#### *Stevenson and wife vs. Dunlap's and Blight’s heirs.*

Chancer ít.

Case 24.

Apnoal from the Hardin Circuit; Paul I. Booker, Judge.

*Evidence. Writings. Copies. Crossbills. Jlppeals. Conditions precedent. Specific performance. Parol contracts. Improvements and rents. Leases. Practice. Liens.*

Case stated.

Title to the land.

Ground of Stevenson’s Blaim.

April 25.

Judge Mills

delivered the Opinion of the Court.

[Absent - Chief Justice Bibb.]

This is a bill in chancery, brought first by Stevenson and wife, for the specific performance of a contract, in which, if granted, it will be necessary to divide and direct a conveyance of part of 131,000 acres of land.

These lands were entered, as alleged, 98,000 acres thereof, in the name of William M'Williauis, in one entry, 28,000 acres in the name of John Hawkins, in another tract, and 5000 acres thereof, in the name of Paul Simon, in a third entry: the date of the entries does not appear from the record. The surveys were made in September, 1787, and the patents issued jointly to John Dunlap and Michael Hilligas, on the 4th of February, 1788. John Dunlap the patentee, died, and devised all ids interest to his sou, John Dunlap, jr. who sold and conveyed the same to Samuel Blight, liis brother-in-law,'who had ako married a daughter of John Dunlap the elder. Michael Hilligas, the other patentee, died, having first devised his land to his children, who sold and conveyed ail, except a small portion thereof to the said Samuel Blight, and although tiie heirs and devisees of the patentees, are made parties, and are proceeded against as non-residents, yet the style of the controversy’, is between Stevenson and *wile, and Blight*who lias appeared and answered.

The extent claimed by Stevenson and wife, is two ninths of the whole, and their equity, as they allege, is based on an article of agreement, dated on the 8th of October, 1783, between the said John Dunlap, Michael Hilligas, the patentees, and James Dim-lap, George Keightly and William Origin which it is stipulated, that the parties are interested in sundry *135tmiocated land warrants, the said John Dunlap, James Dunlap, George Keightly and William Orr, to the amount of two ninths each, and Hilligas to one ninth, ail being then in Philadelphia, which warrants, the said James Dunlap, Keightly and Orr, were to bring to the western country, and have surveyed, and the plats and certificates returned, on certain conditions and stipulations hereafter more fully noticed, and then, each by allotment, was to draw and receive patents in their own names.

Alexander’s answcr-

James Dunlap, Keightly, and Orr, did come to Kentucky, in the fall 1783. Keightly was killed by the Indians in the spring, or beginning of the summer, 1784, leaving one infant daughter, who is now Mrs. Stevenson, the appellant, then in Ireland, where both she, and her father were born; be never having left that country till the summer 1783, and he died a subject of the king of Great Britain. James Dunlap lived many years afterwards, but at length died unmarried and childless, leaving no relations in America, save the aforesaid John Dunlap the elder, who was his brother. James having been a native of Ireland, was never in the United States till he came with Keightly, in the year 1783.

Orr, was also, an Irishman, who came to America with James Dunlap and Keightly, and returned to Ireland a few years afterwards, and staid sometime, and then returned to America in the year 1793, and he died in 1801, but not till after *he*liad sold and conveyed his interest, which, he claimed in these lauds, to a Mr. Fulton, of Baltimore, who sold and conveyed it to John Alexander, whom Stevenson and wife make defendant to their bill, as now standing in the place of one of the original partners.

Alexander answered the bill, admitting the equity of Mrs. Stevenson, as heiress of Keightly, one of the partners, and alleging that he is entitled to the interest of Orr, and by a singular course of pleading, made his answer a bill also against Blight and the children of John Dunlap, and the children of Hilligas, and prays that *Ms*interest may be assigned and conveyed to him.

*136Stevenson and wife’s and Alexander’s bill dismissed ; appeal by Stevenson and wife only

Blight had notice of Stevenson’p claim.

Evidence in proof the original agreement between the Dunlaps, Keightly, Orr and Hilligas and the *copy*produced.

Blight answered'him, setting up the same defence, which he relies on against Stevenson and wife.

The court dismissed the bill of Stevenson and wife, as well as that of Alexander, and from that decree Stevenson and wife have appealed to this court.

The merits of the claim and defence will appear in the consideration of the case, and need not be recited, except so far as shall be necessary to understand the questions decided.

Blight, though a purchaser of these lands, cannot pretend to stand as an innocent purchaser, who. has completed his title, and paid the consideration without notice of the claims setup thereto *by the*heiress of Keightly. For *the*proof is dear, that he heard of the claim long before he purchased, and in his answer, although he alleges himself to be a *bona fide*purchaser, yet he does not once deny notice of the claim. It is, therefore, evident, that he has gained no advantage in the controversy by his purchase, but must stand in the shoes of Hilligas and John Dunlap, and must resist the equity set up by the same defence that the patentees could have made against it. The share of the partners, John Dunlap and Hilligas, is secured, tmd more than secured by the legal title being vested in them by the patents. The share of James Dunlap, has passed by inheritance to John Dunlap, if it existed, and could pass, or descend in his situation as an alien. The parts, therefore, of Keightly and Orr, are alone left to be settled.

We have had some difficulty in admitting the article of agreement relied on in the bill. The complainants only present a writing, which purports *to*be a copy taken from the records of the county where the land lies, and where another copy was also illegally recorded. They declare their ignorance of where the original is, and charge some of the defendants with having it in their possession. Blight denies having the original, and also denies that the copy produced, is a true copy, and requires proof, and further denies knowledge of the. contents. *137of the original. The complainants, Stevenson and wife, do not prove that the original was ever executed, or produce the subscribing witnesses, or show what was become of them, or prove either their hand writing, or the hand writing of the parties. But Stevenson and wife .have maeje proof bv Alexander himself, that about the year 1 *'¡93, at*the request of Orr, lie called opon John Dunlap, for the original instrument, and Dunlap informed him that *it*was it¡ the custody of Hilligas, the other patentee, from whom he obtained an inspection of it, and that it was in the handwriting of the parties thereto, as to the signatures, and that the copy now produced is a true copy.

When one party produces a deed *en* ire par ies*on the notice of the other party, its execution may be pr» sumed it seems.

Circumstantial evidence in proof of •writings.

It has been held in some cases of trials at common law, that if a party, on notice given for that end, produces a writing *entre*parlies, on the call of his adversary, the adversary need not proveí its execution, because the law, in such case will presume it genuine, and that the party producing it, would not attempt to withhold it, and then produce it against himself, unless it was so.

This case is somewhat analogous, and although the cases are contradictory on this point, yet, when it is known, that this writing was executed in Philadelphia, if executed at all, forty years before this trial, where the witnesses m.iist, in all probability, have resided, that it was directed to by one of the patentees, and *produced by*the other; that John Dunlap has in more instances than one, both by writing and in words, recognized the claims of Keightly, and in one or two receipts for taxes, given to Mrs. Stevenson’s uncles, for taxes on the land advanced for her by them, expressed her interest, or claim to be two ninths, which corresponds with the copy produced, and both John *Dunlap*and Hilligas, in a letter to the mother of Mrs. Stevenson in Ireland, have both admitted, that the father, George Keightly, had some interest, we incline to the opinion, that the complainants, Stevenson and wife, may be, allowed to resort to the inferior evidence of a copy, after proving that it corresponds with the original *138produced, and shewn formerly by the patentees themselves.

Substance of the original <r groernont between the Dunlaps, Iieightl,, Orr, &c. ?•

Allegations of the bill of

As to Alexander, however, the case might be different. His deposition could not be used, and is riot offered to be used in his own case. But we do not conceive that it is proper to decide whether lie can or cannot use this copy, for a reason hereafter mentioned.

The article recites, that the parties had purchased sundry Virginia land warrants, and recites the names to whom issued the numbers and quantities of each, and then contains the following precedent conditions and stipulations, to be performed on the part of Keightly, James Dunlap and Orr. The quantity was 135,000 acres in the whole, and they were to set off with convenient speed, from Philadelphia to Pittsburgh, thence down the Ohio, and to enter some of its waters in search of unlocated and unappropriated good land, if the same was not attainable on the banks of the Ohio, and when found, to cause the quantity of lands to be surveyed by the surveyor of the county, in one, or as mahy spots or places, as should be to the greatest advantage of the concern, to obtain drafts of the same, and returns of survey to the proper officers, from the said surveyors, to the end, that patents for the land might be obtained. The instrument then proceeded *to*state, that when the said James Dunlap, Orr and Keightly, should ‘‘so” have superintended the surveys *oí*the alorementioned land, and have the drafts and returns thereof made out, then the parties should draw lots for the same, in small parcels, to render the whole more equal, and that patents might issue accordingly. Then John Dunlap and Milligas were to pay the acting partners, James Dunlap, Keightly and Orr, their proportion of the expenses of the trip, according to the quality and quantity which they should obtain, and likewise, pay six dollars for each thousand acres of respective shares.

The bill of the complainants, Stevenson and wife, does not fully allege the performance of these precedent conditions, on the part of Keightly during his *139life, or of bis co-partners, James Dunlap anti Orr, after his death, to the extent of their undertaking,

Stevenson the'surviving the ia..dsa.net °bJammg the pa en s'

When a detheoridmd bill files a* ' cross bili.mac;°" and others defendants, cross bill are each disnass«ppeal °¡ Comp!afn!" ant does not bnr>g the decj“fis‘ms9' bill be.orethe .court,

The amount of their allegations is this, that James Dunlap, Keightly and Orr, did proceed from Philadelphia to Kentucky, and caused the land to be located and entered, or 131,900 acres thereof, leaving the remaining 4000 acres in the dark, as to what had become of them. They further allege, that *George Keightly*made ample provision and disbursements for the surveying of the lands before he was killed, and that John Dunlap and Hilligas luid, in fraud of the rights of the heiress of Keightly, got the lands patented to themselves. They say nothing about what Orr and James Dunlap did after the death of Keightly, although they were first the joint, and then the surviving obligors of Keightly.

The bill of Alexander, and also his answer in tbis respect, is still more deficient. But we need not notice it, except so far as it might he brought in aid of blevenson and wife. For, from a minute examination of the record, it will appear, that the case ot Alexander is not before the court. I lie court below, as was very proper, dismissed his bill by a separate decree, and lie prayed a separate appeal, yet he never entered into an appeal bond. He is, therefore, only before the court as a defendant to to the bill of Stevenson and wife, as far as it is necessary to do them justice. His own claims., set up by a bill attached to his answer, forma distinct suit, although he has been allowed to attach it to Ihe suit of Stevenson and wife. It is not so inti«lately connected with the first suit that justice cannot be done without his claim. And although, it js a general rule, that when a complainant appeals, he brings with him all the parties to the bill and decree as they stood in the court below, yet it does not thence follow., if one of the defendants shall, by a bill attached to his answer, contrary to the usages of a court of equity, implead another defendant, or a stranger in a controversy, in which the original complainant had no concern, that this latter controversy is brought before this court on the appeal of *140the original complainant. Alexander had a right, or an election, to acquiesce in the decree against him, orto appeal from it. Helias chosen the former course, by omitting to execute an appeal bond. Jr therefore, we should say, that Stevenson and wjj-e^ jjy their appeal, have brought the controversy between Alexander and the other defendants before the court, where it must be tried, it would be allowing Stevenson and wife to compel Alexander to try the cause in tiiis court without *Ids*consent, and of subjecting the defendant in his bill to an adjudication ol‘ this court, when neither the complainants or defendants in his suit require it. Buck a consequence cannot bo allowed. And although it has been supposed in argument, *that*he is a party complainant here, and he has been represented by an argument made in ids favor, yet it has arisen from the inattention of counsel, in not attending to the tree state of the record in this respect.

Blight’? aniiunmisón” ami wife' tmiltTiCtijbtiy.

Evidence of the non-performance of the agreement on the part of Keightly,Orr, fee. and ex-*141TT~ b^JohuDunlap for survoying,&e-

*140In answer to the bill of Stevenson and wife, Blight insists, that the locators, if they located at ,iot only did not get good land, as they were bound to do, when they might have done so by lo-eating in smaller tracts, as their undertaking contemplated, hut tiiat they located on, bad lands in large bodies, and on lands before appropriated, ami that they never accounted for 4000 acres of the warrants, but appropriated them to their own use. But lie denies that they ever located the warrants at ail, or paid one article of expense attending the same; that they did not pay their respective portions in the-purchase of the warrants at first, that they did not pay a cent for either locating, surveying or returning the plats and certificates to the register’s office, or pay’any’expenses incident thereto, or the taxes thereon due to the government since

Before we ascertain whether these then acting partners, James Dunlap, Keightly and Orr, or either of them, did acquire as good land as they’ ought,, or as they might have done, we will ascertain whether they really did locate. They came to Kentucky it is true; but they brought with them an adventure in merchandize, and set up a store in Dan-*141ville, which James Dunlap attended to, and another at Louisville, under the immediate care of Keightly, who was killed near that place; anti it is not shown by any express proof, that, they ever did one act towards locating the warrants, and indeed, the entries are not filed, nor can we know, from this record, whether they’ were" made before the death of Keightly or not. It is ascertained by the proof, that a certain Joshua Archer located the warrants, and acted as a pilot, in conducting the surveys, and the only act shown to be done by the acting partners, is, that Orr attended making a part of the surveys. It is also clearly proved, that Archer never was paid for locating by either of the acting partners, Janies Dunlap, Orr or Keightly, but on the contrary, he claimed and received for his services, $G66 66'2-3, paid by John Dunlap. The surveys were never made, till 1787, long after others had surveyed and obtained older grants on a large proportion of the ground, and even then, the surveying was paid for by John Dunlap, to the amount of $1373 33. The like may he said of the register’s fees on the return of the plats and certificates to his office, amounting to $262 18.

Effect oi'the contract.’

Taxes,

We waive the price of the original warrants, which is alleged to have been paid by John Dunlap, because we suppose that the agreement recognizes an interest in the partners, James Dunlap, Keightly and On, and we conceive that it is inferrible from the agreement, that this interest was to be paid for by the personal services of these then acting partners, or in travelling and locating, and in surveyor’s and register’s fees, of which, according to the most liberal interpretation of the agreement, John Dunlap and Uiiligas, could not be bound to *pay*more than their proportion, and six dollars for each thous- and acres of their interest, in addition, and that after the acting partners had first performed their duty-

The taxes also, on the whole land, have been paid from the commencement of the government to the trial of this suit, except the taxes from the year 1792 to 1799, which have been refunded to John Dunlap, by two of the uncles of Mrs. Stevenson.

*142To obtain a specific performance, the complainant ru nsi show tljo performance of the conditions precedent on ■iiis part'oraooonnt for bis failure, and shew that Iiis defalcation is a proper subject for compensation.

¡'’aiinreofone partner in his pn-lertakinu to make the locations and ’nave the surveys executed, cannot be compensated, and tin; <lehiijltoralloH'r É-d Jus part of Jiio land.

Tliese large expenditures of money by John Dunlap, impoed upon bitn by the direct failure of those who were bound to perform their precedent conditions, are sufficient to cause a court of equity to refuse its aid.

To reach a specific performance, the complainant must show that he has performed his part, if precedent, and that he is ready to do so, if his part is to be a subsequent act. At least, he must show a substantial performance, or that he was precluded from performing by the conduct of the defendant, or that there was an incidental failure, which was a proper subject, of compensation, and that, without compensation was admitted, complete justice could not take ¡dace, otherwise, if ample justice can *he*done by compensation to (he complainant, tor ids partial performance, he is almost always left to his remedy at law.

Tliis Case, we conceive, cannot lie a case of compensation by the complainant to the defendant, cito John Dunlap and Hilligas, if they were before the court. The personal service of searching out, and fixing opona territory, and ascertaining the objects there, by which a description of the land could be embodied in an entry, was a work that the acting partners were to see well performed, and is ■ a very important p irt of the duty, so much so, that it is well known in the history of the jurisprudence of this country, that it was usual to give a third, and more frequently a half of the warrants for the performance of it. This would be, therefore, an insurmountable objection *per*se, to the enforcement of this contract, and it is more weighty when added to the fact, that through the failure of these acting partners, *John Dun*Jap and Hilligas, had afterwards to advance large sums for *the*location, surveying and returning the surveys of the whole quantity, or otherwise, be in danger of loosing all tfieir interest in the adventure. We cannot, therefore, conceive that Stevenson and wife have shown any vested equity in Keightly under the contract, by virtue of any thing that her ancestor did, added to all that was done by both James Dunlap and Orr.

*143Interest of an alien in lands in Kentucky, in the year 1784,did not pass to his heir, but es ■ cheated without office found.

Statute of Kentucky graining to Mrs. Stevenson whatever rights es-cheated on the death of Keightly.

Grant by the °j overreaches'2 intervening grants tooth-under th1"6^ general law.

We have been thus particular in ascertaining the merits of the equity reported on its original grounds, abstracted from other considerations, and subsequent events, and it was necessary thus to settle its value, for the purpose of meeting another claim which is set up by the complainants.

It is clear, that if Keightly had an equity at his death, it could not descend to, and vest in his daughter, because both he himself, and his daughter were aliens, and of course, his interest in lands could not descend to her, but it would pass to the Commonwealth by escheat, and no inquest of office was necesary for ascertamg the escheat.

On the 11th of December, 1823, the legislature of this State passed an act, as will be seen in the session acts of that year, reciting the agreement, and the death of Keightly, and the supposed escheat in consequence of his alienage, and granting to Mrs. Stevenson all the right of Keightly, escheated to the Commonwealth, and this act is relied on by the complainants, as j’emoving the bar of alienage, and giving them a title to the land.

This act has not granted more than Keightly had, and which the Commonwealth took by escheat at his death. Now if we admit that an equity could be escheated and pass to' the government as well as a legal estate, and that after the Commonwealth took an equity, she could z’egrant it without prejudice from an intervening grant, as this court has held with regard to a patent in 3 Litt. 394, and at the present term, in the case of Pope &c. vs. Hart’s heirs, and of course, that the grants or patents, to John Dunlap and Iiilligas, could not prevent the operation of the act, still the enquiry must go back to the equity held by Keightly. The act has granted no more than what the State took from him, and if that was not a valid equity, at the time it was received, it is not rendered more operative by the statute, and as we have seen that it was not a valid subsisting equitable estate at that time, the act is of no service to the cause of the complainant.

*144DnnJap’sre- - cognition of Mrs. Stevenson’s right to the portion of the land claimed under Keightly.

But it is insisted that this equity derived from Keightly, has often been recognized by John Dunlap, and it ought, therefore, to be enforced.

It is true, that John- Dunlap received from the uncles of Mrs. Stevenson, while she was an infant, the proportion of the taxes on Keightly’s share, from 1792 to 1799 inclusive, and on the face of the receipts expressed, that her interest was two ninths; on their declining to pay taxes further, he wrote to her mother in which he states that Keightly was interested in the claim; that the uncles of the heiress had discontinued paying of taxes, and urging her to make arrangements for the payment, ortho land, which lay uncultivated, would be sold. This letter was dated'in 1801, and was signed by Hilligas, the other patentee, and this is all the recognition of the claim ever given by him. In the year 1797, perhaps at the instance of Orr, the commissioners appointed by the county court, attempted a division,, and reported, and recorded their proceedings. John Dunlap visiteh this country shortly afterwards, and with one of the commissioners, rcconnoitered the lots, and then expressed himself, that the girl in Ireland, which must have been Mrs. Stevenson, ought to have choice, as her father had lost his life in the attempt. When John A. Stevenson had married his wife, and brought her to America, he wrote to one of these commissioners, that said J. A. Stevenson had married the daughter of Keightly, and arrived in America, whereby all the parties were represented, and advising the commissioner to show him the land, and to forward on his own deed*, which is supposed to be the deed which the commissioners were allowed to make in dividing the land among the parties. He also, wrote to Stevenson himself, advising him to settle on the land, as his residence there might be of service to himself, as well as all the claimants. Stevenson accordingly settled there, and afterwards on a visit to this-country, John Dunlap was at the house of Stevenson, who then resided on one of the tracts, and on Mrs. Stevenson expressing a dissatisfaction with the country, and a wish to leave it, he advised her not, and suggested, that she would do better to remain. *145In addition to all this, it seems to have been traditionally understood in his family, that there were several co-partners in the land, of which Keightly was one, and he has said as much to several persons, and never seemed to dispute the title of Keightly; but generally, on all these occasions, he set up his claims for money, which lie had had to pay in acquiring and preserving the lands, which, when paid, he admitted would entitle the heiress of Keightly to his sitare.

Where the n relied on as evidence of may berepelletl by Proot. th®. the^laim.0

Upon these recognitions of title, the bill is not founded as creating an equity, where there was none oeiore. JLhey are brougiic m aid to cure the facts of the original claim, or as admitting its validity- They therefore, do not preclude the defendants from proving their original defects, not one of which do the complainants oiler to remove; but insist for a conveyance, notwithstanding the default of the original contractors. If the defendants, therefore, have been, as we have seen, successful in showing that the compliance of the acting partners was not suilieient to vest an equity, these recognitions cannot carry the title with them.

But what is more conclusive against these recognitions of title by Dunlap, is, they were all made before the passage of the act of assembly relied on, and during *a*time when the heiress of Keightly had not, and could not have, the least title, either legal or equitable, because, as we have said, the original equity was not good, ami if it was, it had escheated to the government, and the heiress had no other or greater title than any other individual, and such remained to be the fact during the lives of John Dunlap and Hilligas. It was necessary, therefore, that these recognitions of title should have been strong enough to create an original equity, which could be specially enforced, or the complainants can have no relief thereon. If the government had brought her bill to enforce this original equity, and had given these recognitions of title to the daughter of Keightly in evidence, they could only have been viewed as so many acknowledgments, that there was an original equity, and could not have *146precluded the patentees from showing that there was none originally.

One who would have equity must do it.

Nonperformance on <he part of Kfoigh'tly is the same objection in the mouth of the alienee of his devisees as between the original parties.

After the heiress of Keightly was induced from Ireland here by Dunlap’s recognition of her claim, and settled on the land, his alienee is allowed to deny her title

If the complainants meant to rely on these last recognitions of title, they ought to have shown that they had done equity by paying up the large sums of money which John Dunlap had expended in saving the land. This they have not done.

It is, however, urged, that *these sums*of money are due to the personal representatives of Dunlap, and as they are not before the court to settle the account, the defendants cannot avail themselves of the defence. This argument is capable of being turned agáinst the other side with greater force. These representatives are absent because the complainants will not bring them here to do equity now, nor do they show that they have done equity before they filed their bill; but contend that they have caught Blight in the trap of controversy by himself, under such circumstances, tliathe cannot avail himself of this defence. They seem to have forgotten, that if John Dunlap and Hilligas could have set up this defence while they held the title, the defence is in no worse situation in the hands of *either*their devisees* or assignee of their devisees. The transfer could not have lost the defence.

The only doubt which remains, is, whether these recognitions of title, and the inducing Stevenson to settle on the hind, are-not strong enough *to*bind Dunlap to convey on the giound *of*fraud, *and not*on the score of contract. We allude particularly to the letter of Dunlap to Stevenson himself, and the letter to one of the commissioners. It is, however» clear that, those letters alluded to the original claim, the equity of which was supposed to be in Mrs. Stevenson, and were not intended to make any new engagement; and as to the suggestion, that if Stevenson would settle on the land, and his settlement should fall to the rest, there should be a sufficient exchange to protect his settlement, it is so indifinite; that it cannot be measured. How much land should thus go for inducing Stevenson to settle, cannot be told. Certainly not the whole tract in which Stevenson and. his wife had then no interest, and there *147is no guide by which to assign him a less quantity, oven if it be admitted, that Dunlap by thus indueing Stevenson to settle, had been guilty of such a fraud as would compel him to part with some land. On this ground, therefore, the complainants are entitled to no relief as to the partition and conveyanee.

Decree disSlfof^te6 venson and for a ^lvlslon> dPProve '

Heiress of a”d Njuc“s(] “ settle on the land by a re“hlfrolaim4 for a part, now found be entitled to com*148pensation for their improvements.

*147From the whole aspect of the case, we are satished, either that John Dunlap did not know, that by reason of alienage, the child of Keightly inherited no title, or knowing of it, as some of the tions prove, he did not intend to take advantage either of that, or of the failue of the acting partners in performing their part of the agreement. The former, he probably meant to waive, and treat Mrs. Stevenson as an heiress, and for the latter, he meant to accept compensation and restoration of his money expended, especially, as it now appears, that such remuneration with its interest, would approximate near to, if not fully equal to the value of the whole share of Mrs. Stevenson, after deducting what is covered by elder grants. But in complying with these intentions he always had an election. He might have treated Mrs. Stevenson as possessing no title, both because her father had none, on account of the failure of him and his co-partners in performing the contract, and also, because she could not inherit his equity'if any he had. As by his death his title had passed into other hands, who now stand in his place, they have aright, as he had, to refuse a specific performance. We, therefore, conceive the court below did not err, in refusing to compel a division and conveyance of the estate.

But in dismissing entirely the bill of Stevenson and wife, and granting them no relief, we conceive the decree of the court below too rigorous. For although the complainants are not entitled to a convevance, yet they have been flattered into the expectation and belief, that they should get a title, and have been deluded into a settlement, on the land, and into improving it as their home, under circumstancs which give them a strong claim for compensalion for their improvements, and even to *148a lien on the land, till they are paid. It is true, that Blight has not, as yet, disturbed their possession, by obtaining a judgment, and it is equally true, that the main object of Stevenson’s bill is a partition and conveyance, and he sets up no express prayer for the value of his improvements. But he charges, that trusting to the letter of Dunlap, he has set'led, and made valuable improvements, and he prays for a partition and conveyance, and then adds the general prayer for relief, and the dismission of his bill absolutely would bar his claim for improvements, when Bliaht’s heirs, as he is now dead, should proceed against him for the possession. It is, therefore, competent and proper for the chancellor, to give him that compensation now, at the same time subjecting him to the equitable terms of surrendering the possession, as soon as his lien is removed by the payment of this claim, or by the sale of the laud to a stranger as a means of enforcing tire payment by the lien.

Principle the compensation *for*improvement and charges for rents shall be calculated on, by the commissioners.

He is, therefore, entitled to payment for such of his improvements as are lasting- and valuable, firing their value at the time when Blight filed his answer, resisting the complainants right to recover the land. From the same period, Stevenson will be bound to account for the reasonable rent of the premises, still allowing new improvements after that period, to sink the rents. Also, the price of his improvements, will be subject to be lessened by waste, or damages committed on the premises, by improper cultivation or otherwise, during his occupancy. This account or assessment, ought to he made out by commissioners appointed, with competent powers to accomplish it according to the usages of a court of equity. On the return of this report, if the balance is in favor of Stevenson, he must have a decree for it, and a lien upon the land, to the extent of his original claim to secure it; being at the same time subjected by the decree of the chancellor, to surrender the possession to Blight’s lieirs on the payment of the decree, or to a purchaser, if the land be sold under the lien, as hereinafter directed.

*149Directions for carrying the decreeinto etibet.

Amount paid for taxes nitor Steven.- ob and wife came to the country, to be allowed and the land hound for it, as for the value of the improvements.

*Denny*and Mayes, for appellant; *Talbot*and *Dar*by, for appellees.

On the return of the report, and the decree in favor of Stevenson for the balante found, reasonable day ought to be given to Blight's representatives for the payment of the decree, stiil leaving the possession undisturbed. But if the money is not then paid, a further decree ought to be rendered, directing the sale of the land, to the amount of two ninths of the tract, or so much of that two ninths, as shall be sufficient to discharge the demand, and Stevenson must be directed by the decree to surrender the possession, and Blight’s representatives to convey the title to the purchaser. But if the whole of the improvements of Stevenson are discharged by the rents, waste and damages, then this bill must be dismissed with costs.

We will further add, that Stevenson paid one half of the direct tax, in redeeming the land after it had been sold to Samuel Davis, under an arrangement, that this payment should not prejudice the title of either, and he also paid the direct tax of another year, through the instru mentality of a Mr. Morrison. As Blight was bound by his duty to government, to pay these taxes, and Stevenson paid them, under the delusive expectation of tide, Blight’s estate ought to refund these sums with interest, and therefore, they must be taken into the account herein directed. As to the portion of the taxes paid by the relatives of Mrs. Stevenson for her to Dunlap, in his lifetime, the complainants must be ' left to assert their claim against the estate of Dunlap.

Decree reversed with costs, cause remanded for such proceedings and decree, as shall conform to this opinion and the rules of equity.