
    *Barksdale v. Hendree et al.
    January Term, 1856,
    Richmond.
    Absent, Tyleb, J., and .Field, P.
    'i. Foreign Attachments — Case at Bar, — A. purchases land of B. and before paying for it, and hayingno right to a conveyance until it is paid for, sells to C., who, without receiving a title or paying any of the purchase money, removes from the State. A. then flies a bill by way of foreign attachments, seeking to subject certain funds of C. in the hands of third persons to the payment of the amount which C. agreed to pay for the lot, and also asking that the lot should be sold, and its proceeds, with the aforesaid funds, should be applied first to the payment of the balance due B. by him, on account of the lot, and that the balance should be appropriated to the payment of C. ’s debt to him. Held, the bill should be dismissed.
    2. Same — Statute.—Suits by way of foreign attachment are innovations on the common law, and should be carefully watched, and strictly confined to the ground covered by the statute.
    3. Specific Performance — Discretion of Court. — In suits for specific performance of contracts the courts have and exercise a wide discretion.
    4. Foreign Attachments — Proceeding Must Come w ith-in Meaning of Statute. — In a suit by foreign attachment to subject property of a non-resident, it must be shown that the debt on which the proceeding is based is such an one as comes within the meaning of the statute authorizing attachments. and not merely such an one as might be established, by a suit for the specific performance of a contract, out of which, if enforced, the debt would arise.
    On the 7th April, 1843, Elisha Barksdale, Jr., exhibited his bill in the Circuit Court of Halifax county against John Hendree and others, in which he set forth that in the latter part of the year 1841, he sold to said Hendree a house and lot in the village' of Halifax Court House for the sum of S2,500, in three equal annual installments of $833 33%, the first of which was due the 25th December, 1842; that Hendree took possession of the lot, and continued in the actual occupancy thereof until the fall of 1842, when he removed beyond the limits of the Commonwealth, and was still a non-resident ^thereof; that he had never paid any portion of the said purchase money of said house and lot; and that various sums due said Hendree were in the hands of sundry persons named in the bill. He therefore prayed that Hendree and his several debtors should be made parties to the bill; that the money due and to become due to him for the said house and lot, with its interest, might be paid out of the assets of the said Hendree to be attached in the hands of his several debtors, and that if this were not enough to pay his debt, that the said house and lot might also be attached and sold to pay the balance.
    In September, 1845, Hendree answered the bill, admitting that he had lived in Raleigh, N. C., for eight months after leaving Virginia, and had there offered to pursue the practice of his profession — that of medicine ; but that he had never intended to make Raleigh his residence or to abandon his domicil in Virginia; and that after the expiration of the said period of eight months he had returned with his family to Virginia, and had ever since September, 1843 — the date of his return — continued to reside in this State; that the contract of sale of said house and lot was a merely verbal one, and so was contrary to the statute of frauds; and that at the time of said contract the said Barksdale had not himself any title to the said house and tot,' but had merely a verbal contract for the purchase of it from his vendor.
    In October, 1845, Barksdale filed an amended bill, stating that he had purchased the said house and lot from one Dabney Cosby; that true it was, as stated in the answer, that at the time of the sale by himself to Hendree, the legal title to the lot was outstanding in the said Cosby, and still was so outstanding, the whole purchase money not having been paid to him by Barksdale; that he still owed Cosby for the said lot the sum of $1,395, with interest on $1,000, part thereof, from the 25th day of December, 1842, till paid, and on $395, the remainder thereof, from the 25th day of December, *1843, till paid ; and that the said balance should still be considered a lien on the lot in favor of Cosby. He therefore prayed that the said debts due Hendree and the said lot should be subjected to his claim, and that out of the amount raised for this purpose the balance due Cosby might be paid him.
    Cosby was made a party to this amended bill. He stated that .the legal title to the lot was yet in him, and that the balance due him from Barksdale was properly stated in the bill; that on this balance being paid him, he was ready and willing to convey the legal title to the lot in proper form; and that he had no objection to the amount of said balance being decreed him in this suit, as asked in the amended bill.
    Two depositions and a letter from Hen-dree, dated January 14, 1843, were introduced, proving the contract between Barksdale and Hendree, (the letter admitting it to be as stated in the bill,) and the circumstances connected with it, as stated above, and also tending to prove the non-residence of Hendree. It further appeared, that Cosby had moved out of the lot in order for Hendree to take possession under his contract with Barksdale.
    In July, 1846, the court,' being of opinion that as the plaintiff had not the legal title to the lot, and as it did not appear from the record that he had made such a contract with the defendant Cosby for the purchase of the lot, as entitled him at the time he made the agreement with the defendant Hendree to enforce a conveyance from Cosby to himself, dismissed the bill with costs, but without prejudice to any suit or suits the plaintiff might be advised to bring against either Cosby or Hendree for a specific execution of their several contracts with him.
    From this decree Barksdale appealed to this court.
    Bouldin, for the appellant:
    The case presents but a single point, to wit: whether a party is entitled to a specific performance of a contract, if, at the time of the decree, he is able to make *a good title to the party contracting with him, and no injury has been done that party by the delay? Sandford v. Pitt, 2 P. Wms. 630, shows that a vendor is so entitled, and that in some cases the court will even give him time to perfect his title. This was a suit for specific performance, and though that is not the precise character of the case at bar, it is substantially the same. Suppose Cosby had put Barksdale into possession, and the latter had put Hendree into possession, as he did — under the above case Barksdale would clearly have been entitled to enforce the specific performance of the contract — a fortiori when the original vendor, Cosby, is a party to the suit, and professes to be ready to execute the contract on his part. This question is fully settled by the cases of Wynn v. Morgan, 7 Vesej', Jr. 202; Seton v. Slade, Idem, 26S; Hepburn et al. v. Auld, S Cranch, 262; Roach v. Rutherford, 4 Dessausure, 136; Seymour v. Delaney, 3 Cowen, 446, (a leading case); Young & Bower v. McClung et als., 9 Grat. 336; Reeves v. Dickey, 10 Grat. 138; and they all declare that where time is not of the essence of the contract, it may be enforced, and that the inquiry is whether the plaintiff can make a title, not whether he could do so at the time of the contract. The same principle is stated, as the result of all the authorities, in Sugden on • Vendors, (Perkins’ edition of 1852), vol. 1, $ 3, p. 345 to 346. The court should have decreed against Hendree the payment of the money due by him, first the balance due to Cosby, and then the remainder due to Barksdale, and should then have required Cosby and Barksdale to unite in a deed to Hendree. I can find no authority in support of the decree.
    GILMER, J. Does it follow necessarily that a party is entitled to such relief without a bill for specific performance?
    Bouldin. I think it does.
    *GILMER, J. Can Barksdale go against the property of Hendree in rem, and then ask for specific performance?
    Bouldin. I think so. Equity regards Barksdale as the owner of the debt, and Hendree as the owner of the property. If this were not so, it is obvious that all a party has to do to avoid specific performance, is to leave the State.
    No appearance for' appellee.
    
      
      Attachments. — See monographic note on “Attachments” appended to Lancaster v. Wilson. 27 Gratt. 624.
    
    
      
      Specific Performance.- — See monographic note on “Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.
    
   GILMER, J.

This case has been argued as if it were a suit for specific performance of a contract; but it was, in fact, a proceeding by foreign attachment, the object of which was to restrain the home defendants from paying away certain debts alleged to be due from them to the absent defendant. The preamble to the act authorizing this proceeding recites “that creditors have experienced great difficulty in the recovery of debts due from persons residing without the jurisdiction of the Commonwealth, but who have effects here sufficient to pay such debts.’’ It is an innovation on the common law, and should be carefully watched and strictlj' confined to the ground covered by the statute. (Carr, Judge, in Kelso v. Blackburn, 3 Leigh, 306.)

It is admitted, that the plaintiff, when he filed his original bill, had no right to recover anything of Hendree. He had sold to him the house and lot in controversy and put him in possession, but had not conveyed the title, and had no title in himself, legal or equitable; no legal title, because he had no deed, and no equitable title, because he had no right to demand a conveyance from a court of equity. When this ground was taken by Hendree, in his answer, the plaintiff amended his bill and made Cosby, his vendor, a defendant. He filed his answer, from which it appears that more than two-thirds of the purchase money remained due from the plaintiff to him. The plaintiff, in his amended bill, prays that the money of Hendree by a decree *of the court may be applied to the payment of the purchase money due from him to Cosby, and after crediting Hendree with that amount, that the balance of the purchase money due from Hendree to him may be paid. To entitle himself to such a decree, the plaintiff must shew that 'the contract between him and Hendree was such a debt as comes within the meaning of the statute.' It is not enough for him to shew that specific performance might have been enforced. The proceedings are essentially different. In suits for specific performance the courts have a wide discretion ; indeed, the courts always exercise a discretion in deciding them. On the other hand, (.as has been seen) in proceedings by foreign attachments, they are tied down to a strict and literal compliance with the statute. In a suit for specific performance the only parties would have been the plaintiff, Hendree and Cosby, and the decree, if favorable to the plaintiff, would simply have directed the purchase money to be paid and the title to be conveyed to Hendree; but here Hendree’s debtors are made defendants, and a decree is ■ sought to subject his money in their hands to the payment- of this purchase money, due from the plaintiff to Cosby — -a co-defendant of Hendree, with whom he had made no contract and to whom he owed nothing; and' thus Hen-dree’s money, by a decree of the court, which would, in my opinion, have -been most obviously erroneous, having paid a debt which the plaintiff himself should have paid before he was entitled in this way to come into court — the plaintiff is to have the benefit of this payment, and by means of it to compel Hendree to pay him the balance of the purchase money. There is nothing in the record to show that Hen-dree, at the time when he made the contract, knew that the title was in Cosby. It is true, he states in his answer “that he believes and charges at the time of the contract the plaintiff did not have the title and did not for a long time after.” The respondent, of course, speaks in the present tense, and refers to the time of ^filing his answer, and not to the time of the contract, though that is incidentally referred to; but the very next sentence shews that even then he was wholly ignorant of the facts about the title. The counsel for the appellant relied mainly on the ground that time is not of the essence of a contract. This is a familiar principle, but I do not think it applies to this case. It is an obvious principle both of law and equity, that no one “can have a contract enforced in his favor unless he has performed it or is ready to perform it on his part; and it would apparently follow, from this principle, that if the seller of an estate has contracted to shew a title by a specified day, and has failed to do so, he cannot afterwards enforce his contract. This conclusion is accurate at law, but is modified in equity, and it is said to be a maxim of equity ‘that time is not the essence of a contract in that court.(Adams’ Equity, 224.) In this case, however, no time was fixed within which a title was to be made. Hendree sets up no such defences; no such ground is taken by the able judge who decided the case in the Circuit Court, and I do not suppose he decided it on any such ground. In England, the practice in suits for specific performance, where there is a dispute about the title, is to refer the question of title to a master, and although a suit of that kind may be maintained where the plaintiff had no title when his suit was commenced, if he gets a title in due time, he is required to do so before the report of a master against him. (Sugden on Vendors, p. 306, vol. 1.) But in this case the plaintiff not only had no title at the time when he was asking a decree against Hendree, but he has none to this day, so far as appears from the record. There is strong ground for believing that the property had greatly depreciated in value between the time of the sale and the time when Hendree answered, (see his letter in the record) ; and even if this had been a suit for specific performance, that would have been of itself a sufficient reason against giving the plaintiff relief, *under the circumstances of this case; for it cannot be said that Hendree was in default in not paying a vendor who had no shadow of title, and who was seeking to pay for the land with Hendree’s money. For these reasons, I think the decree manifestly right, and I am for affirming it.

CEOPTON, J., concurred with Gilmer, J.

THOMPSON, J.

I cannot concur with the majority of the court in affirming the decree of the court below. It seems to me, upon the pleadings and the proofs, the plaintiff was entitled to relief, and that the decree dismissing his bill was manifestly erroneous. The reasons assigned by the court in its decree appear to me inconclusive, and I have been unable to discover any other grounds upon which it can be sustained.

At law, time is always of the essence of the contract. In equity, never, unless made so by the express contract of the parties, or by implication arising from the nature of the property or the avowed objects of the seller or purchaser, or the conduct of the parties; and the question always is, on bills for specific performance, when time is not material, or of the essence of the contract, not whether the seller had a good and perfect title at the date of the contract, and could at that time have made a title, but whether, then or subsequently, at the date of the report of the master deducing the title, or the date of the decree, or by the final decree for specific execution, such title can be made to the purchaser?

In one case, Gregson v. Riddle, in 1784, Eord Thurlow is reported to have held that the parties could not, even by express contract, make time material or of the essence of the contract, but that opinion has not received the sanction of subsequent decisions. On the contrary, it has been condemned and overruled, and the doctrine placed upon more rational foundations, according to which, as I have before said, it is never material, or of the essence of the contract, in a court of equity, ^unless made so by the agreement of the parties, express or implied. Sandford v. Pitt, 2 P. W. 629; Seton v. Slade, 7 Vesey, Jr. 265; Winn v. Morgan, Idem, 202; Hepburn v. Auld, 5 Cra. 262; Hepburn v. Dunlap, 1 Wheat. 178; Roach v. Rutherford, 4 Dessaus. 136; 1 Sug. Vend. 345, 346; Seymour v. Delancy, 3 Cow. 446; Longworth v. Taylor, 14 Peters, 372.

There appears to me to be no foundation for the pretension, that by the terms of this contract, or the nature of the property, or the conduct and expectations of the parties, time was of its essence, or material; and as to the contract between Barksdale and Cosby, why assume, as did the court below, that it was such an one as could not be enforced? And of what importance is that circumstance, if properly assumed? Since it is apparent from the record that Hendree knew, when he purchased of Barks-dale, that Barksdale had bought of Cosby, and had not acquired the legal title, and when it is perfectly manifest, since Cosby has filed his answer to the amended bill, admitting the sale to the plaintiff, consenting to the execution of his contract, claiming a balance of purchase money, and offering to convey to Barksdale or his vendee upon payment of that balance, that it was as completely in the power of the court to give Hendree a good title by its decree, as if Cosby had in fact conveyed to Barksdale. The judge who rendered the decree must have thought Barksdale might bring his suit against Hendree and Cosby, successively, for specific execution, or why the reservation of that right in his decree? and if such right existed, as no doubt it did, why dismiss this suit and turn the plaintiff around to bring precisely similar suits, and two instead of one, when that one, now brought, is all sufficient. Instead of dismissing the bill, there should have been a decree requiring Cosby to execute and file a deed to Barksdale, and Barksdale a deed to Hen-dree; and, thereupon, that unless Hendree paid to Cosby the balance due him and the residue of the purchase money remaining of the $2,500, and its interest, to the plaintiff, *'within a period to be prescribed in the decree, the land should be sold, and if it sold for less than the purchase money, a decree over against Hen-dree in favor of Barksdale for the defi-cienc3, and for such deficiency a decree against the home defendants alleged to owe or have effects of Hendree in their hands, if it should be made to appear by answer or proofs that the home defendants owed or had effects of the defendant Hendree (who was a non-resident at the commencement of this suit) in their hands.

Decree affirmed.  