#### JOSEPH H. BRYAN v. MARTIN READ, et al.

If, upon an agreement for the sale of land, the vendee has a right to the possession both as vendee and lessee, and on the expiration of his term, refuses to complete his purchase, but tenders the rent, the vendor by accepting it] waives the contract, and forfeits his right to a specific performance.

The plaintiff, on the 24th January, 1832, filed his original bill against the defendant, Martin Read, and therein charged, that, being the proprietor in fee of a certain lot in the town of Halifax, subject to an estate for life in one undivided moiety thereof in Mrs. Mary Rhodes, he, on the 31st December, 1829, entered into a written agreement under seal with the said defendant for the sale of the said lot: that by the said contract it was stipulated and agreed that, in consideration of the following payments to be made by the said defendant, that is to say, five hundred dollars, in ninety days, for which a negotiable note payable at bank was to be immediately executed; and five hundred dollars payable 31st Decern-*79ber, 1831; and five hundred dollars payable 30th Decern-ber, 1832, for which the defendant was to execute his notes, and further to secure the payment thereof by a deed of trust on the premises; the plaintiff thereby bargained and sold the said lot and improvements unto the said defendant, including Mrs. Rhodes’ interest therein: that a deed from Mrs. Rhodes and the plaintiff was to be executed in sixty days thereafter, or as much sooner as was convenient: and that the defendant was to take immediate possession, and toexecute the two last mentioned notes, and the deed of trust when the'conveyance should be executed. The bill further charged, that the defendant, under and by virtue of this agreement, ’took possession of this lot and occupied it for about a year: that the plaintiff having purchased the consent of Mrs. Rhodes to the contract, caused a deed executed by her ahd the plaintiff to be tendered to the defendant; but that the defendant refused-to receive the same, or to execute what remained unfulfilled of the contract, alleging that he was not bound to proceed therewith, because the deed was not tendered within the sixty days after the execution of the articles, and pretending that he had not taken the possession under the contract, but as a' tenant under lease from Mrs. Rhodes. The plaintiff further charged,''that if the deed was not tendered within the stipulated time, which he did not admit, the defendant sustained no loss or inconvenience from the delay; and that a strict compliance with the time was not material in the estimation of a Court of Equity, and peremptorily denied the. assertion, that defendant had entered as tenant under Mrs. Rhodes, and not as purchaser under the contract. The prayer of the bill was for a specific execution of the contract.

June, 1835.

The defendant in his original answer admitted the execution of the written agreement as set forth, and a tender of a deed executed by the plaintiff and Mrs. Rhodes in the month of May, 1830, and a refusal on his part to receive the conveyance, or to go on with the execution of the agreement. The defendant further alleged, that before the agreement he had leased this lot from Mrs. Rhodes for the year 1830, at the rent of one hundred *80dollars : that after the execution of the agreement he took possession to hold as purchaser, if the plaintiff caused the proper conveyance to be made within the stipulated time, and as the tenant of Mrs. Rhodes, if the plaintiff should fail to do so: that in consequence of the failure of the plaintiff to deliver the deed at the appointed time, the defendant occupied under his lease, and communicated this his purpose to the plaintiff, and make known to the common agent of the plaintiff and Mrs. Rhodes, his intent to pay the rent of one hundred dollars on the first of January, 1831: that the agent communicated this notification to the plaintiff, and asked his instructions: that the plaintiff instructed the agent to receive the rent: that the defendant paid the sum accordingly, relinquished the possession to the agent, and considered the agreement as entirely waived and abandoned, until he was served with a copy of the plaintiff’s bill.

The defendant having upon affidavit obtained leave from the Court, put in an additional answer, in which he averred, that when he entered into the agreement with the plaintiff for the purchase of the lot in question, he had no knowledge or information of certain matters which he was advised put it out of the power of the plaintiff to make a good title to the lot: that he had been informed, and believed, and so stated, that the plaintiff claimed title to an undivided moiety of the lot by a purchase at sheriff’s sale, under an execution against the infant daughter and only heir at law of Edward O. Rhodes, deceased, from whom the said lot had descended: that the plaintiff, upon the death of the said Rhodes, administered upon his estate, and by improper management, in purchasing the personal property of his intestate at reduced prices, had caused an apparent exhaustion of personal assets to pay creditors: that in consequence of this pretended administration of the personal assets, the real estate descended to the infant heir had been subjected to execution: that the plaintiff promised the relatives of the infant that he would purchase this undivided half lot for her: that he averred at the sale, that he was purchasing for her: that in consequence of this avowal other persons *81refused to bid; and that the plaintiff thereupon effected the purchase at the price of one hundred dollars. And the' defendant insisted by reason of these matters, which he offered to prove, the said infant daughter of the plaintiff’s intestate, had a'good estate in equity to an undivided moiety of the said lot.

The plaintiff having obtained leave, then filed his amended bill, in which he admitted, that he administered on the estate of Edward Rhodes, but averred that, upon a full and fair administration of all the personal assets of the intestate, the same fell short of satisfying his debts: that it became therefore necessary to sell the real estate descended to the heir : that after a scire facias duly issued, the same had been ordered to be sold, and that at this sale the plaintiff purchased the undivided moiety of the lot in question, which had descended to the infant heir. The plaintiff admitted, that at this sale he stated to the sheriff, that if he could purchase the half lot so low as to make a profit of four hundred dollars, he would give the same to the. infant heir of his intestate and the plaintiff declared, that although this declaration was purely gratuitous on his part, and in no way binding, it was his purpose, should he succeed in enforcing the execution of this contract against Read, to let the ' said heir have the benefit "of the profit, by continuing to furnish her with board, clothing and education. . The plaintiff denied, that the defendant Read was entitled to an account of his administration of the assets of his intestate, but professed himself willing to come to such an account, if the Court thought proper to gratify the wish of said defendant; and for thp purpose of binding the rights of the infant heir of Edward Rhodes, (Ann Rebecca Rhodes) if any she had, which the plaintiff did not admiiy prayed the said infant might also be made a party defendant to-his bill of complaint.

To this amended bill the defendant Read answered, and denied that the purchase of the infant’s interest in the lot was made as charged by the plaintiff; and distinctly insisted, that at the time the lot was cried, the plaintiff announced to the bidders and the persons present, that he *82-was buying, not for himself, but for the intestate’s infant daughter: that thereupon the persons present desisted from bidding at the sale : that it was purchased by the plaintiff at a price far below its value; and that but for this declaration of the plaintiff, the same would have sold for a much larger price. The infant heir answered by her guardian ad litem, denying all knowledge of the allegations of the plaintiff; praying that he might be put to the proof thereof, and that her interests might be protected.

The plaintiff replied to the answers of the defendants, and the parties proceeded to proofs. Those were neither numerous nor complicated. It appeared, that some short time before the agreement entered into between the plaintiff and the defendant, Read, that Mr. Jesse H. Simmons, as the agent of Mrs. Rhodes, leased the lot to Read, for the year 1830, at the rent of one hundred dollars, and delivered to him the keys of the buildings thereon. The bargain for the purchase was made on the day before the year’s letting was to commence, and on the day of the bargain Read executed his note for five hundred dollars payable at ninety days, and negotiable at the bank. It did not appear what delayed the tender of the conveyance, but it did appear, that it was not made until about two months after the expiration of the time set forth in the agreement: that Read, because of the delay in making the the title, refused to take up the note in bank, rejected the tender of the deed, and claimed to be released from the contract of purchase. Jesse H. Simmons, who had made the lease, was also the subscribing witness to the agreement, and the depository thereof, and kept the same as the agent of both parties thereto. Being apprised by Read that he claimed to hold the lot under the lease and not under the contract of purchase, and that when the rent became due, he purposed to pay the same, Simmons wrote to the plaintiff and asked his advice what to do, to which he received the following answer.

“ Oxford, December 23rd, J 830.

“ Dear Sir,

“ I received yours by the last mail, and note its *83contents. If Doctor Read should' offer you the one hundred dollars, receive it; and if he will give you one hundred dollars rent for another year, I will cancel the contract with him. You may state this to him. I would never have refused to let the doctor off the contract, if he had desired me to do it as a matter of favour. It has been his purpose, (that I believe,) to be off, whether I would or not, hence I had come to the determination to force it; but the one hundred dollars he owes, with the rent of another year, at the same price, and the rent of the store, which I will get from the present occupant, will be better for me than a sale.”

The contents of this letter were communicated by Simmons to Read, who remarked, that if he had earlier known the plaintiff’s wishes, he would have rented the lot for the ensuing year at the proposed rent, but that he had then provided himself with another place, and declined, therefore, to take it. After this, and on the first of January, 1831, he paid the one hundred dollars to Simmons, and delivered up to him the possession of the lotj; and Simmons thereupon executed, as the agent of the plaintiff, a receipt inTull to the defendant for the year’s rent, and immediately thereafter wrote to the plaintiff, communicating the fact of the receipt of the rent, and stating that he was ready to pay over the same', after deducting the amount of an account which he had ■ against the plaintiff. To this he received no answer, and he had no further communication with the plaintiff, until after this bill was filed, when the plaintiff informed him of the suit, and declined receiving the money.

It was further in proof, by the testimony of William M. Deford, that before the sale of Ann Rebecca Rhodes’s undivided moiety of the lot in question, the plaintiff declared to him, his, the plaintiff’s,'purpose, to buy it for her benefit, and after the same informed him, that he, the plaintiff, had declared that purpose at the sale, and thereupon those who were bidding declined to bid further, and the property was struck off to the plaintiff.

The case was submitted without argument by Devereux, for the plaintiff, and S.H. Mangum, for the defendant Read.

*84Whether laches, on the part of the. vendor in performing; acts which he has stipulated for, will not bar his claim to a specific performance ? Qu.

Gaston, Judge.

Upon these pleadings and proofs three questions are presented. The first is, whether the plaintiff can demand a specific execution of the contract, inasmuch as he did not make or tender a title within the prescribed time. 2dly. Has the plaintiff waived his right to the specific execution of the contract? 3dly. Can the plaintiff now make such a title as the Court will compel the defendant, Read, to receive.

The first question opens an inquiry upon a subject where we find much less precision of doctrine than ought to prevail. Equity will in certain cases enforce the execution of an agreement, notwithstanding there has been delay in the performance of what was stipulated on the part of the plaintiff, if such delay has not been unreasonable ; if it has been attended with no practical inconvenience to the opposite party; and if the time were not made an essential part of the contract. The older cases have been far less strict in exacting attention to the time fixed on for the completion of a contract, than the more recent ones; and perhaps there is cause to regret that equity ever assumed the power of dispensing with the performance of any condition in a contract of this kind. No explanation has been given of the causes of the delay in this case, nor has it been alleged or shown that such delay produced serious inconvenience to the defendant. It was, very probably, important to him to be assured of the conveyance before his note became.due, in bank; and although the failure to make the title before the expiration of the sixty days, might have been of no moment, we should feel hesitation in deciding that the delay beyond the ninety days was immaterial. As the decision of the cause will not rest upon this point, we forbear from any further examination of it.

On the second point, we are of opinion, that the plaintiff has waived his right to compel the execution of this agreement. It was known to him, that the defendant, Read, had claimed to be “ off” from the contract, and to occupy as lessee for the year under the lease made by the plaintiff’s co-tenant. Having purchased in her right, he became the sole proprietor of the lot. If the contract were binding, *85the entire estate in equity passed to the defendant, and no rent was due. If the contract were broken off, then the whole rent became due to him. With a perfect knowledge of the facts, he writes to Simmons the letter which has been recited, and which, though not free from ambiguity, Simmons interpreted, and, as we think, rightfully interpreted, as authorising and directing him to receive the one hundred dollars, whether Read would or would not agree to rent the lot for another year.

On a bin perform!.512 anoe> the *86vendee will not be compelled to take a title founded on a decree against an infant, because the latter may show cause against it when of age.

*85“ If Doctor Read should offer .you the hundred dollars, receive it.” So far nothing can be plainer. It was known, that if offered, it would be as rent. If the bargain were relinquished, it would be due as rent, and it depended upon him, whether it should, or should not be relinquished. He goes on to add, indeed, “ and if he will give you one hundred dollars rent for another year, I will cancel the contract.” These expressions seem to indicate that he did not believe that the effect of receiving the rent would be to cancel the contract, but they in no manner qualify the instruction to Simmons to receive the rent, if it should be offered. Matters had arrived at that state, in which it was incumbent upon the plaintiff to act decisively in one or the other character, either as landlord or as vendor; and he cannot be permitted, consistently with the rights of the other party, to act as landlord, with a reservation to himself of the privilege of thereafter claiming not to have been landlord, but vendor. Should the construction put upon this letter be not entirely free from doubt, it is the misfortune or the fault of the plaintiff, who, at such a time, ought to have distinctly declared his purpose. The payment of rent to Simmons, must be regarded as a payment then made to the plaintiff, and the more especially, as the plaintiff after being informed of the payment of the rent, the abandonment of the possession by Read, and the taking of possession by Simmons, did not for more than one year thereafter, express any dissatisfaction at what had taken place.

We jare also of opinion, with the defendant, Read, upon the third point. It is clear, that the Court will not compel the purchaser of an entire tract or lot of ground, to take an *86undivided part of the estate contracted for. It is also clear, that if after the contract of sale, it be discovered that the vendor cannot make a good title to the thing sold, or that his title thereto be doubtful, the Court will not enforce the specific execution against the purchaser. See cases cited Sugden on Vendors, 5th ed. 243. The objection which has been set up against the plaintiff’s title to an undivided moiety of the lot upon the proofs now submitted, is a serious one. We cannot decree for the plaintiff upon these proofs that the infant defendant has no estate in that moiety. If such a decree were made, the infant must have a day to show cause against it after arrival at full age. We cannot now decree that the purchaser instead of a complete title, shall receive an imperfect one, and an indemnity against the title of the infant defendant. We cannot decree that a part of the purchase money, in consequence of the consent of the plaintiff, shall be secured to the infant in lieu and satisfaction of her interest in the land. As, to say the least, we doubt of the ability of the plaintiff to make a complete title., we shall, on this ground, also refuse the relief which has been prayed for.

The bill must be dismissed, and with costs.

Per Curiam. . Bill dismissed.