
    
      Mason vs. Chambers, et vice versa.
    
    October 8.
    
    Error to the Clarke circuit; Riciiaed French, Judge.
    
      Specific performance. CovcnaiUor and covenantee. Covenant to convey land. Injunctions. Circuit judges. Jurisdiction, Chancellor.
    
    'ChancbrV. Case 127.
   Chief Justice Robertson,

delivered the opinion of the court.

In 1818-, Chambers sold to Mason a tract of land, supposed to contain one húndréd and ten acres, in Fayette county, for the pricé of $35 an acre. A small portion of the consideration was paid within á few weeks after the d ate of th e contract. By the contract, Mason covenanted to pay the whole amount of the consideration on the 25th of December, 1818; and Chambers covenanted to convey to him, at the same time, thé legal title, by deed of general warranty.

Mason lias never paid nor tendered the amount due for the land. Chambers did not make nor tender a deed for the land on the 25th of December, 1818. But before the 23d of March, 1819, he had offered to convey the title, if Mason would pay the money; and was able and no doubt willing to convey on the 25th December, 1818.

Mason had refused to rescind the contract and had attempted to sell the land, and had negotiated a sale to Mathews Flournoy, for $200 more than he had agreed to pay Chambers. On the 23d of March, 1819, Mason and Chambers met at Flournoy’s house, in order to carry into effect their executory contract, by the payment of the consideration to Chambers and the conveyance of the title to Mason. It was then and there mutually agreed that Chambers should receive $2000 from Flournoy and the promissory note of Flournoy, on a short credit, for the residue of the consideration, and should make a title to Flournoy as he had covenanted to make it to Mason.

This parol agreement was broken up because Chambers refused to he bound otherwise to Flournoy, than lie was bound to Mason, for the title; and the parties dispersed without doing any thing.

Chambers had a deed prepared on that day, and was ready and willing to deliver it on the payment of the money.

Afterwards, Chambers sued Mason for the consideration, and obtained a judgment in the Montgomery circuit court. This judgment was enjoined by Mason, who prayed, in his hill, for a rescisión of the contract on two grounds.

1st. Because Chambers had not made the title, nor offered to make it on the day on which he engaged by his covenant to make it.

2d. Because, as the bill alleged, Chambers could not convey a complete legal right. On the final hearing, the circuit court dissolved the injunction and dismissed the bill. On an appeal to this court, so much of the decree as decided that the contract should not be rescinded, was affirmed; hut the cause was remanded with instructions to ascertain the profits of the land, from the 25th December, 1818, and to perpetuate the injuretion for their amount; whereby, in effect, the specific execution of the contract was decreed; see Mason vs. Chambers, 111 Mon. 318.

In February, 1828, that suit was abated by the death of Chambers, and nothing more-seems ever to have been done with it. But during its pendency Mason sued Chambers in the Fayette circuit court, in an action of covenant, for failing to convey to him the legal title to the land. The writ issued on the 1st of January, 1824.

On the 28th of January, 1821, this suit in chancery was instituted by Mason, against Chambers, in the Montgomery circuit court. The object of the bill was to enjoin the enforcement of Chamber’s judgment, until Mason should obtain a judgment against him in his suit in Fayette, and then to set-off the one judgment against the other, on the alleged ground, that Chambers would be otherwise unable to satisfy the judgment which Mason expected to obtain against him.

The injunction was accordingly awarded; and in January, 1821, Mason obtained a judgment in the Fayette circuit court for damages against Chambers, exceeding in amount, the judgment of Chambers, against him.

Chambers made his answer to Mason’s bill, a cross bilí, in which he prayed for a specific execution of the contract, and for an injunction, in the mean time, against the judgment of the Fayette circuit court.

In April, 1828, the circuit court of Clarke, to which the suit had been removed on Mason’s application, made an interlocutory decree, directing an assessment of the rents and profits of the land which Chambers had continued to occupy. And at the succeeding term, the court rendered a final decree, whereby, the heirs of Chambers, in whose names the suit had been revived (he having died) were directed to convey to Mason, and Mason was directed to accept the legal title to the land, Mason’s injunction was perpetuated at the costs o.f Chambers’ heirs, for the amount of rents assessed by the commissioners appointed for that purpose; the injunction for-the remainder of the judgment dissolved with 10 per cent damages; costs on the cross bill for a specific execution decreed to the executors and heirs of Chambers, but so much of the cross bill as prayed for a perpetual injunction to the judgment of the Fayette circuit court, was dismissed. As to this last matter the decree says; “and the court overrules so much of the prayer of the cross bill as seeks a perpetual injunction against the aforesaid judgment of the Fayette circuit qourt, as this court disclaims any jurisdiction to enjoin temporarily or perpetually the judgment of any other circuit court. But this court is of opinion, and therefore decree, thaf the defendant is entitled in equity to a perpetual injunction against the collection of said judgment (in as much as by this decree the complainant has obtained the (and aforesaid) by an application to the Fayette circuit court.” ‘

If covenantee has fairly ob-tamed a íreaXof f°r covenant to convey .land, and co venantor alone was delinquent, unless chancellor had possession of the case before judgment covenantee cannot be deprived of his judgment or Compelled to accept a title.

From this decree, each party appealed; Mason, because the court decreed a specific execution of the contract; and Chambers’ representatives, because the court refused to perpetuate the injunction to. the Fay-ette judgment.

1. In reviewing the de,cree, we shall first consider so. much of it as is complained of by Mason.

When a covenantee has obtained a judgment fairlyr f°r a breach of a covenant for the legal title to land which has resulted from the negligence or delinquency ^ covenantor only, and the chancellor had not got-*6n possession of the cause before the judgment w as obtained, the party holding it, should not be deprived of its benefits, nor compelled to accept a title to the land,

But this comprehensive rule of equity, which, it is believed, has no exception, when it is properly understood and applied, does not apply to this case.

The failure to convey the title on the 25th of December, 1818, is not attributable exclusively, if at all, to the negligence or improper delinquency of Chambers. He was able to convey. He was willing to convey. He was not bound by his contract to. convey before the consideration was paid or tendered; the payment of the price of the land, and the conveyance of the title were to be simultaneous. According to strict law, Chambers should have tendered a deed “on the day,” but it was equally the duty of Mason, to tender the money “on the day.” Each party failed; neither seems to have then contemplated any technical advantage; and Mason’s subsequent conduct proves that he did not complain of any delinquency in Chambers, and did not mean to seek any advantage from his omission to tender a deed, before the money had been paid or oflérred. He afterwards endeavored to sell the land, and evinced--i— an unwillingness to rescind the contract. We have no reason to doubt, that if Mason had payed or offered to pay the money on the 25th December, 1818, he would have received a conveyance of the title; nor are we permitted to doubt, that he might, at any subsequent time, have obtained a deed for the land, by paying the consideration. We cannot, therefore, consider Chambers as alone responsible for the mutual breach of the covenant. He has been guilty of no fraud; he is not chargeable with bad faith or with'wilful or culpable negligence.

When ^ntoi^ancT covenantee have been should,^in M equity, be ra-b®”e" juiced1. P''°'

Judgment for breach of cov-c°£' tainedbycov" enantee dur-pendency chancery brought by himself to retract ^regard-. edas’“wre/air-». ln" obtained,

If Mason had not failed to comply with the covenant, there would, as we believe, have been no breach of it. The best attitude for Mason, in which the case can be placed, is that in which each party will appear equally negligent and equally delinquent. Therefore, neither of them should be allowed in equity (which is equality,) to be exclusively benefitted, or subject to the sóle loss of their mutual failure. Moreover, when Mason was unwilling to rescind the contract and professed to be desirous for its specific execution, Chambers tendered him a deed, but he failed to tender or pay the consideration; and Chambers held an equitable lien on the land.

The judgment was not “'fairly” obtained against Chambers. Pending, the suit brought by Mason himself, for a rescisión, and in which Chambers sought and eventually obtained a decree in effect, for a specific exe-pution, it was unfair and unjust for Mason to attempt to obtain a judgment at law for a breach of covenant, Bj his action at law, he was evidently struggling for an unreasonable advantage. And to permit him to avail himself of the benefits which might result from both suits or either of them, as either might terminate most advantageously to him, would be prostituting legal remedies to purposes of injustice and chicanery. As, by his own act and for his own benefit, he had placed the cause in the possession of the chancellor, he should adhere to his election, and not be suffered to hold an ■ undue advantage, afterwards obtained improperly at law. He cannot complain that the chancellor has deprived him of the benefit of his judgment, when he had given the chancellor jurisdiction of the whole case, before the suit was brought on the covenant.

The chancellor had possession of the cause before the suit at law was brought, and therefore, should be allowed to render such decree as justice dictates and such as he should have given, if no judgment at law had ever been obtained. The former decision by this court should have concluded the controversy.

The record does not exhibit any sufficient reason for withholding a decree for a specific execution, wherefore, the decree to that extent, is approved and affirmed; see Cotton vs. Ward, III Mon. 304; Hughes vs. McKenney, VI Mon. 40; Cook’s adm. vs. Hendricks, IV Mon. 500. And so far, we perceive no error in the principle or details of the decree.

In both suits in chancery, Mason was complainant* The decree in the first suit was rendered against him in 1823; and while that ease wus depending in this court on his own appeal, he commenced his suit at law and this, suit!

He was premature. lie should have awaited the decision on his appeal. If he had done so, there could have been no further difficulty, and should have been no further litigation.

2d. If the chancellor had jurisdiction to enjoin perpetually, the judgment of the Fayette circuit court against Chambers, he ought to have done so. Having decreed a specific execution of the contract, he might, without any express injunction proceed against Mason for a contempt, if he should attempt to enforce his judgment; because, one of the direct consequences of a specific execution is, that Mason has no right in equity to his judgment for damages for a breach of the contract, and the spirit and very substance of the decree would be violated by an enforcement of the judgment.

Nevertheless, if the court had power to enjoin the judgment, Chambers’ representatives were entitled to a decree to that effect, and should not be left to any other, and collateral resource for protection.

It becomes, therefore, material to determine whether the chancellor in Montgomery or Clarke, had powoi to enjoin the judgment of the Fayette circuit court?

When subject ^per°ona]Sor the remedy transitory, fenXnt gives' jurisdiction to thechancellor thecommon law judge.

If this question depended on principié and analogy only, we should feel no difficulty in maintaining the power of the chancellor in Clarke or in Montgomery, to enjoin the judgment of the Fayette circuit court.--• The cause of action was transitory. The judgment, therefore, is for most purposes, ambulatory. It is not essentially local in its character or effects. It may be enforced by action of debt; wherever the obligor or his representatives may be either in or out of the state. It is personal and will follow them.

If the judgment might be enforced out of Fayette county, we perceive no reason why its enforcement might not be enjoined out of Fayette county. Either the person or subject matter, must give jurisdiction, When the thing is personal or the remedy transitory, the person of the defendant gives jurisdiction to the chancellor as well as to the common law judge. An injunction does not operate directly on the judgment, nor on the judge who rendered it. Its action is on the person of the judgment creditors. It acts in personam, And the judgment is enjoined by the action of the chancellor on the creditor, so as to prevent him from enforcing his judgment by execution. In enjoining a judgment, the. chancellor does not assert nor assume any supremacy over the judge who rendered it. The judgment is not reversed or corrected.

It is admitted to be right in law, but as its enforcement is deemed inconsistent with equity, the chancellor, by acting, not on it or the judge who gave it, but on the person of its holder, enjoins it; and therefore, according to the principles of the common law, the person of the defendant in such a case, will give jurisdiction; see I Mad. Ch. 130.

Upon principle, the chancellor sitting in Fayette should have no more power over a judgment of the common law judge of Fayette, than the chancellor, setting in any other county, might possess.

The powers of a court of general jurisdiction will not be restricted, except by positive law, or by the nature and purposes of its institution. ' And we are clear, that the chancellor had power to enjoin the judgment in this case perpetually, unless his jurisdiction has been curtailed by express statute. ,

Circuit courts have no more ■jurisdiction in injunction cases than the quartersession •and district 'courts had. Quarter session and district courts had no power to perpetuate an injunction to a judgment rendered by a court out of their counties 'or districts.

The second section of an act of 1798; (II Littell’s Laws, 221,) declares, “that no injunction shall be granted by any court of quarter sessions to stay proceedings in any suit at law, out of their county.”

The third section of the same act declares; “that no injunction shall be granted by any district court or any judge thereof, to stay proceedings in any suit at law out of their district.”

By an act of 1800, it is provided; “that any judge of the district court may grant an injunction in any district in the state; but such injunction shall be tried in the same District as it would have been, if this provision had not been made; II Litt. Laws, 405; 5th sec.

These statutory provisions were unrepealed, when the circuit courts were established in 1802.

By the 7th section of the act establising circuit courts, (I Dig. 367,) it is enacted, among other things, that, “the said circuit courts, within their respective circuits, shall have the same power; authority and jurisdiction, which the district courts and quarter session courts are vested with; and the said circuit courts shall be governed by the same rules and regulations, by which the said district and quarter session courts are now governed, so far as .they are consistent and compatible; and where they are inconsistent, the said circuit courts shall be governed by the rules and regulations of the district courts.”

None of the foregoing provisions of the statutes of 1798,1800, and of 1802, have ever been repealed directly or indirectly, so far as we have been able to ascertain. A survey of these several enactments will leave little or no room for doubt, that the circuit courts have no more jurisdiction in injunction cases, than the tribunals which they supplanted possessed; and that these last had no power to perpetuate an injunction to a judgment rendered by a court out of their counties or districts. However ineligible or inconvenient such a restriction may be considered, the legislative wisdom has thought proper to prescribe it. A rational construction of the several statutes will not authorize any other conclusion.

We know of no statute since 1802, which has extended the'jurisdiction of the circuit courts oyer injunctions, beyond the limits which had been defined by the acts which have, been quoted.

Circuit judgeshave power to /mmiinjunc-to tí^state”" n And district judges had like power

Bill of judges wüflfo”0" onJyintke c°u’jywhere was^rendered. Chancellor ’IP.!10 juris-rpnJd"dr^ in another county.

But, where chancellor filed ¡br a special object. he may enjoia judgment renderedjn

The cirrcut judges have been vested with power to grant injunctions to cp r.C in any part of the state. But the uisi.net judges nad the same autnority. lhis should not be construed lo give die power to Vy the cases and perpetuate the injunction''. The act which is authorized is only ini.iativc. And the delegation of such authority impbes that other .vise, itwouldnot exist; and consequenl.lv, that the power to perpetuate in such cases, was considered as not existing. This isa strong argument to show that it does not now exist; because the act giving the power to grant, has withheld the right of perpetuating injunc.ions out of the county in which the judgment was rendered.

The court of appeals in Virginia has decided that “the several superior courts of chancery have power to grant injunctions lo the judgments of ali courts of common law within their respective districts, and not otherwise, the place where, the court at law is holden and not the residence of the parties furnishing the rule of jurisdiction in such cases; Cocke, et al. vs. Pollock, et al. III. and M. 499.

The statutes of Virginia gave no more power to ¿-rani than to perpetuate injunctions. They did not cx-pressly (as do those of Kentucky) circumscribe the jurisdiction by territorial limits in injunction caces; nevertheless, though they are not as express as those of this state, the exposition given in the case, in I H. and M. has been acquiesced in. '

We feel bound to conclude,, that, if an original bill , to jr[ had been hied by Chamber in Montgomery or Clark, t enjoin the julgmnt in Foy'U\ the chancellor wou] have had no jurisdiction.

But notwxthstandu'g this conclusion, we aie of opinion that the peculiar circumstances of this case gave the judge in oiaik, tee power to perpetuate the mjunction.

Cases may occur, in which a chancellor . having, by locality- or otherwise, jurisdiction of a bill, filed for a special object, may enjoin the judgment of a court some other than- that in vrhich he adjudicates provided such an injunction be incidental, merely to the decree on the subject matter, over which he had properly taken cognizance.

If plaintiff in judgmeutof one county file a bill of injunction in another; he puts the chancellor in possession of the whole case and he way enjoin the judgment perpetually, i: a final determination of the case require it.

Mason, and not Chambers, brought the case into the Montgomery, and afterwards into the Clarke circuit court. When he filed his bill, seeking a decree for a set-off, Chambers had a right, in his answer, to resist the set-off, by claiming a specific execution.

By filing his bill in. Montgomery, Mason put his whole case, in all its ramifications and consequences, in the possession and power of the~chancellor, to whom he appealed. If a specific execution were deemed just and equitable, the chancellor would, of course, decree it, and refuse, for that reason, the set-off. And having possession of the case and jurisdiction over it, he should have power to close it wholly, and thereby prevent the confusion, and incongruity which might result from two suits pending in different courts for the ■ same thing in effect; one in Clarke for a specific execution of the contract, and the other in Payette, for a perpetuation of an injunction to Mason’s judgment for an alleged breach of the contract by Chambers, and which judgment would be virtually enjoined by a decree for specific, execution. After obtaining a decree for a specific execution, in the suit brought by Blasón himself, Chambers’ representatives should not be driven to the necessity of applying, by a new bill, to the chancellor in Fayette, to prevent (he enforcement of Mason’s judgment, the surrender of which, the chancellor of Clarke ■had, in effect, decreed.

The case which, in all its aspects, is an intieger, should not be partitioned between two separate and perhaps conflicting jurisdictions. Asthechancellor in Clarke had power to decree a specific execution, when he gave such a decree, he had all the subsidiary power which might be necessary to carry his decree into full and final effect. And to this end a perpetual injunction to Mason’s judgment, was a natural and proper mean. Mason having put himself and his judgment in the power of the circuit court of Clarke, may be compelled by that court, to submit to the decree; and in order to do this effectually, he must abandon his judgment for damages, to which he cannot be entitled, when, by a specific execution, he gets the land and its intermediate profits. The same chancellor who enjoined Chambers’ judgment, ought to have the power also, to enjoin that of Mason; otherwise he could not do justice. Besides, Mason never objected to the jurisdiction of the Clarke circuit court over his judgment.

Petition for a re-hearing.

James Trimble and Bledsoe, for Mason; Dana, and Hanson, for Chambers.

It was irregular to proceed with this case, whilst the other case remanded by this court was progressing. Indeed the whole procedure throughout in all the courts, common law and chancery, has been extraordinary. But as the parties seem, by mutual consent, to have neglected the first suit, and to have concentrated all their efforts upon this, we cannot, (as they have not invited it) notice any thing out of the decree in this case. It was improper for Mason to file his bill for a set-off or to sue on the covenant after there had been virtually a decree for a specific execution. It was also irregular for Chambers to ask another decree for specific execution. But the first case having abated, and the regularity of the proceedings in this case not having been questioned by either party, the decree should settle the whole controversy and close it effectually.

The circuit court ought therefore to have decreed that Mason should surrender, or not enforce his judgment in Fayette; having full power to enforce such a decree by operating on his person. The decree itself is anomalous, after disclaiming jurisdiction to enjoin the judgment, the court should not decree what the Fay-ette circuit court would or ought to da.

Wherefore, as the court erred in not perpetually enjoining the judgment of the Fayette circuit court,the decree is reversed, and the cause remanded for such decree to be entered.

The counsel for Mason filed the following petition for a re-hearing.

The counsel for Mason in these cases'conceiving that the decision herein is a departure from both principle and precedent, to the ruin of their client, respectfully ask of the court a reconsideration of the same.

This court in their written opinion herein have re^ cognized the main principle upon which Mason’s counsel did most sanguinely predicate success to their client in the decision. This principle as laid down by the court is, that “when a covenantee has obtained a judg-raeni fair1 y, for a breach of covenant, for the legal tide to land, which has resulted from the negligence, and delinquency, of the covenantee only, and the chancellor had not gotten possession of the cause, before the judgment was obtained, the party holding it should not be deprived of its benefits, nor be compelled to accept of a legal title.” But the court farther say, “this comprehensive rule of equity does not apply to this case. The failure to convey the title on the 25th December, 1818, is not attributable, exclusively, if at all, to ate negligence or improper delinquencey of Chambers. He was able to convey; he was willing to convey. He was not bound by his contract to convey, before the consideration was paid or tendered.”

If the facts and law, were considered by the counsel to be here correctly set down, they would certainly have no cause of complaint, and consider the decision as sanctioned by the plainest principles of law, equity, and natural justice; if uncontrolled, and un-ouched by previous adjudication concerning this veiy controversy. For'whére a part of the case that has been settled by this court heretofore, is brought to bear against Mason, it is presumed equally fair, that so far as the legal character and effects of his contract with Chambers has been also settled by the competent tribunal, the principles of the decision of this controversy, must be considered as so far settled and closed between the parties, in whatever shape, or at whatever time, the same may be again brought before a judicial forum. Believing as counsel must do, that this court, has solely in view to administer justice bctv»een parties, who may be before it, according to law, it would seem unnecessary, to state, that the most fearful evil in any government, claiming to be well ordered, is arbitrary discretion. Yet it may not be wholly unuseful or unapt to remark, that discretion with good men, is most likely to become arbitrary, when directed to an apparently just end. For in such cases the character of the functionary, and the end in view, seem to paraiize resistance to the dc-viation; though destructive of the harmony and safety of the law. This max'm, however, still stands as a wani ng beacon, s ra est stroilu^ubijiis cs-tvrigum aut inceriu /¡.” The safe guidance of principle and approved preceden', may sometimes occasion, seemingly, injustice or hardship, bu. t :c general good resulting from an adherence io rule, mast he siill paramount. The counsel will therefore proceed to suggest some views of the facts and law of the case, wh-c.i seem not to have occurred to the court in full force, or were overlooked by it.

.And 1st. As to the construction of the contract of the parties. This court say s now, as befoi e noticed, that Chambers “was not bound to convey, before the consideration (agreed to be paid) was paid or tendered."’ If this question, were now open, it is strenuously but respectfully urged by Mason’s counsel, that this construction of the contract between these parties is not law, either upon principle or precedent, and it needs no authority to prove., that the construction of the contract, must be the same, both in chancery and at law. It has indeed grown in.oa maxim that the rules of construction are the same in both courts, III El. Com. 435. Reeves, Dom. Relations, 390. And it is also a maxim, that chancery follows the law. it is true, that the powers and jurisdiction of the former extend further than the latter. Lord Holt, than whom an abler common law .judge never sat on the English bench,has in I Salk. 171, in-settling the nature of conditional contracts, as to precedent conditions, or-whose the obligation to perform by one party, is dependant on the performance of something by another, has clearly and correctly laid down the rules which govern by law in such cases. They are, “that in executory contracts, if the agreement be, that one shall rio’an act, and for the doing théreof, another one shall pay-, &c. the doing of the act, is a condition precedent to the payment; and the party who is to pay, shall not be compelled to part with his money, till the thing be performed lor which he is to pay.” "■But the same case and a train of decisions both in England and America, and in this court, vide Hard. Rep. 511, settle this sound distinction, “that, where the agreement on one side, is the consideration of the agree ment on the other, to do or forbear any thing, there, the parties having trusted to the law to enforce perform-anee, or to give indemnity, cannot justify at law nonperformance, because the other side has not performed.” This rule, and this distinction will no doubt be recognized by this court.

Indeed in the case, cited above, determined by this court, of Hancock vs. Vawter; the court uses these emphatic expressions. “The bargain of every man ought to be performed as he understood it; and if a man will make such an agreement, as to convey his estate, before he has the money to be given him as the price, and will rely on the remedy which he has to recover the money, he ought to perform his agreement.” But on the other hand if his agreement were otherwise, there is no reason why he should be compelled to give credit where he did not intend it. I Lord Ray, 166, cited.

Test the agreement of these parties by these rules. The agreement, dated on the 1st. of May, 1818, states, “that the said Chambers has this day sold to the said Mason the tract or parcel of land he now lives.on, bounded, &c. (describing it) supposed to contain one hundred and ten acres, be the same more or less; for the price of $35per acre; the payments to be made in the following manner, to wit: $300 to be paid in the month of June, and the balance to be paid on the 25th December next, at which time I bind myself, my heirs, &c„ to convey said land to. said Mason, by a deed of general warranty.” And each binds himself to the other for the true performance in the penalty of SB,1001). Ten days after the contract Mason paid $59, and on the 4th of June following he paid $400 to Chambers,, being $150 more than the first payment. He did not pay or tender the balance on the 25th of December, following, as he was bound, nor did Chambers make or tender the conveyance as he was bound. On this state of the case it seems apparent, that both parties stipulated performance unconditionally. It has been decided by this court, that it makes no difference, that the performance of the agreement on both sides was to be^ on the same day, unless actual performance and not the agreement to perform, constituted the consideration. Ill Litt. 293. Chambers brought hi's suit at law for non-payment of the money on the 7th of September, 1819. Mason pleaded to that suit that Chambers had not conveyed. The court below over-ruled the plea; and on an appeal by Mason to ibis court, the judgment of the court below was affirmed.

It was in like manner pleaded by Chambers, when Mason brought an action of covenant against him in the Fayette circuit court, in January, 1821, that he, Mason was not entitled to have and maintain his action, because he had not paid the balance of the purchase money for the land; and upon the courts overruling Chambers’plea also, upon the"ground, that the' covenants were mutual and independant. Mason recovered judgment for the price of the land. This latter judgment stands unrcversed, and is conceived un-reversible; for though it is not asserted, it is believed a supersedeas was applied for by Chambers and refused. But the law of this contract is thus settled and closed by judicial decision. It is not believed that this court, setting as chancellors, can decide thelaw and reverse the decision of atfinferior court, if it should even differ in opinion from it, for which difference, as is conceived is shown, there is no ground here. If these premises and this law be correct, how, the counsel would ask, can it be assumed, as it hás been in the opinion of the court, that-“Chambers was not bound by his contract to convey before the consideration was paid or tendered?” If the answer shall be, that however correct the construction of the contract as contended for by Mason’s counsel, may be at law; yet in equity the position of the court last cited is maintainable. This, the counsel will admit, if- applied when Mason should seek to enforce a specific performance of the contract, upon the principle that he who asks equity must do it. Though a tender and readiness to pay would be sufficient; for however indpendent parties may make their covenants, e ¡uity, without an express agreement to the contrary, always makes mutual performance concurrent. And even where a party has stipulated to convey, sooner than the time fixed for payment of the purchase money, equity would hardly compel a specific performance until the time had arrived for its payment, and its actual payment or a tender, but leave the patty to his remedy at'law. This shows that equity regards the object and end of the contract, when its powers are appealed to for enforcement. And it also proceeds in such cases upon another great principle, which counsel hum-b]y conceive has been wholly overlooked or disregard-* ed in this case. And that is, that where a contract is executory, and the party seeking to enforce if, has done nothing on his part, in part performance of it, equity never will dcoiee a specific performance at his instance. But as he is in stc.lu quo, it will there leave him, and to If s remedy at law. This doctrinéis expiessly recogifzed by this coürtin the care of Bowman vs. Irons, II Bibb, 78-9. For the court there say, ‘"’chancery has acted with caution, where the party can have adequte remedy at law, and have in mosteases refused, to decree a specific execution of executo;y contracts unless the party applying has in some nr asure p-rformed his agreement, so that the rules of the common law, canoi alfl rd complete redress.” What, it may be asked, has Chambers done, in this case, in part performance of his agi cement? If he has done any thing in this way, the counsel have neither scon or heard of it; unless his failure to make the deed on the day he bound himself to make it; his talk some monihs afterwards about his willingness to make the title if his money was paid, with his declaration that he never would make it otherwise than upon its receipt; his use and occupation of the premises, as his own, trom the time the contract was made, upwards of seven years, and untilhis death, and leaving it by his will, to his-children and grand-children after him; and bringing rail at law for his money against Mason; can be considered as part performance.

But the court in the opinion, fur: her assume the the fact, that Chambers was willing to convey, on the day stipulated. It is true the pioof shows, that he declared sometime afterwards, that he was and had been willing to convey on the payment, of his money. If this willingness could he known without any act to evidence it, most persons might be excused for a breach of covenant by shewing ability and subsequent declaration. But this too was pleaded to I, Jason's suit at. law and overruled. The matter of fact is not aiihcuit of discernment with respect to Chamber s, and the motive of his conduct. Whatever willingness he may have either professed or shown, to make a conveyance of the land sold by him to Mason, he neither intended, or was willing to convey until he had the purchase money in his possession. This is the most favorable construction •his acts will bear. But he did not rest upon the r.ecu-rity in retaining both the title and possession of the place only; he pursued Mason at law for his purchase v ii r , , ,r , r , moner. ¿ie recovo -eu judgment, forced Mason to re-plevy it, and still held on to ihe title and possession the place. Liaron is ali this while deprived not only of the use but cut off from the opportunity, which it is proved by I’lournoy, lie had of selling the place, at even a higher price, than he had agreed to give; and from some doubts, which however, not found finally suf* ficient, were not merely colo-able with regard to the goodness of the title, he files his bill to compel the production of tifie and to rescind the contract, with inj’uction, &c.; which bill is dismissed by the inferior court and affirmed on an appeal by him to this court so far as respects the rescisión, but reversed because the court below did not grant him a relief not asked, as to a cred* it for Chambers’ use and occupation of the premises. The court in its opinion now says, “this was in effect, a decree for a specific If this be indeed so, ihe counsel of Mason could never have expected a different result as to the main question in this* case.

The counsel for -Mason however viewing the legal ef” feces of the decision inferred to, in a very different light, beg leave to place befo:e the court, what they conceive to be its legitimate resilt and consquences. A court of chancery often has, and often will, refuse to rescind a contract, the specific performance of which it will not decree. A reía :al to rescind a contract does not therefore nuthouse ihe inference regularly, or technically, that it will decree its performance. It will also decree, under certain circumstances, specific performance, on the applicaii$h 'of a party .not in default against a party who is so, when it would not decree it on the application of the latter. Where both parties have been in default it will neither rescind not decree performance, but leave both to their remedy at law. It will not decree a specific performance, unless the party asking if, comes in reasonable and proper time» St will refuse to decree a specific performance, when thé party asking it, has been in mom, or delay so long, that however well it might have been both asked and donfe formerly such a change of circumstances in the value of the property asked to be decreed to the defendant, has taken place as would canse a loss to him greater than if the complaint had come earlier, and when the parties cannot be placed in statu <,uj, as if perfoimed by both. In the cate of Brashear vs. Gratz, &c., in the supreme court of the United States, VI Wheaton, 523, as to the latter po> i ion, these principles ate established. • “The general rule is that time is not of the essence of a contract of sale of land, and a failure on the part of the seller or of the purchaser, to perform his contract on the stipulated day, docs not of itself, deprive him of .his right to a specific performance, when he is able to comply with his paid of the engagement. But circumstances may be so .changed that the object of the party (defendant) can no longer be accomplished and he can not be placed in the same situation, as if the contract had been performed in due time. In such case a court of equity will leave the parties to their remedy at law.”

Now if these principles are sound and the counsel do not imagine they will not be received as such by this court, what is their influence here? They do most confidently and fearlessly assert, that the decree of this court affirming the decree of the court below, refusing a re-scisión of the contract between these parties, was neither in its form or legal effect a decree for a specific execution of this contract. The counsel know and in common with the community, have but too much reason to regret, that the extrajudicial intimations from the bench, not decisive of the question before it, and sometimes neither necessary or tending to it, have gone abroad,and been quoted sometimes bythebenchitselfas settling points, not ripe for adjudica ion, nor then legally pending. The question of i&cidon and enforcement of a contract in chanceryr have been shown to be distinct. Whatever respect may be had to the reason-ings of any judge they form no part of his decree. All that was in question in the case of the appeal of Mason vs. Chambers, was, should the contract be rescinded or not? The court below said it should not. This court, no matter by what reasoning, concurred with it. It is true this court, unasked by any particular prayer in the bill, and by a sufficiently latitudenous construction of the prayer for injunction, which was solely predicated upon the alleged defect of title in Chambers, did reverse the decree below, because, Mason was entitled to what he had never asked, a credit for the use and occupation of the prem'ses by Chambers; and if he liad mi.de his answer a cross bill, and had stood in an attitude to ask it, no doubt from the reasoning of this court, it would have decreed a specific performance. As he d,d not so stand, this court after a lapse of time which has annihilated nearly half the value of the purchase; during all which time Chambers has had tae use and enjoyment of the property; lay it down that it was nevertheless a decree for specific performance in effect. No title was decreed to he made to Mason which seems to be of the essence of a specific performance as to land. The counsel for mason cannot perceive, that this court having said Ma<on m'ght have a credit for the use andoccu-pa'ion, could by an unknown magic change the legal attitude of the parties and the cause. The latter is very frequently of much importance, and they had hoped forsomeof the legal resul.s from the attitude of both in this case. Mason was certainly not compellable to accept of a credit, for use and occupation, for which he had never a deed, any m >re than he was prohibited from suing at Jaw, which no known or accustomed legal bearing of this decree could hinder. The rule of law, of eq tity, and of reason, is contained in the maxim, quis-quís, rzn-mciari juri,pro $?, sz inlroiucto. Any one may certainly waive a benefit offered hire,, ap'd take in- lieu of it what law will give him. MasonSbJ been called into a court of law by Chambers, in a suit for the purchase money. Had not the court of law thus got possession of the case in the very first movement. Mason afterwards applied to a court of chancery for a rescis-ión. It was refused. Chancery was never regularly asked to decree a specific perfo: manee of this contract, until the LOth of March, 18 i5, about seven years after be was bound to convey by his agreement, and after the foil of nearly one half of the value of the estate purchased. The suit brought by Mason against Chambers for his breach of covenant was not then depending, but judgment had been obtained. S irely a court of law had then got possession of the case. But this court say, Mason should not have resorted to • his suit at law, pending his appeal here, from the decree of the Montgomery circuit court. If two suits are pending for tbe same thing in the same court, between the f ame parties and a rule is given, or plea filed compelling the plaintiff to proceed by only ore, the counsel conceive, a in either suit, would not ibeieforebe void, if £he 0t|ier had been previously dismissed. Now Mason hg,d the privilege to have dismissed his appeal if requl-red, by rule or proper plea in abatement. Me was not so required. His suit by appeal was fruitless, lie look judgment in his suit at law, as counsel do most earnest* ly contend so far as any principle or praciice Is known to chancery or law, he well m:ght. The court in its opinion say that Mason did not fuirly obtain his judgment,if he did, it is admitted, it could not be disturbed. And if he did not the counsel moot readily admit, be ought not to avail any thing by it.

It may be well to ascertain, w"i at is intended in the use of the term unf.irnes>. The counsel for Mason are unable Letter to define it, than as applicable to an act or result pr.. duced by violence or deceit. In legal understanding, they apprehend, a judgment cannot be said to be infected with u>f rirness, when it lias been obtained in thq regular, vnp:rvertzd covrs", of law. What fraud has Mason practised in obtaining this judgment? for an essential component of fraud, is deceit. Has be used any in regard lo the trial? None is pretended by Chambers. \V hat then is the extent of his 'oilence? It is meiely technical, and was wholly contingent, He should have waited to see, whether by his appeal, he could wholly rescind the cont:act. Por no lawyer could dream, that beyond thi~, the sole point in question, any other legal consequence could follow than saying to Mason by the decision, “you ai e bound by the contract, or you are not bound, but are released from ih He takes it in prospect, and calculates upon the decision b. ing had against him. To wit: thathe Is bound by the contract; for every lawyer would have told him there being no prayer for a specific perform* anee on your part, and your adversary not having placed himself in an attitude to ask it, by making his answer a cross bill. You are at liberty regarding the ■ contract as binding, if Chambers has broke Ids cove* nant, to proceed at law. Forif tbe coatiactwere to be specifically enforced by a decree, it must be by a new decree, at the instance of one of the peí fies, Suppose Chambers, as in truth and fact he did, still refused to convey by what process, upon this decree was Mason to compel aim? by none certainly known to hispi esent counsel, and they believe by none known to the law. I'erformanee must ihen be enforced by a new suit in chancery. And it would seem that Chambers in the suit in which Mason was appellant, having been declared to have acted fair and in good conscience; it will not only at that time, but in all time to Qome, however he may continue to hold both the title and,) premises, until diminished to about half their value, enable him to call up Mason and make him take the title and the land, and pay him his moneys when he pleases. The counsel for Mason with every respect for the purity and intelligence of the court, do not think this an overstrained s„ate of the case, as now decided, or its consequences. If Mason is to be made subject in this suit, to a chain of supposed ethics, instead of the well settled rules of chancery and law; against this new ground of procedure, his counsel cannot contend. Nor do they place, or wish to place, the case of any client, with whose interests in court, they may be charged upon such fanciful and uncertain foundations. They believe that this case, if the decision shall stand, will be anomalous. It is at the least, in their conception, an uncommon sketch of the chancellor’s power, not to save from loss, but to make a beneficial speculation effectual for one, who would stand, as he has stood precisely in statu quo and this to the ruin of his adversary, whose only offence has been precisely that of which Chambers was guilty, he not having complied with his contract.

. Testing this contract by every rule applicable to dependent and independent covenants, each parly was bound to perform, whether the other party performed or not; and conceding that Chambers had a lien in equity; it is well settled that a conveyance by Chambers, would not have waived his lien. The breach of contract by Chambers, seems however, to operate no injury to him. Mason’s legal right of action was complete on the 2dth of January, 1818, and it is not pretended this legal right of action was unfairly obtained. When or how did Mason lose this legal right, or how did it become tainted with fraud ? In the opinion delivered the court say’that “the judgment was not fairly obtained against Chambos s.” It is not pre ended that the cause of action was unfairly obtained, and the only unfairness imputed to Mason is that he commenced his action at law, while his suit in equity to rescind the contract waspending; and this is said to have been unfair. With due submission we would beg leave to suggest, that this objection is only ma ter in abatement and not considered as a matter in bar, either at law or in equity, and it is not easy to perceive how it can be fraudulent, or incompatible with a pure conscience.

The act of assembly, I Dig. 228, authorizing the court to apoint a commL-sioner to convey, only relates to defendants who fail to convey by the lime given; and there is no law or precedent for the court to appoint a commissioner to convey for a complainant. Infants cannot convey at all. Chambers’counsel feeling the fo ce of these objection?, have in their brief attempted to get round them by raying that this a ielief given to Mason under his general prayer in his original bill; and that tie court can cause a commissioner to convey for infant defendants.

The answer to this is obvious. Mason’s original bill is not revived against any but Arthur Chambers, the executor who qualified; and the widow and infants are not parties to it. The only attitude they occupy in this cause is the attitude of complainants in the cr oss bill, praying for relief against Ma-on. Could not these infants avoid the deed after they come of age? \V ill a deed made by this commissioner convey any title to Mason? If the deed have not the proper covenants in it, must Mason pay up the price, and begin a new suit in chancery to get a proper deed? It is assigned for error that the damages on the dissolution of the injunction were not liquidated and after the daily reversals on this ground, this en or is ove: looked by' the court. The title of Chambers did not fall by descent to his heirs but passed by devise to some who weie not his heirs, and the irrpgulaiiiy of a revivor by devisees is not noticed by the court.

These errors in the decree, as the counsel of Mason humbly conceive, so palpably erroneous, being entirely unnoticed by the court, strongly attest the fact, that the great weight, multiplicity and variety of the bus!ness of this court, have deprived this cause of that considera ion which was indi. pen: ible to a correct de-cisión of it. The counsel believing that the given on the main question is not well founded either on principle or pi ecedent, as well as the details of the decree, respectfully pray for a rehearing of the whole case.

Response to the petition]

On the 3rd of Ncvmbcr, 1830, the covrt delivered, the following r: spouse to th.ep tiiionfor re-hearing:

A thorough re-consideration and careful re-examination of a record of 272 pages, have resulted in a conviction, perfectly satisfactory to ourselves, that the decree for a specific execution is maintainable upon principle and the facts of the case.

The covenants, are not independant. They are at least muiual conditions to be performed simultaneously. They are parts of the same entire contract, and are signed by both pa ties; and if the contract had required the performance of the whole consideration by each party at the same time, there could be no doubt that neither could have rightfully maintained an action. on the undertaking of the other, without averring performance, or a suflicient oiler to perform his own engagement. The opinion of this court in “Mason vs. Chambers” (IV Littell's Rep. 253) goes even fuither than this, and decides that ihepeymentof the consideration, was a condition precedent to the conveyance of the title to the hnd.

The chief justice dissented, but evidently, (as we infer from the opinion,) on the ground, that he construed the covenants to he mutual and dependant. Were it admitted that he was right, the consequence is, as stated in the opinion in this care, that Chambers was not bound to convey the title before the price had been paid or (ende; ed. We do not know hoiv the doctrine’s * settled in Mason vs. Chambers could be reversed or changed by any misconception of them, by any circuit judge. Lut as judgment had been obtained by eachparty, we did not consider the proper construction of their covenants, as by any means decisive of the equity of this case. The principal reasons for sustaining the decree for a specific execution are, that Chambers did every thing that a reasonable and just man should in equity, be required or expected to do for the completion of the contract; and that Mason was delinquent, and attempted an ‘‘unfair5’ advantage, by sueing for damages, during the pendency of his suit in chancery for a rescisión of the contract. L p-on these grounds, we are perfectly satisfied that the opinion which has been delivered, is consistent with authority, and with the plainest dictates of equity. The opinion states the facts correctly. If Mason had paid the consideration, would there have ever been any litigation on the contract? If he had relied, as he should'have done, on his suit in chancery, for a rescis-ión, and carried it on to a final decree in obedience to the Mandate of this court, would he have had any cause to complain that Chambers could not, or would not,‘make him a title? Candor must respond nega-atively to both questions.

Chancellor may refuse to rescind a con • tract, which he would not specifically «nforce.

Then, as the chancellor had possession of the case, before Mason brought his action for breach of covenant, the judgment obtained in that action should not affect the right of Chambers to a specific execution.

We insist that this court did, in the case of Mason Vs. Chambers in chancery, ‘ tu d y” and “in effect,” decide that Chambers was en.ii.led to a specific execution. Mason could not have been entitled to the rents and profits, unless he was bound to carry the contract into execution, and take the land; see Mason vs. Chambers, (III Monroe, 318.) I he opinion in that case should be considered as almost,if not entirely, conclusive of' the merits of this.

We know that the chancellor may refuse to rescind a contract which he would not enforce specifically. Butthe opinioninUI Momoe vs ill lca\e no reem for an inference that this case could have been considered, as of that character.

We had fully considered the details of the decree and there is nothing in the opinion which authorized the apprehension, that they had escaped our attention. They were not pre-termitied, but v ere cxpnsüy disposed 'of. We did not consider it necessaiy or even proper to notice them all in detail. But the petition renders it .proper, that we should be more particular.

^ dered m dp-plication of ^otto’^vers oneacoount merely 0f infanoy‘

Iit. A statute of 1S15 (I Dig. 55) authorises dev-¡sees to revive. Whether that act applies to this case, heed not be now decided, because

2. The revivor was by consent; and Mason, after-wards, answered the bills of revivor, and expressly waived all objection to the revivors, and relied solely on the infancy of some of the devisees, as an objection to a decree for specific execution.

3. Tbe infancy of the devisees could not affect their right to a specific execution. As to the specific execution,they were complainants; and in such a case, in fancy is not material. The decree rendered on the-application of infants cannot be reversed on account merely of infancy.

4. The will gave power to the executor and trix to convey. They were parties in their fiducial character, as well as in that of devisees. A decree that they, or the executor alone, (as the executrix did not qualify) should convey, would have been sufficient, and would have been most proper. The decree directs them to convey in the character in which they were made parties; and therefore, a conveyance by them would pass all the title which they had power, under the will to convey. Requiring all the devisees to unite with the executor and executrix could be considered, only, as unnecessary. If all convey, the title, which tbe executor alone could have conveyed, will not be invalidated, but strengthened.

It will be in Mason’s power to enforce a decree, so as to secure to him all the title that the testator had, and the transference of such a title cannot be evaded, especially as the executor, who has full power, is a party.

Mason is therefore, as secure as to the title as it is possible that he could be under any decree.

As to tbe damages we had supposed that there was no error. The decree is for ten per cent on the judgment, after directing a specific credit upon it. The judgment is for a certain sum, and is shown in the record. Ten per cent on the amount of the judgment, is not as much as was proper. Ten per cent on the amount enjoined would have been the proper amount of damages; and we suppose that the decree intended. to give damages on the amount enjoined. But if this) be not the proper construction of the decree, the error would operate in favor of Mason.

Decree, on dissolution of an injunction, muststate the amount of damages, or the sum upon which they are given and the rate of damages.

The chief justice is of the opinion, that the decree for damages is sufficiently certain, as the record shows (in his opinion) indisputably, the amount on which the damages are given.

But judges Underwood and Buckner are of opinion, that the decree ought to have expressly stated the amount, or the sum upon which they should be given, and the rate, to-wlt: ten per cent, thereon.

Judge Buckner is moreover of opinion, that the record does show on what amount the damages are given; the reference to it in the decree leaving it (as he thinks) uncertain whether the original judmeni, or the amount of the replevin bond, with interest to the time of granting the injunction, is to be considered as the sum upon which damages were to be given.

Therefore, a majority of the court are of opinion, that there is error in the decree for damages. So far therefore, and so far only, the opinion is modified.

Wherefore, the decree for damages is reversed and the cause remanded, with directions to render a decree for damages conformably herewith, and in other respects to conform to the former opinion of this court, which, in other respects, remains unchanged.

No decree for costs in this court.  