
    Supreme Court of Errors and Appeals. Nashville.
    1812.
    ROBERT BUCHANAN v. JOHN BROWN AND THOMAS B. CRAIGHEAD.
    } >• Chancery.
    Equity will specifically execute a contract for the conveyance of land after a great lapse of time, where the complainant has performed his part of the contract by payment of the purchase-money, has been in possession and improving the land in confidence of the agreement, and the delay is explained by continued litigation as to the title of the land with third persons.
    The decree for specific performance, after divesting and vesting title, directs that if, at any subsequent period, a title better than that of the defendant should make its appearance, by virtue of which the complainant or his heirs should be deprived of the enjoyment of the land, that then the defendant should be compelled to pay the same damages that he would have been bound to pay, had he complied with his contract by conveying the land and covenanting to warrant the title against all persons. [See Code, 4105.]
    This was a bill in equity brought by the complainant against the defendants to compel a conveyance of a tract of land.
    The bill states in substance: That Craighead, in the year 1783, became indebted to the complainant in the sum of eighty pounds, Virginia currency, which debt was evidenced by articles of agreement; that as a mode of paying this debt, Brown, the other defendant, and brother-in-law to Craig-head, wrote a letter to Craighead, authorizing him to let the complainant have 640 acres of land in Davidson County ; that the complainant wrote a letter to Thomas Edmundson, authorizing him to view the land, and close a contract with Craighead for it; that Craighead and Edmundson, by virtue of the power given them, closed a contract for the said land, and entered into articles of agreement, by which Craighead, for himself, and as agent for the defendant Brown, agreed to make a good and sufficient title to the said six hundred and forty acres of land, in consideration of the said eighty pounds, and four cows and calves, paid to Craighead ; the said last-mentioned articles were deposited with a Mrs. Whiteside for safe keeping.
    The bill further states that the complainant afterwards removed from Virginia, and in pursuance of said contract, in 1798 took possession of the said land, the title to which was in Brown ; and has continued in possession ever since; that Craighead, some time afterwards, under pretence that the articles were complied with, procured them from Mrs. Whiteside ; that the complainant has always been ready to deliver up the articles for the eighty pounds, and wishes a conveyance for the land, which the defendants refuse. The prayer of the bill is for a specific performance.
    To this bill, Craighead at first demurred ; and also disclaimed any interest in the matter. His demurrer was overruled, and the bill taken as confessed against him, for want of his answer.
    
      Brown in his answer, admits that Craighead owed the eighty pounds; that to silence the clamors of the complainant, he voluntarily, and without any consideration, offered to pay the debt, if the complainant would agree to take said land; that the complainant agreed to take the land, if his agent, Thomas Edmundson, should, upon viewing, approve of it; that he did write a letter, authorizing Craighead to close a contract for the said land, and to transfer the right; that he has no personal knowledge of any contract made by Craighead, but has understood that he made one with Edmundson, which the complainant refused to ratify, declared null, and utterly refused to receive a transfer of his right, in discharge of the debt; that he has reason to suspect the complainant combined with one Philips and Edmundson, who set up a claim and brought suit for said land ; and that the complainant settled under the claim of Philips and Ed-mundson, and never demanded or would even accept a transfer of the defendant’s right until Philips and Edmundson abandoned their claim, which has been done. The defendant insists that as the complainant refused to receive a transfer he cannot in equity compel a conveyance. He states further that he is willing to pay the complainant his eighty pounds and interest upon it, and denies that he ever authorized the complainant to settle on the land, or that he ever authorized more than a transfer of his right. He also denies that he has any knowledge of the article entered into by Craighead for the transfer of the lánd, and calls for strict and clear proof.
    It was proved by Bobert Edmundson that he was present when the complainant and Brown contracted respecting said land, and that Brown agreed to make a warranty title thereto if the complainant would accept it; and that Brown told the complainant he had given authority to that effect in his letter to Craighead. The witness states further that he was the bearer of the letters to Craighead and Thomas Edmundson.
    Philips, another witness, proved that he was a subscribing witness to the articles for conveying the land. That the title was to be- a conveyance with warranty to be.made in twelve months, and that the consideration was the delivery of the articles for eighty pounds and four cows and calves; that the complainant settled and held possession under Brown’s title, and that he refused to have anything to do with Philips and Edmundson, or to suffer them to have possession; that the complainant offered to Craighead the articles for the eighty pounds, which he declined receiving as he could not then make the title. He also stated that the article for the conveyance of the land was deposited with Mrs. Whiteside.
    Thomas Edmundson, another witness, the agent of the complainant, .proved in substance the same facts stated by Philips, and that he applied .to Mrs. Whiteside for the articles of agreement, who said she had given them to Craighead.
    
      The cause was argued by Whiteside and Dicldnson, for the complainant ; and by Haywood and Goohe, for the defendants.
   White, J.

delivered the following opinion of the Court: —

As the complainant has it not in his power to produce the articles of agreement, the Court may with propriety notice the proof that has been given of their existence, and likewise that which was given of their contents. From the evidence it is clear that Brown either authorized or taught Buchanan to believe that he had authorized Craighead to sell and convey with warranty the land in, dispute, and that a contract to that effect was made with Craighead. The consideration has been paid; Buchanan has taken and continued in possession of the land under Brown’s claim, and there is no ground from the proof for the suspicion either that the complainant was dissatisfied with the contract or that he connived with Philips and Edmundson to set up their claim, but the very reverse. It seems to the Court that this was an absolute contract for the purchase and sale of this land, and that neither party without the consent of the other had a right to be off.

The Court is impressed with the belief, from the complexion of the answer compared with the testimony, that the true reason why this contract was not complied with at the time stipulated, was owing to the dispute with Philips and Edmundson, with which the complainant seems to have had no concern-; and by the time that dispute was settled the land had risen so much in value as to induce the belief that it was the interest of the defendants to pay the money and keep the land. This they have no right to do. It would be most unreasonable after such a lapse of time, during all of which .the complainant has laid out of his money and been improving the land in pursuance of his contract and in confidence of his agreement, to permit the defendants to set the whole aside and place things in statu quo. The defendants and each of them ought to be divested of all right and title to the land, and the same be vested in the complainant and his heirs. And if at any subsequent period a title better than that of Brown’s should make its appearance, by virtue of which the complainant or his heirs should be deprived of the enjoyment of this land, that then Brown should be compelled to pay the same damages that he would have been bound to pay had he complied with his contract, by conveying the land and covenanting to warrant the title against all persons.

But as this contract grew out of a transaction with the defendant Craig-head, who received the consideration, acted as the agent of Brown, and by whose information, it is fair,to suppose, Brown was governed, it seems to the Court most reasonable that he should pay the costs of this suit.

And the decree was pronounced accordingly. 
      
       Original Note. — Absent Overton, J.
     