
    *Booten v. Scheffer.
    August Term, 1871,
    Staunton.
    Sale of Real Estate — Case at Bar. — In September 1863, B sold to S one-half of the Virginia hotel, in Staunton, part in cash, and the balance in six, twelve, and eighteen months, for which S gave his bonds, payable in such funds as should be current or receivable in payment of Virginia State taxes when they fell due; with the privilege to S to pay them at any time before they fell due. And It was at the same time agreed, that S might elect at any time within a year, to take the other half of the hotel at the same price, and upon the same terms, and the bonds for this last half were to bear interest from the date of the agreement. Near the end of the year S, (as assumed,) elects to take the property and gives B notice, but does not execute or tender the bonds. Before the election ,S paid largely more of the purchase money for the first moiety than was then due; but he makes no payments specially for the last'moiety; but in February 1865, he tendered to B the whole purchase mon'ey, which B refused to take. Held;
    i. Same — Payment in Confederate Currency — Time of the Essence of Contract. — Where payment is to be made in Confederate currency for land purchased, time is of the essence of the contract;
    though it is not generally, unless injustice is thereby done to the vendor,
    a. Specific Performance — Applicant in Default. — S having failed to pay the purchase money for the second half of the property when it fell due, is not entitled to have specific execution of the contract.
    3. Two Contracts — Effect of Over-Payment on One.— The payments on the first contract, though more than was due, cannot be treated as payment on the second; but as an anticipation of the payments not yet due on the first.
    4. Case at Bar. — S, not having given the bonds for the last half of the property, has failed to comply with the terms of the contract.
    5. Specific Performance —Applicant in Defauit.— Equity will not decree.a specific execution of a contract where the applicant for relief has been in default, and by the force of subsequent events or a change of circumstances, the execution of the contract would entail great loss and hardship upon the adverse party.
    *6. Same — Same.—Where a party who applies for a specific performance, has omitted to execute his part of the contract by the time appointed for that purpose, without being able to assign any sufficient justification or excuse for his delay, and where there is nothing in the conduct of the other party that amounts to an acquiescence in that delay, the court will not compel a specific performance. Kent, Ch„ in Benedict v. Lynch, 1 John. Ch. B. 370.
    7. Same — Demand Set Up in Answer. — Though S sets up his demand for specific performance, hy answer to a bill by P asking for partition, it is still an application for equitable aid, and is to be governed by the settled rules appropriate to bills for specific performance: and the court will not leave S to bring his suit, but will terminate the controversy, by adjudicating the rights of the parties, and administering such relief as may be appropriate to the equity forum.
    This case was heard at the Aug-ust term of the court at Staunton, though the decision was made at the November term of the court at Richmond.
    In September 1865, John K. Booten instituted a suit in the Circuit court of the county of Augusta, against Frederick Scheffer, for a partition of real’estate in the town of Staunton, known as the Virginia hotel. On the 19th of November 1863, Booten entered into 'an agreement under seal, with Frederick Scheffer, by which Booten sold to Scheffer and covenanted to convey to him a fee simple with general warranty, one moiety of the Virginia hotel, at $42,500, and all the furniture and fixtures at $40,000. Said purchase money to be paid in three equal instalments, at six, twelve and eighteen months from the date, to be secured by the bonds of Scheffer of equal date with the agreement, and bearing interest from that time, and the withholding of the legal title to the real estate until the whole of said purchase money shall have been paid. But the privilege was reserved to Scheffer to pay the whole or any part of said purchase money at any time thereafter, without respect to whether said bonds had become due or not. And the said purchase money might be paid from time to time *in such funds as should be current or receivable in paj-ment of Virginia State taxes at the respective dates or times of payment.
    It was further agreed, that Booten would rent to Scheffer, the other undivided moiety of the said real estate for one year from the date, with the privilege to Scheffer to extend the lease to two or three years, upon his giving notice of his election sixty days before the end of each year; and for this lease Scheffer was to pay $4,000 a year in like current funds. And it was further agreed, that Scheffer might at his election, to be made at any time within one year from the date of the agreement, purchase the remaining undivided moiety of said real estate, at the like sum of $42,500, to be secured and paid for in the same manner as above stipulated in respect to the one-half already purchased by him. And in that event Scheffer was to pay no rent up to the time of making such purchase, but the purchase money bonds were to bear legal interest from the date of the agreement.
    And it was further agreed, that in part satisfaction of the property, real and personal, that day sold to Scheffer, Booten was to receive from him certain slaves named, at the price of $34,500.
    The bill sets out the agreement, the execution of the bonds by Scheffer, each for $16,000, which, with the slaves, made up the amount of the purchase money for the one moiety of the real estate and the personal property; says that large payments have been made upon the bonds, but that on the said bonds and one year’s rent at $4,000, Scheffer is still largely indebted to the plaintiff. That by the terms of the agreement the title was to be withheld until the purchase money was paid, and that no conveyance of the property had been made, but he was ready to make it whenever Scheffer could show that the purchase money had been fully paid.
    The plaintiff further alleged that Scheffer did not elect to extend the lease beyond the first year, nor did he elect *within the year from the date of ■ the agreement, to purchase, nor has he purchased the remaining undivided moiety of the said real property; but the plaintiff was still the owner thereof and tenant in common with Scheffer. That since the expiration of the year, and since the affairs of the South had become desperate, Scheffer fraudulently pretends that he had purchased the property in pursuance of the privilege of election given him by said contract; but the plaintiff expressly denies that he has done it. It could only be done by a new instrument in writing, signed by the parties as required by the statute of frauds: or if this w'as not necessary, clearly by the terms of the agreement, bonds were to be executed for the purchase money. And he denies that any new written contract has been executed or proposed by Scheffer, or any tender made to the plaintiff of bonds by which said additional purchase money was to be secured. The prayer of the bill is for an account of rents and profits, and of the purchase money remaining due, for the execution of the contract, and for partition of the real estate either in kind or by a sale, as the court should deem best.
    Scheffer answered the bill. He says that he made the contract and received possession of the property; that he had paid in slaves $34,500, and had given his bonds for the residue of the purchase money, on which he had made large payments, the items and amount of which are shown by a statement he exhibits. That it is true he did not elect to extenci the lease created by the contract of November 19th, 1863, beyond the first year; but it is not true that he did not elect within one year from the date of the contract, to purchase or that he had not purchased the remaining undivided moiety of said real estate from the plaintiff. On the contrary, he expressly affirms that he did, within one year from the date of said contract, elect to purchase and did purchase the same on the terms of the said contract, and that he ^repeatedly notified the plaintiff of such election, both orally and in writing. That he is advised that for such election no formalit3r was required, nor any consultation with the plaintiff, nor any instrument in writing signed by the parties and providing for a new sale. And he is advised that the election having been once made, the execution of bonds, for which no sureties were required, was not of the essence of the contract; and that even if he had been in default as to their execution, it would not have effected his rights under the contract.
    He further says that the plaintiff purchased the property from George Xj. Peyton, and his bonds for the purchase money were outstanding at the time of the sale to the respondent. The defendant made large payments upon these bonds with the consent of the plaintiff, and of themselves these payments amounted to the full amount of all that was due from the defendant- on the original contract. The purchase of the second half of the real estate, however, required a large additional sum to be paid to the plaintiff, and it was in regard to this that all subsequent negotiations and correspondence between him and the plaintiff took place.
    He refers to the kind of funds in which by the agreement the purchase money was payable, and his right to pay at any time, and insists that the second purchase was governed by these provisions; and he says he was anxious from the time he determined to take the whole property, to exercise these privileges of paying the whole in advance and in Confederate currency, and the plaintiff was equally desirous to avoid such payment. He took the ground that Confederate money was not current and receivable for taxes, and when driven from that ground, he resorted to the humiliating expedient of dodging and avoiding the respondent, in the hope to escape such payment or any tender of it. That the respondent, though often prevented from access to the plaintiff by the accidents of war or by his active avoidance, was at last *successful in meeting him and making a full tender of the entire sum due upon the whole property, in Confederate treasury notes, which were at the time current, receivable for Virginia State taxes, and bankable in all the Virginia banks. And he is ready and has been ready at all times to produce the Confederate currency due upon the contract and tendered in discharge of it.
    He says further that since the beginning of this controversy he has learned that there are liens upon the property; which the plaintiff is bound to discharge as part of his obligations to make to the respondent a good title under their contract.
    It appears from the evidence that the Virginia hotel was worth before the war from, forty to fifty thousand dollars. The furniture when it was new was worth $10,000, but when sold to Scheffer it was old and much worn. A few weeks before the sale to Scheffer, Booten had purchased the property from the Peytons at $100,000; of which sum he paid in cash $50,000, and executed his four bonds, each for $12,500, payable in three, six, nine and twelve months, in such funds as may be current at the time of payment. After his sale to Scheffer, Booten directed the Peytons to receive any money Scheffer might desire to pay upon these bonds; and Scheffer did pay the whole amount thereof. The parties do not agree as to when these bonds were paid; but John H. Peyton states that the whole amount, except $2,000, was paid before the 1st of April 1864.
    The plaintiff, at the instance of the defendant, as is probable, though the record does not show it, filed, under oath, seven letters which he’ received from Scheffer within twelve months from the date of the contract; which he says are all the letters he received from him in that time. The first letter has nothing in relation to the questions in issue in this cause. The second, bearing date February 11th, 1864, after speaking of several other matters, says: “I/. Peyton was here, and I paid him *your due bill for $1,734, and will pay your first note by court. ’ ’ The third, dated February 18th, towards the close, says: “I want to square up with you as near as possible by the 1st of April. ’ ’ On the 25th of February he says: “I paid to-day your note for $12,500, with interest, to G. B. Peyton;” and again: “I am trying to turn everything into money I can, and expect to pay you nearly off between now and the 1st. I am going down next week to Woodstock to have a sale there at March. Maj. Briscoe wants to buy my Shepherdstown negroes, and if I succeed I will be able to take the other half of you at once. ” And again: “I am afraid the currency bill don’t set very well on G. B. Peyton, as he took the money very reluctantly; but I suppose he will have plenty of company of gentlemen who have to invest.” Under date of May 7th he writes: “On my arrival home I went to the clerk’s office and examined our agreement, and find I am right in my construction; and so says my lawyer. I send you herewith a copy, so you can show it to yours. While I am disposed to do everything in my power to keep on good terms with you, and do everything that is strictly honorable, yet I cannot sacrifice my own interest to protect the interest of others; and while you expected for Peyton to come up to the mark with you, you ought to do the same with me, and ought to be willing either to invest or financier a little on the three weeks’ profits on your investment in the Virginia hotel. While I will have no difficulty in exchanging my certificates or four per cent, bonds for five dollar notes, yet I will make the following proposition to you: if you will take $6,000 in four per cent, bonds towards squaring up the purchase of the other half and the first payment due you, I will only require you to take another payment in five dollar notes, and let the last payment stand until fall or winter, and pay it in new issue. But should you do as you did before, and treat my letter with silent contempt, you may rest assured *that I shall pa3r you the whole amount due you in fives, and if you get to dodging me, you will have to get into a cave in the mountains.” The extract from the agreement which he sends with this letter, is that as to the kind of funds in which the purchase money might be paid.
    Under date of May 10th, 1864, Scheffer again writes: “Yours of the'9th inst. is at hand, and from the length or tone of your letter I infer that you are in a bad humor, or offended at some jocular remarks in my letter. If there is a difference between us in construing our agreement, it is an honest difference on my part, otherwise I should certainly have paid you up before the 1st of April, had I not been satisfied that I could pay you in fives until the 10th of June. Still, if you are not compelled to take them I shall not think hard of you, and hope you will not think hard of me if you are. I shall make my arrangements now to square up, as I cannot ' let thirty-eight or forty thousand dollars hang over me with the future prospect of money matters, when I can sell off a good deal of my property now for such funds as will pay State taxes.”
    Under date of July 6th, 1864, he writes: “In regard to our money matters you have succeeded to outgeneral me, yet I do not consider it a feat of great shrewdness; it was only a breach of confidence and trust I had reposed in you.” . . “The only oversight I made was that I took your word, and did not reduce it to writing, that whenever I was ready to make payment, that I could deposit it here in bank, and not compel me to come to Ruray to make you a tender.” . . “As you expected to pay Peyton in the old currency, you could expect nothing else from me, as you did not expect better currency of me, at the time of our contract, than you expected to pay, because every man who paid war prices for property expected to pay it in war money. *You had no expectation to get $25,000 advance and an improved currency.”
    There are several witnesses who speak of conversations with Booten, in which he said he had sold the property to Scheffer; but there is some uncertainty as to the time of these conversations, extending from the 1st of April to July. There are also others who prove messages, and one of them proves the delivery of a letter from Scheffer to Booten, to tell him to come up that he was ready to pay him. Some of the messages, and probably all, were after the 1st of April, and the letter was in June. In one instance Booten said he knew what Scheffer wanted; that he wanted to pay him some five dollar notes, and he did not intend to take them if he could get shut of it. In October or November 1864, to another witness he said he had received a letter from Scheffer stating he had his money for him; and Booten remarked — it was customary for a man who owed money to hunt up the creditor. There Was evidence that at one time on the cars at Gordonsville, near the end of March 1864, Booten went to another part of the car, when Scheffer, who was on the platform, came to the window to speak to the witness, and after Scheffer had left, Booten returned and said to the witness he had sold his entire interest in the hotel to Scheffer, who owed him a considerable sum, but he did not wish to see him till after the 1st of April, when the new issue would be out.
    It appeared further that after the sale Booten lived in Ruray, in Page county, but had a shop in Mount Sidney, about ten miles from Staunton, from January 1864 until the fall of that year; where he was manufacturing saddles and harness for the Confederate Government; and that he was frequently at that place. It also appeared that he was several times in Staunton during that period. Scheffer lived in Staunton, but he had property in Woodstock, in Shenandoah county, where he was carrying on business; and he was frequently at that *place between November 1863 and November 1864; and the access to Ruray from Staunton during that period was open except for about two or three weeks.
    It was further stated by one witness that in a conversation with Scheffer in Woodstock, the time of which he could not state, but it was probably in the summer of 1864, Scheffer said he had purchased the Virginia hotel, and had the money to pay for it. Witness remarked that he had better pay it then. Scheffer said he thought he would make use of it in another speculation first. And another witness, who was a merchant in Ruray, stated that in December 1864 he saw Scheffer in Richmond frequently. He asked witness about Booten, and said, “John K. Booten had been dodging him, that he wanted to pay him some money, and that in consequence of Booten’s dodging him he had been unable to do so.” We happened - in the auction room of Robinson. Adams & Co. Witness was buying some goods, and so was he. He brought to witness samples of a lot of tobacco which he said he had purchased, and observed to witness that he had intended to pay John K. Booten some money, but upon reflection he had concluded to invest it in tobacco, cotton, &c. ; that the money had not got quite bad enough ; that he wanted it to get a little worse before he paid him. Witness thinks that in one of the conversations with witness, he said when he bought the property the money was worth twenty cents in the dollar; that then it was worth about five cents, and he wanted to keep it until it got down to one or two cents in the dollar before he paid him. It was proved that in the month of February 1865, Scheffer made to Booten in Staunton a tender of|38,000 in Confederate treasury notes of the new issue, as the sum due for the balance of the purchase money upon the Virginia Hotel, which Booten refused to receive; and it was placed in the Bank of the Valley, in Staunton, on deposit.
    It was agreed by the counsel in the cause, that after *the passage of the act of February 17th, 1864, by the Confederate congress, entitled an act to reduce the currency and to authorize a new issue, which act was admitted, the currency then in circulation, consisting wholly of Confederate treasury notes, was called the “old issue,” and the currency authorized by that act was called the “new issue:” that the notes over five dollars at once, upon the passage of the act, became depreciated, and to a great extent uncurrent, and that after April 1st, 1864, the five dollar notes underwent the same process. And that the Virginia Regislature at Richmond passed the acts of March 22, 1862, February 28, 1863, September 14, 1863, and March 4, 1864, providing for payment of State taxes in Confederate money.
    In the progress of the cause a commissioner was directed to settle the accounts between the parties, and also to enquire and report what liens there were upon the property. The commissioner, assuming that Scheffer had purchased the whole of the Virginia Hotel, reported that he was indebted to Booten on the 7th of February 1864, $36,806.44, andón thelSth of December of the same year, $36,225.83; and reducing this sum to good money, at the rate of sixteen for one, as of the 19th of .November 1863, the date of the contract, there was due from Scheffer to Booten $2,264.11, with-interest from said 15th of December. The commissioner further reported that he had not been able to ascertain certainly the liens upon the property which remained unpaid; but, so far as yet ascertained, it does not appear that there, are such liens to an amount greater than $7,000. Both the plaintiff and the defendant excepted to the report; but it is unnecessary to state them.
    The cause came on to be heard on the 30th of June 1868, when the court confirmed the commissioner’s report, and fixing the amount due from Scheffer at $2,264.11, with interest due thereon from the 15th of December 1864, as stated by the commissioner, decreed *that upon the filing among the papers in the cause of a deed from Booten to Scheffer, conveying an unincumbered title to the said Virginia Hotel property, Scheffer should pay Booten the said sum of $2,264.11, with interest from the 15th of December 1864, till paid; which sum of money should constitute a charge upon said property. And the commissioner was directed to call in the creditors holding liens upon the property by publication for four weeks in a newspaper, and report upon said liens as speedily as possible. From this decree Booten applied for and obtained an appeal to this court.
    James W. Green and Williams, for the appellant.
    Baldwin and Cochran, for the appellees.
    
      
       See principal case distinguished in Smith v. Profitt, 83 Va. 848, 1 S. E. Rep. 67.
    
    
      
       Specific Performance — Hardship.—In Dyer v. Duffy, 39 W. Va. 159, 19 S. E. Rep. 544. the court said: “Courts of equity will not exercise jurisdiction in specific performance where it would impose hardship on people not censurable in conduct, and where the circumstances and condition of things have so changed as to make it work loss and hardship to them. Bowles v. Woodson, 6 Gratt. 78; Booten v. Scheffer, 21 Gratt. 474; Clay v. Deskins, 36 W. Va. 350, 15 S. E. Rep. 85.”
    
    
      
       Same — Demand Set Up in Answer. — In Lightner v. Lightner (Va.), 23 S. E. Rep. 302, the court said: “The demand for specific performance may be set up in an answer to a bill asking partition, but it is still an application for equitable aid, and is to be governed by settled rules appropriate to bills for specific performance. Booten v. Scheffer, 21 Gratt. 474.”
      Same — Inadequate Consideration. — See foot-note to Hale v. Wilkinson, 21 Gratt. 75.
    
   STAPLES, J.

In considering this case I shall concede that the appellee within the appointed time made his election to purchase the property in controversy, and that he duly notified the appellant of the fact. This, however, did not comprise the whole duty of the appellee; under his contract he was required to do something more. So soon as he elected to make the purchase; it was incumbent upon him to pay the entire amount of the purchase money, or to execute his bonds and promptly discharge them as théy respectively arrived at maturity. Has he shown such compliance with his contract as entitles him to the assistance of a court of equity, or such circumstances of excuse as relieve him of the obligation of performance? No one can read this record without the clearest conviction that the appellee in exercising his right of election was mainly influenced by the hope of deriving an undue advantage from the act of the Confederate Congress reducing the currency one-third in value; that it was his deliberate purpose to force upon the appellant this currency at its nominal value in payment of the purchase money, and failing in this project, he was deliberately neglectful of the obligations of his contract until *the currency • had become almost entirely worthless by the rapidly declining fortunes of the Confederacy. In this connection it may be proper to consider the legislation referred to as a part of the history of the times, and as explanatory to some extent, of the motives and conduct of the parties. By the act of February 17, 1864, the holders of the treasury notes above the denomination of five dollars were allowed until the 1st day of April, to fund the same in four per cent, registered bonds; on all such notes not so funded, a tax of 33% cents was levied for every dollar promised on the face of such notes, and holders were authorized to exchange them for the new issue at the rate of three of the former for two of the latter. The same provisions were substantially enacted in respect to the notes of the'denomination of five dollars, except that the holders were allowed until the first of July to fund the same. The effect of this legislation upon the currency will be remembered by all familiar with the history of that period. Thenceforth it was not received in the payment of debts, or in the purchase of property, except at its legal rate of depreciation. So far as this record discloses, throughout the year 1864, the appel-lee did not evince the slightest anxiety to comply with his contract unless he could use this currency as a medium of payment. In his letter of the 25th February, he shows that he is well informed touching the provisions of the act of Congress; and then, for the first time, he discloses his purpose to purchase the property now the subject of controversy. In his letters of May 7th, May 10th, and July 6th, he insists upon his right to pay the purchase money in the old currency, and in one of these letters he quotes certain provisions of the contract in vindication of his opinion. It is apparent from the whole correspondence, that it was his determination not only to pay in this currency, but to exercise this privilege from time to time down to the 10th of June, as best suited his convenience and his interests; thus forcing *upon the appellant the necessity of funding within twenty days the notes received, or of submitting to a loss of one-third Of the purchase money in exchanging it for the new currency. If, at the close of this correspondence on the 6th of July, the appellee had filed his bill demanding a specific performance, it is clear that a court of equity would not have afforded him relief upon the terms suggested in these letters. The appellee did not propose to apply the treasury notes in payment according to their fixed legal value. His purpose was to compel the appellant to receive them at their nominal rates, in other words, to accept as of the value of one dollar, a currency worth, by operation of law, only two-thirds of a dollar. Under the provisions of the contract the appellee was authorized to pay in such funds as should be current, or receivable in payment of Virginia State taxes at the respective dates or times of payment. It is notorious that these notes were not current after the passage of the act in. question, except at the value fixed by that act. Were they receivable in payment of State taxes? A simple reference to the legislation of that period will answer the question. By an act of the Virginia legislature, passed March 3d, 1864, the act of September 3d, 1863, authorizing the receipt of Confederate notes in payment of taxes, was repealed, and in lieu thereof it was enacted that treasury notes issued prior to the 1st of April 1864 should be received in payment of taxes and other public dues until 10th of December 1864; but only at the rate of sixty-six and two-third cents for each dollar of said notes. It is clear, then, that the appellee, in offering this currency at its nominal value, was not acting in compliance with his contract in its letter or spirit. He was attempting to impose terms which the appellant was well justified in rejecting. His offer of performance gave him no claim to the interposition of a court of equity. Does the evidence place his conduct, subsequent to the 1st of July, in a *more favorable aspect? It will be observed that the appellee’s letter of the 6th of July makes no demand for the performance of the contract, it contains no promise to pay the purchase money, or any part of it, nothing is said in regard to the execution of the bonds. As the appellee had been defeated in his effort to pay in the old currency, it was to be expected that some new arrangement would be suggested, some proposition made, in regard to the payment of the purchase money or the execution of the bonds. But nothing of the kind is intimated, and the reader might reasonably conclude that the appellee no longer considered himself bound by the contract. Nor do we' hear from him until February 1865, with the single exception of the message sent to the appellant in November 1864, that his money was ready for him. To this the appellant, I think, very properly replied, “that it -was customary for the man who owed the money to hunt up the creditor. ’ ’ Certainly it cannot be inferred from this that the appellant was unwilling to receive the money then in circulation. All the circumstances show, the letters clearly indicate, that his only objection was to the currency embraced by the provisions of the act of Congress. If the appellee was honestly desirous of fulfilling his obligations, why did he not seek the appellant in person and make the tender. It was said that the appellant resorted to the humiliating expedient of dodging the appellee to escape a tender of the currency. There is some evidence that on one occasion, in the early spring, the appellant attempted to avoid an interview with the appellee, probably with the object suggested. But there is no pretence that this was done at any subsequent period. The appellant was in Staunton on the 26th and 28th of April, and had repeated interviews with the appellee. It is not pretended there was any offer to pay on either of these occasions. He was oftentimes at Mount Sidney, ten miles distant from Staunton, engaged in the manufacture of articles for the ^government, as was well known to the appellee. He resided at Buray, in Page county, only twenty miles from Woodstock, where the appellee spent a large portion of his time in the year 1864. The appellee had no difficulty in sending messages and letters by mail and by private hand. In his letter of July 6th he laments he had not in the contract reserved the right to make a deposit of the money in a Staunton bank, instead of being compelled to go to Buray to make a tender. But he took care never to go to Buray. He admits his obligation to seek the creditor. Why did he fail to do so. The evidence furnishes an easy ■ explanation of his motives and his conduct. He preferred to invest his funds in the more profitable and remunerative business of trade and speculation. It is proved that in the autumn of 1864 he boasted •that he had the money to pay for the property ; and being advised that he had better do so, he expressed his intention first to make use of it in another speculation. And in December 1864, he declared that he had intended paying the appellant some money, but upon reflection he had concluded to invest it in cotton and tobacco ; that the money was not quite bad enough yet; that he wished it to get a little worse; that it was worth twenty cents in the dollar when he made the purchase; at that time it was worth about six cents; and he intended to keep it until it was depreciated to one or two cents in the dollar before he paid the appellant. Accordingly, we find him for the first time seeking his creditor, taking with him a witness, and making a formal tender in February 1865, when the currency was depreciated in the ratio of sixty-five dollars for one; And in his answer he gravely declares, that though often prevented from access to complainant by the accidents' of war and by his active avoidance, he was at last successful in meeting him and making a full tender of the entire sum due upon the whole property in Confederate treasury notes. And this tender thus made, is relied on as ^giving the appellee a clear equity to a conveyance of the whole property free from all incumbrances. In my judgment it is not entitled to the slig-htest consideration, because made long after the maturity of two instalments of the purchase money, and because made not in the conscientious discharge of the obligation of his contract, but in accordance with a deliberate purpose to impose upon the appellant a currency which had substantially ceased to perform the functions of a circulating medium. The appellee was in default in regard to the instalment of fourteen thousand dollars due in May 1864, and he was also in default in regard to the like sum due in November following; and this too of deliberate will and purpose. His reparation for this delay was a tender of forty-two thousand and five hundred dollars in notes of the value of six hundred and fifty dollars in coin. What are the reasons assigned for this default? It is said that looking to the substantial justice of the case, and supposing the appellee had made his election in May 1864, he had then paid more than he was required to pay, he had in fact paid all the instalments to November 1864, and eighteen thousand dollars besides ; he was, therefore, in no default in paj'ing the respective instalments as they fell due. I think the answer is obvious. The promptness of the appellee under one contract is not an equivalent for his default under another and wholly different contract. At the time the payments were made to Peyton, the appellee had not then exercised his right of election. These payments were made on the first purchase, in accordance with a right reserved in the original contract, and were so intended by the appellee. He alleges in his answer, that they constituted full payments of all that he would have owed on that contract. It is to be observed that they were made in the old issue of treasury notes, and in this respect were highly advantageous to the appellee in enabling him, upon easy terms to discharge the vendor’s lien. When, therefore, he *subsequently elected to purchase the moiety now in controversy, his obligation to pay punctually the several in-stalments of the purchase money as they matured, to comply in every particular with the provisions of the second contract, was as complete as though the first had not been made or no part of the purchase money thereon had been paid.

The appellee cannot refer an act done, or right exercised under the first contract, to the right and obligations incident to the second. As the appellee never considered his payments as tantamount to the performance of his second agreement, it is idle to say that this court can so regard them.

■ Other grounds were taken in the argument by the counsel for the appellee; but it is unnecessary to consider them: none of them are sufficient to justify the delinquency of the appellee. In ever3r view of this case, I am satisfied he is not entitled to a specific execution. No principle is better settled than that which requires that the party seeking specific performance must have shown himself ready, prompt and eager. In Benedict v. Lynch, 1 John. Ch. R. 370, Chancellor Kent, upon a careful review of all the authorities bearing upon this subject, uses the following language: It may then be laid down as an acknowledged rule in courts of equity, that where a party who applies for a specific performance has omitted to execute his part of the contract by the time appointed for that purpose, without being able to assign any sufficient justification or excuse for his delay, and where there is nothing in the conduct of the other party that amounts to an acquiescence in that delay, the court will not compel a specific performance. Nor is it necessary for the party resisting the performance, to show any particular injury or inconvenience; it is sufficient that he has not acquiesced in it, but considered it as releasing him. ” And in Bowles v. Wood-son, 6 Gratt. 78, similar views were announced by this court. Judge * Allen said, ’‘as the application for a specific performance is addressed to the sound discretion of the court, he who asks it must have shown himself prpmpt and willing to comply with the obligation of the contract on his part; and the prayer will not be granted if it would be inequitable towards the party against whom the prayer is made.” Now, it is true, that a mere default in the payment of the purchase money, as a general rule, is not a sufficient reason for refusing a specific performance; because the default admits of compensation. In most cases the interest is regarded as an equivalent for the non-payment of the purchase money. This rule, however, is not adopted if any injustcie is thereby done the vendor. It must be certain that he has sustained no damage by the default of the vendee, and the payment of the principal with its interest will place him in the position he would have occupied, had there been no default. It must appear there has been no change of circumstances affecting the character of the contract, or the rights and obligations of the parties, and that compensation for the delay can be fully and effectually made. And in all such cases the burden devolves on the vendee to account, in a reasonable manner, for his dela3*; and also to show that the relief he asks is just and equitable. 2 Story Eq. Jur. ? 776; Taylor v. Longworth, 14 Peters. U. S. R. 172.

The principle upon which the purchase money with its interest is generally regarded as compensating for the dela3r, is obvious. As the contract is to pay in a permanent currency, having a fixed legal value, the vendor obtains by the decree of the court precisely what he agreed to receive. He is paid for his property at the valuation fixed by himself. The court merely executes the contract of the parties as they made it. These are familiar principles: Can they be properly and justly applied to contracts for the sale of real estate based upon Confederate currency where the vendee was in default? If the vendor contracted to sell for a certain sum, payable in *that currency, and the vendee failed to pay at the appointed time, can it be said that the scaled value in coin is a fair equivalent for such currency, or a just compensation for the delay? Is a court of equity justified in holding that the vendor would have parted with his property on such terms. If the appellee had proposed to purchase one moiety of this hotel and pay therefor the sum of two thousand two hundred and sixty-four dollars in gold, after the termination of the war, no intelligent mind can suppose the appellant would have accepted this proposition. How is it possible for the court to appreciate the motives or necessities that induced him to sell, or to know the uses he might have made of the money had it been paid, or the losses he may have sustained in failing to receive it. The contract this court is asked to execute is not the one made by the parties. The equity raised up in behalf of the appel-lee is one growing- out of his own default in performing his agreement.

The rule sought to be enforced here, is the very reverse of that established in White v. Atkinson, 2 Wash. 91. In that case the sale was made in 1779, during the existence of paper currency. The purchaser was in default in the payment of the purchase money. The court, as a condition of relief, decreed that he should pay the fair value of the land at the time of the sale, instead of the value of the currency agreed on. The rule is also in violation of the principles and the spirit of the act of 1867; which authorizes courts and juries to adopt the fair value of the property as a just measure of recovery. This act was passed under the universal conviction that as real estate did not advance during the war with the depreciation of the currency, so the specie value of the currency is in very few cases the fair value of the property, or a just measure of recovery. At the last term of this court at Staunton, the act in question was unanimously sustained as constitutional, and as a wise and beneficent measure of legislation.

*In this case competent and reliable witnesses estimate the Virginia Hotel at forty thousand dollars in a sound currency. The appellee, in November 1863, purchased one moiety of the property at forty-two thousand and five hundred dollars, and all the personal effects attached to the hotel at forty thousand dollars, in Confederate treasury notes, then at a depreciation of sixteen dollars for one in gold. In part payment of the purchase money he sold and delivered to the appellant sixteen slaves, estimated at $34,600. The residue he paid in what was known as the old issue of Confederate notes. He now seeks a conveyance of the other moiety at $2,264.11, the specie value of the contract price, and probably one-tenth of the real value of the property. It must be borne in mind that this was not a fair contract of hazard under which either party assumed the risk of loss with a probable chance of gain. Nor was it in the nature, of a continuing offer to sell for a permanent currency, upon which the vendor was certain to receive the estimated value of his property. Under the agreement the appellee could sustain no loss in any contingency. If the currency continued to depreciate, and the property secure, he had only to exercise his right of election; and, under his construction of the agreement, he might make his payments as suited his convenience and his interests. Few men could pronounce such a contract fair in its terms, or free from objection in its attendant circumstances; I am aware that mere inadequacy of consideration is no defence to a specific performance, unless it amounts in itself to conclusive evidence of fraud. This principle received the sanction of this court in Hale v. Wilkinson, decided at the last Wytheville term; supra. It is to be observed, that in that case the purchase money had been fully paid and accepted in discharge of the vendee’s obligation. It was also held in that case, that as the vendee was in default in paying the purchase money, the ^vendor was not bound to receive it when subsequently tendered, and had he refused it because not punctually paid, equity would not compel him to execute the agreement. The fact that the money was rapidly depreciating made time of the essence of the contract. And while it is true that mere inadequacy of consideration is not sufficient of itself to defeat a specific performance, yet in all such cases a court of equity will closely scrutinize the conduct of the party insisting on the contract, and if he be in default, it will leave him to such remedy as he may have in a court of law. This doctrine is clearly expressed by Chief Justice Marshall in Garnett v. Macon, 6 Call 308; and I shall content myself with a single extract from his opinion. He declares, “That although mere inadequacy of price is not a sufficient ground for a court of equity to refuse its assistance, yet, if an unreasonable contract be not performed according to its letter, equity will not interfere. And there is no difference between a contract unreasonable when made, and one which becomes so after-wards, if the applicant be in default. ’ ’ See also Kirby v. Harrison, 2 Ohio St. R. 326; Merritt v. Brown, 19 New Jer. Eq. R. 286; Westerman v. Means, 12 Penn. St. R. 97; Piatt et als. v. Law & Campbell, 9 Crunch U. S. R. 456, 449.

There is one other fact disclosed by this record, worthy of serious consideration. The written agreement contains a stipulation binding the appellant to convey the hotel by a good and sufficient deed in fee simple with general warranty. Under the decree of the circuit court the sum ascertained due is only to be paid the appellant upon his conveying to the appellee an unencumbered title to the said Virginia Hotel property. It appears by the report of the commissioner, there are subsisting liens upon this property to the amount of seven thousand dollars certainly. How much more there is, we have no means at present of ascertaining. The commissioner states that after the most diligent enquiry he has been *unable to ascertain with any degree of accuracy what incum-brances still exist. The hotel has been repeatedly sold since the year 1850, and notes given for the purchase money, running through a period of twenty-five years; and these notes have passed into the hands, in many instances, of unknown parties. Upon some of them suits have been brought to enforce the vendor’s liens. There are also judgments and deeds of trust, many of which it is thought have been satisfied. Under these circumstances it is utterly impossible to form even a conjecture of the amount of these liabilities; all of which, whatever they may be, the appellant under his contract and the decree of the Circuit court is required to discharge and to convey to the appellee an unencumbered title. In consideration of which the appellant receives the sum of two thousand two hundred and sixty-four dollars and eleven cents, with interest. Such is the operation of a decree for a specific performance. A case of greater hardship has rarely been brought before a court of equity. A hardship not in any wise the result of appellant’s conduct, but produced by circumstances over which he had no control; attributable in a great degree to the default of the appellee, and the influences consequent of an unsuccessful revolution. The appellant himself had only purchased the property shortly before his sale; and it is reasonable to suppose he was wholly ignorant of the extent of these liens, or that he relied upon the purchase money he was to receive as the means by which they were to be removed.

These considerations, in my judgment, are conclusive against the interference of a court of equity in this case. It is to be borne in mind, that specific performance belongs rather to the extraordinary jurisdiction of the courts of chancery. It is not a matter of course; every such application is addressed to the sound discretion of the court. In all such cases the question presented is, is it better for the furtherance of justice, considering, all the *circumstances, to give the party specific execution, or to leave him to his legal remedy for damages. Turpin v. Jackson, 5 Rand. SOS. I shall not stop to multiply authorities upon this point. The principle is too familiar to require argument or illustration in its support. The subject receives an exhaustive discussion in the case of Willard v. Tayloe, 8 Wall. U. S. R. 564. Some of the views of Mr. Justice Field are so appropriate to this case, I cannot refrain from quoting them: “It is true (he says),, the cases in which the discretion of the court is asserted, arose upon contracts in which there existed inequality or unfairness in the terms, by reason of which injustice would have followed a specific performance. But the same discretion is exercised where the contract is fair in its terms, if its enforcement from subsequent events, or even collateral circumstances, would work hardship or injustice to either of the parties. Numerous cases may be cited to the same effect. The clear result of the authorities is, that equity will not decree the specific execution of a contract made under a clear misapprehension or mistake of important and material-facts, or of hard and unconscionable bargains, or where the applicant for relief has been in default, and by the force of ’ subsequent events or a change of circumstances, the execution of the contract would entail great loss and hardships upon the adverse party. Tested by these principles, this case does not commend itself to the favorable consideration of a court of equity.

Although the appellee asserts his claim by answer, it is still an application for equitable aid, and is to be governed by the well settled rules appropriate to bills for specific performance. According to the usual practice, when specific performance is denied, the court declines to interfere either way; but leaves the parties to their respective rights and obligation at law. In this case, however, if the bill were dismissed, the appellant having the legal title might at once institute his action of ejectment, *and recover the property in controversy. The dismissal of the bill would, therefore, simply result in a renewal of the litigation in another forum, and an ultimate return to a court of chancery to settle the question of rents and profits, and of compensation for improvements. Upon familiar principles the court having possession of the case will terminate the controversy by adjudicating the rights of the parties, and administering such relief as may be. appropriate to the equity forum. For these reasons, I am of opinion the decree of the Circuit court must be reversed, and the cause remanded for further proceedings; upon which a decree is to be rendered for a partition of the property if it can be conveniently made, and also for a full a'nd final settlement of all matters of account between the parties. •

The other judges concurred in the opinion of Staples, J.

The decree was as follows:

The court- is of opinion for reasons stated in' writing and filed with the record, that the appellee under and by virtue of the contract of the 19th November 1863, marked exhibit A, and filed with the bill, is entitled to one moiety of the real estate known as the Virginia Hotel property in said contract mentioned, as purchaser thereof from the appellant; but is not entitled to a specific execution of the contract for the purchase of the other moiety; that the appellant and appellee are tenants in common of said property; that the appellant is entitled- to partition of the same, and to the stipulated rent for one year of his moiety of said property, and to one-half of the fair rental value of the same since the termination of said year, subject to a deduction for one-half of the value of all useful and permanent improvements put upon said property by the appellee; and that the appellee is bound to account with the appellant for the purchase *money of the moiety of said property purchased by him as aforesaid, and to pay any balance due thereon; or if he has over-paid the same, the appellant is bound to account for the amount of such excess; and the appellant is bound to relieve said property of all incumbrances thereon at the time of said purchase; and that the decrees appealed from are erroneous. Therefore it is decreed and ordered that the same be reversed and annulled, and that the appellee pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here. And it is further decreed and ordered that this cause be remanded to the said Circuit court, that all proper accounts may be taken, and all further proceedings had therein which may be necessary or proper in order to a full and just settlement of the whole matter, and a final decree in the cause according' to the nights of the parties as hereinbefore adjudged and declared.

Decree reversed.  