of counsel to bring suit against the heirs of Ratcliffe, as they were minors, and f bat counsel died never having Commenced the suit, and among his papers this writing could not be found. This testimony added to the fact that the house, or building covers the triangule, and became necessary to the, lot, for the purpose of squaring the house, to the front of the street and other buildings; and that this house was erected in the, life time of Ratcliffe, and was occupied with his acquiescence many years before his death, is adequate, to support, a decree against the heirs of Ratcliffe, and give Caldwell’s representative a complete title at this time, and the want of title now can not avail White, unless the previous want of if, may operate in his favor, of which we shall hereafter speak.

It is alleged by White that the estate has greatly depreciated in value, and therefore, he ought not to be compelled to fake it. On the other hand it is charged that White had greatly injured the estate by alterations and changes. Of these charges there is no sufficient testimony on either side, and they may be dismissed from the controversy.

It is the general rule in executory contracts for land, the chancellor will not prohibit either part from his remedy at law.

It is one exception to the rule, when the vendee first appeals to court for specific performance.

W. having purchased of C. and sold to S. by executor contract, in his answer to the bill of S. for rescission, resisted and inserted a cross bill against C. and R one of C’s vendors, for a part, praying the execution of the contract against them, but took no process against his defendants——Afterwards S. obtains a decree for a rescission, nothing said of the cross bill. W. sues at law for damages against C’s surety, and C. brings his bill against W. for specific performance; W. then resists, and afterwards C. answers W’s cross bill—ruled that W. shall not be prejudiced by his old cross bill.

Caldwell’s representatives appear in this trial not to have been able to make a conveyance, heretofore, for want of a conveyance, to this triangle. White seems to stand surrounded with a number of circumstances which must be weighed in deciding whether he. must or must not specifically perform his contract, after, by a resort to his remedy at law, be has procured a judgment, the amount of which he has secured by his friendly arrangement with Long. On the breach of the contract to convey on the part of Caldwell, White had a legal right to his action at law, and this legal right the chancellor will not control or take away, unless the party holding it can not, in conscience, retain it. The power of the chancellor to enforce specific performance, is one exercised, not on every occasion, but is guided by a legal discretion, and it does not belong as of right, to every meritorious contract, it may be, and is often withheld, even where there is merit, and the par the are left to their remedies at law, and it would seem to follow, that where the party who held and was using a legal remedy, ought not to be restrained from doing so unless this extraordinary interposition of the chancellor becomes necessary to prevent iniquity. It may, therefore, be assumed a general rule, that a chancellor will not interfere in such cases as this of contracts for the sale of lands, and a breach of the contract for conveyance, and proceeding at law thereon, unless there are some circumstances calculated to make the case an exception to the general rule.

Among the exceptions, (for exceptions there are,) the case of the same party having made his election first to apply to a court of equity for a specific performance, and then going to a court of law, is one which it is insisted operates to the prejudice of White.

It is true he appears first in a court of equity, seeking redress; but he can not be said to be a volunteer there, in pursuance of a free choice. He was there impleaded by Sebree because lie had not made a title in pursuance of his contract; which he was unable to do, because Caldwell bad failed in his. As a means of defence there, he called upon the heirs of Ratcliffe and Caldwell; this was, however, but a formal call; he named them as parties, and asked relief; but he took no steps against them, to make them substantial parties, by bringing them before the court, nor can we say that he was bound to do so We are satisfied that Sebree was not bound to bring them there, and could only be compelled to look to White, for his title, and was not to travel the round from White to Caldwell’s heirs, and from thence to Ratcliffe’s heirs for a complete title. Nor can we say that White was bound to do so in defence, and if he did. he must shew strong and sufficient reasons, to detain Sebree from pursuing his course, until he litigated the matter with Caldwell’s and Ratcliffe’s heirs, before he could postpone the trial of Sebree’s bill. He does not appear to have had these reasons, or any reason, except the failure of Caldwell. He had sold before Caldwell was bound to convey to him, and he bad postponed the hour of bis performance nearly eight months after Caldwell was to convey to him. in that time he might reasonably expect a compliance on the part of Caldwell, and be met with none. Whether this failure was in any degree attributable to the death of Caldwell is not certain, for the time of his death is not proved. Rut one thing is certain, Caldwell had sold to White three years before this bond was given. Whether there were any writings between him and White for that period, does not appear. It is, however obvious, that during this time, he did not convey, owing to bis failure to procure the title from Ratcliffe’s heirs, by reason of the descent to them on the death of Ratcliffe, which occurred in 1814. At the end of the three years White pressed him for a title, and this bond was then given, fixing the period of making the title at the end of two years, no doubt for the purpose of procuring the title from Ratcliffe’s heirs. Why this was not done in that time is not shewn; nor is any valid excuse pretended for the delay. The death of counsel and loss of paper, does not seem to have happened till some time afterwards. Caldwell or his heirs could not convey till the title to this triangle, including part of the building was, obtained. White, fore, could shew no sufficient reasons to protract the suit of Sebree, till the controversy with Caldwell’s and Ratcliffe’s heirs was settled; and he ought, therefore, to he excused for not having attempted it. His bill against. Caldwell’s and Ratcliffe’s heirs, attached to his answer to Sebree’s bill, be was not bound to continue and did not pursue. And at the time if was answered by Caldwell’s heirs was in operative, and a mere blank, receiving all its force from the voluntary answer of Caldwell’s heirs, also made a cross bill, in reply to which he holds very different language from has first employed in his answer, it might, at any time, have been dismissed by his counsel, and not dismissing it may shew unskilful management; but his acts before the answer of Caldwell’s heirs, in suing on his bond at Jaw. and in rejecting, in his reply, any obligatory effect of this first hill upon his interests, shew that he had abandoned, and virtually dismissed it long before. The circumstance then, of the singular predicament in which he stands, as complainant or party to both sides of the controversy, can not be allowed to have a material hearing upon his interest.

It is the generate rule, that hearing, the chancellor will regard everything done in disobedience to his injunction as not done.

But if it appears there was no ground for the injunction, acts done against it ad interim, will not be disturbed.

The fact of the injunction of Caldwell’s heirs and Long, hanging over him during the time he was proceeding at law, even to this trial, is the next thing to be considered. It is true, the chancellor will generally consider every thing done in disobedience to its injunction on the hearing, as not done at all, or will undo it if necessary, to give the relief necessary.

But on this hearing it is necessary for the party to shew that he had a clear equity, or in other words, that the ground for an injunction, when granted, was tenable. If this is not shewn, the chancellor will not disturb acts done ad interim, which has not prejudiced the party complaining.

This, as we have seen, Caldwell’s heirs have failed to do. Before that injunction White, who had made a bonafide and advantageous sale to Sebree, had found to his cost, and the delay of the price, the situation in which he was placed by the failure of The consequences of a rescission of his ow n contract, was impending over him without any valid reasons for delaying it, or the means of avoiding it. He had waited a reasonable time tor a compliance, and had by his sale to Sebree, and his resistance to Sebree’s bill, shewed a willingness to waive the lapse of time, after Caldwell’s contract was broken. Under these circumstances, to save himself, he elected his remedy at law, and resorted to it. Any thing, therefore, which he has done in disobedience to the injunction, has been of no prejudice to the heirs of Caldwell, and Long does not complain of it.

Proceedings, notwithstanding an injunction, not disapproved.

Specific performance, after great delay, and the sale of vendee had been rescinded for want of the title, refused.

Where the vendee rescinds the contract, he shall account for the rents from the date of his purchase.

White, therefore, must stand excused for not standing to his contract. He has been a considerable sufferer by the failure of Caldwell. He had to restore the purchase money which he had gotten from Sebree, with interest. The notes of Sebree which he had assigned away, fell back upon him, with their accumulated weight of interest and costs, and he only received the rents from Sebree. He must, therefore, be permitted to hold his legal advantage, and any securities which he has obtained from Long.

But the court, on directing the account of rents on the restoration of the estate, has committed a material error, which must ho corrected. White is directed only to account for the rents from the time that he made his election to proceed affirmed by bringing bis suit We perceive no principle on which White can be excused from the entire rents of the estate, from the time he took possession of it, till it is restored. If he elected to proceed at law and rescind the contract, he must make that choice cum onore.

The decree must, therefore, be reversed with costs, as to White, and the cause he rewarded for a decree and proceedings, not inconsistent with this opinion.

PETITION FOR A REHEARING BY

P. H. DARBY. ESQ.

With due respect for the opinion of the court delivered in this cause, after a careful and candid examination of its reasoning and principles, the counsel for the plaintiff, differing still with this court, in its application of legal authority to the facts of the case, respectfully move the court for a re hearing of the cause. And the counsel for the plaintiffs have the more solicitude on this subject, because the principle settled by the case, is of great legal magnitude, and if it is to stand, would, on a rehearing, have the benefit of a full court.

It is admit-ed by the derision, that the title of Caldwell’s heirs is now complete to the lot in question. if. is also admitted that White has had an undisturbed possession of the property ever since the year 1813. And Capt. Weisiger proves that the house is a “frame,” and “greatly impaired by time.” And if there is any case where a court of chancery will execute a contract after the party has selected bin remedy at law, with due respect for the opinion delivered, the counsel believe that this case comes within the rule. White has had all that he contracted to have. He has had the use and occupation of the house and lot ever since the contract was made between himself and Caldwell. He has been delayed only in the title. And the only reason given in the opinion delivered, for not decreeing a specific execution of the contract is, because he permitted Sebree to rescind a contract, which, by his own answer and cross bill, he shews he might have executed; and Sebree asked, in his hill, for the title, and only for a rescission if the title could not be made.

It is said however, that White was “not bound” to perfect the title and enforce his contract with Sebree, by bringing proper parties before the court. That is admitted. But what aman can do, hut is not hound to do, and does not do, is a matter of his own will and pleasure to leave undone; and at least, ought not to prejudice others by his choice. Put the case of Sebree against White out of the question. (as the court in fact has done,) and there is no evidence of hardship on the part of White, nor any if it is retained till all the parties are present. The record of that suit is not exhibited in White's answer to the injunction bill of Long and Caldwell’s neither is it filed as evidence in that ease. And the court can not fake notice of it as evidence, without, its being made so by the party himself. Properly, therefore, from the view the court has taken of the case, the cross hill of White against Sebree, in which the heirs of Ratcliffe and of Caldwell are made parties, with the answer of Caldwell’s heirs, and their cross bill against Long and White, and their answers to that cross bill, ought to he dismissed without, prejuduc to the parties, in the other suit of Long anti Caldwell’s heirs against White. The cause would then come on, on that bill with White’s and Ratcliffe’s answers, and the proof in the cause, unconnected with Sebree’s suit, or decree and unaffected by it. If Caldwell’s heirs were no parties to that suit, as the court seems to consider, they ought not to be prejudiced by it, when it is not exhibited, or made evidence in their suit. They can not he made parties to it for the purpose of using it as evidence against them, and denied to be parties to it, to get clear of White’s demand of a title from them. This would be blowing hot for one party, and cold fur the other, which the court will not do. If they are parties, they offer, and are acknowledgedly ready to comply with the prayer of White’s bill And if they are not parties, they can not be prejudiced by a record to which they are not parties, and which is neither exhibited nor filed as evidence against them. And stripping the record of Long and Caldwell’s heir against White, of the suit of Scorer against White, let us consider how the parties stand in the former suit, when we have stripped our minds of the knowledge and influence of the latter.

Caldwell sold to White in 1813, and put him in possession. That possession ho has enjoyed quietly and uninterruptedly ever since, in 1822, White instituted suit on his bond, for title, against Long, who was security. Pending the .suit, and before judgment, Long and Caldwell’s heirs file their bill, and obtain an injunction. In contempt of the authority of the court, White proceeds to judgment against Long, and by a contract with Long, to execution and sale of his property. This he ought not to have done to the prejudice of Caldwell’s heirs, until the suit was disposed of, and for every purpose of this suit, stands as if not done. They would certainly beset aside on motion to the circuit court, was it not for the agreement with Long. Caldwell’s heirs are then resisting the suit on While’s bond, and lifering him a title acknowledgedly good. Why is it that he is not compelled to take it? Care this court restore Caldwell’s heirs to their property? They have been fourteen years out of possession; and the property "greatly impaired by him .” Their ancestor is dead They are infant and have not the management of their estates. Why then shall a decree so injurious to them, and ruinous to their interests and estates be made? if ought; not to be done, unless the rules of law and principles of equity call for it, and say “it must be so, because so is the law.” But when was such a contract with parties and property so situated, refused a specific execution? There is not a case of the kind in the books, since chancery has assumed the power of specific execution. The rule, therefore, which the court has laid down, must he taken as a new rule, and amounts in effect to a denial of the power of specific execution in the court, where the party has elected to- take his remedy at law, or by confounding the. two causes together, and collecting evidence from the one, on which to decide the other; the court has used that as evidence which is not evidence in the case, and raised a hardship for White from the argument of counsel, and the confusion of papers, which is not proved by him to exist.

Had the chancellors originally laid down the rule to be, that no application could successfully be made fora specific execution of a contract from part performance, and change of property by the possessor, where the contract had not been strictly complied with on the part of those who sought its execution; but leave such persons to their remedy at law, the counsel would not be prepared to say that the rule was wrong. But it is deemed too late to investigate theories where long and well established practice has prevailed on the same subject But it would better, even now, to no settle the law of the court of chancery, than to have the application uuncertain, precarious and capricious. In such cases the will of the judge is the law of the land, and the property of nun no longer depends on settled precedents of adjudicated eases, forming for the court a rule and foe i he bar a guide, and going to law is a matter of chancery indeed; for no person can give a rational gurus of what will be the result of a suit, until he bears the decision.

In the present case. White has proved nothing, either by record or by deposition. He has admitted the contract and the possession under if and says himself in his answer, that “it is not, now worth as many hundreds, as he was to give thousands for if.” If such is the case, and both parties agree ill saying so, in whose possession has it become reduced? in the possession of White. So say the proof, and so adjudges the court. And is Caldwell’s heirs to take back this dilapidated estate-, and pay its then value for it? or ought he to suffer the loses, who has permitted the property to despoil in his hands.

But on what principle do the court adjudge that Caldwell’s heirs are no parties to Sebree’s bill, where they are made defendants by White’s cross bib? If is on the grounds that no steps were taken by White to bring them into court: and that Sebrep Was out of court, and his suit finally ended.

With due respect for the opinion, both these grounds are founded on a mistake, of the facts, as represented on the record. White and Castleman filed their answer at March term 1821, and exhibited Caldwell’s bond, made their answer a cross bill, and the heir of Caldwell defendants, with the heirs of Ratcliffe.

At July term 1822, the complainant Sebree, caused a guardian to be appointed to Ratcliffe’s heirs. And at the same term, submitted the case for a decree, and an interlocutory decree was rendered. At October, 1322, the commissioner filed his report and a final decree was rendered as to Sebree; but the cause stood over as to the other Gill, &c. And at October term 1823, when they submitted the, cause on their cross bill against White for a decree, and a decree was rendered in their favor at January term 1821, for $294 interest, with their note of $700

At this term the defendants, White and Castleman, moved the court to set aside this decree, and their motion is continued until the 6th day of the next term, and does not yet appear to be determined, from the record.

At March term 1821, the “plaintiffs” moved the court to appoint F. P. Blair guardian ad litem. to Caldwell’s heirs; and an order of publication was taken against them. These “plaintiffs” must have been White and Castleman on their cross bill, because Sebree and Marshall was out of court. So that there were steps taken by them to bring Caldwell’s heirs into court. And at July term 1825, they appeared and answered. And had White and Castleman resisted the decree of Sebree and Marshall, and Gill, &c. until the heirs of Caldwell were before, the court, the title would have, been complete, and the prayer of Sebree end Marshall’s bill, and White’s and Castleman’s cross bill, would have been complied with, and all the, contracts completed. And it was wholly irregular and erroneous to take up the case as it was, without the proper parties before the court; and all these, decrees ought to be reversed, as being taken against the settled practice of the courts of chancery; and the causes ordered to be- seperated, and a new decree, rendered according to the prayers of the bills and cross bills, and the present state of the parties. Or if board together, as arising out of the same matter, a general decree ought to be rendered according to the prayers of the bills and the present parties.

At present we see White in both courts from 1822 to 1824, pursuing his title against Caldwell’s and Ratcliffe’s heirs, in one suit in chancery, and pursuing bis claim at law against Long, in disobey. once to the injunction of Long and Caldwell’s heirs and in contempt of the authority of the court, asking his title in one suit and refusing it in another And yet Caldwell’s heirs are told that they have no right to complain of his contempt and wrongs, while their estate and themselves are made the entire sufferers; and ordered to take property worth §2000 in 1813, that is stated by White and Sebree, not to be, at this time, worth §200.

Recital.

History of the cause in the circuit court.

For these reasons, the counsel for Caldwell’s heirs believe, that the justice and equity of the case has not been attained by the opinion delivered, and move for a re, hearing of the cause, with a view that the justice of the cause may be done.

I will here refer to the case lately decided by this court, at the present term, of Hendrick against Cook’s executors, as a case stronger than this case, in its facts of injury by loss of a sale of the property, and injury by time.

Chief Justice Bibb

delivered the Opinion of the full Court, overruling the motion for the re-hearing.

The opinion of the court heretofore delivered by two of the judges of the court, gives a correct history of the proceedings in the several cases refered to A petition for a rehearing has been presented, expressing a desire to have the cause heard by the whole of the judges. That petition has been considered by the whole court.

The bill of Sebree vs White, Castleman, &c. to rescind the contract of sale of the house and Jot by White to Sebree, and for injunction against the judgment at law, did not ask that Caldwell’s heirs or Ratcliffe’s heirs should be parties, no process was sued by Sebree against them, no process was prayed against them, no proceeding whatever was taken by Sebree against them; the order of July, 1822, appointing Hawkins guardian ad litem. for the infant heirs of Ratcliffe must be taken to have been at the suit of White and Castleman, who had made them defendants to their bill.

That vendee was unable to execute a sale he had made of the estate, and his vendee had, for that cause, obtained a decree of rescission, is ground for resisting a decree for specific performance of his contract of purchase.

The bill of Thomas Long and Caldwell’s heirs as complainants, was exhibited on the 8th of June, 1822 against White, and against Ratcliffe’s heirs; but to that bill Sebree was never made a At the time that Caldwell’s heirs exhibited their bill in June, 1823, the suit of Sebree was pending, and yet Caldwell’s heirs did not choose to make Sebree a party. Long before the answer of Caldwell’s heirs to the. bill of White and Castleman vs Caldwell’s heirs. Batcliffe’s heirs and Long, was filer, which was in July, 1825, Sebree bad obtained a final decree against White and Castleman to rescind the contract, and for repayment of that part of the purchase money which Sebree bad paid to them, and for a perpetual injunction against the assignees of White and Castleman, who had obtained the judgment at law against Sebree, In 1822 Sebree’s bill was finally decreed upon Sebree was no party to the. bill by Caldwell’s heirs against White, &c. for a specific execution; the decree in that case is the only one now before this court for revision, and Sebree is not before the court. It was near four years after Sebree’s bill was finally disposed of and decreed, before Caldwell’s heirs brought their bill to a hearing, and by their appeal from the decree of 1826, Sebree is not brought before this court, far he was no party to that suit.

The petition supposes that the proceedings anti decree in the case of Sebree vs White and Castleman, ought to be disregarded and put out of view in this case. That cannot be; White, in his answer to the bill of Caldwell’s heirs, relies upon it, refers to it, and pleads it as a cause why the prayer of the bill by Caldwell’s heirs should not be granted. He insists on the great damage which has resulted from that proceeding, and the decree for rescinding that sale, as cause why he should not be compelled now to a specific execution from Caldwell’s heirs, inasmuch as that inconvenience and damage was the result of the failure of Caldwell and his heirs to perform the contract of sale to White and Castleman, and therefore imposed upon them the necessity of a failure in their contract with Sebree. That suit and decree therefore, cannot be disregarded in this suit; it constitutes a part of White’s defence, the truth of that defence is proved by the record referred to and exhibited, and that record is unquestionable evidence that such proceeding and such decree was had at the instance of Sebree.

Vendor, under the circumstances here, ought to have made the purchaser of his vendee a party to his bill.

Lapse of time not excused, and rescission of the vendee’s sale for want of the title, sufficient grounds against the execution of his contract of purchase.

Whatever might have been the claim of the complainants, the heirs of Caldwell, to have a specific execution against White and Castleman, if Sobre had not rescinded his purchase of White and Castleman, yet that proceeding cannot be overlooked nor disregarded by a court of equity in Hie consideration of the bill of t aide oil’s heirs. It was an oversight in Caldwell’s heirs not to have made Sebree a party to their bill, not to have asked the court that Sebree be compelled to accept the title. The pendency of Sebree’s bill they were hound to notice. It was in full and vigorous prosecution when they exhibited their bill against White and the other defendants in this cause. The very subject of their bill, and the possession of Sebree and the pemieney of his bill to rescind the contract and throw the house and lot back to White and Castleman, led to a knowledge of the circumstances, and imposed on Caldwell’s heirs a duty to interpose and endeavor to protect White and Castleman against the injurious effects and consequences of the default of their ancestor.

Although the chancellor will relieve against mere lapse of time, and decree specific execution notwithstanding yet so important a damage as that resulting to While and Castleman, from the failure of Caldwell to complete his contract of sale in time, as the loss of the resale by White and Castleman to Sebree, the refunding of the purchase money received by term from Sebree, the perpetual injunction against the judgment at law, by the assignee of the note of Sebree to White and Castleman, whereby they are subjected to the decree in favor of the assignees Gill and company, must have a very serious consideration in this cause. And when it is connected the fact than with the fact, that the loss not before the court, and therefore, that, the loss and damage to White and Castleman on that behalf, is beyond the control of the court in this suit; it forms an insuperable obstacle to the decree against White and Castleman, sought by Caldwell’s heirs. It is not lapse of time, without injury from the delay, which the chancellor is asked to relieve against, but lapse of time, long and unexcused, connected with a damage irreparable.

Objection on the grounds of decree of improvements and fall in the price of the property, answered.

Darby for appellant; Crittenden and White for appellee.

The depreciation of the value of the property has been by the general fall of the prices of property in the country, and by the natural decay of the house by time, not by any waste The alteration in the house alluded to in the bill, turns put in evidence, to be a portico added; an addition, an improvement, not waste and damage. For natural wear by time and use and occupation, the rents must he considered as a fair compensation. It is then snore proper that this depreciation should fall upon Caldwell’s heirs, by the default of whose ancestor, Sebree has escaped from his purchase of White and Castleman, than that it should, by the chancellor, be thrown upon White and Castleman. Caldwell and his heirs must sustain the loss and consequences which have resulted to White and Castleman from the sloth, neglect and supineness of their ancestor and themselves.

The petition is overruled, and the decree of this court must stand unaltered.  