Buchannon et al. v. Upshaw. same. No money was ever collected, either by Shackleford or the appellee, on Coats's bond. The defence successfully made by Buckner in the Circuit Court of Kentucky to the action brought by the appellee, as assignee, to recover the purchasemoney due on the land, evinced a determination on his part not to perform the contract he had made with Shackleford, and, by that unequivocal act, the appellee had a right to declare the contract at an end, and no further obligatory on him; and he did so declare it, and immediately thereafter commenced an action of ejectment in the seventh Circuit Court of the United States, district of Ohio, against the tenants in possession, who claimed to have derived their title under Buckner. To that action, the appellants, or the persons under whom they claim, were admitted as defendants, and, on trial, a verdict and judgment were rendered in their favour, on the ground that the appellee, who was the lessor of the plaintiff, was only invested with the equitable title under and in virtue of the deed to him from Roy, which was based on a patent granted to him by the commonwealth of Virginia, which bore date subsequent to the date of the deed of cession from Virginia to the United States. Being thus defeated in every attempt made by him, first, to recover the money for which the land had been sold by Shackleford to Buckner, and, second, to recover possession of the land itself, the appellee procured from Roy and wife a second deed of conveyance, and, in 1826, obtained from the United States a patent for the land, on which he instituted an action of ejectment against the appellants, and obtained a verdict and judgment of eviction against them; and in order to obtain a perpetual injunction against further proceedings on that judgment, and to compel a conveyance of the lands in question, the appellant filed the bill under which the decree complained of was rendered. 5. And the question here occurs, were this a suit prosecuted by Buckner or his legal representatives against the appellee, in order to compel the specific execution of the contract entered into between Shackleford and Buckner, for the sale and conveyance of the lands in question, would this court grant the relief asked? Buckner has neither paid nor tendered payment of the purchasemoney. Would this court, then, decree in his favour? Is it not a rule in equity, that where the party to a contract not only neg Buchannon et al. v. Upshaw. lects to perform it, but, by his conduct, evinces a determination not to perform it, that the opposite party is at liberty to put an end to it; and that where the purchaser neglects for an unreasonable length of time, although often requested, to pay the purchase-money, and in the mean time, as in the present-case, the land has increased in value tenfold, that a court of equity will nót interpose in his behalf, by compelling the specific execution. of the contract? If Buckner had made prompt payment, the appellee could readily have invested the avails of the sale in other western lands, which, at this day, would have been worth thousands of dollars more than the lands in question, with all the improvements which have been made on the lands by the appellants, and have avoided the trouble and expense of many long and wearisome journeys, and the expenditure of thousands of dollars in ineffectual attempts to recover his just rights. Is it not also a rule in equity, that he who asks must himself do equity to him against whom he asks it; and that he who claims. the aid of a court of equity must show that he has not only been at all times ready, willing, anxious, and eager to perform the stipulations on his part, but that he has either actually performed or tendered performance on his part, and that the opposite party refused compliance on his part? These principles are so well understood, and have so often received the sanction of this court, that we do not deem it necessary to cite authorities in support of them. We therefore respectfully submit, that were Buckner or his heirs the parties complainant in this suit, that a specific execution of the contract in question would not be decreed by this honourable court. 6. Do the appellants, as against the appellee, stand upon more favourable ground in a court of equity than Buckner or his representative would have stood? No consideration ever moved from the appellants to the appellee as an inducement to the conveyances asked; they never tendered, nor do they, in their bill, offer to pay the consideration money contracted to be paid by Buckner. They were not parties to the contract made by Shackleford with Buckner, and consequently no privity of contract exists between them and the appellee. Upon what ground or principle, then, are the appellants, as against the appellee, entitled to the relief prayed for in their bill? Upon the ground of privity of Buchannon et al. v. Upshaw. contract, they are not entitled to relief, because such privity existed. The appellants have, however, invoked the benefit of the contract between Shackleford and Buckner, which has been assigned to the appellee; but can that contract, if it were admitted they are entitled to its benefit, aid them? The terms of that contract were never performed by Buckner. If they are entitled to the aid of that contract, it must be on the ground, that in equity, though not at law, they must be considered as Buckner's assignees, and consequently, in reference to that contract, as standing in his shoes; and with ra erence to the appellee, as subject to the same equity to which it was subject in the hands of Buckner. As the assignees of Buckner, they acquired no better title in equity than was vested in Buckner at the time of the assignment. If, therefore, Buckner could not in equity compel the specific execution of the contract in question, neither can the appellants compel it. The assignee of a contract for the sale and conveyance of land, where he himself has neither performed nor tendered performance, must abide the fate which awaited the assignor, where he neither fulfilled nor offered to fulfil the terms of the contracts, the specific execution of which is sought. In Stanley v. Gadsby, 10 Peters, 522, this court is reported to have said, "If a complainant does not aver in his bill his readiness to pay both principal and interest, he can have no standing in a court of equity." The payment or tender of the purchasemoney is indispensable on the part of him who asks the specific execution of a contract. Stratford v. Alborough, Ridgeway's Ch. R., and 2 Bligh's R. 596, 4. Again: both Buckner and the appellants have trifled with the appellee; and it seems to be a settled rule in equity, that where one party to an agreement trifles, and shows a backwardness to perform on his part, equity will not decree a specific performance in his favour. Harrington v. Wheeler, 11 Ves. 856. In the case of Edwards v. Parker, lately pending in Brown county, Ohio, which was a bill to enforce the specific execution of a contract, the Supreme Court of the state refused to decree in favour of the complainant, on account of the lapse of time since the contract should have been complied with. S. P. Mayo v. Deschamps, 13 Ves. 25; Grant v. Humphrey, 8 Ves. 815; and Highby v. Whittaker, 8 Ohio, 201. In this last case the purchaser of the land delayed payment of Buchannon et al v. Upshaw. the principal part of the purchase-money for about ten years after it was due, and the court decided that he could not compel, in equity, the specific execution of the contract; that the trifling indisposition of the complainant, his want of integrity and intention to pay for the property, and his utter inability to do it, unquestionably gave to Burchard, under whom Whittaker claimed, the right to put an end to the contract; and that as the complainant had occupied the land sold, the fair rent of which was equal to the actual payment made, Brunce, the seller, had a right to rescind without offering to refund the amount received. See, also, Remington v. Kelly et al., 7 Ohio R. 103. It is now more than forty-one years since the purchase-money for the lands in question fell due, and during that whole period neither Buckner nor the appellants have either paid or offered to pay the purchasemoney; upon what ground, then, can they insist that the decree is erroneous? Every man is to suffer for his own delay or neglect. Speake v. Speake, 1 Ves. 217. The plaintiff in equity, if he either will not, or, through his own negligence, he cannot, perform the whole on his side, has no title in equity to the performance of the other party. Butcher v. Hinton, 1 Ch. Ca. 302; Keen v. Stukely, Gil. R. 155; Pope v. Roots, 7 Bro. P. C. 184; Earl of Evershap v. Watson, Rep. Temp. Finch, 445; 2 Freeman, 35; Hutton v. Long, Temp. Finch, 12. So, if the plaintiff has not performed his part of the agreement, he must, in equity, show that he was in no default in not performing it, but must also allege that he is still ready to perform it. Fields v. Hooker, Merivale, 224; and Fane v. Spencer, Merival, 430, in note. And upon this reasoning it is, that when a man has trifled or shown a backwardness in performing his part of the contract, equity will not decree a specific contract in his favour, especially if circumstances are altered. Hayes v. Caryll, Jan. 1792; 5 Vin. Abr. 538, pl. 18. Neither will equity decree an agreement which appears afterwards to have been discharged by parol, though the original agreement was in writing: Goman v. Salisbury, 1 Ves. 240; Lord Milton v. Edgworth, 6 Brown, P. C. 580; Segal v. Miller, 2 Ves. 299; Inge v. Sipping well, Dick. 469; Daved v. Simonds, 1 Cox's R. 406; and Stephens v. Cooper, 1 Johns. Ch. R. 420, 430. In the case of Heafly v. Hill, the specific performance of an agreement to grant a lease was refused, Buchannon et al. v. Upshaw. the plaintiff having failed to file his bill for more than two years since notice from defendant of his intent not to perform his contract, on account of the plaintiff's non-fulfilment of his part of the agreement. In this case, at the time of service of the declarations. in the first action of ejectment brought by the appellee against the appellants, the appellants had notice that the appellee did not intend to perform the agreement in question, on account of the neglect of Buckner in not paying the purchase-money due on the land; and yet no payment or offer of payment was made by them, nor did they file their present bill until more than ten years had elapsed after the receipt of actual notice that the appellee considered the contract at an end, and no further obligatory on him. Even in the bill which the appellants have filed, (but which they never filed until all their efforts to baffle the appellee at law had failed,) they have not tendered payment of the purchase-money, unless that clause in the prayer of their bill which asks for a decree upon such terms as the court may seem just can be construed as an offer to pay the purchase-money due, with interest. To construe that clause in the prayer of the bill as an offer to pay would be giving to it a construction which is incompatible with the general frame of the bill, and the grounds on which the appellants have based their right to the relief invoked. The appellants have based their right to relief on three grounds: 1st. That Shackleford, or the appellee, neglected to collect the amount due on Coats's bond. 2d. If that be not true, that they, or one of them, neglected to collect the purchase-money of Buck And, 3d. That the appellee never acquired his legal title until 1826. And, first, as to Coats's bond: Were it true, as charged, that it was through the mismanagement or omission of Shackleford, or the appellee, or both of them, that Coats's bond was not collected, would the condition of the appellants be improved thereby? We think not. The balance due on Coats's bond was £250, and the entire sum due was £420. Consequently, there remained due, after deducting Coats's bond, £170, which fell due in 1799. This balance has never been either paid or tendered to the appellee. If, therefore, the balance of Coats's bond was lost through the negligence of Shackleford and the appellec, or one of them, that negligence only operated as a release pro tanto of the obligation of Buckner to pay, or tender pay |