
    Betts v. Cralle.
    Tuesday, April 24, 1810.
    I. Attorney in pact — Contracts Thereof — Liability.—If an attorney in fact undertake to llave a tract of land (with the situation of which he does not profess himself personally acquainted) surveyed for a part thereof, and upon terms “in case the land cannot he found, to have a proportional part of the damages which may he recovered hy his employer of the person of whom he bought, and a proportional part of his expenses paid,’' he is not hound to have it done at all events; but only to a faithful performance, according to the best information he can obtain.
    a. Same — Same—Mistake—Liability.—In this case, therefore, the attorney in fact being imposed upon by the County Surveyor, and, in consequence of such imposition, having a survey made of land not purchased by his employer, was held not responsible for his mistake, and not thereby barred of his claims under the contract.
    3. Same — Same—Case at Bar. — But, after the survey, the employer having executed a bond to the attorney to make him a conveyance of part of the land so surveyed; and having snatched and torn the bond so given; for which trespass a suit was threatened; and, thereupon, having given two-bonds for money in full satisfaction for tearing the above bond, and for the attorney’s services; the last-mentioned bonds were considered as a bar to any claim of the attorney under the original contract, and adjudged valid and obligatory, notwithstanding the mistake in the survey was not discovered until after those bonds were executed.
    Thomas Cralle, on the 13th day of July, 1798, presented a bill of injunction to the County Court of Lunenburg, against Charles Betts; stating that he had employed the defendant as his attorney in fact 239 to survey and ^secure for him a tract of 3,000 acres of land which he had purchased of Christopher M’Conico; being part of a larger tract, which, as the complainant had been informed, had been located and surveyed for the said M’Conico; that the defendant undertook faithfully to transact the said business, for which the complainant agreed to allow him 300 acres, part of the said 3,000 acres: the said Betts thereupon went to Kentucky, and had a survey of a certain 3,000 acres of land made, purporting to be part of the said M’Conico’s land, and then returned, bringing with him a plat and certificate of the said survey, which, on the face thereof, appeared to be regular and correct: the complainant thereupon supposed that the said Betts had really had the land properly surveyed, and hesitated not to allow him the said 300 acres of land for his trouble; but, as the said Betts was desirous to take money for the said land, (which the complainant preferred,) he gave him his bond for 1001. payable December 25, 1796, and another bond for SOI. payable December 25, 1797, being the sums and times of payment which the said Betts agreed to take for the said land; and, still supposing all was right, he had paid, and taken in, the said bond for 1001.; but, to his utter astonishment and mortification, had since discovered that the whole survey made as aforesaid by the said Betts was erroneous, and contained no part of the land which he bought of M’Conico, but was located upon lanas belonging to other people: “the said Betts must have been guilty of a fraud or criminal neglect of his duty as attorney, because he had a true plat of M’Conico’s larid, by which he might have made a true survey, which he had not done.” The complainant had, therefore, “under the influence of a deception, and without any consideration,” paid the said sum of 1001.; and yet the said Betts had brought a suit, and recovered a judgment against him on the said bond for 501. He therefore prayed an injunction, which was granted.
    The defendant filed his answer, stating that he had got the surveyor of Harrison County, Kentucky, in which the 240 *'lands were said to be situated, to survey 3,000 acres, part of M’Conico’s grant, according to copies of the said grant, and of the agreement with the said M’Conico, furnished him by the complainant; a fair and true copy of which survey, signed by the said surveyor, he produced to the complainant on returning from Kentucky ; that, upon producing the same, the respondent demanded the complainant’s bond to make a title to 300 acres, part thereof, agreeable to contract, which he then refused to give; after which the complainant applied to the respondent for a copy of said plat, and said that he would go out to Kentucky himself, and, in case he should find the services aforesaid had been rendered, he would, on his return, give his obligation to make a title to 300 acres of said land to the respondent; that a copy of said plat was accordingly delivered the complainant in 1795; that he went to Kentucky, and (the respondent hoped to prove) viewed the lines of the said land, and had the same transferred from M’Conico to himself, by the Commissioners in that country, and was so well pleased that, shortly after his return to this State, (viz. October 28, 1795,) he gave his bond in the penalty of 3001. with condition to convey to the respondent a good and sufficient title to 300 acr.es, part of the said 3,000 acres of land, agreeable to the original plat which was then before him, specifying where to begin, and how to be extended for quantity; that there were only two witnesses then present who attested the bond; and, the contract being for land, the respondent supposed it necessary to have a third witness, and about three days after, applied to the complainant to reacknowledge said bond, which he consented to do; and, the third witness being called upon, and the bond produced by the respondent, to the great astonishment of the respondent, the complainant made a most indecent catch at the said bond, and tore nearly half of the same off, having his name on the part which he so disgracefully snatched away. The respondent, therefore, being about to commence a 241 suit against the complainant *'for his conduct aforesaid, the said complainant agreed to give his two bonds, in the bill mentioned, for 1001. and 501., to the respondent, provided he would quit all claim to the said 300 acres of land; all which was immediately agreed upon; the bonds were executed, and the original plat delivered up to the complainant; that, about two days afterwards, the complainant was offered 501. cash more than he had allowed the respondent for said 300 acres of land, which he refused to accept,, as he had previously viewed the said lands, and knew they were valuable.
    The respondent denied all fraud on his part; declaring that the copy of the grant furnished him by the complainant (the water-courses corresponding with the survey which he caused to be made) was all the guide he had in the agency intrusted to him ; and concluded with praying a dissolution of the injunction.
    Sundry affidavits were taken which fully proved the circumstances set forth in the answer, relative to the complainant’s executing, and afterwards snatching and tearing his bond for the 300 acres of land, and relative to his giving the bonds for 1001. and 501., “which were understood to be in full satisfaction for the breach of Cralle in tearing the above bond, and also full compensation to the said Betts for his services rendered the said Cralle in Kentucky;” but on Cralle’s behalf, it appeared in evidence that Betts, when he applied for the first mentioned bond, wanted his 300 acres laid off in a certain part of the land where he said there was to be a ferry place; that Cralle refused to give the said bond until Betts agreed to have them laid off in another place; and that, after it had been signed, the said Betts said that he had got the land in the very place he wished it, being the part to which Cralle had objected.
    The deposition of John Tittle, the surveyor, stated, that he was called upon by the defendant as agent for the complainant, to shew M’Conico’s survey, and lay off and survey 3,000 acres out of the same for 242 the complainant; that, ^having surveyed an entry made in the name of a certain Mr. Rogwood, which called to adjoin M’Conico’s west line, he supposed he could find said M’Conico’s survey; that he went in search of M’Conico’s lines, but, not finding any, proceeded to lay off the complainant’s 3,000 acres; and that he had since found, from the copy of M’Conico’s entry, that the said 3,000 acres were not within 240 poles of said M’Conico’s survey aforesaid. From other evidence it appeared that this discovery was made in the fall of 1796; after Cralle had given the money bonds, but before that for 1001. had become due.
    The defendant proved by the affidavit of John Knight, jun. that, in September, 1795, the witness was in the state of Kentucky, and accompanied the complainant and the same surveyor to see the 3,000 acres of land, said to have been surveyed out of Christopher M’Conico’s survey; that the surveyor then said he had laid off the same at the instance of Charles Betts, attorney in fact for the complainant; that they examined the greater part of the corners and lines of the said land, and found them plainly and well marked: the complainant expressed himself much satisfied at the faithful execution of the business by his said attorne}'; so much so, that he had 400 acres (part of the said 3,000) laid off, which he had previously sold to a certain Fames Claughton then present. The witness heard nothing said in contradiction to the validity or legality of the said survey of 3,000 acres; but understood it was generally believed by the neighbours to be a part of a large survey granted to Christopher M’Conico.
    Among the exhibits were copies of M’Conico’s grant, for 14,137 acres, by certain metes and bounds expressed therein, and of his obligation to Cralle, to make him a title “to a certain tract or parcel of land containing 3,000 acres, lying and being in the County of Fayette,” (from which Harrison County was afterwards taken,) “in the District of Kentucky, and bordering on Main Ricking Creek, being a part of the grant above mentioned;” 243 but without specifying any *other boundaries; also, a copy of the survey made for Betts, attorney for Cralle, purporting to be of 3,000 acres out of a survey of Christopher M’Conico’s, containing 14,137 acres; “beginning at a beech on the said M’Conico’s west line, on the bank of Main Ricking,” &c.
    The County Court dissolved the injunction, and afterwards dismissed the bill: but, on an appeal, the late Chancellor "Wythe reversed their decree, with costs; and adjudged and decreed that Betts should refund the 1001. he had received, with interest thereupon from the time of such receipt until paid; that the injunction be made perpetual; that Cralle convey, with warranty, against himself, and claimants under him only, to Betts, at his costs, the said Cralle’s right to 300 acres of land, part of the 3,000 acres certified by John Tittle to have been surveyed by him; and that Betts pay to Cralle his costs in the County Court: •from which decree Betts appealed.
    Wickham, for the appellant.
    The testimony clearly proves that Betts did every thing in his power to secure the land. The fault, therefore, was in the surveyor; or, perhaps, M’Conico’s land was ideal; for there is no evidence that it could be found at all. But, however this might be, Cralle was guilty of very improper conduct in snatching the bond out of Betts’s hand, and tearing it. A compromise was after-wards made, which closed the previous transactions. It was agreed that Cralle should pay 1501. at several payments, in full compensation for tearing the bond, and also for Betts’s services in Kentucky; and this compromise ought not now to be disturbed.
    There is no ground to impute to Betts any unfair conduct. He (as well as Cralle himself) was imposed upon- by the surveyor; and, where there is no fraud, the equity on both sides being equal, the law should prevail. Besides, Cralle may still sue M’Conico for damages, if his land be really lost; or may maintain an action against the surveyor: but Betts has no remedy, ex-244 cept against *Cralle, for the great trouble and expense which he incurred on his account.
    Call, contra,
    did not pretend to justify Cralle’s conduct in tearing the bond; but neither could Betts be justified in endeavouring to impose on him. According to the terms of the original agreement, all that Betts had a right to, (the land being lost,) was his proportion of such damages as might be recovered of M’Conico; but he was certainly not entitled to the land, having not complied with the agreement on his part. The first bond, therefore, smells of imposition; being for an absolute conveyance of 300 acres of land which Betts was not entitled to; and the last bonds were without any consideration at all. Cralle’s weakness and fear of being prosecuted for tearing the bond, are not sufficient reasons to bind him. There is strong reason from the testimony to believe that M’Conico’s land, with due diligence, might have been found. If a man covenant to do a thing, he is bound to do it at all events, if it be practicable. Nothing can discharge him, but proving it to be impossible.
    The decree was right, except that the Chancellor ought not to have given Betts the land: for he is not entitled to any thing.
    Wickham, in reply.
    The Chancellor’s directing the 300 acres to be conveyed was a matter of moonshine; having himself decided that no such land existed. Mr. Call sets off the improper conduct of Betts 245 against that of Cralle: *but there is no proof of any improper conduct on the part ot Betts; nor even of any negligence. It was his own interest to find the land ; for he was to have part of it. Cralle’s own measure of diligence was a good rule to measure that which Betts was bound to exert. He went himself to Kentucky, and had the same land surveyed. The bond for the 300 acres was not a void act. The parties were able to bind themselves by their contract, and did so. Mr. Call contends that Betts committed a fraud in taking that bond; the condition being to make an absolute conveyance. But, the bond having been destroyed by Cralle, this cannot now be presumed in his favour: on the contrary, the bond should be presumed to have been in pursuance of the contract.
    Neither is there any proof that the money bonds were obtained by terror. Betts accepted them in bar of his claim under the original contract, as well as in satisfaction for the trespass. How, then, can he have the benefit of that contract now? The Chancellor ought, indeed, upon annulling the compromise, to have restored us to our original cause of action: but this he has not done.
    Friday, April 27th.
    
      
      Note by the iieporter. The original agreement, hearing date the 13th of March, 1794, (which was among the exhibits, though not described as a written contract, either in the bill or answer.) contained a clause “that in case the land could not be found, Belts was to have, in proportion of money and damages that Oralle might recover of M’Gonico for his non-compliance in making him a lawful title to the said 3,000 acres of land, as 300 is to 3.000; and the said Cralle was to bear the above proportion of the expenses attending the laying off the said 3,000 acres of land, and other contingent expenses, in like proportion as 300 is to 3,000.
    
   The Judges pronounced their opinions.

JUDGE TUCKER.

The circumstances of this case appear to be extremely hard. The complainant appears to be a loser, without the fraud, default, or neglect of the defendant, who seems to have proceeded to perform his undertaking to have the lands, purchased of M’Conico, in Kentucky, surveyed with fidelity, and, as far as in him lay, with prudence and discretion. The county surveyor, a sworn public officer, was, of all others, the person most proper to apply to, to noint out and divide lands located in a wilderness. That the surveyor acted unfaithfully appears evident from his own depositions. He imposed first upon Betts, and afterwards upon Cralle 246 himself. It would seem *to me that the bond which Cralle tore, being given by him and accepted by Betts for a conveyance of lands therein particularly described, was pleadable in bar of any action or suit for a specific performance of the original contract, or for damages for the breach thereof; (except, perhaps, for expenses incurred by Betts;) consequently, Mr. Call is mistaken in supposing Betts might still avail himself of that contract. The second and third bonds, given when the compromise took place, not only in full satisfaction for the 300 acres of land claimed by Betts, but as full compensation to him for his services rendered, cannot therefore be said to have been given without any consideration. Cralle either has or may have, the whole lands, now, if found; or, if they cannot be found, he has his action against M’Conico for damages. Of those damages Betts, under the original contract was entitled to a proportion ; to which, as also to all other recompense for his trouble and expenses, he has by the compromise yielded all claim. I cannot think it competent to a Court of Chancery to set aside so many deliberate acts between the parties, and reinstate the original contract between them. I am therefore of opinion, that the Chancellor erred in reversing the decree of the County Court, and that his decree ought to be reversed, and that of the County Court established and affirmed.

JUDGES ROANE and FEEMJNG,

were of the same opinion. The decree of the Chancellor was therefore unanimously reversed, and that of the Countj' Court affirmed.  