
    Slaughter, Administrator of Castleman, deceased, and Others, v. Harris and Another, Administrators of Harris, deceased.
    
      Friday, December 8.
    A party asking a decree for the specific performance of a contract, must show that he is not in default, and has taken all proper steps towards performance.
    ERROR to the Vermillion Circuit Court.
   Smith, J. —

A bill in chancery, filed in this case, alleges, that, on the Oth of November, 1822, Harris and Castleman made an agreement in writing, under seal. In this agreement it was stipulated, that Harris was the proprietor of a fraction of land containing about 454 acres upon which the town of Clinton was situated; that he had paid one-fourth of the purchase-money to the government, and for the remainder had taken the stay pursuant to an act of congress on that subject; that Harris thereby sold to Castleman one equal half of his interest in said tract of land, and that the latter should have one-half of all the profits arising from the sales of lots and lands in said tract, and that the expenses should also be equally divided. In consideration of this sale, Castleman was to pay Harris 1,200 dollars, as follows: the amount remaining due the government, estimated at 1,000 dollars, was to be paid by Castleman at the land office at Vincennes on or before the 31st of March, 1825. If the amount due at the land office did not amount to that sum, the balance was to be paid Harris, or to his order. The residue of the 1,200 dollars, say 200 dollars, was to be paid to Harris out of the sales of lots in said town, ris having the right to reserve that sum out of the share of Castleman arising at the first public sale. Harris bound himself and heirs to assign to Castleman one-half the certificate for said land, or make such other conveyance as would secure to Castleman the legal title thereto as soon as payment should thus be made; and for the performance of said contract the parties reciprocally bound themselves to each other in the penal sum of 2,400 dollars.

The bill then alleges, that, in pursuance of said agreement, Harris received sundry notes for collection for which he gave the following receipt:

“Received, on the 22d of July, 1824, sundry notes for collection, being the proceeds of the sale of lots in the town of Clinton, together with the proceeds of the ferry, amounting- in all to 466 dollars and 25 cents, which were given jointly to myself and Jacob Castleman, in consequence of an article of agreement between said Castle-man and myself bearing date November 6th, 1822.

Wm. Harris.”

Also, that Castleman gave Harris certificates for seven quarter sections of land, which were received by Harris in part payment of the 1,200 dollars mentioned in said contract, and for which Harris gave the following receipt:

“Received, 26th October, 1824, of Jacob Castleman, certificates for seven quarters of land amounting, in the whole, to 560 dollars, to be applied towards the payment of the fraction of land upon which the town of Clinton, is situated, pursuant to an article of agreement between myself and said Castleman; also 5 dollars to defray expenses, &c. One of the above certificates for one quarter may be returned should it not be used as above.

“ Wm. Harris'.”

Also, that Castleman paid Harris the further sum of 160 dollars, in land certificates, as evidenced by the following receipt:

“Received, December 22d, 1824, of Jacob Castleman, two land certificates amounting to 160 dollars, to be applied towards the payment, in the land office, of the Clinton fraction, pursuant to an article of agreement existing between said Castleman and myself. Given under my hand the above date; also 6 dollars in cash to pay charges.

Wm. Harris.”

The bill then further alleges that Castleman paid divers other sums for taxes on said land, expenses incurred in the sales thereof, and expenses in taking care of the same, in all 500 dollars; that Harris had, from time to time, after said contract, sold lots and received therefor, and from the proceeds of a ferry established upon the joint property, the sum of 5,487 dollars.

The complainants therefore charge that Harris had thus received payment of the 1,200 dollars specified in the contract, and also a large sum which should have been paid over to Castleman; but they aver that he had obtained a patent from the government for said land in his own name, and had refused to convey the one half to Castle-man or his heirs, and to account and pay over the sums, as aforesaid.

It is alleged that Castleman died in May, 1838, and Harris, in-, 183-; that Houghton is administrator of Harris, and that Bedford Harris, an infant, is his sole heir. Prayer, for an account and general relief, and that the unsold lots may be divided between the heir of Harris and the complainants.

A guardian ad litem was appointed for Bedford Harris, who filed the usual answer.

Houghton, the administrator of Wm. Hams also answered. He admits the contract set out in the bill. He says that Harris had paid one-fourth of the purchase-money, and was entitled, by the laws then in force to a discount of thirty-seven and and one-half per cent, upon the amount then due upon payment in money, orto make payment without discount by the application of former payments for other lands, which should be relinquished to the government by the surrender of the certificates of purchase. That, on the 25th of December, 1824, Harris paid, at the land office at Vincennes, the balance due for said tract of land and received a patent in his own name, which is made an exhibit. That the amount of payment then made by Harris was 885 dollars and 15 cents, of which the sum of 882 dollars and 10 cents was paid in certificates of former purchases relinquished. That, by the journals of the land office at Vincennes, an extract from which is made an exhibit, it appears that Harris, in making the payment last referred to, relinquished five certificates of purchase, covering six quarters of land, which had been entered by Castleman, and which were used in said payment to the amount of 480 dollars, equal to a cash payment, at 37\ per cent, discount, of 300 dollars. The respondent says he has no knowledge of any other payment made by Castleman on the contract. -He says that about.the time Harris made the last payment for the land, Castleman left the state of Indiana and never returned. The respondent found amongst the papers of Harris a letter from Castleman, dated Woodford Co., Ky.,- . the 14th of September, 1832, in which Castleman says when he left Indiana, five years before, he expected to return in six weeks. He then, after mentioning the causes which had prevented his return, says, if he had calculated on being so long absent he would have made arrangements to have had some money paid to Harris, and that if Harris' wished to receive any money from him before his return,, the time of which he says must be considered indefinite, he, upon the request or order of Harris, would remit through an agent, &c. Enveloped in this letter the respondent says he also found a paper in the hand-writing' of Harris purporting to be a copy of his answer thereto, in which the latter says to Castleman that, in consequence' of the non-performance of the agreement on his part, he had not considered him a partner in the Clinton concern for a number of years, and consequently would receive nothing further from him either directly or indirectly.The respondent says he has no knowledge what sums of money were paid for taxes or expenses, and that he is unable to render any account of the money received by Harris in his lifetime for sales of lots, &c. Pie says that notes, given Harris for the purchase-money of lots, amounting to 1,107 dollars, came to his hands, of which he had collected 520 dollars, and that there are other sums collected in the hands of a justice of the peace. He also admits the receipt of 130 dollars for ferry rents. He denies that Castleman ever complied with the contract-on his part, and says that when the latter left the state of Indiana he entirely abandoned it. He supposes and believes that if any payments or advances were made by Castleman in land certificates or otherwise, the same have been fully settled for between the parties, and insists on the statutes of limitations in relation thereto.

Three witnesses, whose depositions were read, state that they understood from Castleman, in conversations shortly before he left the state, that he was no longer a partner with Harris, but had abandoned his contract. The other depositions on file relate only to the price of lots sold by Harris.

The cause was submitted on the bill, answers, exhibits, and depositions, and the bill was dismissed.

We can perceive no ground upon which the decree of the Circuit Court dismissing the bill should be reversed. The facts stated in the bill do not show, nor is there any proof, that Castleman ever performed, or offered to perform, his part of the contract. Admitting that all the land certificates mentioned in the two receipts of Harris were received by the latter from Castletnan to be applied towards the payment due for the tract of land at the land office, and that they were so applied, and that no discount should be deducted, there was still a deficiency of 280 dollars required to make up the sum of 1,000 dollars which Castleman had undertaken to pay Harris. It is contended by the complainants that Harris received sufficient sums from sales of the joint property to make up this deficiency, but Castleman was not entitled to a share of the proceeds of such sales without payment of the 1,000 dollars specified in the contract. We think it plain, therefore, that his representatives have not shown themselves entitled to a decree for a specific performanee, or any other relief prayed for by the bill.

A. Kinney and S. B. Gookins, for the plaintiffs.

E. 8. Terry and W. P. Bryant, for the defendants.

Per Curiam.

The decree is affirmed with costs, &c.  