
    Samuel Brown v. Ezekiel S. Haines, Thomas Carr, John Fisher and James Barr.
    A court of equity will not compel-the specific performance of a contract in favor of one who has not been diligent in performing his own part of the contract.
    After an appeal to the Supreme Court, and decree rendered therein, it is too-late to object, on bill of review, to the regularity of the appeal.
    This is a Bill in Chancery, to review a decree of the Supreme-court of Clermont county.
    On the second of October, 1829, the following agreement was entered into between the complainant, and the. defendant, Haines :
    “ This agreement, between E. S. Haines and Samuel Brown, witnesseth, that the said Haines hath this day sold, to the said Brown, parts of surveys 4441, and 4442, in Clermont county, estimated at 250 acres, 2] at $1 50 per acre, to be paid, $25 00 *in cash, atthe time of survey, and the balance in one year from the said survey ; and, upon such payment being completed, the said Haines agrees to convey to the said Brown, by a general warranty deed.
    “ Witness our hands and seals, this second October, 1829.
    
      “ E. S. Haines. [ ]
    “ Samuel Brown. [ ]”
    
      On the first of February, 1836, Brown filed his bill in chancery, in the Common Pleas of Clermont county, against the present defendants, ■setting forth, among other things, the above contract. That he had gone into possession under it, had made some improvements, and entered into agreements with the defendants, Fisher and Barr, to sell them portions of the tract, and had always been ready, and willing, to comply, on his part, with the contract. But that the defendant, Haines, had always neglected, and refused, to have the lands surveyed, and, in October, 1835, while the complainant was absent, and sick, in the State of Indiana, Haines had sold a portion of the same tract to the defendant Barr, and had conveyed another portion to the defendant Carr, who had full notice of complainant’s claim, and now refused to perform his contract with complainant. The bill prayed a specific performance, by Haines, that Carr might, also, be compelled to convey to complainant, and for general relief.
    Haines, in his answer, denied that he had ever been requested to execute the contract, by Brown, until this bill was filed; and set up, for defence, that Brown had never paid any portion of the purchase money. That, complainant having gone off to the State of Indiana, Haines-, under the belief that he had entirely abandoned the contract, had conveyed a portion of the land to Carr, and, commiserating the situation of Barr, who had purchased from complainant, and made improvements, he had, also, agreed to convey to him 104 acres of the tract. The other defendants also answered, and much testimony was taken.
    At the April' Term, 1837, of the court of Common Pleas, it was ,3] ordered, and decreed, that Carr should convey to the com*plainant the one hundred and three acres conveyed to him by Haines, and “ that ■said Carr should pay the costs by him occasioned; and cause continued, as to said Haines; and bill dismissed, as to said Fisher and Barr.”
    The defendants gave notice of appeal, and, on the 12th day of May, 1837, Haines and Carr filed their bond, which was approved by the -Clerk.
    At the April Term, 1838, of the Supreme Court of Clermont county, •the cause came on to be heard, and the bill was dismissed with costs.
    To review that decree, this bill was filed, and the errors assigned, ;are,
    First: That the Supreme court took jurisdiction, as to the defend.ant, Haines, when no final decree had been rendered by the court of ■Common Pleas against him ;
    
      Second . That the court erred as to the merits, and dismissed the bill, when a decree ought to have been rendered in favor of the complainant ;
    Third: The court erred in decreeing all the costs against the complainant ;
    Eourth: A general assignment of error.
    The material points in the testimony are noticed in the opinion of the court. Extended arguments, upon the facts, were presented on both sides, which are omitted.
    John M. Jolieee and R. W. Clarke, for complainant, contended, that, before it became the duty of the complainant to pay the purchase money, the land had to be surveyed. That it was incumbent on Haines to cause the survey to be made, and he could set up no understanding, or agreement, out of the written contract, by which that duty could be shifted from himself to the purchaser.
    When parties reduce their contracts to writing, the obligations and rights of each are described by the instrument itself. Taylor v. Riggs, 1 Pet. 600; Hunt v, Rousmanier, 8 Wheaton *174; 2 Peter’s [4 Digest, 235 ; Renner v. Bank of Columbia, 9 Wheat. 581.
    Heretofore the court seem to have fixed upon the surveying of the land as the turning point in this case ; if, indeed, it be so considered, it would seem that Haines, alone, is the party in default. Brown had nothing by which to direct a survey, and could not have made it, if attempted. The law imposes upon no one impossibilities ; its requisitions are reasonable. It was but reasonable that Haines should have surveyed the land; it was unnatural to have required it at the hands of Brown. In the case of Longworth v. Taylor, 1 McLean’s Rep. 404, the court say, “ The vendor binds himself 'to make a deed, and it is his duty to make it. Besides, the exact quantity of ground seems not to have been ascertained by the contract; and the price was fixed at one hundred and twenty five dollars per foot. It was the duty of the defendant (the vendor), before he made the deed, to ascertain the number of feet, by actual measurement.”
    The agreement between the parties, (in the above named case.) was, that the vendor, within three months, should make a deed for the ground : this he failed to do, and the court, in reference to that failure, say, “ Being thus in default, was he in a condition to exact a strict performance of his obligations from the complainant ? Until he executed the deed, or offered to execute it, could he have called upon, courts of equity to decree a specific execution of the contract ? ”
    
      Again, in the same case, the court say,“ Can a vendor disaffirm his contract,while he is himself in default ? Can he enforce a strict compliance with the contract against the vendee, whilst he, himself, disregards the terms of it? The rule, that he who asks equity must do equity, applies, with equal force, to both parties,”
    The land being in possession of the complainant’s tenant, the defendant, Carr, is chargeable with notice.
    In Chestermann v. G-ardner, 5 Johns. Ch. Rep. 23, it is decided, that it is a rule in equity, that the possession of a tenant is notice to pur5] chaser of the reversion of the actual interest of * the tenant, and of the whole extent of that interest, and he is bound to admit every claim which could be enforced against the vendor, referring to the case-of Daniel v. Davidson, 16 Yesey, 249.
    According to the well settled rules of chancery practice, notice, either before the obtaining the title, or before payment of the consideration, is sufficient for the purpose of overreaching the legal title in the hands of a purchaser, in favor of the prior equity. Thompson, and wife v. Mason, 4 Bibb, 199.
    In Allen v. Anthony, 1 Merivales, 282, 283, the Lord Chancellor says, “ It is so far settled, as not to be disputed, that a person purchasing where there is a tenant in possession, if he neglects to inquire into the title, must take, subject to such rights as the tenant may have; and, in that case, it was further decided, the possession of the tenant was notice to the subsequent purchaser of a right of the tenant to-timber, although such right accrued by a title posterior to that on-which his possession was grounded.”
    If a tenant has even changed his character, by having agreed to-purchase the estate, yet his possession amounts to notice of his equitable title, as to the purchaser. Sug. on Vendors, (9ch ed.) 337, 338
    They also cited the following authorities : Executors of Wilson v. Tappan, 6 Ohio, 172 ; Sug. on Vendors, 157 ; Striker v. Mott, 6 Wend. 465 ; House v. Beatty, 7 Ohio, part II, 88; Pennington v. Kelly, 7 Ohio, part II, 102 ; Maynard’s Lessee v. Cable, Wright, 18; Griffith v. Depew, 3 Marshall, 179.
    Wright and Walker, with J. T. and S. Brush, for defendants, argued :
    First. That the decree of the Common Pleas affected the subject of the controversy, and would have concluded the parties to the suit, as h‘, it, if it had not been appealed from. It transferred the land Haineshad deeded to Carr, by deed with full covenants to Brown, without his having paid a cent for it, ^or being required to pay for it, or find- [6 ing a single fact upon which the decree was founded. Now, this decree, more or less, affected all the defendants. It was final as to Brown’s right to the land, and it finally took the land from Carr, and left Haines liable on his covenants. Three of the defendants had an express interest in it; all gave notice, and appealed. We suppose it clear they had a right to do so, and could not, otherwise, protect their interest. But, if it were otherwise, and the appeal merely brought before the-appellate court, Brown and'Carr, it was entered for all; the complainant regarded all before the appellate court; he took ’McG-intry’s deposition against all; he brought his cause to hearing against all; and the hearing resulted in a decree against all. Can complainant now avail himself of these, his own errors, to reverse the decree? We think not.
    Second. That the written memorandum of the contract was, in itself, too uncertain to form the ground of a decree for complainant. This uncertainty is not helped by Brown’s possession and improvement — first, because the contract did not authorize Brown to enter upon the land to be sold ; and, second, because it is not alleged that it did, or that Haines put Brown into possession, or knew of his possession, or what portion he possessed or improved. And the entry, improvement, and occupation, by Brown, and those under him, were a ■continued trespass, and could give no right under the .contract.
    Haines was not bound, by the contract, to make the survey, and, although the proof is uncertain as to what the understanding was, in this respect, yet, there is proof, furnished by the complainant, that he ■caused a survey to be made. That neither the survey, nor any notice of it, was ever given to Haines, nor was any tender made of the $25, or obligation for the remainder ; nor did Brown even pay the taxes, or do any thing in the matter, either to inform Haines of the quantity or the bounds, or of his entry, or of any thing else; and the matter lay for several years, until Brown had left the country, and, as some said, never to return.
    * Third. As to the costs. We understand the costs, in chan [7 eery, always to be subject to the discretion of the Chancellor; and the rule is, never to examine, or re-examine, a case merely to dispose ■of the question of costs.
    Fishback and Lowe, on the same side.
    A party, seeking for the specific performance of an agreement, must show that he has performed, or offered to perform, on his part, the acts which formed the consideration of the alleged undertaking on the part of the defendant. Colson v. Thompson, 2 Wheaton. 336.
    In the ease of Benedict v. Lynch, 1 Johns. Ch. 378, Kent reviews this doctrine, and, adopting the language of the English authorities, he says, “ That Lord Kenyon was the first who set himself against the idea that had prevailed, that when an agreement was entered into, either party might Come at any time; and that it was then perfectly known, that a party can not call upon a court of equity for a specific performance, unless he had shown himself ready, desirous, prompt and eager.” Chancellor Kent further adds, “ Prom the review I have-taken of the cases, the general principle appears to be perfectly established, that time is a circumstance of decisive importance, in these contracts, but it may be waived by the conduct of the party; that it is incumbent on the plaintiff, calling for a specific performance, to show that he has used due diligence, or, if not, that his negligence arose from just cause, or has been acquiesced in ; that it is not necessary for the party, resisting the performance, to show any particular-injury or inconvenience ; it is sufficient that he has not acquiesced in the negligence of the plaintiff, but considered it as releasing him.”
    “ These principles appear, to me, to be founded in natural justice, and to be equally conducive to public convenience, and to the maintenance of public morals.”
    In commenting further on the case, Kent seems to be considering the very one before this court. He says, “ Here the purchaser has 8] paid nothing, but suffered defaults to accumulate, * year after year, as if he had forgotten he was under any obligation to pay ; and if the land had not risen in value within the last two or three years, so as to render the purchase an object of speculation, there is no reason to believe that the plaintiff would ever have attempted to raise the money out of the benevolence of his friends. I think that, within the reason and spirit of all the eases, here was a gross negligence on the part of the plaintiff, that takes away his claim to assistance.”
    In Thompson v. Todd, 1 Peter’s C. C. R. 380, it is said that “ a court will not compel the specific performance of a contract, where the party who asks its assistance is chargeable with unfair conduct, in relation to the contract he seeks to enforce, but will leave him to his legal remedy.” 3 U. S. Cond. 523.
    In the case of Scott v. Field et al., 7 Ohio, part II, 94, this court, quoting the language of Lord Erskine, and adopting it, say, “ That it would be a very dangerous thing to permit parties to lie by, to see whether the contract will prove a gaining or losing bargain.” And Judge G-rimke adds, “ And I believe Ihe mind of every man, who has reflected on this subject, has been convinced that this is the correct view.”
    The case of Remmington v. Kelly, 7 Ohio, part II. 98, is, we conceive, analogous to the one now under consideration. This court there decided, that, although a contract for the sale of lands contains no-express stipulation that a failure to pay shall authorize the vendor to rescind, yet, the vendor may, upon such failure, by prompt action, and proper notice, put an end to the contract, so that equity will not decree a specific performance.
   Read, Judge.

This is a bill to review a decree of the Supreme-Court of Clermont county, dismissing a bill, seeking a specific performance of a contract for the purchase of a tract of land from Haines, and a conveyance, from Carr, of the legal title of part of said tract of land, upon the ground that Carr acquired the title from Haines after said contract, and with a fuil knowledge of the equities of this complainant.

* One ground of error upon which the decree is sought to be [9 reversed, is, that the Supreme Court had no jurisdiction of the case, as to Haines. That the decree from which the appeal was taken, directed Carr to convey to Brown ; dismissed the bill as to Barr and Fisher ; and continued the cause below as to Haines ; Haines and Carr executed an appeal bond, and brought up the cause. There is no-doubt but this is Such a final decree in the cause, affecting the rights of Haines, as warrants the appeal; besides, the objection now comes too late.

All other errors assigned look to the merits. If the court were right in dismissing complainant’s bill, we would not deem it erroneous to order him to pay all the costs.

No disputed or doubtful principle of equity or law is involved in this case. It depends merely upon a determination of fact.

On the 2d day of October, 1829, Haines and Brown entered into an agreement, under seal, for the sale and purchase of a certain -tract of land in Clermont county, a part of surveys 4441 and 4442, estimated at 250 acres ; price, $1.50 per acre ; twenty-five dollars to be paid at the time of survey, and the balance in one year. Upon which payment being made, Haines was to execute to Brown a general warranty deed.

Brown went into possession, and enjoyed the rents and profits up to the year 1836; made some small improvements; and cut and sold some timber. Haines negleeting to make a survey of the land, some time in the year 1833 Brown procured a survey to be made, with which Haines expressed himself satisfied. Upon survey being made, Brown, by the terms of the contract, was bound to pay down $25 ; and the balance of the purchase money within one year. Brown did not, .at the time of the survey, or at the time Haines expressed himself satisfied with it, pay the $25 ; nor has he, up to this time, paid one dollar of the purchase money. Two or three years after Brown should have paid the purchase money, and the land had risen in value, and a part of it had been sold to Carr, Brown proposes to complete'the contract, and Haines declines.

* A court of equity will not lend its assistance to enforce the

specific execution of a contract for the purchase of land, unless the party seeking it has performed all the contract requires of him. In the language of the books, he must show himself ready, desirous, prompt, and eager.

Bill dismissed.  