
    JAMES O. LEWIS & AL. vs. FRANCIS S. COXE & AL.
    A Court of Equity will not interfere to enforce the performance of a contract, after the lapse of forty yoars from tho time when it should have been executed.
    The case of Tate v. Conner, 2 Dev. Eq. 224, cited and approved.
    Cause removed from the Court of Equity of Rutherford County, at the Fall Term, 1845.
    The following case was presented by the pleadings and process:
    Prior to the year 1802, Tench Coxe, of Philadelphia* obtained patents for very large tracts of land in Buncombe, Rutherford, and other Counties in the Western part of this State. Among them was a tract, situate in-Rutherford, containing 14,720 acres granted by patent, No. 1023.' and Coxe had convoyed that and others of his lands in this State to Peter Stephen Duponce.au and others, as trustees for certain purposes. On the 14th of May, 180.2, Tench Coxe and his trustees united in a letter of attorney to Peter Fisher, whom they sent out from Pennsylvania, authorizing him to make sale of the lands or any parts of them. On the 17th of July, 1802, Fisher entered into a written agreement with James Miller, who resided at Rutherfordton, for the sale of GOO acres, part of patent No. 1023, and described as *■ lying on the waters of Glaghorn’s creek; the same to be run in a long square, and include the shoal on the stone-cutter fork of the said creek for which Fisher bound himself to make title in ten days, in consideration, of a certain roan gelding then delivered to Fisher. A considerable number of sales and conveyances were made by Fisher to other persons, and he reported them, from time to time, to his employers in Philadelphia, until the revocation of his power in 1807; but this sale to Miller does not appear to have been reported. In 1807, Tench Coxe and his trustees conveyed to Coxe’s son, Tench Coxe the younger, 7360 acres; being the northern part of the tract No. 1023, excluding such lands as had been previously sold to other persons. Tench Coxe the younger, then came to Rutherfordton and resided there until his death in 1814; and during the same period James Miller also continued to reside there. He, T. Coxe, Jun., continued to make sales of parts of the land, and, upon his death, his lands descended to his brothers and sisters, who are the. defendants in this suit; and all of them, except Francis S. Coxe, united in a conveyance to Francis S. Coxe.
    In 1823, Francis S. Coxe employed two surveyors to survey and make a map of the «large tract, with a view to ascertain what parts of it belonged to or were claimed by other persons, and to' have the residue laid off into parcels, best fitted for sale. He instructed the surveyors to ascertain, if they could, the validity of the interior claims ; and that, wherever they could not arive at a eertainty, that a claim was bad, they were to act, in surveying and making the ;map, as if it was good. The instructions then proceed thjis : “ The two following claims must in. this manner (foxi the purpose of surveying) be treated as if they were go<j>d, although I am ignorant, whether they are valid or not!: First: For a sale said to have been made to General James Miller by Peter Fisher, agent, fox' 040 acres of land on the Stone-cutter creek, claimed by Col. Richard Lewis. Secondly, for a sale,” &c. The survey and map were accordingly made in June, 1823; and from the map it appears, that GO tracts or different parcels were claimed under various titles by different persons within the large patent, No. 1023, of 14,720 acres, and were so situated within it, as to leave the unsold ox-unclaimed residhe to consist of 44 separate parcels, containing in the wjhole 7,121 acres. Of the 66 tracts thus claimed by others, that said to have been sold to Janies Miller is one. ft is laid down on the map in his namey as containing G00 acres ou Stone-cutter’s Fork, not in a square or parallelogram, but in a very irregular figure, having thirteen lines, and they, except two, the lines of tracts laid down as having been sold to other persons or-to be claimed by them. The report of the surveyor states the titles of the several claimants to tlie different parcels, all of which they deemed valid except 12 ; and of those 12, the claim of Miller is one. Of it, the report speaks thus:
    “ No. 15 : 000 acres claimed by Richard Lewis, &c. un- “ der a bond given by Peter. Fisher to James Miller in “ 1802, to make him a title — see copy of bond — not lo- “ cated or surveyed, no place of beginning, or courses “ or distances stated in the bond; unimproved — wc can- “ not judge whether it be valid or not — it is put down “ in draft by suppositions.”
    Francis S. Ooxe soon afterwards removed to Tennessee, and appointed Francis Alexander, of Rutherford, his attorney, with power to take care of Ms lands, and sell and convey them. F. Alexander was the public survey- or for Rutherford, and in February, 1835, he made, at the instance of the heirs of Miller, a survey and plan of 600 acres of land on Stone-cutter’s creek, including the shoal, but in a different form from that in the map of 1823, that is to say, having only nine lines, and conveying different land in a great degree.
    The present bill was filed in July, 1843, and charges, that, although the contract was made in the name of Fisher himself, yet that it bound his principals, and that, in fact, the horse, that was given for the land, was received by Tench Coxe the elder, and that he recognized the sale made by Fisher, as did also Tench Coxe the younger. The bill charges, that, from the time of the contract, Miller and those claiming under him were in possession of the land, and claimed it as theirs; that none of it was cultivated or cleared, but that they cut timber on it, and their claim was notorious; that Miller paid the taxes on it, and that neither of the Coxe’s did so after the sale ; and it charges, that the several surveys and maps before mentioned were intended, and were, in fact, acknowledgments by Francis S. Coxe, or his agents, of Miller’s purchase and title. The bill also states, that Miller was prevented by age and infirmity from having the land laid off in his life-time, and getting a Conveyance executed in Philadelphia; that he “ died in the year , leaving Sarah, the wife of Richard Lewis, and another daughter, the wife of James Erwin, his only children and heirs at law ; and that the said Richard and James are both dead, and the said land hath descended to your orators and oratrixes as heirs at law.” The-prayer is for a specific performance, by a decree that the defendants convey to the plaintiff in fee simple “ the said lands.”
    The answers deny all knowledge or information of the sale made by Fisher to Miller, except as the same appears on the face of the instrument executed by Fisher, which the defendant, Francis S. Coxe, first saw and heard of in the year 1823. They deny that either Tench Coxe, the elder or the younger, was, as the defendants believe, informed thereof, or recognized the sale, or received the horse or any other consideration for the land; and they state that Fisher did not include this in any of his reports of sales to his employers; and that, from that circumstance, and the laches of Miller in not getting from Fisher a conveyance, and not making known his claim to either Tench Coxe, the elder or the younger, or to the defendant, Francis S., during Miller’s life, the defendants believe that the contract, if made, was abandoned in a very short time afterwards. The ' defendants also deny, and particularly, the defendant Francis S., that Miller, or any other person under him, ever was in possession of any land under the contract, or cut timber thereon, or paid taxes therefor, to their knowledge or belief; for they say, that the Coxes’ respectively paid taxes on that part, with the other unconveyed portions, of the large grant No. 1023, and that, in fact, the Miller claim was never laid off by Miller or any one claiming under him, or in any manner identified, until the survey made in 1835 by Francis Alexander — which, they say, was made for Richard Lewis by Alexander, as the County surveyor, and not for Francis S. Coxe, or as the agent of Coxe. The defendant, Francis S. Coxe, denies that he intended to recognize and confirm the sale to Miller, by his instructions to his surveyors in June, 1823, or'that they did by the survey and map made for him; and he says, on the contrary, that the sole purpose of the survey was for his private use, to enable him to settle correctly with his father’s trustees for the lands sold by them to his brother Tench Coxe the younger, for which the title was unquestionable, and to enable him to discover what land . he might subsequently sell to others, without danger of any controversy respecting the title : and, consequently, ■ that his instructions and the report both expressly declare, in respect to this claim under Miller, that it was uncertain, whether it was good or not, and, particularly, the report specifies objections to it, which prove it to be invalid, though the surveyors would not undertake to judge thereof.
    The answers then insist on the great length of time that has elapsed, the death of all the immediate parties to the alleged contract long ago, the staleness of the claim, and the difficulty of establishing the actual facts affecting the merits of the claim. An account of the sales of lands within this patent was made up by Tench Coxe, the elder, in Philadelphia, in August 1819, and signed by him with a view to a settlement with his trustees, and it does not include any sale to Miller. This document is proved by several witnesses to be in Ms band-writing, who say also that he died at an advanced age in 1824. It further appears, that Fisher has been dead many years, and also Miller. At what particular time Miller died, is not stated, though it appears that he was alive in 1814.
    The land appears to be situated in the mountainous part of Rutherford, and it is stated by the witnesses, that the average price of such land in 1802 was twenty-five cents an acre. It is proved by one witness, that Fisher got from Miller a fine roan gelding in 1802, and that it was generally understood that it was for land on Stone-cutter’s fork; and by several witnesses, that it was further understood then,'and continually since, that 600 acres of land, around the Shoal of Stone-cutter’s fork, had been bought by Miller from Fisher, as the agent of Coxe, and was claimed by Miller and Ms heirs. Two persons, who purchased land from Tench Coxe, the younger, situate, as appears in the map of 1823, on the North of the land laid down therein as Miller’s, state that they always understood, that Miller’s, purchase adjoined them to the South, and that the land there was always .reported to be 'Miller’s; and, further, that Tench Coxe, the younger, though, often on their land, did not in their hearing set up title to the particular tract called Miller’s.
    The surveyors state, that Francis S. Coxe never recognized to them the claim of Miller ; and that it was laid down in the map merely for his information, as to its situation, whether it was good or bad, and not as acknowledged by him to be good. And Francis Alexander states, that the survey of 1835 was not made by him for Coxe or with a view that he. as Goxe’s agent, should convey the land; for that Coxe did not instruct him to convey it, nor ever admit that it ought to be conveyed.
    No counsel for the plaintiffs.
    
      Alexander, for the defendants.
   Ruffin, C. J.

It will be at once perceived, that the plaintiffs cannot have a decree, for the want of an allegation or proof of the death of their mothers, Mrs. Lewis, and Mrs. Erwin. The bill states that they were the surviving daughters of James Miller, and were his heirs; and that they were then married, and that the husbands subsequently died, and thereupon that the land descended to the plaintiffs as heirs at law. But it does not state, to whom the plaintiffs are heirs ; and, from the structure of the sentence, the grammatical construction is, that the land descended from the plaintiff’s father. This is the unavoidable construction, when it is perceived that in no part of the bill does it appear, that the. mothers are dead. Consequently the land belongs to Miller’s daughters and not to their husbands’ children. We have no doubt, however, that this was a mere slip of the draftsman, and therefore would allow the cause to stand over for an amendment, if the claim itself had merits, or it were at all probable that the plaintiffs could ever entitle themselves to relief. But we are satisfied, they could not get a decree, and consequently that the bill might as well be dismissed at once.

The great lapse; of time, and, especially, taken in conjunction with the vagueness of the contract in respect to the particular hand sold, and with the further circumstance, that nothing was ever done under it, furnishes strong grounds for believing that the contract was abandoned, and, at all events, repels all claim to the interference of the Court of Equity. It was forty-one years after the bargain, before the bill was filed, or any distinct claim set up, as far as is seen. There was, indeed, a sort of reputation, that Miller or Miller’s heirs owned land around the Shoal of Stone-cutter’s fork; but it is not pretended, that even the reputation fixed upon any land in particular, except that two witnesses, who ■owned land in one direction, say, they understood that it came up to their lines — though how they came by that understanding, they do not state. It is certain, that the land they reputed to be Miller’s, is altogether different in form from that contracted for; and that Miller never, either in conjunction with Fisher or Coxe, or even by himself, proceeded to survey, or in any way set apart, any particular parcel as his under the contract. And to this day there has been no such appropriation, that can be respected. Indeed, the bill does not and could not claim any land in particular, for none has been identified, at least as at all corresponding to the description in, the contract; and the plaintiffs are unable to describe any land in their bill, for which they are willing to take a deed. Such being the state of the case, the inference seems a fair one, that Miller and Fisher rescinded the contract; for, otherwise, it would be very extraordinary, that Miller did not take a deed from Fisher, who had authority to execute it for five years after the contract, nor -claim one from either of the Coxe’s, nor even take any step to identify the land he was to have.

The probability is, therefore, that Fisher paid for the horse in some other way, and that in fact the sale was expressly rescinded — especially, as Fisher, though he rcported other sales to bis principals, never reported this. But if it was not expressly rescinded, the Court must treat it as abandoned. Not one act has been done under it, as a subsisting contract for about forty years. The bill, indeed, endeavors to excuse this laches by a statement of Miller’s age and infirmities. But there is no evidence on those points, and the persons, from whom he conld get the title, were resident in the same village with him. The bill also states acts of ownership, such as paying taxes and cutting timber ; but'even those equivocal acts are not proved, nor any thing approaching towards a preparation to get a title, until Miller’s son-in-law, Lewis, in 1835, employed F. Alexander to see if he could not lay •oil’ 600 acres of land around the Shoal in some form. It is very clear, that not one of the Coxe family ever acknowledged the contract as obligatory or subsistent, and that Francis S. Coxe did not mean to do so. or in the least to confirm it by his instructions to his surveyors, and any thing done under them — for they were acts diverso intuitu. There is, - then, nothing whatever to account for the want of diligence on the part of the alleged vendee, or to shed that light upon the transactions between Miller and Fisher, which will enable the Court to see them clearly, so as to be reasonably sure .that we see the whole of them, through the dim obscurity of so long an interval as forty years. The case is not more favorable to the plaintiffs than that of Tate v. Conner, 2 Dev. Eq. 224, in which relief was refused after thirty-four years.

For these reasons, the bill must be dismissed with ■ costs.

Per Curiam.

Decree accordingly.  