Hepburn & Dundas required Auld to execute to the land was defective. Hepburn [*185 183*] such a release prior to the *delivery & Dundas then set forth their title in a supple of the deed of assignment. The suit of Hep- mental bill. This suit came on to be heard, burn & Dundas against Graham, for the recov-upon an appeal to this court, at the same time ery of the 6,000 acres of land, was prosecuted that Auld's suit at law against Hepburn & against his heirs; and in May, 1801, by a com- Dundas, above mentioned, was decided. This promise between Hepburn & Dundas, and the court determined: 1st. That since Auld had, by defendants in the ejectment, judgment was ren- his conduct subsequent to the 2d of January, dered in favor of Hepburn & Dundas. 1800, waived all objections to the tender of the assignment of Graham's contract on that day, and did not refuse to receive a conveyance which was offered to be made by Hepburn & Dundas, in June, 1801, on account of any defect in the title, but for other reasons which would equally have operated with him had there been no such defect, Hepburn & Dundas would still be entitled to a specific performance if they could then make a good title. 2d. That the title appeared by the bills to be defective as to 208 acres, being Thomas West's part of Mrs. Bronaugh's 1,000 acres, and also his part of Francina Turner's interest in the same tract, and also on account of the failure to record Thomas West's deed to Hepburn & Dundas for 1,000 acres. For these defects in the title, the bill was dismissed.3

Without noticing, particularly, the conduct of those parties subsequent to the transactions of the 2d of January, 1800, as well as on that day, it may be sufficient to say, that if the tender made by Hepburn & Dundas was, upon the condition asserted by Auld, to have been annexed to it, and if, in consequence thereof, any legal advantage accrued to him, it was waived by his subsequent conduct. As late as February, 1807, Auld made a tender of the difference between the sum awarded to Dunlop & Co., and the purchase money and interest due upon Graham's contract, and demanded a deed; but this demand was made in a manner, and under circumstances, which this court, upon a former occasion, deemed unreasonable. Things remained in this situation, until some time about April, 1801, when Hepburn & Dun- Presuming that this decree, which seemed to das instituted a suit at law against Auld, for close forever the doors of a court of equity the difference between the sum awarded to against Hepburn & Dundas, opened them to Dunlop & Co. and the amount of the purchase Dunlop & Co., to get rid of the contract altomoney and interest due by Graham's contract gether, Auld filed the bill which is now under on the 2d of January, 1800. About the same consideration, stating, among other things, time a suit at law was commenced by Auld, the previous and present inability of Hepburn against Hepburn & Dundas, upon the agree- & Dundas, to make a good title to this ment on the 27th of September, 1799, to recover the whole sum awarded. In the first case, 184*] this court, upon a writ of error, derided upon the pleadings (which were so drawn as to present the point), that Hepburn & Dundas had no right to demand of Auld a release of all claims and demands against Dunlop & Co., to be executed as a precedent act to the assignment of Graham's contract, and the delivery of the power of attorney; and, on that ground, judgment was rendered against Hepburn & Dundas.1

In the other case, the pleadings presented the question, whether the recital of such a release in the deed of assignment offered to be delivered by Hepburn & Dundas, invalidated the tender. Upon a writ of error, it was decided, by this court, that the recital of the release could not impair the rights of Dunlop & Co., under the agreement of September, 1799, and that it formed no objection to the assignment; consequently, that the tender and refusal amounted to a performance, in like manner as if Auld had accepted the assignment; but that Hepburn & Dundas would still be obliged to execute a proper deed of assignment, and a conveyance of the land, whenever they should be required to do so. Judgment was, accordingly, rendered in this suit against Auld.2

Hepburn & Dundas having been thus defeated in their attempt at law, to enforce a performance of the agreement, filed a bill in equity, praying for a specific performance. The answer of Auld contained, among other objections to a specific performance, an allegation that the title of Hepburn & Dundas

1.-1 Cranch, 321. 2.-5 Cranch, 262.

*land; and praying that the agreement [*186 may be set aside, and the debt awarded to Dunlop & Co., with the interest thereon, to be decreed; or that, if the court should consider Dunlop & Co. under an obligation to accept of the land, that only the reasonable value of the land at the time when Hepburn & Dundas's title to it was perfected, should be allowed. The bill also contains the general prayer for such relief as is consistent with equity.

Hepburn & Dundas seem to have given a very different construction to the above decree, and supposing that if, within a reasonable time after it was pronounced, they could remove the objections to their title which were pointed out in the decree, they might still call for a specific performance, they soon obtained a conveyance from the heirs of Thomas West, of all their right, title, and interest in and to this land, and on the 27th of March, 1809, less than a month after the decree of dismission by this court, they offered to convey to Auld a good and sufficient title. This offer being refused, Hepburn & Dundas filed a bill against Colin Auld, as attorney of Dunlop & Co., setting forth their ability and readiness to convey an unexceptionable title to this land, and praying that Auld, or Dunlop & Co., might be compelled to accept of a conveyance, and to pay the difference between the agreed value of the land and the sum awarded.

These suits came on to be heard at the same time. In the suit brought by Dunlop & Co., against Hepburn & Dundas, it was decreed by the court below that Hepburn and the heirs of Dundas should pay to Dunlop & Co., or their agent, the sum of $33,060.37, being the amount 3.-5 Cranch, 262.

In the other suit, brought by Hepburn & Dundas against Auld, a decree was made, that upon the complainant's paying to Auld, as attorney of Dunlop & Co., the sum of $11,966.37, and conveying to the said Auld, in trust for Dunlop & Co., on or before a certain day, the above-mentioned land, the said Auld, as attorney of said Dunlop & Co., should execute and deliver to Hepburn & Dundas such a receipt and discharge of all the claims and demands of Dunlop & Co. against them as the court might approve. From this decree both sides again appealed.

187*] of the sum awarded, *with interest | himself; besides which, it should be recollected thereon, at five per cent., from the 1st Jan- that Auld having agreed, in his letter *of [*189 uary, 1800, till the time of rendering the de- the 4th of September, two days before the date cree; but that the sum of $21,112, part thereof, of this letter, to submit to the award of might be discharged by a conveyance, within a arbitrators, and to receive an assignment of certain time, of the above land to Auld in Graham's contract at the stipulated sum to be trust for Dunlop & Co. From this decree an paid by Graham, Hepburn & Dundas could have appeal was prayed by both parties. had no motive, at that time, to make an untrue representation of the value of the land. At no antecedent period does it appear that they had made an uncandid statement, upon this subject, to Dunlop & Co., or to Auld. Their opinion of the real value of the property might be incorrect; but a mistaken opinion of the value of the property, if honestly entertained, and stated as opinion merely, unaccompanied by an assertion or statement, untrue in fact, can never be considered as a fraudulent misrepresentation. That Hepburn & Dundas intended no deception, is evident from the following considerations: 1. That the offer made by them, to Colin Auld, of this land, was that of a security only, for the debt due to Dunlop & Co., which was declined by Auld, upon the ground that if payment of the debt to Dunlop & Co. was to be postponed until the suit with Graham should be concluded, Dunlop & Co. ought to be entitled to all the benefit of the contract with Graham, and for this reason a proposition was made by him to accept an assignment of that contract, and to pay the difference between the purchase money and interest thereon, and the sum which might be awarded, in case the latter should fall short of the former. 2. That Hepburn & Dundas had, in the year of 1796, sold this land to Graham for the sum at which Auld agreed to take it, and as evidence of their opinion, that the *land had, since that sale, [*190 risen in value, they had instituted a suit at law against Graham in order to avoid the sale, and to recover back the land. If any further answer to this objection be necessary, it may be sufficient to add, that the fraud now charged against Hepburn & Dundas was not thought of, and certainly not imputed to them, when the former suit of Hepburn & Dundas, for a specific performance, was depending..

Against so much of these decrees as compel Auld to accept of a conveyance in trust for Dunlop & Co., in part discharge of the debt decreed to be paid by Hepburn & Dundas to Dunlop & Co., the following objections have been made, and are now to be considered:

1st. That Hepburn & Dundas were guilty of a fraudulent misrepresentation of the value of this land; and, also, of a wilful concealment of the defects in the title, whereby Auld was induced to enter into the agreement of September, 1799.

2d. A want of authority in Colin Auld to enter into an agreement for taking a conveyance of land in discharge of the debt due to Dunlop & Co.

188*] *3d. The refusal of Hepburn & Dundas to assign Graham's contract, on the 2d of January, 1800, except upon a condition which they had no right to exact, and their interference in the suit with Graham's heirs, and the compromise made with them, whereby (it is contended) they disabled themselves from executing the agreement of September, 1799.

4th. That the title to the land is yet defective.

5th. That the former decree, dismissing Hepburn & Dundas's bill for a specific performance, is a perpetual bar to the relief sought by their present bill.

6th. That Dunlop & Co. being aliens, and incapable of holding lands in Virginia, a court of equity will not compel them to execute their agreement, even if Hepburn & Dundas had been always in a condition to perform it on their part.

1. The first objection appears to be unsupported by the evidence. In respect to the value of the land, the representations made of it in the letters of Hepburn & Dundas to Dunlop & Co., and to Colin Auld, affirm no fact which is proved to be untrue. Those letters contain expressions of the opinion of Hepburn & Dundas, that the land was an ample security for the debt due to Dunlop & Co.; and it must be admitted, that in their letter to Colin Auld of the 6th of September, 1799, they seem to have indulged themselves in very extravagant notions of its value. But it is to be remarked that the grounds of this calculation are fairly stated in the letter, and an opportunity is afforded to Auld to inquire into them and to judge for

As to the alleged concealment by Hepburn & Dundas of defects in their title, there is every reason to believe that they were unknown to them until some time in the year 1805, when they endeavored to remove them, and supposed they had done so. The only objection suggested by the special verdict in the ejectment was the want of a partition deed between the original grantees of this land, which objection this court has declared to be insufficient to bar Hepburn & Dundas from asking for a specific performance of the agreement.

2. The next objection to the decree below is, that Auld had no authority, in virtue of the power of attorney from Dunlop & Co., to enter into an agreement to receive land in discharge of the debt due by Hepburn & Dundas.

This, like the former, is a new objection, not thought of, or argued, as a reason against a specific performance in the former suit. It is unnecessary to examine, with critical nicety, the import of the expressions used in the power of attorney to Auld. He was empowered to sue for, and to compound and agree, for all debts due to Dunlop & Co., and, in *gen- [*191 eral, to do all other lawful acts needful for

in which the heirs of West are bound, if there be such, which is not proved, they cannot affect this land in the hands of a bona fide purchaser under those heirs.

5. The next objection made to the decrees below is, that the dismission of the former bill of Hepburn & Dundas, for a specific performance, is a bar to their present bill for the same object. This objection is well founded. If a bill, by the vendor of land, seeking a specific performance of the contract, be dismissed on account of a defect in the title, the doors of a court of equity are and ought to be, forever closed against him, notwithstanding he should, afterwards, have it in his power to make a good title; unless, perhaps, in a case where an original bill, in the nature of a bill of review, might be entertained. But the present bill is not founded upon new matter, discovered since he hearing of the former cause, and which it was not in the power of Hepburn & Dundas to produce at that time. It is not pretended that he was ignorant who were the heirs of Thomas West, or that he could not as well have procured a deed from them before as after the former decree. His ignorance was not of a matter of fact, but of law. He erroneously supposed that his title was good, and on account 196*] of the defects existing *in it at the time of the decree, his bill was dismissed. The rule of the court of equity to decree a specific performance, if the vendor is able to make a good title before the decree is pronounced, is an indulgence which he is not entitled to by the terms of his contract. A majority of this court approves of the rule as a general one, but is not disposed to extend it as such. If, in a case peculiarly circumstanced, an extension of the time for completing the title would be proposed, and should be intended to be granted, the court would either continue the cause, in order to give the vendor time to perfect his title, or would dismiss the bill without prejudice.

cases in which a court of equity, although it would not decree a specific performance, will yet refuse to order a contract to be cancelled. The inability of the vendor to make a good title at the time the decree is to be pronounced, furnishes a very good reason for excluding him from relief in a court of equity; and yet it does not follow that the court will, for this reason merely, set aside the contract. Generally speaking, a court of law is competent to afford an adequate remedy to either party, for a breach of the contract by the other, from whatever cause it may have proceeded; and whenever this is the case, a resort to a court of equity is improper.

But if the contract ought not, in conscience, to bind one of the parties, as it he had acted under a mistake, or was imposed upon by the other party, or the like, a court of equity will interpose and afford a relief, which a court of common law cannot, by setting aside the contract; and having thus obtained jurisdiction of the principal question, that court will proceed to make such other decree as the justice and equity of the case may require. Whether inability in the vendor to make a title, is, of itself, unattended by some peculiar circumstances of hardship, sufficient to justify the court in setting aside the contract, need not now [*198 be decided. This is certainly not a case where the exercise of this branch of equity jurisdiction can be fairly demanded by Dunlop & Co. Within a month after the recovery of the judg ment against the heirs of Graham, Hepburn & Dundas tendered to Colin Auld a conveyance of the land, which was refused, not on account of any defect in the title, but for reasons which would equally have operated with him had there been no such defect. Immediately after the defects in the title were pointed out by this court, they were removed, and the conveyance of an unexceptionable title was tendered and refused. Had Hepburn & Dundas been in a condition to make such a title a month sooner, this court, instead of dismissing their bill, would have decreed a specific performance. Under such circumstances it would be inequitable to set aside the contract. The alienage of the complainants is urged as an additional reason for setting aside this contract. Although the in1. The relief specifically prayed for consists capacity of the purchaser to hold land might of two parts: 1st. That the agreement of Sep-afford a reason for denying a specific performtember, 1799, may be rescinded, and the sum ance upon the prayer of Hepburn & Dundas (a awarded with interest, decreed to be paid. If this should be denied, and Dunlop & Co. be compelled to receive a conveyance of the land, then, 2d. That the reasonable value only of the land at the time when the title was perfected should be allowed.

The questions, then, which remain to be decided, are: 1st. Whether Dunlop & Co. are entitled to the relief for which they specifically prayed? and if not, then, 2d. Are they entitled to any other, and what relief, under the general prayer in their bill?

As to the first. Most of the objections which have been urged against the decree of the court below, for a specific performance, were relied upon by the counsel for Dunlop & Co., as sufficient to set aside the contract. These have already been considered, and the result has been 197] shown to be, that if the bill of Hepburn & Dundas, for a specific performance, were unaffected by the dismission of their former bill, none of these objections would be sufficient to preclude them from the relief sought by the present bill. If so, they are insufficient to enable Dunlop & Co. to obtain a deeree to rescind the contract. There are many

point, however, not intended to be decided), it is certainly insufficient to entitle the vendor, under the circumstances of this case, to a decree to rescind the contract. But the court does not mean to intimate an opinion that the terms of this contract did expose this land to the danger which is apprehended.

It appears by the contract, and the previous correspondence between these parties, that they contemplated a sale of this land, in the event of the contract with Graham be- [*199 ing rescinded, and that the proceeds thereof should be paid over to Auld, in discharge of so much of the debt due by Hepburn & Dundas to Dunlop & Co. as the purchase money due by Graham, with interest thereon to the 1st of January, 1800, would amount to; and this whether the land should sell for more or less than that sum. In this view of the case, the land was considered as a security for a stipu

lated sum, and Hepburn & Dundas were constituted trustees for whoever might become the purchasers of it. A conveyance to Auld or to Dunlop & Co. does not appear to have been contemplated. But if, in point of law, it should be true that Auld, by neglecting to proceed against Graham's representatives for the recovery of the land, in the name of Hepburn & Dundas, separated the interests of his constituents, this can surely afford no sound reason for setting aside the contract. It is sufficient if Hepburn & Dundas are able and ready to make a conveyance when they shall be required to do so.

money draws after it a correspondent right to demand interest upon the same until it is paid. This, it must be acknowledged, is the general principle which prevails in the courts of equity. But it would seem to be inequitable to apply it to a case like the present. Here the purchase money was in the hands of the vendor at the time the contract was made. It consisted of a debt due by the vendor to the purchaser, which the former bound himself by his agreement to discharge by bills of exchange or cash, or by an assignment of a contract for land, and a conveyance of a good title to it, and with money to make up any deficiency which might arise by the agreed price of the land falling short of the debt. Neither bills nor cash were paid,

ance made, for it turned out that the vendor could not make a good title to the whole of the land until March, 1809. They have always retained possession, and the land is, in reality, unproductive of profits in any measure equal to the interest on the *debt. This debt [*202 unquestionably bore interest from the moment it was ascertained and agreed to be paid; and not having been paid, nor a tender of a good title to the land made until March, 1809, it would be highly unjust to stop interest on the debt until that period.

2d. The other specific relief prayed for, is that Hepburn & Dundas may be credited on account of the land for no more than its real nor was the contract assigned or a conveyvalue in March, 1809, when a conveyance was tendered and refused. A decree of this sort would be an anomaly in the jurisprudence of a court of equity. It would be an affectation of decreeing a specific performance contrary to the terms of the contract upon which the decree is to operate. It would be, in fact, to make a contract for the parties altogether different from what they had made for themselves, and 200*] then to decree *an execution of it. There is no precedent, and certainly no principle of equity to sanction such a decree. Either the contract of the parties must be executed ac- The written arguments of the counsel, which cording to the terms of it, or it cannot be exe-have been sent to the court, present two quescuted at all. tions in relation to interest, which remain to be

The only remaining question, then, is wheth-noticed. It is contended, by the counsel for er, under the general prayer, the court can grant any and what relief.

There can be no question but that it is competent to Dunlop & Co. to ask for a specific performance of the agreement, so far as it can now be performed, although the court cannot now listen to a similar prayer from Hepburn & Dundas. But this is not the relief specifically stated in this bill; and it is supposed to be unreasonable to compel a specific performance under the general prayer for relief, in opposition to the specific prayer that the contract may be set aside. To this objection it may well be answered, that if it be improper to rescind, or to modify, the contract, nothing remains to be done, under the general prayer, but to dismiss the bill, or to decree an execution of the contract. But as the former cannot be presumed to be the object of the general prayer, it would seem to follow that an execution of the contract was intended to be asked for, in case the specific relief should be denied.

Dunlop & Co., that interest ought to be calculated upon the sum composed of principal and interest, stated, by the arbitrators, to be due on the 1st of January, 1800, at the rate of 6 per cent. per annum from that day. On the other side it is insisted that no more than 5 per cent. per annum should be allowed, and this not on the sum found by the arbitrators to be due, but upon the principal sum only.

was

The

The court is of opinion that, although the award does not direct the sum which is found to be due by Hepburn & Dundas to be paid to Dunlop & Co., yet it ascertains the sum which was due on the 1st of January, 1800, and the agreement upon which the submission made, bound Hepburn & Dundas to pay that sum when it should be so ascertained. two instruments, taken together, amount to a contract to pay a specific sum, and are clearly within the words, as well as the fair interpretation of the law of Virginia, passed in the year 1796, which fixed the rate of interest at 6 per For these reasons the court will decree a cent. per annum. This principle being settled, specific performance, so far as it is practicable, it follows that the interest must be calculated and considering Hepburn & Dundas as trustees upon the sum *ascertained by the [*203 for the person or persons to whom this land award to be due on the 1st of January, 1810. may be sold, the conveyance will be decreed to To separate the principal from the interest, 201*] be made to such persons *as may be- even if the award furnished materials for such come the purchasers of the land under the de-an operation, would be, in effect, to set aside cree of this court.

The residue of the decree below, which allows to the complainants, Dunlop & Co., interest upon the sum awarded from the 1st of January, 1800. to the time of the decree, is objected to by Hepburn & Dundas, upon the ground that the purchaser of land, to whom neither a conveyance has been made or possession delivered, is to be considered in equity as the owner, and, of course, entitled to the rents and profits; and that the right of the vendor to the purchase

the award, and to vary the agreement with which it is intimately connected.

It is therefore the opinion of the court that Hepburn & Dundas ought to pay interest upon the sum awarded by the arbitrators, after the rate of 6 per cent. per annum, from the 1st of January, 1800, to the 27th of March, 1809, when they were able to make, and did in fact tender, a good and sufficient conveyance to the agent of Dunlop & Co. From the 27th of March, 1809, interest ought to stop; but Hep