#### Harvie and Others v. Banks.

March, 1823.

■Specific Performance* — Agreement to Lease — What Necessary. — Where an agreement to make a lease is entered into upon certain terms, the party to whom the lease is to be made, cannot enforce a specific performance, unless he performs his part of the agreement, or offers to perform, and shews that he is willing and able to do so.

Lease — Loss of Land for Nonpayment of Taxes— Case at Bar. — Where the lessee conveys certain lands to the lessor, as a collateral security for the payment of a debt to the lessor, and the lands so conveyed, are lost by the nGn-payment of taxes, the lessor is not responsible for the value of the lands; but the lessee was bound to see to the payment of the taxes, he having a complete equitable title to the lands.

This was a suit brought in the Richmond chancery court, by Henry Banks against Jacqueline B. Harvie, devisee of John Harvie deceased, John B. Harvie and Lewis Harvie, infant heirs of Edwin James Harvie deceased, by the said Jacqueline B. Harvie, their guardian, and William Brockenbrough, administrator of Edwin Harvie, deceased, and administrator de bonis non of John Harvie deceased.

The case presented by the bills, answers, &c., is in substance as follows.

*In the year 1795, Henry Banks purchased of John Harvie, certain lands in the neighbourhood of Richmond, and executed a mortgage on the same, to secure the payment of the purchase money. The money not being paid, a suit was brought to foreclose the mortgage, and a decree obtained. Harvie became the purchaser under the sale; and he and Banks entered into a new contract in writing, by which it was agreed that Elarvie was to let to Banks, his heirs, executors &c., the said lands, on a ground rent, forever. The conditions of this agreement, were, that Banks should pay to Harvie, his heirs, &c. $1000, on the first day of January in every year, forever, the first payment to commence on the first day of January, 1801; and if the said rent, or any part of it should be in arrear six months after it should fall due, and be demanded by the said Elarvie or his representatives, the said Harvie, &c. might distrain for the same, or re-enter and declare the said lease forfeited and void. The parties further agree that “when either is called upon by tile other, to execute such deeds and writings for the performance of their respective covenants, as ma3<' be recommended by any two practising atlornies, and provided either party shall fail to execute accordingly, it shall be in the power of the other party to cancel, and totally acquit himself from this contract, by giving notice of his intentions and reason to the opposite party, in writing.”

Some time afterwards, Banks obtained an act of assembly, to lay off a town on part of the said lands, and erected, or caused to be erected, a mill on the same; which mill, and a part of the said land, were sold by Harvie, with Banks’s approbation to Ladds and Price, and the payment was made by *them to*Harvie; in consequence of which, the said rent charge was reduced to SOOl. per annum, and an admitted balance of 3001. This balance was more than discharged by payments made by Banks to the amount of 3711.

*John Harvie died, leaving by his will, the lands in question, to Edwin and Jacqueline Harvie; the former of whom is since dead intestate, leaving two sons John and Lewis.

Banks made a written demand on Jacqueline Harvie, and others interested, of a lease; on the making of which, he offered to pay one year’s rent of the premises, and to enter into engagements to submit all matters of difference to the judge of the court of chancery; but these propositions were not acceded to.

Banks further alleged, that Harvie was indebted to him for the value of 1000 acres of military land, in the state of Kentucky, which were to have been sold for the benefit of the said Banks, by agreement between him and Harvie; but which were lost by non-payment of taxes, by the neglect of the said Harvie. Ele further stated, that he purchased from the said Harvie, some years before, 11,600 acres, in the county of Harrison: that although these lands by right of purchase, were the property of Banks, they were patented in the name of the said Elarvie, and by agreement, are pledged as a collateral security for the debts of the said Banks to Elarvie; but these lands also have been suffered to be forfeited for non-payment of taxes: that the value of these lands, will be much more than sufficient to pay all the arrears of the rent charge, and every other debt which he may owe to the said Harvie.

After the death of John Harvie, an ejectment was brought on the demise of Jacqueline B. Elarvie, and Lewis and John Elarvie, the sons of Edwin Harvie deceased, for the land in question, and a judgment was obtained in their favor. Batiks, therefore, prayed that the said judgment might be enjoined, and that a specific execution of the said contract, for a lease of the said lands, might be decreed.

*164The injunction was awarded.

*The defendants filed their answer, depositions were taken, and the chancellor decreed that Banks should be restored to all the benefits of the agreement of 1800, upon payment of all the rents due thereon, with interest from the time they fell due, &c.

From this decree, Jacqueline B. Harvie obtained an appeal.

Leigh and Wickham, for the appellant.

W. Hay, junr., for the appellee.

*

Specific Performance — When Enforced. — When tbe substance of an agreement can be fully executed, and wben a trifling adjustment only is needed to satisfy tbe equities of tbe case, specifi c performance may be decreed witb satisfaction: if. however, tbe default of tbe plaintiff goes to tbe substance of tbe agreement, or if there besóme things which be is bound to do and cannot do, or has not done, and tbe court cannot compel him to do it. equity will not decree specific execution in bis favor. Cox v. Cox, 26 Gratt. 309, citing principal case.

See further, monographic *note*on “Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.

JUDGE COALTER,

March 37. — delivered the opinion of the court.

The court is of opinion, that the agreement entered into between Henry Banks and John Harvie, of the 36th of April, 1800, as modified by that of July 9th, 1803, mentioned in the proceedings in this cause, in relation to the lands in Henrico county, are not to be'considered as amounting to an executed lease from Harvie to Banks, but a covenant to make such lease, on Banks’s performing his part of these agreements; and that the said Banks, has not shewn himself entitled to claim a specific execution of the said contracts, in as much as he has failed to perform his part of the said agreement, and does not now offer to perform them, or shew that he is willing or able to do sov

The court is further of opinion, that it the said agreements could properly be considered as executed, and as passing a legal title to Banks, as that title is forfeited at law, a court of equity ought not to relieve against such forfeiture, upon the mere payment of the arrears of rent, but only on condition that Banks should perform all the stipulations in the said contract on his part to be performed, and especially pay so much of the sum of $13,000, as has not been applied to making improvements on said Hands, to be now applied to that purpose; in order that Harvie’s representatives, might have an effectual security for the punctual paymenr of the rents, according to the intent of th-. said contracts. This he has not shewn his willingness or ability to perform, otherwise than by the application of the alleged value of certain lands, said to be foi'feited for the non-payment of taxes by Harvie, and for which value, his representatives are also alleged to be chargeable. As _ to which, the court is further of opinion, that if any of the lands in the proceedings mentioned, and charged by the appellee, to have been forfeited and sold' for the nonpayment of taxes, have been so forfeited and lost, which does not appear, the said Harvie was in no way responsible therefor; but that the appellee was himself bound to see to the payment of the taxes, he having a complete equitable title thereto, the legal title remaining in Harvie, with his assent as a security. So far from being entitled to apply the value of this land as a fulfilment of the contracts aforesaid, by the appellee, even this collateral security^ for that fulfilment, and for other _ responsibilities mentioned in the proceedings, may be lost.

The decree of the chancellor, therefore, so far as it conflicts with the principles above declared, is erroneous, and reversed with costs. The bill of the plaintiff, so far as it asks a specific performance of the contracts aforesaid, or relief against the forfeiture thereof, and the judgment at law is dismissed, and the cause is remanded for further proceedings to be Rad in relation to any other matters alleged in the bill.