
    Richmond.
    Bowles v. Woodson.
    1849. April Term.
    
    ^ ^ vendor of land prepares a deed and signs it, which, describes the land, and states the amount and times of payment of the purchase money. This deed is never delivered, but is retained and preserved by the vendor. Upon a bill by the vendee for a specific performance of the contract. Held : The deed is a sufficient memorandum in writing of the contract, to satisfy the requirement of the statute of frauds and perjuries.
    2. The application for a specific execution of a contract is addressed to the sound discretion of the Court. He who asks it must have shewn himself prompt and willing to comply with 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.
    3. In May 1827, B sold a tract of land to W, for which W was to pay one half the purchase money in hand, and the other half in twelve months, to be secured by deed of trust on the land. W 
      paid only about one third of the cash payment; and after some months delay, B tendered him a deed and demanded a compliance with the contract. Whad then become embarrassed in his circumstances, and was unable to comply with his contract, and so continued until 1835. Upon his declining, when thus called on, to pay the amount due, B declared the contract was at an end; and that he would retain the money he had received, as some compensation for the damages he had sustained by the failure of W to comply with his contract. B then bought other land adjoining, built upon and improved it, and settled upon the land and cultivated it; and the land, which was the subject of the contract, could not be separated from the other land without injury to the latter. In 1836, W filed a bill for specific execution of the contract, and charged that he had made certain payments which B had refused to return. Held :
    1. Wis not entitled to a specific execution of the contract.
    2. He is entitled to recover back the amount he had paid, with interest; and the statute of limitations is no bar to his recovery.
    4. A defendant, though in default for want of an answer, ought to be permitted to file any proper answer, at any time before a final decree ; but the trial of the cause is not to be consequently delayed, unless for good cause shewn.
    
    This was a bill for the specific execution of a contract for the sale and purchase of a tract of land, brought in the Circuit court of Louisa, by Archibald P. Wood-son against Albert G. Bowles.
    
    The bill was filed in June 1836, and charged that in May 1827, the plaintiff verbally, in the presence of several witnesses, contracted with the defendant for the purchase of a tract of land in the county of Louisa, containing two hundred and sixty-nine and a half acres, which was the only land the defendant then owned, for the price of 1313 dollars 80 cents, payable one half in six and the other half in twelve months. That a deed for the land was prepared at the time and was executed by Bowles, but was either not delivered, or was taken possession of by him and retained; and a deed of trust to secure the purchase money was also prepared, but was not executed by the plaintiff. That at the time of the contract the plaintiff paid 50 dollars in part of the purchase money, and within the six months he went on to make other payments, amounting to 377 dollars 99 cents; and that he held receipts for four of these payments, amounting to 182 dollars 1 cent. That during this time he permitted Bowles to remain in possession of the land, and did not call for a conveyance. That Bowles did not press for a consummation of the contract until about fifteen or eighteen months after its origin, when the plaintiff having gotten into pecuniary difficulties, was obliged to suspend his business, and then he knowing the plaintiff’s inability to pay the balance of the purchase money, offered to make the plaintiff a deed, and demanded payment in full. That plaintiff told Bowles he could not pay him then, but would do so as soon as he was able. That Bowles did not then insist upon or propose a cancel-ling of the contract, nor had he before, or expressly since insisted upon or proposed its rescission; nor had he ever offered to refund the part of the purchase money which he had received; but, both by acts and words, had declared his intention to hold on to the money, as a forfeiture incurred by the plaintiff for his failing to comply with the contract.
    The bill further charged that the plaintiff in October 1835, having in a great degree repaired his broken fortunes, tendered the whole residue of the purchase money, principal and interest, to the defendant, and demanded of him a conveyance of the land; but that he rejected the money and refused to make the conveyance; at the same time declaring his intention to keep both the land and the money.
    The plaintiff relied on the deed executed by Bowles and the receipts for the payments made by the plaintiff, which purported to be for land, as constituting a sufficient memorandum in writing of the contract to satisfy the statute of frauds; and insisted that as Bowles had refused, and still refused, to return the part of the purchase money which had been paid by the plaintiff, he had thereby signified his adherence to the contract, and was therefore bound to execute it.
    The prayer of the bill was for a specific execution of the contract, and for an account of the rents and profits of the land ; or that the defendant might at least be compelled to account for, and refund to the plaintiff, the purchase money which he had paid, with interest.
    The cause was continued at the rules until the April term of the Court 1837, when the defendant moved the Court for leave to file his answer, which motion the Court overruled. At the next September term of the Court, the defendant, to so much of the bill as sought to enforce a specific execution of the contract stated therein, pleaded the statute of frauds; and to so much as sought to recover the purchase money which had been paid, he pleaded the statute of limitations. Subsequently, in answer to interrogatories, he stated that the deed mentioned in the bill was executed by him, but was not delivered, and was then in his possession.
    In September 1839, the Court below made a decree directing a commissioner of the Court to take an account of the rents and profits of the land from the 21st of November 1827 to the 31st of December 1839; and also of the amount of the purchase money remaining unpaid, with interest thereon. From this decree the defendant applied to this Court for an appeal, which was allowed; and the cause came on to be heard here in December 1846, when this Court pronounced the following opinion :
    “ The Court is of opinion, that according to the true construction of the act of the 7th of March 1826, Sup. Rev. Code, p. 130, a defendant in chancery, though in default for want of an answer, ought to be permitted to file any proper answer at any time before a final decree, but that the trial of the cause is not to be consequently delayed unless for good cause shewn, or unless the plaintiff should elect to continue it or remand it to the rules; and, therefore, that the Circuit court erred in overruling the appellant’s motion for leave to file his answer to the appellee’s bill, and consequently in proceeding to hear and decide the cause without an answer. The Court, therefore, without expressing any opinion upon the merits of the case as now disclosed by the record, doth adjudge, order and decree, that the said decree of the Circuit court be reversed and annulled, with costs. And the cause is remanded to the said Circuit court for further proceedings, with instructions to permit the appellant to file any proper answer to the appellee’s bill, within a reasonable time; and to require the appellant to produce and file among the papers in the cause, the deed admitted by him to have been signed by him in the year 1827, and to have been retained in his possession, or to shew good cause to the contrary.”
    When the cause went back to the Circuit court, the defendant filed his answer, in which he said, it was true that in May 1827, he made a verbal contract with the plaintiff for the sale of the land mentioned in the bill; but that there was no note or memorandum thereof in writing signed by either of the parties; and he relied upon the statute of frauds in bar of the plaintiff’s claim to a specific execution of the contract. That the land which was the subject of the contract, was correctly described in the draft of a deed bearing date the 21st of May 1827, which he exhibited with his answer. That the deed stated correctly, the price which was to be given for the land, which was 1313 dollars 81 cents, one half to be paid in cash, and the balance in twelve months. That the deed does not recite the whole contract. It omits the agreement that the deed was not to be delivered until the cash payment of the purchase money was made, and the balance secured by a deed of trust upon the land; and that the land was not to he delivered until the end of the year. That although the said draft was signed by the defendant, it was not signed with a view of making it a note or memorandum of the contract of sale, for it was not intended in said deed to set out the whole contract; but was only to enable the defendant to make and tender to the plaintiff a proper conveyance of the land, if he should be ready to comply with the terms of the contract. That the defendant frequently, during the year 1827, applied to the plaintiff to execute the contract by paying the one moiety of the purchase money, and securing the balance, but he was, to his great inconvenience, put off with small payments, and these generally not in money, of which the defendant was much in want-. That when the contract was made, the defendant was young and unmarried, and did not consider himself permanently settled in Virginia. He owed debts amounting to four or five hundred dollars, which annoyed him, and he desired to sell his laud, pay these debts and remove to Tennessee. It was therefore an essential part of his plan, that one half of the purchase money should be paid in cash. That the plaintiff unreasonably delaying to comply with his contract, the defendant, in the latter part of December 1827, made a formal demand of him to complete it, and a formal tender of the deed above mentioned, offering to deliver it to him upon his paying the balance of the first payment forthwith, and securing the other. That the plaintiff then declared that he was unable to complete the contract; and the defendant thereupon declared, and has ever since considered, the contract at an end; and did every thing, both by acts and words, to shew that he so considered it. He continued to occupy, enjoy, cultivate and improve the land; and having been disappointed in the sale of it, he was compelled to sell other property to pay his debts. That he thereupon established himself permanently upon this land as a farmer, bought adjoining land, married and fixed his residence and home there, has improved it by expensive ditching and draining and otherwise; and owing to these improvements, as well as to a general rise in the value of property in the county from 1827 to 1835, the land in question was far more valuable in 1835, when for the first time, the plaintiff sought or was in a condition to renew his purchase, and in 1836, when this suit was brought, than it was in 1827, when the contract was made. That it was true the defendant had frequently refused to return to the plaintiff, the small amount of purchase money he had paid; but he did so not because he considered the contract as still subsisting, but on the contrary, because he considered it broken; and he thought, and was advised, that he had a right to retain the amount paid as some compensation for the loss and inconvenience he had sustained from the failure of the plaintiff to comply with the contract. That defendant has recently had reason to doubt whether he was right in retaining these payments, and therefore offered to the plaintiff, to pay him in full his claims amounting to 232 dollars 1 cent, with interest from the times of payment respectively, subject to a credit for the costs recovered by the defendant in the Court of appeals; but the plaintiff rejected this offer. That he again renews it; but if it is rejected, he relies upon the statute of limitations in bar of the recovery, and also upon the want of jurisdiction in the Court to entertain such a demand.
    The evidence taken in the cause shewed that the plaintiff failed in business about the year 1828 or ’29, and was not in a pecuniary condition to execute the contract for the purchase of the land until 1835. That in December 1827, the defendant tendered to the plaintiff a deed conveying the land, and demanded of him a compliance with the contract on his part, which the plaintiff declined on the ground that he was not able then to pay the purchase money due. That the defendant thereupon told him that he would have no more to do with the contract; and that the amount of purchase money he had received, he considered nothing more than compensation for the trouble and disappointment to which he had been subjected. That the defendant had purchased lands adjoining, and had built upon them; the buildings being near the line of the tract in dispute ; and the kitchen and spring which furnished the defendant with the water used at his house, being on this land; and that his other lands would be materially injured in value by separating this tract of land from them. There was proof, too, that some parts of the laud had been improved by ditching, draining and fencing ; but the evidence conflicted upon the question whether the whole tract had enhanced in value since 1827; though there was no doubt that the annual products of the land had been greatly increased. Thus it was in proof that the land rented in 1827 for 40 dollars a year; and there were witnesses who estimated the rent at that time, and for two or three subsequent years, at 30 dollars; whilst the estimate of the witnesses for several years prior to 1848, was from one hundred to one hundred and thirty dollars; and in the account which was taken in the cause, the commissioner charged the rent at an average of 108 dollars from May 1827 to 1848.
    When the cause came on to be heard, the Court directed a commissioner to take an account of the rents and profits of the land from May 21st, 1827, to the 31st day of December next following the date of taking the account; and also an account of the payments made by the plaintiff to the defendant for the land. The commissioner was also directed to state an account, shewing the balance due for the land at the price of 1313 dollars 80 cents, half payable on the 21st of May 1827, and the residue on the 21st of May 1828, allowing the plaintiff credit for such payments as he had made, and for the amount of the aforesaid rents and profits; the plaintiff to he charged with interest upon the purchase money unpaid, and the rents and profits to be credited thereon annually.
    In stating the account, the commissioner fixed the rent as above stated, at 108 dollars a year, for the whole period from May 21st, 1827, to the 31st of December 1848. And according to the statement, approved by the Court, the whole purchase money was discharged, and the defendant was found indebted to the plaintiff on the 21st of May 1848, in the sum of 742 dollars 99 cents, and on the 31st of December following, in the additional sum of 66 dollars; making the amount due the plaintiff at this last date, after paying the purchase money for the land, the sum of 808 dollars 99 cents.
    The cause came on to be finally heard in September 1848, when the Court decreed that the plaintiff should recover of the defendant the sum of 742 dollars 99 cents, with interest from the date of the decree until paid; and that the defendant should, on the 31st of December following, pay to the plaintiff the further sum of 66 dollars, with interest from that date until paid; and should surrender to the plaintiff full and entire possession of the land in the bill and proceedings mentioned ; and at the costs of the plaintiff, should convey to him in fee simple said land, with general warranty of title; and that the plaintiff should recover of the defendant his costs expended in the prosecution of this suit. From this decree the defendant Bowles applied to this Court for an appeal, which was allowed.
    
      G. N. Johnson and Patton, for the appellant,
    insisted :
    1st. That there was no sufficient note or memorandum in writing of the contract for the sale of the land to repel the application of the statute of frauds and perjuries. That the deed had never been delivered; and did not express the whole contract. It did not therefore come up to the requisitions of the statute. Sugden on Vend. Book 1, ch. 3, § 2, p. 65; 2 Lomax Dig. p. 32. 35, 36; Clinan v. Cooke, 1 Sch. & Lef. 22; Parkhurst v. Van Cortlandt, 1 John. Ch. R. 273; Goss v. Ld. Nugent, 27 Eng. C. L. R. 33.
    2d. That under all the circumstances of the case it would now be inequitable to enforce the contract. This was a contract in pursuance of which the purchase money was to be paid one half in cash, and the other half in twelve months. The appellant waited six months, and then went and tendered the deed and demanded the performance of the contract by the appellee, which was refused; and he was then told that the appellant considered the contract as rescinded. And from that time in December 1827 to 1835 the appellee did nothing, and was not able to do anything ; and now comes to enforce the contract. During this whole period the appellant acted under the belief that the contract was at an end. He intended to remove to the west; and he settled here. He bought land adjoining the land in controversy and built upon it, and married; and the land bought is affected in its value by its connexion with the other. They referred to Brashier v. Gratz, 6 Wheat. R. 528; Garnett v. Macon, 6 Call 308; Bryan v. Loftus, 1 Rob. R. 12.
    
      Lyons, for the appellee,
    insisted:
    1st. That the appellant never having returned the purchase money for the land which had been paid to him by the appellee, or offered to return it until he filed his answer in this cause, the contract for the sale of the land still subsisted; and that it could not be rescinded by the mere declaration of the appellant, on the tender of the deed and the demand of the balance of the purchase money due. That the payments were made by the appellee in part execution of the contract; and the retaining the money so received by the appellant, was an admission by the appellant which concluded him, contract was still in force. That as the failure or inability of the appellee to execute the contract when called upon to do so in December 1827, gave to the appellant the opportunity of rescinding it if he chose, and he did not choose to do so in the only equitable mode, he cannot complain that the consequences of his own conduct have been injurious to himself.
    2d. That the deed signed by the appellant was a sufficient memorandum in writing of the contract. 3 Woodeson’s Lect. 255, 39 Law Libr. 171; 1 Sugd. Tend. 57; Johnson v. Ronald, 4 Munf. 77; Coles v. Trecothick, 9 Ves. R. 234; Anthony v. Leftwich, 3 Rand. 238.
    
      
       Sup. Rev. Code, p. 130.
    
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that the contract between the parties for the sale and purchase of the land in the bill and proceedings mentioned, was sufficiently evidenced by the deed of the appellant, made and signed by him on the 21st May 1827, to relieve the case from the operation of the statute of frauds and perjuries. The Court is further of opinion, that as the application for a specific execution of a contract is addressed to the sound discretion of the Court, that he who asks it must have shewn himself prompt and willing to comply with the obligation of the contract on his part, and that the prayer will not be granted if it would be inequitable towards the party against whom the prayer is made. And it appearing that the appellee failed to comply with the contract on his part by paying up the whole of the cash payment at the time of the contract or afterwards, or paying or making any provision for the payment of the deferred instalment; and that for several years he was not in a condition to comply with the contract on his part; and it furthermore appearing that the appellant treating the contract as at an end, has proceeded to purchase land adjoining, and make improvements, which would render the specific execution of the contract unjust and inequitable towards him, it was not proper under the circumstances, to have decreed a specific execution in this case.

The Court is further of opinion, that the appellant in invoking the application of the principles of equity^to shield him from the consequences of a specific execution of the contract, must at the same time do equity, by restoring the amount of the purchase money actually paid to him: That by his failure to refund the same he kept the contract open and cannot now be permitted to rely on the statute of limitations to protect himself from a decree for the repayment thereof. The Court is of opinion that the Circuit court, instead of pronouncing a decree for a specific execution, should have rescinded the contract, and given the appellee a decree for the money paid, with interest. It is therefore considered that said decree is erroneous, and the same is reversed with costs. And this Court proceeding, &c., it is adjudged, ordered and decreed, that the contract between the parties for the sale and purchase of the tract of land in the bill and proceedings described, be and the same is hereby rescinded, and that the appellant do pay to the appellee 273 dollars 99 cents principal, with interest, &c.  