
    Nathaniel H. Tanner vs. Gideon E. Hicks, et al.
    A vendor of land who has taken the notes of the purchaser, and given bond to convey the title when the purchase-money is paid, can, by an assignment of the notes, pass his lien for the purchase-money.
    Where a vendor of land has given a title bond, conditioned to make title to the land when the purchase-money, for which he has taken notes, is paid; and the vendor has assigned the notes, a bill may be filed for a specific performance of the contract, or in the event of a failure to pay, to enforce the lien, in the names of both the vendor and his assignee.
    Objections against the allowance of amendments in the court below, cannot be permitted to have any weight in the high court of errors and appeals; their allowance is in the discretion of the subordinate court.
    In error from the district .chancery court held at Holly Springs, before the Hon. Henry Dickinson, Vice-Chancellor.
    Gideon E. Hicks filed his bill in the vice-chancery court, alleging that on the 6th of March, 1840, Robert L. Travis entered into a contract with Nathaniel H. Tanner for the sale of a tract of land; that Travis executed to Tanner his bond, to make title to the land upon the payment of the purchase-money, and that Tanner executed his two notes of the same date to Travis, for the purchase-money, payable in one and two years, for one hundred and twenty-five dollars each ; that these notes were unpaid, and on the 10th of April, 1841, were assigned for a valuable consideration by Travis to the complainant. The bill prayed a specific performance of the contract; and that Tanner might be compelled to pay the notes, on the failure of which that the land might be sold.
    To this bill a general demurrer was filed on the 8th of July, 1844; and on the 10th of the same month, it was, on motion of the complainant, ordered by the court that he have leave to amend his bill by making Robert L. Travis a party complainant.
    The court overruled the demurrer, and the defendant sued out his writ of error.
    
      
      Marsden and Quillin, for plaintiff in error.
    1st.- The Yice-Ohancellor would allow of no amendments or addition of parties pending the issue joined by the filing of the demurrer. The whole case was then at issue, and upon that issue a decision must be had by decree of the court, or confession of complainant, neither of which was done. This is so far the reason, that even though the case be amendable, or defect of parties amendable, when those defects are taken advantage of by demurrer, regularly filed, the demandant is entitled to his costs when confessed or allowed. Story’s Com. Eq. PI. 361.
    Here was manifest and gross error, in violation of every principle of practice, in the court of chancery, and in total disregard of defendant’s rights.
    2d. That from the facts of this case no bill can be drawn, much less can the present be entertained to authorize the court to give the relief prayed for.
    1. Because this is a bill for specific performance, without which character this court could take no jurisdiction, but leave the parties to sue at law upon the notes for the purchase-money. Seymour v. Delaney, 3 Cow. 505, cited in Fonb. Eq. 31, note.
    2. A bill for specific performance is an application to the sound judicial discretion of the court, which is not to be exercised when the plaintiff has so conducted himself as to destroy all claim to its interposition. St. John v. Benedict, 6 Johns. Ch. R. 117; Ibid. 225 ; S. C. on appeal, 3 Cow. 445; Perkins v. Wright, 3 Har. & M’Hen. 326 ; Simmons v. Hill, 4 lb. 258, and in this case by the voluntary act .of Travis and Hicks, Travis has put it out of his power to perform by the deed in fee to Hicks, and that executed too before the expiration of the time when the purchase-money was due. The plaintiff in equity, if he has not performed his part of the agreement, must not only show that he was in no default in not having performed it, but must also allege that he is still ready to perform it. Pildes v. Hooker, 2 Merriv. 424; Col-son v. Thompson, 2 Wheat. 336; Harvie v. Banks, 1 Rand. 408; Morgan v. Morgan, 2 Wheat. 299, upon the ground that “ he who seeks equity must himself do equity.” *’ *
    In this case it is impossible for Travis to fulfil his agreement with Tanner, and entirely out of the power of Hicks to perform specifically the contract entered into by Tanner with Travis, Tanner having contracted for the title of Travis and having made no contract to receive the title of Hicks, and this cannot be remedied by making Travis a party, for he has lost the title to and character of owner of the land by the deed in fee executed to Hicks, and this court can never replace it so as to authorize its interpositions at the instance of complainants. Hicks is the assignee of the vendor and not entitled to the vendor’s lien. Holman’s Digest, 405; 6 How. 362. There is no instance of a court of chancery compelling a specific performance on the part of the purchaser where the thing contracted for has, by the act of the vendor, tindergone such a change that the difference cannot be compensated by the payment of money. This principle is carried out in the case of Magennis v. Fallon, reported in 12 Con. Eng. C. R. 625, and the case in court shows that a change has been effected by the acts of the complainants which precludes them from all ground for a relief in a court of equity. Defendant on payment or tender might bring them up and make them convey, but they can only look to him for the money which is a legal demand provided for at bar.
    If is urged therefore, that the Yice-Chancellor erred in admitting the motion to amend without the payment of costs after demurrer regularly filed and set for hearing.' That Hicks, as the assignee of the vendor, has no lien upon the land, and that Travis, by his own act, has divested himself of the lien he once had, and that a court of equity will not, after he himself has been in default, entertain his bill.
    
      D. C. Glenn, on same side.
    1st. Complainant may amend his bill upon payment of twenty shillings costs after a demurrer is put in if it be not set down to be argued, and after it is set down, upon payment of costs of demurrer. Lubé, PL Eq. 36 ; 1 Dick. 358.
    
      The complainant shall pay all costs. 1 Yes. 448; 11 Yes. 221. There should be no joinder in demurrer, the cause is to be set down for the argument of the demurrer. 1 Bibb. 481.
    2d. Bill asks for specific performance; equity only decrees specific performance of contract where damages recovered at law would not answer the intention of the parties in making it. 2 Sch. and Lef. 347. There are cases where a court of equity will refuse to rescind a contract and at the same time refuse to grant a specific performance. As to the ground upon which they proceed see 2 Yes. 292; 2 Cox, 77; lb. 406 ; Cas. Temp. Talb. 234.
    3d. We resist a decree in this cause, and offer as a ground to the court, the facts set out by the bill of complainant himself, and cite the following to sustain us. The plaintiff who seeks for 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. 13 Yes. 425, 426; 2 Wheat. 336.
    This, and the authorities cited by my associate counsel, are deemed applicable to the facts and decisive of the cause.
    
      Hutchinson, for Hicks.
    This is a clear case of the assignee of a vendor, seeking specific performance, by payment of the purchase-money of a tract of land, by an insolvent vendee, or to enforce against him the equitable lien retained by the vendor upon the land. Travis gave bond to Tanner, to convey, on payment of the price, for which the two notes of Tanner, without surety, or other security, were taken. Travis afterwards transferred the notes to Hicks, and conveyed to him the legal title, to enable him to pass it to Tanner, on payment by him. The bill by Hicks against Tanner stated the contract, bond, and notes of sale, the lien retained, the transfer and conveyance to Hicks, demands and refusals of payment, Tanner’s insolvency, and concluded by praying a decree for payment, or a sale of Tanner’s equitable title. The complainant gave security for costs.
    A motion was made to dismiss the bill, because the deed from Travis to Hicks was not made an exhibit. That was overruled.
    A general demurrer was then filed.
    Pending the demurrer, Hicks, the complainant, moved to amend the bill, by inserting Travis as co-complainant, which was allowed ; whether opposed or not does not appear. The demurrer was then, after argument, overruled, and the defendant allowed ninety days to answer. This was on the 10th July, 1844.
    On the 30th September, 1844, in vacation, the clerk, according to the recital in the bond'for writ of error, allowed that writ. It is issued in a case between Tanner and Hicks alone, not noticing Travis as co-complainant, although his name appears in the bill as such.
    The plaintiff in error relies on these grounds :
    1st. That the amendment was irregular.
    2d. That the demurrer to the bill should have been sustained, because performance on the part of the complainant was not alleged.
    3d. That the bill does not present a sufficient case for relief. ■
    1. The amendment introducing Travis, the vendor, as' co-complainant, does not seem to have been resisted. No valid objection lay to it. It added but one word more to the bill. It afforded an additional security to the vendee for title, or reimbursement of his costs. In every sense it was to the vendee’s benefit. It was proper to make the amendment before argument on the demurrer. It was not with him to complain, that it was allowed without costs, for they were already secured ; and besides that was a matter wholly dependent’ oh the rules of the co’urt, subject to the Vice-Chancellor’s discretion. The rules of court are adopted, to render proceedings uniform ; but, in ¡a proper cáse; the Chancellor may dispense with his own rules. A deviation from them is never revised for error. The authorities cited e contra, all show that the court, in each case, referred to its own special rules. In England the costs are paid concurrently with each item of service. .Here they abide the result of the suit, resting on the security given.
    
      2. It was sufficient that the bill averred, that the title contracted to be made was vested in the complainant, and that he had. ever been and was still ready, and able and willing to convey it. On demurrer to the bill, it must be taken to be as alleged. If the title, in fact, had been in doubt or difficulty, the defendant, by his answer, could have called for deraignment, with exhibition of deeds. It is a true and universal principle, that he who seeks performance of an agreement, must show that he himself has performed, or is able and‘ready to perform, his- part of the stipulation, or give some satisfactory excuse;, and the authorities cited adversely show nothing more. It is true the Yice-Chancellor ought not to grant a decree for specific! execution, without requiring -the deeds to be filed to be delivered by the clerk or a commissioner, upon payment being made of the purchase-money. '
    3. The bill presents a distinct case for equitable interposition. The insolvency of the vendee — a fact admitted by the demurrer — allowed the vendor to resort to his retained lien upon the land sold. According to the adjudications, if the vendor had taken personal or other security for the payment of the price of sale, his lien, by implication, would not have arisen ; but he took no security; and the lien retained is a matter peculiarly cognizable in equity. 2 Story’s Eq. 462, 463, &c.
    The writ of error, however, ought to be dismissed. It is against Hicks alone, not including Travis. Besides,- under the statutes, can the clerk in vacation award it 1 If so, can he grant it without a petition I
   Mr. Justice Clayton

delivered the opinion of the court.

The points presented by this record are, 1. Whether a vendor of land, who has taken the notes of the purchaser, and given bond to convey the title when the purchase-money is paid, can pass his lien for the purchase-money by an assignment of the notes 1 2. Whether a bill filed for a specific performance of the contract, or in the event of failure to pay, to enforce the lien, can be maintained, if filed in the names of both the vendor and his assignee.

That such bill can be maintained, if filed by the vendor alone, has been settled by this court in the case of Dollahite v. Orne, 2 S. & M. 590. It is equally clear, that it may be filed by the assignee. The retention of title by the vendor upon a sale, is in effect the same thing with conveying the title and taking a security by mortgage. Graham v. McCampbell, Meigs’s R. 52. By an assignment of a debt secured by mortgage, the rights of the mortgagee to proceed upon the security, also pass, as tin incident. The same result follows here. Selby v. Selby, 4 Russ. 336.

The bill may be maintained by the assignee alone, but in such case it might be necessary to make the assignor a party defendant ; or it may be brought in the name of the assignor and assignee jointly. In. the case cited from Meigs, the court says: “ The debt, in cases of mortgage, is considered as the principal, and the land as an incident only. The cases proye beyond a doubt, that the assignee of a debt secured by mortgage, is entitled to have it paid out of the mortgaged estate, if need be, although he has had no assignment of the estate ; they apply with equal force to the case of an assignee of a debt secured by a reservation of the title by the vendor. In each case the assignee may file a bill, to subject the estate to the payment of his debt, although there has been no assignment of the estate to him.” In that case, the vendor and assignee were both parties complainant. See Kenny v. Collins, 4 Litt. 289. Eubanks v. Poston, 5 Mon. 287.

The case of Briggs v. Hill, 6 How. 362, does not conflict with this ; because in that case there had been a conveyance of the land to the purchaser; in this but a bond for title. But even in that case, the court says, that “ the vendor, if he takes up the assigned note, may maintain his original lien, and that his indorser, by joining his name in a suit in equity, may enforce the lien.” That principle comprehends this case.

. . The objection to the allowance of the amendment in the court below, cannot be permitted to have any weight here. That is a matter resting in the sound discretion of the subordinate courts, with which this court never interferes.

The decree of the court below, overruling the demurrer to the bill, is affirmed, and the cause remanded.  