#### ANDREW FALLS et al. v. FREDERIC CARPENTER, THEODORIC F. BIRCHETT et al. THEODORIC F. BIRCHETT et al. v. ANDREW FALLS et al. FREDERIC CARPENTER’S HEIRS v. ANDREW FALLS, THEODORIC F. BIRCHETT et al.

December, 1835.

Where a vendee contracted for the purchase of land, and took possession, but neglected to pay the purchase-money for nine months after it fell due, during all which time the vendor held the bonds for the purchase-money, and did not offer to surrender them, hut recognized the contract as still subsisting, it was held, that having allowed the contract to subsist after the default, the vendor could not put an end to it, without a previous formal and reasonable notice to the purchaser to come forward and fulfil it, or he would not hold himself bound. And it was held, further, that upon such purchaser’s paying the money, he could demand a specific performance from the vendor; or call for the legal title from a person who had purchased with full notice of the contract.

If a vendor, after a default by the vendee, is still willing to complete the contract, and a third person interposes, and by misrepresenting the willingness of the vendee to fulfil the contract on his part, procures a conveyance to himself, it seems, that the first vendee will have an equity against the second, independent of any he might have against the common vendor. Insolvency, whether existing at the time of the contract, or occurring subsequently, does not of itself, but if continuing so as to disable the purchaser from fulfilling his part of it, may authorize the other party, after request and default, to renounce it, and after reasonable notice may discharge him; or it may be evidence, with other thingb, of abandonment by the purchaser, but in that case liable to be repelled by other evidence.

The increase of value, is not such a change in the subject-matter of a contract, as is, of itself, a ground for rescinding or not enforcing articles. But ifone of the parties refuse to perform, and then comes a change of circumstances, upon the strength of which he is desirous to go on with the bargain, and insists on it, he may be properly repelled, although he was watching for that change.

A defendant, against whom the plaintiff must have a decree, if he gets one at all, cannot, by giving a release of his interest to his co-defendants pendente lite, become a competent witness for them.’ His liability for the costs, if nothing else, would exclude him.

The original plaintiff, Falls, purchased in February 1823, from the defendant, Frederick Carpenter, the elder, two adjoining tracts of land in the pleadings described, and executed his bonds for the purchase-money, and took a covenant for a conveyance upon the payment of the price. He took possession, but failed to make the payments; and *238there was on the 6th day of November, 1826, the sum of eighty-three dollars, forty-three and three quarter cents due for interest in arrear. He then applied to Carpenter to modify the contract by giving further time, and by agreeing to accept payment in grain or country produce, in lieu of money, if he should be unable to raise the money; to which the other acceded. On this day accordingly, that covenant and the bonds were destroyed; and Falls gave three new bonds — two for three hundred and seventy-five dollars each, payable at one and two years with interest from the date, for the purchase-money; and the third, for the balance of interest, eighty-three dollars forty-three and three quarter cents, due on the old contract; .which last instrument provided, that it might be paid in grain at specified prices, and' that any excess of the grain delivered, after discharging that bond, should be applied to the other two. At the same time, Carpenter entered into a bond, in the penalty of fifteen hundred dollars to Falls, with condition to be void if Carpenter should “ at the payment of the two notes for three hundred and seventy-five dollars each, with the interest thereon, convey to said Falls, the said two tracts of land,” in fee simple, with general .warranty as to one, and special warranty as to the other.

The original bill, filed the Ilth September, 1829, by Falls, charged the contract of November, 1826, and that he was in possession under it, and made payments which satisfied the small bond, and left the sum of one hundred and thirty-one dollars, besides interest, applicable to one of the bonds for three hundred and seventy-five dollars ; and that in August, 1829, while the contract was in full force, a valuable gold mine was discovered on the land, which he and other persons under him began to work: that the defendants, Birchett and Ormond were on the land, and saw the plaintiff and his tenants collecting gold, and knew that he had purchased the land, and then claimed it, and was in actual possession; • and that with knowledge of these facts, they, on the 22d August, 1829, without informing Falls of their purpose, went to Carpenter (whoresided seventeen or eighteen miles off), and proposed to purchase the same lands- for themselves: that Carpenter refused to *239sell to them, unless with Falls’ consent, or unless he could get up his bond to Falls; upon which .they represented to him, that the bond was not obligatory, because the purchase-money had not been punctually paid; and also, that Falls was yet unable to pay it, and wished to rescind his contract; and pretended that they wished to purchase that the one might build a mill, and the other set up a store, which he wished to do immediately, as his goods were already purchased: that Carpenter did not wish to keep the land himself, but to sell it; and believing those false representations, agreed to sell to themat the price of seven hundred and fifty dollars, which was immediately executed by their giving their bonds for that sum, and taking a deed from Carpenter in fee: that during the treaty, they concealed from Carpenter the fact, that gold had been found on the land, and in answer to an inquiry by him on that point, denied it. The bill further charged, that Birchett and Ormond entered into a part of the land, and collected some gold, of which an account was prayed, and threatened to bring an action of ejectment, or otherwise expel Falls from the land which he had under cultivation, or was working for gold. It also charged, that between the 22d August and the filing of the bill, the plaintiff had come to a settlement with Carpenter, and ascertained the balance due on his bonds, and that he had fully paid the same, and taken up the bonds. The prayer was, for a conveyance by Carpenter, Birchett and Ormond, or those of them in whom the legal title was; and for an injunction and general relief. - ,

Carpenter died intestate, after service of the bill, and before answer; and by a bill of revivor, and supplemental and amended bill, the suit was revived against his administrators, widow and heirs. And it was further charged, that tlm defendants Birchett and Ormond, had sold and conveyed shares of the land to certain other persons, who had notice of the plaintiff’s rights, and were made defendants ; and that Falls, before the filing of the original bill, had also assigned undivided shares to certain persons who were made plaintiffs with him.

The administrators were P. Manney and Frederick *240Carpenter, the younger, who was a son and one of the heirs F. Carpenter, deceased. They answered, and admitted the contract of Nov. 1826; the póssession of Falls under it; the payment of grain to the quantity and value charged in the bill; the sale and conveyance to Ormond and Birchett, and the subsequent payment by Falte of the balance due on his bonds, all as charged in the billthat thereupon the intestate informed Falls, that Birchett and Ormond had obtained a conveyance from him by inducing him to believe that Falls was unable to pay for the land, and that the contract with him was void; and offered then to make Falls a deed, which Falls declined accepting, unless" that to Birchett and Ormond were first surrendered and cancelled : that the intestate then sent the bond of Birchett and Ormond to them, by one Adderholt as his agent, with instructions to tender it to them and demand the deed, which was done, but they refused. These defendants then submitted to any decree between the other parties, and to repay the plaintiff his money, or to surrender to Birchett and Ormond their bond, as the Court might decree the land to belong to the one or to the other.

By an amended answer, the administrators said, that they had no personal knowledge of the transaction; and had before answered upon information, which they have since discovered to be untrue, and to have been imposed on them by the plaintiff and those interested with him: and they and the other heirs, and the widow of Carpenter, then stated the contract of February, 1823, and that of November, 1826; and that although some grain was delivered, they did not know how much, and believed not more than discharged the note for eighty-three dollars forty-three and three quarter cents, or certainly that and the interest on the other bonds — so that the whole principal purchase money remained due in November, 1828, when the last bond became payable; and that no payment was made thereafter, until the last of August, 1829, when Carpenter had sold to Birchett and Ormond. They stated, that through the winter of 1828, and in the spring of 1829, Carpenter applied to Falls for payments, and insisted on them; and that Falls was unable, or alleged that he was *241 unable, to malte any, and proposed to Carpenter to rescind the contract; which was then agreed to by Carpenter, and the contract considered to He rescinded: that it was thereupon understood between these parties, that Carpenter should make sale of the land for his own benefit, but that he should keep the notes of Falls,' a'nd the latter keep possession of the land until a new sale; and when such should take place, that a settlement should be made, and the notes and possession mutually surrendered: that, accordingly, Carpenter -made several efforts, with the knowledge of Falls, to sell, and could not, until August; 1829: that on the 22d of that month, Birchett and Ormond, and one Robert Dixon, having ascertained that a very valuable gold mine (which has since turned out to be worth, probably, one million of dollars,) hád been just before discovered on the land, formed the design to purchase it on speculation, and applied to him for that purpose: that Carpenter wished time to consider of it; and that he was an old, weak and intemperate man, at no time well able to attend to business, and then sick imbed: that they represented to him that they were anxious to get the land for the, purpose of building a mill and a store; and-if they could not get it immediately, they would not purchase at all; and both concealed and denied that gold had been found on the'place: that thereupon, Carpenter contracted with them, and conveyed the land to Birchett and Ormond, as charged in the bill: that he was induced to make the contract by the urgency bf those persons, in the belief that they really wanted the land for the purposes mentioned by them, and that they hurried him into the completion of it then, before a rumour of the existence of the gold mine could reach his ears, or he might-have any other reason to suspect their motives. ’

The answer then stated, that a few-days thereafter, Falls and the plaihtiff Wilson, (who, with others had formed an association to get a -title and work the mines,) offered to pay. off the notes of Falls, and demanded a deed : that he was confounded at discovering the fraud that had been practised on him by Birchett and Ormond, and also at the demand of Falls and Wilson; and disclóséd to the latter his true situation and embarrasment,' and asked Wilson’s *242advice what he should do: that they insisted on Falls’s claim, and repeated the tender of the money, and advised .him to take it, as that could not make the matter worse for him; and that intimidated By their menaces, and at their suggestion, Carpenter appointed Adderholt,, his agent, to take advice and act for him, who attempted to get the contract with Birchett and Ormond rescinded, but failed ; and thereupon received from Falls and Wilson in cash, a part of the sum due on Falls’s bonds, and took the bond of Wilson for what they admitted to be. the residue; but that Carpenter refused to accept from-Adderholt', either the money or Wilson’s bond, or to. make a deed to Falls; and overwhelmed with the perplexities of his condition, soon after died', before he could answer the bill. '

The'defendants, Birchett, Ormond and Dixon, answered, and admitted the purchase and conveyance from Carpenter, for' which they, gave, their bonds for seven hundred and fifty dollars. They stated, that two or. three days before, they had seen persons digging and washing for gold' on a piece of land, which they were informed and believed was vacant; that Dixon, who lived on-an adjoining tract, so-believed ; that it was, on the 22nd of .August, 1829, agreed between the three, that they would enter the land they supposed vacant; and as they expected the. vein of ore to run also into the Carpenter land, the line ofwhich, as they believed, ran Very near the ■ spot at which the gold was found; it was further agreed by them to buy that land also: that Dixon went to the entry-takers, to make an entry, in his own name, on the joint account; and Birchett and Ormond proceeded to Carpenter’s, to make the purchase from him,- and did so, taking the deed in their names, also on the joint account. They stated that they knew Falls had agreed for the land, but had understood and believed that he was unable to pay for it, and had before abandoned it; which belief was founded upon the facts, that Falls was notoriously an imprudent and insolvent man; that Carpenter had repeatedly offered the land for sale to Ormond and others, from the autumn of 1828, up to that time, declaring that he was absolved from the contract with Falls, by his non-compliance, and that, although this *243was generally known, they never had' heard that Falls forbade Carpenter to sell: that they did not use any suasion to induce Carpenter to sell to'them; that they considered him to be the absolute owner, and knew that he was desirous to sell, to raise money; and that, as soon as they made known their wish, Carpenter agreed to make the sale ': that the remarks about Falls’s claim came from Carpenter, who mentioned that he had a long time before agreed to sell to Falls, but he was no longer bound, and “ his bond was dead,” because Falls had made no payment, and never would be able; and because he, Carpenter, had sent to him tjie spring before, to come,and settle with him, as he was about to sell the land to other persons, and Falls neither paid any thing, nor came to see him: they admitted that Birchett and Ormond did not mention to Carpenter that gold had been found, and said, that the reason was, that they were not then certain that it was on.bis land, although they expected that if would extend into it: they denied that they made any false representations touching the gold; and stated that Carpenter made no inquiries, but voluntarily said, during the treaty, that he hoped they might find gold in abundance: that Dixon also came to Carpenter’s in the evening, when they were writing the deed, and upon being' informed by Carpenter of the contract, remarked to him “ that he had better take care what he was about — perhaps there’s gold on your landto which the other replied, “ that he wished they might find the best mine in the country — he did not want gold mines, as he was too old to work them, and wahted nothing but the value of his land, or the money for his land.” The answers then stated, that these defendants entered into the lands immediately, and began to work the mines, but were in a few days, evicted under colour of a summary process, for a forcible entry and detainer, by means of which, Falls, Wilson, and the other plaintiffs, got info exclusive possession : and, further, that on the 4th of September, 1829, the defendant Ormond, had sold and conveyed to the other defendant, Dixon, his third; and that Birchett and Dixon had since associated with themselves the other persons named, who were made defendants by the supplemental *244bill j who also put in answers, in which nothing material was set forth.

By a subsequent answer, Robert Dixon disclaimed, and the defendants, Birchett and Co., exhibited a deed from him to themselves, dated the 3rd day of May, 1832, with special warranty for all his share and interest.

Birchett and Ormond instituted an action of ejectment against Falls and others, to recover the possession which was thus lost by them; and the trial of the same being delayed, Birchett and the assignees, in May, 1832, filed their cross-bill against Falls and his partners, in which they charged the two contracts between Falls and Carpenter ; and that the latter was merely an extension of the time, by reason of his inability to pay the purchase money, and sought a discovery as to that fact, and as to the particulars of those contracts. The bill also charged, that Birchett and Ormond had heard various reports, which were in common circulation, that Falls had wholly failed to comply with his contract, and had abandoned it; and that they then became desirous of purchasing from Carpenter, as was generally known, and particularly by Falls: that on the 22nd of August; 1829, or the day before, Birchett and Falls were on the land together; and that the latter, then knowing of the intention of the former to purchase, made no sort of objection thereto, but expressed his satisfaction therewith: that, in fact, Falls had told Carpenter that he could not pay for the land, and directed him to sell to any other person who could pay for it, to whom, he, Falls, would surrender all claim ; and that Carpenter so declared to them, Birchett and Ormond, at the time that he sold to them. The bill further charged, that no person was in actual possession of any portion of the land, but one Arrowood^ who attorned to the plaintiffs; and that they entered into the peaceable possession, and continued it for a few days, until turned out in the manner stated in their former answer; and that Falls and the other defendants, got into possession, and were making great profits, and committing irreparable waste. The prayer was for a discovery of all the matters charged; for an account of the *245gold already made; and for an injunction against further waste or working.

All the defendants put in answers, but that of Falls was the only material one in the present state of the case, and none of the others were contradictory of it. That admitted the two contracts of 1823 and 1826, and that the last was substituted for the former at his instance, because it was more convenient to pay in grain than money.- He denied that he was unable to pay for the land, and said he could always have done .so, if. pressed, but that Carpenter promised not to press him. That in the winter of 1826-7, he paid two hundred bushels of corn, and in 1828, more corn and rye, arftounting altogether to two hundred and forty dollars; and in the spring, of 1829, Carpenter applied to him for twenty-five dollars, which he had not by him, and he requested Carpenter to borrow,, and he would take' up his note; and that he did pay Carpenter’s note to John Falls for about twenty-six dollars', which was satisfactory to Carpenter. The answer denied positively any, agreement with Carpenter to rescind the contract of any abandonment, or any act or omission from which it could be inferred, or that he ever agreed that Carpenter' should sell to any other person; and, on. the contrary, stated that he was- in actual possession of the land, claiming it under his purchase,' cultivating and improving it, and digging for gold, both h'é, and his hirelings and tenants; and that Arro- . wood was 'one of his tenants, and had continued to work under him ever since. That it is true, that on the 21st of August, 1829, both Birchett and Ormond, (the former .of whom was a stranger to this defendant,) -were on the premises, and saw Falls and his hands collecting ore, and became fully aware of its richness, and the great probable value of the miné'; and, no doubt, formed the design then of purchasing from Carpenter, and .may. have thought they would hold the land, if thfey could, get-his deed, notwithstanding the contract with Falls; ¡is they, after getting the deed, insisted on it as-a good title,, because .it was. the first, and a warranty deed, and said that Carpenter and Falls ■ might settle the dispute upon their contract betwéen themselves. But the answer denied positively that this defendant *246assented to, or had the least knowledge of their intention to purchase, or even suspected it, until he heard in the evening of the next day, the 22d, that they had gone to Carpenter’s for that purpose. The answer stated, that both Birchett and Ormond conversed with this defendant, and neither of them intimated such an intention; but, that on the contrary Birchett applied to him for a lease; and denied that he subsequently expressed his satisfaction at their purchase, but so far from it, that upon hearing that such was their business, he set off early on Sunday morning, the 23d of August, to Carpenter’s, to put him on his guard, and prevent him from making a contract: that upon getting there, he heard for the first time, that they had obtained a deed ; and was also told by Carpenter of the misrepresentations (as charged in Falls’s original bill,) made to him by those persons, as to gold being on the land, and also that this defendant was willing to give up his contract, and would have come with them, and brought up the bond, had he not been confined at home by sickness; and that, upon Carpenter’s expressing a desire to postpone a contract, until he could consult this defendant, who was, as he considered, entitled, Birchett and Ormond assured him, that he, Falls, had agreed with them to give up the land, and all claim on Carpenter for his improvements; all which representations the answer affirmed to have been false. The answer then stated, that, upon hearing the truth from this defendant, Carpenter declared that he had been imposed upon, and that he would never receive the money from Birchett and Ormond ; and in a few days sent their bonds to them by his agent Adderholt, and demanded his deed : that he, Falls, returned to the land, and went the next day to work the mine, when he was prevented by Dixon, who claimed it under Carpenter’s deed ; and that thereupon he associated himself with Wilson, and the other defendants as a co-partnership, to receive the title and work the mines: that on the last day of August, Falls and Wilson offered to settle with and pay. Carpenter, who expressed a perfect conviction that he had been imposed on respecting Falls’s giving up or abandoning the contract, and a readiness on his part to comply with it; but desired *247time to send to Birchett and Ormond for his deed, which he wished to get up; and that on their refusal, he said that he would accept the payment from Falls, and did so, as stated in the bill, on the 2d of September, 1829; it being then understood, that Falls, Wilson and others would file a bill against Carpenter; Birchett and Ormond, to have their deed surrendered, or' obtain a conveyance. The answer then asserted that Falls was never out. of possession of the land; but admitted that Ormond, Birchett and Dixon were in possession of a part of the gold mine for a few days, until they were evicted as alleged in the bill. ■The answer then set forth a statement of the number of hands engaged in the service of the defendants in working the mines, the gold collected, and the mode of working it.

At Fall term, 1832, the heirs of Carpenter also filed their cross-hill against Falls, and those claiming with him, and against Birchett, and those claiming with him, to rescind the contract with Falls, and also for a reconveyance from Birchett and Ormónd and others; upon the ground, as to the first, that it'had been abandoned, by Falls not making the payments stipulated, and by reason of his insolvency, being unable to make them, except from the great and sudden increase in the value of the land; and that it had been rescinded by express verbal agreement ; and that Carpenter had been surprised into receiving the payment on the 2d of September, 1829, he being incapable of business from age, infirmity, ignorance and weakness; and that at, any rate, as he had not made a deed to Falls, he ought not to be held obliged to do so, since the value of the lands had accidentally 'increased so immensely : and as to the latter, for the causes of fraudulent concealment and misrepresentations, and, hurrying into the bargain and conveyance before set- forth in the bill of Falls and others, and in' the. answers of the Carpenters thereto.

To this bill, Falls put in'an answer substantially the same with that to the cross-bill filed by Birchett and others against him, adding, that when he went to Carpenter’s in August, 1829, he carried and showed to him one of the best specimens of ore found in the mine, and made a full *248disclosure of its extent and richness, as far as then discovered; and that Carpenter was dissatisfied only with Birchett and Ormond for their deception practised on him, but was perfectly satisfied with his conduct, and expressed his willingness to make him the title as far as he could ; and that he received the payment on the-2d of September, without the least influence or menace from any person; and voluntarily, because he thought it right that the deed to Birchett and Ormond should be cancelled, and a conveyance made to Falls, and that he was then in the full enjoyment of his faculties: that the value of the mines was greatly over-rated, for that shares of one-tenth part sold several months afterwards at three hundred dollars, and it was a subsequent discovery that enhanced the. value to a large but uncertain amount: that when his bonds fell due, he owned unincumbered land in the county, besides that purchased of Carpenter, worth two thousand dollars, which was known to Carpenter, who neither wished to rescind the contract, nor abandoned it, nor would have let Falls do so.

Birchett and Ormond also answered this bill to the same effect with their answer to the original bill of Falls and others; admitting further, that their principal object in buying the land was the prospect of gold, and that the spot where the gold was then found (which they then thought was vacant,) was included within the lines of the Carpenter land, which had been sold to him by the party, Robert Dixon; and stating also that that vein turned out to be of little value, but that several months afterwards another of great value was discovered in another part of the land: that Carpenter expressly declared that he and Falls had rescinded their agreement; and that he readily contracted with them, and sent for Adderholt, his friend and neigh-bour, and ordinary adviser’, to draw the writings, who came and did so; and that before he executed them, Dixon arrived and informed him that there was probably gold, to which he replied, “ he did not care, and hoped there might be; that if there was he did not want it, but wanted money to pay his debts, and put his mind at restthat he was *249perfectly competent to business, and had the assistance of his confidential adviser, Adderholt.

To the answers in each of the causes, replications were entered, and a large mass of testimony taken by all the parties.' The most important, were the depositions of Adderholt, the person mentioned in the pleadings, which were taken several times by the parties respectively.

That witness stated, that he was the friend and near neighbour of Carpenter, with whom he generally advised upon matters of business, and on whom he called to do his writing: that he drew the contracts between Carpenter and Falls; and that he knew that Falls paid corn and rye in 1827 and 1828, though he could not state the precise amount of his own knowledge; and that he also paid a note of Carpenter’s to John Falls for twenty-six dollars: that it was agreed the small bond should be first paid, and any surplus should be applied to those given upon the last bargain for the price of the land. He further stated, that on the 22d of August, 1829, Ormond came to his house, and stated that he and Birchett had bargained for the land, and that Carpenter had sent for him to draw the bonds and deeds; that he went, and on the way asked Ormond if Falls was there, and he said not: that he then asked if they had the bond to Falls, to which he also replied, no, and that they had been to see him, but that he was intoxicated continually. The witness then remarked to him, that Falls or the bond ought to be there; and Ormond stated that Birchett was with him the day before, but that he was so stupidly drunk they could do nothing with him. The witness asked if they had found gold on the land, and Ormond said, not as he knew; and that he and Birchett wanted to set up a mill and store on the land. Upon their arrival at Carpenter’s, the terms of the bargain seemed to have been settled; but Carpenter asked him what he thought of the trade; and upon his saying, that he thought Falls or the bond ought to be there, Carpenter observed that he thought so too. Birchett or Ormond then said, there was no danger; for as Falls had not paid his bonds, Carpenter’s bond was void. When •the deeds were drawn, Carpenter hesitated to sign them, *250and said he did not like to do so without Falls or the bond; when Dixon, who had then arrived, said that the bond, was void and there was no danger. It was understood by all parties, that Falls was then in possession ; and the witness then heard of no other person who was. After Dixon’s remark, Carpenter executed the deeds ; and in a little time Birchett or Ormond asked how they were to get possession, to which Carpenter replied, “ You must see to that yourselves.” Both Birchett and Ormond denied at that time that they knew of any gold on the land; and on that occasion, Carpenter said he had no persons to work gold mines, and did not care for them, but he wished they might find one; that what he wanted was his money for the land which, he believed, he could never get Falls to pay him; and Birchett or Ormond then said, there was no doubt Falls would give up the land and come to a settlement. The witness stated that Carpenter was a weak man, and not very competent to business from age and intemperance; and was not entirely sober on that day ; and upon being asked why, as his friend, he did not postpone the business until the next day, he replied, that he had great confidence in Ormond’s integrity, and thought every tiling fair; and he himself became their surety in the bonds to Carpenter for the purchase-money. The witness further stated, that he had considered Carpenter’s “ bond dead,” because Falls had not paid; and that he had several times told Carpenter so, but always advised him not to sell to any other person before he took it in: that this opinion was founded on the belief that the bond provided on its face that if Falls did not pay his bond when due, Carpenter should be discharged; but that upon seeing the bond, he found that he was mistaken. Two or three days afterwards, Falls and Wilson came down to pay Carpenter, who again sent for the witness to make a settlement for him. Carpenter complained of being deceived by Birchett and Ormond, and was unwilling to receive the money from Falls until he could get up his deed. They however, made a statement of the payments before made; which discharged the small bond and a hundred and thirty-one dollars of the purchase money, besides nine or ten *251dollars allowed as interest for the payments in advance. Carpenter asked Falls to wait until he could send to Birchett and Ormond, which was acceded to; and the witness went with their bond, and requested them to give up the deeds, as Carpenter alleged that he had been imposed on, and wished to have no difficulty with Falls and Wilson. Ormond was then willing to' surrender the the deed, but Birchett and Dixon refused. That he returned, and on the 2d September the settlement with Falls was completed, and Wilson paid six hundred and thirty-five dollars and sixty-two and a half cents in cash, and offered to pay the residue, but Carpenter requested him to keep it, and give his bond, as he wished to keep that at interest. Carpenter delivered the money to the witness for safe keeping; but in a few days took two hundred dollars; and afterwards lent the witness on his bond three hundred dollars more; and the residue the witness paid to the administrators after his death. The witness stated, that when he went to get the deed from Birchett and Ormond, the latter admitted that the conversations with Carpenter, before Adderholt was sent for, “ were or might be sufficient” to make him think they would have brought Falls or the bond, if he had not been too drunk; and Ormond afterwards acknowledged, that they, told Carpenter that they, Birchett and Ormond, would run all risks about the bond to Falls. Birchett also admitted to him, that before he bargained with Carpenter he had tried to get a lease from Falls, and could not; but Dixon said it was not from Falls, but from one Crane who then had a lease from Falls.

It clearly appeared upon other proofs that Falls had been in possession from 1823 up to August, 1829; and that he or his tenants lived on the land, and had parts of it in cultivation ; and, particularly, that some weeks before Birchett and Ormond’s purchase, he had applied to R. M. Crane (a witness for Birchett and Ormond) to borrow five hundred dollars to pay to Carpenter; saying then, that he had paid about one hundred dollars towards the land, and if he could raise five hundred dollars more Carpenter would wait with him; and to induce Crane to make the *252loan, he offered to lease to him the land in dispute, and to mortgage other land, worth twelve hundred dollars, and also this as a security, and did make a lease of part of the land to Crane; and also that on the 18th of August, 1829, he leased four acres to Riley Ai'rowood, to be worked for gold; on which the lessee proceeded to work, and the ore was found which Birchett and Ormond saw.

Thomas Dixon, a son of Robert Dixon, who wTas a party, stated, that he heard Falls say, in- the Spring of 1829, that “ he expected to give back the Carpenter land and also heard F. Carpenter, Jr. say, that in the Spring of 1829, “ his father had sent him to Falls to see if he would pay or give up the land, and that he got no money but he did not state that Falls agreed to relinquish the land.

Hugh Patterson stated, that in the Spring of 1829, F. Carpenter, Jr. brought a message to Falls, and witness saw them conversing, but did not hear the particulars; and that next morning Falls said, that “ he must go up in a few days and settle with Mr. Carpenterbut whether he meant to settle for the corn or pay for the land, the witness could not state. A few days afterwards, Falls was very drunk, and was complaining of Dixon having gained an expensive law suit for land against his father, and said that he must give up the Carpenter land, and try Dixon himself.

Jacob Starnes stated, that several days before Birchett and Ormond purchased, Falls had made leases to Arro-wood and others, and they proceeded immediately to work, and that those leases were publicly known: that on the day Birchett and Ormond purchased, Falls mentioned to the witness that “ they had gone to purchase the land and gold mine in dispute.”

John Hullett stated, that in the fall of 1828, as he thought, though it might be in 1827, Falls delivered one load of corn to Carpenter, when the latter remarked, “ You have come nearer paying the interest than I thought you hadand the balance of interest was then stated to be between five and ten dollars: Falls said it was less than he had expected, but that he should never be able to pay *253for the land, and that Carpenter must sell it if he could, and pay himself: that no person was present but the witness and Carpenter and Falls; and this was the only payment he knew of.

Two other witnesses proved, that in October, 1828, F. Carpenter, Sen. offered to sell the land to Ormond, and said that Falls would not even pay the interest; and that in the spring of 1829, Carpenter again sent word to Ormond to come and buy the land, as he could get nothing from Falls; and F. Carpenter, the son, said that Falls would give up, and had told him to sell the land. Falls was not present at, nor informed of,, either of those conversations.

To the discredit of John Hullett, many witnesses were examined, who said that he wras not credible; and other witnesses proved that the last payment was not made by Andrew Falls, the party, but by-John Falls, who delivered four loads of corn in 1828, while Andrew was in South Carolina; and that the delivery of the corn by Andrew himself was in 1827.

Benjamin S. Johnston stated; that a short time after the sale to Birchett and Ormond, Carpenter informed him that when they proposed to purchase, they stated to him that Falls had consented that they should, as they intended to establish a mill and store which would be convenient to him, residing on his own land, which adjoined; and that he, Carpenter, told them, that he did not think it right to sell to any person after having agreed to convey to Falls; but that upon receiving the assurance before-mentioned, and believing Ormond to be a very honest man, he thought he might do so; and that he would not have conveyed to Birchett and Ormond if he had not .believed it was approved by Falls.

Richard M‘Kee, a nephew of Carpenter, stated that two or three weeks before Carpenter died, and when he was ‘‘fully at himself,” he stated to the witness, that he told Birchett and Ormond that he had sold to Falls, who held his bond ; and that Ormond replied, they had seen Falls, and he did not want the land, and had told them to go and purchase : that he, Carpenter, would still do nothing until *254Adderholt was sent for, who said, w’hen he came, he thought the bond for title was out of date: that putting confidence in Ormond, and thinking the bond void, he made them a deed ; but that he soon learnt from Falls that he had not given his consent to Birchett and Ormond, and therefore he received payment from him, and was willing to make the title to him.

Robert Dixon was, after his release and disclaimer, examined by Birchett and his associates, under an order, subject to all just exceptions. He stated that those persons did not know that the gold found was on the Carpenter land, but they believed it extended to it; and that he told Carpenter, before he signed the deed,, that he, the witness, expected there was gold on the land, as some had been found on the piece he had that day entered, on the branch just below. He also stated that, in the winter before, at which time gold had not been found, Falls told him that he could not pay for the Carpenter land without selling a tract devised to him by his father; and that he would rather give it up than to sell his father’s old place. In a few weeks afterwards, Carpenter told him that Falls had given him up the land, to make his own out of it; and desired him to let Ormond know it, and request him to come up and buy. Upon being asked whether Falls did not tell him that he had actually given up the land, the witness replied that he did not, but only that he would have to do so.

There was also much testimony as to Falls’s circumstances; in which the witnesses expressed opinions somewhat at variance. Upon the whole of it there was no doubt of his solvency. When he made the contract, he had but little property, and was a young man living with his father, who was a farmer in easy circumstances; and Falls could himself get credit, from the general confidence in his honesty. He added somewhat to his property, and contracted debts; and in the early part of the year, 1828 his father died and left him lands and a slave, worth about two thousand dollars, but somewhat encumbered ; so that Falls’s clear estate, after discharging his father’s debts, and his own, (exclusive of the lands then in dispute, and *255the price to be paid for them,) was, in 1828 and 1829, of the value probably of twelve or fifteen hundred dollars.

These cases were brought on, and argued together at very great length, by Badger, for Falls and others; Thompson (of South Carolina), Deoereux and Iredell for Birchett and others; and by Pearson and Winston for Carpenter’s heirs. We can give-only a sketch of the arguments for the different parties.

Badger, for Falls and others.

If, when Birchett and Ormond made their purchase, Falls had a subsisting contract of purchase with Carpenter, he has a right to a decree for specific performance; and it is sufficient to show that Carpenter must make a title, though Birchett and Ormond had no notice. ■ Carpenter has received no money, but only securities for Birchett and Ormond’s purchase, which may be surrendered. If they had paid, it is confessed that they had notice; but if not, there can be no objection to the relief sought. Falls having had an equitable right against Carpenter, how has it been lost? Several modes have been alleged in the bill of Birchett and others. The first is, that by his delay, Falls has lost his right to call for a specific performance, and must be left to his remedy at law; in other words, that he cannot call for a specific performance, unless he can show that he has been prompt in the performance of his stipulations; and that otherwise, he will be barred, by lapse of time. There are said to be two classes of cases for specific, performance; 1st, where time is of. the essence of the contract; and 2nd!y, where it is not. The non-performance of the contract does not make it absolutely void, but only voidable by the party, with whom it was made. At law, when one party has failed, he cannot support an action; but it is otherwise in a court of equity. The party who is to receive performance may give notice that he insists upon it, and then the court will consider the time as of the essence; but if he does any thing recognising the contract, that will prevent him from resisting a specific execution. Sug. on Vend. 288. Time is particularly attended to, in the sales of reversions — where the purchaser waits until a change of circumstances,— and where the vendor insists upon avoiding the purchase *256on account of the delay on the part of the purchaser. Green v. Wood, 2 Vern. 632; 5 Yin. Abr. 538, pi. 18. Spurrier v. Hancock, 4 Yes. jun. 667. Pope v. Simpson, 5 Yes. jun. 145. Coward v. Odingsale, 2 Eq. Ca. Ab. 668, pi. 5. Maine v. Melbourne, 4 Ves. jun. 720. In looking into these cases, it appears that the court will not execute an agreement for one who has shown a backwardness to perform his part, particularly when the circumstances are altered. In reversions, time is an essential part of the contract, but no case can be shown, where, upon the sale of land, the purchaser has taken possession and given satisfactory securities, he can be refused a specific execution, on account of his delay only. The vendor may, indeed, ask a performance, and, upon a neglect, treat it as a nullity. But if time is of the essence of the contract, the delay has been waived in the present case by the vendor. Pinche v. Cuidéis, 4 Bro. Ch. Rep. 328. Lloyd v. Collet, 4 Bro. Ch. Rep. 468. Hoggart v. Scott, 5 Eng. Con. Ch. Rep. 504. Seton v. Slade, 7 Yes. jun. 267. In this last case, the Lord Chancellor considers time as not of the essence of the contract., but that if it were, the act of a party might dispense with it. Hudson v. Barton, 3 Mad. Ch. Rep. 440, or 227 of the American edition. Time may be of the essence of the contract, but lapse of time may be waived, if, after the expiration of the time, the contract is recognised. Where time is made by the parties, or from the nature of the subject is, of the essence of the contract, a party after the time must not treat it as valid. Carpenter could not, under the circumstances, have objected to Falls’s claim to a specific execution. To have enabled him to do so, he ought to have sent, back the notes, demanded the bond to make title, and insisted that the. contract was at an end. If he intended to avail himself of the non-payment, he ought to have given notice, and proposed to restore all things to their former condition ; and distinct and unequivocal notice should have been given that he considered the contract at an end. But up to the time of the sale to Birehett and Ormond, Carpenter considered the contract as still subsisting. ^ Birehett and Ormond made false representation.? to Carpenter, that Falls was *257■willing to give up the contract; and upon this, Carpenter consented to sell to them. Upon whatever grounds Carpenter had a right to put an end to the contract wdth Falls, if he did not do so, and Birchett and Ormond took a conveyance from him, knowing of Falls’s rights, they are bound by any thing which had taken place, or might thereafter take place between Falls and Carpenter. And Carpenter had a right to demand his deed from Birchett and Ormond, in order that he might clear the equitable title conveyed to Falls.

In this ease, time was not of the essence of the contract, and even if it were, it only gave to Carpenter the right to revoke ; and it appears, that he not only did not revoke, but even recognised the contract as subsisting; and as Birchett and Ormond purchased under false representations they are bound by all the equities against Carpenter.

It is said, however, that Falls is not entitled to call for a specific performance; not only because of his delay, but also on account of the total renunciation of the contract on his part. If a renunciation can be made, in such a case, by parol, it must be a total renunciation of the whole contract, and a restoration of all things to their former condition; and this must be shown by clear, distinct and unequivocal evidence. Price v. Dyer, 17 Yes. jun. 356. Sugden on Vendors, 113. If any thing were done under the agreement, it must appear that it is undone, and that the parties are restored to their original situation.

Thompson, Devereux and Iredell, for Birchett and others.

; — We shall contend, that on the 22nd day of August, 1829, Falls had.no right to a specific performance from Carpen-penter; for if he had, as Birchett and Ormond purchased with notice, they cannot have a decree. But before discussing that proposition, we shall insist, that the bill of Falls is so essentially defective, that it must be dismissed. A bill for specific performance ought to contain every allegation necessary to be proved on the hearing. This bill does not allege, that Falls paid, or offered to pay, or was ready to pay for the land, on the 22nd of August, 1829, when Birchett and Ormond purchased. He alleges *258only that Birchett and Ormond knew that Carpenter had his notes. In support of this objection, and also to show that it is too late to amend, we refer to Lyon v. Tallmaclge, 1 John. Ch. Rep. 184. Hall v. Maltby, 6 Price’s Rep. 240. Flint v. Field, 2 Anst. 543. 2 Har. Ch. Prac. 334. 'Equity Draughtsman, 12. 2Mad. Chan. 168. His allegation that he paid Carpenter afterwards, is not sufficient. Banks v. Garneal, 10 Wheat. 188. Harding v. Handy, 11 Wheat. 103. Chit. Cas. 274, 2 Chit. Dig. 767, tit. Pleading, sec. 2, let. A. The bill does not propose to pay the negotiable securities which Birchett and Ormond gave for the land.

We come now to consider Falls’s right to a specific performance. All the heads of equitable jurisdiction, are reducible to those of accident, fraud, mistake and trust. The right to a specific performance, is founded upon the idea of a trust. Where one party has performed his part of an agreement, he has a right, as trustee, to call for a specific execution from the other. This is not extended to chattels, because the law can give adequate relief, and equity will not therefore interfere. A party performing being considered as trustee, if he has neglected performance of his part, he can have no right to a decree, unless he show some other ground of equitable relief, as that he was prevented by accident, or the fraud of the other party. From this it may be deduced, that time is of importance in equity, but that it may be dispensed with when other equitable considerations interfere, even where it is made absolutely requisite by the parties. The most usual of these equitable considerations is a waiver by the other party of his right to declare the contract void. The acts of waiver must be alleged in the bill and proved, in order to give the Court jurisdiction upon the ground that it would be a fraud in the party to refuse a specific execution after such waiver. Hatch v. Gobi, 4 John. Ch. Rep. 559. But the mere default of a party alone cannot give him a right to relief. Instance the case of a tenant permitting the premises to go to ruin by default. Hill -v. Barclay, 18 Yes. Jun. 63. Reynolds v. Pitt, 19 Ves. Jun. 143. White y. Warner, 2 Mer. 460. Bracebridge v. Buckley, 2 Price, *259200. From these cases it is insisted, that where there is no fraud, accident or surprise, a default will not be overlooked. The cases of Pinche v. Curteis, Seton v. Slade, and Hogg art v. Scott, cited by the counsel for Falls, are all cases of waiver by the defendant. Time is a law imposed upon the parties by their own act, and he who has the right to insist upon it, may waive it, but his waiver must be charged and proved. Ogiloie v. Foljambe, 3 Mer. 52. Levy v. Lindo, Ibid. 81. These principles and cases are destructive of the position that notice must be given of the intention to rescind the contract, before it can be done. Harrington v. Wheeler, 4 Ves. Jun. 686. Hatch v. Cobb, 4 John. Ch. Rep. 559. A party in-default seeking an equity, may be repelled by a greater equity on the other side, as in the case of rise in value, which alone will be a bar to a specific execution. Alley v. Deschamps, 13 Ves. Jun. 225. Brashier v. Gratz, 6 Wheat. 528. The time for performance is limited to the maturity of the notes, where .no other time is fixed. O’Rourke v. Percival, 2 Ball & Beat. 60. Laiorenson v. Butler, 1 Scho. & Lef. 13. Benedict v. Lynch, 1 John. Ch. Rep. 371. Martin v. Michell, 2 Jac. & Walk. 428.

A party who seeks a specific performance, must be able and willing, and must have been always able and willing to perform his part of the contract; and, in this case, if Falls was at any time unable to comply with the contract, his right is gone. It is contended, that he was at one time insolvent, and therefore that there was then no mutuality between the parties. Brashier v. Gratz, ubi supra. Ome-rod v. Hardman, 5 Ves. Jun. 722. Guest v. Homfray, ibid. 818. Heaphy v. Hill, 1 Eng. Con. Ch. Rep. 332. It is said that the fraud perpetrated by Birchett and Ormond upon Carpenter, in representing Falls as willing to surrender, communicates to him all the advantages resulting from Carpenter’s willingness to sell. But this cannot be so. Falls, Wilson & Co. made of Carpenter substantially a new purchase; paid no more than Birchett and Ormond; took by a later deed; had no equity against Birchett and Ormond, whose claim to the land was at least equal. to to theirs; and yet it is contended that Birchett and *260Ormond’s legal estate is to be taken away and given to them. If Falls had a right, Birchett and Ormond did not affect-it; if not, nothing ex-postfacto, gave him one.

This brings us to the question, whether any fraud was practised upon Carpenter. We contend, 1st. That there was no surprise upon Carpenter, he had the aid of his confidential adviser. Pratt v. Barker, 2 Eng. Con. Ch. Rep. 1: had a distinct object in view, to wit, the sale of his gold mine, and if he chose voluntarily to sell it at an undervalue, equity will not relieve him. Willis v. Jernigan, 2 Atk. 51. Smyth v. Smyth, 2 Mad. Ch. Rep. 75. 89. 93. 1 Fonb. Eq. 117. 2ndly. There was no misrepresentation as to Falls’s willingness to give up the contract. He was in fact willing, and Carpenter knew all about it. It was at best but matter of opinion upon a question of law, and that opinion was correct. But if not, unless proved to be designedly false; it does not vitiate. Lewis v. Jones, 10 Eng. Com. Law Rep. 393. 3dly. The statement about the mill and store was harmless, if untrue. It had no effect upon the relation between Carpenter and Falls. A falsehood which does not affect the judgment, and produces no damage, will not vitiate a contract. Vernon v. Keyes, 4 Taun. 488 ; S. C. 12 East, 632. Fellows v. Lord Gwyder, 2 Eng. Con. Ch. Rep. 61. 4thly. As to the alleged false suggestion about the gold mines, it appears that it had no influence upon Carpenter, as he repeatedly declared that he did not care for gold mines. In bills for specific performance, vague declarations are regarded merely as a ground for putting a party upon his guard. Trower v. Neiocomhe, 3 Mer. 704. Scott v. Hanson, 2 Eng. Con. Ch. Rep. 7. The mere inadequacy of value is not sufficient to prevent a specific performance. White v. Damon, 7 Yes. Jun. 30. Still less will it, if the value is increased bv a future contingency. Ramsbottom v. Parker, 6 Mad. Ch.. Rep. 5. The law does not require a disclosure of every thing, except in the case of insurance. Its object is to excite that diligence which is necessary to guard against imposition, and to secure that good faith which is necessary to the intercourse of society. 1 Fonb. Eq. 380. Harris v. Kemble, 2 Eng. Con. Ch. Rep. 61.

*261If one man sells brass to another for gold, honestly sup.posing it to be gold, and makes no false affirmation, the purchaser is bound to pay the price stipulated, though he supposed he was buying gold. Seixas v. Wood, 2 Cains’ Rep. 48. Chandler v. Lopez, Cro. Jac. 4. Snell v. Moses, 1 John. Rep. 96. Sweet v. Coldgate, 20 John. Rep. 196. Holden v. Dakin, 4 John. Rep. 461. Oneida Co. v. Lawrence, 4 Coweir’s Rep. 444. Welch v. Carter, 1 Wend. 185. Culver v. Avery, 7 Wend. 380. Pickering v. Dawson, 4 Taunt. 778. Schneider v. Heath, 3 Camp. N. P. Rep. 505. Early v. Garret, 17 Eng. Com. Law Rep. 522. And the converse of these cases must be true, that if one sell gold for brass, and the purchaser knows it to be gold, but makes no false suggestion to continue the seller in his error, the purchase will be'good.

Pearson and Winston, for Carpenter’s heirs.

It has been contended on behalf of Falls, that as he once had a valid contract of purchase with Carpenter, it is incumbent upon Carpenter to show that his right to a specific performance has been lost. In answer, we say, that there never was any right to a specific performance, for although a contract did subsist, the right to a specific execution never arose, as that depended upon a faithful compliance with the terms of the contract. It is now contended by us, that time is an essential part of the contract of purchase; but it is admitted.that it may be dispensed with, like any other term of the contract, by the conduct of the parties. There is a difference in this respect between the Courts of law and those of equity. The first looks upon every part of the contract as essential; but the .latter will not do so, where the parties themselves do not regard it as such. Setan v. Slade, 7 Yes. Jun. 267. Hudson v. Barton, 3 Mad. Ch. Rep. 440, or 227 of the Am. ed. Harrington v. Wheeler, 4 Yes. Jun. 686. Lloyd v. Collet, in note to Harrington v. Wheeler, 489. It is not necessary that the vendor should declare the contract to be at an end, upon the default of the vendee. Brashier v. Gratz, 6 Wheat. 528. Hatch v. Cobh, 4 John. Ch. Rep. 559. When one party violates a contract, the other is at liberty at once, *262ancj ever after to consider it at an end, unless be does something to confirm it. The reasons given for requiring a strict compliance in the sales of reversions, apply precisely to this case. The object of such sales is to raise money, which is the very object expressly declared in this case. Pratt v. Carroll, 8 Cranch, 471. As to the contracts being discharged, it is said that though it may be done by parol, yet there must be clear and distinct evidence of such discharge. This objection does not apply to this case, because here is such evidence. The giving possession before the contract is violated, has no effect upon the right to specific performance. There is a distinction between time for the payment of money, and time for making title. The cases are mostly upon delay in making title, there being less necessity for strictness in making the title at the very time fixed on. There can be no difference between declaring a contract void upon non-performance, and requiring a thing to be done in a certain time. The first is but a conclusion of law upon the last.

The receipt of the money by Carpenter, was not a confirmation of the contract, if it be considered as only voidable, nor did it make a new one, if it were void. He was not such a man as a contract could be made with, unless it be shown that he knew what he contracted for, and understood his rights; and that'no advantage was taken of him. He was an infirm old man, labouring under distress, and was persuaded to do what he did by fear of the consequences with which he was threatened. The receipt of the money, was therefore, not a confirmation, because he did not know his rights, and was labouring under a mistake as to his obligations. Murray v. Palmer, 2 Scho. & Lef. 486. Crow v. Ballard, 3 Bro. Ch. Rep. 117. Wood v. Downes, 18 Ves. Jun. 122. Cockerell v. Cholmely, 4 Eng. Con. Ch. Rep, 494.

The transaction by which Wilson and others agreed to purchase shares in the land of Falls, and to assist in the prosecution of a suit therefor, was an unlawful act, it being maintenance, and therefore void. Birchett and Ormond had purchased, and were in possession when this took place. Coke Lit. 379, a. Wood v. Downes, ubi supra. *263 Wallis v. Duke of Portland, 3 Ves. Jun. 493. Steuens v. Bagwell, 15 Yes. Jun. 139. Siueet v. Poor, II Mass. 549. The agreements were contractsffor both maintenance and champerty. Haw. PL Cr. B. 1, ch. 27, page 455, sec. 4, 42, 38, page 464 and 465, sec. 13. King of Spain v. Machado, 3 Eng. Con. Ch. Rep. 643, and Gulp v. Pleydell, cited in that case. When it appears that some of the plaintiff’s have become such by unlawful means, the bill will be dismissed as to all.

We come now to consider Birchett and Ormond’s claim. The concealment of a material fact by a vendee, makes the contract void. Concealment by-, the vendor would certainly avoid the sale. A person who makes an assertion which turns out to be untrue, will be responsible therefor, if the other party was misled. We contend, however, for the broad ground that a fraudulent concealment, or an untrue affirmation will avoid a contract. Mellish v. Bat-teax, 1 < Peak’s N. P. Ca. 115. Shirly v. Stratton, 1 Br. Ch. Rep. 440. Laidloiuv. Organ, 2 Wheat. 178. Dean v. Raston, 1 Anstr. 64. Schneider v. Heath, 3 Camp. N. P. Rep. 565. Birchett and Ormond were guilty of misrepresentations in two particulars, to wit, in a false affirmation of the object of their purchase, and in saying that there was no gold. Fellows v. Lord Gwyder, 2 Eng. Con. Ch. Rep. 61. Philips v. Duke of Bucks, 1 Vern. 227.

But it has been said that Carpenter is entitled to no relief on the ground of imposition, because of his having had a confidential adviser to assist him. This can have no effect where the adviser was imposed upon, as well as the principal.

The contract with Birchett and Ormond should be set aside, on account of the inadequacy of the price. Stilwell v. Wilkins, 4 Eng. Con. Ch. Rep. 132. Morse v. Royctll, 12 Ves. jun. 354. Coles v. Trecothic, 9 Ves. jun. 246-Heathcote v. Paignou, 2 Br. Ch. Rep. 167.

Badger, in reply.

It is insisted, on behalf of Falls, that on the 22nd of August, 1829, he was entitled to a specific execution of the contract with Carpenter, in the first place, entirely independent of any evidence that Carpenter then *264considered the contract as subsisting, and was willing to perform it; and, in the second place, because Carpenter did, in fact, consider it as then subsisting, and was willing that it should be executed.

It is a mistake to suppose that courts of law and equity adopt different rules upon this subject. The common law will fix the time when a contract is to be executed, when it is not stipulated by the parties, according to the nature of the contract. When no time is fixed, it must be done in a reasonable time. Equity considers what is the substance of the agreement, and executes that, without regard to immaterial stipulations. It considers whether time may or may not be a necessary or essential term in the agreement. Time cannot be made of the essence by the stipulations of the parties, but may or may not be of the essence, on account of the nature of the thing; as in the case of stock, which is of a fluctuating nature. The meaning of parties making time of the essence of the contract, is only that one party may avoid it on account of the default of the other. However strictly the time may be stipulated for, the court of equity will not regard it as essential, if, from the nature of the thing, it is not so. A party, against whom a default is committed, must be active if he wishes to avoid it. Jones v. Price, 3 Anstr. 924. Lloyd v. Collet, 4 Br. Ch. Rep. 368. If a party, immediately after a default, insists upon his legal rights, he may avoid the contract. It is laid down, in Sugden on Vendors, that the rule, as to time, applies to vendor as well as to vendee, and that, if a title cannot be made at the hearing, it is sufficient. There is a difference in the purchase of an estate, whether it is intended to be kept, or to be resold; the object of the purchase making the difference, and time may or may not be essential accordingly. In the present case, no time is specified for the payment of the money; the bond for making title says; that when the money is paid, deeds shall be executed. The meaning is, not that if the notes are paid when they fall due; but when they are fully paid up, I agree then to execute a conveyance. The securities may be collected, or not, at the option of *265the vendor, and the title retained only as a security for their payment.

Where parties differ as to the construction of an agreement, and lie by, it is evidence of an abandonment. Mil-ward v. Earl of Thanet, note to 5 Yes. 720. Length of lime, except as evidence of abandonment, ought to have no effect; and when a delay has taken place, notice must be given to the defaulting party, and then, if he fails, the contract may be avoided. Heaphy v. Hill, 1 Eng. Con. Ch. Rep. 332. The specification of a day when the contract is to be performed, does not make it of the essence of the contract, where it is not so in the nature of the thing, unless one party notifies the other, that he shall expect the performance at the time, and shall consider the contract void upon failure. Reynolds v. Nelson, 6 Mad. Ch. Rep. 290. Nor are the cases of Hatch v. Cobb, Benedict v. Lynch, Harrington v. Wheeler and Alley v. Deschamps, at variance with this doctrine. Insolvency makes no difference. Newland on Contracts, 256.

As to the objection of the value of the estate being increased by the finding of the gold-mine; equity considers it as Falls’s estate, and any accession of value is to his own estate. If, indeed, he had been notified to perform, and had then delayed, and a mine had been discovered, he could not have called for a specific execution. Supposing Carpenter to have the right to say, that the contract was at an end, is his silence sufficient to avoid it ? Or could he hold it void, while he held the notes, and did not offer to surrender them ?

It is true, that deeds or bonds, which are void upon the ground of undue influence in obtaining them, cannot be confirmed, while the same influence continues. But all this stands upon the ground of fraud, and is totally inapplicable to the case of a contract, the effect of which has ceased from laches, but which may be set up again, by the party’s waiving his right to take advantage of the default.

The relief against Birchett and Ormond, is founded upon this ; that they purchased with a knowledge that Falls had a contract for the purchase of the land; that he was in possession ; and that he intended to insist on the fulfilment *2660f his contract; they therefore became trustees for him. The receipt of the money, by Carpenter, establishes a perfect right against him. Even at law, if he had received the money, and then refused, damages might have been recovered; and, in equity, a specific performance will be enforced.

As to the alleged defects in Falls’s bill — Upon what grounds have Birchett and Ormond a right to the money 1 It appears that their notes are held, subject to be delivered up, if the decree is against them. To the objection, that no excuse for the delay, is alleged in the bill, the answer is, that there was no delay in the view of a court of equity; but if there were, it was a ground for demurrer, and is too late at the hearing.

To the charge of maintenance and champerty, it is replied, that Falls was, in truth, in possession, and therefore could not be guilty of the offences mentioned. Or, if he were not, at most his assignment would be void, leaving his rights as they were before.

Ruffin, Chief Justice,

having stated the pleadings and proofs as above, proceeded. — These three causes have been properly brought on and argued together; for nearly the same questions arise in each, and all those that are important to the rights of the parties appear upon the pleadings in the original suit.

The cross-bill of Birchett and Ormond is chiefly for discovering from Falls as to the matters set up by those plaintiffs in their answer as defendants to his bill. It charges only one new fact, or rather puts that fact more distinctly and in a stronger light than their answer did. That is, that Falls was on the land with Birchett, and knew of his intention to purchase, and made no objection, but expressed his satisfaction. But the allegation is positively denied by Falls-, and there is no evidence to sustain it. It would require very strong evidence to do so, for Birchett, within whose knowlege, as well as that of Falls, it must, if true, have been, does not venture to state it in that way in his answer; but only in general terms, that they inferred he had abandoned, because Carpenter had *267offered to sell the land for several months, and they had not understood that Falls had forbidden him. The have examined but a single witness with a view to this point (Starns); and he says only, that on the 22d of August, Falls mentioned that those persons had gone to buy the land. But that does not tend to show his assent to the purchase, and is entirely consistent with his answer, that he himself heard of their intention only on that day, and after they had gone. It reached him as a piece of common information, and in the same way he. may have mentioned it. His conduct immediately before, and subsequent, renders the assertion of the bill incredible. All the other parts of this cause,'which can oppose the relief to Falls, are involved in the original one, and may therefore be disposed of with that.

Equity will contract,eU fair in its the’seore merely of abandon-“®nt i here cannot baa gort.upon^ which that tasked in equity, in which the facis on , which it was asked. *268would not delfeat an action at law on the contract.

*267The cross-bill of Carpenter’s heirs was probably filed principally to enable the plaintiffs therein to impeach the deed to Birchett and Ormond upon their alleged fraud, in case a decree should be refused to Falls in the original suit; and therefore Falls was made a party, that it might appear that his interest had been put out of the plaintiff’s way. It brings forward no new matter against Falls; and if the matters charged, and admitted or proved, be insufficient to bar Falls from specific execution, still less will they authorise' a decree that he shall give up the agreement. Equity may refuse to help either party, and leave both to law; but there is no ground in this Court to cancel a contract, fair in its origin, upon the score merely of default or abandonment. There cannot be a case of that sort, upon which that relief could be asked in equity, m which the facts, on which it was asked, would not defeat an action at law on the contract. As a bill of d^scovery simply, it has entirely failed with respect to Falls; who denies that he had either rescinded or abandoned the contract. The plaintiffs can have no relief, therefore upon it, if Falls should be found entitled to a decree in his suit; for if Birchett and Ormond practised , i . , - . , , . the grossest fraud in obtaining the deed, — although it may affect the costs, — it becomes immaterial to these plaintiffs *268as soon as their interest in the subject ceases, and it is shown to belong, in the view of this Court, to the other party, Falls. It may be remarked, however, that the case is much stronger for Falls in the suit by the Carpenters, than upon his own bill; because there is important evidence competent in the former, which he cannot read against Birchett and Ormond in his suit, which is, the testimony of Johnston and M‘Kee as to the declarations of Carpenter, the father, after he made the deeds. Falls had a right to use those declarations as against Carpenter, both to repel the imputation of abandonment on his part, and the charge of surprise on Carpenter, which the bill of his heirs says, ought to prevent the acceptance of the money by him from being considered as a confirmation. We think, indeed, that there is no ground for the allegation of surprise; for it is clear to our minds, from the testimony of those witnesses, and that of Adderholt, and from many other concurring circumstances, that Carpenter never considered the contract abrogated, or that he could honestly sell against the consent of Falls; and that he would not have sold without his consent, or supposed consent. He may not have known, and probably did not know, what remedy a Court of Equity would give on the contract; and may have thought that all Falls could have done, at any time, was to sue for the penalty, and that even that was then out of his power. But he had no idea, that he had let Falls off; or that Falls wished to be off. He constantly meant to convey to Falls, if he could'pay the money. He probably believed that Falls would not, after all his indulgence, stand in the way of a sale to another, if it became necessary for Carpenter to have money, and Falls could not raise it. But that was all. He had in his own mind gone no further, if even that far. That was the reason why he spoke of “ the bond being dead,” and at the same time inquired whether Falls was willing to give it up. Whether Falls could sue him, or not, he had always a regard to the interest and wishes of Falls; and however deficient his knowledge of artificial equity; or whatever the grade of his intellectual capacity at the time may have been, he seems to have retained to *269the last that best kind of sense, which prompted him to be an honest man, and observe his contracts in good faith, according to their substantia] meaning, as understood by the parties. As against his heirs, therefore, the inference from these facts is strong that the contract was considered by the parties to be a subsisting one; and it is rendered conclusive, by the subsequent declarations, which are express to that purpose. That Carpenter was deficient in understanding to make a contract, or transact ordinary business, there is no evidence that will bear stating; much less that he was incompetent to acts proper to the performance of a previous fair contract. The argument that he was ignorant that the contract was not binding, and therefore his acts and declarations, under the belief that it was binding, ought not to be deemed a confirmation, is altogether fallacious. It is founded upon the cases of conveyances obtained by trustees, tutors or guardians. They are voidable, and cannot be confirmed by a second deed, unless the first deed was known to be not binding, and the second was intended simply to make it so. The meaning is, that the last shall not cure the vice of the first, unless it was intended to have that very effect; which cannot be, if the maker thought himself obliged by the one to make the other. But that has no application to the case of a contract, which has no vice, but was fair; in respect of which, the only question is, whether it continued to be a contract between the parties.. Acts done under it establish its subsistence. They do not constitute a case of confirmation, but of performance. There could not be a doubt, therefore, that in the actual state of the case, as against Carpenter, the plaintiff, Falls, would be entitled to specific performance, if the legal title were now in his heirs. Their cross-bill must consequently be dismissed, as against Falls and those claiming under him, and with costs. That brings us to the inquiry, what relief he is entitled to, as against Birchett and Ormond, in the original suit.

The rule, that a deed, obtained from one who had executed a former voidable instrument, is not binding, unless he knew that the first was not obligatory, and gave the second expressly to cure the vice of the first, does not apply to a contract which has no vice, but is fair; and in respect to which the only question is, whether it continues *270to bea contract between Acts done under such a contract establish enceUland" they do not case ofeoní firmation, perform-1*' anee.

*269That question was made in the argument to depend mainly upon the right of Falls to have called for a deed from Carpenter, upon the facts existing before, and on the *270°f ■A-11®1184’ 1829, as those facts appear upon the proofs, exclusive of the subsequent declarations and acceptance of the purchase-money by Carpenter. Birchett and Qrmond are purchasers, who have not paid any money, and consequently stand in Carpenter’s shoes, in respect to the equity of Falls: but that equity must be established against them, by evidence that is competent against them. ^he court wjq consider the case in that light, and throw # » 7 out of view the testimony of Johnston and M‘Kee, and the Payment °f the balance of the price.

The deposition of Robert Dixon, must, for a like reason, be rejected upon this part of the case. Having released to his companions before Carpenter filed his bill, he was not made a party defendant to it, and his deposition was therefore competent for Birchett and Ormond against Carpenter. But it cannot be read against Falls, as to whom, the release pendente lite is a nullity, and who must have a decree against the witness, if he gets one at all. Indeed, his liability for the costs, although in discretion, would be a sufficient objection, according to Barrett v. Gore, 3 Atk. 401. That case has been questioned in some of the Courts of this country. Nevertheless we approve of it; because it is a safe rule, that a witness should be entirely disinterested, and in a case of this kind, the Court must, upon its settled principles, decree costs against Dixon, if any decree be made against him.

In the point of view in which the case is now to be regarded, the offers of Carpenter to sell to others, and the declarations of him and his son, that Falls had agreed that he might do so, must also be put aside, because the knowledge of those circumstances is not brought home to the plaintiff.

It may be remarked here, however, that upon one ground, Falls might be found upon investigation, to have a substantive equity against those purchasers, distinct from that he might have had against their common vendor. Supposing that the contract had not been expressly rescinded, but that Carpenter thought that it had been abandoned by Falls, and under that impression sold to another, who contributed to produce or confirm that *271impression, and represented that Falls had abandoned expressly in favour of the person seeking the second purchase: it would seem to constitute a case of deliberate deception by active means for the sake of gain, which ought to deprive the purchaser of all the advantage of his deed, and make it subservient to the interest of the party, whose conduct and wishes had been misunderstood by him who made the deed, and misrepresented by him who took it. In this aspect of the case, Carpenter’s own interest is to be considered as gone at all events, either upon his contract with Falls, or his deed to the others, and the question is, to which of them ought it to go? Carpenter honestly disabled himself from conveying to Falls. He knew he had made default, and from that he may possibly have inferred that the contract was abandoned by Falls. He was ignorant that, in fact, it was no,t abandoned. But Birchett and Ormond knew, and fully knew, better. Their answer, indeed, states that Carpenter told them that the bond was void, and that Falls had abandoned — intending to imply a negative pregnant to the proposition, that such remark fell from them. But they do not say that affirmatively ; and the answer being silent as to that charge of the bill, the unequivocal testimony of the witness (Adderholt) proves it; and also, that Carpenter, deemed it a most material circumstance that Falls was willing the other should buy. Admit that Carpenter might have insisted on the default as a forfeiture ; yet if he did not, and would then have conveyed to Falls, upon the footing of their former contract, in preference to conveying to Birchett and Ormond, upon a new contract, against the wishes of Falls, ought not the last bargain — the price being the same in each — to be looked upon as having been made, substantially, in compliance with the first contract, as it was, expressly, upon the supposed wishes of the party to that contract ? Carpenter is put out of the way, because he would not rely on Falls’s default against him. Are the others in a posture to raise the objection, simply because he might have done it, though he did not ? Notice subjects them to all the equities against Carpenter ; but their conduct may prevent them from being entitled to all his *272defences against Falls. Now, whether Carpenter told them the contract with Falls was not binding, or they told him so, it is certain that Carpenter would not have made them a deed, as the contract had not been actually can-celled, if he had not believed that Falls fully assented to it. This they knew perfectly was not a fact, though they represented it to be the fact. They assign certain reasons why the opinion they attribute to Carpenter, that “the bond was void,” and that Falls had abandoned, might have been deemed correct by them. But they could not deny a knowledge of other facts, notorious to them, that proved conclusively that he had not, in truth, abandoned, though his claim might not have been valid in law. They knew that he was in possession; that he was cultivating a part of the land; that he had discovered gold, and was engaged in collecting it; that he had given leases to others for the same purpose; and above all, that he had refused a lease for a part, to the very person who pretended that Falls was willing that he might take an absolute conveyance for the whole. They knew that he was not only able, but in a very short time, would be ready to pay the purchase money; and that if he did, Carpenter felt himself bound (whether he was or not in law,) to make the deed to Falls. Yet they hold out, that he could not pay, and did not wish to have the land, studiously producing or confirming that belief. They got, then, the title from the person in whom it was vested, because that person was governed by the wishes of Falls, as having a prior claim — a claim which he was willing might be renounced, but also ready to recog-nise, as the right, if asserted. It would have been as beneficial to the claimant, and it was as effectually used by the other parties, as the most perfect right could have been. After pretending to be substituted to it, and thereby gaining the legal title, can they supersede the thus acknowledged right, by the objection that it was not legally valid 1 It should rather seem, that whatever it was before, it was thereby made valid, as against them. But as little was said in the argument upon this view of the subject, the Court has considered the case upon the points, on which the counsel placed it, and on which it will be decided.

*273Evidence» to prove the rescinding °Jrlacv™t' tract by a quentparol agreement clear, posi-ti7e>and above suspicion.

The first objection on the part of the defendants would be fata!, if founded in fact. It is, that the contract was expressly rescinded by a subsequent parol agreement. But to this allegation, there is no evidence while it require that which is clear, positive, and above suspicion. Ilul- . 1 1 left s testimony comes the nearest to it. He states a pro position by Falls; but no assent on th'e part of Carpenter. Besides, the witness is mistaken as to the time; for, more than a year.after the one load of corn, which Hullett saw Andrew Falls deliver, four other loads were delivered for him (1828.) by John Falls. The parties, therefore, acted on the contract after ,the time Hullett speaks of; which i • , ' i proves that it was not then rescinded. As late as . the spring of 1829, Carpenter sent for further payments ; and the defendants have themselves examined witnesses, who can go no further towards establishing even abandonment, than to state Falls’s .declarations about this last' period, that “ he would have to give up the larid,” or that he “ must give it up because he could not pay for it.” The Court must therefore declare that the contract was not rescinded by agreement between the parties.; and that it was not expressly renounced or abandoned by the plaintiff Falls. Those declarations are only indicative of his fears, as to what necessity or.convenience might require him todo, and not of a past or immediate refusal to proceed'on the contract; for he still continued to act as owner, and to strive to raise the purchase-money by a mortgage of his other property. He is therefore entitled to the common decree, unless other reasons render it unfit that he should have it.

The substance of the objections consists in the failure of Falls to pay the purchase-money punctually ; and in his insolvency, which rendered him .unable to perform his agreement, until the land rose in value, and then only out of the land itself; and in the great increase of value, immediately before he offered to cpmply. The argument for the defendants did not distinctly proceed upon those grounds severally, as if any single one of them constituted a bar to the relief; though the pnricipal proposition taken, was the general one, that time is material in equity, and *274is deemed of the essence of the contract, and therefore the relief must be refused ; and the other circumstances were invoked to sustain that doctrine, by showing its reasonableness, in its application to this cause. It struck us that it required, the whole, to makfe the argument plausible; and that if any one of the positions be false in fact, or immaterial to the conclusion, the whole proposition must fall.

The allegation of insolvency is unfounded. There was no change in the circufnstances of the plaintiff, except for the better; and he was fully able to pay th'e debt. Had he been insolvent, it would be a question how far one who contracts with a person, known by him to be in that situation, could, after an increase in the value-of the estate, allege, for the first time, that as a reason for annulling the contract; or why a court of equity should not give full effect to it. It might form a proper motive for inserting in the contract a clause, that default should avoid it; and be a reason with the court for holding, in such case, that the provision was not formal, but substantial. But when the vendor retains the title as a security, and, also, takes bonds of the vendees, ás a separate and absolute obligation, binding on the person, and recoverable without showing performance on. the -part of the. vendor; and likewise deals with an insolvent person, as if he were solvent, by leaving him in the articles, at large, as to time, it is not seen how the court can put a construction on the instrument, founded on the circumstance of insolvency, as indicative of the intention of the. parties. Insolvency, whether existing at the time of the' contract, or occurring subsequently, if continuing, so as to disable the purchaser from fulfilling' his contract, may authorise the other party, after request and default, to renounce the-contract; and, after reasonable notice, may discharge him ; or it may be evidence, with other things, of abandonment by the purchaser. But in that case, it may also be repelled by other evidence that there was no abandonment in fact. Insolvency, by itself, does not dissolve the agreement; nor put it in the power of either party to treat it as dissoluble; at his will merely. But it is useless to speculate upon the consequences of that *275circumstance, if it existed; it is not the fact, and therefore cannot be brought to bear on the argument.

It is otherwise with respect to the increase in the value of the land; which, at any rate, will bring a great deal more in the market than the contract price. It might be well, however, to ask, who now urges this fact; and whether that party can avail himself of it? Carpenter’s interest in the subject in litigation is excluded, as already stated; and the decree, as one for specific performance, if made, must be against Birchett and Ormond, who have the legal title. They are alone interested; and they bought after they knew of the increased value; Falls, before it was discovered. It is not a case of turpitude, in which equity will not interfere, but leaves the possessor to his advantage, because the other has no merit on which it can be taken away; it is simply an objection that equity ought not to transfer so valuable an estate for so little money. Does that lie in their mouth, when they were to give precisely the same sum, and had. notice of the other’s purchase? But not to speak of that: it is certain that the increase of value is not such a change in the subject-matter of a contract, as is, of itself, a ground for rescinding or not enforcing articles. The thing contracted for, is, in equity, considered the purchaser’s, from the time of the contract, and stands as a security only, to the seller. Ordinarily, therefore, advantages or disadvantages, arising subsequently, either from unforeseen accidents, or from contingencies, on which the value was known at the time to be dependent, cannot be a cause for refusing to enforce an executory agreement, more than for annulling an executed conveyance. Paine v. Meller, 6 Ves. 352. Pritchard v. Ovey, 1 Jac. & Walk. 403. Revel v. Hussey, 2 B. & Beat. 287. What happens to the property, while the contract is in full force, cannot alter the respective rights. If one of the parties refuse to perform, and there comes a change of .circumstances, upon the strength of which, he is desirous to go on with the bargain, and insists on it, he may properly be repelled, although hé was not watching for that change; because a favourable chance ought not to profit him who would not run the risk of an unfavourable one. *276'"'^e manner> if a loss arises by a fall in value of things of fluctuating price and subjects of traffic, and the vendor could not or would not make a title, according to his eon-tract, in which case the purchaser might have avoided the loss, the former,' having caused the loss, ought to bear it; and cannot compel the other to take the property. This brings us to the consideration of the grounds of decreeing specific performance, and of what is deemed a fault of the p^rty, wffiich shall defeat this relief.

// Jt has been contended, that the non-payment of the pur- [' chase money at the day; or, at any rate, that circumstance, with any other slight one of inconvenience, or loss to the seller, is a sufficient reason for refusing it; and that here, the delay and the change in value, discharge the vendor. The jurisdiction was traced to its origin, and it was said, that its principle was to execute specifically, a contract legally, valid; and, therefore, that time must be essential in equity, because it is at law; and many cases were cited, and minutely criticised. Certainly, the cases'show, that, under a great variety of circumstances, the court has refused the relief, when the party applying was in default in respect to the thing to be done by him, or in respect to the time in which the thing was to be done, and circumstances had then so changed, that performance by him would not put the other party in the same situation, as if it had been done in due time. On the other hand, the cases are as numerous, in which the relief has been given, where there was default in those respects; and a change in the title or value of the property, upon the ground of the conduct of the parties, before or after the alleged default occurred. We do not think it necessary to examine all the cases, nor to dwell much on the elementary principle; for we think the facts of this case are such, that the decree, we feel obliged to make, will not be in conflict with a principle established, or a precedent furnished, by any one of the cases in the books. //

What the Court deems the material circumstances of the case, may be, in a great degree, gathered from what has been already said. But it may be well to group them together. The plaintiff agreed to give seven hundred and *277fifty dollars for the land, and executed two bonds for the price, payable, with interest, at one and two years, the last of which fell due in November, 1828; and took a bond from his vendor to convey “ at the payment of the purchase-money.” He went into immediate possession, or rather continued that derived under a former contract; and acted in all respects as owner, without any objection on the part of the vendor, up to the moment of the sale, made by him to the other defendants; which occurred between nine and ten months after the last payment fell due. In the mean time he repeatedly made payments, altogether to the amount of two hundred and forty dollars; of which he agreed that a part should be applied to another debt, and about the sum of one hundred and forty dollars, including interest, remained applicable to the debt for the land; and also, in the mean time, he discovered a gold mineen the land, of parts of which he gave leases, and was exerting himself to.raise money,,to discharge the balance on his bonds. The vendor did not wish him to give up, but wished him to complete the purchase. He had never renounced the contract; but had expressed, not to the vendor, but to others, the fear that he would have to do so, as he did not expect he could make the payments as soon as they might be wanting. We think these facts constitute the case of a contract partly performed, and in the course of execution; and continuing, clearly, by the consent of both parties. And we are of opinion, that relief could not be denied in such a case, even if there has been a default, after it has been thus acquiesced in. There is no case to give countenance to a decree for the defendants.

Time may be of the essence of the contract in equity. Exact punctuality may be of great importance to the interests of a contracting party in many situ-, *278ations. In some, it is cbvious stae of the property Scum-01 stances. we do not doubt that mentmay edastoam" show, that smntiilUl)" partofthe Inthose cases, the cou.t can no more dispense with it, th .n any ether vital provision. But the parties themselves may; and it is in that sense true that time is not essential, but immaterial, when comparing its effect in that Court, with that at law.

*277 f/ It is not denied that time is material- in equity. It is 'always respected here. Nor is it denied that time may be of the essence of a contract. Exact punctuality may be of great importance to the interests of a contracting party in •many situations. In some, it is obvious, from the state of the property and other circumstances. In others, we do not doubt that the instrument may be so framed, as to show what is true, namely, that it is a substantial part of the contract. In those cases, a Court can no more dispense with that than any other vital provision. But the parties *278themselves ran dispense with it; and the inquiry, where it has once existed, is, whether they have dispensed with it. It is in that sense true, that time is not essential, but immaterial in equity, when comparing its effects here with that |aw. never was, and cannot be regarded in both . ,. , T . ° ~ , Courts in the same light. It is true, a maxim is found, ^lat eclu*(y does not decree performance of an agreement, upon which an action would not lie at law for damages ; anc* anciently it was the usage to send the party to law. But that was to determine whether the agreement was so constituted as to have become binding at any time — ■ whether it ever was a legal contract; and not whether the party had lost his legal remedy by accident, or the non-observance of a provision, deemed inequity merely formal. But the jurisdiction is established now, upon the v'evv °f ^6 Court of Equity, as to what forms a sufficient contract, and it is beyond a doubt, that some are so considered, which could not be stated to a court of law, as for example, the cases of parol contracts with part performance, under the statues of fraud. And in.respect to time, so far from equity being governed by it as a conclusive bar, it was one of the earliest jurisdictions to relieve against it, as in the case of penalties. Suppose a day to be fixed for Carpenter to make a deed, and that he made after the day, at law the penalty of his bond might be recovered. Ought equity to allow that? Certainly not; and would not. It could not be tolerated, that with the deed in his pocket, Falls should say, “ I stand upon the bond, and that every provision in it, time included, is of the essence.” If he could not say that, how can the other party? Time, with the conduct of the parties is material here, while the conduct of the parties is nothing at law. The law is necessarily confined to the time specified in the deed : because the declaration is on the deed in his verbis, not to be varied by another agreement or mode filed, by acts en pais. But, here, the contract is for the thing which thereby becomes the property, and at the risk of him who contracts to get or take it, and the other party ought not to insist on its forfeiture for a slip, but only on compensation for the loss thereby arising to him. Interest on the *279purchase-money, generally places him in as good a sitúation, as if there had been no default. It is therefore general doctrine in equity, that time is not of the essence of the contract. In cases in which it is seen really to be essential, that is, where it must have been understood by the parties at the. time of the contract, that events would probably happen, in which interest would not be a compensation, because thé title to the property, or its value might be greatly affected by those events, and one of them holds back until the contemplated contingency happen, that person cannot apply to enforce the contract which he has violated, and violated in bad faith, and as to a main ingredient of the bargain. Upon this principle.rests the cases upon sales of reversions, stock, and other uncertain interests or titles. To decree a specific performance, in those cases, to the defaulter, would be to make a wager binding in favour of him who refused to put up his stake, because if he had put it up, the event proves he would have won.

Default m respect to timéis not °x-ceptinpe-culiar eases; but e.vi-°thcr and °*°ybere butted. j^juic'asfi bemadees. whereitis, itd°es not follow, that iusneces-s?ril7 c.on" equity,asit is at law‘ time may ¡je walved as may any *280over stipulation introduced for his benefir

*279Default .in respect of the time is not therefore a bar 0f . • ... , # • itself, except in peculiar cases; but is only evidence, with other things, of abandonment, and of course may be rebutted. It may in all cases be made essential; but where it is, it does not follow that it is necessarily conclusive in equity, as it is at law. It cannot be made thus sive here; that is to say, so as to' preclude a party from showing that it ceased to be essential, as is the case at'law from the form of pleading, and the mode [proof. But it is never to be forgotten, that in equity a party may waive, and it may be shown that he did waive, -a stipulation introduced into a contract for his benefit, whatever may be the subject or the terms of the stipulation, It was said, indeed, by the counsel for the plaintiff, that both parties must be active, and that, even if articles i i i tu . « . expressly state, that the agreement shall not be.binding, unless performed at the time, a party cannot avail himself of it, unless before the first default, he give notice that he will take advantage of it. That would be going very far towards saying, that time could not be made essential; tor if the contract be not notice enough to the parties, it would be difficult for the Court to perceive upon the same instru*280ment. that it was essential. But a failure to avail himself of il, at the first fit occasion, and before or when the other the agreement, may begins after default, to act again on produce a very different re¡,ult. He gives up, therein', part of the contract, as much as the other by his default, if insisted on, relinquishes the other parts of it. Thus far we think it correct to say, that both parties must be active. A small matter may amount to such waiver; any thing that draws on the other parly to execute the agreement afterwards, or that shows it is chimed a subsisting agreement after the essential default. In Seton v. Slade, 7 Ves. 264, the purchaser’s takingahe abstract, although not bound to do so, and stating objections to the title, overruled his defence. In Hudson v. Bartram, 3 Mad. Rep. 440, Lord Eldon admitted the time to be of the essence of that contract, and it was expressed. Yet he held the vendor to be bound, because, when the vendee excused his default by letter, he did not reply to it; and afterwards referred á person entitled to a charge on the premises to the vendee; and avoided the vendee, when he subsequently sought him according to the engagements of his letter. The vendee could not assert the inconsistent rights of owner and vendor at the same time, and therefore the purchaser had a decree. If the party has been guilty of any unfairness; or his delay was with the view to test the value of the bargain before he acted on it; or there is satisfactory evidence from circumstances, that he once abandoned,or he has wholly failed to perform any part, and^ a loss has thereby ensued to the other party; in those cases the justice and the law are both manifestly against him* that is in fault. Of one or the other of those descriptions, are all the strongest cases cited for the defendants. In Lloyd v. Collet., 4 Bro. C. C. 469, the vendor wilfully delayed to furnish the abstract, though repeatedly requested, for six months after the vendee had sued for his deposit, and the subject was one of fluctuating price, and an object of speculation, and had fallen. In that case, it was said that a patty’s own neglect was a singular head of equity'. Certainly it would be where, as in that case, nothing, had been done. Hence Lord Loughborough, 4 Ves. 690, note, *281asks the plaintiff for a case to prove that where nothing had been done, the time was not essential. But nothing done on one side, and advantage properly, and in due time taken of that on the other, is very different from part performance, without any attempt to put an end to the contract by the other party, by notice of any sort. To make that case in point here, “ not every thing” and “ nothing” must have one meaning. In Brashier v. Gratz, 6 Wheat. 528, the purchaser had done nothing. .He could not take possession, for the property was in litigation, which he was to manage, and for which he had received compensation. He was to have a special warranty, and in case the land should be lost, half the price was to be returned to him. He became insolvent subsequently, and failed to pay any part of the price, and likewise failed to attend to the suit at all, and at the same time refused the vendor’s offer to rescind. The vendor was then obliged to prosecute the suit, or lose the whole price. When gained, the land rose suddenly, and Brashier raised his p.urchase-money on the credit of it, and tendered it, and claimed a conveyance. A decisive objection was, that he bought the title as a doubtful one, but would not take it as such, nor as long as the price he agreed to give was fairly the value; but claimed it when the title ceased to be doubtful, and the value increased greatly. It was a case, within the principles of those of reversions, where nothing has been done until the life falls in. In Alley v. Deschamps, 13 Ves. 224, there was a sudden unforeseen rise; but that did not govern the judgment; it only proved the dishonesty of the plaintiff’s motives. Lord ERSkine, plainly went on the abandonment of the assignees. The purchaser took possession, and became bankrupt, after paying a less sum than the rent during the time he occupied. Bankruptcy is stronger than insolvency, because it is an absolute discharge; and it was once supposed to dissolve the contract, though it is now held otherwise. Brooke v. Hewitt, 3 Ves. 255. Butoalthough the assignees, might have claimed the benefit of the contract, they did not. They never entered into possession, and therefore were not liable for the purchase-money, unless the vendor chose to come in under the commission, whch *282they knew, of course, that he would not do. As soon as the value rose, and the assignees could certainly pay the purchase-money out of the estate on which it was a lien, they wished to make themselves liable for it, and take the estate. No, said the chancellor: You must not “ lie by with a view to see, whether the contract will prove a gaining or losing bargain, and according to the event, either to abandon, or, considering the lapse of time as nothing, to claim a specific performance.” The decision is nothing more than that a party cannot elect to abandon or not, as it may appear hereafter to be his interest. He must decide at the proper time; and the decision once made is conclusive. The bankruptcy alone did not discharge the contract; nor was the relief refused, because the value had increased. But it was because the whole price remained unpaid, and nothing had been done after the bankruptcy; which was an abandonment.

*280A failure to avial himself of it, on the first fit occasoion, and before or when the other party begins after a default to act again on the agreement, may amount to such waiver.

*282The present is not like the case of Hatch v. Cobb, 4 John’s C. C. 559, which was much pressed at the bar. There was no acquiescence, but express notice that the vendor must sell again, and the purchaser had covered all his property by a recent judgment, and there was no separate security. All the vendor could do was to get his land again, and he gave the other the opportunity of paying for it, and keeping it. But this question could not arise in that case, because the second purchaser was not a party to the suit, and the bill could not, at any rate, lie for damages alone. In Benedict v. Lynch, 1 Johns. C. C. 371, the purchaser was let into possession, it is true. But the contract for purchase was expressly rescinded, and a new one made for a lease for one year, under which the plaintiff enjoyed the term, and moreover, he told the second purchaser, who inquired with a view to making a contract, that he held only for the year, and had given up his purchase. In Harrington v. Wheeler, 4 Ves. 686, the sale was of a reversion, and the vendee did not take possession, nor do any thing until he filed his bill, six years after the contract, and one year after the death of the tenant for life. This case is taken notice of in Alley v. Deschamps, as one in which money was paid, but it hardly deserves *283that character. The vendee advanced one hundred and four pounds at the contract; but he took a mortgage on the estate for that, and just before suit, demanded it as a debt, from the .second purchaser. Besides, the object of the sale was to pay off a heavy mortgage, which the plaintiff agreed to discharge; and the second purchaser, who. was originally joint-owner with the .plaintiff’s vendors, was, to save his own share from being foreclosed, compelled' to buy the other shares, and discharge the mortgage himself. That case was therefore one both of bad faith, and of unequivocal abandonment.

The assignment of a cestui que trust, if he or his trustee be in possession, is not champerty or maintenance, *284though another may have interpart of the land,

*283The present case, on the contrary, stands on the common equity of a contract; for an estate in. possession. The purchaser is in arrear for a large part of the purchase-money for nine months, but is fully able to pay it, and the vendor acquiesces in the default during the whole time; and then, without any notice whatever, makes a second sale to, a person, with full notice, not only, had before, but repeated to him at the time by the vendor himsélf./^Hav-ing allowed it to subsist after the default, he cannot put an end to it by an act, which, supposing it to subsist, is in violation of it; but to that end, there must be a previous, formal, and reasonable notice, that if'the purchaser does not fulfil 'it, the other party will not hold himself bound.^ This would be the law, if the purchase-money was only secured by the articles, and the time specifically made essential therein. It is much clearer, when the vendor holds the bonds of the other party, and does not offer to surrender, them. Upon this agreement, the time also seems to be as much at large as it could be, unless it had expressed that it should not be material, arid left the money to be paid during the purchaser’s life-time, unless hastened by request.

An objection was made-to the assignments by Falls, upon the ground of maintenance or champerty. But a cestui que trust may surely assign when he or his trustee is in possession, which has been the- casq at every moment since his purchase. He has never been out of possession, and contracted on the land. The occupation of a small part by the others, for a short time, cannot affect his con*284veyances, even if that could be regarded as tortious as J. . ° against him, upon the ground that they are only construc-lively trustees.

We think, therefore, that the plaintiffs in the original bill are entitled to the usual decree for specific performance, , 1, / and to be quieted in the possession by injunction ; and that Birchett and Ormond, and those defendants who claim under them, must pay the costs; and that the cross-bill of Birchett and Ormond must be dismissed with costs. Those decrees extinguish all claim of the Carpenters to the land ; and consequently their cross-bill must also stand dismissed, as against Birchett and Ormond, and without the necessity of determining the question of fraud from their imputed concealment or representations, touching the discovery of gold; but without costs to those defendants.

Per Curiam. Decree accordingly. •