#### Patrick Doyle et al. v. Joseph B. Teas et al.

Appeal from Hancock.

1. Recording law — notice of prior deed. Such, notice of the existence of an unrecorded instrument as shows a subsequent purchaser to be guilty of fraud in making his purchase, gives to the unrecorded instrument, which is required by law to be recorded, priority to the subsequent one which is duly recorded.

2. Same — same. The doctrine in relation to notice is that each case must be governed by its own peculiar,circumstances; and where a court is satisfied that a subsequent purchaser has acted in bad faith, and that he either had actual notice of a prior sale or agreement, or might have had that notice, had he not willfully or negligently shut his eyes against those lights, which, with proper observation, would have led him to a knowledge of the facts, he must suffer the consequences of his ignorance, and be held to have had notice, so as to taint his purchase with fraud in law. It is sufficient, if the channels which might have led him to the truth were open before him, and his *211attention so directed that they would have been seen by a man of ordinary prudence and caution, if he were liable to suffer from the consequences of his ignorance, (a)

3. Possession — notice by. Semble, That the possession of property is notice of the interest of the person in possession, whether the recording acts are involved or not. (b)

4. Contract — record of. The effect of recording an agreement for the sale of land, under the statute of Illinois, is precisely the same as that of a deed, so far as protecting the rights of the parties to the agreement are concerned; and such recording is constructive notice to all the world.

5. Statute — construed. The word “subsequent” in the recording act has reference to the time of recording, and not to the date of the instrument.

6. Deed — effect of. As between the grantor and grantee of adeed,the transaction is complete upon the execution and delivery of the deed; but as between the grantee and third persons, without notice, the purchase may be said not to be completed till the title paper is left for record.

7. Evidence — ambiguity in writing. It is a general rule that a patent ambiguity, oran ambiguity which appears on the face of the writing itself, by the mere inspection of it, cannot be explained by parol evidence; while an ambiguity which does not appear on the face of the instrument, but which is shown to exist by the [* 203] introduction of parol proof, may be explained by the same class of evidence.

8. Writing — rule of construction. Courts in construing written contracts, endeavor, in all cases, by extrinsic evidence, to place themselves in the position of the contracting parties, so that they may understand the language used, in the sense intended by the persons using it,

9. Same — -parol evidence as to intent. It is not a sufficient test for excluding parol proof, that it appears on the face of the paper that there is an uncertainty as to the meaning of the parties; but the true doctrine is, where the language is of sucha character as to show that the parties had a fixed and definite meaning, which they intended to express, and used language adequate to convey that idea to persons possessed of all the facts which they had in view at the time they used the language, that it is the duty of the court to learn those facts, if need be, by parol proof, and by occupying the place of the parties, ascertain the sense in which the language was intended to be used. (c)

10. Same — intent to govern. It is the duty of a court to give effect to a written agreement between parties, if possible, rather than to say that they meant nothing by their acts.

11. Contract — essential part. The mode of discharging an obligation, or satisfying an agreement, is as essential a part of a contract as any portion of it.

12. Same — non essential. It is not necessary in a contract, that the parties to it *212should in express terms assume to contract, but it is sufficient if the instrument shows a manifest intention,, on the part of both parties who have signed it, to assume the responsibilities therein assigned to each.

13. Evidence — must be based on pleadings. In a court of equity, as well as in a court of law, such proof only is admissible as has its foundation in the pleadings, (d)

34. Specific performance — onus on plaintiff. The complainant is required to make out a much stronger case to support an application for the specific performance of a contract, than the defendant is required to show to resist.it. It is not sufficient to show merely that the adverse party is in default, but the party complaining must show that he is not liable to the same imputation, (e)

15. Vendor and vendee — when, conveyance compelled. A purchaser of property, to be paid for in installments, where there is no time fixed for the delivery of-the deed, is not entitled to receive his deed until the last payment is made; nor is a purchaser obliged to part with his money before he receives the deed. It is the duty of the latter to tender his money and demand the deed, and by holding the money in readiness, he occupies a position which authorizes him, within any reasonable time, to resort to a court of equity, to compel a conveyance. (f)

16. Equity — compels when. A court of chancery can only compel a party to act when it is his duty to act.

17. Tender — must be kept good. It is only necessary that a party asking to enforce a contract for the purchase of a tract of land, should make a tender of the purchase money, but he must follow it .up by bringing the money into court, and depositing it with the clerk, (g)

18. VENDOR AND VENDEE — right to compel deed. A purchaser of a tract of land has no right to apply to a court of chancery to compel a conveyance, unless he has, previously to filing his bill, clothed himself with the right to demand a deed, without any further thing being done on his part, (h)

19. Real ESTATE — tender, to compel deed. A party seeking the specific performance of a contract for the sale and conveyance of a tract of land, cannot excuse himself *213for not tendering the purchase money, when due, upon the ground that the vendor had conveyed the land to a third person.

20. Same — same. Semble, That if such third person holds the title as trustee in equity for the party seeking the specific performance of the contract, a tender either to him or the vendor would be good.

21. Same-/27«« as of essence of contract to sell. Semble, That it is not always necessary for a purchaser of land on a credit, to make his payment on the very day that the money falls due, to be entitled to a specific performance of a contract. The court has a discretion, in an application for the specific performance of a contract, to disregard the exact time ; but where the day has long passed, some satnfactory excuse for the failure must be shown, and if loss has accrued to one of the parties, in consequence of such failure, compensation will be decreed to him.

22. Agency — knowledge of agent. An individual who is employed by a person wishing to purchase a tract of land, to ascertain from the owner the price of the same, and to communicate to him the determination of the former, does not thereby become an agent of his employer, so as to make him chargeable with notice of such facts as may be known to the person thus employed.

23. Same — by adoption of act. In order to make an adopted agency, the acts performed must be such as would make the agent responsible, if not assumed by the principal, (i)

24. Same — instance. A agreed to sell to B a certain tract of land “ for $1100 ; a certain sum to be paid in hand, on the second day of June next; one stable horse from the first to the tenth of July next, the value o.f said horse to be assessed by two or three disinterested men, if not agreed on by the parties on the second day of June next, and the said party of the second part to give his promissory note for the balance of” said $1100, “payable in fifteen months from the date thereof.” B filed a [* 204] bill to enforce a specific performance of this contract, and therein alleged that it was agreed between the parties, that they should meet at McFadon’s store on Bear Creek, on the said second day of June, and that B should then pay over to A $700, which sum included the value of the horse ; and that it was then agreed that it should be at the option of B to pay over the whole of said sum of $700 in money, or to assess or caused to be assessed or agreed, between the parties, the value or price of said horse, and pay the residue to A, and. that B should execute his note to A for $400, the balance of said purchase money, payable fifteen months from the date of the agreement: Held, that the meaning of the terms “ certain sum” could not be explained by parol proof: but that they meant any sum-some money-a nominal amount — it being left to the discretion or convenience of B to determine : Held, also, that this agreement, being signed by both the parties, was reciprocally binding upon them, and sufficiently certain : Held, also, that so much of the allegations in the bill, and the proofs in support of them, as are inconsistent with the terms of the written agreement, must be rejected ; and such is the allegation which shows it optional with B, whether he would deliver the horse or not: Held, also, that parol proof was inadmissible to fix the amount of the first payment; and that the court could not go beyond the contract to ascertain the amount: Held, also, that the note should have been tendered or delivered at the time specified in the contract. Semble, That if the horse had died before the day for his delivery arrived, it would have been a sufficient excuse for his non-delivery.

25.Costs — abstract on appeal. In this’case the court ordered the clerk to tax in the bill of costs the expense of printing the abstracts of the cause, which were furnished, in print, by the parties. (j)

This cause was heard in the court below, at the October term, 1842, before the Hon. Stephen A. Douglass, who rendered the *214following decree:' “It is ordered and decreed by the court that the said bills and supplemental bills of the complainants be dismissed, and that the said complainants pay to the said defendants all costs by them herein expended in their defence to be taxed by the clerk of this court, and recovered by execution, as upon a judgment at law, and the parties are herewith dismissed without day,” etc.

'The complainants appealed to this court.

The following abstract of this case was furnished by the counsel:

Oeig-INAl Bill filed July 1st, 1837.

This is a suit in chancery on a bill for a specific performance, which was filed by James Doyle deceased, against the defendants, Joseph B. Teas and Charles Munson, in the Hancock circuit court, July 1st, A. d. 1837. The bill alleges that the defendant Teas was, or pretended to be, on and before May, a. d. 1835, .seized in fee simple of the following lands in Hancock county, ’Illinois, to wit: the north west fractional quarter of section two [2], in township six [6] north, of range nine [9] west, and the north half of the south half of the north west quarter of section one [1], in township six [6] north of range nine‘[9] west, and ■ being desirous to sellthe same, treated with the complainant, James Doyle, for the sale thereof: and thereupon certain articles of agreement in writing were made as follows, to wit:

“An article of agreement made and entered into between Joseph B. Teas, of the county of Hancock, and state of Illinois, of the first part, and James Doyle of the second part, of the [*205] county of Adams and state aforesaid, witnesseth, that the said parties to this agreement have entered into the following, (to wit,) that the said party of the first part has this day entered upon the following agreement, to wit: to sell to the said party of the second part the north west fractional quarter of section number two (2), in township six (6) north, of range nine (9) west, of the fourth principal meridian, and forty acres, being the north half of the south half of the north west quarter of section one (1), in township six (6) north, of range nine {T) west of the same meridian, containing forty acres, for the consideration ‘of eleven hundred dollars ; a certain sum paid in hand on the second day of June next; one stable horse from the first to the tenth of July next, the value of said horse to be assessed by two or three disinterested men, if not agreed on by the parties to this agreement, on the second day of June next, and the said party of the second part to give his promissory note for the balance of the aforesaid sum of eleven hundred dollars, payable in fifteen months from the date hereof, with all and singular the privileges of said *215possession, the ferry inclusive, and to transfer the lease of said ferry on Robert Taylor to the said party of the second part. In testimony we have hereunto subscribed our names and affixed our seals, this 23d day of May, a. d. 1835. Jos. B. Teas, James Doyle. Witness, Benj. Walby which said agreement was signed by the parties on the day of its date, and by Benjamin Walby as a subscribing witness, and sworn to by him before H. H. Snow, clerk of the county commissioners’ court of Adams county, on the 17th of June, 1885, and recorded in Hancock county, on the 19th of the same month.

The bill then alleges, that it was mutually understood and agreed by the parties, that they should meet at John W. McFad-"on’s store on Bear Creek, in Adams county, on the second day of June, A. d. 1835, and that Doyle should then and there pay over to Teas the sum of seven hundred dollars, which sum included the price or value of the horse mentioned in the written agreement before recited at length; that it was further understood and agreed, that at the time and place aforesaid, it should be at the option of Doyle to pay ó ver the whole of the said sum of $700 in money, or to assess or caus'e to be assessed or agreed between the parties, the price or value of said horse, (which was to be delivered to Teas from the 1st to the 10th” of July,) and to pay over to Teas, over and above the assessed value of said horse, so much money as would amount to the said $700; that it was further understood and agreed that at the same time and place Doyle should execute to Teas his promissory note for $400, the balance of the purchase money, payable fifteen months from the date of the agreement.

The bill then alleges,that in accordance with the foregoing agreement, Doyle attended at the time and place named, [*206] with $700, ready and willing to pay the same to Teas, and to execute to Teas his promissory note for $400; but Teas did not attend according to said agreement, whereby Doyle was prevented from paying said money and executing said note ; that Doyle has since repeatedly applied to Teas specifically to perform the aforesaid written agreement; that Teas has since sold the premises to his co-defendant, Charles Munson, and that Munson, or the agent or agents employed by him in making the purchase, at the time of his purchase, or before the payment of the purchase money, had notice of the previous sale to Doyle ; that Mary Ann Cutler and Hiram Kimball were Munson’s agents in making the purchase. The bill then prays that Munson and Teas be made defendants, and that Teas be made specifically to perform the contract by conveying the premises to Doyle, he offering to perform on his part, and to pay the $1100, and concludes with a prayer for general relief.

*216First Supplemental Bill filed October 14, 1841.

This supplemental bill states the death of James Doyle, and revives the suit' in favor of tiie present complainants, as his heirs at law; that the deed from Teas to Munson is dated May 26th, A. D. 1835, and recorded in the proper county on the 26th of June, A. D. 1835, and conveys the north west fractional quarter of section two, (2), in township six (6) north, of range nine (9) west, containing 120 94-100 acres, except nine specified town lots in Commerce ; that on the 27th of May, 1835, Teas conveyed 'to Munson lots three (3) and four (4) in block twenty (20), in Commerce, which deed was recorded in the proper county, June 26fch, a. D. 1835; that on the 31st of August, 1836, Teas quit claimed to the said Munson the whole fractional quarter section, which deed was recorded in the proper county, September 5th, A. D. 1836 ; that Teas résides in the Territory of Iowa, and insisting on all the relief prayed in the original bill, further prays that a commissioner be appointed to convey to the complainants all Teas’ interest in the premises mentioned in the agreement, and concludes with a prayer for gen eral, relief.

The bill was duly taken fro confesso against Munson for want of an answer.

SECOND SUPPLEMENTAL BlLL FILED OCTOBER 14, 1842.

The second supplemental bill alleges, that after the making of the contract between Teas and Doyle, for the sale of the land, and after the sale to Munson, and before the filing of the original bill, said Munson by deed dated June 4th, 1836, and duly record■ed in Hancock county, September 5th, a. d. 1836, conveyed to Abijali Fisher and Benjamin F. Lee, both of New [*207] York, and Joshua Aiken, of Peoria, in this state, an undivided half of the north west fractional quarter of section two (2), in township six (6) north, of rangó nine (9) west; that Aiken sold his interest to said Lee, after this suit was commenced, and that said Lee, Fisher, and Aiken, at the time of the conveyance from Munson, had due notice of Doyle’s title and claim to the land; that Aiken has died since the filing of the original bill, leaving certain unknown heirs ; and prays that said Fisher and Lee, and the unknown heirs of' Aiken be decreed to convey to the complainants (except Tallcut), heirs of said Doyle, their estate in said land by a proper deed, and in default thereof that a commissioner be appointed to make the deed, and concludes with a prayer for general relief.

This bill was taken pro confesso against all the defendants for the want of an answer.

*217Munson’s Answer, eiled August 18, 1838.

In bis answer Munson says that he believes that on and before May, A. d. 1835, Teas owned in fee simple the north west fractional quarter of section two (2), in township six (6) north, of range nine {9} west, in Hancock county, except nine town lots, parts thereof; that Teas may, on the 23d of May, A. d. 1835, by articles of agreement of that date, have agreed to sell the above described premises.to Doyle ; that many months after he bought and paid for those premises he heard that Doyle pretended that he had an agreement with Teas in relation to those premises of a date prior to his purchase, but that he heard nothing of such agreement at the time of his purchase, and the payment of the purchase money, nor till long after ; that he was informed in April, a. d. 1835, by Henry Kyle, that Teas wished to sell, and he immediately wrote to his sister, Mary Ann Cutler, and directed her to purchase the premises, and to raise money to pay for the same by negotiating a draft on him, although she was at that time indebted to-him to the full amount of the purchase money, and that, in pursuance of such directions, Mrs. Cutler, on or about the 25th day of May, A. D. 1835, purchased of Teas the premises for him, and paid the consideration agreed upon, and received the deed; that on being informed by Mrs. Cutler of the purchase, with a request that he would replace her funds, he remitted to her by mail a bank draft to the full amount of the purchase money, and that it was not till long after this that he heard, even by rumor, or in any other manner, that Teas was under any agreement or promise of any sort to any person except to him in relation to those premises ; that he has recently been informed that the consideration paid to Teas by Mrs. Cutler was partly cash in hand and partly by her note, which note was not given with his knowledge, nor signed as by' his agent, nor was it under his control, but was simply Mrs. Cutler’s individual note, executed without his request, sanction, or knowl- [*208] edge; that he believes that, at the time Teas sold and' conveyed the premises to him. Teas was seized of the same in fee simple, and that by said deed, which was properly executed and acknowledged by Teas, and was afterwards, in June, A. d. 1835, duly recorded in said Hancock county, conveyed to him the absolute title theteto, and that the consideration was about 1900, which was paid to Teas on or about the 25th day of May, A. D. 1835, at the time of the execution of said deed; that he is informed that Mrs. Cutler was assisted by Hiram Kimball- in negotiating said purchase, and that at the time of the execution of said deed, and at the time of the payment of the purchase money, he did not know, nor had he been informed, *218nor had he received any intimation, nor had he any reason to believe or suspect, and that he is informed and believes that at the times aforesaid, neither Mrs. Cutler nor said Kim-ball liad any knowledge, information, or suspicion that Teas had made any agreement whatever with Doyle for the purchase of said premises; that since the execution of said deed he has claimed to be the absolute owner of the premises in law and equity, and to have a right to do all acts which such owner might do ; and concludes with the usual prayer, and a general disclaimer as to the north half of the south half of the north west quarter of section one (1), in township six (6) north, of range nine (9) west.

To this answer a general replication was filed September 28, 1838.

Teas’ ANswer, piled October 8th, 1842.

In his answer Teas says that, on or about the 23d day of May, A. D. 1835, the original complainant, James Doyle, then a stranger to him, called on him at his residence in Commerce, Hancock county, Illinois, and desired to purchase of him the tracts of land described in the original bill; he admits that he was then the owner in fee simple of the north west fractional quarter of section two (2), in township six (6) north, of range nine (9) west, but denies that he was then, or at any time before, or since, the owner of the north half of the south half of the north west quarter of section one (1), in township six (6) north, of range nine (9) west, or that he claimed, or represented himself to Doyle, as such owner; that he was then negotiating with the owner for the purchase thereof, and that he fully represented and explained to Doyle that he did notown that tract,- but was negotiating for it, and expected to obtain title in a short time ; lie denies that he was anxious to sell to Doyle said tracts of land, or either of them, or that he and the said Doyle did then, or at any other time, treat for the sale of said lands, or make and conclude any agreement for the sale and purchase thereof, as the bill suggests; but. on the contrary, says that when Doyle called on him, he, Doyle, was anxious to purchase the lands, but, being a stranger to the defendant, he was un- [® 209] willing to trade, or make any agreement with Doyle in relation to the sale, hut that after considerable conversation, and at the particular desire of Doyle, the writing set forth in the original bill was written and executed by the parties, and was intended and understood not as a concluded agreement, binding on either of them, but as a mutual offer, or the memorandum of an agreement which the parties might or might not.after-wards complete, either of them being at liberty to decline the *219trade upon- further consideration, or not, as he pleased; that while said writing was being drawn, Doyle desired to have it inserted in the writing, that he had paid some twenty or thirty dollars in part of the purchase money of the land, to show a consideration, and to make the writing binding, which the defendant refused to have done, and that after the writing was executed, Doyle, to make the writing binding, offered to pay ten dollars, and desired to have the receipt of that sum endorsed on the writing, saying that without this the contract would be without consideration and not binding, which the defendant refused, saying that he would do nothing to make the writing obligatory on him in future ; and that Doyle then offered to pay thirty, and then fifty dollars and have it endorsed on the writing as aforesaid; as he said to bind the bargain, which the defendant refused, alleging the same reason as before, and that Doyle was very urgent on this point, both parties understanding that without such consideration the writing would not be obligatory on them ; and the parties separated, both believing that it was at the option of each to complete the sale and purchase, or not.

Teas then denies that it was understood and agreed by the parties that they would meet on the 2d day of June, 1835, at McFadon’s store, and that Doyle should then and there pay'him $700; denies that Doyle ever agreed to pay him that sum at that or at-any other time and place, or that there was any such understanding between them ; denies that Doyle agreed to pay, or that defendant agreed to receive of Doyle, at that or at any other time and place, $700 in money, in lieu of the $700 to be paid, part in the assessed or agreed value of the horse in the writing mentioned, and the balance in cash, in case the trade should be consummated ; denies that it was understood and agreed that Doyle should then and there have the option to pay over to him the whole of the said $700 in money, or to pay that sum partly in the said stable horse, and the balance in cash; denies that it was agreed that Doyle should then and there execute to Teas his promissory note for $400 for the balance of the purchase money of said land, and positively and expressly denies the several agreements and understandings set forth in the bill, and every part and parcel of them, to be true.

The answer then admits, that before, and at the time, and after the execution of the writing, but at the same time and place, there was some loose conversation about meeting [* 210] on the 2d day of June, A. d. 1835, at some place which was represented by Doyle as a half way point between said Commerce and Quincy, Adams county, Illinois, to consummate the trade, which place'may have been said McFadon’s store, but defendant does not recollect distinctly about it; that it was understood that the parties would meet on that day, at the place spe-*220eified, if defendant’s health, which was bad, would permit, when and where Doyle was to produce said stable horse, and if defendant did not appear at the time and place specified, that then Doyle would come, bringing with him said stable horse, to the residence of the defendant at said Commerce, and that when the parties so met at either of those places, it was then understood, that if the horse was sound, and as fine and valuable as repre‘sented by Doyle, and worth not less than $350, when estimated in the manner prescribed in the writing, the parties would proceed to conclude and consummate the trade, and that Doyle should pay the defendant in cash the difference between said estimated value of the horse and $700, and execute to the defendant his note for $400, with security to be approved by the defendant, payable in fifteen months from the 2d day of June, A. D. 1835, and deliver the horse to the defendant at his residence in said Commerce, from the 1st to the 10th of July, A. D. 1835, but if said horse was in any of the particulars mentioned deficient, it was in the same conversation understood that the said trade, was to be at an end ; denies positively that there was any understanding, or agreement, that the value of said horse might be paid in money, or that Doyle was to be at liberty to keep the horsé and pay money, instead of delivering the horse to the defendant; admits that he did not go to meet Doyle at the time and place specified, and alleges that Doyle did not on that, or any other dajr come to the defendant’s residence at Commerce, as in that event he was to do; denies that Doyle paid, or offered to pay, said money, or to deliver the horse, or to execute his note to the defendant, or to perform the alleged agreement or understanding ; does not admit or believe that on the 2d day of June, a. d„. 1835, Doyle was at said McFadon’s store, readj'- and willing to pay him the said $700, and to execute his note for $400 ; and denies that then and there, or at any other time and place, Doyle was ready and offered to perform said agreement and understanding, and alleges the contrary to be true, and denies that defendant ever refused to perform; admits that sooii after the execution of said writing, he sold and conveyed to Munson the north west fractional quarter of section two (2), in township six (6) north, of range nine (9) west, and that Munson had not, as he believes, at the time of his purchase, any knowledge, information, or suspicion of the writing or conversation between defendant and Doyle ; makes a general disclaimer as to the north half of the [* 211] south half of the north west quarter of section one (1), in township six (6) north, of range nine (9) west, and sets forth and insists upon the statute of frauds.

To this answer, a general replication was filed, October 8th, 1842.

*221ABSTRACT OF DEPOSITIONS. Complainants’ Witnesses.

Deposition of Joseph B. Teas, taken at Henry county, Iowa Territory, April 20th, 1889.

Examination in chief. I never saw Mr. Munson; I once sold and conveyed a piece of property to Charles Munson, who lived in one of the eastern states. I am acquainted with James Doylé.

I sold to Charles Munson a tract of land near Commerce, Hancock county, Illinois ; can’t now give the particular description of the property; said sale was made in 1835, I think the last of May or first of June. The supposed agreement with Doyle was made some time previous to that time. The purchase was not made by Munson in person, but by his reputed sister, Mary Ann Cutler, and Hiram Kimball, who was a clerk in the store of Mrs. Cutler at the time. If Kimball was the agent of Mr. Munson, he was informed that Doyle was. about to buy the premises; that some short time previous to selling the property, Doyle had partially agreed to purchase it. To the best; of my recollection, there was a written memorandum of an agreement made .and signed by myself and Doyle ; but was not intended as a conveyance or deed, nor as a sale ; the sale and conveyance were in future, on a day therein named, and the terms therein expressed. In relation to the supposed agreement made with Doyle, I at furthest only agreed to sell the premises to Doyle ; and that agreement was to be consummated at a subsequent day, as- the agreement will show, which was never carried out or fulfilled. This agreement was before the sale to Munson; and if Kimball was Munson’s agent, he knew of the agreement; but, if Mrs. Cutler was the agent, I think she knew nothing of it. As to which of the two was Munson’s agent I can not say, havin'g seen neither a power of attorney nor letter, constituting either of them his agent. The terms of the sale were agreed on between Mr. Kim-ball and myself; the deed was examined by Mrs. Cutler ; and, after she had consulted with a justice of the peace, I signed and acknowledged it, and delivered it to her. I do not recollect that anything was said about a former sale; think there was not at that, or any other time, anything said to \Mrs. Cutler about a former sale ; she seemed the party acting for Munson ; Kimball came to see me, and bargained for the premises, and Mrs. Cutler received the title papers, and advanced a payment for the jrroperty sold.

Gross-examination. As to whether Mrs. Cutler was Munson’s agent at the time of the sale, I have to say, [*212] that she examined the title papers, with a justice of the *222peace, and approved the deed. I then signed and acknowledged it, and delivered it to her; and she then paid me 1500 for Mun-son, in part of the purchase money, and at the same time executed her note, with Kimball as security, for $500 more, which ■was the balance. The note was payable in sixty or ninety days, and soon after the note was due, Mrs. Cutler, for Munson, paid it.

After the agreement with Doyle, I did not see him for near two years; and Doyle did not at the time of the agreement, nor at any other time, comply with the same in any respect, nor did ho ever pay, or offer to pay, or tender any payment, according to said agreement. At the time of the agreement with Doyle, and after it was placed in his hands, he proposed to pay me a small amount of money, the receipt of which the said Doyle desired to liave-endorsed on the back of the writing, which Í refused to do, saying, that I would take nothing at that time, and that I would not do anything to make the writing binding ; which Doyle anxiously insisted on, but I refused.

DEPOSITION OE JOHN VANCE, TAKEN IN GRANT COUNTY, WISCONSIN Territory, April 8th, 1889.

Examination in chief. I knew of Teas’ selling to Munson a tract of land adjoining the town of Commerce, in Hancock county, being the same Teas had previously sold to Doyle. The said Munson made the purchase through an agent, and not in person. Hiram Kimball was the agent and said Kimball did know of the sale from Teas to Doyle, at and previous to the time of the sale from Teas to'Munson. Hiram Kimball told me, previous to the sale and conveyance from Teas to Munson, that the title which Teas gave to Doyle for said land was not good for anything ; that he, Kimball, would buy the land of Teas for Munson, and risk it any how.

A part of the premises was known as the north west fractional quarter of section two (2), in township six (6) north, of range’ nine (9) west. The remainder was in section one (1), same township and range. I do not recollect the particular description,

I was told by Teas, previous to the sale from Teas to Munson, that he, Teas, had sold to Doyle; that he was to meet Doyle at Bear Creek on a certain day after, and to get his pay for said premises, and to take a stallion in part payment.

Cross-examination. I have seen Munson at Commerce, but don’t recollect when.

Quest. “ Was or was not Mary Ann Cutler agent for Mun-son, at the time of the sale from Teas to Munson, and did she or did she not pay the purchase money for said Munson to said Teas?”

*223 Ans. “ Not according to the best of my knowledge.” [* 213]

Qiiest. “ Was or was not Hiram Kimball agent for said Mary Ann Cutler, and in her employ, at the time of said sale?”

Ans. “ According to the best of my knowledge, he was.”

The land already described, is the same sold by Teas to Mun-son, and which, it is pretended, had been previously sold by Teas to Doyle.

Hiram Kimball told me, previous to the sale of the land by Teas to Munson, that he, Kimball, knew of Doyle’s buying the land of Teas; but that Doyle’s title was not good for anything; that he, Kimball, would buy the land of Teas for Munson, and’ risk the title any how. And said Kimball also told me, after the sale and conveyance from Teas to Munson, that he (Kimball) had served Doyle a slick trick, and got the land before Doyle paid for it. I do not recollect the exact time of these conversations; they took place in Commerce.

First Deposition op Benjamin Walby, taken in Adams county, Illinois, September 11th, 1839.

Examination in chief. I am acquainted with Doyle; saw Mr. Teas but once, when he and Doyle made a trade about two certain pieces of land; this was May 23, 1835. The price for the two pieces of land agreed on was §1100, and the payments as follows: §800 on the 2d day of June following, and the balance in fifteen months from the date of the contract. The land was the north west fractional quarter of section two (2), in township six (6) north, of range nine (9) west, and the north half of the south half of the north west quarter of section one (1), in township six (6) north, of range nine (9) west.

The parties agreed that the payment of the §800 should be made at McFadon’s store, on Bear Creek, in Adams county, on the 2d day of June, 1835. I went with Doyle to McFadon’s store, on Bear Creek, at the time agreed on, and Mr. Doyle had with him the sum of §800. I saw it counted out on the counter of said store. Mr. Doyle was ready to pay it to Mr. Teas; he remained at said place till near sunset, and no one appeared for said Teas to receive the money.

I know of my own knowledge that the payments were to be made as I have stated. I did not make any minutes, but rely on my memory.

Cross-examination. I went to McFadon’s store on the day that was agreed on by the'parties. I can’t say that it was the 2d of June, 1835.

The money counted out by Doyle was part silver, and part bank notes. I did not count it; I saw it counted clearly over once or twice; am certain there was §800; I can’t say how *224[* 214} much there was in silver. It might be half silver; I did not take particular notice of the quantity of each.

We went to McFadon’s store about 11 o’clock A. m., and remained there until near sundown.

Quest. For what purpose were you present at the making of the contract between Teas and Doyle, on the 23d May, 1835?

Am. I went with Doyle to see the country; had an idea of taking a farm in Hancock. I did not know anything of the trade before I went, and had no interest in it.

DEPOSITION OF TfIOMAS BEATTY, TAKEN IN ADAMS COUNTY, Illinois, September 11th, 1839.

I was at McFadon’s store on Bear Creek, in Adams county, on the 2d day of June, 1835. James Doyle was there. I went with him and Mr. Walby, at Doyle’s request, to see him pay Mr. Teas a sum of money for land which Mr. Doyle had bought of Teas. Doyle counted out on the counter of the store $800. Doyle said he was ready to pay it to Teas on the said land. Doyle remained at the store till near sundown.

Deposition op Wm. White, taken in Hancock county, Illinois, August 30th, 1839. 6

I am acquainted with the parties to the suit, and with the premises in question. I heard Teas say he had contracted the land to Doyle; the length of time I can not recollect, but think it was about ten days after the sale should have taken place from Teas to Doyle, as Teas said. The conversation was at Teas’ house on the premises. Teas said, in the same conversation, that Doyle was to make a payment on the land in a short time, but I do not remember that he stated where it was to be made.

■ Soon after, and during the same season. Kimball told me he had bought the land in question of Teas for Munson, and that he was authorized by Munson to purchase it for him. At the time of the conversation, I resided at Alexander White’s, adjoining the premises. I think the conversation took place four years ago this summer, but do not recollect distinctly.

Deposition op Laurinda Barnes, taken in Hancock county, Illinois, September 3d, 1839.

I heard Mr. Teas say he had sold the land to Mr. Kimball, and that he bad bought it his own risk. I heard Mr. Kimball say he did not apprehend any danger; he did not think he would lose the ■ land; he did not think the writings from Teas to Doyle were good for anything.

*225The land lay adjoining Commerce, I cannot give the numbers. I suppose it was the same on which Teas then [*215] lived.

Deposition of Solomon Atchison, taken in Hancock county, Illinois, OotobeR 22d, 1839.

Examination in chief. I am acquainted with the parties to the suit; I should suppose that the sale of the premises from Teas to Doyle was made three or four years since. I understood from both Doyle and Teas, that Doyle had contracted for it; and I un-' derstood from Mrs. Cutler, that she had also bought it from Teas, and that it was Munson’s property. If Doyle purchased it at all, and I understood from both Doyle and Teas that he did, he purchased a short time before Mrs. Cutler did for Munson. I was not present when Mrs. Cutler purchased the property in question, nor when Kimball and others talked of purchasing. I think I had conversation with Mrs. Cutler respecting that purchase ; I think it was on that day, or the day after, or thereabouts, that I heard there was a contract between Doyle and Teas, previous to, and on the same day with, her purchase for Munson. I heard both Kimball and Mrs. Cutler say that they were about to purchase the premises for Mrs. Cutler, and that Kimball went after Teas to purchase. I did not understand from them that they completed the purchase on that day. I understood that they completed the purchase, but can’t be positive as to the day. Since said conversation, I have not heard Kimball or Mrs. Cutler say that they, or either of them, purchased those premises for Munson. I can’t recollect the conversation between Mrs. Cutler and myself, in relation to the sale to Doyle, and the purchase by her. I know that we had some conversation about the sale to Doyle, but I cannot recollect the amount of it, neither can I say positively what the conversation was; but I think it was about the rights of Doyle. I do not recollect that Mrs. Cutler spoke at that time of'the rights of Doyle to the premises in question. I believe I had conversation with her respecting Doyle’s purchase. I can’t recollect any part of it that I am willing to swear to. I do not know that Mrs. Cutler, at the time she purchased the premises, knew of the previous purchase by Doyle; it is my impression that she did; my impression is that I got the impression from the conversation between Mrs. Cutler and myself. I believe that Mrs. Cutler and myself, on the day she was about to purchase the premises in question, had a conversation on the subject of her purchase. It is my impression that the purchase of Doyle from Teas was spoken of between us in that conversation; but the exact words of the conversation I cannot recollect. I have no doubt in my mind, that the sale from Teas to Doyle was a part of that conversation. *226I was then residing about three quarters of a mile from the premises. I do not know, but I think the sale from Teas to Doyle was not a matter of public notoriety previous to, or at the [*216] time of, Munson’s purchase. I am not positive that I ever did communicate to Mrs. Cutler the fact of Doyle’s purchase from Teas, but it is my impression that I did ; and if I did, it was on the day she purchased from Teas; and before slie made the purchase. I .have no doubt that I did on that day converse with Mrs. Cutler upon the subject of the purchase of Doyle from Teas. I have no doubt that Mrs. Cutler and Kimball made the purchase, with notice of previous bargain or sale from Teas to Doyle. It is my impression that they knew of the sale to Doyle.

Cross-examination. I believe Teas was living on the premises at the time of the alleged sale to Munson. My recollection is a little imperfect and confused, owing to the lapse of time since the events referred to. I cannot be positive as to the conversations between Mrs. Cutler and myself. I do not think the conversation between Mrs. Cutler and myself could have related to my having sent Doyle to Teas to make the purchase. I do not think that the time which elapsed, between the purchase by Doyle of Teas, and the purchase of Teas for Munson, was to exceed two or three days, perhaps not so long. I did not know at the time of my said conversation with Mrs. Cutler, that Teas had actually sold to Dovle, but it was my understanding that he had.

Examination in chief resumed. I do not recollect the exact words of the conversation between Mrs. Cutler and myself; but I remember the subject matter. The substance was about the sale. The conversation and the sale both took place, as well as I recollect, in the spring of 1885.

Deposition oe James W. Woods, takeN at Burlington, Iowa Territory, March 80th, 1842.

Examination in chief. I knew Joseph B. Teas and Mrs. Mary Ann Whitney, and have known them since the summer or fall of 1884, when they resided at Commerce, Hancock county, Illinois; and T first knew Doyle in the summer of 1834, when he resided in Adams county, Illinois. I knew of a sale of the north west fractional quarter of section two (2), in township six (6) north, of range nine (9) west, made by Teas to Doyle. In the fall of 1884, Doyle made a contract with Teas for the said land, and was to pay him about f 1100, part to be paid in a stud horse, and the balance in cash; and Teas gave Doyle a bond to make a deed, and Doyle was to have time for the payment of the purchase money. The horse was to be valued by men chosen for that purpose, on his delivery, if the parties could not agree on his value. The bond given by Teas to Doyle did not contain a penalty, but was *227what I considered a written memorandum of the parties, and, I think, contained the terms of sale and payment, and was signed by both parties. I have seen the agreement, but it is so long since I cannot recollect its precise date or terms. [*217] The above is the substance of my knowledge as derived from both Teas and Doyle. I think this agreement was made in the early part of the fall of 1834.

I know of the sale of said property by Teas to Munson through his agent, Mrs. Mary Ann Cutler, in the fall or early part of the winter of 1834, and after the sale by Teas to Doyle. Mrs. Cutler informed me she was about to make a purchase of the said land for her brother, Charles Munson. I was then acting as attorney, in the settlement of the estate of George Y. Cutler, her late husband, and employed by her in the settlement of his affairs. I told her of the sale by Teas to Doyle, and advised her not to purchase said land, and that Teas had sold to Doyle, and that he could not make a good title. I knew that after this conversation, Mrs. Cutler did purchase said land of Teas ; and, as she informed me, for said Munson, her brother, as his agent. I think she gave him about $1200. The sale to Doyle was previous to the sale to Mun-son ; this I learned from Teas and Mrs. Cutler, and the agree-rneet made by Teas, having seen them. I was acting as attorney in some business for Mrs. Cutler, and she informed me of the time of the sale to Munson, which was after the conversation already spoken of between Mrs. Cutler and myself. The first conversation with Mrs. Cutler, alluded to, took place at her residence, in said Commerce, in the fall or winter of 1834. In that conversation, she informed me that she was to pay Teas more than Doyle by some $50 or $100; I do not recollect the exact amount. We' had a good deal of conversation, but I cannot at this time recollect all the circumstances ; I have had my attention drawn to the particular facts deposed to, by being requested by Doyle to recollect them, knowing that a suit was pending in relation to the title.

Third Deposition op Benjamin Walby, taken at Quincy, Illinois, September- 9th, 1842.

Examination in chief. I am the same Benjamin Walby whose deposition has been already twice taken in this cause; once by complainant, and once by defendants.

Quest. Have you or not ever been legally interested in the result of this suit.

Ans. Mr. Doyle had promised me a lot in the town of Commerce, in the event of his gaining the suit; that promise was made before the first deposition was taken; there was no writings between us. I went to see him a few days before his death, *228concerning the lot, and asked Mm whether he was going to give me the lot he had promised me. He replied that he did not know whether he should or not, as I did not come up there to live, as he had éxpected.

[*' 218] I certainly expect to receive said lot, in case Doyle’s heirs succeed in said suit. The reason why I expect it is, that all the parties well knew the oldgentleman had promised me the lot, and from this reason I think they would consider me entitled to it; I don’t know whether or not I have a legal claim to the lot, in case the heirs succeed. Mr. Patrick Doyle called on me and gave me notice of his father’s death, and said he hoped I would be the same friend in this Teas case I was before. Christopher Tallent, who married one of Doyle’s daughters, called on me, and the conversation with him was about the same. They wished me to do as I had done before. This was all the conversation on the subject. In my mind I was to receive the lot in the event of their success. They made me no other promise than what I have stated. I have told all that occurred. I don’t now recollect whether I stated in my first deposition that I was interested or not; I had some conversation with Doyle at that time and told him that I could not tell whether I was interested or not. I don’t recollect that I did state anything in said deposition about said promise; the reason I did not state anything in the deposition about it, was because I left it to Mr. Doyle. In consequence of the conversation with him I did not say anything about it, as I did not know whether I was interested or not, and left it to him. I don’t know that I can recollect the conversation; but, as near as I can recollect, he said he would make'all things straight as he promised.

I was present when the agreement was made between Teas and Doyle, upon which I was examined in my first deposition, and witnessed it; I cannot now tell the day ; I cannot swear to the year. I stated it in my former deposition, at which time I recollected it more fully. The first payment was to be made at Mc-Fadon’s store. I cannot now recollect the exact sum to be paid, nor how the payment was to be made. I recollect that I attended with said Doyle at said store, on the day agreed upon, for the purpose of performing said contract. Teas was not present at said store, at the time Doyle and myself attended there. I have not now the recollection of what was done at that time and place.

I have stated the particulars in my first deposition. I believe Doyle was then and there prepared to make the first payment according to the agreement. I recollect that Doyle counted a sum of money, but do not recollect the amount. Thomas Beatty was present on said occasion.

Cross-examination. Christopher Tallent, to ,the best of my recollection, called on me about three weeks ago. We had some *229little talk in relation to the suit; that was his business ; he had no other business. I live in Adams county; Tallent lives in Hancock county, about 45 miles from'my house. Tallent told me at that time that the opposite party were about to take my deposition. At the first meeting with Patrick Doyle [* 219] and( Christopher Tallent, after the death of Doyle, in their conversation to me, I understood, from the conversation that they were going to do as the old man had promised; I certainly understood that I was to receive from the heirs of Doyle, alot in Commerce, in the event of their success in said suit. I do now expect, in that event, to receive the lot. I gathered that understanding from the conversation with them before mentioned. That was all the conversation I had with them.

Deposition oe Hugh White; taken at Hancock county, Illinois, October 10th, 1842.

I lived about half a mile from where Commerce city now is, from the year 1824, to the year 1839. I am now a pilot on the upper Mississippi, from St. Louis to Prairie du Chien. I am well acquainted with the land in question it corners with the corner of my land. There is no steamboat landing along the bank of said Teas tract. A loaded steamboat of the ordinary size cannot land there when the water is low. It is not safe or suitable for such a boat to land there, when the water is at a common boating stage; and we never land there, unless the water is very high, and we are compelled to do it. There are two steamboat landings for the city of Nauvoo. The lower landing is between two and three hundred yards above the north west corner of the premises in question; and the upper landing is near half a mile above the lower one. The upper landing is the main one. There is no steamboat channel from the lower landing as you descend the river. When we go to the lower landing, and consider the water high enough, we cross directly to the opposite side of the river, and keep down the opposite side to Montrose. When the water is not high enough to cross straight over, we run up the shore about 600 yards, and intersect the main channel of the Mississippi. A loaded steamboat of the ordinary size could not safely run across the river from any part of the Teas tract, into the steamboat channel, at an ordinary stage of water. I should not say there is any steamboat channel from the city of Commerce down on this side. There is a way they run at high water, but it is not a channel. The Teas tract cannot be safely used as a steamboat landing. The upper landing is a good one, and a natural landing. The lower one has been improved. The rapids commence at the lower landing, and run at an angle of forty-five degrees half way *230across the river, and from thence to the lower end of Montrose, in a course south of south west.

T was acquainted with James Doyle ; and he did claim-the pre'mises in question at all times as his own. I became acquainted with him five or sis years ago, and knew him till his death. He resided one and a half or two miles from me.

[*220] Cross-examination. All the principal improvements in Nauvoo are on the lower side of the premises in dispute, in the vicinity of the Nauvoo House. There is no steamboat landing along that part of Nauvoo; none, where a safe landing can be had, except in high water. The current of the river increases in rapidity, immediately below the lower landing, and continues increasing a little over half a mile, and there is considered to be the swiftest place. It is about one fourth more rapid in front of the premises in dispute, than at the lower landing, and runs, on an average, near the shore, in the ordinary stage of water, I should think, at the rate,of three and a half miles an hour. The average rate of the current of the Mississippi river, between Quincy and Alton, at the ordinary stage of water, is two and ii half or three miles an hour.

Re-examination in chief. There is a bar one hundred and fifty or two hundred yards below the lower landing, which a loaded boat of the ordinary size cannot pass, at an ordinary stage of water. The lower landing has been improved by'making a wharf twenty or thirty feet out into the river ; and a similar landing could be made in front of the Teas tract, which, could be used in high stages of water; but I should think not more than two months in the year. Common sized boats, when loaded, could not land at an ordinary stage of water.

ABSTRACT OF DEFENDANTS’ DEPOSITIONS.

DepositioN oe Mbs. Mary Ann Whitney, taken at Quincy, Illinois, August 31st, 1839.

I am acquainted with the defendants, and know that Munson purchased of Teas the north west fractional quarter of section two (2), in township six (6) north, of range nine (9) west, in Hancock county, Illinois; the purchase was made in the spring of A. D. 1835, not by Munson in person, but by Hiram Kimball, who was at the time my agent, and acted as such in negotiating the purchase, which was made under my directions, as agent for Mun-son. I think Munson paid for the land between $900 and $1000. Five hundred dollars were paid in cash at the time of the purchase, and the balance in two or three months after. At the time of the purchase for Munson, I had no knowledge of a prior sale of said land by Teas to Doyle, or to any other person. Hiram *231Kimball was not the agent of Munson, in negotiating the purchase, nor was ho ever Munson’s agent, for any purpose, till after that time. I think he has since acted as agent for Munson.

Deposition ox William Price, taken at Quincy, Illinois, SEPTEMBER 8TH, 1842.

I think I knew James Doyle in the years 1834 and 1835; -was acquainted with Benjamin Walby previous to that time. In June, 1835,1 was in the employment of John W. McFadon, [*221] in his store on Bear Greek, in Adams county, Illinois ; it was called McFadon’s store. I think neither said McFadon; nor any other person, except myself, was engaged in and about said store during any part of that month. I do not remember that said Doyle and Walby were together at said store at any time during the months of May, June, or July, a. d. 1835, nor do I recollect that at any time during that period, said Doyle produced or counted out any sum of money at said store. If Doyle had come to said store, and counted out the sum of $700 or $800, half in specie and half in bank bills, to tender on a contract, and had remained about there a good part of the day for that purpose, in either of said months, I think I should have recollected such a transaction. Small sums of money were frequently counted out there, but such large sums seldom; 1 do not now recollect of any such amount being produced and counted out there.

Cross-examination. There were two counters in said store in the shape of an L, running across the end and along the side of the room, connected by a door at the angle. There were two rooms in the store, both fronting on and having a door opening on the street, and in the room in which there was no counter there was a table. Said store was a place of considerable resort for persons to trade and do business, as well with each other, as with the proprietor or clerk of the store. There were frequently many persons there at the same time, and they were often engaged in transactions in which I was not concerned, and of which I took no notice, and they might have counted out sums of money in one part of the store, while I was engaged in another part, without my noticing or remembering it, unless my attention was particularly called to it. My attention was frequently called to notice such things.

I cannot be positively certain that said Doyle and Walby were not at said store together on the 2nd day of June, A. D. 1835, nor that they did not then and there count out a sum of money, on the counter of said store, to any amount.

*232Second Deposition oe Benjamin Walby, taken at Quincy, Illinois, September 8th, 1812.

I am the same Benjamin Walby whose deposition was taken in this case in Quincy, Illinois, in A. D. 1839. I was present at the time of the execution, of the writing signed by Teas and Doyle, about the lands for which this suit is brought, on the 23d of May, A. D. 1835. I do not recollect that any money, or anything' else, was then paid to Teas on account of the land. Doyle said to Teas, to the best of my recollection, “ I will give you ten dollars to bind the bargain.” Teas replied, to the best of my recollection, that he would not take any till they met at McFa-[*222] don’s. I don’t recollect that Doyle desired to have it expressed in the writing that a certain sum of money had been received on account of the land.

Quest. For what reason did Doyle want Teas to receive ten dollars on account of the land ?

Ans. The reason was he talked this way, if you take ten dollars we bind the bargain.

I do not recollect that Teas gave any reason for refusing to take the money. Doyle had not then with him the horse mentioned in the writing; Teas had never seen the horse. Doyle represented to Teas that the horse was worth from $300 to $3 .0. By the conversation then had, Teas had the option to refuse the horse and take the money, if he did not like the horse, when he saw him. Doyle wished to get rid of the horse at that price, if Teas would like him, if not, he was to furnish Teas with the money ; that was the way I understood the trade ; if Teas liked the horse at the valuation, he was to take him or leave him. It was my understanding that Doyle was to bring the horse with him to McFadon’s store, on the 2d day of June, A. D. 1885, to exhibit to Teas. Doyle did not have said horse with him, when we were there together on that day. I never understood in that conversation, that in case Teas did not meet Doyle at McFadon’s store on that day, Doyle should bring said horse to Commerce, where Teas lived.

Gross-examination. At the time said writing was drawn, it was the understanding with Doyle and myself that he had made a bargain on the terms contained in the agreement, and I did not hear Teas say anything to the contrary. The price agreed upon. for the land was $1100. In the same conversation Doyle said he had a stud horse he wished to put in. Teas then asked the price of the horse. Doyle replied that he was worth from $-300 to $350, but that Teas should have him at the price any two men valued him at, when he saw him. Teas said he wanted a stable horse if it suited him ; he seemed to answer as if it was something he did want; I would take it so.

*233 Re-examination. Before my former deposition was taken, Doyle told me I should have one of tlie best lots in that town, which was then called Commerce, in case he then succeeded in the suit. He had given me no proof that I should get the lot except verbal. I expected to get the lot', if Doyle succeeded.

Hiram Kimball’s Deposition.

I became acquainted with James Doyle in the fall of 1835. I have been acquainted with Teas nine years ; and with Munson six years, in November next. Munson’s place of residence is New Haven, Connecticut. I have resided in Nauvoo, formerly Commerce, in this county, nine jmars last June. I was engaged in mercantile business, on my own account, in [*223] the spring and summer of 1835.

I was knowing to the purchase by Munson of the northwest fractional quarter of section two (2), township six (6) north, of range nine (9) west, from Teas. It was made in the latter part of May, 1835, as I think. Some time in the winter previous, Teas applied to Henry Kyle to write to Munson to purchase his place. Munson wrote to Mrs. Cutler to purchase it for him. She received the letter some time in the latter part of May, 1835, and requested me to call on Teas, and see on what terms it could be had. I called on him the next day after the letter was received. After some conversation, he offered to take $1000 for the property, half in cash, and half in ninety days. I told him that Mrs. Cutler had sent me to negotiate for Munson, and I would go and see her, and would let him know some time that clay, whether she would take it or not. In the afternoon of that day, he came past my store, and I told him that Mrs. Cutler had concluded to take the place. He said he could not make out the deed that afternoon, but would make it out and have it ready the next day. Next day, he and his wife came up to Mrs. Cutler’s, and made out and acknowledged the deed before Robert Taylor; and he was paid $500. Mrs. Cutler brought forward the money, and I counted it out for her to Teas. There was a note given by Mrs. Cutler and myself, at ninety days, for the other $500, which was paid when it became due by Munson. He sent a check to Mrs. Cutler, who was in Adams county, and she sent the funds to me to settle the note. I was not authorized by Munson to purchase the land; Mrs. Cutler was, by letter; she was Munson’s sister, and I was acting under her directions in the matter. I was to call on Teas, and see what the place could be got for, and report to her. I was not authorized to close the contract. I reported to Mrs. Cutler the terms proposed by him. Her further instructions were, that she would take the place, of which I informed him.

*234The land lies on tlie Mississippi river, in Hancock county ; the south half of the old town of Commerce lies on that tract; which lies within the corporation of Nauvoo, and is not laid out in town lots of Nauvoo. At the time I so called on Teas, by Mrs. Cutler’s directions, he did riot inform me that he had previously contracted, by writing or otherwise, to sell the land to Doyle ; I don’t know of his informing Mrs. Cutler of that fact, at any time previous to the completion of said purchase for said Munson. I did not know it, and don’t know that she knew anything about it. Teas stated at that time to me, that he was offered $1100 for the land a few days previous, by a couple of men, but did not [*224] like the offer, on account of being too long pay day.

He did not name the men, nor did I understand that he had made a trade with them; but that he had received an offer.

Í don’t think it was generally known in the neighborhood that Mrs. Cutler was about making the purchase.

Mrs. Cutler resided about fifty rods from the premises; from a quarter to half a mile from Teas’ residence. Doyle then lived in Adams county ; he removed into Hancock county in the latter part of 1835 or fore part of 1836, to a place about two and a half miles south of Commerce, containing about three hundred acres, which I think he purchased in June, lo35, of James Miller, for $1200, where he lived until his death in 1841, and where Patrick Doyle, his son, now resides.

Mrs. Cutler removed from Hancock county in 1836. She now resides in Adams county, and is married to D. Gr. Whitney.

The land, purchased for Munson of Teas, improved in value from the spring of 1835 to the spring and summer of 1837. Lands in that section of the county, generally, had increased in-value between these periods, from 100 to 1000 percent.; lands a little back of the river, 100 per cent.; and lands on the bank of the river, 1000 per cent. When I speak of lands increasing 1000 per cent., I mean the south west fractional quarter of section thirty- five (35), in township seven (7) north, of range nine (9) west; and the west half of section two (2), in township six (6) north, of range nine (9) west, on account of the location of the ground, the quality of the soil, and the prospects of building up a town.

I don’t know that the Teas tract had increased in value more than some other lands; it increased 1000 per cent, in value, on account of the prospects of a town being built there. It was generally understood in the years 1836 and 1837, that a town would be built up there at that time, on account of Hotchkiss, Grillet, and others purchasing a large tract of land, adjoining this, laying it off into town lots, and building up a city.

Hotchkiss and others purchased, I think, in 1836; they laid it *235out in town lots, I think, in the spring of 1S37, and named it Commerce city.

Munson sold one half of the Teas tract for $6000, to Benjamin F. Lee, one Fisher, and Joshua Aiken, I think it was in 1836 ; Hotchkiss and others resided at Fairhaven, Connecticut; were considered men of capital, and were desirous to build up a town at Commerce city. If a large town was to be built up at the old town of Commerce and Commerce city, I think the Teas tract would naturally make a part of the town. The best landing is at old Commerce and Commerce city; it commences at the upper end of the Teas tract, and goes north. Lots adjoining the Teas tract have, within the past year, been selling from $800 to $1000 per lot; each lot cal- [*225] culated to contain an acre, including half of the street. I consider that as favorably situated as the other parts of the town, for’prices.

I knew John Yance in the spring of 1835, and he resided in Hancock county, and removed from there about five years ago. I did not have any conversation with said Vance, concerning the sale of said land by Teas to Doyle, or concerning the sale from Teas to Munson, from the time that Mrs. Cutler received the letter from Munson, to the time when the deed was executed.

Yance worked generally at farming and carpentering, and resided on his farm, four miles from Mrs. Cutler’s residence, and the same distance from my place of business. I think he was not in my employment, or in Mrs. Cutler’s at any time in May, 1835 ; I can't say positively. I did not, at any time before said purchase of Teas for Munson, make any such statement to Vance, as that I knew of said Doyle’s buying said land, but that Doyle’s title was not good for anything, and that I would buy the land for Munson, and risk the title any how. I do not recollect that, after the said purchase, I had any conversation with Yance, about said purchase, and about Doyle’s contract.

I was acquainted with James W. Woods in the spring of 1835 ; he then resided at Carthage, as I believe, and was an attorney at law. I think he now resides in Burlington, Iowa.

Cross-examination. Teas removed from Commerce in the fall of 1835, or spring of 1836, and has, I believe, resided out of the state ever since.

I think Mrs. Cutler removed from Commerce to Connecticut, in the fall of 1835, orsummer of 1836.

I called on Munson in New Haven, Connecticut, I think, in the fall of 1836, and we had considerable conversation concerning Doyle’s claim to the land. At the time I paid the note to Teas, I can’t state certainly whether Teas resided in Iowa, or in Hancock county, Illinois.

Since Munson’s purchase from Teas, I have been Munson’s *236agent to take care of said land ; and as such agent, have had ■ dispute with Doyle about the possession; I should think, in the falL or spring after the purchase by Munson.

Quest. Did or did not the said Doyle, at all times during his life, after he moved into the neighborhood of Commerce, assert his claim to said 'land ?

Ans. I believe he considered he had a claim to it.

Doyle claimed by virtue of the agreement from Teas; I don’t recollect his declaring his intention of asserting his claim. I don’t know that he at all times insisted that he was entitled to the land.

At the time of our dispute about the possession of the land,hi pretended he was entitled to the'land. I don’t know as ho [*226] ever relinquished his claim; I can’t say that he did not.

Quest. Was it or was it not, in conversation with Munson in the fall of 1886, understood that Doyle still continued to claim the land.

Ans. I believe he still pretended to claim it.

I don’t remember that Solomon Atchison was at Mrs. Cutler’s at the time Teas and his wife made the deed to Munson. I don’t know that I ever heard Mrs. Cutler and Mr. Atchison converse about Doyle’s purchase of the land.

The first I heard of Doyle’s articles of agreement with Teas, was in June, 1835, after the purchase. I can’t say when Mrs. Cutler first heard of it. I conversed with her on the subject after I had first heard of it. I think it must have been in June ; it might have been two or three months after. I think it was after she went to Quincy.

The three lots in Commerce, which I sold my father in 1836, wero worth in the spring of 1835, with the improvements then on them, I should think, $400. I had, in the mean time, made an improvement on one of the lots, worth $1000. At the time of the sale to my father, the premises were worth $1600. The lots with the improvements, as they were, when I sold them to my father, would have been worth $1400 in the spring of 1835.

I was not present at the time Munson sold to Aiken and others.

Quest. How do you know how much they paid to Munson ?

Ans. The parties told me how much they paid. Aiken told me at Commerce, I think in the summer or fall of 1836, that they paid Munson $6000 for one half of his interest. Munson told me in New Haven, in November, 1836, that he had sold one half of his interest for $6000. I don’t recollect of either of the other parties conversing with me on the subject.

I have not recently examined the records of this county, for the purpose of refreshing my memory, orto prepare to make this deposition. I went into the office, since the present term of this court, at the request of one of defendant’s counsel, to examine the *237records, as I supposed, that he might ascertain the chain of title, that he might take my deposition concerning the case. The great est rise in the value of property about said Commerce was in the spring of 1837. Hotchkiss and. Gillet made a public sale of town lots in Commerce city, in May, 1837; according to the best of my recollection, the sales at that time would average at the rate of $2000 per acre.

The sale, I believe, was absolute ; it was advertised ; I believe the advertisement stated that they would erect large warehouses, let out contracts to quarry stone, and dig foundations for those buildings, and contract for a quantity of lumber to erect buildings or tenements. They did not erect said building's, [*227] according to the advertisements. I have understood that part of the lots were taken back by the proprietors. I do not know if they all were. I know of no purchaser who has made the last payment. The terms of sale were, I think, one-fourth down, the balance in installments; the number of installments, or the time of the payments, I don’t recollect. I know by report that most of the lots have been taken back. I believe the proprietors of Commerce city have since sold all their interests to Joseph Smith and others, including most of the lots at public sale by said proprietors. In my estimate in the rise of property, I was governed by the sales already mentioned, from Munson to Aiken and others, and the public sale by Hotchkiss and others; and also by other purchases, made by Hotchkiss and others, of George Atchison and Alexander White. Hotchkiss and others purchased of George Atchison, according to the best of my recollection, the south east quarter of section thirty-five (35), in township seven (7) north, of range nine (9) west; north east fractional quarter of section thirty-five (35), in township seven (7) north, of range nine (9) west; west half south west quarter section thirty-six (36), in township seven (7) north, of range nine (9) west, for $11,000. They also purchased of Alexander White the south west fractional quarter of section thirty five (35), in township seven (7) north, of range nine (9) west; and north half of the north east quarter of section two (2), in township six (6) north, of rangenine (9) west, I think for $5000. I believe the said lands, purchased of Atchison and White, by Hotchkiss and others, were worth from 200 to 600 per cent, more than they were in the spring of’ 1835. I don’t know that the lands bought of Atchison could have been bought for anything in 1835. I don’t recollect of their being at that time offered for sale. I believe Atchison would then have taken less for the land than he got from Hotchkiss. I can’t tell how much less.

Quest. How do you know how much Hotchkiss paid George Atchison for said land?

Ans. I know it from his own words, and also of George Atchi-*238son. I understood George Atchison to say tha't he got $11,000; he told me that he sold it to Hotchkiss and others for that sum. I can’t recollect the time and place. Hotchkiss told me the same thing, I think, in the fall of 18-36, in Hew Haven, Connecticut.

The tract bought of Atchison contained not far from three hundred acres (all in one body); part of it lay on the Mississippi river, and part back on the bluff. Commerce city was situated on said land; the whole city was on it, except a part which was purchased of Alexander White. It run almost half a mile on the bank of the river, mostly above the upper landing, and [* 228] the landing'is good a part of the distance. About thirty or forty acres of Commerce city was on this tract.

At the time of the sale, there was on the land a two story stone , dwelling house, fifty feet long, by sixteen wide, and a basement, worth about $3000; a log house worth about $100; and a field of twenty-five or thirty acres, of which I can’t tell the value. I should think that tract was worth, in the spring of 1835, without the improvements, about $5 per acre; and with the improvements about $1000. I should not think the land, without the improvements, was worth more in the Spring of 1835, than $1000. The upper landing at the town of Commerce is on one of the tracts bought by Hotchkiss of Atchison, which tract runs about twenty rods on the river; and five acres of which, adjoining the river, was worth in the spring of 1835, without improvements, $50 per acre. About two thirds of all the land purchased by Hotchkiss of Atchi-son was fit for cultivation; the balance is considerably broken.

I think that part qf the land bought by Hotchkiss of Atchison, on which Commerce city was -laid out, rose in value from the spring of 1835, to the spring and summer of 1837, 1000 per cent.; I don’t think any other part of that purchase did rise so much. I don’t think the said tract was better situated for a town than the Teas tract; that portion, laid out as Commerce city, I think, was as well situated; I don’t think it was any better. It had a good landing for steamboats. About twenty rods of Commerce city lay upon the river, and was dry land.-

Quest. Was there any landing for steamboats opposite the Teas tract?

Ans. The steamboats did not land opposite that tract.

Quest. Was there any steamboat landing opposite to that tract of land?

Ans. There is no regular steamboat landing opposite to it.

Quest. Could steamboats land opposite to it?

Ans. I believe they can, particularly in high water; known a steamboat to land opposite to it in common stage of water.

Quest. Is the landing as good on said land as it is at Commerce city?

Ans. It is not naturally so good; but by digging down the *239bank of the river, as it is at the upper landing, it can be equally as good.

The first chain of the rapids is about half a mile below the Teas tract. I believe at the common stage of water, loaded boats of the ordinary size can get near enough to run a plank from the boat to the shore, at the lower part of the tract for about forty rods, and at the upper corner of the tract for about five rods. If has also been a landing for ferry boats. I recollect only of one steamboat’s landing there since I resided at Commerce; don’t recollect the name of the boat; it was sometime in [* 229] 1841, or spring or summer of 1842; it was near the lower end of the tract. I can’t say positively that it was on the day of the big Mormon parade last spring; I can’t say but it was about that time.

Quest. Do you not recollect that said boat landed nearly opposite to the Nauvoo House?

Ans. I do-not, only by the report of some of the citizens.

About the same portion of the city of Nauvoo lies back and south of the Teas tract, as there is above it. The Temple is back or east of the said tract. The Nauvoo House is about half a mile below it. The main body of the improvements of the city of Nauvoo is in the vicinity of the Nauvoo House and the Temple. The family of Joseph Smith, the Mormon prophet, reside near the Nauvoo House.

The lower landing for the city of Nauvoo is above the Nauvoo House, by the way of the river bank, a mile and a quarter ; and the upper landing about one mile and three quarters. Some years the lower landing is most used, and some years the upper landing.. The upper landing has been most used this year.

Quest. Have you ever known, since you lived at Commerce, any but the one boat to land below the said lower landing?

Ans. I believe there has been a steam ferry boat landed below the lower landing besides that one stated in the former answer.

I think there were sis or eight families in Commerce in the spring of 1835, and about the same number in the spring and summer of 1837. Most of the improvements made in Commerce between the spring of 1835 and 1837 were made by myself. I built a store room, which I sold to my father in 1836, value about $1200; and John Gruell built a house worth about $400. Mc-Fadon’s store, on Bear Creek, is, I believe, between Commerce city and Quincy in this state. I don’t recollect of saying to John Vance, after the purchase for Munson, that I had served Doyle a slick trick and got the land before Doyle had. paid for it, or words to that effect. I did not ever state that I bought the land at the risk of the title. I did not know of any writings from Teas to Doyle until he had them recorded, and if I have ever said that I should not lose the land, it must have been after I became ac> *240quaintecl that there were such writings. Since the commencement of this suit I have said I did not believe that Doyle would hold the land on the articles from Teas. I presume I have said this to a number of persons. * I don’t recollect of ever having any conversation with Lauriuda Barnes and William White, or with any other person in their presence, about the said sales to Doyle and Munson. I never told William White that I was authorized to buy the land for Munson. I don’t know but I may have told him I had bought it for Munson, but it was at the request [*230] of Mrs. Cutler.

Quest. At the time you contracted with Teas for the purchase of said land for Munson, did Teas inform you that he had made a partial agreement with Doyle for the sale of said land ?

Am. He did not, to my recollection.

Quest. Are you the agent of Munson to superintend the de-fence of this suit ?

Ans. I am not at this time, nor have I been for three years.

Quest. Was you at any time his agent for that purpose ?

Ans. Soon after the purchase of the land Í received a power of attorney from him to act as agent to keep his lands in possession, and other property about Commerce, and to rent and to receive rents, and I am. not certain that I was to act as general agent to defend this suit without reference to the power of attorney.

Quest. Have you acted as his agent in attending to this suit at any time?

Ans. No more than by request of D. G. Whitney of Adams county.

Quest. Have you in any way acted as his agent in defending this suit, with or without authority ?

Ans. I don’t consider that I have, no more than by request of Mr. Whitney, as I before stated.

Quest. Have you not, ever since the commencement of this suit to the present time, been attending to' the same by giving information to, and consulting with, Mr. Munson and his attorneys, or D. G. Whitney, or some of them,"on the subject of this suit ?

Ans. I have attended court at terms since the commencement of this suit by the request of both parties, so they might take my deposition. I don’t know of giving any information concerning the case, only when asked by the parties. I was requested by Mr. Whitney to go with the defendants’ counsel into Jefferson county, Iowa Territory, to get Teas’ answer. As to giving any information to Teas, I don’t recollect as I did, or to defendants’ counsel, only when asked any questions concerning the case. I *241did go to Jefferson, county with the said attorney some time in June last.

Quest. Have you received any pay from Mr. Munson, or any other person, for attending to his business in this country ?

Ans. In the fall of 1836 I did receive pay for services rendered before that time, but I have not received anything since.

About fifteen or twenty acres of the Teas tract' were wet and swampy.

Re-examination. When Atchison sold to Hotchkiss and others he resided, I believe, in St. Louis, Missouri. I have known him since the summer of 1833. I have always supposed that Atchison conveyed directly to them; the [*231] lands were always understood in the neighborhood to belong to Atchison. I think he sold to Hotchkiss and others in the spring or early part of the summer of 1836. Hotchkiss was at said Commerce a few days before said purchase, and looked over the premises. I was present at the sale of lots in Commerce city, made by Hotchkiss in the spring of 1837. Hotchkiss was there. The lands were sold by the lot; the size of the lots were thirty-five feet front, and running back, I believe, one hundred and thirty-two feet. Dr. Barnes, then a practising physician, and a resident of Carthage, purchased one or more lots; the price of one was $700 or $750. Joseph Ingersoll, whoresided at Commerce, purchased some, I can't say how many; I believe he bid from $200 to $300 per lot. Maddendorf, a Dutchman, purchased one lot, for, I think, $200; resided at Commerce and was a farmer. A Mr. Barnes, a farmer, residing at Commerce, purchased, I don’t know how many lots, at about $300 per lot. Dr. Galland purchased one or more lots; for one of them he gave $500. The lots, at that sale, sold from $200 to $700 per lot; the reason why my recollection is so clear as to the sale, is that I attended at it, and set down in a small memorandum book, to whom the lots were sold, and at what prices. That memorandum book is at my house in Nauvoo. I did not bring it with me, thinking I should not want it. I don’t know of Hotchkiss making deeds to the purchasers ; I think he generally gave bonds. Part of the purchasers, I believe, paid part of the purchase money in cash; I think it was one fourth; gave their notes for the balance, and took bonds for deeds. I don’t recollect the time when Hotchkiss and others took back most of these lots; I don’t know of his taking back any till about the time he sold to Joseph Smith and others, I think in August, 1839. At the time of said sale, it was generally understood that Hotchkiss and others intended to build up a town. The sale was supposed to be made in good faith. I have understood that Hotchkiss and others sold the whole premises bought of Atchison and White to Joseph Smith and others, who were to pay, I believe, $53,000. This was before any great improvements *242had been made by the Mormons in Nauvoo. They came there in the winter and spring of 1839. The Teas tract extends north and south, on the Mississippi river, about half a mile, and back from the river, on an average, of about 150 rods ; the bluff in rear of the land is between a quarter and half a mile from the river. That part of the city of Nauvoo, called the lower part, about the Nauvoo House,'and in the vicinity of the Temple, is the thickest and best built up. The Nauvoo House is on the bank of the river, near the extreme south part of the improved part of Nauvoo. The settlement about the Nauvoo House is between the bluff [*232] and the river, and stands on the same kind and quality of laud as the Teas tract, with no material difference in the wetness or dryness of it. The whole of said bottom land, including the Teas tract, and the settlement about the Nauvoo House, is generally dry bottom land, but there are some low wet places in it; some on the Teas tract, and some in the vicinity of the Nauvoo House ; I should think about the same number of acres in each. There is no steamboat landing along that part of Nau-voo in the vicinity of the Nauvoo House.

What is called the upper chain of the rapids commences about half a mile above the Nauvoo House, in a direct line. From the Nauvoo House to the south west corner of the Teas tract, by the river bank, is about one mile; and in a straight line, to the nearest part of said tract, about half a mile. The reason of this difference is a bend in the river; the course of the river bank, from the Nauvoo House, is north west about half a mile. The Teas tract is north of and adjoining the settlement about the Nauvoo House. The settlement about the Temple is separated from the Teas tract by a small vacant space. The settlement about the upper landing is about half a mile off from the Teas tract.

About all the improvements in Nauvoo have been made since the spring of 1837. I know of nothing in the character of the soil, location, or quality, why the Teas tract should not have been built on, as well as the adjoining lands. I think it is on account of this suit, people in general don’t like to purchase. A number of buildings, some brick, some frame, some sod, and some mud, have been built and are erecting on that tract, by people that don’t claim any title; I don’t know how many. There was in 1835, 1336, and 1837, a great spirit of town building in this section of the country, which created a sudden and general rise of property in and about places favorably situated for the location of towns. I think town sites would sell for the highest price in the spring and summer of 1837. Nauvoo is favorably situated on the Mississippi river, at the head of the Des Moines rapids, having the advantages of building materials, and a fine country in the rear, and across the river opposite, to support it.

I was one of the earliest settlers at Commerce. I came there *243in the summer of 1833,1 think, when there were four or five families residing there The town of Commerce was laid out in the spring of 1834. I did not know of any immediaty prospect of any considerable village springing up there in the spring of 1835. It had not then made any considerable advance, eitherin population, or in any other improvements, since I came there. I have traded considerably in lands in that neighborhood, as agent for different persons, and paid particular attention to the improvement, transfers, and value of property in and about the town.

lie-oross examination. Hotchkiss did not purchase of White and Atchison on the same day; there was but a short time between the purchases. Hotchkiss did not then [* 233] live in this county. I believe he was here when lie made the purchases. He was not here more than once before that time to my knowledge; he was here in the spring or summer of 1836. It was either at that time, or late in the fall of that year, that he told me what he gave Atchison for the land. I can’t tell when Atchison told me he had sold it for $11,000, on account of not seeing him very often.

I don’t know,if anyof the purchasers at the Hotchkiss sale paid in full, only by note. I know of some being paid ; Maddendorf paid somewhere about $60 ; can’t say of any others paying anything Maddendorf, I believe, has not relinquished his lot. I don’t think he has paid the balance ; but I have heard him say he was ready to pay it. I can’t tell the time in particular that he told me so. I think the reason he did not pay the balance, he don’t wish to go east after his deed.

Quest. Will you state how much the lots, which were sold by said Hotchkiss at said public sale for $700, are worth at this time ?

Ans. I can’t say.

Quest. Can you within $500 ? if so state it.

Ans. I don’t think they could be sold.

Quest. Why could they not be sold ?

Ans. Because they are not laid off according to the Nauvoo plat.

Quest. Could they not be sold for $100 each ?

Ans. I don’t think they could, as it stands in Commerce city.

Quest. If'they were laid off according to the Nauvoo plat what would be their present value ? State according to the best of your knowledge and belief.

Ans. I believe they would sell from $800 to $1200. I can’t tell the present value of the lots which were sold for $200 at public sale, as it now stands as Commerce city. If laid off according to the Nauvoo plat, I believe they would sell from $500 to $800.

Land in Nauvoo is more valuable now than it was in 1836 and *2441837 ; some has increased 1000, and some 2000 per cent, in value. In the neighborhood of the Nauvoo House, and along under the bluff in front of the Temple, it has increased 2000 per cent. I don’t know that that part of the city is better situated than the other part. I believe the greater rise of property in that part is caused by the extensive improvements made there. It is not as well situated in reference to the steamboat -landings, as Commerce city; nor in reference to the dryness of the land. I don’t know of any sales of land being made about Commerce city ; I don’t think they have risen as much there since 1837, as about the Nauvoo House. There is some swampy land, I think, about fifteen acres, that is rather wet and a little swampy, about a quarter of a mile from the Nauvoo House; some above and some north of east. It is about as swampy as that on the Teas tract. [* 234] That on the Teas tract is back about sixty rods from the river; it extends about two thirds across the tract, up and down the river; I should think from three to six rods wide.

It is about thirty rods from the upper corner of the Teas tract to the lower landing, and nearly one and a half miles, by the river bank, from that landing to the Nauvoo House.

Quest. . Have you not stated in a former answer, that it was a mile and a quarter, from the lower landing to the Nauvoo House, by the river bank ?

Ans. I don’t know but I have. I should think it was over a mile and a quarter, by the bank of the river.

Quest. Can you state any particular reason why you said before it was a mile and a quarter ?

Ans. I calculate by the quarter and fractional quarter of sections of land, lying between those two points.

Examination in chief, resumed. I always supposed that George Atchison built the stone house on the premises purchased by Hotchkiss and others of Atchison; it was commenced in 1832 and completed in 1834. Atchison employed me in A. D. 1833, in St. Louis, to come to Commerce and plaster the house for him ; and he frequently brought materials of different kinds to furnish the house with. I believe George Atchison has a brother named John, but I don’t recollect of ever seeing him; I have been told by his brothers, Pierce and Solomon, that John was, in 1835 and 1836, a merchant at Galena. The lands were congress lands.

AGREEMENT OF COUNSEL FOR COMPLAINANTS AND DEFENDANTS Filed October 15th, 1842.

It is admitted by the counsel on the part of the complainants and of the defendants in the above cause ; and it is to be taken as true in the hearing of this cause, that i,n March, A. D. 1836, one William H. White, at the instance of Doyle, and without the *245knowledge or assent of the defendants, or any of them, entered upon the tract of land bought of Teas by Munson, into a house in which Teas had formerly lived, and which was at that time vacant, and took possession of the same for Doyle; that Munson immediately thereafter commenced an action of forcible entry and detainer against White, to eject him from the premises ; and in a trial before the magistrate, Munson obtained a judgment against White, from which White appealed to the Hancock circuit court; and at the April term of said court, A. D. 1836, said suit was dismissed by the court, on the motion of White, on account of a defect in the affidavit upon which the suit was commenced; and that after a good deal of trouble and difficulty between White and Munson’s agent, about the possession of the property, White left the house and premises, in the summer or fall of A. d. 1836, after which Doyle never had possession of the property by himself or tenant; and Doyle at all times, as well be- [* 235] fore as after such possession, claimed a right to the land by virtue of the agreement set forth in the bill, which right the defendant Munson, and those claiming under him, from the time they, or either of them, first received information of the existence of such claim, at all times denied.

Points made and authorities cited by Geo. O. Dixon, (with whom was A. Williams, E. D. Bakes, and A. T. Bledsoe,) for the appellants:

1. This suit' has been commenced in due time. 12 Yesey 373; 17 Vesey 89, 96; 2 Hov. on Frauds 20, note 17; 9 Johns. 466 ; 20 Johns. 576 ; 2 Johns. Ch. R. 216 ; 7 Johns. Ch. R. 90-137 ; 1 McLean 164; 9 Peters 405, 416.

2. There is no variance between the allegata and probata. If variance does exist, it is waived by agreement; and if not, the only effect is to allow the bill to be amended. Gresl. Eq. Ev. 161 note o', 171; 5 Wend. 638.

3. Munson is a purchaser with notice real and constructive. Gale’s Stat. 664; R. L. 588. As to what circumstances constitute notice see 2 Sug. on Vend. 335-41; 1 Story’s Eq. 387-90; Fonbl. Eq. 416; 2 Yesey 439; 2 Powell on Mort. 581.

4. Under what circumstances an agent may lawfully appoint a sub-agent. Story on Agency 16, 17, 189, 208-9; 9 Vesey 234, 251-2; Paley on Agency 171 note, 176.

5. If an agent’s acts are subsequently ratified, although not previously authorized, it is binding on the principal, and renders him liable as above insisted. Story on Agency 245 ; 2 Term. R. 188; 2 Powell on Mort. 584; Principal and Agent 286.

6. Notice to the agent is notice to the principal. 2 Powell on Mort. 581-6 ; 3 Atkyns 646;' Fonbl. Eq. 420; Principal and Agent 283; Story on Agency 131, § 140.

7. In regard to the force and application of evidence in equity pleadings, to the manner of denying notice in the answer of sub*246sequent purchaser, and of evidence of one witness as opposed to direct denial in answer. 2 Sug’. on Yend. 307, 347-8; Fonbl. Eq. 414,647 note; Gresl. Eq. Ev. 4; 6 Yesey 596; 1 Johns. Ch. R 461, 575; 2 Johns. Ch. R. 93 ; 3 Johns. Ch. R. 345; 2 Alab. 616 ; 3 Peters’ Cond. R. 325; 5 Peters 111, 267 ; 10 Peters 179, 210-12 ; 12 Peters 190.

8. A subsequent purchaser with notice and the vendor become trustees for the vendee; and this too, whether the vendor has parted with the title or not, or whether subsequent purchaser has paid the consideration money or not. 1 Story’s Eq. 385; 2 Story’s Eq. 93, 97 ; Fonbl. Eq. 412 note ; 1 Johns. Ch. R. [*236] 575; 4 Johns. Ch. R. 402-404; 1 Sug. on Yend. 267; 4 Blackf. 385.

9. A purchaser with notice has no favor in equity. 2 Sug. on Vend. 269 ; 2 Johns. Ch. R. 155, 157.

10. If Munson is a purchaser with notice, the next' question is, Have we complied with the conditions of the contract ?

a. We made a good tender on the day specified. Tender in bank notes is good unless objected to. 3 Term. R. 554 ; 2 Bos. and Pul. 526; 4 Phil. Ev. 133. A tender of a larger sum than is due is a legal tender. 2 Stark, on Ev. 779, and note c.'

b. Teas having parted with his title previously to the time fixed on for the first payment, we were not bound to show or aver performance, as equity will require no useless ceremony. Puffen-dorff’s Lex Naturae 299, 300; Chit, on Cont. 570-1; Douglas 494; 5 Coke 21, 2d Rule; 1 Term. R. 638; 1 Cowen 75 ; 10 East 359; 7 Eng. Com. Law R. 236-8; 4 Phil. Ev. 89; 7 Pick. 15; 3 Johns. 531; 1 Peters 467 ; 2 Peters 102; 5 Peters 278 ; 9 Johns. 126; 20 Johns. 15; and especially the opinion of Judge Cowen in 17 Wend. 376.-

11. The general principles of equity law, applicable to this case, concerning specific performance, will be found in 2 Story Eq. 22, 51, 54, 84-5, 88, note 2; 8 Vesey 163; 9 Vesey 608; 12 Yesey 395 ; 13 Vesey 76-7; 18 Yesey 111; 4 Pick. 1; 4 Peters 111, 328; 5 Peters 264, 278, 580; 6 Peters 393-5 ; 14 Peters 174-5; 1 Johns. Ch. R. 370 ; 4 Johns. Ch. R. 222; 6 Paige 288; 1 Sug. on Vend. 90, note 41, 208-9.

12. In regard to admissibility of parol evidence as affecting written agreements. 3 Phil. Ev. 1358-60; Fonbl. Eq. 161.

a. It applies equally to executory and executed agreements, and to contracts within the statute of frauds. 28 Eng. Com. Law R 37 ; 21 Wend. 655.

b. The consideration may be enquired into. 7 Pick. 537; 16 Wend. 466, 473; 2 Sug. on Yend. 305, note 460.

e. Valuation in future is no objection. 6 Yesey 12, 34; 9 Vesey 608 ; 14 Yesey 400; 17 Vesey 363.

d. The place of payment may be shown by parol, if not desig*247nated in the agreement. -4 Phil. Ev. 173, note; 5 Miss. 132 ; 5 Cowen 132, 503; 1 Peters 89.

e. A distinction exists in law and equity between evidence which is of the essence of the contract, and that which goes merely to its discharge or mode of performance, and this latter may always be proved by parol. 1 Pothier on Oblig. 8 ; 1 Phil. Ev. 560-2; 9 Johns. 466 ; Chit., on Cont. 88, 90; 1 Alab. 440-1, 458; 21 Wend. 652; 4 Peters’ Cond. R. 144.

13. This is such an agreement as equity will enforce.

a. Agreements are seldom rectified in regard to mistakes in law. 1 Story’s Eq. 125, 128-9,141; 1 Peters 1.

b. Agreements may be rectified in regard to mistakes of fact, but proof the most conclusive is essential. 1 [*237] Story’s Eq. 164; 2 Johns Ch. R. 595-7, 630.

14. In all questions of concluded agreements, or whether they rest in negotiation, the cases amply show a correspondence having existed ; but no meeting of minds ; no definite proposition on the one hand, and direct, positive acceptance on the other. 11 Yesey 522 ; 13 Yesey 76-7 ; 17 Vesey 363 ; 14 Peters 83.

15. As to particular principles and cases in equity referring to variance, and to the particular character of the instrument of which specific performance is sought. 2 Hov. on Frauds 61; 1 Sug. on Vend. 90, note 41; 2 Story’s Eq. 82-4; 13 Yesey 76-7; 17 Vesey 364; 4 Munf. 77; 2 Wheat. 380 ; 3 Wheat. 527; 6 Wheat. 468; 1 Peters 383, 640 ; 2 Peters 612; 5 Peters 580; 6 Peters 393-6 ; 7 Peters 274 ; 10 Peters 209 ; 1 Alab. 458.

16. The purchaser may take what he can get, with compensation for what he cannot have. 1 Sug. on Vend. 301; 1 Vesey & B. 358; 3 Yesey 187 ; 9 Johns. 450 ; 2 Story’s Eq. 89, 90.

17. In regard to the testimony in this case,

a. Walby is a competent witness. 1 Stark. Ev. 103-5; Gresl. Eq. Év. 249-50.

b. Mrs. W'hitney, and Kimball, and Teas are responsible to Munson for neglect of duty and breach of trust. Story on Agency 210.

e. Kimball and Teas are contradicted in many particulars, and when successfully contradicted in one respect, they are not to be believed in any thing. Gresl. Eq. Ev. 11, 12.

O. H. Beowning and N. Bushnell, for the appellees:

I. The first objection urged to a specific performance is that no complete concluded contract was made, b.ut that the whole matter rested in negotiation.

The answer is, in this respect, responsive to the bill, and denies the making of a concluded agreement, and the burden of proof is on the complainant. Berry v. Coombs, 1 Peters 640, 617-8.

Where anything remains to be done by the parties, the contract is not concluded. 1 Sug. on Vend. 96-8 ; 2 Story’s Eq. *24867, §702; Carr v. Duval, 14 Peters 77 ; Haddleston v. Brisloe, 11 Ves. 583, 590; 2 Sim. & Stu. 194; Frill v. Lawrence, 1 Paige 434, 442-3; Tucker v. Woods, 12 Johns. 190; Keep v. Goodrich, 12 Johns. 397.

Where the agreement is that the price of the property shall be fixed by arbitrators or third persons, and they do not fix it, the contract is not concluded. Milnes v. Gerry, 14 Ves. 400; Blundell v. Brellargh, 17 Ves. 232, 241-3 ; Gourley v.- 19 Ves. 431.

II. The essential terms of the contract are uncertain— [*238] both as to price and payments, and the other terms.

In the case of written contracts if they are not certain in themselves, if any error or omission, however trifling, appears as to the essential terms of the contract, the contract will not be enforced. 1 Sug. on Vend. 92, 96; 2 Story’s Eq. 69 § 764, 76 § 767 ; Parkhurst v. Van Cortland, 1 Johns. Ch. R. 273 — 82 ; 1 Mad. Ch. 426; Blagden v. Bradbear, 12 Ves. 466; Browley v. Jeffrie, 2 Vern. 415; Duncan v. Cook, 1 Scho. and Lef. 22; Abelv. Ratcliffe, 13 Johns. 297; Barry v. Coombs, 1 Peters 640; Colson v. Thompson, 4 Peters’ Cond. R. 143; Lindsey v. Lynch, 2 Scho. and Lef. 7; Brodie v. St. Paul’s Church, 1 Ves. 326; Harris v. Knickerbocker, 5 Wend. 638; Milnes v. Gerry, 14 Ves. 400.

Nor can the uncertainties in this writing, even aside from the statute of frauds, be explained by parol evidence, the ambiguity is such that no explanation from extraneous circumstances can give to the words themselves any certain or definite meaning 2 Stark. Ev. 544-48, 562, and note; Berry v. Coombs, 1 Peters 640, 652.

III. The contract was an entire one. Teas agreed to sell two tracts of land, as an unit, for an indivisible price. He then owned but one of them, and was negotiating for the purchase of the other, to which he did not obtain, and cannot convey title. Doyle knew these facts, and no arrangement was made for a severance of the contract, if Teas failed to obtain title. Under these circumstances, a purchaser cannot compel the vendor to perform a part of an entire contract; the whole must be perforated or none, and the only cases in which a performance of a part of an entire contract will be enforced, is where the seller sold in bad faith, or where, by reason of the contract, the purchaser has made improvements, or the condition of the parties has been changed, so that the refusal of part performance will operate as a fraud on the purchaser. 1 Sug. on Vend. 207-9, 305 ; Crop v. Norton, 2 Atk. 75 ; Young v. Nash, 8 Atk. 186 ; Carr v. Duval, 14 Peters 77 ; Lawrenson v. Duller, 1 Scho. and Lef. 13; Hepburn v. Auld, 2 Peters’Cond. R. 254-5; Weatherford u. James, 2 Alab. 170; Howell v. George, 1 Mad. Ch. R. 1; Pratt *249 v. Carroll, 3 Peters’ Cond. R. 226-7 ; Harwell v. Yielding, 2 Selio. and Lef. 649 ; Waters v. Travers, 9 Johns. 450.

This is in accordance with the general rule that an entire contract must stand or fall together. Roberts on Frauds, 110-11 ; Crawford v. Morrell, 8 Johns 253 ; Yan Eps v. Schenectady, 12 Johns. 436.

IY. The complainants have alleged, but have not proved, performance or an offer to perform the contract, which was essential to their right to demand a specific perform- [*239] manee from the defendants. Porter v. Rose, 12 Johns. 209; Parker v. Parmelee. 20 Johns. 130 ; Bates v. Wheeler, 1 Scam. 54; Colson v. Thompson, 4 Peters’ Cond. R. 143; Harris v. Knickerbocker, 5 Wend. 638.

The complainants, however, insist upon the conveyance by Teas to Munson, before the first payment from Doyle became due, as an excuse for Doyle’s non-performance.

To this we answer:

1st. The bill alleges performance, and this is denied in the answer, and issue is made up on that point. The Time of Teas’ conveyance to Munson is not stated in the bill, nor does the case made by the pleadings present any facts as an excuse, etc. This is, henee, a departure from the pleadings, and the court can take no notice of it. Gresly Eq. Ev. 159-60; James v. McKernon, 6 Johns. 543; Forsyth v. Clark, 3 Wend. 637; Smith v. Clark, 12 Yes. 477; Boon íi. Chiles, 10 Peters 209; Harrison v. Nixon, 9 Peters 502; Beekman v. Frost, 18 Johns. 560-61; Smith v. Brown, 3 Blackf. 25.

2nd. The first default was on the part of Doyle. The first payment was to be made fourteen months before the deed was to be made, and was independent of Teas’ ability to convey. Robb. v. Montgomery, 20 Johns. 15; Greenby v. Cheevers, 9 Johns. 126; 3 Peters’ Cond. R. 225-26; Harrington v. Higgens, 17 Wend. 376.

3d. Munson, by his purchase, acquired all Teas’ rights and eauities, and could insist on as strict a performance as Teas could have done, had he not sold. Jones v. Lynds, 7 Paige 301; Murry v. Gouverneur, 2 Johns. Cas. 438; Champion v. Brown, 6 Johns. Ch. R. 402-4; 1 Story's Eq. 385, § 396; Forsyth v. Clark. 3 Wend. 653; 2 Story’s Eq. 93 § 784, 96 § 788.

V. But the complainants allege that a further agreement was made at the time of the execution of the writing, and this further agreement is set out as a material part of their case.

1st. As a written agreement is required by the statute, this further agreement is presumed to be in writing ; and when denied, as it is in this answer, must be proven by written evidence, whether the statute is insisted, on or not. 1 Sug. on Yerid. 87, 99, 151-52; Rest. v. Hobson, 1 Sim. & Stu. 543; Harris v. Knick*250erbocker, 5 Wend. 643, 2 Story’s Eq. 60 § 768; Corine v. Graham, 2 Paige 181; S. P., 3 Paige 481.

2nd. But even admitting that the bill sets up a further parol agreement, this parol agreement is alleged to have been made at the time of the execution of the written agreement, and adds material terms to the contract, and, in fact, makes the contract what the plaintiffs seek to enforce. But a court of equity will not execute a written contract, with parol restrictions, nor will it add to or vary a written contract, by any circumstances that parol [*240] testimony can produce. Stevens v. Cooper, 1 Johns. Ch. R, 425; Parkhurst v. Van Cortland, 1 Johns. Ch. R. 273; Blagden v. Bradbear, 12 Ves. 466; 1 Sug. on Vend. 138, 142-5, 151; W'oolan v. Hearn, 7 Ves. 211; Brodie v. St. Paul’s Church, 1 Ves. 326 ; Clurian v. Cook, l.Scho. & Lef. 22; Pierce v. Bielch-ley, 6 Mad. 17.

There cannot be such a thing as a contract partly in writing and partly in parol. Howes v. Barker, 3 Johns. 509; 2 Story’s Eq. 75, § 767; Parkhurst v. Van Carlland; 1 Johns. Ch. R. 283.

Where a contract is void in part, as being within the statute of frauds, it is void in toto. Crawford v. Morel, 8 Johns. 253.

Even where the defendant admits the parol agreement, and insists on the benefit of the statute, a specific performance will not be decreed. 1 Mad. 382; 2 Story’s Eq. 58, §§ 756-7.

But it is insisted that the new terms interpolated into the written contract;, by parol, do not affect or change the contract itself, but operate subsequently by way of showing how the contract may be discharged. This is not true in fact; but in answer to the position assumed, it is sufficient to say :

1st. That an agreement by parol, affecting the discharge of a written contract concerning land, is admissible as a defence to, but never in aid of a bill for specific performance. Stevens v. Cooper, 1 Johns. Ch. R. 429-30 ; 1 Sug. on Vend. 140,148,150-1; Price v. Dyer, 17 Ves. 356.

2nd. The time and place-of the performance of a contract is a material part of the contract. If these are not fixed by the contract, the law operates upon the contract, and fixes them for the parties, and parol proof is inadmissible to change this legal operation of the instrument, or to show a different agreement or intention. Thompson v. Ketcham, 8 Johns. 192-3; Frost et al.v. Ev-erell, 5 Cowen 497; 2 Stark. Ev. 551-2; Stevens v. Cooper, 1 Johns. Ch. R. 428-9; Williams v. Jones, 11 Eng. Com. Law R. 169.

The legal effect of the instrument was to make the money payable and the horse deliverable at Teas’ residence. Chipman on Cont. 24-5; R. L. 484, § 7..Chit, on Cont. 563 and note, §70; 3 Kent’s Com. 95 — 6.

3rd. The horse was a material part of the consideration expressed in the writing, and where a particular consideration is specified, a *251different consideration cannot be proved. Maigley v. Huer, 7 Johns. 341; Howes v. Barker, 3 Johns. 509 ; Schermerhorn v. Yanderheyden, 1 Johns. 139 ; Clarkson v. Han way, 2 Pierre Williams 203 ; Peacock v. Monk, 1 Ves. 128.

The only case in which, on a bill for specific performance, a construction varying from that specified in the writing can be proved, by parol, is on a bill asking for relief .on the ground of fraud, mistake, or surprise. Gresly’s Eq. Ev. 204; Stephens v. Cooper, 1 Johns. Ch. R. 426, 429 ; Botsford v. [*241] Burr, 2 Johns. Ch. R. 415-16.

VI. Butin this case every part or parcel of this alleged parol agreement is denied in the answer, and the agreement or what relief is asked is not proved; not only not literally, but not substantially ; and therefore performance cannot be decreed did every other objection fail. Gresly’s Eq. Ev. 171-2; 1 Mad. Ch. 384; 2 Hov. on Frauds 6; Leigh v. Haverfield, 5 Vesey 457; Moffett v. Clements, 1 Scam. 384; Phillips v. Thompson, 1 Johns. Ch. R. 148-49; Forsyth v. Clark, 1 Johns. Ch. R. 653-5; Harris v. Knickerbocker, 5 Wend. 651; James v. McKernan, 6 Johns. 560. •

Where the complainant fails to establish the agreement set up in his bill, he cannot obtain a decree on a different agreement admitted in the answer. 2 Hov. on Frauds 7 ; Gresly’s' Eq. Ev. 171; Legal v. Miller, 2 Vesey, Sen. 299: 5 Wend. 649-50; Wooley v. Hearn, 7 Vesey 2Í9; Lindsey v. Lynch, 2 Scho. & Lef. 1.

As to the credit to be given to the answer, and the amount of evidence required to overthrow it, see Smith v. Brush, 1 Johns. Ch. R. 459 ; Classon v. Morris, 10 Johns, 534, 540-4.

VII. The laches and delay of the complainants are a sufficient objection in this case to a specific performance. A court of equity will not permit a party to lie by to speculate on estates, and then abandon or insist on the contract, according to the event. Time is in general as material in equity as at law, and is made immaterial only by the waiver or acquiescence of the party who resists performance. In this case the defendants have never waived any of their rights, but demand the property in opposition to the complainants, which rendered the highest degree of diligence necessary on their part. Benedict v. Lynch, 1 Johns. Ch. R. 370; Harrington v. Wheeler, 4 Vesey 690 and note; Guest v. Horn-frey, 5 Vesey 818; Hepburn v. Auld, 2 Peters’ Cond. R. 255; Pratt v. Carroll, 3 Peters’ Cond. R. 226; Taylor v. Longworth, 14 Peters 174-5; Allyy. Deschampo, 13 Vesey 224 ; Brasbier v. Gratz, 5 Peters’ Cond. R. 168-9 ; 2 Story’s Eq. Ev. 85, § 776 ; 1 Mad. Ch. R. 400, 415-17, 423.

Nor will the court decree specific performance where, under all the circumstances, it is not equitable. 1 Mad. Ch. R. 405-6; 2 Story’s Eq. 47, §§ 742, 750 and 790 §§ 769-70.

*252VIII. But whatever the equities between Teas and. Doyle, Munson, as a subsequent purchaser without notice of the agreement, cannot be affected by it. Bumpus ¶. Platner, 1 Johns. Ch. R. 218; Cuyler v. Bradt, 2 Caines’ Cas. 326 ; Frost v. Beekman, 1 Johns. Ch. R. 800; same case, 18 Johns. 543.

It is not pretended that Munson had notice in person, but that his agents, Mrs. Cutler and Kimball, had notice.

Row Kimball was not Munson’s agent; Mrs. Cutler was, and being appointed for that special purpose, could not dele- [* 242] gate her trust, (2 Kint’s Com. 683 ; Story’s Agency §§ 12, 13, 14,) and to have made Kimball his agent by adoption, Munson must have ratified his acts knowing he had performed them. Story on Agency 238, § 243, note 4, and 284, § 239 ; Hors-fall v. Faunlery, 10 Barn. & Cres. 755. And this is derivable from the definition of agent, and the confidence which the principal reposes in the agent, and authorizes the world to repose in him. 2 Kent’s Com. 612 ; Story on Agency 131, §140.

But even admitting that both were agents, there is no sufficient proof of notice.

Notice to an agent to bind the principal must come from the party interested in the property, arid arise from and be connected with the subject matter of the agency, and in the course of the treaty for the purchase. (2 Sug. on Vend. 276, 278, note 480 ; Story on Agency 131, § 140) ; and in a case like this, must be sufficient to effect the conscience of the purchaser with fraud. 4 Kent’s Com. 171-2 ; 1 Story’s Eq. §§ 397-404 ; Jackson v. Van Valkenburgh, 8 Cowen, 264; Day v. Dunham, 2 Johns. Ch. R. 190 ; Hiñe v. Dodd, 2 Atk. 275;. Jackson v. Burgatt, 10 Johns. 457; Tolland v. Stambridge, 3 Vesey 478; Wyatt v. Barwell, 19 Vesey 435.

Kimball’s declarations cannot be proved as evidence against Munson. 2 Stark. Ev. 34-5; 9 Peters 687-8; Farlie v. Hastings, 10 Vesey 126; Story’s Agency, §§ 135-8, and note.

The evidence by which notice is sought to be proved is of the most suspicious and unsatisfactory character, and is entitled to no weight. 1 Stark. Ev. 484; Tench v. Tench, 10 Vesey 517; Bots-ford v. Burr, 2 Johns. Ch. R. 411-12.

The fact that Doyle’s contract was recorded before Munson’s deed can make no difference. The only question being, had Mun-son, by himself or agents, notice binding upon his conscience at the time of his purchase? For if he had not, equity will not take from him his legal title, innocently obtained. For a court of equity never asserts an equitable against a legal title, where the equities of the parties are equal, or where the conscience of the holder of the legal title is not affected with fraud.. If that is wanting, the parties will be left to their remedies at law. Mitford’s Plead. 199, 200; Story’s Eq. Plead. §§ 603-4, and 604 a5 *253l'Story’s Eq. 75, § § 57-8; Boonw. Chiles, 10 Peters 210; Frost v. Beekman, 1 Johns. Ch. R. 300-1; Wirtley v. Birkhead, 2 Yesev Sen.573-4.

(a)

Cases Citing Text. Under recording act, record of equitable title to land operates as constructive notice to same extent as record of legal title. Powell v. Jeffries, post 387, 389.

Of two conflicting conveyances, that which is first filed for record protects party holding under it. Reed v. Kemp, 16 Ill. 445, 453,

What is clearly sufficient to put purchaser on inquiry is notice. Merrick v. Wallace, 19 Ill. 486, 499; Hatchs v. Bigelow, 39 Ill. 546, 552; Harper v. Ely, 56 Ill. 179, 194; Babcock v. Lisk, 57 Ill. 327, 330; C. R. I. & P. R. Co. v. Kennedy, 70 Ill. 350, 361; Bent v. Coleman, 89 Ill. 364, 368 ; Grundies v. Reed, 107 Ill. 304, 312; Turpin v. Ogle, 4 Bradw. 611, 625.

Case of Doyle v. Teas, said to be leading one in Illinois on question of notice. Merrick v. Wallace, 19 Ill. 486, 499.

Levy of attachment will no,t cut off title to land acquired in good faith under unrecorded deed, if party attaching had notice of such conveyance or had notice of facts which should have put him on inquiry. Cox. v. Milner, 23 Ill. 476, 479.

Chancery suit is not notice as lis pen-dens until summons is served on defendants. Grant v. Bennett, 96 Ill. 513, 536.

(b)

Possession of land is notice of rights, legal and equitable, of possessor. Morrison v. Kelly, 22 Ill. 609, 625; Keys v. Test, 33 Ill. 316, 320; Franz v. Orton, 75 III. 100, 105; Coari v. Olsen, 91 Ill. 273, 280; Stagg v. Small, 4 Bradw. 192, 197.

(c)

To explain written contract, facts, which parties had in view when making the contract, may be proved by oral evidence. Barrett v. Stow, 15 Ill. 423.

Deposition is inadmissible to change terms of deed. Cook v, Whiting, 16 Ill. 480, 483.

(d)

Evidence on part of complainant must be consistent with his bill. McKay v. Bissett, 5 Gilm. 499, 505 ; Slocum v. Slocum, 9 Bradw. 142, 147.

(e)

Party to contract cannot maintain action on it until he has performed, and his adversary has refused to perform. Brown v. Cannon, 5 Gilm. 174, 180.

Contract is not reformable in equity simply because one party, when executing it, misunderstood its legal effect. Coffing v. Taylor, 16 Ill. 457, 468.

To maintain chancery suit for specific performance of contract, complainant must not be in default or guilty of laches. Anderson v. Frye, 18 Ill. 94.

Party seeking to enforce specific performance of contract must show performance of consideration on his part or tender of it, or justly account for his nonperformance. Stow v. Russell, 36 Ill. 18, 31.

Specific performance of contract will not be enforced if change of circumstances, lapse of time, or other things renders contract unconscionable. Kimball v. Tooke, 70 Ill. 553, 562.

" Refusal by purchaser, without reasonable excuse, to accept title tendered, precludes him from afterwards enforcing specific performance of contract. Fitch v. "Willard, 73 Ill. 92, 107.

(f)

Vendor, in order to recover purchase money after time for conveyance by himself has passed, must show ability to convey, although vendee was first in default. Runkle v. Johnson, 30 Ill. 328, 332; Denby v. Graff, 10 Bradw. 195, 199.

Vendor of land in order to recover last of several installments of purchase money must tender conveyance, although vendee has made default in payment of earlier installments. Headley so. Shaw, 39 Ill. 354, 365-

(g)

Tender to be effectual in chancery suit must be kept good by bringing money into court and depositing it with clerk when bill is filed. DeWolf v. Long, 2 Gilm. 679, 681; Wright v. McNeely, 11 Ill. 241, 251.

In chancery, tender may be'relied upon although money is not paid into court; Doyle v. Teas; DeWolf v. Long supra, and Wright v. McNeely supra, overruled. Webster v. French 11 Ill. 254, 275; Supervisors etc., Livingston County v. Henneberry, 41 Ill. 179.

He who tenders for a deed need not part with his money until he can touch the deed. Blunt v. Tomlin 27 Ill. 92, 101.

(h)

Purchaser of land seeking to fen-force conveyance must have right to deed without further performance on his part. Cronk v. Trumble, 66 Ill. 428, 433.

(i)

Notice of change of partnership to accredited agent of creditor of firm, is notice to creditor, which he is estopped to deny. Page v. Brant, 18 Ill. 37, 39.

(j)

Sale of minor’s land by guardian without authority, if ratified by minor after his majority and before sale is disaf-firmed by purchaser, becomes valid. Mason v. Caldwell, 5 Gilm. 196.

Receipt of part of debt by creditor and promise by him to give debtor time on balance, do not entitle latter to indefinite delay. Speer v. Cobb, 22 Ill, 528, 530.

Catón, Justice,

delivered the opinion of the court: (1) This bill was filed in the Hancock circuit court for the purpose of compelling a specific performance of an agreement for the sale of two lots of land in that county. The agreement, which is set out in the bill verbatim, appears to have been entered into ["*' 243] on the 23d of May, 1835, and provides for the sale of the premises in question for the sum of $1100, of which “a certain sum” was to be paid in hand on the second of June then nest; one stable horse from the first to the tenth of July then nest, the value of which was to be assessed by three disinterested persons, in ease of disagreement between the parties, and Doyle was to give his note for the balance of the $1100, payable in fifteen months from the date of the agreement. The circuit court entered a decree dismissing the bill at the complainant’s costs, which, by this appeal, we are now called upon to revise.

The first enquiry which most properly presents itself in the examination of this case is whether Munson, one of the defendants in the bill, is a subsequent bona fide purchaser without notice, or whether he is chargeable with notice. It appears that the contract with the complainant was entered into on the 23d of May, 1835, and was recorded on the 19th óf June following, and the deed of the same premises from Teas to Munson was executed on the 26th of May and recorded on the 26th of June. If Munson is chargeable with notice, then he but fills the shoes of Teas, and either as his trustee for that purpose, or as his assignee, he shall make good the obligations which, by the contract, are imposed upon Teas. If he was not chargeable with such notice when the deed was executed or took effect, then he shall hold under it, notwithstanding whatever rights, either •legal or equitable, may be shown to exist between Doyle and Teas.

What is sufficient to constitute this notice is frequently a question of no small difficulty and a subject on which much has been written, and, after all, not a great deal very definitely settled. This notice is sometimes a question of law arising upon facts about which there is no dispute, and it is sometimes a question of fact. The former is called constructive notice, the latter actual notice. Constructive notice is made out frequently by a lis pendens, by the record of the prior title or claim under the recording act; by the possession of the person having notice, or by the purchaser receiving his title through a channel which, with proper atten*254tion, -would have led him to a knowledge of the interests with a notice of which he is charged.

In this case it is attempted to make out notice in both of these ways, or rather, in the first place, an attempt is made to bring home actual notice to the agent of Munson who made the purchase for him — which, if established, is but another mode of proving constructive notice on that defendant himself, whereby his conscience shall be as much affected as if the actual notice were proved on him personally; — and in the second place it is contended that constructive notice is made out under our recording act.

The greatest difficulty has been experienced in laying down any general rule by which the court can be governed as [*244] to the amount of evidence which is necessary to make out actual notice; for between the slightest and most indefinite (which, if shown to have reached the ears of the defendant, could raise no suspicion of good.faith on his part), and the most positive proof of actual knowledge, brought directly home to the person'of the party, there is an infinite number of gradations, and where the true line of demarcation is between these two extremes has never yet been so distinctly settled as to leave no difficulty in the application to individual cases as they arise.

There seems, indeed, to be two classes of cases, one of which appears to require the most clear and certain evidence of actual knowledge, such as will establish fraud on the part of the subsequent purchaser, while, in the other, only such notice is required to be proved as would be sufficient to put a prudent man on enquiry ; and I confess I have searched in vain to find the distinction anywhere laid down by which we may be enabled to distinguish them in their features and circumstances. In this case the complainant insists that it was only necessary for him to adduce sufficient proof to bring the case within the latter rule ; while, by the defendant Munson, it is contended that he is only to be prejudiced by such clear and positive proof of notice as would establish fraud in him; and for the purpose of enabling us the better to judge by which of these rules we shall be governed in determining what shall be the amount of evidence required to make out this notice it is necessary to advert to some of the leading cases relied upon in support of each position.

In the case of Hines v. Dodd, 2 Atk. 275, where a subsequent mortgagee was attempted to be charged with notice of a prior judgment, which was not registered till after the mortgage, although the denial of the notice by the defendant was feeble, and, to say the least, evasive, and the proof of the notice strong, still the court held the proof insufficient, and say: “ Tobe sure apparent fraud, as clear and undoubted notice, would be a proper *255ground of relief, but suspicion of notice, though a strong suspicion of notice, is not sufficient to justify the court in breaking in upon an act of Parliament.” Andón the same side is cited the case of Joland v. Stambridge, 3 Vesey 478, where a subsequent registered conveyance took precedence of a prior unregistered deed, notwithstanding strong evidence of notice; and this case seems to carry the principle quite as far as the case above, and clearly holds that nothing short of actual fraud shall supersede a conveyance actually recorded.

So in the ease of Wyatt v. Barnell, 19 Vesey 435, where the question was whether there was sufficient proof of notice to give the prior unregistered deed a preference (and there was very strong proof of constructive notice), yet the master of the rolls held it insufficient, and after alluding to the decisions says: “However, it is sufficient for,the present purpose [*245] to say, that it is only by actual notice clearly proved, that a registered conveyance can be postponed. Even a Us pendens is not deemed notice for that purpose.” This case then holds distinctly that no constructive notice will suffice to defeat a deed regularly registered; but this cannot be pretended to be the law now.

In Dey v. Dunham,, 2 Johns. Ch. R. 182, most of the above cases were cited with approbation by chancellor Kent. The question there was whether a junior registered assignment should be set aside in favor of a prior mortgage deed, which was not registered in the proper book of mortgages. The chancellor says: “If notice that is to'put a party on enquiry be sufficient to break in upon, the policy of the express provisions of the act, then indeed the conclusion would be different; but I do not apprehend that the decisions go that length. This would be too slight a foundation to act upon in opposition to the statute.”

In Jackson v. Van Valkenburgh, 8 Cowen 260, the question again arose as to the sufficiency of the parol proof of notice, to give effect to a prior unrecorded mortgage; and although the proof was strong to establish notice to the agent of the subsequent mortgagee, yet the court held it insufficient, and says : “It may have answered to put d person on enquiry, in a case where that species of notice is sufficient, but we have seen, to supply the place of registry, the law proceeds a step further, and as it appears to me upon the most substantial reasons, for if the second conveyance is not regarded as bona fide, because, in consequence ■ of notice, it is tainted with fraud, and that imputation ought not to rest on slight grounds, but be supported by evidencb clear and explicit.” The same doctrine was also held in the case of Jackson v. Givan, 8 Johns. 137, by chief justice Kent, where the question was, which deed was the best, the first in date, or the first on record ?

*256 Jackson v. Burgatt, 10 Johns. 457, presents one of the few instances to be met with where the unregistered deed has been allowed to triumph over the registry, in an ejectment case. The court in that case says: “ That the defendant and every other person through whom he derived title, had, at the time of their purchase, actual notice of the prior conveyance.” “ The purchase of Tiffany had every appearance of a gross fraud,” etc. In this case we find the same strict rule held, as to the character of the notice, which must be proved to effect the object sought; but by looking into the evidence reported in the case, we find that the rule laid down, by Mr. Sugden (Sug. on Vend. 490, Ch. 8), “that to constitute a binding notice, it must be given by a person interested in the property, and in the course of the treaty for the purchase,” was not observed, but the notice which fastened the fraud on the defendant and his grantors, was eommuni-[*246] cated by Towzer and Throop, neither of whom appears to have ever had any interest in the premises.

In discussing this branch of the law, chancellor Kent, in his commentaries, 4 Kent’s Com. 171, says : “the doctrine of notice and its operation in favor of the prior unregistered deed or mortgage, equally applies, as I apprehend, throughout the United States; and it everywhere turns on a question of fraud, and on the evidence requisite to infer it. In pursuance of that principle, and in order to support, at the same time, the policy and the injunctions of the registry acts, in all their vigor and genuine meaning, implied notice may be equally effectual, with direct and positive notice ; but then it must not be that'notice which is barely sufficient to put the party on enquiry;” and judge Story (1 Story’s Eq. 893) holds substantially the same rule, though not perhaps in quite so strong language. He says, when the first deed is not properly recorded, “then the subsequent purchaser is affected only by such actual notice as would amount to a fraud.”

It is perhaps unnecessary to cite further from the books, to show what is the effect to be produced when that clear and distinct proof of notice has been required which should be sufficient to prove the subsequent purchaser guilty of a fraud, and which should be something more than enough merely to put the party on enquiry. In all the instances referred to, (and I have met with none of a different character,) it is clear that it is to give effect and-priority to an unregistered instrument, which by the registry act is required to be recorded, in preference to one subsequent in date, which has been duly recorded.

But by looking through the cases it will be frequently seen, that what one judge holds to be only sufficient to put a party on enquiry, another will hold sufficient of itself to preve him guilty of fraud; thus showing more a difference in terms, than *257in substance ; while others, professing to adhere to the same measure of proof, have really differed, very widely in the amount required.

Let us now burn our attention to that class of cases where it has been held sufficient to show such notice as should put a party on enquiry.

In Smith v. Low, 1 Atk. 49, the case was this. The mother of some infants leased their land for forty-one years, with covenants that they should join, etc., after they became of age. They received the rents fora long time, and then brought ejectment, and the bill was filed against them to confirm the lease, and the court held that the lease should be established, and said: “ They found a person in possession of the estate, and that was sufficient to put them to enquire ; and what is sufficient to put the party on en-quiry is good notice in equity.” It maybe remarked in rela-' tion to this case, and the same remark will apply to most if not all of the subsequent cases, that no question is [*247] raised in relation to the registry acc, but the court simply decide that possession by the tenant ivas such notice to the heirs, as should bind them by their acquiescence; and I apprehend that it is too late at the present day to deny the sufficiency of such notice whether the registry act be involved or not.

Faires v. Cherry, 2 Vern. 384, is also cited in support of the proposition, that if the party is put to enquire, it is sufficient. There, at the time of the purchase, the defendant liad in his possession, among other papers, the settlement under which the plaintiff claimed, and the court held him chargeable with notice; and although this case was afterwards doubted, yet it is now one of the most familiar instances of conclusive notice. And I venture to say such proof has never been held insufficient. 'To the same effect is the case of Parker v. Brooks, 9 Vesey 583. There it was hold where the deed under which the defendant holds recites the grounds of the other party’s equity, that he shall be chargeable therewith.

Daniels v. Davidson, 16 Vesey 249, was a bill for the specific performance of an agreement for the sale of land, and in that case it was held that the possession of the complainant, although he held the possession not under the agreement but under an unexpired lease, was such notice as should have put the party on en-quiry, and was therefore sufficient against the subsequent purchaser. It may be observed here, that under the registry laws of England, this agreement was not required or even allowed to be recorded.

In the case of Starry v. Arden, 1 Johns. Ch. R. 261, it does not appear that either deed was recorded, nor is the registry act once alluded to. There the court held the defendant chargeable with *258notice, on what seems to me very light grounds. The chancellor says: “I shall also consider him a purchaser without actual .notice of the settlement on the plaintiffs. He declares in his answer that he had no knowledge or notice of the conveyance of 1805, when he purchased, and there is not proof to contradict this answer. Rut I hold him chargeable with constructive notice or notice in law, because he had information sufficient to put him on enquiry. He admits that before the execution of the deed, he had heard that the grantor had made some provision for his daughters, out of the property in Greenwich street; and there is no evidence in the case that the grantor owned any other property in that street.” Here he holds constructive notice equivalent to actual notice. This case was affirmed in the court of errors.

In the case of Green v. Slater, 4 Johns. Ch. R. 39, it was held that a lis pendens was sufficient notice to put the party on enquiry, although the description of the premises in the bill was [* 248] so very general and uncertain, that it was impossible for the party to determine that the lands which he purchased were included in those described as “ divers lands in Crosby’s Manor;” and in that case the defendant in his answer denied all knowledge of the pendency of the suit, and there was no proof against the answer.

It is perhaps unnecessary to pursue this class of cases further; enough have already been presented to show the general characteristics of those cases where it has been held sufficient notice to show such knowledge as should put the party on enquiry. Most elementary writers on the law of evidence, however, where they lay down this rule, speak of it as applicable to all cases in equity where notice is required. Thus Mr. Justice Story, in his commentaries on equity, (1 Story’s Eq. 388,) after stating what has beeh held sufficient evidence of notice in some particular cases, proceeds: “Indeed the doctrine is still broader, for whatever is sufficient to put a party on enquiry, (that is whatever has a reasonable certainty, as to time, place, circumstance, and persons,) is in equity held to be good notice to bind him;” and this is said of such notice as shall postpone a subsequent registered deed or mortgage. And chancellor Kent, in his commentaries, .(4 Kent’s Com, 179,) says. “The doctrine of notice is also very extensive application throughout the law of mortgage; and it is very greatly surcharged with cases abounding in refinements. It is indeed difficult to define with precision the rules which regulate implied or constructive notice, for it depends upon the infinitely varied circumstances of each case. The general doctrine is, that whatever puts a party upon enquiry amounts in judgment of law to notice, provided the enquiry becomes a duty, as in the case of purchasers and creditors, and would lead to the knowledge of the fact, by the exercise of ordinary diligence and understanding.”

*259I confess, after all the investigation I have been able to give the subject, that I am still unable clearly to comprehend the distinction in. principle, or rather the difference in circumstances, between those cases, where the stronger evidence is required, and those cases where such evidence has been allowed to prevail as it was said was sufficient to put the party upon enquiry. Nor have those learned commentators from whom I have quoted above, that I am able to discover, told us the distinctions, between the cases where they say that such notice as should put the party to enquire will suffice, and where not. Thus we find judge Story, at page 393, above quoted, for the purpose of postponing a subsequent purchaser, whose deed is recorded, requiring proof of “such actual notice as would amount to a- fraud,” and the same rule is substantially laid down at page 387, in § 398; while in the two next succeeding sections, for precisely the same purpose, we find him holding, that constructive notice answers every purpose of actual notice, and that it will amount to such [* 249] constructive notice, if enough be shown to put the party upon enquiry.

So also we have seen chancellor Kent, at page 171, saying that, for the purpose of giving the prior unregistered deed or mortgage a preference, implied notice may do; “ but then it must not be that notice which is barely sufficient to put the party upon enquiryand yet we find him at page 179 when speaking of the doctrine of notice, as applied to the law of mortgage, laying down the unqualified rule, “ that whatever puts a party upon enquiry amounts in judgment of law to a notice.” .

It is however worthy of remark, that in the first class of cases to which reference has been had, where the greatest amount of evidence has been required to prove the notice, we uniformly find an effort made to give priority to an unregistered deed or mortgage, which was not only authorized but required by law to be recorded over one of the same or a similar character, which although subsequent in date, was in fact first recorded; and this is what has been termed, breaking in upon the statute, or doing-away, in the particular instance, with the registry act and its manifest policy, by a party thus attempting to excuse himself from doing that which the law required should be done. Some judges have regretted that the door was ever opened for letting in such proof at all; but the consideration, that without that, the law would often be used as an engine of fraud and oppression, has triumphed over these scruples. I will repeat, that this has been the case in every instance, where such great strictness has been required in the proof of notice. In those cases, however, where such notice as would' occasion enquiry has been held sufficient, no question arose in relation to the registry act, but the object generally sought to be attained was to give effect to a prior equity, *260which, by the law, the party was not allowed to record, so that lie was obliged to resort to other and less certain means to establish the notice. There may, indeed, be a reason why a party who can, by getting his title recorded, give notice to all the world of exactly the nature and extent of his interest, and neglect to do it, should be required to give stronger proof, when he attempts to establish notice, by another and less certain mode, than the one to whom the law has afforded no means of giving that universal and conclusive notice which the registry act affords.

But as I have nowhere seen the distinction, which these cases would seem to indicate, laid down in terms, I do not feel authorized to present it as an undeniable proposition that the evidence of notice must be stronger where the proof of the notice is to support an instrument that might be recorded, than in other cases; especially where, as before remarked, the difference has been more in name, than iq reality, in most of the eases. So that after all, hereafter, as heretofore, each case must be governed by its own peculiar circumstances; and where the court is sat- [* 250] isfied, that the subsequent purchaser acted in bad faith, and that he either had actual notice, or might have had that notice, he had not wilfully or negligently shut his eyes against those lights, which, with proper observation, would have led him to acknowledge, he must suffer the consequence of his ignorance, and be held to have had notice so as to taint this purchase with fraud in law. It is sufficient if the channels, which would have led him to the truth, were open before him, and his attention so directed that they would have been seen by a man of ordinary prudence and caution, if he was liable to suffer the consequence of his ignorance. The law will not allow him to shut his eyes when his ignorance is to benefit himself, at the expeiise of another, when he would have had them open and enquiring, had the consequences of his ignorance been detrimental to himself, and advantageous to the other.

As it is not pretended that Munson, at the time of the purchase, had personal notice- of the complainants’ interests it becomes necessary to enquire, by the application of these rules to the evidence, whether Mrs. Cutler, the avowed agent of Munson, had such notice ; for, if she had, it was constructive notice to Munson. 2 Powell on Mort. 581; 3 Atk. 646 ; Fonbl. Eq. 420 ; Principal and Agent 283; Story oh Agency 131, 140. But the attempt to charge Munson with Kimball’s knowledge cannot be sustained. Did the evidence show that Kimball, as the agent of Munson, negotiated the purchase, and that Munson subsequently recognised his authority, by adopting his acts, he undoubtedly would become as much his agent, by adoption, as he could have been by appointment. Story on Agency 245 ; Principal and Agent 286 ; 2 Powell on Mort. 584 ; 2 T. R. 188. But such is not the *261proof when the evidence is all considered. I am satisfied that the proper conclusion from the evidence is, that Kimball really had nothing to do with the matter, more than to ascertain at the request of Mrs. Cutler, the price which Teas placed upon the land and again, communicate to him her determination to take it. The part that Kimball performed was that of messenger, rather than negotiator. It would be hard to hold Munson responsible for Kimball’s knowledge, because he did this errand for Mrs. Cutler. He did not pretend to represent Munson, or to exercise any authority or discretion in the matter, but he simply performed an office, which would probably not have been required, had not the agent been a female. In order to make an adopted agency, the acts performed must be such as would make the agent responsible, if not assumed by the principal.

Let us then see whether Mrs. Cutler had such information of Doyle’s prior equitable claim, as to have charged Munson with" personal notice, had he been aware of the same facts.

Wood is the only witness who pretends to swear to any-[*251] thing definitely on the subject. He testifies, that in the fall or winter of 1834, he was doing business with Mrs. Cutler, in relation to her late husband’s estate, and that he then informed her of Doyle’s purchase, and advised her not to buy the land, which she was then negotiating for. On the other hand, Mrs. Cutler distinctly and positively denies ever having had any information or notice, from any source whatever, of Doyle’s-purchase or interest. The only possible way that we can reconcile these contradictory statements, consistently with the integrity of the witnesses, is to suppose that Wood’s memory is as treacherous as to the time when he had this interview with Mrs. Cutler, as it is in relation to the time when the contracts were made ; and he swears with as much confidence and as many circumstances, that both purchases were made in the summer or fall of 1834, which is the time he gives for his first acquaintance with Mrs. Cutler, as he does as to the time when he had the interview with her in relation to Doyle’s interest. It should be borne in mind that but three days intervened, between the sale to Doyle and the Munson. purchase, the one having been made on the 23d and the other on the 26th of May, 1835, and I think it no more improbable that Wood should be mistaken a few days as to the time of this interview, than it is remarkable that he should be mistaken from six to nine months as to the time when the contracts were made. But, let this be as it may, the most that can be said for the testimony ot Wood is, that it should be set off against that of Mrs. Cutler, and then we are left to ascertain from the other'evidence whether there is sufficient proof to fix notice on this agent.

The only remaining testimony which goes to prove notice on Mrs. Cutler is that of Atchison, and he speaks only of indistinct *262recollections and vague impressions, without professing or pretending to give anything certain or satisfactory on the subject. He says that it is his impression that 'he had a conversation with Mrs. Cutler on the day that she purchased of Teas, and he thinks that in that conversation, the sale from Teas to Doyle was spoken of; but he says he cannot recollect any part of that conversation that he would be willing to swear to, nor does he know, he says, that Mrs. Cutler, at the time she made the purchase, knew of the sale to Doyle, but his impression is that she did. This is altogether too indefinite and unsatisfactory to be relied on, standing alone as it now does. The most that it can do is to raise a suspicion or remote probability that she may have heard of Doyle’s interest. Were the evidence satisfactory that she had heard of that sale before she purchased, from a source entitled.to any reasonable credit, and under circumstances not likely to be forgotten, I would hold that the duty had devolved upon her of tracing the matter out, and ascertaining its truth, to the same extent that she would have [*252] done had she been making the purchase for herself, knowing that she must suffer the loss, if she purchased the land when Doyle had an equitable interest. For the want of such proof, notice is not made good upon her.

It now remains to be considered upon this branch of the case, what influence our recording laws have, because the complainants, having failed to make out a notice in any other way, unless our recording act helps them out, there is an end of the case. Our registry laws, unlike any other of which I have any knowledge, require that “all grants, bargains, sales, leases, releases,mortgages, defeasances, conveyances, bonds, contracts,or agreements, of and concerning any lands, tenements, or hereditaments, or whereby the same be affected in law or in equity, whether executed within or without this state, shall be recorded,” etc. (Gale’s Stat. 152) anda subsequent act, (Gale’s ’ Stat. 664,) provides “That from and after the first day of August next, (1833.) all deeds and other title papers which are required to be recorded, shall take effect and be in force from, and after the time of filing the same for .record, and not before, as to all creditors, and subsequent purchasers without notice, and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers without notice, until the same shall.be filed for record in the county where the said lands may lie.” No question can be made but that this agreement is embraced in the act first quoted, so that it was as much the right and the duty of Doyle to get this agreement recorded, as it was of Munson to place his deed upon record; and the effect of recording the agreement was precisely the same, so far as protecting his rights and interests was concerned, as it would have been had it been a deed. The agreement of the complainant is dated on the 23d of May, and is *263recorded on the 19th of June, 1835. Intermediate the date and recording of this agreement, on the 26th of May, the deed to Munson is dated, but it was not recorded till the 26th of June, seven days after the agreement was recorded. As the effect of a compliance with the recording act was to operate as constructive notice to all the world, that the object is as much accomplished by the recording' of an agreement as of a deed. What then would have been the effect on Munson’s title, had Doyle received a deed with date and record the same as the agreement ? Beyond all doubt, his deed being prior in date, and first on record, and bona fide, must take precedence of one subsequent in date and subsequently placed on record. The word subsequent, as used in the recording act, must have reference to the recording, and not to the date of the instrument, and such indeed is its literal and grammatical construction. As between .the grantor and grantee, the transaction is complete upon the execution and delivery of the deed; but as between the grantee and third persons, without notice, the purchase may be said not to be complete till the title paper is left for record. So here, as between [*253] Teas and Doyle, the purchase was complete such as it was, upon the execution and • delivery of the agreement, but as to third persons it was not complete, until the 19th of June, when the record was made ; and by the same rule Munson’s purchase was not complete till the 26th, seven days after. As Doyle completed his purchase, such as it was, first, he must be entitled to the benefit of his superior vigilance and earlier date. Let us look ’ at the consequences that would result from a different construction. Should we now postpone Doyle, because Munson is an innocent purchaser subsequent to the date of his agreement, then Munson would have to be postponed in his turn, should some one appear to-morrow, and produce a deed executed between the 26th of May and filie 26th of June, 1835, because, he would be a subsequent bona fide purchaser! Yes, subsequent to the date of this deed. Or, to make the absurdity of such a construction, if possible, still more palpable, had Doyle not made his purchase till a few days after the date of Munson’s deed, no matter when his agreement was recorded, then because he would occupy the exalted position of a subsequent bona fide purchaser, he would have been beyond the reach of danger, unless he was chargeable with notice, and the burthen of proving this notice would have been thrown on the other side.

Having thus ascertained that Munson is liable to all the equities which the complainant can show himself entitled to under the agreement, we will now proceed to ascertain what those equities are ; and in this investigation we must first see what the agreement between the parties was, and whether it be such as a court of equity will enforce, or whether it be utterly void for uncer*264tainty. A difficulty is presented in the outset, upon the mere perusal of the written agreement, in ascertaining what was the amount of the first payment, which was to be made on the second oi June. The whole consideration agreed upon is $1100, and the payments are to be made in a horse from the first to the tenth of July, and a “certain sum” was to be paid in hand, on the second of June, at which time a note was to be given for the balance, payable in fifteen months from the date of agreement.

For the purpose of avoiding the apparent difficulties which the bare perusal of this agreement presents, the bill avers, that by the agreement of the parties, at the time, the first payment was to be $700, including the value of the horse, the whole of which Doyle had the option to pay in money, or to deliver the horse, according to the written agreement; and to support these averments, depositions were taken.

No question can be entertained but that a portion of the aver-ments and the proofs in support of them, which are inconsistent with the terms of the written agreement, must be rejected ; and [*254] such is the averment which shows it optional with Doyle "whether he would deliver the horse or not. Whether it is competent for the complainant to determine and make certain by®paroi, that which is left uncertain by the agreement, is a question less easily settled.

It is laid down as a general rule by most elementary’writers on the law of evidence, that a patent ambiguity, or an ambiguity which appears in the face of the writing itself, by the mere inspection of it, cannot be explained by parol evidence, while an ambiguity which does not appear on the face of the paper, but which is shown to exist by the intfoduction of parol proof, may be explained by the same class of evidence. In the practical application of these rules, great difficulty has been found to exist, insomuch that Mr. Justice Story (1 Mason 10) says there seems to be an intermediate class of cases partaking of the nature of both patent and latent ambiguities, as where words are used which have a settled meaning, but may admit of two- entirely different constructions, according to the subject matter in contemplation of the parties. And Mr. Justice Cowen, in Fish v. Hubbard, 21 Wend. 651, says: “lb is impossible to sustain this rule as laid down by Lord Bacon (Bac. Elm. Rul. 23), if we take ambiguity in its broad sense of doubtfulness, uncertainty, and double meaning.” And in Cowen and Hill’s notes, (3 C. & H. Notes to Phil. Ev. 1353,) the editors say on this subject: “It will not do to say, therefore, that a patent ambiguity, (meaning thereby an ambiguity appearing on the face of the agreement,) cannot be explained by evidence aliunde, though such .remarks are frequently found in the boobs.” And there are many cases to be met with, where such palpable ambiguities appeared on the *265face of the instrument that it was impossible to give the writing any definite meaning, without inquiring into the circumstances which the parties had in view, when they made the contract, where we find the courts calling to their aid parol evidence, to explain those circumstances, in order that they might give effect to the real intent of the parties. It is upon this principle that we see the English courts, at a very early day, that they might ascertain the real intent of a testator, where the language of the will was ambiguous, seeking evidence aliunde the will, and most frequently evidence of the amount and value of the testator’s estate. Foreman v. Points, Brown 472; Smith v. Doe, 1 Eng. Com. Law 22; Colpays v. Colpays, Cond. Eng. Ch. R. 210. But it is not in the construction of wills alone that this mode of ascertaining the intention of the parties has been resorted to; but we find the courts, in all cases, endeavoring by e’xtrinsic evidence, to place themselves, as far as possible, in the position of the contending parties, so that they may understand the language used, in the sense intended by the persons using it.

Shortrode v. Cheek, 28 Eng. Com. Law 37, was as-sumpsit, brought on a guaranty, in which the words used [*255] were, “ you will be so good as to withdraw the promissory note,” etc. Now it is manifest, that both parties understood the expression, “the promissory note,” alike, and when it became a material enquiry, what was understood by the parties, by the use of that language, and for the purpose of showing what note was meant, the plaintiff was allowed to show that he held a note against the son of the defendant, in whose behalf the guaranty was undertaken, and thus the expression was rendered intelligible, while, without that explanatory circumstance, it was nonsense, from its apparent uncertainty.

The case of Hodges v. Harford, 4 Eng. Cond. Ch. R. 349, was brought to compel the execution of a lease, and the agreement provided for the execution of a lease of the premises described, “ with the additions intended to be made thereto by Samuel Hodges, as per plan agreed upon; ” and the question was, whether the plan alluded to could be shown by parol, and in his decision, Lord Lyndhurst says: “As to the first point, I am of opinion, on the authority of all the cases, and especially the case of Clegman v. Cook, 1 Scho. & Lef. 22, where Lord Redesdale has considered the subject very fully, that as the written agreement refers specifically, to a plan, if there be parol evidence, clear and satisfactory, to identify the particular plan, that evidence may be properly admitted for the purpose of so identifying it.” Here, says Justice Cowen, was a case certainly of very great ambiguity apparent on the face of the instrument. It nowhere describes or points out the plan, or whether it was by parol or in writing, nor was it a case where one instrument could be used to éxplain another, for *266there the reference must be intelligible itself. This case goes a great way, and yet it was not lightly considered.

I will only refer to one other late case to which allusion has already been made, and that is the case of Fish v. Hubbard, 21 Wend. 651, which was an action of covenant, brought on an instrument in which Hubbard had agreed to furnish Fish with water out of the mill dam, sufficient to carry the fulling mill and carding machine. At the trial, the plaintiff offered to prove that Hubbard owned a mill dam, a saw mill, and a grist mill, on the Oswego river, and that the plaintiff owned a fulling mill, clothing works, and carding machine a little below, and that neither of them owned other mills. This evidence the circuit court held inadmissible, and that the instrument was void for uncertainty; “and it .is clearly so,” says Mr. Justice Oowen,in delivering the opinion of the court, “ if we are bound to stop short with the reading of it, and cannot go beyond the face of the contract in search of its meaningbut the court Held the proofs admissible, for the purpose of showing what the parties intended by the use of ■ those indefinite expressions.. So it does not appear, by any means, a sufficient test for excluding parol proof, that it appears on [*256] the face of the paper that there is an uncertainty as to the meaning of the parties; but the true rule clearly deducible from the eases, I think, is where the language is of such a character as to show that the parties had a fixed and definite meaning which they intended to express, and used language adequate to convey that idea to persons possessed of all the facts which they had in view at the time they used the language, it then becomes the duty of the court to learn those facts, if need be, by parol proof, and thus, as far as possible, by occupying the place of the parties employing the expressions, ascertain the sense in which they were intended to be used. But if the language itself shows that the parties using it had no fixed and definite idea, which they intended to convey, then bringing the language in contact with no state of extraneous facts could enable the words themselves to convey a clear and definite idea, because, after all, it must be the language used in view of the circumstances, that conveys the meaning of the parties. •

By the application of this rule, to this case, it is clear that the parol evidence here introduced, for the purpose of showing what the amount of the first payment should be, is entirely inadmissible. It cannot be said that it was offered with the view of showing in what sense the contracting parties used the words, “a certain sum;” because if they had really intended to express what it is said by this evidence, the contract in fact was, we never can be asked to believe that they would have used the words found in this agreement. Had the contract itself, or perhaps the circumstances in view of both the parties, referred to any means for determining the *267amount of that first payment, such as a certain sum which may be sufficient to pay the debt which I owe A B, or which may be sufficient to buy the farm of C D, it would have been competent for the court to go to the sources of information thus referred to by the instrument itself. But that is not this case. Here the parties have used language which indicates that they had come to no definite and certain agreement as to the amount of the first payment; but it would seem, from the expressions used, that that part was left open for subsequent negotiation, or to be determined by the discretion of one or the other of the parties. If the amount was in fact agreed upon, the irresistible conclusion is that they would have stated it in the agreement, and not used words, which, by no possible construction, nor by any possible explanation, could convey their real understanding. But it was said that this parol proof was not incompatible with the language used; but if it be contended that the use of this evidence was tc give effect and -meaning to-the expression, it maybe replied that it gives a meaning that the words cannot possibly convey.

But it was urged with great earnesttiess, on the argument, that what merely goes to the discharge or mode of performance may be proved by parol, and hence the admissibility [*257] of this evidence. But this is not true to the extent contended. When the place of payment is not specified in the writing, the law fixes, by its intendment, where the payment shall be made ; but as that place is fixed, not so much because it is certain that the parties agreed upon it as because it is necessary that some certain place should be fixed, if it can be ascertained in any satisfactory way that the parties intended the payment should be made at any other place, it may be there made. On this subject, in the ease of Brent et al. v. The Bank of the Metropolis, 1 Peters 89, which was a suit on a promissory note, Chief Justice Marshall says : “ But this is not an attempt to vary a written instrument. The place of the demand is not expressed on the face of the note, and the necessity of a demand on the person, when the parties are silent, is an inference of law which is drawn only when the parties are silent. A parol agreement puts an end to this inference, and dispenses with a personal demand. The parties consent to a demand at a stipulated place, instead of a demand on the person of the maker, and this does not alter the instrument, so far as it goes, but supplies extrinsic circumstances which the parties are at liberty to supply.” But this is far short of what the complainants are here seeking; and. the case of Small v. Quincy, 4 Greenl. 497, is directly against the proposition contended for. There it was held that where a written agreement was payable in money, it was inadmissible to show, by parol proof, that it was agreed, at the time of making the writing, that if the promissor, within a given time, delivered a certain quan*268tity of cotton, it should satisfy the agreement. Indeed, it is manifest that the mode of discharging an. agreement or satisfying an obligation is as essential a part of the contract as any portion of it.

On the whole, then. I am clearly of opinion that the parol proof which is here introduced for the purpose of fixing the amount of the first payment is inadmissible, and that we cannot go beyond the contract to ascertain that amount.

The.question then arises, does the neglect of the parties to fix any definite sum as the amount of the first payment leave the contract so uncertain as to make it absolutely void, so that neither party could enforce it against the other ? I think it does not. Such a construction would do violence to the manifest intention of the parties, and should be avoided if possible. And in this connection it may be proper here to consider another objection that was raised to the validity of this agreement; and that is that Doyle, by it, has assumed no responsibility, and consequently Teas is not bound by it. If the premises were correct, the conclusion might follow; but such is not the ease. It is not necessary that both parties should, in the body of the agreement, in express terms, assume to contract, but it is sufficient if [*258] the instrument show a manifest intention on the part of both the parties who have signed it to assume the responsibilities therein assigned to them, as in this agreement. Here Teas agreed to sell the land in question to Doyle for $1100, to be paid in a horse and a certain sum of money on the 2d of June, “and the said party of the second part to give his promissory note for the balance,” payable in fifteen months, and concludes, “ In testimony we have hereunto subscribed our names and affixed our seals this 23d day of May, A. D. 1835,” and is signed and sealed by both the parties. To say that this was a mere idle ceremony, intended to have no binding efficacy on either party, or to say that it was a mere naked proposition from one party to the other for his consideration, to be thought of and acted upon as either party might see fit, at some subsequent time, is not only doing violence to the language-of the contract and manifest intent of the parties, but to the urgent dictates of common sense.

But here both parties have entered into the contract by which each intended to be bound, the one to execute the deed and the other to pay the $1100 in the manner specified ; and as before remarked, it is the duty of the court to give effect to this contract, if possible, rather than to say that the parties meant nothing by all they did. Suppose that Teas were the party complaining here, and showed us that at the expiration of the fifteen months he had tendered his deed, would it lie in the mouth of Doyle to say he would never pay anything, because it was not *269clearly stated liow much the first payment should have been, notwithstanding the last payment had become due ? Such a de-fence, I apprehend, would find but little countenance in this court; and yet if Doyle could have been made liable on this agreement, by strict punctuality on the part of Teas, that reciprocity of obligation, which the law will maintain, must enable Doyle, by strict punctuality on his part, to make Teas liable. What would amount to punctuality on the part of Teas we have no difficulty in ascertaining ; but what it was necessary for Doyle to do, to live up strictly to his part of the agreement, may be a question admitting of more doubt, and that difficulty alone consists in determining from the agreement the amount to have been paid on the 2d of June. Had the contract provided that Doyle should deliver the horse and pay in hand some money on the 2d of June, and give his note for the balance, it would be quite manifest that the amount of money to be paid in June would have been left optional with Doyle, and had he paid but a nominal sum he would have been within the provisions of the contract; and yet by introducing that change into the phraseology of the agreement, but little if any change would be made in its sense. A certain sum of money, although entirely uncertain and indefinite as to the amount, is no moró'so than some money. Any amount, when once told, is some money, and so, also, a certain sum. Let us apply other [* 259] and perhaps surer test, and see if we don’t arrive at the same result. Had Doyle neglected or refused to make any payment or tender on the 2nd of June, a cause of action would have accrued to Teas for that delinquency, and his measure of damages would 'have been, the certain sum of money mentioned in the agreement. I do not see how he could recover in such an action more than nominal damages. If we go above a nominal sum, and say $100, we may with the same propriety, say 1500, or $1000, or any other sum within the entire amount. If, in such a suit, Teas could onty recover a nominal sum, then Doyle was only bound to pay a nominal amount; because Teas could recover all that Doyle was bound to pay. I think there is no hazard in saying, that Teas, by neglecting to fix any given amount for that”payment, in the agreement, when lie liad it in his power so to do, must be taken to have left that amount to the discretion or convenience of Doyle. If it should be said that this is taking a contracted view of . the intention of the parties, and that something more than a nominal sum must have been meant, I do not see how such an objection can be made out from the language of the agreement.

We will now examine more particularly the question of performance on the part of Doyle, and see if he has substantially brought himself within the provisions of the agreement in other *270respects; for, unless he has, or shows some sufficient excuse for his default, he cannot expect to recover.

In addition to the money payment which was due on the 2d of June, a sufficient tender of which, as we have already seen, was made, the agreement provides that he should pay a horse from the first to the tenth of July. This was a material obligation imposed upon Doyle, which it was his duty to perform specifically, unless he could render some sufficient excuse for his failure. For aught Doyle knew, or for aught we know, it may have been important for Teas to have had the horse at the time agreed upon, and Doyle had no right to presume that the value in money would answer Teas as well. We cannot learn, from the contract, whether this provision was inserted for the particular benefit of either party. It may have been for the benefit of both, and each had a right to insist on its observance. No tender or offer of the horse is pretended, and for an excuse the bill avers, that at the time the contract was entered into, the parties agreed that the amount of the June payment should be $700, including the value of the horse, and “ that it was further understood and agreed, that at the time and place aforesaid, it should be at the option of Doyle to pay over the whole of the said sum of $700, or to assess or cause to be assessed or agreed between the parties, the price or value of said horse, which was to be delivered to Teas, [*260] from the first to the tenth of July.’’ We have before seen that evidence in support of this averment is inadmissible, and most especially so is that part, which attempts to show that it was optional with Doyle, whether he should deliver the horse or pay his value in money. This was an attempt not to explain or illustrate the sense in which the parties intended to use the language of the agreement, but an attempt to change and alter its sense, and show a 'repugnance between the agreement as understood by witnesses, and the language used in the paper. This will not do. But even admitting it, there is a manifest failure in the attempt to sustain this averment by the parol proof; for that shows an agreement not only widely diffeient from the written contract, but differing quite as widely from this averment in the bill. Walby, who is the only witness who pretends to have been present when the contract was made, says, “ The price for the two pieces of land agreed on was $1100, and the payments as follows; — $800 on the 2d of June following, and the balance in fifteen months from the date of the contract.” “ The parties agreed that the payment of $800 should be made at McFadon’s store, on Bear Creek, in Adams county, on the 2d of June, 1835.” This is all that Walby says as to the nature of the agreement, and all that has a tendency to show any different agreement from the one set out in the bill, as reduced to writing. This testimony shows the amount of the first payment to be $800 instead of $700, *271as is averred in the Bill; and not a word is said about the horse, one way or the other; but by this we are told that the whole was to be paid iñ money, at all events. So far then from this evidence throwing any satisfactory light upon the nature of this contract, it shows conclusively that the witness knew but very little of what the parties did agree to, and forcibly illustrates the wisdom of the rule by which it was excluded. If this proof were admissible, and taken as conclusive, it would show a very good reason why the horse should not have been delivered, but as it is, a very different reason from that set up in the bill; for that reason also it is inadmissible, for in this court, as in a court of law, such proof is only proper which is pertinent to the issues, or has its foundation in the pleadings. It must not differ from them; Then here is a failure without an excuse.

That circumstances might have existed that would have superseded the necessity of a tender of this horse, under this agreement, I have no doubt. Thus, had Doyle averred and shown that the horse had died before the time for delivery had arrived, or perhaps had Teas, after the making of the agreement, waived the delivery of the horse, and agreed to receive the whole in money, a sufficient excuse might have been made out. Williams v. Hyde, Palm. 548.

Again it is provided in this agreement, that Doyle should execute his note to Teas on the 2nd of June, payable fifteen months from the date of this agreement, for the balance, [*261] which should remain due after deducting the payment of the 2nd of June, and the value of the horse; which was not .•done, nor any apology offered for the omission. This may have been of more or less importance to Teas, according to his peculiar circumstances. It might have been of great importance to him. •to have had that note, to get it discounted, or otherwise put it in circulation, and thus realise the proceeds immediately'; and as his agreement called for it, he had a right to demand it, and he now has a right to insist on the objection that it was not tendered. It was the duty of Doyle to see to it, that he did everything that he had agreed to do, if he intended to put Teas in default.

Nor does it appear that Doyle has kept his tender of $800 good, as the law terms it, subject to the order of Teas, and by bringing it into court to be disposed of, as the court might direct. Bronson v. Howley, 2 Lord Raym. 82; Giles v. Hartis, Ibid. 254; Jackson, ex. dem. v. Low., 5 Cowen 248.

I will not now say that any one, or even all of these delinquencies on the part of Doyle are of such vital importance as to be beyond the reach of the discretion of the court of equity, but they are of such a character, at least, as to render it -.proper that they should be taken into the account of the sum of his defaults.

And next comes the final payment of the last of the considera*272tion money, which, by the terms of the agreement, was to have been made on the 28d of August, 1836, fifteen months from the date of the contract; and no payment or tender bf this is pretended. As a reason why the payment was not made, it was insisted on the argument, and with great apparent confidence, that inasmuch as Teas had parted with his title to Munson, before the first payment became due, and had thus incapacitated himself from performing on his part, Doyle was discharged from performing, as he had agreed, because it was impossible for him thereby to get his title from Teas; and that equity will require no useless act to be done.

This proposition being one of importance as here presented, as it must form the pivot, after all, upon which the question of performance on the part of Doyle must turn, it certainly requires a .most careful investigation, and we will therefore proceed to examine the authorities by which it is attempted to be maintained.

The first case to which we are referred is Jones v. Barkley, Dougl. 684, where the question arose on a demurrer. The suit was brought on a covenant to pay ¿£611, upon condition, among other things that the plaintiffs would assign, within a given time, the equity of redemption in certain stocks; and the declaration averred that they, within the time, “ offered to the defendant to assign etc., and offered to execute the assignment,” “but [*262] that the said defendant then and there absolutely discharged the plaintiffs from executing the same and this Lord Mansfield held to be a sufficient excuse for not averring that the equities had been actually assigned. And well he might, for the case showed an offer to perform on the part of the plaintiffs, and an absolute discharge from the Derformanee on the part of the defendant.

The next is the case of Hotham v. East. Ins. Co. 1 Term. R. 639, which was a motion in arrest of judgment, on a verdict for the plaintiff for short tonnage. The charter party contained a clause that short tonnage should not be allowed, unless the same should be certified by the president or agent of the defendants, etc. Plea, that the president or agent’s certificate- was not obtained. Replication that they were requested to certify and refused; and it was held by the court, that the refusal of the president and agent was equivalent to the refusal of the defendants themselves, and that they should not thus take advantage of their own wi’ong. 'Mr. Justice Ashurst.says: “It is unnecessary to say whether the clause relative to the certificate be a condition precedent or not, for granting it to be a condition precedent, yet the plaintiffs have taken all proper steps to obtain the certificate, and it being rendered impossible to be performed by the neglect and default of the company’s agents, which’the jury have found to be the case, it is equivalent to performance.”

*273In Sir Anthony Mayne’s case, 5 Coke 21, the second resolution of the court was this: “ If a man seized of lands in fee, cove-nanteth to enfeoff J. S. of them, .upon request, and afterwards he make a feoffment in fee of the lands ; now in this case J. S. shall have an action of covenant, without request, and this is the principal ease.” Had Doyle brought an action of covenant against Teas, to recover damages on the agreement, before the expiration of the time of payment, then might .this case have been entitled to great consideration.

The case of Bowdell v. Parsons, 10 East 359, decides that where the party agreed to deliver on demand, a certain stack of hay to the plaintiff, and afterwards sold it to another, the plaintiff might bring his action for damages, without a particular request. And this is in principle the same as the case in Coke.

In the case of Amory v. Broduck, 5 Barn and Ald. 712, the defendant had sold to the plaintiff a bond, and covenanted not to receive anything on it or make it void, but that he would avow, etc., all suits upon it, and afterwards executed a release to the obligor, and the court held as the release would operate to defeat a suit on the bond, it amounted to a breach of the covenant.

Holden v. Eaton, 7 Pick. 15, was a suit against a collector for not returning a tax sale to the clerk’s office, so that the purchaser could get his deed. The court held that the plaintiff was not bound to demand a deed of the clerk, because one [*283] could not have been issued for want of the return.

In Fleming v. Gilbert, 3 Johns. 528, it was held that in an action upon a bond, the obligee .might show by parol, in his defence, that the obligor had discharged him from a literal compliance with the condition, where his performance was not complete.

In the case of the Bank of Columbia v. Hagner, 1 Peters 450, the plaintiff sold to the defendant a piece of land to be paid for, and the deed to be delivered at a certain time, neither of which was done. Long after, the plaintiff tendered a deed and sued for the purchase money, and the court held, that he should have tendered the deed on the day, unless “before the period had arrived, when the deed was to be delivered, the defendant had declared he would not receive it, and that he intended to abandon the contract; it might have dispensed with the necessity of a tender, as the conduct of the defendant might, in such case, have prevented the act from being done, and he who prevents a thing from being done shall never be permitted to avail himself of the non-performance which he himself has occasioned.”

The case of Williams v. U. S. Bank, 2 Peters 96, shows that where the endorser of a note prevents the holder from giving him notice of non-payment, by absenting himself from his house, *274and. locking it up, the holder is excused from proving strict notice.

The case of Cathcart v. Robinson, 5 Peters 264, was where the defendant resisted a specific performance of an agreement to purchase land, on the ground that he had a right to relieve himself from the purchase by the payment of $1000, and it was objected that the money had not been tendered, and the court says: “ It was perfectly understood that Robinson (the complainant) would not receive it,' (i. e. the $1000,) and the only fund from which it could have been raised, the Spanish claim, was bound to him. The court therefore does not perceive in the conduct of Mr. Oath-cart sufficient cause to overrule his defence.” And in this case the difference is clearly recognised by chief justice Marshall, between the case to be made out by the defendant to enable him to resist an application for a specific performance, and the case which he should make out, were he the complainant seeking a performance from the other party. The latter must be a much stronger case than the former.

In Delamater v. Miller, 1 Cowen 75, the defendant was bound to deliver a watch to the plaintiff on request, and then parted with the watch to another, and the court held it unnecessary to prove a demand.

Greenly v. Cheevers, 9 Johns. 126, was this case: The plaintiff purchased of the defendant certain premises, which were to be paid for by installments, and the agreement was, when one [*264] half was paid, a deed with a clear title was to be given.

The plaintiff paid a part, but before the balance of the half became due, and without tendering it and demanding his title, he sued for what he had paid, alleging that the premises were encumbered with a heavy mortgage, but the court held that he could not rescind the contract at that time, and said: “ If Oheevers had waited till half of the purchase money was due, and then had offered to pay it on receiving a deed, and Greenly had then been incapacitated to convey, by the outstanding mortgage, which he had omitted to redeem, there might have been grounds to consider the contract at an end and rescinded.” This case is very far from supporting the doctrine contended for by the complainants here. If it has any application at all, it is against it; and t lie case of Robb v. Montgomery, 20 Johns. 15, is fatal to the position for the support of which it is cited. . There the parties had entered into an agreement for the sale of some land, which was to be paid for by installments, and a deed was to be given on the payment of the first installment, if the defendant wished, by securing the .balance by bond and mortgage on the premises, and the suit was brought, for the purchase money, and the defence was that after the sale, and before the first installment became due, the plaintiff had sold and conveyed the said *275premises to one Bemis, who it appears stood ready to convey, on the payment being made. In deciding that case, chief justice Savage says: “ Where the payments are to precede the conveyance, it is no excuse for non-payment, that there is not a present existing capacity to convey a good title, unless the one whose duty it is to pay offers to do so on receiving a good title, and then it must be made to him, or the contract will be rescinded.” In the same case, the chief justice says: “In the view of a court of equity, Bemis was a mere trustee for the performance of the contract. Under the facts in the case, lie-might be compelled to execute a deed to the defendant, when the latter entitled himself to one by the payment of the purchase money.”

In the case of Harrington v. Higgins, 17 Wend. 376, it was held that where, by an agreement for the sale of land, to be paid for by installments, one of which was to be made before the time expressed for the conveyance, that it was no defence to an action for the first installment, that the vendor had not the title at the time that installment fell due. And the court here also recognize the same rule as laid down in 20 Johns.

I have thus adverted to, and given the substance of all the decisions in support of the proposition that Doyle was absolved from his obligations of punctuality, or even performance at all, under the agreement, because Teas had in the mean time parted with his title to Munson.

Some of these cases show that when one party refuses to perform, or declares that he will not perform,-or incapacitates himself to perform, the covenant is broken or agreement violated, for which the other party may have his action, sometimes [*265] without an offer to perform on his part, or demand on the other, and sometimes by offering to perform, dependingjjin a great degree on the dependence or independence of the covenants; or, if he chooses, he may consider such a breach a rescinding of the contract, and may treat it as at an end, and so be absolved from further obligation to perform.

In attempting to apply these principles to the case before us, the difficulty all along has consisted in this: The counsel have confounded the two remedies, which a party may have on an agreement for the conveyance of land, to one of which the position assumed might be correct, to the other it clearly is not. One of these remedies is an action on the agreement for damages, to which one party may be entitled as soon as the other has in any way violated the contract, unless indeed he has invited that violation, by a previous breach on his part. Thus, for the present, laying out of view the question of dependent or independent covenants, which might be raised in this ease, Teas, by selling the land to Munson, before the second of June, when the first pay*276ment fell due, was, according to the case of Sir Anthony Mayne, guilty of a breach of his agreement, for which Doyle had a right to sue him immediately, or he might, if he chose, consider the conveyance as a renunciation of the contract by Teas, and byre-fusing or neglecting to comply on his part, with the agreement, treat it as at an end. This sale by Teas to Munson may be a very good excuse in the mouth of Doyle, why he did not comply on his part, for some purposes, while it is no excuse for others ; and all this must depend on the position which he occupies in the controversy. Thus if Teas had sued Doyle for the purchase money, or "for not delivering the horse, Doyle could with great propriety have turned around and replied : True it is, I have not ■ kept my covenants, but the reason is, that you have violated yours first; but because this may'serve as a shield, it is not necessarily a sword.

In this court, where a specific performance is sought, it is not sufficient alone to show the adverse party in default, but the party complaining must show that he is not liable to the same imputation, or in other words, the complainant must come into court with clean hands. By seeking a specific performance of this agreement, the complainant treats it as a subsisting valid contract, obligatory not only upon Teas, but also on Munson, his grantee. He now says he did not pay the money, as he had agreed, because the title had gone beyond his reach, and the tender would have been a useless ceremony; but by bringing this suit he affirms that the title is not only now within his reach, but that it has always been so, and must hence necessarily contradict the very excuse which he offers. By seeking a title under [*266] this agreement, through the medium of Munson, into whom it has passed, he must treat him not as the honafi.de grantee of Teas, but as his trustee, who is not only authorized but may be compelled to make the title for him, and thus fulfill his covenants. And if Doyle chooses thus to treat Munson, as the trustee of Teas, to make this conveyance, he cannot well deny that either Teas himself, or Munson, his trustee, had a right to receive the purchase money. Or, perhaps, if he chose, he might in this proceeding treat Munson as the assignee of this agreement from Teas ; but if so, he must admit that Munson succeeded to all of his rights as well as liabilities, and hence, in equity, at least, entitled to recover the purchase money. By assigning Munson the first position, the tender to Teas was safe, and in either case it was good to Munson. If Munson was Teas’ trustee to make the deed, he was also his trustee to receive the money. By bringing this suit he claims to be entitled to a deed ; and now let me ask where did that title first accrue? Was he entitled to it on the second of June, when he tendered the $800? Certainly not; because although no time was fixed in the agreement for the *277delivery of the deed, yet the law allowed the defendant to retain the legal title till the time the last payment became due, as a security for the purchase money., McCoy's Adm. v. Baxter's Adm. 6 & 7 Ohio Cond. R. 134. Did he become entitled to a deed at the end of the fifteen months? That can hardly be said, because Doyle had done nothing more at that time to entitle him to it, than he had on the second of June. And now on the first of July, 1837, when this bill was filed, nearly a year after he agreed to complete the payments, had the complainant’s rights to demand a deed accumulated any strength? He had done no act to strengthen them, but on the contrary had slept upon those rights, whatever they were, still retaining the purchase money. And if he could not, on the twenty-third of August, when the last payment became due, say to the defendants give me a deed, without tendering them the balance of the purchase money, and by keeping the first tender good, which I presume would hardly be contended, (2 Johns. Cas. 441,) then he could not make the same demand on the first of July, 1837, without at least, making the same tender ; and if he did not, before he had filed his bill, clothe himself with a right to demand a deed, without anything further being done on his part, then’he had no right to demand a deed of this court. We can only compel a party to act when it was his duty to act without our interference. I would not be understood as saying that this payment must have been made at all events on the very day that it fell due, to have entitled the complainant to the relief sought; for undoubtedly the court has a discretion, in an application of this nature, to disregard the exact time as not so indispensably essential as to prevent the court from looking further, when it sees that the payment was not made at the very day ; but then, if the day has long passed, some [* 237] satisfactory excuse for the failure must be shown to exist, and in such a case, if any damages have arisen to the defendant from the delay, the court will award him a compensation for it.. For the sufficiency of this excuse, each case must depend upon its own peculiar circumstances.

We were admonished of the hardship of requiring of Doyle to pay to Teas the $1100 when it became due, because in case he should prove irresponsible, he might lose his money, and never get his deed. But that hardship does not exist, for the danger is not incurred. It was his duty to tender the money, and at the same time he had a right to demand the title for which he had contracted, and till he could see that title, he was not bound to pass over the money, and by holding that money in readiness, he would have occupied a position which would have enabled him to demand his deed at any moment, and which would have' given him a right, within any reasonable time, to resort to a court of chancery, deposit his tender with the clerk, and ask for a deed. *278But tbis lie lias not done in whole or in part. He did not “ wash his hands in innocency ” before he came here, but, instead, we hud him guilty of as much negligence as he lays fraud at the door of the defendants. If Teas had disregarded 1ns contract by selling to Munson, Doyle, too, has acted as if there were no agreement, by making no payment when all was due. Both have treated the contract as at an end. The law cannot allow Doyle to say, “ I will keep my money and will disregard my contract, because I cannot get a deed under it;” and at the same time come into court and say, “ Make them give me a deed because they are able.” That would be a disregard of consistency which cannot be tolerated.

I am not prepared to say that a case might not exist, where the great uncertainty, as to whom the tender should be made, or possibly, the great trouble, expense, and inconvenience, necessarily attendant upon an effort to make an effectual tender, where a personal tender might be'dispensed with, and the money brought into this court, with a bill for a specific performance; but in such a case delay could not be tolerated, so as to allow the party to speculate upon the advantages of his bargain. There no delay could be allowed, otherwise the party might lie by till he finds the property doubling, or thribbling, or, as in this case, increasing in value a hundred fold, as the testimony is, and then when he finds a magnificent speculation before him, present himself to assert a claim which would never have been heard of, had the property decreased in value.

I have before stated that it was not only necessary that the proper tender should have been made, but also that tender must be followed up by bringing the money into court, and depositing it, not according to the English practice, with the register, but according to our practice, with the clerk. And in requiring ["* 268] this to be done, this court follows the same rule with the courts of law, where, if a tender is pleaded, the party is required to bring his money into court, and it is for the same reason substantially, that by accepting the tender an end may at once be put to the controversy. There are, however, other reasons why, in this court, a tender is required to be brought into court, but it is unnecessary to advert to them now. We have seen then, both upon principle and authority, that the complainant stands without excuse, for his defaults, thus leaving his conscience as much affected as the defendants’ can be, and he must be therefore left without relief.

Several other minor questions were raised and discussed with great ability on both sides; but as what have already been considered must necessarily decide the case, it is unnecessary to go further.

*279 Nate. In this case the court directed, on motion of the counsel for the complainants, that the expense of printing the abstracts of the case should be taxed in the bill of costs, by the clerk, although they were not furnished by him, but by the parties.

The decree of the circuit court is affirmed; but no costs are allowed to either party.

Wilson, Chief Justice, said: In this case I concur in the judgment of the court affirming the judgment of the court below.

Lockwood, Justice,

delivered the following separate, opinion:

The bill filed in this cause was for a specific performance., and as I do not concur in some of the points discussed in the opinion of Mr. Justice Catón, I briefly state the ground on which I concurred in affirming the decree rendered by the court below. I am of opinion that the written contract set out in the bill is too uncertain, as to what the respective parties were to do, to justify a court of equity in decreeing a specific performance of it. I express no opinion whether by the parol contract also set out in the bill, it was competent in that manner to render the original contract sufficiently certain, to justify a decree for a specific performance; because I am of opinion that the proof does not sustain the parol contract. Because, then, the original contract is uncertain, and the allegations and proof of the parol contract do not correspond, I am of opinion that the decree below was properly affirmed.

Decree affirmed.

(1)

This cause was decided at the last term of the court, but the opinion was not delivered till this term.