cular time, they shall be at liberty to
rescind it. In most of the cases there
have been steps taken.' 'I want a
case' he says, ' to prove that where
nothing has been done by the parties,
this court will hold, in a contract of
buying and selling, a rule that the
time is not an essential part of the
contract. Here no steps had been
taken, from the day of the sale for six
months after the expiration of the
time at which the contract was to be
completed. If a given default will
not do, what length of time will do ?
An equity arising out of one's own
neglect ! It is a singular head of
equity.' It would be impossible for
me to add to the perspicuity and en-
ergy of this reasoning ; and the lord
chancellor, in that case, held, that as
the vendor had omitted to complete a
purchase for six months, being all
that time in default, he was considered
as haying abandoned the contract;
and he said there was no case where
no step had been taken by the one
party, and the other had immediately,
when the time had elapsed, refused
to perform the agreement, that a per-
formance had been decreed.
" It may, then, be laid down as an
acknowledged rule in courts of equi-
ty, (and so the rule is considered in
the elementary treatises on this sub-
ject ;) (Newland on Contracts, 242 ;
Sug. Law of Vend. 3d London edit.
268,) that where the party who ap-
plies for a specific performance has
omitted to execute his part of the con-
tract by the time appointed for that
purpose, without being able to assign
any sufficient justification or excuse
for his delay; and when there is no-
SETON V. SLADE.
83
thing in the acts or conduct of the
other party that amounts to an acqui-
escence in that delay, the court will
not compel a specific performance.
The rule appears to be founded in the
soundest principles of policy and jus-
tice. Its tendency is to uphold good
faith and punctuality in dealing. The
notion that seems too much to prevail,
(and of which the facts in the present
case furnish an example,) that a party
may be utterly regardless of his sti-
pulated payments, and that a court of
chancery will, almost at any time, re-
lieve him from the penalty of his gross
negligence, is very injurious to good
morals, to a lively sense of obligation,
to the sanctity of contracts, and to
the character of this court. It would
be against all my impressions of the
principles of equity, to help those who
show no equitable title to relief."
Similar ground was taken in Wells
v. Smith, 2 Edwards, 78 ; 7 Paige,
522; and the vendor held entitled to
give the fullest effect to a condition,
that the contract should be void, un-
less the money were paid at the day,
by refusing a subsequent tender, al-
though the default of the purchaser
had been occasioned b} r causes wholly
beyond his own control ; while the
right to make time of the essence of the
contract was upheld in Scott v. Fields,
7 Ohio, 908; and a provision, that if
the purchase-money was not paid at
the day, the contract should be void,
said to preclude the vendee from mak-
ing a subsequent payment, a substitute
for payment at the time appointed.
These decisions were followed in Not-
son v. Barrett, 1 Iowa, 302, and a
stipulation that if the price was not
paid at the time appointed, the ven-
dor might rescind or enforce the con-
tract at pleasure, said not only to shut
the vendee out from a specific perform-
ance, but from recovering compensa-
tion for his improvements on the land ;
while the case of Bodine v. Glading, 9
Harris, 50, sustains the same view of
the question, by deciding that a con-
dition, that if the money were not paid
within fifteen days from the sale, the
vendor might re-sell at the expense of
the purchaser, rendered time essential,
and precluded either party from en-
forcing the contract, after a failure to
pay at the stipulated period.
It has, moreover, been said, that
those who desire to secure the aid of
equity, in enforcing the performance
of contracts, must show themselves
prompt, ready, and eager; and the
better opinion would seem to be, that
when there has been no waiver or ac-
' quiescence on the one side, and nothing
done under the contract, on the other,
which would render the dismissal of the
bill harsh and inequitable, unreason-
able delay may, in itself, be a bar to a
suit for specific performance; Rogers v.
Saunders, 16 Maine, 98; Be Cordova
v. Smith, 9 Texas, 129; Iligby v.
Whittaker, 8 Ohio, 198 ; Remington
v. Kelly, 7 Ohio, 103 ; Hutchcson v.
M'JVutt, 1 Id. 21 ; Llyod v. Collette,
4 Brown, C. C. 469 ; 4 Vesey, 689,
note. The law was so held in the re-
cent case of Kirby v. Haines, 2 Ohio,
N. S. 326, and the failure of the ven-
dee to pay at the day, or respond to a
subsequent demand for the money,
held to deprive him of the right to
relief in equity, although time had
not been of the essence of the contract
originally, and the vendor had not
given a peremptory notice of rescis-
sion. An entry into possession, with
the consent of the vendor, is, how-
84
SPECIFIC PERFORMANCE.
ever, always a material circumstance,
in estimating the effect of lapse of
time, and when attended or followed
by valuable improvements, of which
the vendor is cognizant, may go very
far, in rebutting a defence founded
upon a default, or delay in payment ;
Mason v. Wallace, 4 M'Lean, 77.
The question was elaborately ex-
amined in Wells v. Smith, and a fail-
ure to comply with a stipulation, that
the money should be paid at the
day, and that if it were not, the con-
tract should be void, and all right un-
der it gone both at law and in equi-
ty, held to preclude the purchaser,
although he had not only gone into
possession, but paid a half year's in-
terest, and erected a shop on the pre-
mises, on the faith of the contract.
Payment at the day, was said by the
vice chancellor, in the court below, to '
be a condition precedent, essential to
the transfer of the equitable estate in
the land, which, like other conditions
precedent, must be strictly fulfilled,
and could not be set aside or relieved
against by equity. But in the subse-
quent case of Edgarton v. Peckham,
11 Paige, 352, a contract condition-
ed to be void, unless the purchase-
money was paid at the time, and in
the manner agreed on, enforced, not-
withstanding a default in the payment
of the last instalment, on the ground
that all the prior instalments had been
punctually paid; the court saying,
that there was no reason why re-
lief should not be given against a
breach of such conditions, when the
circumstances were such as to render
it inequitable to enforce the forfeiture,
which necessarily implies that the con-
dition was subsequent, and not pre-
cedent. The result of the authori-
ties, as a whole, may, perhaps, be said
to be, that when the parties make
payment or delivery at a particular
time or period, a condition precedent
to the birth of any right under the
contract, a failure to pay or deliver,
will constitute an insuperable bar to a
bill for specific performance, founded
solely on the contract, and unaided
by extrinsic circumstances, because
equity may interpose to save vested
rights, but not to call them into being.
But a new right may grow, even
under these circumstances, out of
the entry of the vendee, and part
payment of the purchase-money, or
other acts of part performance, which
will be enforced by equity, inde-
pendently of the contract, and with
a view to prevent it from being used
as a means of surprise and oppression.
For, when what is done is sufficient to
give a right, apart from what is writ-
ten, the conditions of the writing ne-
cessarily become subsequent, what-
ever they may have been previously,
and the principles under which chan-
cery relieves against forfeitures, be-
comes fully applicable ; Edgarton
v. Peckham; Wells v. Smith; Bellamy
v. Ragsdale, 14 B. Monroe, 364. And
there can be no doubt, that where the
provisions of the contract, and the
plain intent of the parties will be de-
feated, unless an act is done within a
stipulated period, time will be not only
material, but essential, and a failure
to comply on the day, or within a rea-
sonable interval, will preclude the
right to recover, both at law and in
equity ; Willis v. Forney, 1 Busbee,
Eq. 256.
It must, however, be remembered,
that to make delay a bar to a speci-
fic performance, even when time is
SETON V. SLADE.
85
essential, it must have arisen from
the act or default of those who seek
to enforce the contract, and not of
those who resist its performance, who
will not be allowed to set up the con-
sequences of their own laches, as a
reason for withdrawing from the ful-
filment of their obligations; Potter
v. Tuttle, 22 Conn. 512.
In order to render time of the es-
sence of the contract, there must be
something more than a mere stipula-
tion, that the purchase-money shall be
paid, or the deed executed at a given
period; Remington v. Irwin, 2 Har-
ris, 143 ; Viele v. The Troy & Boston
Ra 11 Road, 21 Barbour, 381; Decamp
v. Feay, 5 S. & R. 328 ; Jackson v.
Liyon, 3 Leigh, 161, 187; and the
agreement, as a whole, must evince a
clear intention to make punctual per-
formance a condition precedent or
subsequent, which will work a forfei-
ture of the rights given by the con-
tract, unless rigorously fulfilled. Thus
in D J Arras v. Keyset', 2 Casey, 249,
a covenant, that the plaintiff should
be entitled to a conveyance, on paying
the purchase-money at any time within
a year from the execution of the cove-
nant, was held to vest an equitable
right in the covenantee, which she
might enforce by a tender made after
the expiration of the year, notwith-
standing the objection, that as the
covenantee was not bound to accept
or pay for the land, the covenantor
could not have intended that the ob-
ligation which he had assumed should
remain open for an indefinite period.
In this instance, however, the cove-
nant was contained in a lease for a
year, which had been tacitly renewed
by the lessee's holding over, and pay-
ing rent for another year, thus giving
room for the somewhat questionable
argument, that the covenant had been
renewed, as well as the term. The
language held in Decamp v. Feay, 5
S. & It. 323, goes still further, and
implies that the parties cannot make
time of the essence of the contract,
when a contract for the purchase of
land is in question, by the most ex-
press stipulation, that if the purchase-
money be not paid at the day, the con-
tract shall be at an end ; but the ques-
tion arose on a subsequent agreement,
modifying the rights given by the
original contract, which induced the
inference that the forfeiture was a
penalty against which equity would
relieve ; and the case seems to be of
somewhat doubtful authority. In Jones
v. Robbins, 29 Maine, 351, a condi-
tion in a bond, for the conveyance of
land, on the payment of two notes
given for the purchase-money, that if
the notes were not paid at maturity,
the bond should be void, was held not
to make time of the essence of the
contract, nor render a failure to pay
at the day, occasioned by illness, a bar
to a specific performance. And in
Potter v. Tuttle, 22 Conn. 512, the
court seems to have inclined in the
same direction, although the point can
hardly be said to have arisen, the ven-
dor having caused the delay, by not
being ready with the title.
Notwithstanding the case of D'Ar-
cey v. Keyser, there is much reason
for believing, that when a contract is
unilateral, and consists solely in a sti-
pulation, that the vendor will convey,
if payment be made on or before a day
certain, without imposing any obliga-
tion on the vendee to accept a convey-
ance, and make the payment, time
should be held of the essence of the
86
SPECIFIC PERFORMANCE.
contract, because otherwise, one party
would be at the mercy of the other,
and be obliged to hold the land inde-
finitely, subject to his order; Wester-
man v. Means, 2 Jones, (Penna. E.)
97. And this should, undoubtedly,
be the interpretation, when the cove-
nant is, that the vendor will convey,
if the vendee pays within a stipulated
period ; payment under those circum-
stances, being made a condition pre-
cedent, by the express terms of the
contract. When, however, the stipu-
lation is for a conveyance, on payment
within a reasonable time, what is rea-
sonable will depend, in a great mea-
sure, on the language and acts of the
parties, and the conduct of the ven-
dor in permitting the vendee to take
possession, and make valuable im-
provements, without asking for the
purchase-money, or objecting to the
failure to pay, will preclude him from
contending that the delay is unrea-
sonable; Bellinger v. Kitts, 6 Bar-
bour, 273.
Subsequent stipulations, that the
contract shall be at an end, unless
payment be made at a day certain,
partake evidently of the nature of
forfeitures, and seem to be less favor-
ably viewed by equity, than those
which form part of the original
agreement, as being in effect con-
ditions subsequent, and tending to
destroy vested interests ; Decamp v.
Feay, 5 S. & K. 323 ; and they may,
consequently, like other forfeitures,
be waived by the conduct or language
of those in whom the right to enforce
them is vested ; Wiswall v. 31' Gowan,
1 Hoffman, Ch. 139.
Even when a precise adherence to
time is not provided for by the terms
of the original bargain, cither party
will be entitled to notify the other,
of his intention to insist on the punc-
tual fulfilment of its stipulations, and
to rescind it if they are not fulfilled.
And when this course is adopted by
one who has been guilty of no default,
and who tenders a present perform-
ance on his side, as the equivalent for
the demand made on the other, equity
will regard a failure on the part of the
latter, as & prima facie, if not a con-
clusive bar to a specific performance ;
Walker v. Jeffries, 1 Hare, 341, 3-48.
In Brashier v. Gratz, 6 Wheaton,
528, notes were given for the pur-
chase-money by the vendee, who took
the burden of the legal measure neces-
sary to complete the title on himself.
These notes were not paid at maturi-
ty, nor for several years afterwards,
nor were any efficient measures taken
by the vendee to clear the title. The
vendor finally offered to convey, if the
vendee would make payment, and re-
ceiving no answer, took the matter
into his own hands, and completed
the title for his own benefit. Under
these circumstances, the vendee was
held not to be entitled to a specific
performance. The right of the ven-
dor to determine the contract, by an
express notice that he will consider it
at an end, unless the default of the ven-
dee is made good by an immediate pay-
ment, was also held in Rogers v. Saun-
ders, 16 Maine, 92; Hatch v. Cobb, 4
Johns. Ch. 559 ; Kirby v. Harrison, 2
Ohio, N. S. 326, 332; and Jackson v.
Ligon, 3 Leigh, 161. The time fixed
for the notice must be reasonable, and
not such as needlessly to embarrass
the opposite party, by requiring him
to do that at once, which is impossi-
ble at the moment, but which might be
accomplished within a short period ;
SETON V. SLADE.
87
Wiswall v. 31' Gowan, 1 Hoffman, Ch.
125, 139 j and the notice itself must be
sufficiently explicit, to leave no doubt
of the penalty which will be exacted
for a non-compliance with its terms,
on the one hand, nor that a deed will
be executed on the other, and pay-
ment made, if its terms be complied
with ; Tiernan v. Roland, 3 Harris,
429 ; but with these restrictions, the
right of either party to bring the con-
tract to a close, in one way or the
other, is undoubted, and has been
repeatedly vindicated by courts of
equity; Southcomb v. The Bishop
of Exeter, 6 Hare, 213 ; Thompson
v. Dulles, 5 Richardson, Equity, 370 ;
Higby v. Whittaker, 8 Ohio, 198.
When, however, the vendor sent a
notice, fixing the 25th of January as
the period at which he insisted on the
final execution of the contract, and a
correspondence followed between the
counsel of the parties, which did not
terminate until February 5th ; a bill
filed by the vendee on the 4th of
March, asking and tendering an im-
mediate execution, was held in time to
exonerate him from the charge of
laches j the existence of an incum-
brance, affording a sufficient explana-
tion for his not proceeding sooner, and
without the aid of the court ; Prothero
v. Smith, 6 Richardson, Equity, 324.
It would seem doubtful, whether
any length of default will give a
right to determine the contract, in
the absence of notice, and where
the presumption of abandonment is
repelled by actual possession. But
there can be no doubt, that delay
may constitute a bar to a specific
performance, when it results in a
change of the attendant circumstan-
ces, of such a nature as to render it
inequitable to enforce the contract ;
Pratt v. Carroll, 8 Cranch, 471 ; An-
thony v. Leftwich, 3 Randolph, 238 ;
Bellas v. Hays, 5 S. & R. 427 ; Pat-
terson v. Martz, 8 Watts, 373 ; ante.
And delay will always operate strong-
ly on the mind of a chancellor, in
doubtful or suspicious cases, or when
the evidence is in other respects equal-
ly balanced, by affording ground for
the belief that it may have been in-
tentional, and with a hope of obtaining
an unfair advantage, or that time would
sweep away the witnesses, or proof of
the opposite party ; Kirby v. Harri-
son, 2 Ohio, N. S. 324 ; Smith v.
Texas, 13 Texas, 459. In this re-
spect, the course of equity differs es-
sentially from that of the common
law, which, regarding time as mate-
rial until the right of action is com-
pleted, regards it as wholly immate-
rial afterwards, unless enduring suffi-
ciently long, to give rise to a presump-
tion of release or payment.
Where there is an inability to com-
ply with the requisitions of the con-
tract in substance, the difficulty is
much greater than where there has
been merely a failure to fulfil them at
the appointed time. Even, under
these circumstances, however, equity
does not consider its jurisdiction over
the contract as necessarily at an end,
but will go as far as it can consistent-
ly with justice, in carrying it into exe-
cution. When the inability or fail-
ure to fulfil the contract, is on the side
of the party who seeks to enforce it,
it might have been thought more in
harmony with general principles, to
refuse to compel the other party to
accept a substituted performance, in-
stead of that to which he is entitled
by the terms of the contract ; Reed
88
SPECIFIC PERFORMANCE.
v. Noe, 9 Yerger, 283. Still, how-
ever, if the difference be immaterial
in itself, or manifestly and exactly sus-
ceptible of compensation, it may be
more equitable, to mould the contract
to suit the circumstances, than to al-
low it to fail altogether; Tomlinson
v. Savage, 6 Iredell, Eq. 430. Thus,
in King v. Bardeau, 6 Johnson, Ch,
38, where two lots were sold at auc-
tion at the same time, and to the same
person, and the buildings on one pro-
jected on to the other, it was held
that the vendor might enforce the per-
formance of the contract against the
purchaser, although the latter was en-
titled to a deduction from the pur-
chase-money, in proportion to the
diminution in the value of the pur-
chase. In this case, however the
purchaser obtained all that he had
bargained for, with regard both to
boundaries and quantity, and the dif-
ficulty arose solely out of a misdescrip-
tion of the buildings, as standing
wholly on one lot, while they really
overreached a few inches on the other.
It is, therefore, hardly a precedent for
compelling the vendee to accept a con-
veyance of land, differing materially
in position, quantity, or value, from
that which he has agreed to purchase.
The same remark applies to the case
of Weems v. Brewer, 2 Harris & Gill,
390. The vendee there set up the
failure of the vendor's title to part of
the land, as a reason why he should
not be compelled to complete the pur-
chase. But as it appeared that he had
purchased in the adverse title to this
part, and thus at once removed the
defect, and furnished a measure of
compensation for its existence, a spe-
cific performance of the contract was
decreed, with a deduction of the
amount, which he had paid from the
purchase-money.
Some of the earlier, if not of the
later, English cases, carried the doc-
trine further, and to the extent of
compelling the purchaser to accept a
performance materially different from
that for which he had stipulated, and
to make up the difference, by a corres-
ponding deduction from the purchase-
money, (ante, 70,)' and dicta may
be found in this country, sanctioning
the same doctrine. But it has not
been fully or authoritatively estab-
lished by actual decision. In Hep-
hurn v. Auld, 5 Cranch, 27G, the
majority of the court held, that the
vendee might be compelled to com-
plete the contract, where the quantity
of land proved less than had been im-
agined, but not where there was a
failure of title to part of the land.
But Livingston, J., expressed his dis-
sent on the former point, and from
the idea, that there can be any right
to apportion the contract at the re-
quest of the vendor, and compel the
vendee to accept a smaller quantity
of land than he has purchased, with
a compensation, for the want of the
residue. In Jackson v. Ligon, 3
Leigh, 161, the vendee, who had pur-
chased a farm of 686 acres, and gone
into possession of the whole, was held
entitled to throw up the whole bar-
gain, on discovering that the title was
defective as to 206 acres, although
separated from the residue by a public
road. In Best v. Stow, 2 Sandford,
298, the court refused to compel a
vendee to accept lands lying in one
county, which had been represented
by the vendor as situated in another,
or to enter into an examination, whe-
ther the mistake was material in itself,
SETON V. SIADE.
89
or susceptible of pecuniary compensa-
tion. And in M'Kean v. Reed, 6 Lit-
tell's Select Cases, 395, it was decided,
that the vendee could not be com-
pelled to accept part of the land pur-
chased, with compensation for the
failure to convey the residue. And
the same rule was followed in Buch-
anan v. Alwell, 8 Humphreys, 516,
and Cunningham v. Sharp, 11 Id.
116.
Although a court of equity may not
be entitled to apportion an entire con-
tract, there can be no such difficulty,
when the contract is severable either
in its terms or its nature. Thus, in
Osborne v. Bremar, 1 Dessaussure,
486, where lots of land were sold
severally at auction, it was decided,
that the circumstance that they were
bought by one purchaser, did not
render the contract entire for the
whole, nor entitle him to make a
failure of title to one, a ground for re-
sisting a specific performance as to
the rest, although he had in fact pur-
chased the latter, solely with a view
to the use of the former. But it does
not necessarily follow, that a contract
is severable because it relates to two
distinct tracts of land, and it was held
in Cunningham v. Sliarp, 11 Hum-
phreys, 116, that when two different
though adjoining tracts were bought
at the same time, a failure of title to
one, was a bar to a bill filed to compel
the purchaser to accept a conveyance
of the other.
The case of a party who seeks to
make his own inability to comply with
the contract, the ground of an applica-
tion to compel the other party to ac-
cept a substituted performance, stands
on the extreme verge of equitable
jurisdiction, and close to the line,
which separates the power of enforc-
ing obligations, from that of impos-
ing them; 2 Story, Equity, sect. 779.
But the case is obviously different,
where the inability of the defendant
to fulfil the contract, is set up as a bar
to the relief sought by the complain-
ant. Under these circumstances the
latter is entitled to have the contract
fulfilled as far as practicable, and to
obtain compensation on those points
which do not admit of fulfilment;
Harbers v. Gadsden, 6 Richardson,
Eq. 284 ; Clark v. Reins, 12 Grattan,
98, 113. The application of this rule
is well illustrated by the case of
Waters v. Travis, 9 Johnson, 450 ;
where a suit was brought for specific
performance by a vendee, against a
vendor, who had disabled himself from
fulfilling the contract, by selling part
of the land to a third person. Under
these circumstances, it was contended
on behalf of the defendant, that as
the execution of the original contract
had become impossible, equity could