
    James R. Doar v. William Hasell Gibbes, and William Mathews.
    Specific performance of an agreement to sell lands, will not be enforced against the vendor, where the vendee has neglected to comply with conditions stipulated by the agreement, within the time limited by it, and the vendor has, in consequence, sold and conveyed to another purchaser.
    Time is not usually of the essence of a contract, for the sale of lands, but it may become so, if the delay is injurious ; and especially where a period is fixed, within which a condition is to be performed, in order to complete the contract.
    The specific performance of agreements, for the sale of lands, is within the discretion of the Court, and will not be enforced against a subsequent purchaser, for valuable consideration, without notice, who has acquired the legal title; especially in favor of a vendee, who has failed to comply with the terms of his own contract, within the time limited by it.
    Parol evidence not admissible to enlarge the time within which the terms of a written agreement for the sale of land were to be complied with.
    At Charleston, May, 1829.
    De Sausstjre, Ch. This is a bill for the specific performance of an alleged contract, for the purchase of Snee farm. The facts important to the decision of the question submitted, are briefly as follows.
    Snee farm was sold, by the sheriff of Charleston district, as the property of F. G. Deliesseline ; and at this sale, the land was bid off by Joseph Payne, by whom the sheriff was directed to transfer the bid to the defendant, William Hasell Gibbes, who, it appears, was a judgment creditor of Deliesseline, and intitled to receive some portion of the proceeds of the sale. Mr. Gibbes, who was anxious to sell his bid, entered into a negotiation, for that purpose, with Mr. Wilkie, who, it seems, was acting as the agent of the defendant, William Mathews ; but this treaty was not carried into an actual contract. After this, the complainant, James R. Doar, entered into an agreement with Mr. Gibbes, to take the land, at the price bid for it at the sheriff’s sale ; and on the 13th May, 1828, gave Mr. Gibbes a memorandum in writing, by which he agreed to pay a small portion of the price in cash, and to give security, satisfactory to Mr. Gibbes, for payment of the residue, in January, 1829 : and Mr. Gibbes agreed to make titles to Doar, provided he complied with these terms in ten days from the date. Doar at that ■time offered his brother, and referred to Dr. Legare, as another of sul'et*es* The ten days elapsed, and in the mean time, Mr. Gibbes learned from Dr. Legare, that he deemed the purchase much above Doar’s means, and that he would not become his surety. comPlainant alleges, that Mr. Gibbes told him, verbally, that if he came down in the third week of the May Court, a term beyond the ten days, it would be in time. To this, Mr. Gibbes answers, that he has no recollection of it; but that if it be so, yet the statute of frauds applies, and this loose conversation could not vary the written contract. Mr. Gibbes, having concluded that Doar could not comply with his purchase, and conceiving himself authorised to consider the contract as abandoned, called upon the defendant, Ma'thews, and offered to sell the land to him, saying that he was at liberty to convey it to him. Whereupon Mr. Mathews agreed to take the bid, at the amount offered at the sheriff’s sales ; and actually received from Mr. Gibbes, a transfer of his bid in the sheriff’s books, paid him then a portion of the purchase money, and has since satisfied him for the whole. The sheriff, on being satisfied as to the purchase money, *bas executed titles to the defendant, Mathews, who is now in peaceable possession of the land.
    It is stated in the bill, that Mr. Gibbes gave Mr. Doar, an order for the keys of some of the buildings; but Mr. Mathews, in his an. swer, states, that upon receiving his titles from the sheriff, he went on the premises, and found them unoccupied, and took possession, which he has since retained. In his answer, Mr. Gibbes insists, that he is not bound by any contract, except the one in writing, which was not complied with by the complainant, who has never paid any part of the purchase money. Mr. Mathews positively denies any knowledge of the claims of the complainant, but avers that he contracted, bona fide, and paid his money, and received his tides.
    
    Under these circumstances, the complainant, who has paid no money, prays the Court to compel the specific performance of a contract, which he himself omitted to perform on his part. It was a conditional contract. Titles were to be made, provided adequate security were given within ten days. It is evident, that this proviso was intended to avoid any delay in seeking a new purchaser, should Mr. Gibbes be disappointed in Doar. The proviso was not complied with, and another purchaser was found ; and if a decree cannot be made against him, the object of the bill fails, for this Court cannot assess damages. Indeed, nothing but the loss of an opportunity to invest his funds in the land, is alleged. The complainant does not set forth any specific loss, such as the purchase of slaves, to cultivate the farm, or funds diverted from a profitable investment. And what decree can be made against a bona fide purchaser, for valuable consideration, without notice 1 He lias the legal title, and his equity is at least equal; and he must be protected. It follows, that the Court can make no decree for the complainant.
    In relation to Mr. Gibbes, it is true, that time is not usually of the essence of a contract, so as to avoid it, in case the exact time be not complied with. But it may be, and is, of the essence, where the other party, or third persons, may be seriously injured, or even exposed to injury. It is the more so, where the contractor engages to do a certain thing, in order to complete the bargain. In this case, the bargain could not be said to be completed, until the security was given. That was to be done in ten days. It was not done. Was the contract to be kept indefinitely open, for any length of time, so as to preclude a sale to other purchasers ] That would be most unjust. ,
    Mr. Doar not having complied with the written agreement, relies on a parol extension of the time. This, I apprehend, is within the statute of frauds. But if it were not, what are the facts of the case ? Do they intitle him to any peculiar favor ? The bill seeks a specific performance of the contract for the sale of the land; but that is always in the discretion of the Court, the discretion of equity. Would it be the exercise of an equitable dis. cretion, to decree a specific performance in favor of one, who has not performed his contract, against the vendor, and a subsequent purchaser, for a valuable consideration, without notice, who has complied with his contract 1 I think not. Besides, what decree could be made against the second purchaser ? None. In such a case, the only remedy of the complainant, if he is intitled to any, is in a suit at law, to recover damages from his vendor, for the nonperformance of his contract. He has certainly no such equity as would induce this Court to affect the land.
    It is, therefore, ordered, and decreed, that the complainant’s bill be dismissed, with costs.
    From this decree, the complainant appealed, and now moved that the same might be reversed.
    Grimke, for the motion.
    Petigru, and Hunt, contra.
    
   Johnson, J.

We concur with the Chancellor, in the view which he has taken of this case. The motion is therefore dismissed, and the decree affirmed.

O’Neall, J., and Harper, J., concurred.

Decree affirmed,.  