#### Prater v. Miller.

'i 1 From Rutherford. j

A Court of Equity can afford no relief on a contract, or agreement which is uncertain; by this is meant, however, uncertain in its terms¡ for when an agreement to do a thing, either in itself or by reference to any other rule, furnishes the means of ascertaining the thing; or if the thin^ be not noto certain, or capable of certainly, yet if a rule be given by which it may hereafter be rendered certain, equity wii! interfere.

Equity is not obliged to decree a specific performance wherever damages might be recovered at law; but will judge from all the circumstances whether the agreement is such as ought, in justice to both parties, to be carried into effect: where, therefore, an agreement is made between A and B for the purchase of a large tract of land, a title to be made when B the purchaser pays for it, and B goe., into possession and continues for ten or twelve years, and in all that time pays but a very insignificant part of the purchase money; equity will not compel A to convey to B a poviion of the land equal in value to the money paid by him, especially when laying off this portion of the land must materially impair the value of the residue of the tract. B the purchaser is entitled in equity to have the money which he has paid, refunded, and is not chargeable with the rents and profits while in possession, because by the agreement, he Was to take possession and plant and build; but be is justly chargeable with interest on the purchase money,

The bill set forth, that about ten years prior to the filing thereof, the complainant contracted with the defendant for the purchase of a tract of land at the price of two dollars per acre, to be conveyed when the complainant should pay for the same. At the time of the contract, it was agreed between .the parties that the complainant should take so much of the laud as he might afterwards find he had the ability to pay for, and complainant went into possession of the tract, and clearing about thirty acres, improved the same with buildings, an orchard, &c. The complainant farther stated, that being a blacksmith, he had, for a period of eight years, done work for the defendant, the value of which was about one hundred and *629thirty dollars, and that he had also-rendered services to the defendant on his farm to the value of thirty-three dol-lurs; that for these services he had never demanded payment of the defendant, always expecting that the sum due him would be retained by the defendant in paid payment of the purchase money of the land. The bill then proceeded to state, that after complainant had lived some time on the land, the defendant commenced suit against him by action of ejectment, obtained judgment, and was about to issue a writ of possession. The bill concluded with a prayer for an injunction, and a general prayer for relief.

Seaxoell moved to dismiss the bill, and referred to 1 Madd. 295. 320. 337. 3 Mk. 385. 1 Ves. 279. 3 Ves. 185. 420.

Seaxoell contended,

that no prayer in a bill entitles a party to any relief but such as the case made in the bill will warrant. (2 Mk. 141. 3 Ibid. 131.) As where the bill was for an annuity, and the complainant wished to drop his demand for that, and pray for the land, the Court (Lord Ilardxoicke) denied it, because it came within the rule before laid down.

The Court ought not to make bargains for the parties, for the whole being at the option of complainant, there is *630a want of mutuality. (1 Johns. Ch. Ca. 281, 2. 2 Vern. 416.)

*629 Taylor, Chief Justice.

I am unwilling to dismiss this bill, because I think it states a strong ground of equity, and whatever uncertainty there is as to the number of acres, or the amount of the plaintiff’s account, may be reduced to a certainty by a survey and by a reference to the clerk. It is a circumstance entitlod to weight, that the plaintiff has been allowed to remain in possession for so great a length of time, and to make improvements. The bill is not drawn with sufficient precision, but I think it should go to a hearing.

And of this opinion wore the rest of the Court; and now on the hearing,

*630The agreement should be certain. (Sugden 183.) This js notSo. An agreement to build refused. (1 Ves. Jun. 135. 3 Brown 168.)

Unless a covenant be so certain and definite that the Court can describe it as matter of report, it cannot be decreed specifically. (3 Ves. Jun. 184.)

Badger, for complainant.

The agreement stated in the bill, is for the conveyance of so much of the land as complainant should be able to pay Cor at a certain price per acre. When the defendant brought his ejectment and turned complainant out of possession, he had paid for a part of the land. By the agreement, that part should have been conveyed; if it had been, as it was not defined with certainty by a given boundary, the parties would have been tenants in common at law. This Court, adjusting the rights of the parties by the rule ‘‘that what ought to be done shall be considered as done,” will consider them as tenants in common in equity, and decree such a conveyance as will give them that character at law. It is objected, that the agreement cannot be enforced because it is uncertain, and that the proofs do not correspond with the allegations. The latter objection is clearly founded in mistake. The bill does not state a contract for the sale of the whole and pray a specific execution of that contract; but it sets forth the truth of the agreement, and by a general prayer asks such relief as may be suitable to the case disclosed. To make the uncertainty of the contract a ground of refusing its execution, the uncertainty must exist in the terms of the contract. (1 Mad. Ch. 336. 1 Fonb. Eq. ch. 3. s. 7. ¶. 161.) There may be great difficulty in ascertaining the thing intended according to the terms of the contract, in applying those terms to the discovery and specification of the thing designed, and yet no uncertainty, in a proper sense, in the terms themselves. *631And all the cases show that if the agreement, either in itself or by reference to any other rule, furnish a means of ascertaining the thing; or if the thing be not now certain, or capable of certainty, yet if a rule be given by which it may be hereafter specified and reduced to certainty; the Court will not refuse to decree a specific performance. This proposition wilbappear from the cases referred to on the other side. (2 Vern. 416. 1 Ves. Jan. 135. 3 Br. Ch. B. 168. and 3 Ves. Jim. 184.) In one of these cases, the agreement was to lay out a certain sum in building, without saying more; in another case, to pay a fortune to a daughter, without saying how much. And in the case of Elliot v. Hele, in 1 Vern. the agreement was, to make a jointure, without saying in what lands or to what amount. In all these cases a decree of specific performance was plainly impossible, unless the Court had first made a contract and then decreed it. These have no application to the case before the Court. This will be further evident from the case in 2 Eq. Ca. Mr. 17. pi. 6. and the Lord Chancellor’s remarks upon it in 3 Ves. Jim. cited on the other side.

(The Court here informed the counsel they were satisfied that the objections taken by the defetidant’s counsel were answered, and the agreement sufficiently certain; but that another objection presented itself to the Court. Upon the proofs it appears, that only eighteen acres out of a tract of five hundred have been paid for. As a performance this seems illusory, and the Court will not decree specific performance as to these eighteen acres, because it cannot be supposed that the defendant intended to sell so small a portion of that tract, but he must have contemplated a sale of some part of his land bearing a greater proportion to the whole, and ought not to be obliged to dismember the tract for the sake of soiling eighteen acres at two dollars per acre.)

Badger then contended the complainant was entitled to a decree for the repayment of purchase money advanced, *632and being called on by the Court to support it, he argued as follows.

Where a vendor delivers possession of an estate without receiving the purchase money, equity, (whether the estate be conveyed or not,) and without any special agreement for that purpose, gives the vendor a lien on the land for the money. And it seems if the purchaser has paid any part of the purchase money, and the vendor is unable to make a title, he has a lien on the land for it, although he may have taken a distinct security for the money advanced. Lacón v. Marling, (3 Mk. 1.) And in Chapman v. Tanner. (1 Fern. 267.) in relation to the vendor’s lien, the Lord Keeper says: “In this case there is a natural equity, that the land should stand charged with so much of the purchase money as was not paid; and that without any special agreement for that purpose.” And see Sudgen Vend. ch. 12. p. 352.

The rule seems then to be, that the vendor has a lien on the land for his purchase money unpaid, and the purchaser for the purchase money paid; and this upon a fitness in the nature of things apart from positive law or express stipulation, which fitness the Lord Keeper styles “ natural equity.”

Wherever the land goes, the vendor shall pursue it until he receive that for which alone he agreed to part with it. So the purchaser shall hold the possession until his payments be refunded.

It is of the very nature of a lien, that he who has the possession of that on which the lien attaches, shall not be compelled to surrender the possession only on his action to recover the money due; as he who has not the possession, but has a lien, may pursue the thing in specie into whosesoever hands it comes.

If the seller find he cannot- make a title, he shall not resume the possession without restoring the money paid to him. If the purchaser find he cannot pay (so as to give the vendor a right to rescind the contract,) the same *633equity requires the vendor should refund the payments made before he disturb the purchaser in his possession. Therefore in this case. Miller ought to have restored, or offered to restore, the advances made, &c. before he brought his ejectment. This he did not do, and a court of law would not notice the lien in answer to the ejectment, because it is only an equitable lien. Hence his equity to come into this Court to prevent an unconscientious use of Miller's legal right. Until the purchase money is refunded, Miller can have no right, in equity, to the possession, and consequently the Court will not allow Miller to attain and keep this possession, for that would be,; to deprive Prater altogether of his lien, and leave him without any security to sue for money had and received at law; whereas the whole scope of equity decisions is to regard the land as specially charged-with sums due or advanced, and not to leave the parties as upon a mere personal contract.

Upon the whole, therefore, Miller must, in equity, either restore the possession, or repay the advances, and cannot be permitted in consdence to take possession of the land with the complainant’s money in his pocket, and leave him to sue him at law for it, when it never was a general debt, but an advance made specially for the purchase of this land.

Per Curiam.

The question made by the bill and answer is, whether there was an agreement to sell the land, or so much thereof as the plaintiff should be able to pay for, or whether the plaintiff was put into possession and allowed to go on and improve the land in consideration of his doing the defendant’s blacksmith’s work.

The contract of sale, according to the plaintiff’s statement, is so fully proved by five witnesses, that there could be no hesitation in decreeing a specific performance if the price had been paid. The objection to the uncertainty of the agreement cannot prevail; for though it did not *634stipulate for any precise number of acres, yet being an executory agreement, the completion of which was referred to a future act, whenever that was ascertained, viz. the ability of the party to pay, the contract became certain. A lease of land, without mentioning any term, is void for uncertainty; but a lease for so many years as J. S. should name would be good. (2 Vern. 684. Hob. 174.) Whatever number of acres the plaintiff should be able to pay for, and did pay for or tender the payment, the defendant was bound to make a title for; and the Court, in a case unattended by other circumstances, would decree a specific execution for.

But there are insuperable objections to such a decree in this case; for the plaintiff, after a possession of ten or twelve years, enjoying the rents and profits, has paid but the sum of $71, which with the charge of interest against him, would reduce the quantity of land he might claim to 18 or 20 acres. And if this were laid off so as to include his improvements, it would detach 90 acres from the tract, thereby doing to the defendant more injury than any damages which the plaintiff could recover at law. When the defendant made the agreement he must have calculated upon something like a substantial purchase on the part of the plaintiff, upon the payment for a quantity tiiat would bear a due proportion to the whole tract; and it is incredible that he should have considered himself as incurring an obligation, compelling him to convey an insignificant part of the tract, so laid off as greatly to impair the value of another considerable portion. From an Inspection of the plat, it. seems probable that 110 acres which projects from the tract, and on the nearest part of which the plaintiff has settled, was the portion within the contemplation of the parties, for that might be laid off without destroying the unity of the tract.

This Court is not obliged to decree a specific performance, although damages might be recovered at law; but will judge from all the circumstances whether it is such *635an agreement as ought to be carried into effect; for it would be hard to carry an agreement into execution in equity, when it would be greatly to the prejudice of the party against whom it should be decreed, if a jury upon inquiry should find but very small damages. And the circumstances of this case would probably lead to such a result. It would not be right to charge the plaintiff with the rents and profits while he was in possession, for it seems to have been a part of the agreement that he should takepossession and plant and build; but he is justly chai’geable with interest on the purchase money. (2 Atk. 490. 3 Atk. 673. 12 Ves. 26)

The decree must be, that the plaintiff recover the balance, with interest from the time the defendant obtained possession, at which period the defendant should have refunded the money paid, as he had put an end to the contract. Each party to pay his own costs at law and in equity.