
    Samuel McCorkle vs. John L. Brown et al.
    A. sold, by giving bond for title, a section of land to B. and C. jointly, for $ 8000; one half paid in cash, the other secured by the joint note of B. and C., due in twelve months. A. was to make a deed when the note was paid and the bond given up to him. Soon after the sale, A., at the request of B, and C., conveyed by deed the north-east quarter of the section to D.; and B. and C. indorsed on the bond that the deed to D. was in part discharge of it. B. and C. afterwards divided the section ; C. to have the west half pro. vided he paid A. the residue of the purchase-money; and B. to have the south-east quarter for the one half of the sum paid A. in cash; C. accordingly relinquished this quarter to B. and gave A. authority to make the deed thereto to B. After this, at the request of C. alone, A. conveyed to E. sixty-eight acres of the west half, and agreed to convey ten acres more to F.; C. paying to A. the proceeds of the sales to E. and F., to be credited on the note of B. and C., held by A. The rest of this note being unpaid, A. filed his bill against B. and C. to compel a payment of the money by a sale of the land yet owned by B. and C. The former resisted a decree of sale of the south-east quarter allotted to him on the division between himself and C., on the grounds, 1st. That A., by the sales to E. and F., had put it out of his power to specifically perform his contract, and so could not compel performance by B. and C. 2d. That by his knowledge of the division between B. and C. and his sales to E. and F., at C.’s sole instance, he had impliedly released the quarter section claimed by B. and agreed to look to C. alone: Held, that neither position was tenable, and that A. was entitled to a specific performance of the contract of payment by B. and C., and in default thereof to a sale of the-west half of the section not sold to E. and F., and the southeast quarter held by B.
    To entitle one party to the specific performance of a contract, it is not necessary that he should have performed or be able to perform his part of the contract to the letter; it is sufficient if he shows that he has not been in fault, and that he has taken all proper steps towards performance.
    Where one party to a contract has so far performed his part, that he cannot be placed in statu quo, a court of equity will decree specific performance by the other.
    A party may by parol waive his right to call for a specific performance of his contract, but such waiver must be clearly and distinctly proved. Slight circumstances will not prevail to establish it; they must tend absolutely and unequivocally to show an intention to waive the right.
    Whether a mortgage or other lien by deed or bond for the payment of money is extinguished or released by payment alone, without a formal release,— Quare.
    
    On appeal from the vice-chancery court; Hon. Henry Dickinson, vice-chancellor.
    MeCorkle filed his bill in the vice-chancery court at Holly Springs against Bybee, Brown and others, in which he states that on the 10th May, 1839, he contracted to sell, to Bybee and Brown jointly, a section of land, for $8000. They paid him $4000 cash, and gave him their joint note for $4000, payable one year from that date. On the same day, McCor-kle executed to Bybee and Brown a title bond, conditioned to make to them a good and sufficient title in fee simple to said section of land “ upon the payment of the purchase-money.” Soon after that date, MeCorkle, at the joint request of Bybee and Brown, made a deed to Tait for the north-east quarter of the section, in part discharge of said title bond, and the indorsement of Bybee and Brown to that effect was made on the bond. On the 16th April, 1840, “at the special request of Brown, MeCorkle conveyed to Brown alone, sixty-eight acres, which were parcel of said section, and took the acknowledgment in writing of said Brown for said conveyance of said sixty-eight acres, as part discharge of said title bond.” “ On the joint request of Brown and one Coghill,” MeCorkle also agreed to convey ten acres, parcel of said section, to Coghill, which sixty-eight acres and ten acres were in the west half of said section. Said sixty-eight acres and ten acres were so disposed of “ to enable Brown to raise money to pay off in part the residue of the said consideration moneyand Brown did afterward pay $1675 of the debt, which is the only sum paid on said note.
    MeCorkle further charges, on information, that Bybee and Brown have agreed upon a division and have divided said section between them, which division, he is informed, is indorsed upon said title bond. He insists that he “was no party to any such division, and has had nothing to do with the same, and had no knowledge of the same until very recently, and is in. no way bound by it.” States that he has repeatedly requested Bybee and Brown to pay the note: that he has a good title to said section, and is able and willing, and has ever been ready, and still is, to perform his part of the contract, and offers now to perform. Prays, that Bybee and Brown “be compelled to perform their part of the contract,” and that, on their default, the west half and the south-east quarter of said section, except the said sixty-eight acres and ten acres be sold to satisfy the amount due on said note.
    Bybee answers and admits the purchase, the payment of $4000, and the giving of the note and title bond, and the deed to Tait for the north-east quarter, as stated. He makes the title bond a part of his answer, and shows thereon the agreement for a division of the section between Bybee and Brown; by which agreement, so indorsed on the bond, .Bybee relinquished the west half of said section to Brown, upon condition, however, that Brown would pay the note to McCorkle : and Bybee also agreed that McCorkle might make title to Brown for the west half, provided Brown paid the note. Brown thereby relinquished to Bybee the south-east quarter of said section reciting’that Bybee had paid $2000 to McCorkle for the same, and agreed that McCorkle should convey said quarter to Bybee. Bybee further states that the agreement for a division of said section was made long before the conveyance of sixty-eight acres to Brown, and the agreement to convey the ten acres to Cog-hill, and charges that McCorkle knew of the division soon after it was made; that McCorkle never consulted him in relation to the transactions as to the sixty-eight acres and ten acres; that he has paid McCorkle for the south-east quarter of said section, and denies that McCorkle ever called on him to pay any part of said note until a short time before filing this bill, and not until he, Bybee, called on McCorkle for a deed to the south-east quarter. He charges that Brown is insolvent, insists that McCorkle has so dealt with Brown in relation to said west half of said section, and so recognized and ratified the agreement for division between Bybee and Brown, that he cannot hold him, Bybee, responsible, or charge the south-east quarter of said section ; that, if he had not been so lulled into security by McCor-kle, he could and would have obtained security from Brown before he became insolvent; that, by reason of the dealings between McCorkle and Brown, he has always believed he was no longer liable on the note, and avers that the transactions in relation to the sixty-eight acres and ten acres were had without his knowledge or consent. Denies the right of McCorkle to the relief sought, and prays that McCorkle be compelled to make him a deed for the said south-east quarter.
    The title bond, which is an exhibit to the answer of Bybee, is conditioned to make a deed in fee for the whole section, to Bybee and Brown jointly.
    Brown was examined as a witness on behalf of Bybee. He proves that the division of the section between himself and By-bee, was made shortly after the purchase from McCorkle; that McCorkle was informed of the division immediately after it was made, and before he sold the sixty-eight acres, &c; that McCor-kle so conveyed the sixty-eight acres and agreed to convey the ten acres, “without the knowledge or consent of Bybee,” as he believes; that he was good and solvent for at least a year after the note fell due, and he thinks, for two years after. States that his half of the section was worth $1500 more than amount due on the note, and would have sold for that much more even six months after the note was due, although the property had then greatly depreciated in value. Believes that McCorkle looked to him alone for payment, and made no demand of Bybee till about the time of this suit. Does not recollect that McCorkle ever spoke of the liability of Bybee for the debt; that he sold the sixty-eight acres to Kelly. Evans proves that Bybee paid ¡$2,000 at the purchase on the 10th May, 1839. The vice-chancellor decreed that, unless Bybee and Brown paid the sum due by a given day,*the whole of the west half of said section should be sold to pay the same, excepting said sixty-eight acres and ten acres, parcel of said west half; which sale was had, but the lands sold did not bring the amount due. Whereupon a further decree was made, directing a sale of the south-east quarter of said section, that is, of Bybee’s share. From this decree Bybee appealed.
    
      Van Winkle and Potter, for appellant.
    The decree is erroneous. McCorlde was not entitled to demand a sale of the south-east quarter of the section.
    1. McCorlde had no right to or lien upon this south-east quarter. He had ratified and adopted the agreement and division of the land, made between Bybee and Brown : he had, in pursuance of that agreement, consented to look to Brown alone for the payment of the note. He has released Bybee and this south-east quarter, which was the share of Bybee upon the division, from all liability on account of the note. On this point the testimony was elaborately reviewed.
    2. McCorlde shows that he cannot perform his part of the contract. He cannot convey to Bybee an undivided interest in the whole of that part of the section to which Bybee is entitled to demand a deed on payment of this note. McCorlde cannot convey to him any title to the sixty-eight acres, for the proof shows that Brown has conveyed that to Kelly. The bill does not seek a sale of the sixty-eight acres, nor of the ten acres, but admits that they have been so disposed of, that McCorlde cannot give Bybee any title as to them. If McCorlde had title to these tracts, they should have been decreed to be sold before a decree against Bybee. Gilmore V. Black, 2 Fairfield Rep. 488; 3 Sugden on Yendors, p. 250,168. As McCorkle has, without the knowledge or consent of. Bybee, so conducted with Brown that he cannot perform his part of the contract, he is not entitled to call on Bybee for a specific performance. “ He who asks a specific performance, must be in a condition to perform himself.” Morgan v. Morgan, 2 Wheaton, 290; 2 Story Eq. sections 749, 746, 776, et seq.; 1 Wheat. 179; 6 Peters, 402; Fonbl. 162, n. i. 467, n. (29); Reed v. Noe, 9 Yerger, 283.
    3. By conveyance of the sixty-eight acres to Brown, McCor-kle forfeited the condition of his title bond; he was himself liable to an action. Newcomb v. Brackett, 16 Mass. 164; Hopkins v. Young, 1L Mass. 306; Main’s case, 5 Coke’s Rep. 21.
    
      4. The bill shows the title bond made to Bybee and Brown was “ conditioned to make them a good and sufficient title in fee simple to said section of land, upon payment of the consideration money.” The conditions of the contract — the payment of the price and the giving the deed — were dependent conditions. MeCorkle was bound to tender a deed on demanding the money. Johnson v. Wygant, 11 Wend. 51. Yet, the decree orders payment, absolutely, and a sale of the land on default of payment, without any direction that MeCorkle shall execute a deed in case the money is paid. It may be that the bill does not correctly recite the condition of the title bond; but the complainant must abide the allegation of his bill. “ No facts are properly in issue unless charged by the bill; nor can relief be granted for matters not charged, although they may be apparent from other parts of the pleadings and evidence.” Story Eq. PI. § 257; Harrison v. Nixon, 9 Peters, 503.
    5. The ten acres must' be sold before the share of Bybee can be subjected. The bill shows that MeCorkle has only “ agreed” to conyey this tract to Coghill. There is no pretence that the price of it has been credited on the note.
    6. MeCorkle so contracted with Brown as to delude Bybee and induce him to believe he was not liable on the note. The acts of MeCorkle were just such as would lead Bybee to suppose that MeCorkle looked to Brown as the sole debtor under the agreement for a division. When he had so lulled Bybee intb security, until Brown had become insolvent, and the land greatly depreciated in value, will a court of equity aid McCor-kle to enforce the collection of the debt from the land of Bybee ?-
    
      Glenn, on the same side.
    
      W. Thompson, for appellees.
    I contend that when this suit shall be relieved of all obscuration of law and of facts, to which it seems to be subjected by the learning and ingenuity of counsel, so that it cannot be said of it, nox atra cara circumnolat umbra,” it will be found to be a simple, plain case, in which the vendor is entitled to a decree for the sale of bargained premises for the purchase-money, he having retained the title for the security of his debt. And 1st. The defendants were joint purchasers, joint debtors; and neither of them can by virtue of their original agreement with complainant, nor by any subsequent understanding, and agreement betwixt themselves (such as stated in their answers) whether had or made, with or without the knowledge, acquiescence or consent of complainant, assume the attitude of a surety for the other.
    2d. Bybee, in claiming exemption from liability for the unpaid purchase-money, from the facts stated by himself, shows himself to be equally mistaken, whether he relies on a discharge by contract, or by the conduct of complainant in relation to him as security or quasi security for Brown.
    3d. The complainant has done nothing that would release Bybee, e^en were he the mere surety of Brown, and the west half of the tract mortgaged to secure the debt, for McCorkle has made in good faith most out of the fund that could have been made.
    4th. The complainant has done nothing, impliedly or expressly, to forfeit his right to a decree for the sale of all the unconveyed part of the premises for the payment of the balance of the purchase-money.
    
      W. G. Thompson, on same side.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

On the 10th of May, 1839, McCorkle sold to Brown and Bybee a section of land for $8000, one half of which was paid in hand, and the balance secured by a promissory note payable in twelve months. McCorkle executed a bond conditioned to make title if the note should be paid at or before maturity, and the bond delivered up. On the 16th of May, 1839, at the joint request of Brown and Bybee, McCorkle by deed conveyed the north-east quarter of the section to General Tate, and the receipt of the deed was acknowledged by Brown and Bybee, by an indorsement on the bond in part discharge thereof. On the 28th of May, Brown and Bybee agreed on a partition of the section, by which Brown was to have the west half, provided he paid the balance of the purchase-money to MeCorkle, and Bybee was to have the south-east quarter, for $2000, which sum he had paid on the original purchase. Brown therefore gave a relinquishment for this quarter section, and authorized MeCorkle to give to Bybee alone, a deed. Afterwards, MeCorkle, at the request of Brown alone, conveyed to Kelly sixty-eight acres of the west half, and agreed to convey ten acres more to Coghill. These parcels of land were conveyed in order to enable Brown to pay part of the purchase-money, $1600 of which he did pay, leaving the balance of the $4000 note unpaid. At the maturity of the note, Brown was solvent, but has since become insolvent, and this bill was filed to coerce a specific performance of the contract, and, in case of a failure to pay the money, the 'prayer is, that the remainder of the west half, after deducting the seventy-eight acres conveyed at the request of Brown, and also the south-east quarter owned by Bybee, be sold to pay the balance remaining unpaid. So far as Brown is concerned, the complainant’s right is not contested, but Bybee resists the complainant’s right to resort to him, or to subject the south-east quarter of the section to the payment of the residue of the purchase-money. His defence rests upon two grounds; first, the inability of MeCorkle to convey according to his contract; second, that he has released Bybee, as well as the lien on his land, by his acquiescence in the agreement between Brown and Bybee, by which the former agreed to pay the residue of the purchase-money.

On the first point it is contended that MeCorkle, by the conveyance of the seventy-eight acres, part of the west half of the section, at the request of Brown alone, has placed it out of his power to fulfil his contract, which was to convey to Brown and Bybee jointly, and that he thereby committed a fraud on Bybee. The doctrine is then invoked, that a specific performance will not be decreed unless the party who seeks it is in a condition to perform his part of the contract. This is the general rule, as laid down in the case of Morgan v. Morgan, and the other authorities cited, and its correctness will not be questioned, It results from the plainest principles of equity. Where there are mutual obligations, the party who seeks the aid of a court of equity, must show that he is ready and willing to do justice before he can exact it of others. But equity does not exact more than justice, and it is perfectly manifest that if a court of equity were to require, in all cases, a literal performance on the part of the complainant, it would give the defendant an undue advantage. Equity must afford equal protection to both parties ; hence it does not, in all cases, require a complainant seeking to coerce performance, to show a performance on his part, or even an ability to perform literally ; but he must show that he has not been in default, and that he has taken all proper steps towards performance on his part; and if the noncompliance does not go to the essence of the contract, relief will be granted. 1 Story’s Equity, § 771. And it is further laid down, that if a man has performed a valuable part of an agreement, and is in no default for not performing the residue, then it is but reasonable that he should have a specific execution of the other part of his contract; or at least should recover back what he has paid so that he may not be loser. Ib. $ 772. On this subject Judge Story has forcibly expressed himself in this language: “Where the terms of an agreement have not been strictly complied with, or are incapable of being strictly complied with; still, if there has not been gross negligence in the party, and it is conscientious that the agreement should be performed; and if compensation may be made for any injury occasioned by the noncompliance with the strict terms; in all such cases courts of equity will interfere, and decree a specific performance. For the doctrine of courts of equity is not forfeiture, but compensation; and nothing but such a decree will, in such cases, do entire justice between the parties.” Ib. § 775. This was the doctrine of Lord Redesdale in Davis v. Hone, 2 Sch. & Lef. 347. And again, in the case of Lennon v. Napper, Ib. 684, the same learned judge field that where a party was not entitled to a remedy at law, in consequence of an inability to make the proper averments of performance, a court of equity might still give relief if he had acted fairly. It seems, then, that the rule is to be taken with qualifications. And now let us make an application of the law to the facts of this case. McCorkle, it is true, is now unable to convey seventy-eight acres of the west half of the section; but does this inability result from his default? Has he been guilty of gross negligence, or bad faith ? Or does his inability to convey go to the essence of the contract, and operate to the prejudice of the other party ? This case has been argued as though it was a controversy between Bybee alone and McCorkle. It is said that if Bybee pays the money he cannot get a title; the rights of Brown have been entirely overlooked. Before it was urged that By bee could not get a title to the whole of the land on payment of the residue of the purchase-money, his right to it ought to have been shown. It must be remembered that Brown has already paid nearly half the amount due, and on payment of the balance Brown would be entitled to so much of the land as he had paid for. Now we must suppose the west half of the section, three hundred and twenty acres, was worth $4000. If Bybee were to pay all that was left unpaid by Brown, he would not be entitled to the whole of the residue of the land, after deducting the seventy-eight acres sold by Brown. He is therefore complaining that McCorkle cannot make title without a right in himself to demand, or to receive, that title. It is plain, then, that Bybee, by paying the purchase-money, could have got all that he was entitled conscientiously to receive. Brown cannot, nor does he complain that injustice is done to him. At his request McCorkle conveyed seventy-eight acres. On that he claims no lien; that he relinquished. A decree of specific performance, then, does but entire justice between the parties. But there is an additional consideration. McCorkle, at the request of both parties, conveyed'away the north-east quarter; he performed that much of his agreement, and relinquished his security on that part, taking the three remaining quarters as security for the whole. By that conveyance he" was prejudiced by the act of the respondents, and could not be placed in staty quo, and in such cases equity will compel specific performance. 1 Story’s Eq. §772. No act of bad faith is fixed on McCorkle. His conveyance of the seventy-eight acres was in effect authorized by the agreement between Brown and Bybee, which was a partition to be absolute on payment of the purchase-money. Bybee could claim no further interest in the matter than that the land should remain as a security for the debt; in diminishing the quantity of land on which the security operated, the debt was also diminished in an exact proportion, by the application of the money the land sold for to the payment of the debt for which it was liable; and the security now bears the same proportion to the debt which it did at first. Bybee’s risk has been in no way increased. The acts of McCorkle seem to have been rather in compliance with, than in violation of his contract. By the contract each vendee acquired an equity to an undivided portion of the land, and the one cannot claim the whole when a part of the money has been paid by the other. McCorkle retained a lien on the whole of the land, and he does not ask that it shall be enforced against one to the prejudice of the other. To refuse him the benefit of that lien, would be unjust to him, without any just claim to such exemption by the other parties.

In the next place we are to inquire whether McCorkle has released Bybee, and also the lien on his land by his acquiescence in the contract of partition between Brown and Bybee. No express release is urged; but it is said that it must be implied from circumstances, the first of which is, that he knew of the contract; and the second is, that at the request of Brown alone he conveyed the seventy-eight acres. We admit the doctrine that a party may waive his right to call for a specific performance. This was admitted in the case of Price v. Dyer, 17 Vesey, 356, but it was said that a parol waiver would not bar a specific performance, unless it was clearly and distinctly proved. In that case a new contract had been made, which materially changed the stipulations of the first, and yet it was decided that the first was not thereby abandoned. It must be perfectly clear that no implied waiver, as between the vendor and vendee, can operate to defeat an express lien, unless it is shown beyond a doubt that such was the intention and purpose of the vendor. Slight circumstances will not do to rely on; and when such a result is to be established by circumstances, they must tend inevitably to show that the intention of the vendor was to abandon his lien. If his acts were fraudulent as to others, that would alter the case. But we have already shown that the acts of McCorkle were not a fraud on Bybee, by showing that the debt was diminished in proportion to the security, and by showing also that, even on payment of the residue of the purchase-money, Bybee could not have claimed the whole of the balance of the west half of the section, after deducting the seventy-eight acres; there was still a portion to which Brown was entitled. The mere circumstance that McCorkle knew of the contract between Brown and Bybee, amounts to nothing. It was one they had a right to make; it was conditional only, and if McCorkle had expressly assented, we do not see how this could have affected his lien, as the condition would constitute a part of his contract also, and if not performed, his lien was uninterrupted; though we do not decide on the effect of an express approval by him of the contract; no'such thing is established. He had retained the legal title as a security; he cannot be compelled on slight circumstances to part with that title before the object for retaining it is accomplished. His lien was equivalent to a mortgage, which, although extinguished by payment of the debt, cannot be considered as released without an express contract to that effect, and it has even been questioned whether such release must not be by an instrument of equal dignity. Wentz v. Dehaven, 1 Serg. & Rawle, 312; Davis v. Maynard, 9 Mass. R. 242. It is altogether improbable that McCorkle intended to adopt the contract between Brown and Bybee, and rely on that alone, as in that way he would have discharged Bybee from the debt for which he held their joint note; the precaution which he used in the outset forbids any such conclusion. We think, then, that the circumstances do not establish a release or waiver of the lien as to Bybee.

By the answer a credit of $400 is claimed as the price of the ten acres of land; this Bybee was entitled to have entered, and the decree was in this particular erroneous, and the cause must be remanded, in order that this deduction may be made from the balance due, on inquiry made before a master.

Upon the delivery of the foregoing opinion the counsel for Bybee filed a petition for a reargument of the cause; a reargument was granted; but the court adhered to its former opinion, and directed the following decree to be entered, viz.:

This cause came on tobe heard on a transcript of the record from the vice-chancery court at Holly Springs, and was argued by counsel.
“On consideration whereof this court is of opinion that there is no error in the decree of the vice-chancellor, subjecting the south-east quarter of section number seven in the pleadings mentioned, to sale for the payment of the balance of the purchase-money due from said Brown and Bybee to the complainant, on their purchase of the whole section, but there is error in said decree in not allowing to said Bybee a credit for what said Brown received for the ten acres sold to said Coghill, as in the pleadings mentioned, unless said amount should have been embraced in the said credit of $1675 paid by said Brown to complainant, and entered on the note of Brown and Bybee. Said decree is therefore reversed for the above error, and the cause is remanded to the vice-chancery court, with directions to ascertain whether said Bybee has been credited by the price for which said Brown sold said ten acres, and if not to state and allow the same, and McCorkle is ordered to pay the cost hereof.”

The rendition of this or any other decree beyond a reversal of the decree of the vice-chancellor, was resisted in an elaborate argument by George L. Potter, Esq. counsel for Bybee, on the ground of want of power and jurisdiction in the high court of errors and appeals to render such decree, as being mandatory to the vice-chancellor, and depriving him of the exercise of all discretion in the allowance of amendments on the discovery of any new fact, or otherwise; and as being the exercise of a jurisdiction, original in its nature, by a court of mere errors and appeals, not granted either by the constitution' or laws.

The court, however, rendered the decree; which was enrolled accordingly.  