
    Haffner’s Devisees vs. Dickson’s Heir.
    The specific per» formance of a bond for conveying1 a tract of land «executed m 3764, decreed on a hill filed in 1792.
    A. decree in favour of the complainant,, but without costs, ivas, on appeal by the defendant^ reversed as to the costs, and affirmed as to the residue; and it was decreed that the compl’t. t should recover lus costs in both courts.
    Appeal from a decree of the court of chancery. Tha bill was filed by the present appellee, (the complainant in the court of chancery,) on the 9th of July 1792, against Frederick Haffner, who died without answering the bill, and a bill of revivor was afterwards in May 1796, filed against his sons and devisees, the present appellants. The facts stated in the original bill, bill of revivor, and in an amended bill, are, that Frederick Haffner, on the 11th of May 1764, entered into a bond to James Hickson, the brother of the complainant, conditioned, that if Haffner, his heirs, &c. “do and shall well and truly convey and make over unto the above named James Dickson, his heirs, &c. by a good and sufficient deed, of one full half of the Resurvey on the Discovery, and now patented and called Haffner’s Choice, on or before the first day of July next ensuing the date hereof, then,” &c. At the foot of the bond, and before the signature of the obligor, it was thus written: “It is to be remembered, that, before signing and sealing, it is agreed, that out of the above tract 100 acres shall be laid off for Daniel Maddes, and then one half of the re mainder is to be conveyed to Janies Dickson. ” That the land is called and designated in the bond of conveyance by a wrong name. That Haffner originally, on the 10th of November 1752, obtained a grant for 45 acres of land, call-*.d Haranaer s Discovery. That a warrant afterwards issued on the 1st of February 1760, and renewed on the 22d »f September 1761, to resurvey the land under the name of Haverners Discovery. That a certificate was returned, dated the 10th of December 1761, and patent issued to JIaffner for the land by the name of The Resurvey on Havenear’s Fancy, on the 29th of September 1762. That by the table of courses annexed to the certificate of The Resurvey on Havcnear's Raney, it appears that Haverner’s Discovery was the land resurveyed; and by the rent rolls it appears that The Resurvey on Havanor’s Fancy was originally called Havanor’s Recovery, and contained 45 acres. That the land patented under the name of The Resurvey on Havenear’s Fancij, and the laud which Haffner obliged himself to convey by the bond of conveyance, is one and the same tract of land, and not different. That Haffner, being seized and possessed of the land, came to an agreement with Dickson relative to the sale of a moiety of the same, deducting 100 acres, and that Dickson paid the full amount of the purchase money agreed on, and in consideration thereof, Haffner executed the bond to convey the moiety to Dickson in fee simple. That Dickson died, after the payment of the purchase money, and the date of the bond, in possession of a moiety of the land, and left the complainant his heir at law, who is in equity and justice entitled to a conveyance thereof, pursuant to the bond. That RIaffher is since dead, having by his will devised the land, of which the complainant claims part, to Ms sons, the defendants, in fee simple, as tenants in common, &c. Prayer — that it he decreed that the defendants convey a moiety of the land, according to the bond to the complainant, in fee simple, together with such further and other relief in the premises as complainant’s caste may deserve, &c. The answers of the defendants state, that their father did «wn a tract of land called Havencar’s Discovery, but no warrant of resurvey was obtained by him to resurvey that tract; but it was to resurvey RIavenar’s Fancy, and under that warrant a survey was made, a certificate returned, and a patent granted to their father, for a tract of land called The Resurvey on Havenear’s Fancy, containing 695 acres, of which their father was seized and possessed until his death; and since his death the defendants have been in the ?eizin and possession, and are now seized and possessed thereof. That they were not privy to the contract entered into between their father rind Dickson, and only know what land he sold to Dicksons, if any, from the papers exhibited by the complainant; and they do not know, nor cari they' admit; that it was any part of The Resúrvey on Havencar’O Fancy, for the conveyance of which the bond was given. That they understood from their father, that having executed a survey many years ago, he included more land therein than he thought himself able to pay for in the land office, and therefore agreed with Dickson to let him have half the land so taken up, provided he would pay half the caution money, and other expe’nses attending the securing and making perfect the title to the same. That they often heard their father say, that it was in consequence of this agreement, and upon no other consideration whatsoever, that lie passed his bond to Dickson for the' conveyance of certain lands in the bond mentioned, but which bond they have never seen. That they have been informed, &c. that when the certificate of survey for the land thus contracted for was returned to the land office, Dickson w'as either unable or unwilling to pay his proportion or dividend of the expenses necessary to secure the land; and that their father was compelled so to do, and did actually' make sacrifices to borrow and procure the money to secure the land, and did actually pay for the whole himself; and that their father never did receive from Dickson any valuable, or other consideration, for the bond which he executed in manner aforesaid. That they have also understood from their father, that no writing of any kind ever passed to him from Dickson, respecting the laud; that their father, being an illiterate man, and reposing great confidence in Dickson, took no writing from him on the business. They do not believe that Dickson ever had possession of any lands whatsoever in consequence of the bond; on the contrary they have been informed, &c. that Dickson, well knowing lie was not entitled to have a conveyance, &c. never did, during his whole life time, ask their father to convey, &c. They insist upon the act of parliament, or statute of limitations, made in the 21st year of the reign of King James the I. and pray the benefit of that act. That after' the great length of time which hath elapsed since the execution of the bond, and before any'bill filed to obtain a specific performance thereof, they are informed the complainant is not entitled to relief, and they rely on the said length of time to bar the complainant of the relief prayed, and pray to have the benefit thereof at the hearing, as fully as if they had pleaded the same, and relied thereon by way of plea, &c.
    
      Commissions were issued, and testimony taken thereunder, proving the hands writing of the witnesses to the bond, who were dead. That a warrant of resurvey was taken out on the 27th of November 1784, in the joint names of Haffner and Dickson, at their request, to resurvey a tract of land called Heffner’s Fancy, but which was not executed. That the complainant was brother and heir at law of Dickson. That in the year 1784, on executing a commission to perpetuate the bounds of the land called The Resurvey on Ilavaner’s Fancy, issued by and in the name of Frederick Hammer, the complainant claimed a conveyance for his share of the land of Haffner, according to the bond which he exhibited to Haffner, executed by him to Dickson; that Haffner acknowledged it, and said Dickson had paid all the money that could in justice be demanded of him for his part of the land. That Haffner, in stating objections to his conveying the land, said he had paid taxes on it. That as there was some dispute about some part of the land, and as it was intended by both to sell, it was finally agreed to wait the result of that dispute. That at another time the complainant called on Haffner for a conveyance of one half of the land Haffner then lived on, who alleged he had paid taxes, &c. as much as he thought the land was worth. That complainant proposed to make him payment for all the money he had advanced on the land, on his making a conveyance, which Haffner refused to do. That Haffner admitted that the land he lived on was the land the complainant was entitled to, if he was entitled to any, and is the same land mentioned in the bond of conveyance, and that it is a, tract of land called The Resurvey of Havenear’s Fancy. That Haffner afterwards promised to settle the business In a peaceable manner as soon as he settled some dispute about the land with one Shehawn•
    
    Hanson, Chancellor, (July 19th, 1803.) This cause coming on to be heard, was most ably debated hy the counsel on each side. The Chancellor has never heard a cause which appeared to him more difficult to decide, so as to secure an affirmance by the court of appeals. However the Chancellor may differ in sentiment from that tribunal, he has always considered it his duty to determine according to their known opinion. But in various causes, which have been carried to that tribunal, and in which the question was, whether or not an agreement respecting land should be enforced, they have decided, without laying down their principles for the future government of the chancellor. In the present instance, if he could divine how the court of appeals would decide, he would certainly decide accordingly, as indeed ,he wodld in every other case. Sometimes it has appeared to him that the court of appeals has considered it proper to enforce almost any agreement whatever. At other times it has appeared to him that they have adopted a strictness beyond any thing to be met with in the books.
    That the agreement wdiich Dickson prays this court to enforce, is uncertain, and that it lias lain so long dormant, as to have no title, agreeably to established principles, to be enforced, has been contended on the part of the defendants. It is also on their part contended, that there is no Sufficient proof of its having been performed on the part of James Dicksori, under whom the complainant claims. If the defendants are right, the complainant is not entitled to relief. But the complainant denies every allegation, and the parlies are at issue upon them.
    It has always been a practice of the Chancellor, and he probably will always consider it right, where a cause is doubtful to himself, where his decision, whatever it may be, is in his own opinion just as likely to be reversed as to be affirmed, and where lie can propose such a compromise as appears to him likely to coincide with the judgment of honest sensible arbitrators, chosen by the parties, it has always, in such cases, been his practice to propose that a decree pass by consent, which shall at once end all controversy.
    In the present case he proposes that the parties agree, by writing here filed, that a decree pass to the following effect: 1. That each party bear his own costs. 2. That the defendants convey to fhe complainant two thirds of the land in question; that is to say, two thirds of what the complainant claims; or that the said land be sold by a trustee, appointed by the Chancellor, who shall act under the Chancellor’s control, and report his sale, which shall not be valid until ratified by the Chancellor, and who shall receive a commission as in similar cases; and that the nett proceeds shall be divided between the complainant and the defendants, two thirds to the complainant, and the other third to the defendants. 3. The complainant shall release to the defendants all claim to profits on the land by him claimed.
    The Chancelloi requests that a copy of this recommendation be served by the complainant on the defendants, unless he, (the complainant,) disapproves of it. If he shall declare in writing to the Chancellor his disapprobation, or if the defendants, on being served, shall not, within one calendar month after service, express their approbation, the Chancellor will proceed to decree to the best of Ills judg • ment. The complainant is requested to decide as early as conveniently may be.
    Hanson, Chancellor, (August 1st, 1803.) The complainant having by his petition to the Chancellor, and filed in the cause, agreed to waive all right to a decree to account for the rents and profits of the land in controversy, reserving to himself all right and equity to an account of those rents and profits in any future bill for an account for the same, Decreed, that the defendants shall forthwith, by a deed or deeds of bargain and sale, to be duly executed, acknowledged and recorded, convey unto the complainant, and, his heirs, as tenant in common, one undivided moiety or half part of, in and to, all that tract of land in Frederick county called The Resurvey on Havenear's Fancy, which was originally granted unto Frederick IJavencar, now deceased, by patent bearing date on the 29th day of September 17"62; provided always, and liberty is hereby reserved unto the complainant, to file a new bill or bills against the defendants for an account of the rents and profits of the said land; and also reserving to the complainant all equity which he now hath or may have to an account of the said rents and profits; the Chancellor so decreeing, because the complainant hath filed a writing to that purpose, and the Chancellor, therefore, being excused from giving any opinion on the subject of profits. Also decreed, that the defendants and the complainant shall each bear his owncqsfa in this suit expended,
    
      In decreeing thus, the Chancellor flatters himself, that he pursues the opinion of the court of appeals, or rather-the principles which must be supposed to have governed them in the late case of Brotone vs. Browne, (1 Harr. §■ Johns. 430;) and he takes the liberty of referring to his own recommendation in this court filed, which, as he was informed by the complainant’s counsel, would be rejected by the complainant. He repeats, that in decreeing, as he does, he conceives that he pursues the principles which governed the court of appeals in the recent cause of Browne vs. Browne, in which his decree was reversed. He may be mistaken with respect to. those principles, which indeed the court of appeals has not explained; but he flatters himself that the important tribunal of the court of appeals, on reflection, will perceive the propriety of always explaining the grounds on which they reverse a decree, in order that the Chancellor may in all future causes obey them, as his duty requires him to do. It is notoria ous, that in many causes a variety of points of law and equity are disputed between the parties; a simple affirmance or reversal does not, cannot inform the Chancellor-on which of the points they have decided the cause.
    From which decree the defendants appealed to this court, and the cause was argued before Chase, Ch. J. Bu-t chanan, and Gantt, J,
    
      Johnson, (Attorney General,)
    for the appellant, contended, 1. That it was not a matter of course to decree a specific performance of a contract. He cited 2 Pow. on Cont, 221, 233, 242, 2 Vern. 415. 2 Com. Dig. tit. Chancery, (2 C. 16.) Buxton vs. Lister, 3 Atk. 383. 2. That the length of time, before the application for relief, ought to prevent its being granted, He referred to 2 Pow. on Cont. 260,
    
      Key, for the appellee,
    in his argument cited Peake's Evid. 56, 57.
    
   The Court oe Appeals,

Decreed, “that the decree of the Chancellor, so far as the same relates to the costs in the court of chancery, be and the same is hereby reversed; and that the appellee recover against the appellants the costs by him expended in the court of chancery. ” Also decreed, “that the residue of the said decree be and the same is hereby affirmed, except so far as the said decree operates to compel the appellants to convey any interest in the one hundred acres of land to be laid off for jDaniel Madden, mentioned at the bottom of the condition of the bond executed by Frederick Ilaffher to James Dickson, dated the 11th of May, 1764, and exhibited in the bill filed in the cause; and as to the said one hundred acres of land, the said decree is reversed.”

“And for the purpose of carrying this decree into effect,” it was further decreed “that the Chancellor pass a decree, thereby directing the appellants forthwith, by a deed or deeds of bargain and sale, to be duly executed, acknowledged and recorded, to convey unto the appellee, and his heirs, as tenant in common, one undivided moiety or half pari of, in and to, all that tract of land, lying in Frederick county, called The Resurvey on Havenear’s Fancy, which was originally granted unto Frederick Ravenear, now deceased, by patent, bearing date on the 29th day of September 1762, except one hundred acres of the said land, stated on the bond of conveyance executed by the said Frederick Ilaffner to James Dickson, dated the 11th of May 1764, and exhibited in the bill in this cause, to be laid off for Daniel Madden; and the deed or deeds, to be executed in pursuance of the said decree, to contain an exception as io the said one hundred acres. And by the said decree the Chancellor shall direct the said appellants, to pay to the said appellee, the cosis in the court of chancery.” And it was further decreed, “that the appellee recover against the appellants the costs by him expended in this court.”  