copy a manuscript, or to excavate a ditch, in which case, if the agreement be not performed, the obligation necessarily resolves itself into pecuniary damages. But that the act of delivering possession of the thing sold, is not merum factum, sed magis ad dationem accedit: and that the debtor may be compelled to perform it specifically. De Vente, No. 68. This principle he extends even to personal property; but in the practice of the English court of chancery agreements respecting chattels are not, in general, enforced, as has been before noticed. Ante, Vol. I. p. 154., note (a.) So, also, that court refused to decree a specific performance of a covenant to make good a gravel pit. Scholefield v. Whitehead, 2 Vern. 127. And to refer a controversy to arbitration. Street v. Rigby, 6 Ves. 818. These last cases fall within the distinction stated by Pothier of a mere personal act, the obligation of which, in case of non-performance, resolves itself into pecuniary damages; to recover which the party must resort to his action at law. But Lord Hardwicke held, contrary to the principle of this distinction, in the case of the City of London v. Nash, 3 Atk. 512., that a covenant to build or rebuild might be specifically enforced, but not a covenant to repair. And the same case is mentioned as within the jurisdiction of the court of chancery Although the vendee is not obliged to take a defective title, yet, if there be a mistake or misrepresentation as to the quantity or quality of the property sold, or of the estate of the vendor therein, the vendee may, if he elects so to do, have the difference deducted from the purchase money by way of compensation, and a specific performance as to the rest. There is a settled distinction, when a vendor comes into a court of equity to compel the vendee to a performance; and when a vendee seeks to compel a vendor to perform. In the first case, if the vendor is unable to make out a title as to part of the subject matter of the contract, which was the principal object of the purchaser, equity will not compel the vendee to perform the contract pro tanto. In the second case, the vendee may, if he chooses, take the part to which a title can be made. Waters v. Travis, 9 Johns. Rep. 465. Milligan v. Cooke, 16 Ves. 1. Halsey v. Grant, 13 Ves. 77. Mortlocke v. Buller, 10 Ves. 316. 1817. Morgan's heirs V. Morgan. 3 Paton v. Rogers, 1 Ves. & Beat. 353. But where the particular or memorandum described the estate as containing, by estimation, so many acres, "be the same more or less," the vendee was held not to be entitled to an abatement in the price for a deficiency in the quantity of acres sold. Winch . Winchester, 1 Ves. & Beat. 375. The court of chancery, in decreeing a specific execution of agreements, governs itself by a moral certainty, for it is impossible in the nature of things there should be a mathematical certainty of a good title. Therefore, it was held in England that a reservation in the grant of an estate by the crown of royal mines within the premises was not such a ble mish in the title as would excuse the vendee from taking it; because it seems the crown had no power to grant a license to any person to come upon a subject's estate and search for such mines; and even if it had the power, it was extremely improbable that it would ever be exercised. Lyddal v. Weston, 2 Atk. 20. So, also, in this country, where A. contracted to convey to B., "by a good and valid conveyance in law," a farm, which was originally parcel of a large tract of ground granted by the proprietor of a manor to the ancestor of A., in fee, “yielding and paying to the grantor, his heirs and assigns, the yearly rent of ten shillings," the proportion of which quit rent, on the farm, was 54 cents a year's the existence of the quit-rent being known to B. at the time of the contract, it was held that the existence of such an incumbrance, (if it were any,) was no objection to a decree for a specific performance of the contract. Ten Broek v. Livingston, 1 Johns. Chan. R. 357. In general, the vendor may compel a specific performance, if he can make a good title at the time of the decree, although he had not a good title when the land ought to have been conveyed according to the terms of the contract. Langford v. Pitt, 2 Pere Will. 630. Mortlocke v. Buller, 10 Ves. 315. Coffin v. Cooper, 14 Ves. 205. Hepburn v. Auld, 5 Cranch, 262. Hepburn et. al. v. Dunlop et. al. Ante, Vol. I. p. 179. Where, after bill, answer, and replication, no farther steps were taken in the cause for upwards of twenty years; this was held as not of itself a reason for refusing a specific performance, there being acquiescence on both sides. Cain v. Allen, 2 Dow 289. And where an agreement for the sale of lands was suffered to remain unexecuted for fourteen years, the vendee having taken, and continued to hold, possession; the court, under the peculiar facts of the case, decreed a specific performance of the contract.— Waters v. Travis, 9-Johns. R. 466. But, as a general rule, the court will not suffer a party, at the distance of years, to come to the court and say that he is ready to make a good title, and demand a specific performance. Jenkins v. Hiles, 6 Ves. 646. Wynn v. Morgan, 7 Ves. 205. And the parties may make time of the essence of the agreement, so that if there be a default at the day, without any just excuse, and without any waiver afterwards, the court will not interfere to help the party in default. Benedict v. Lynch, 1 Johns. Chan. Rep. 370. The court of chancery will not, except under very particular circumstances, upon a bill for the specific performance of a contract, if the party be not entitled to a specific performance, direct an issue of quantum damnificatus, or a reference to the master to ascertain the damages. The plaintiff, if he chooses that remedy, must resort to law, it not being like the case of a defect of title as to part, or of quality, or quantity, where a specific performance may be decreed as to so much as the vendor is able to perform, and a compensation to the vendee for the residue. Todd v. Gee, 17 Ves. 273. But where the defendant has put it out of his power to perform the contract, the bill will be retained, and it will be referred to the master to assess the plaintiff's damages. Denton v. Stewart, 1 Fonb. 38, Note y., and 165, Note b., and 1 Ves. 329. 17 Ves. 276, Note b. Greenaway v. Adams, 12 Ves. 395. And where a specific performance was refused, because the contract was within the statute of frauds, yet the plaintiff having sustained an injury for which he was entitled to compensation, and for which he had no remedy, or at best a doubtful and inadequate remedy at law, the court retained the bill and awarded an issue of quantum damnificatus to assess the damages sustained by the plaintiff by the acts of the defendants. Phil. lips v. Thompson et al., 1 Johns. Chan. Rep. 131. 1817. Morgan's heirs V. Morgan. (COMMON LAW.) LITER et al. v. GREEN. In a writ of right, brought under the statute of Kentucky, where the demandant described his land by metes and bounds, and counted against the tenants jointly; it was held that this was matter pleadable in abatement only, and that by pleading in bar, the tenants admitted their joint seisin, and lost the opportunity of pleading a several tenancy. The tenants could not, in this casc, severally plead, in addition to the mise, or general issue, that neither the plaintiff, nor his ancestor, nor any other under or from whom he derived his title to the demanded premises, were ever actually seised or possessed thereof, or of any part thereof; because it amounted to the general issue, and was an application to the mere discretion of the court, which is not examinable upon a writ of error. Quere, Whether the tenants could plead the mise severally, as to the several tenements held by them, parcel of the demandant's premises, without answering or pleading any thing as to the residue? Under such pleas, and the replication prescribed by the statute, the mise was joined; the parties proceeded to trial; and the following general verdict was found, viz. "The jury find that the demandant hath more mere right to hold the tenement, as he hath demanded, than the tenants, or either of them, have to hold the respective tenements set forth in their respective pleas, they being parcels of the tenement in the count mentioned." It was held, that this verdict, being certain to a common intent, was sufficient to sustain a judgment. It was also held that a joint judgment against the tenants for the costs, as well as the land, was correct. THIS cause was argued by Mr. Hughes, for the plaintiffs in error, and by Mr. M. B. Hardin and Mr. Jones, for the defendant in error. Mr. Justice STORY delivered the opinion of the court. This is a writ of right for the recovery of lands brought in the form prescribed by the statute of Kentucky, in which the demandant described his land by metes and bounds, and counted against the tenants jointly. To this count the tenants demurred, and upon a joinder, the demurrer was overruled by the court, and upon motion of the tenants, leave was given to them to withdraw the demurrer, and plead anew. A motion was then made to the court, by the tenants, to compel the demandant to count against them severally, upon the ground that they held separate and distinct tenements, parcels of the land demanded, which motion was overruled by the court. And, in our judgment, this was very properly done, for the matter was pleadable in abatement only; and by pleading in bar, the tenants admitted their joint seisin of the freehold, and lost the opportunity to plead a several tenancy. Assuming that at common law, a writ of right patent may be brought against divers tenants, who hold their lands severally, and that the demandant may count against them severally, it does not follow, that this doctrine applies to a writ of right close; but, if it did, and the demandant should, in such case, count against the tenants jointly, and the tenants should plead to the merits, it would, for all the purposes of the suit, be an admission of the joint tenancy. And the clause in the statute of Kentucky, requiring, that where several tenements are demanded, the contents, situation, and boundaries of each shall be inserted in the 1817. Liter V. Green. March 13th. |