VANNOY V. MARTIN ET AL.

16 IREDELL'S EQUITY, 169.]

WHERE PLAINTIFF IN EXECUTION PURCHASES IN THE LAND SOLD, NOT AB SOLUTELY FOR HIMSELF, but to hold as a security for his judginent and whatever other sum may be found due him on a settlement with the defendant, if the land is subsequently sold under execution against the first plaintiff in execution, the purchasers at the second sale take subject to the equities existing between the first plaintiff and defendant in execu tion, and the latter may redeem from them.

WHERE PLAINTIFF IN EXECUTION PURCHASES IN THE LAND SOLD, NOT ABSOLUTELY FOR HIMSELF, but to hold as security for his judgment and whatever other sum may be found due him on a settlement with the defendant, the latter's suit for a redemption is not barred by the act making void parol contracts for the sale of land.

EQUITY. The opinion sufficiently states the case.

Craige, for the plaintiff.

Guion, for the defendants.

By Court, BATTLE, J. The facts of this case are left in very little doubt by the testimony. The depositions of Thomas D. Kelly and William P. Waugh, the letter from the defendant, Martin, to the plaintiff, written the twenty-third of August, 1842, and the receipt given by the said defendant to the plaintiff's agent, Peden, on the twenty-fifth of December, in the same year, expressed to be towards the redemption of the land, satisfy us that the defendant, Martin, purchased the said land, under the execution in his favor, not absolutely for himself, but to hold the same merely as a security for his judgment, and for whatever other sum might be found to be due to him upon a settlement, subsequently to be had with the plaintiff. We are satisfied further, that he made representations to that effect at the time of sale, which prevented the plaintiff's lessee, Kelly, or some other friend at his instance, from stopping the sale by paying off the amount due on the executions, or buying in the land for the plaintiff, and enabled the defendant, Martin, to purchase it at an under-value. In either case, it would be a gross fraud upon the plaintiff, if the said defendant were permitted to set up an absolute title to the land, which it is the duty of a court of equity to prevent, and, in the way of preventing which, the act, making void parol contracts for the sale of land, does not stand: Turner v. King, 2 Ired. Eq. 132 [38 Am. Dec. 679]. The plaintiff, then, would be entitled as against the defendant, Martin, to redeem the land, upon paying him

whatever might be found to be due upon a general account. That being so, the plaintiff has the same right of redemption against the other defendants, Smith and Hackett, because they were purchasers at the sale under an execution against the defendant, Martin. They purchased the land, subject to all the equities against him, whether they had any knowledge of such equities or not: Freeman v. Hill, 1 Dev. & B. Eq. 389; Polk v. Gallant, 2 Id. 335 [34 Am. Dec. 410]; Rutherford v. Green, 2 Ired. Eq. 121. The plaintiff is, therefore, entitled to a decree for the redemption of the tract of land, mentioned in the pleadings, upon paying to the defendants, Smith and Hackett, whatever sum may be found to be owing from him to the defendant, Martin, with interest thereon, deducting therefrom whatever amount the said Martin and the other defendants have received from the rents and profits of the said land. And to ascertain these rents and profits, as well as the sum due and owing from the plaintiff to the defendant, Martin, there must be a reference to the clerk of this court.

Decree accordingly.

LOVE ET AL. v. CAMP.

[6 IREDELL'S EQUITY, 209.]

WHERE PERSON COVENANTS TO CONVEY TITLE TO CERTAIN LAND, a court of equity will not decline to decree a specific performance upon a mere showing that the covenantor is only a tenant in common of the land, and that "after reasonable exertion he has been unable to procure the title” of his co-tenants.

WHERE COVENANTEE KNOWS THAT THE COVENANTOR DOES NOT OWN ALL THE TITLE which he is covenanting to convey, whether equity would decree a specific performance, quære.

BILL in equity for specific performance. The opinion sufficiently states the case.

Guion, for the plaintiffs.

Lander, for the defendant.

By Court, PEARSON, J. We think the plaintiffs are entitled to a specific performance of the contract. The defendant says he owns one sixth part in fee, and a life estate in one other sixth part, and this he is willing to convey; but he says he does not own the other shares, and, " after reasonable exertion, since he made the contract, has been unable to procure the title of the other tenants in common, who are unwilling to sell,” and he is

therefore unable to comply with his contract. The question is, under these circumstances, Will a court of equity decree a specific performance or decline to interfere, and leave the plaintiff's to their remedy at law? One who, for a valuable consideration, enters into an agreement, is bound in conscience to perform it. A court of law can only give damages for a breach-this remedy is in many cases inadequate. A court of equity will do full justice, and, addressing itself to the conscience of the party, will require a specific performance of the agreement. This jurisdiction forms one of the great heads of equity, and, in the opinion of Lord Hardwicke, "the most useful one:" Penn v. Lord Baltimore, 1 Ves. sen. 446. Nothing should prevent the exercise of this most useful and well-established jurisdiction but the strongest and most controlling considerations. If a husband agrees to procure his wife to join with him in a conveyance of her land, and the wife refuses to do so, it seems, by the modern cases, that a court of equity will not decree a specific performance: 1 Madd. Ch. Pr. 399; Sugd. on Vend. 151. There are cases in which the husband has been confined to the Fleet until the wife agreed to join in the conveyance; and in one case the husband, after being confined for many years, was discharged, it appearing that the wife could not be induced to make the conveyance: Emery v. Wase, 5 Ves. 848, and S. C., 8 Id. 505. These cases show with what reluctance courts of equity stand by and permit a party to deprive another of the benefit of his contract. But it has recently been held that the court will not interfere, upon two considerations. The vendee knew, at the time of the contract, that the husband did not own the land, and might not be able to perform his agreement; he, therefore, has no right to complain, if he is left to his remedy at law, upon its appearing that, after a bona fide effort, the husband is not able to procure the wife's consent. And, in the second place, because, if the husband be decreed to perform, he will compel the wife, who is under his power, to convey; and the wife ought not to be exposed to this compulsion on the part of her husband.

It may be, but upon this we give no opinion, that where the vendee knows that the vendor has not the title, and takes a bond or covenant that a third person will be procured to make a conveyance, equity will not decree a specific performance, if it appears that the vendor has made proper exertions to procure the conveyance from such third person; because the first consideration, above referred to, applies with full force. As if a father, seised as tenant by the curtesy, sells in fee simple,

and covenants that he will procure conveyances from his children, when they come of age. If they refuse, after proper efforts on the part of the father, equity may decline to decree & specific performance, and leave the vendee to his remedy at law, this being a state of things which he might have expected, and as to which he took the chances. This result would seem to follow from the reason of the thing, but in respect to that we give no opinion upon it. No case makes such an exception to the general jurisdiction to decree specific performance, and it is only adverted to for the pupose of illustrating the next proposition, upon which this cause turns: Oliver v. Dix, 1 Dev. & B. Eq. 158. If the vendee does not know that the vendor has not the title, there is then no reason why he should not be decreed to perform his agreement; and if he is put to great inconvenience and expense to enable him to obey the decree, it will be the consequence of his own act, and he will not be allowed to offer such an excuse for not doing justice. When a vendee seeks to rescind a contract, because of a defect of title in the vendor, the latter is allowed time to complete his title, until the hearing: Clanton v. Burges, 2 Dev. Eq. 13. As a defect of the title will not excuse a vendee, provided it can be made good; upon ground of mutuality, it should not excuse a vendor. As the vendee can not discharge himself, should the land depreciate in value, so the vendor should not be allowed to discharge himself, if the value is enhanced. In this case, it does not appear that the plaintiff, Love, knew that the defendant did not have title. The bill avers, that the defendant did have title, or did have full authority from his co-tenants to sell. The defendant denies that he had title to the whole, and insists that the plaintiff had notice of his want of title; but he offers no proof of the fact, and his covenant is to convey, or cause to be conveyed, the whole in fee, and he admits that he has received the price of the whole

As to the averment, that he had authority from his co-tenants to sell, the defendant is entirely silent; leaving the inference that he either had such authority, or was guilty of a fraud in receiving the price of the whole. But, if it be conceded, for the sake of argument, that this court will not make a decree, requiring a party to do that which it is clearly out of his power to do, as it may amount to perpetual imprisonment, there is, in this case, no sufficient allegation and no proof whatever, to raise the question. The defendant avers generally, that, after reasonable exertion (and what amounts to it, he chooses to decide for

himself), he is unable to procure the co-tenants to convey. A conscientious man would not consider this a sufficient apology for the breach of an agreement, creating no legal obligation, when offered as a reason, why a court of justice should not compel the performance of a legal obligation. It is mere mockery! The defendant should have set out, what he had done-what price he had offered to pay! so that the court might judge, whether his exertions had been "reasonable," especially as the averment in the bill, that the value of the land had been greatly enhanced, since the contract, by the location of the town of Shelby on adjoining land, creates, against him, the strongest suspicion, and impeaches his motives by the suggestion, that, if he has title, he refuses to perform his agreement for the sake of gain—or, if the title is outstanding, he is unwilling to offer his co-tenants what is now a fair price. A man of proper feeling would be unwilling to avail himself of the gain, and would be willing to submit to much loss rather than violate his solemn agreement. A court of equity acts upon the conscience, and enforces a specific performance, and will require this unconscionable gain to be given up, or this loss to be incurred, if it be necessary to enable him to do that, which he has undertaken to do, and for which he has received the full consideration. There must be a decree for a conveyance to the plaintiff, Homesby, who is the assignee of the other plaintiff, Love, and the defendant must pay the costs.

Decree accordingly.

THE PRINCIPAL CASE IS CITED AND APPROVED in Jones v. Carland, 2 Jones Eq. 502; S. C., Busb. Eq. 239.

CRUMP ET AL. v. BLACK.

[6 IREDELL'S EQUITY, 321.]

WHEN BOTH PARTIES ARE EQUALLY ENTITLED TO CONSIDERATION, EQUITY DOES NOT AID EITHER, but leaves the matter to depend upon the legal title.

WHERE PURCHASER GETS THE LEGAL TITLE FROM THE HUSBAND, a court of equity will not divest him of it at the instance of the wife or her heirs, unless he had notice of her rights.

NO ONE HAS SUPERIOR CLAIMS IN A COURT OF EQUITY TO A PURCHASER WITHOUT NOTICE; and a court of equity will not interfere to deprive such a purchaser of a legal advantage.

EQUITY. Crump, in 1834, being entitled in his wife's right to a distributive share of her father's estate, contracted with