
    JAMES LOVE & AL. THOMAS CAMP.
    Wheie-a parly covenants to convey a title to a tract of land, he cannot- resist a claim b.y the vendee for specific performance, by shewing that a part of the title is in others, that he has in vain endeavored' to procure a conveyance from them1, and that-therefore He is unable to complete the title., and, especially,, where he was cognizant of hi» want of title.
    What might be. the effect of a knowledge o.n the part of the covenantee, at the time the contrae t was made, that the covenantor had’ not the title, and' whether a Court of Equity would in- such a casa decree a specific performance op leave the party to- his action, of law for, damages,. Quera ?
    The cases of Oliver, v. Dix, 1 Dev. & Bat. Eq. 158, and Glanton v. Burgess 2 Dev. Eq. 13, cited and approved.
    Cause Removed from-the. Court of Equity of Cleaveland County, at the Fall Term IS49-.
    The bill in this case alleged in substance, that about fort}', years ago,.one, Daniel Camp died intestate, seized and possessed of a certain tract of land (particularly described in the bill) and leaving, as his heirs at law, the defendapt Thomas Camp, and five others (naming them ;) that the defendant Thomas Camp, prior to the year 1840, purchased for h(s eo heirs their several and respective shares in the said tract of land, and thus became the sole owner thereof in fee simple; that in the year 1840 he contracted with the plaintiff, Love, for the sale thereof; that the said plaintiff agreed to purchase from the said defendant the entire fee simple in the said land, at the price of eighty dollars, which was then the full value of the land ; that, in the same year, the said plaintiff paid to the defendant the full amount of the purchase money, and took from him a bond, conditioned to riiake a title for the whole of the said land in fee simple; that afterwards, to wit, in the winter of 1840 and 1841, the county of Cleaveland was established and the county seat was located at a town called Shelby, near which the said land was situate ; that, by this means, the land became enhanced in value; that the said plaintiff, Love, sold his interest in the said land to the other plaintiff, Howesby, for a valuable consideration which has been paid; that afterwards and after the location of the said town of Shelby, the defendant became dissatisfied with his contract, and refused, upon application of the plaintiff, to convey as he had contracted, declaring that he would forfeit his bond. And the bill prays for a specific performance of the contract.
    The answer admits the death of Daniel Gamp, and that his heirs were as set forth in the bill. It also admits the contract mentioned in the bill, and that the purchase money was paid to him by the plaintiff, Love. It avers, that the plaintiff Love, knew, at the time of the contract, that the defendant owned only one sixth, being his share in the land, and a life estate in another sixth, and that the defendant was to make title to the said land, whenever he could procure a conveyance from the other heirs. It denies that the defendant ever purchased the titles of the other heirs, but it states, that, after reasonable exertions on his part, since the time of the contract, he has been unable to procure from the other heirs their titles. It admits that Howesby has bought the interests of Love, and that a title has. been demanded of the defendant, which he declined, on account of his inability, as above stated.
    Replication was made to the answer, some depositions .of little importance were taken, and the cause, being set for, heaving, was transmitted to the Supreme Court.
    
      
      Guión, for the plaintiffs.
    
      Lander, for the defendant.
   Pearson, J.

We think the plaintiffs are entitled to a specific performance of the contract. The defendant says, he owns one sixth part in fee, and a life estate in 'one other sixth part, and this he is willing to convey; but he says he does notown the other shares, and, “after reasonable exertion, since he made the contract, has been unable to procure the title of the other tenants in' common, who 'are unwilling to sell” and ho is therefore unable to comply with his contract. The question is, under these circumstances, will a Court of Equity decree a specific performance, or decline to interfere and leave the plaintiff's to their remedy at law. One, 'who, for a valuable consideration, enters into an agreement, is bound in conscience to perform it. A Court of law can only give damages for a breach — this remedy is in many cases inadequate. A Court of Equity will do full justice, and, addressing itself to the conscience of the party, will require a specific performance of the agreement. This jurisdiction forms one of the great heads of equity, and in the opinion of Lord Hardwicke, “the most useful one.” Pern v. Lord Baltimore, 1 Yes. 446. Nothing should prevent the exercise of this most useful and well established jurisdiction, 'but the strongest and most controlling considerations. It a husband agrees to procure his wife to join with him in a conveyance of her land, and the. wife refuses to do so, it seems by the modern cases, that a Court of Equity '■will not decree a specific performance 1 Madd. ch 311. Sugdenon Vendors 151. There are cases, in which the husband has been confined to the Fleet, until the wife agreed to join in the conveyance ; and, in one case, the husband, alter being confined for many years, was discharged, it appearing that the wife could not be induced to make the conveyance; 5 Ves. 548 and 8 Fes. 848. These cases show, with what relucTéyice Courts of Equity stand by and permit a party to deprive another of the benefit of his contract. But it has recently been held, that the Court will not interfere, upon two considerations. The vendee knew, at the time of the contract, that the husband did not own the land, and might not be able to perform his agreement; he, therefore, has no right to complain, if he is left to his remedy at law, upon its appearing, that, after a bona fide effort., the husband is not able to procure the wife’s consent. And, in the second place, because, if the husband be decreed to perform, he will compel the wife, who is under his power, to convey ; and the wife ought not to be exposed to this compulsion on the part of her husband. It may be, but upon this we give no opinion, that where the vendee knows that the vendor has not the title, and takes a bond or covenant, that a third person will be procured to make a conveyance, Equity will not decree a specific performance, if it appears that the vendor has made proper exertions to procure the conveyance from such third person ; because the first consideration, above referred to, applies with full force. As if a father, seized as tenant by the courtesy, sells in fee simple, and covenants that he will procure conveyances from his children,’when they come of age. If they refuse, after proper efforts on the part of the father, JEquity may decline to decree aspecific performance and leave the vendee to his remedy at law, this being a state of things, which he might have expected and as to which he took the chances This result would seqm to follow from the reason of the thing, but in respect to that we give no opinion upon it. No case makes such an exception to the general jurisdiction to decree specific performance, and it is only adverted to, for the purpose of illustrating the next-proposition, upon which this cause turns. Oliver v. Dix, 1 Dev. & Bat. Eq. 158. If the vendee does not know, that the vendor lias not the title, there is then no reason, why he should n.ot be decreed to perform his agreement; and if he if put to great inconvenience and expense to enable him tc obey the decree, it will be the consequence of his own .act, and he will not be allowed to offer such an excuse for not doing justice. When a vendee seeks to rescind a contract, because of a defect of title in the vendor, the latter is allowed time to complete his title, until the hearing. Clanton v. Burgess, 2 Dev. Eq. 13. As a dofectof the title will not excuse a vendee, provided it can be .made good ; upon ground of mutuality, it should not excuse a vendor. As the vendee cannot discharge himself, should the land depreciate in value, so the vendor should not be allowed to discharge himself, if the value is enhanced. In this case it does not appear, that the plaintiff, Love, knew that the defendant did not have title. The bill avers, that the defendant did have title, or did have full authority from his co-tenants to sell. The defendant denies, that he had title to the whole, and insists, that the plaintiff had notice of his want of title ; but he offers no proof of the fact, and his covenant is to convey or cause to be conveyed the whole in fee, and he admits that he has received the price of the whole. As to the averment, that he had authority from his co-tenants to sell, the defendant is entirely silent; leaving the inference that he either had such authority, or was guilty' of a fraud in receiving the price of the whole. But, if it be conceded, for the sake of argument, that this Court will not make a'decree, requiring a party to do that which it is clearly out of his power to do, as it may amount to perpetual imprisonment, there is, in this case, no sufficient allegation and no proof whatever, to raise the question. The defendant avers generally, that, after reasonable exertion, (and what amounts to it, be chooses to decide for himself,) he is unable to procure tb(e co* tenants to convey. A conscientious mau would not consider this a sufficient apology for the breach of an agreement, creating no legal obligation, when offered as a reason, why a Court of Justice should not compel the performance of a legal obligation. It is mere mockery! The defendant should have set out, what he had done— what price he had offered to pay ! so that the Court might judge, whether his exertions had been “reasonable,” especially as the averment in the bill, that the value of the land had been, greatly enhanced, since- the contract, by the location of the town- of Shelby on adjoining land, creates, against him-, the strongest suspicion, and impeaches his motives by the suggestion,, that, if he has title, he refuses to perform his agreement for the sake of gain— or, if the title is outstanding, he is unwilling, to offer his co-tenants what is now a fair price. A man of proper feeling would be unwilling to avail himself of the gain, and would be willing to submit to much loss rather than violate his solemn agreement. A Court of Equity acts upon the conscience, and enforces a specific performance, and will require this unconscionable gain to be given up, or this loss to be incurred, if it be necessary to enable him to do that, which he has undertaken to do, and for which he has. received the full consideration. There must.be a decree for a conveyance to the plaintiff, Homes-by,. who is the assignee of-the other plaintiff Love, and the defendant must pay the costs.

Per Curiam.

Decree accordingly.  