
    HAMLIN’S EXECUTRIX v. BERRY.
    In Equity. The plaintiff’s testator Hamlin and the defendant, on the 14th of August, 1792, entered into articles of agreement signed and sealed by each party by which it was agreed to make an exchange of lands—The plaintiff agreed on his part to make the defendant a conveyance to 250 acres of land, which he owned and upon which the defendant then lived, by a certain day. The defendant on his part agreed to give Hamlin for the above tract, 200 acres of land which he claimed adjoining Rogersville, and upon which Amis lived. This land was to be conveyed to Hamlin, on or before the month of February 1794, but it was provided that if the defendant should not recover the land of Amis, so as to be able to convey; then he was to pay 2001. Virginia currency, or negroes of that value in lieu of the land; and also, to account for rent from that time.
    The defendant filed a bill in Equity against Amis in this court, for the recovery of the 200 acres, which upon hearing was dismissed at March Term 1801. On the 22nd of August, 1801, this property, then, and having been in the possession of Amis, was sold at Sheriff’s sale, as the property of Berry, for $306 The tract on which Berry lived, having never been conveyed by Hamlin, was also sold, as Berry’s property on the 15th of August, 1801.
    After the expiration of the time within which Hamlin was to convey to the defendant, he brought suit at law against Hamlin, upon the article of agreement & recovered judgment for $2000, at Sept. term 1801. The plaintiff filed this bill, stating that her testator had received 501. Virginia currency, on account of rent, that the defendant had failed to convey the land as agreed, or pay any part of the 2001. in lieu of it, that he was now, and for some time past had been perfectly insolvent, and incapable of complying with his part of the contract; upon this statement, the plaintiff prayed that a perpetual injunction might be granted upon her refunding the 501. which had been received for rent, with the interest.
    
      If A. and B enter into articles of agreement containing mutual and independent covenants &c. A not having perfomed the contract on his part, recovers a judgment against B. for a breach of his covenant,on a bill charging that A is insolvent a perpetual in junction will be decreed except as to the surplus which may remainafter deducting the amount to which B. is entitled on account of A's covenant.
    
      The answer of the defendant admits the contract as stated, but denies that his bill in this court against Amis was dimissed upon the merits, but abated; admits that he never conveyed the 200 acres to the plaintiff nor paid any thing in lieu of it; and that he paid 53l. on account of the rent.
    Thomas Amis the father sold the land to his son John, and put him in possession of it. John sold it to Richard Mitchell, and in order to quiet Mitchell in his purchase, Amis the younger purchased of the plaintiff his right to the 200 acres of land, for the sum of 250l. in the month of February 1797. The answer further states, that the sheriff’s sale of the 200 acres cannot affect the claim of the plaintiff to it for two reasons. 1st, because the executions were irregular, and the sale void in consequence of the irregularity. 2d. Having sold to the plaintiff, he was but a trustee; no sheriff’s sale ought to affect the interest of the cestuy que trust.
    An issue of fact was referred to a jury, for the purpose of ascertaining the yearly value of the rent for the 200 acres, who found it $100 a year from February, 1794, until the determination of Berry’s suit against Amis making seven years. Upon the filing of the answer the injunction of the plaintiff for the amount of the rent received, had been dissolved at the last term and the money paid.
    The evidence introduced, shewed a sheriff’s deed for the 200 acres, dated the 6th November 1801.—A sheriff’s deed for Berry’s right to the 250 acres dated September 1st, 1801. A deed from the defendant to John Berry, for the 200 acre tract, dated February the 2nd, 1801. Copies of a fi. fa. against the defendant with an alias and pluries were produced, with the returns of the sheriff, that no property could befound.
    William Payne a witness says that the defendant left the county of Hawkins, within this district, in which he lived, and went to Prices settlement in Kentucky, from whence his bail brought him, and had him put into jail, in Grainger county; and that he was commonly reputed to be insolvent.
    Campbell and Williams, for plaintiff.
    The question in this case is whether the defendant has complied with his part of the contract, and if he has not, whether the plaintiff is bound to a specific performance, for if he should not, it appears clear that he cannot be answerable in damages. It is a principle in equity, that a party to a contract must perform his part, otherwise the court will not decree a specific performance; or where the party has trifled—where there is not mutuality, or where the circumstances of one of the parties are altered, 2 Eq. Ca. 16. pl. 2. 19 pl. 13 and note.
    The judgment at law, cannot make a difference in the case, for damages assessed by a jury are in place of a specific performance. Berry is first mentioned in the articles, which shews that the agreement of the defendant was the consideration, upon which Hamlin’s part of the contract is founded; this shews that Berry ought to perform his part of the contract before he can call on the plaintiff for an execution of his. In 2 Eq. Ca. 57, a perpetual injunction was decreed because the defendant was not able to perform his part of the contract 1 Har. 36 and 1 Fonb. 383 shew that where any part of an agreement has become impossible to be performed the plaintiff cannot have a specific performance.
    It is laid down as law in 1. Fonb. 361.2 that where the consideration fails, a specific performance will not be decreed. The plaintiff has refunded all that he received of the defendant, who is clearly proved to be insolvent; and consequently cannot perform his part by a conveyance of the land for which he never had a title; or the payment of the 200l. and interest.
    A perpetual injunction ought to be decreed: but if the court should not feel themselves authorised to do this, they cannot in equity do any thing more than decree an adjustment, by deducting the seven years rent, with the 200l. and interest, out of the $2000, which has been recovered at law, dissolving the injunction for the balance. This appears the more agreeable to equity and all doubt is removed, when it is considered that the defendant has received treble benefit from this contract. The 200 acres was sold for his debt. The 250 acres were also sold in the same way, and he himself, sold the 200 acres as appears by his own deed to John Berry.
    Whiteside for the defendant.
    Nothing is shewn as a reason why the agreement should beset aside; it is not alledged, that there was any fraud, imposition or unfairness in its formation.
    It is a clear principle of law, that a contract cannot be annulled, unless for some defect in it when made; men have a right to make what contracts they please, nor have this court a right to vary them, or their effects. These articles do not convey an idea of precedent covenants, they contain mutual and independant covenants; it was so decided on the law side of this court.
    The plaintiff has charged an incapacity in the defendant, to perform his part of the agreement; but this is charged merely as an inference of the preceding part of the bill; the suit brought by the defendant against Amis, for a title to the 200 acres was determined by a dismission. Now. Ld. Hardwicke lays it down as law in Atkins, that the allegata and probata must correspond. The proof cannot go beyond the allegations of the bill, consequently, when the answer proves that the bill against Amis, was not dismissed upon its merits, this part of the bill respecting the insolvency of Berry is entirely done away.
    The plaintiff cannot claim even a specific perforformance of the defendant, because he has sold his claim to John Amis, and received a valuable consideration for it. It was decided in this court in the suit brought by the defendant against the plaintiff that the covenants in this article were independent, upon the independency of the covenant, Berry could compel the plaintiff to convey specifically in this court, without shewing that he had peformed his part. A distinction exists between an application to this court for a specific performance, and for a perpetual injunction. In the first, the court will not lend their equitable aid, unless it appears that the applicant has done all he was bound to do. The court are equally cautious that they do not interfere with a judgment at law. I take it they will not unless on account of some intrinsic exception to the contract itself ; and not on account of adventitious circumstances, This court cannot take into consideration any circumstance of the rise or value of the land which the plaintiff was bound to convey. A court of equity more than a court of law, cannot modify the contract of the parties, nor deprive either of any advantage which might have been fairly obtained. Every individual is entitled to the benefit of his contract. If the defendant had the best of the bargain, or it eventually turned out so, this court cannot lawfully deprive him of it.
    The most the court can do in this case, is by an adjustment, as the plaintiff’s counsel have stated, but I think it would be improper to concern with the contract at all but leave the parties to their remedies at law, there was no fraud in the original transaction, and no subsequent adventitious events, can authorise either party to claim the interposition of this court. the constitution forbids the idea of an interference so as to impair the obligation of the contract between the parties.
    It is objected that the claim of the defendant to the 200 acre tract, is destroyed by the sheriff’s sale. This objection can have no weight; the sheriff could not sell a greater interest than Berry possessed—he had disposed of it to the plaintiff, whose claim would still continue attached to the land after the sheriff’s sale; but the defendant had neither a legal nor an equitable claim to it.
   Overton Judge.

The court must act upon the contracts of men as made; they cannot make or modify those contracts.

If the constitution had not prohibited the legislature from passing any law, impairing the obligation of contracts, I should think such acts unwise, as being bottomed on unsound principles; I have no doubt of the sense in which it is used in the constitution, and upon that ground this court ought not to do any thing, which may impair the force or obligation of a contract. This being a constitutional objection it may be necessary to consider the strength of it. In what does the obligation of a contract consist? surely it derives its obligatory force from being mutual, and that each party shall be obliged to do what was contracted to be done. Where a consideration is the ground of a contract, that consideration should be executed, so as to make it obligatory on the other party in this court.

This court has always interfered, where the contract has lost its force; when the ground upon which it rested was removed. Where the contract is mutual, and its obligatory force continues to exist, this court will act on that basis, but when its obligation is lost by adventitious circumstances, this court will so consider it and act accordingly.

It has been contended that this article contains independent and mutual covenants, that it has been so decided, that this court cannot interpose, but must leave the parties to their remedies at law upon the independency of the covenant; and upon this principle that the defendant might have obtained a decree for a specific performance against the plaintiff, without shewing a performance on his part. This is not correct as it strikes me. This argument is predicated upon a supposition, that the covenant on the part of the defendant, was all the plaintiff contracted for; it will not bear the test of examination in a court of equity, which considers the substance, and not the form of contracts. In the consideration of this court, it were more proper to view the covenant on the part of the defendant, as being entered into, on account of its being the mean of attaining the substance of the contract, the conveyance of the land &c., and not as an actual conveyance or performance. It is this which this court will ever keep in its eye.

It is said, that this court cannot interpose, for in doing this, they must set aside the contract which they cannot do on account of adventitious circumstances where it was fair in its origin. It appears to me that a court of equity cannot set aside a contract under these circumstances, but they can and have interposed upon another ground, that the contract to be obligatory, ought to be mutual, when it looses this reciprocity it looses its obligatory force.

In principle no difference can exist between an application to this court for a perpetual injunction and for a specific performance. Courts of equity seldom think themselves authorised to decree a specific performance, unless in cases where damages could be recovered at law. If the defendant is entitled to damages from the plaintiff for not performing his covenant, he would in the view of this court be entitled to a specific performance, the land itself; and if not entitled to that, the defendant should not possess himself of the damages found by the jury, which is the value of the land, and its substitute.—In equity, justice and conscience, there is not any distinction.

But performance on the part of the defendant by inference is insisted on. The answer states that the plaintiff sold his claim to John Amis for 250l. which we must take as true, not having been disproved.

For my own part, I cannot consider any act of the plaintiff, as being equivalent to a performance on the part of the defendant; unless it were acts of the plaintiff which would incapacitate the defendant from peforming. Any sale which the plaintiff could make to Amis ought not to exonerate the defendant from the performance of his contract. It should appear that he did what he contracted to do; convey the land or pay the value of it; a contract between third persons, ought not to affect this; if this were the case, nothing would be more common in courts of justice than to see the investigation of one cause involve in its vortex ten or a dozen, or all contracts which could be made to bear any relation to the matter in dispute. If the plaintiff sold to Amis, the most favorable light in which it can be viewed, for the defendant, is, that it placed Amis in the shoes of the plaintiff, as to the defendant: If so, the defendant ought to shew a conveyance to Amis, this he has not done. But it is said that Amis took Hamlin’s claim at his own risque; this was nothing to the performance of the defendant’s part of the contract. If Amis purchased a bubble it was a matter between him and the plaintiff, and for any deviation in this contract he must be responsible to Amis. It does not appear that the defendant ever had any title to this 200 acres of land which he contracted to convey. It is true that the contract provides an equivalent for the land in case of the defendant’s in capacity to convey, being 200l. Virginia currency, but the answer does not assert that this or any part of it, has been paid, so that it appears that no part of the purchase money has been paid, but only an incidental obligation discharged, the payment of 53l. for rent. This, however has been refunded, or the defendant is in a capacity of getting it by the dissolution of the injunction.

The present or former circumstances of the lands contracted to be conveyed on either side, cannot be taken into consideration by the court. Whether either or both of the tracts have risen or fallen in value, is not material to a rightful determination. The court will presume an adequate consideration, unless the contrary appear in a manner which the law will authorise.

In common extra judicial parlance, one person may be said to get the advantage of another in a contract; But when a contract is fair, this court possesses no legal means of knowing this inequality, and therefore the idea of depriving a party to a contract, of any advantage which he may have acquired over the other party cannot be conceived.

It does not appear from this transaction, that the rent was intended to be a substitute for the interest, but rather a stipulated incident of the principal part of the contract—the conveyance of the 200 acres of land or its substitue 200l.

The objection which has been raised against the claim of the defendant to the 200 acres of land, from the incumbrance of the sheriff’s sale has no weight with me. The sheriff could sell no greater interest than the defendant possessed ; a purchaser under that sale must take it subject to all antecedent claims, either legal or equitable.

Upon looking into the bill, it does not appear that the allegation of the insolvency of the defendant is merely by inference as contended, but an independent substantial charge upon which the plaintiff grounds his case. The evidence proves to the satisfaction of my mind, that the defendant is insolvent, that he has never conveyed the land he contracted to convey nor paid the 200l. Virginia currency, its agreed equivalent; and that he is perfectly incapable of doing it Seeing that the plaintiff has restored by a dissolution of the injunction, all that he had received of the defendant for the rent. I am of opinion, that the parties should be placed in statu quo, and that the injunction, for the balance should be made perpetual. Vide 5. East. Reports 452. 2 Com. Cent. 56. 5, Esp. Rep. 449. Doug. 654. Camp. Rep. 472. Wils. ed. Bac. Ab. 109 N.

Campbell, judge:

was inclined to think that the plaintiff was not entitled to any relief in this court, but took time to advise.

White Judge.

It is not usual to perceive but two sides to a cause, but this seems to strike me in a different point of view, from that in which it has been considered by the other members of the court.

There is no doubt but this was a fair contract when it was made, and it seems to me that it ought to be considered as having all the obligation originally attached to it. If the defendant made an advantageous bargain, he ought to have the benefit of it. When the contract was made, it was in the contemplation of the parties, that there would be a risque in the defendant's getting a right to the 200 acres, which he was to convey, for it was provided that in case he should not, he was to pay 200l in lieu of the land

It was determined in this court, that the covenants in the article were independent, but I do not see that this can bear upon the decision of this cause.

The allegation in the bill respecting the insolvency of the defendant appears to be a substantial charge and not by inference from what had been previously charged as to the dismission of the bill. This court must take the contract as it stands, and cannot take into view any alteration of the value of the property exchanged.

Upon a former occasion I was inclined to think that a sheriff’s sale of a legal right, would convey the property free from any equitable incumbrances, but upon further consideration, and looking into the books, it has since appeared differently to me, and that such sale can convey no greater right than the individual held. vid. Amb. 724. 1 Bro. C. C. 302.

Proof having been exhibited respecting the incapacity of the defendant to perform his part of the contract, I am of opinion that the contract should be adjusted by adding the amount of rent to the 200l. Virginia currency and interest thereon from the time the suit of Berry against Amis was dismissed until the injunction in this case was granted, deducting out of this sum the amount of rent paid by the defendant to the plaintiff, and that the balance be applied as a credit for the plaintiff against the judgment obtained by the defendant at law for $2000, and after deducting this credit, that the injunction be dissolved for the balance.

Campbell judge:

The next day gave his opinion in conformity with that delivered by White, Judge, whereupon a decree was drawn and passed, making the injunction perpetual for $1314 41 3 4 cents, which together with the sum of $178 75 cents, the amount of rent paid by the defendant to the plaintiff, for which the injunction had been formerly dissolved, and the money paid, making an aggregate sum of $1493 16 2-3 cents; this last sum deducted from $2000, the amount of the judgment recovered at law, leaves a balance of $506 831-3 cents, for which the injunction is now dissolved; so that the defendant may recover this sum upon the judgment at law. 
      
       A purchaser is not entitled to any compensation for the fancied goodness of his bargain which he may suppose he has lost. Sugd. 151 and authorities there referred to.
     