
    Koen vs. White’s Heirs.
    CHANCERY. Specific performance — title bond assigned, If atitle bond be assigned by the obligee, and the assignee sue the obligor in equity for a specific performance, making the obligee a party, the obligor cannot resist a decree on the ground that no consideration passed for the assignment, — the bill being taken for confessed as to the obligee.
    Same. Same — Vendor and purchaser — lapse of time. Lapse of time is a defence against a bill for a specific performance, where there is something to be done by the party asking for it, constituting a condition precedent, which he has deferred till, by the efflux of time, a material change of circumstances has been produced. It is no defence where two persons make a joint purchase of land, and a title bond is taken to one of them, who gives the other his bond for half of the land so soon as a legal title should be procured; for in such case the obligee has nothing to do, previously to his being invested with a right to per' formancc.
    In consideration of military services performed by Cornelius Drake, the State of North Carolina issued to him warrant, No. 404, for 571 acres of land, dated the Hth of September, 1784. This warrant, by an entry No. 370, in the office of the Surveyor of Military Lands, was immediately afterwards located “on the waters of Little Harpeth river, beginning at the south east corner of Ephraim Drake and Daniel Dunham’s pre-emption, and running along the south side to their south-west corner; thence off at right angles for complement.” On the 26th of October, 1788, Drake sold this warrant and location to John White, the ancestor of the defendants, and gave him a written transfer, and order to the Secretary of State of North Carolina for the patent; and also executed to him a bond, conditioned that if a patent for said land should come out in his name instead of White’s, he, his heirs, &c. should convey it by a sufficient deed of bargain and sale to White, his heirs, &c., at his or their reasonable request after the issuance of the patent. White, then of Camden, North Carolina, sold one half of the tract to Joshua Campbell of the same place, and gave him his title bond, dated the 26th of July 1790, conditioned that when the patent should come out, and he should procure a right from Drake, he, White, or his heirs, should convey 285 acres of said land— respect being had to the quality — to Campbell or his heirs, at his or their reasonable request after the issuance of the patent Of tíie execution of a deed by Drake to him. On the 26th of January, 1791, the land was surveyed in the name of Drake, beginning at a red oak tree, running thence south, 268 poles, to a large ash and hackberry; thence west, 340 poles, to a stake; thence north, 268 poles, to the south-west corner of Daniel Dunham’s pre-emption; thence with Dunham’s line, east, 340 poles to the beginning. At April session, 1794, of Davidson County Court, the bond from White to Campbell was proved by Frederick Davis, one of the subscribing witnesses, and admitted to record. About the year 1790, both Campbell and White, who appeared to claim the land as partners, removed to Tennessee, and White took possession of it. Campbell returned to North Carolina, but left in the hands of Frederick Davis, his agent, White’s bond for one half of the land. Davis called on White for a division, and he was willing to make it, but not in portions of equal value as Davis thought, and he declined it. ' Campbell died, and then Davis surrendered the bond to his representative, who afterwards made an attempt, through the agency of Levin Edney, to have a division, which attempt also failed for the same reason as the former.
    On the 20th of May, 1808, the State of Tennessee issued a patent for the land in the name of Cornelius Drake. In the same, or the next year, Daniel K.oen, complainant’s father, went to North Carolina, and purchased from Campbell’s heirs, their interest in the land, which interest was transferred to him by some instrument of writing, probably an assignment of the bond. He was in low circumstances, and having failed to procure a division of the tract, he went to the south on business about two years afterwards, and on his return in 1812, died intestate, leaving the complainant, Hardy Koen, his only child and heir at law — an infant. White’s original bond to Campbell, if it had ever been in Koen’s possession, seems to have been lost.
    After the patent had been issued to Drake, White filed a bill in chancery against his heirs and representatives, for a specific execution of the contract for the sale of the land to him; and on the 15th of February, 1817, in the Supreme Court of Tennessee, he had a decree divesting the title out of them, and vesting it in himself. The contingency had now happened upon which he was to make Campbell a deed for one half o-f the tract. About the month of May, 1825, White died, and in October following, the complainant came of age.
    On the 7th of March, 1827, he filed his bill in the chancery court at Franklin, against White’s heirs, praying for a specific performance of the contract between him and Campbell. He' stated the loss of the original bond, but exhibited a copy of it obtained from the records of the County Court of Davidson.
    The heirs of White answered, suggesting that the purchase from Campbell’s heirs by Daniel Koen was invalid on account of the infancy of some, at least of those heirs; also, that the bond had not been lost, but White, in his life time, had taken it up from one McDaniel, who had purchased it from Koen, by paying him a grey mare and foal; but relying principally upon the statute of limitations, the lapse of time, and the length of White’s pdssession, more than 30 .years, before the institution of the suit. On the 5th of April 1833, an amended bill was filed against th’e heirs of Campbell, as-to whom it was taken for confessed at October Term, 1836. Testimony was taken, particularly to establish the allegation, that White had, before his death, taken up the bond. Among his papers one much mutilated had been found, purporting to be a contract between him and Campbell about land, made while they were y'et residing in Camden-; but the date of it had been torn off, and what remained of it- seemed to relate to a differ-rent tract. There was endorsed on it, under date of May 14th, 1816, a receipt, it seemed, of a brown mare and foal “in part of the within,” &c. But it is unnecessary to repeat the evidence upon this- point, as it was thought unsatisfactory by the court; and th'e foregoing narrative contains the substance of the pleadings and proofs.
    The cause was heard at May Term, 1838', before his Honor Chancellor Bramlitt, who, being of opinion that the complainant was entitled in- equity to an undivided half of the land according to quantity and quality in its unimproved state; and to a reasonable rent for said one half from the filing of the bill, and interest thereon, accordingly appointed five commissioners, and in case they or any of them failed to act, the' Ülerk and Master to appoint others in their stead, any three of whom were to lay off and set apart to the complainant one half of the tract, according to quality and quantity, estimating the whole according to its value in an unimproved state, and assigning to the heirs of White, the cleared and improved land, valuing it as unimproved. And the Clerk and Master was directed to take an account of the rent of the tract from the filing of the bill, charging White’s heirs with reasonable rent ánd interest thereon. The complainant was ordered to pay the costs of the suit.
    January 4, 5.
    January 10.
    From this decree the defendants, White’s heirs, appealed in error.
    Cook and F. B. Fogg for complainant.
    R. C. Foster, Jr. and Meigs for defendants.
   Greene, J.

delivered the opinion of the court.

John White executed a bond to Joshua Campbell, dated 26th July, 1790, to convey him the one half, according to Quality and quantity, of a 571 acre tract of land on Harpeth river, being the service right of Cornelius Drake, so soon as a grant could be obtained for the same, and so soon as said White could procure a title thereto. Campbell died, and Daniel Koen obtained from his heirs an assignment of the bond on White. White obtained a title to the land from Drake, by a decree of the Supreme Court in 1817. Before this time Daniel Koen died, leaving the complainant his heir at law.

The complainant became of the age of 21 years in 1825, ánd this bill was filed the 7th of March, 1827, for á specific performance of the contract.

The defendants resist the décreó sought by thé bill upon several grounds.

It is objected, that there is no evidence that ány consideration was given to Campbell’s heirs, by Daniel Koen, without proof of which he cannot move the conscience of this court in his favor. It is true there is no direct proof of a consideration; but Campbell’s heirs are made defendants to the bill, and having failed to answer, it was taken pro confesso against them. It is, therefore, to be treated as though they had answered, and admitted the receipt of a consideration J for the bill charges that Koen paid them I valuable consider" ation for the land.

The payment of a consideration having been established, as between Campbell’s heirs, and the complainant, the other defendants have no right to resist a decree on that ground.

It is objected, that this bill is not brought in time; and that the infancy of the complainant is no excuse; the circumstances of the parties and the value of the property having greatly changed.

It is true a great number of years have elapsed since this-bond was given, but the ancestors of the defendant was not liable to be called on for the title, until he procured one from Drake. This he did not obtain, until in 1817, when it was-decreed him by this court. At that time the father of the complainant was dead, and he was an infant, not having arrived at full age until 1825, about 18 months before the bill was brought.

The case of Smith’s Heirs vs. Christmas, 7 Yerg. 565, and similar cases relied on by the counsel for the defendants, are very different from this. They are cases where time is of the essence of the contract; where something must be done by the party seeking a performance, precedent to his right to de--mand it. In such case, a complainant must show himself to-have been “ready, willing and eager,” to comply on his part.

But the case is wholly different, where, as here, two men-are tenants in common of a tract of land, to which they have an equitable title, and one of them gives his bond to convey to his co-tenant the other half, so soon as he shall get the legal-title. The party seeking the enforcement of the contracthadno precedent condition to perform, the non-performance of which would embarrass and involve the other in difficulties and loss. The circumstances of the parties, therefore, can not be said to have changed so as to render it inequitable for the court to decree a performance.

It is insisted that the original title bond, of which a copy is exhibited in the bill, was in the hands of one McDaniel, from-whom the ancestor of the defendants purchased it, by the pay-nient of a grey mare and a foal, a watch and some money; and that said original bond was not lost as is alleged in the bill.

It is unnecessary to refer particularly to the evidence upon this point; it is contradictory, confused and inconclusive.

The bond upon which this credit is said to have been, is not sufficiently identified by the witness who speaks most certainly about it, to satisfy the court that it was the one for the land in question; and this evidence is much weakened by opposing facts and circumstances.

Besides, it is not even contended that the bond was assigned to McDaniel, or that he had any right to the land.

If, therefore, White obtained possession of it from him, for a consideration paid; the complainant’s equity to the land would not be extinguished thereby.

We therefore think the complainant is entitled to the relief he seeks.

Let the decree be affirmed.  