
    Isler, et als. vs. Outlaw.
    Bryan gave Outlaw a bond to convey him six hundred and forty acres of land, section 15-. They subsequently made a verbal agreement, that the bond should be-discharged by conveyance of section No. 14, instead of 15, and Outlaw took possession of it. Isler, his son-in-law, his daughter, (shebeing the only heir,) and his widow, refused to convey either» Outlaw sued on the bond, and the defendant Isler, as administrator of Bryan, pleaded lunacy of obligor. Judgment was rendered, and thereupon the son-in-law, the daughter, and widow of the deceased, filed their bill to enjoin the judgment, and compel Outlaw to accept in discharge thereof section 15. Held, that they were not entitled to the relief prayed for.
    This bill was filed in the Chancery Court at Somerville, in January, 1842, by Isler, administrator of the estate of Joseph H. Bryan, deceased, by Sally A. Bryan, the widow of said Bryan, and Mary Isler, the daughter of Bryan and wife of Isler the administrator, against Joseph B. Outlaw., It was filed to restrain the collection of a judgment which Outlaw had recovered in the Circuit Court of Fayette county, against Isler, as administrator of Bryan, and to compel Outlaw to receive, a deed for six hundred and forty acres of land in lieu of said judgment.
    The bill alledges, that on the 2d day of July, 1889, Joseph H. Bryan executed and delivered to Joseph B. Outlaw a bond for title to six hundred and forty acres of land lying in Tippah county, state of .Mississippi, part of a fourteen hundred acre tract, also certain mills, called Davis’s mills, in the same neighborhood; that this bond was, without a valuable consideration, paid, or agreed to be paid, but upon condition that said Outlaw, then a resident of Raleigh, North Carolina, should remove to the Western Division of the state of Tennessee, and reside at Lagrange, or in its vicinity; that during the absence of said Bryan, complainant Isler having an opportunity to sell the said section of land to W. D. and W. B. Davis, did make a contract to convey the same, subject to the ratification of said Bryan on his return; that Outlaw arrived at Lagrange on the 10th of December, 1839, and .was then informed that said section of land was sold; that said Bryan informed Outlaw that he could have section 14, which adjoined section 15, and was a part of the fourteen hundred acre tract; that Outlaw examined section 14, pronounced himself satisfied therewith and took possession of it, instead of No. 15, and made a crop thereupon; that Bryan died on the 27th day of December, 1839, and complainant Isler administered on his estate; that Outlaw never procured the bond for title to said section 15 to be registered, so that the administrator could make a title, but that the title was otherwise free from embarrassment; that on the 14th day of'April; 1841, Outlaw, (he being still in possession of section 14,) instituted an action of covenant, against complainant Isler as administrator, on the title bond, averring as a breach the failure of said Bryan in his lifetime to convey section fifteen as therein stipulated, and at the January term, 1842, recovered a judgment against the administrator; that after the commencement of said suit, the complainants, being desirous of complying with said title bond, procured a recision of the contract with the said W. D. and W. P. Davis, and executed a deed of conveyance in fee simple to said Outlaw, and tendered it to him, which he refused to accept, but prosecuted his suit on the bond to judgment, as before stated, he being at the same time in possession of section fourteen, under an agreement to accept it in place of section fifteen.
    The bill prays that he, Outlaw, be made defendant, and that he be compelled to accept a deed from complainants, or that the tide of complainants be vested in defendant, and that the judgment recovered be perpetually enjoined, See.
    
    Outlaw replied, and stated that Bryan had made, in Raleigh, N. C. a bond to convey to him six hundred and forty acres, as stated in the bill, part of a fourteen hundred acre tract, which included sections number fourteen and fifteen, lying in Tippah county, Mississippi; that said six hundred and forty acres was to be laid off in a body so as to include the improvements on the tract, and also to include in said bounds Davis’s mill, as stated in the bill; that the condition of the bond was, that he should remove, with his family, to the western district of Tennessee, and reside at Lagrange or its vicinity, and that he had fulfilled the conditions; that the removal had involved some sacrifice on his part, and constituted not merely a good but valuable consideration to sustain the covenant; that when the bond was executed, J. H. Bryan requested complainant Sally A. Bryan to write to Isler, informing him of the fact and direct him not to sell the land; that he believed that the letter was received, and that Isler, by collusion with W. D. and W. P. Davis, made the pretended sale for the purpose of defeating the contemplated conveyance of the land; that on his arrival in the State of Tennessee, he was informed by J. H. Bryan, that the land had been sold, and that he wished him to examine the adjoining section and take that in lieu of the other,- if it pleased -him; that he examined it and found it greatly inferior to section fifteen; that on section fifteen the buildings were good, and there were one hundred and seventy acres of cleared land; on-section, fourteen the buildings were not good and there were only fifty acres of cleared land; but out of regard for the feelings and health of J. H. Bryan, (his uncle,) he professed to be satisfied with section fourteen, and took possession of it: that during the few days that Bryan lived after this, no written agreement was made in reference to the substitution of section fourteen for section fifteen, and that under this verbal agreement he continued in possession of it two years; that he prepared a deed for number fifteen, in conformity with the title bond, and requested Isler to have it signed, but this he refused to do, declared that he would make a conveyance for neither section, and that Sally Bryan and M. Isler were more opposed to the execution of the deed than himself; that Bryan was of unsound mind at the time of the execution of the bond; that he thereupon commenced suit on the bond; that defendant pleaded that Bryan was insane at the time of the execution of the bond, and he recovered judgment as stated; that he admitted that Isler did, after the commencement of the trial, when all the proof was heard, come to the defendant with some papers in his hand, alledging that he had a deed to defendant for the land in question, and that without examining thepapers he refused to receive the alledged deed, because, 1st, he had been forced to abandon section fourteen, after having made valuable improvements on it: 2d, it had greatly depreciated in value by the change of the times; and lastly, because he had been put to great trouble, and expence and delay in prosecuting his suit. He stated farther, Isler did did not tender a deed for Davis’s mills in accordance with the bond.
    In addition to the facts stated in the bill and admitted in the answer, it appeared that Isler sold section fifteen to W. P. and W. M. Davis, and gave a bond for title for part to them and part to one Yancy, both bonds dated on the 7th day of September, 1840; that a parol agreement was made by Outlaw and Bryan, by which section fourteen was substituted in the place of section fifteen; that Outlaw took possession; that Outlaw applied for title to section fourteen to Isler and the widow, who refused to convey either fourteen or fifteen. Thereupon Outlaw removed from the land and commenced suit at law on his bond, on the 14th day of April, 1841. To this action the administrator, Isler, filed the plea of lunacy, and issue was joined thereupon; on the Sth and 13th of September, 1841, obtained a surrender of the bonds given to Yancy and the Davises, and offered to convey to Outlaw section fifteen, which he refused to receive: no conveyance of the mills was tendered. On the 17th day of January, 1842, Outlaw obtained judgment against the administrator.
    . Complainant filed a replication to the answer, and proof was taken.
    
      
      JH. G. Smith, for complainant.
    This bill is filed to compel the obligee of a voluntary penal bond for the conveyance of land, to take the land instead ,of 'damages recovered on the bond in an action at law.
    The complainants are, the administrator, heir, widow and distributees of the deceased obligor.
    The judgment at law was recovered against the administrator, on a breach which occurred in the lifetime of the obligor. No other plea was filed to the action, but the lunacy of the ob-ligor at the time of executing the bond, which was found against the defendant.
    The relief sought rests on the jurisdiction, first, to relieve against the penalty of a bond; second, for specific performance.
    The jurisdiction is indisputable, to relieve against the legal con sequences, of the breach of a penal bond.
    The land is the object of the bond; the penalty, merely a security for such object. Relief will universally be granted against the penalty, if the principal object of the bond cm be fulfilled, unless an equity is shown in favor of the obligee against the relief. “For it is against reason, conscience, and natural •equity,” to use the language of Mr. Story, in 2 Eq. Ju. s. 1316, “to say that because a man has stipulated for a penalty in case of his omission to do a particular act, the real object of the parties being the performance of the act; if he omits to do the act, he shall suffer an enormous loss wholly disproportionate to the injury to the -other party.” “Where the penalty is'designed merely as a security to enforce the principal obligation; it is as much against conscience to allow any party to pervert it to a different and oppressive purpose, as it would be to allow him to substitute another for the principal obligation.” 2 Story’s Eq. Ju. s. 1314, s. 1320, s. 1.315; 1 Fon. Eq. b. 1, c. 3, s. 2, n. d; 2 Chan. Cas. 88, (cited 1 Chit. Eq. Dig. 197); 1 Call. 533, (cited 2 Am. Ch. Dig. 63.) •
    How stand the equities between these párties? The. bond was voluntary. It is so by its terms which estop dispute: it is admitted to be so by Outlaw, when he calls it the “boimtif’ of his uncle; and when he states it was the fulfilling of the liberal. designs which his uncle cherished toward him. The setting up his removal to this country as a valuable consideration to support the obligation of the bond, is totally destitute of proof, and is an attempt to turn the bounty of - his benefactor into a . compulsory contract, a generous gift into an oppressive trade.
    It was therefore a botmty,. and of land, not money. To allow Outlaw to avail himself of his legal advantage, to turn a bounty into a burden, -an act of generosity into an instrument of injury, the beneficence, of Gen. Bryan into a curse on his wife and child, is to encourage ingratitude. . This, equity will not do. And could the benefactor have foreseen the’ event, far would he 'have been from bestowing his bounty to 'such purposes.
    And all this claim of Outlaw is founded on his having obtained the legal advantage of his judgment-at law; and this judgment at law was founded on the breach of the bond by Gen. Bryan in his lifetime; and this breach was occasioned by, his being on his dying bed at the time when the strict terms of the bond required performance of the condition; and the performance of the condition was'éxpressly waived by Outlaw; and thus was obtained the advantage at law which is 'to enable an ungrateful beneficiary to pervert the generosity of the friend into a curse to his wife and' child. And but for the breach thus occurring, and the advantage thus, obtained, Outlaw would be without pretext for asserting this claim for money, never having to the present .moment registered his bond, and thereby placed himself in a condition to maintain ah action at law upon it against the administrator. .
    Of what wrong or injury does Outlaw complain, that he shall be permitted to avail himself of the legal advantage so obtained? Nothing but the delay and refusal to execute to him the title, and the depreciation in the value of the land in the meantime.
    No injurious laches are imputable to'Gen. Bryan. He was in his last sickness when Outlaw arrived in the country: in fifteen days after Outlaw came, he died; and .in the meantime, Outlaw expressly dispensed, with the performance of the bond, by agreeing to take another and adjoining section to that stipulated for in the bond. Nor are any injurious laches justly imputable to the complainants, as Gen. Bryan’s representatives since his death. • No pretence is made, or if made is totally without proof, that the heir of Gen. Bryan has been requested or has refused to convey the land. The only testimony in the case, is the refusal of the widow of Gen. Bryan, placed on the ground of- discourtesy in Outlaw, to execute a. conveyance of section fourteen, the land not embraced in the bond, and Outlaw’s declaration to the witness Bagley, that Isler, the administrator, had refused to convey the same section of land. To make the most of this, it is but slight evidence of an injurious negligence or refusal to comply with the terms of the bond.
    As to Mrs. Bryan, the widow, she had no interest in the land to convey, and the application to her and her refusal was nugatory; and no wronger injury can be predicated of such refusal.
    . As to Isler, the administrator, his refusal was. justifiable on two grounds: First, he had as administrator no power to convey land not embraced in the bond of his intestate: Second, if the land Outlaw required him to convey had been embraced in the bond, the demand was premature, and Isler was not bound to execute the deed, for the reason that Outlaw had not, and has not to this day, registered his bond. See Act of 1794, c. 5, N. & C. Dig. 77.
    To this may be added, that by the provisions of the Act of 1794, c. 5, the holders of title bonds cannot charge the personal estate of the deceased obligors, until they register their bonds, demand a deed, and meet a refusal, from the personal representative. For these reasons, no wrong or injury to Outlaw can be predicated of Isler’s refusal to execute a deed.
    As the relief against the penalty at law, sought by this bill, involves the specific acceptance of the principal object of the bond, the defendant insists against the relief, some of the rules applicable to pure cases of specific performance.
    The remedy is not mutual, it is said; equity will not compel the obligor of a voluntary bond to execute the condition, and, therefore, will not compel the obligee to receive the performance of the condition. This is an application of the rule to a case without its operation. The rule is well applied to cases where the complainant is requiring the defendant to perform on his part, as to pay money or perfect a sale by paying the price or conveying the land, or in similar cases. But obviously this rule cannot be justly applied, where the defendant is required to perforin nothing, pays nothing, but merely to receive performance on the part of the complainant, after the execution by the defendant of the terms of the gift or contract on his part. The rule is, shortly, that the one party shall not compel the other party to complete the unexecuted terms of the contract on his part, unless the latter has the like remedy against the former.
    But on the footing assumed by defendant, that the bond is not voluntary, but supported by the valuable consideration of improving his condition, by removing from North Carolina, the remedies are mutual. The bond might have been enforced by the defendant against the complainants.
    The legal advantage which Outlaw has in the judgment at law, is insisted on in his defence. This advantage only avails where the equities are equal. No such equality exists here. All the equity is on the side of the complainants; all the hard dealing, with the defendant.
    Nor does the rule bear on this case, that the party who has neglected to avail himself of his defence at law, cannot come into equity; for the matter on which complainant asks relief, is not matter of defence at law, but exclusively of equity cognizance.
    So far as the doctrines applicable to pure cases of specific performance bear on the present case, none stand in the way of the relief asked. Time is not of the essence of this contract, and was expressly waived by Outlaw. Fraud or bad faith are not justly imputable to the complainants, nor any injurious laches. Nor has such change of circumstances occurred, as sustain, the defence of the respondent. Had the title been made, the value of the land would have equally depreciated.
    
      Stanton, for defendant.
    After a party has waived a written contract for land by parol agreement, he cannot claim a specific performance of the original contract. Walker vs. Wheatley, 2 Hump. 119;- Fonblanque’s Eq. 283, (4th American Edition,) and authorities there quoted, to wit, Goman.vs. Salisbury, 1 Vern. 240; Segal vs. Miller, Ves. 229, &c.; Boisford vs. Burr, 2 J. C. R. 416,
    
      This case is very different from those in which a party has been allowed until the decree to' perfect his title. The vendor has never been permitted to speculate upon the property; to sell it and get it back, and then come into equity and claim a specific performance. It is to be observed, that all parties, Gen. Bryan in his life-time and the coinplainanfrsince his death, have been involved in this parol abandonment of the contract, and the subsequent sales of the lands to Davis and Yancey.
    The only equity which the complainant might possibly set up against this parol waiver- of the contract, would have been a readiness and willingness on their part to convey to Outlaw section 14, that which was to have been conveyed by the parol' agreement. But this they never offered to do. They do not pretend in their bill, that they were willing to do so; and Outlaw in his answer avers that they positively refused to-convey either section, and that they have actually sold and conveyed section 14. The deposition of Mr. Williams, (record, page IS,) and Bagley’s deposition, (page 19,) prove the refusal by complainants to convey. The plea of lunacij, still further shows the complainants resistance of the contract.
    If a party has been dilatory and negligent, equity will refuse a specific performance, upon the presumption that the party has abandoned his contract.
    But here there is not merely negligence and delay; there are also bad faith and resistance; not merely a bare presumption of an abandonment of the contract, but an express repudiation of it.
    
    Under these circumstances equity will refuse its aid. 2d Story’s Eq. pages 53, 81, 85-6-7-8; Fonblanque, 282, 283, (top page, Edition as above); Smith's heirs vs. Christmas, 7 Yerg. 565; Benedict vs. Lynch, 1 J. C. R. 370; Milward vs. Earl of Thanet, 5 Yes. 720, and note.
    The complainants are not in a situation to fulfil the whole of their contract; for the evidence does not make out their title to the mill. The deposition of W. Fairson, (record, p. 16,) shows that the complainants dismantled the mill after the contract, taking out and carrying away the irons, stones, the running-gear and every thing valuable, rendering the mill worthless. This was done, no doubt, as the answer alledges, to defeat the de-Iendants enjoyment of the contract. ■ Equity will scarcely force a party to receive only a portion of the property contracted for, especially when the deficiency -is caused, by the fraud or fault of the vendor himself. 9 J. R. -450; Fonb. Eq. page 155, note (B.. 1, ch. 3, sec. -9, note); 2 Story’s Eq. S2.
    But the defendant has fairly obtained his verdict at law, and there is no equitable circumstance which the complainants can set up against it. The court cannot presume that the jury have given more than the value of the land; the verdict was, in fact, in accordance with the proof. But if it had been otherwise, there was a remedy in. the court which rendered the judgment. ' '
    Nor can the fact, that the bond was not registered, avail the defendants here; it should have, been pleaded at law. And besides, as the breach occurred in the life-time of Gen. Bryan, the want of'registration was no defence. The defendant never presented a deed to Isler to be executed by him as administrator, but to all the complainants as heirs of Gen. Bryan, in whom 'the title resided. Registration was not necessary as to them, and the administrator may waive the necessity of registration if he will. '
    So the defendant has obtained his advantage at law, fairly and without, fraud; ancl equity will not specifically execute a contract under, such circumstances. Lay vs. Colstcn, 1 Hen. & Munf. 110, quoted .Fonb. Eq. 49, nóte, (B. 1, ch. 1 sec. 5, note,) also cases quoted 2 Pirtle’sDig. pages 489, 508 and 510.
    
      Barry, for defendant.
   Reese, J.

delivered-the opinion of the court.

In 1839, the late Joseph H. ’Bryan, of Fayette county, then in life -and on a visit to Raleigh, N. C., gave his bond to his nephew, the defendant, binding himself in the penalty of ten thousand dollars, to convey to him six hundred and forty acres of land in a body, being part of a fourteen hundred acre tract, including the improvements on section 15; and also certain mills upon a small portion of land- in the neighborhood of the same, all lying in the State of Mississippi; on the condition that he would remove from Raleigh, N. C., to La Grange or its neighborhood. Before Bryan returned from N. Carolina complainant, acting as his agent, contracted to sell section 15, including said improvements, to some persons by the name of Davis, subject, as the bill says, to the ratification of Bryan on his return. In December, 1889, Outlaw moved out, bringing with him his family and slaves; and the section 15 being contracted as aforesaid, to be sold, he was requested by Bryan to examine section 14, adjoining, and being satisfied therewith, under the circumstances, the defendant settled thereon under a parol or verbal agreement, that it was to be conveyed to him instead of sec. 15. In December, 1839, Bryan died intestate, leaving the wife of complainant, as his only heir at law, and a widow surviving, complainants in this bill. Jesse Isler, the son-in-law, administered upon the estate of Bryan, and he, his wife and the widow executed to the Davises a bond to convey title to part of sec. 15, and to one Yancy for another part. They •did not offer to convey sec. 14 to the defendant. On the contrary, the silence of the bill, the allegations of the answer, and the proof in the cause, make it apparent, that they refused to convey sec. 14 to the defendant upon his special application to that 'end. In this state of things, defendant, on the 14th April, 1841, brought his action at law upon the bond against complainant, ;as the administrator of Bryan. Complainant sought to avoid the validity of the bond by the plea of lunacy of his intestate at the time of its execution. This was the only plea. A. verdict was found for the defendant in the bill. The plaintiff at law ■upon this issue, had his damages ascertained and assessed, and judgment thereon rendered. In September, 1841, Isler procured Yancy to release to him-, (Isler,) not to the 'heirs, the title bond,given by Isler to Yancy for four hundred acres o'f sec. 15, and about that time offered to defendant to make a deed for 'that section, which was refused. This bill is filed to enjoin the judgment at law, and compel the acceptance of a deed for the 15th section, upon the general ground, that a Court of Chancery looks at the substance of the contract, as being for land, and will not subject them to pay the money rather than the land, unless on the ground of wrong or fault. It would not be contended, perhaps, that if Bryan had lived, had contracted to convey lot 15 to others, had made a parol agreement with defendant for lot 14, and refused after defendant had made considerable improvement to convey lot 14, had finally been sued upon the bond at law, had pleaded non est factum, had resisted a recovery, and finally a recovery being had upon the bond at law, had then filed his bill for a specific execution of the contract; it would hardly be contended by any one, that a Court of Chancery, under such circunistances,.would decree in his behalf the specific execution of the contract. And yet this case is identical with that. There is but one heir at law, who is actually represented by complainant,'her husband, and he too is the administrator. He combines in himself all the interests real and personal of Bryan, as he- would have himself have done in the case supposed. Now, legatees under a will; or distributees in case of intestacy, would often be able in a Court of Chancery to throw off from the fund claimed by them, the burthen of a judgment at law obtained for a breach of coyenant to convey land, and impose it upon the heirs, by compeling a specific execution of the contract of purchase. But, here, after the death of Bryan, all the parties in interest, surviving, joined in a bond to Yancy; all joined in refusing a conveyance for lot 14; and all joined no doubt in the vigorous resistance of the suit at law. Indeed there is much reason to infer from the order and sequence of events in the case, that before Bryan’s return the contract of sale with Davis was made by Isler with the express view of defeating the purposes of Bryan and the claims of Outlaw as to lot 15.. And the same active exertions of the parties in interest after the death of Bryan to baffle and defeat the claim of Outlaw, seems to have been made.

These circumstances, then, combined with the further fact, that the land has greatly diminished in value, and that it lies out of the State, and beyond its jurisdiction, makes it, in our opinion, a plain case, for refusing the active interposition of a Court of Chancery to decree the acceptance of tide to lot No. 15. The decree of the Chancellor will be affirmed.  