
    ABRAHAM STEVENS, JR., v. PETER M. RYERSON.
    1. In May, 1837, A, being about to raise his dam to a height that would pause the overflow of B’s land, agreed to buy B’s land, and to pay for it on the 1st of April, 1838, the day fixed for the delivery of the deed. On the same day, a further agreement was made between them that, as a compensation for the damages B might sustain until the completion of the agreement "o buy, B should occupy and use certain lands of A. In the fall of 1837, A raised his dam, and B took possession of the said lands of A. In October, 1838, B tendered the deed ; but A did not pay, and the deed was not delivered. In 1844, B filed his bill, praying that A might be decreed to pay by a day to be fixed, and that, on his failing to do so, the said agreement might be canceled, and A be directed to lower his dam. An order was made that A pay by a day fixed, or that the agreement be canceled. The order prayed as ¿o lowering the dam was denied.
    2. A court of equity may decree the cancellation of an instrument, though it has become a nullity, on the ground that its existence may be a cloud on a party’s title, or may subject him to litigation at a future period, when the facts may have become involved in obscurity.
    Peter M. Ryerson, in May, 1837, being about to raise his dam in the Ramapo river to a height, that would cause the water to overflow a part of the farm of Abraham Stevens, Jr., lying on both sides of the river, treated with Stevens for the purchase of his farm, with other lands of Stevens. On the 15th of May, 1837, articles of agreement, under seal, were executed by and between them, by which Stevens agreed to deliver a good and sufficient deed of conveyance on the 1st day of April, 1838, and Ryerson agreed to pay, on that day, $4500. Ryerson paid ten dollars as part of the consideration money, and the receipt of it was acknowledged in the agreement. After the execution of the articles, and on the same day, a further agreement was made between them, and endorsed on the articles, by which it was agreed that, in lieu of, and as full compensation for the damages sustained, or that might thereafter be sustained by Stevens until the completion of the said contract, by reason of raising the dam, Stevens might use and occupy certain lands of Ryerson therein described, such use to continue until the fulfillment of the said contract.
    In the fall of 1837, Ryerson raised his dam, so that the water of the pond overflowed about twenty acres of the land so agreed to be sold and bought, and has ever since maintained the dam at that height. On the 9th of October, 1838, Stevens tendered a deed to Ryerson. Ryerson admitted the deed was correct, but did not take it, alleging that he had not the. money then, but promised to pay half of it in two weeks, and desired Stevens to wait for the residue till the spring following, promising to pay it then.
    On the 11th of April, 1844, Stevens filed his bill against Ryerson, stating the above stated facts, and that, since tendering the deed as above stated, he has frequently applied to Ryerson to pay the money and take the deed, but that he has constantly declined to pay the money, promising always to pay it at some future time.
    The bill states further, that the complainant has frequently requested Ryerson to lower his dam so as not to overflow the said land, or to pay the said money; but that he has declined to lower the dam, and neglected to pay the money and take the deed. That Ryerson is insolvent, and unable to pay any damages which might be recovered against him for overflowing the land, but persists in keeping the dam to the height which causes the overflow.
    The complainant further states in his bill that, so long as this contract is outstanding, he cannot sell his farm and give a good title to it, because of the said articles of agreement; and that he is advised that he has no remedy but in this court, where a specific performance of the said agreement can be decreed, or the same decreed to be given up and canceled, and the defendant be decreed’ to lower his dam.
    The bill prays that the defendant be directed to pay the money and take the deed, by a short day to be appointed by the court or tliat, on failure of payment at the time so fixed, the said agreement may, by decree of the court, be canceled, and the complainant be relieved therefrom, and that the defendant may be directed, by order of the court, to lower his dam, so as not to overflow, &o.; and that the defendant, his agents, &e., be then enjoined from overflowing the complainsnt’s land.
    The defendant having failed to answer, witnesses were examined and documents produced to prove the allegations of the bill.
    The cause was brought to a hearing on the bill and the depositions and exhibits.
    
      A. S. Pennington, for the complainant.
    The bill is with a double aspect; to enforce performance of the agreement to purchase; and if the defendant will not perform, then that he be compelled to restore the complainant to his original position by taking down his dam. We do not ask an injunction now, but if, after the time the court shall give him to pay the money, he fails to do so, then we ask to be restored to oar original position. True, by the supplemental agreement Stevens was to occupy certain lands in lieu of damages, and has occupied them till this time. We do not ask for damages; but are things always to remain in this state ? We cannot sell, for there is a cloud on our title. Ryerson cannot perform; he cannot pay. Seven years elapsed before bill filed, and three years have run since, and only $ 10 paid on the agreement.
    We ask the court to fix a specific time within which Ryerson shall pay, and that, in default thereof, he be compelled to lower his dam.
    He cited Drewry on Inj. 260; 10 Ves. 192; 4 Sim. 13; 8 Ib. 193; 1 Ves. 542; 2 Ib. 543; 2 Green’s Ch. 353; 1 Mylne and Keen 155; 6 Eng. Ch. Cond. 558; 2 Atk. 83.
    
      B. Williamson, contra.
    
   The Chancellor.

If it would be within the proper exorcise of the power of this court to make an order which, by its terms, would, either directly Or indirectly, compel the defendant to lower his dam, is this a case in which the power should be exerted? The dam was raised with the assent of the complainant, he relying on the agreement of the defendant to purchase his farm; and an arrangement was, at the same time, made between them, by which the complainant was to occupy certain lands of the defendant in lieu of, and as a full compensation to him for the damages he might sustain by the raising of the dam, until the completion of the contract; the use of the said lands by him to continue until the fulfillment of the contract. The dam was raised shortly after the agreement to purchase was entered into, and before the time fixed for the delivery of the deed and payment of the money. The complainant took possession of the lands he was to use as a compensation for damages, and has occupied them ever since, and still occupies them. The deed was not tendered until the fall of 1838. The defendant promised to pay half the purchase money shortly, and desired the complainant to wait until the following spring for the residue. Matters remained in this situation for seven years from the date of the agreement, except that the complainant frequently applied to the defendant to pay the purchase money and take the deed.

Under these circumstances, I think the court should not interpose by way of injunction, or order in the nature thereof.

But should the defendant be permitted to delay indefinitely the fulfillment of his agreement to purchase, because the complainant took possession of lands, the use of which was to be in lieu of damages, and which use was to continue until the fulfillment of the agreement? I think not. It would be a harsh construction of the second agreement to say that it bound the complainant to wait indefinitely the pleasure of the defendant as to the fulfillment of the agreement to purchase, and that the complainant’s agreement to sell should stand good against him as long as it suited the convenience of the defendant. This could not have been the meaning and spirit of the second agreement, and it is just and equitable that a limit should be fixed within which the defendant should pay the money, in fulfillment of his part of the agreement, or the agreement cease to bind the complainant. If it be said that on the tender of the deed and the omission of the defendant to pay, the agreement for the sale became null, and ceased to bind the complainant, it may be answered that a court of equity may decree a delivery and cancellation of an instrument, though it has become a nullity, on the ground that its existence may be a cloud on a party’s title, or may subject him to litigation at a future period, when the facts may have become involved in obscurity. 2 Story’s Eq.; § 705.

In this case, as effected by the second agreement, the danger that the complainant might be subjected to future litigation, after an indefinite lapse of time, particularly if he continues to use the lauds he is using in lieu of damages, (and I do not see that he is bound to give them up,) is apparent. And if he should 53ue at law for damages, he would be subjected to embarrassment while the agreement to sell exists and he continues to use the lands ho is using in lieu of damages. The defendant has put the complainant in this position by his failure and fault in not complying with his agreement to purchase, and the complainant should be relieved from this position.

Part of the relief prayed by the bill, that is to say, that a timo be fixed within which the defendant shall pay the money and take the deed, and that in default thereof the complainant’s agreement to sell be decreed to be no longer binding and be given up to be canceled, will be given. Beyond that, the complainant will be left to his remedy at law¿

Order accordingly.  