#### Alonzo J. White *vs.*Thomas Bennett, and others.

After notice, in April, 1850, that vendor renounced the agreement, vendee’s delay, in filing his hill, until July, 1852, *held*to oust him of his remedy in Equity hy decree for specific performance.

BEFORE DUNKIN, OH., AT CHARLESTON, FEBRUARY, 1853.

Dunkin, Ch. John Laurens and his sister, Caroline, (after-wards Mrs. Read,) owned each one-sixteenth of certain unimproved marsh lands extending from East Bay to the channel of Cooper River. The complainant alleges that some time in November, 1849, he contracted for the purchase of these interests from Philip J. Porcher, as the agent of the proprietors, and that he was to pay fifteen hundred dollars for the share of each; that the contract for the share of Mrs. Read had been consummated, but that John Laurens had declined to complete the contract for his portion, and had subsequently sold and conveyed the same to his co-defendant, Thomas Bennett, who purchased with notice of the prior agreement. The prayer of the bill is, that the defendant, John Laurens, may be decreed to perform specifically the agreement which he made through his agent, P. J. Porcher; and that the conveyance to Thomas Bennett may be delivered up to be cancelled. This is the general outline of the case presented by the plaintiff. The answers of the several defendants, and the, testimony taken at the hearing, set forth the proper modifications of this statement, and exhibit, with no material discrepancy in the same, the narrative of facts claiming the attention and judgment of the court. The evidence accompanies the decree, and makes part of it. From the statement of Philip J. Porcher, it appears that in November, 1849, he met the late James W. Read, (the husband of Mrs. Read,) who told him that he and his wife had an inte*261rest in the marsh land, and requested him, (as a broker,) to go and offer it to Edward R. Laurens, his wife’s uncle, for one thousand dollars, if he would give that price. Said he meant the whole of the marsh land. The witness accordingly saw E. R. Laurens, who said he did not think it was worth more than one thousand dollars, hut that the witness could get more than that for it from others, and that he would not take it — said that Calder had purchased an eighth, and had been offered three thousand dollars for it. He also told witness, if he could sell Read’s share for fifteen hundred dollars, he might sell John Laurens’ also — that he (Edward R. Laurens) was to get the proceeds of it. Witness mentioned to complainant that he had these shares for sale, and would take three thousand dollars for them. Complainant said he thought he knew a party who would take them, and he would see the party. It was ultimately agreed that complainant should be the purchaser. H. P. Walker, Esq., the professional adviser of the complainant, prepared the conveyances. When they came to execute the papers, both Edward R. Laurens and J. W. Read objected, stating that they did not mean to include the marsh lands situate on the opposite side of the river. The conveyances, as prepared, included not only the marsh land adjoining East Bay, but also the marsh lands, including several small islands, between Town Creek and Hobcaw, as also eleven acres of land between Schute’s Eolly, on the east side of Cooper River, and Hog Island channel; and at this juncture Mr. Porcher wrote to John Laurens the letter of 1st December, 1849, stating what had passed, and the difficulty which had occurred, and requesting to hear from him on the subject. This was followed by his (Porcher’s) letter of 7th December, stating his hope that they would be able'to arrange the matter. Both letters reached John Laurens in the country by the same mail, and he immediately replied that he “ had never authorized any one to sell, or offer for sale, any portion of his lands; that some time previously he had given to his uncle, E. R. Laurens, his (J. L.’s) *262sixteenth of the marsh lands in Laurens street; and if he had sold, or agreed to sell, it was a matter in which he (J. L.) had no interest, and could exercise no control — hut that it was to he distinctly understood, that he had not given to his uncle any part of his interest in *Town Greek Island,*or in *Sehute’s Folly.”*It may be remarked, that the family residence is at the corner of Laurens street and East Bay; and the marsh land is hounded on the north partly hy the family mansion and grounds attached, and partly hy Laurens street, and on the west by East Bay. The answer of John Laurens states that in 1846, or 1847, he was on a visit to his uncle, Edward R. Laurens, whose daughter he had married; that his uncle was the devisee of the family mansion, and was residing there at the time. That he, several times, expressed regret that he had not an interest in these marsh lands, and that he, (J. L.,) supposing from what he said that they would be of some peculiar value to him, requested him to accept his interest, and to prepare a deed of gift for the same, which he would execute; that his uncle accepted the gift, hut that the deed never was prepared, although the request to do so had been more than once repeated hy him (J. L.) Mr. Porcher continued his narrative, that the complainant becoming satisfied that he (the witness) was mistaken as to the Town Greek and Schute’s Eolly land, gave up that point; that they then agreed for the lands intended to he sold ; that they agreed about every thing, until they came to the southern boundary; the witness was of opinion that there was a street there; complainant said, “ no, that it called for Bennett’s landcomplainant, in talking, convinced witness that no street had been laid out, and witness then gave him that boundary as he directed — the agreement was accordingly drawn, which he verifies, and is as follows:

“Memorandum of agreement between P. J. Porcher, as agent of J. W. Read and wife, and E. R. Laurens, and J. H. Read, junior, their trustees, and of John Laurens, (acting in conformity with instructions conveyed to him,) as appears by *263the letter of the said J. W. Read to him, dated 9th December, 1849, and of the said John Laurens to him, dated 10th December,' 1849, of the one part, and A. J. White of the other part. The said P. J. Porcher, as agent, as aforesaid, agrees to sell to A. J. White two sixteenths in the marsh land formerly the property of Henry Laurens, deceased, situate in Charleston, between Laurens street, East Ray, Thomas Bennett’s land, and Cooper River channel, at the price of three thousand dollars, viz., fifteen hundred dollars for share of Mrs. Read, and fifteen hundred dollars for share of John Laurens, both payments to be made in cash; and the said A. J. White agrees to buy the said property, and to pay the said price for the same, on the execution, by all proper parties, of sufficient conveyances of the said two sixteenth shares, such conveyances to bear date the 20th November now last past. "

“ Witness our hands this 19th December, 1849.

A. J. WHITE. [l. s.]

PHILIP J. PORCHER. [l. s.]

Agent of all parties above mentioned.

“Witness, James L. Stocker.”

That after the execution of this agreement, complainant referred the matter back to Mr. Walker to prepare the titles; they were accordingly drawn, and witness delivered them to E. R. Laurens to be executed by the parties. They were returned by E. R. Laurens unexecuted, accompanied by another deed properly executed, but having the southern boundary altered; complainant refused to receive this deed, on account of that boundary. Afterwards a deed for Read’s interest was executed and delivered, with the southern boundary according to the agreement, upon the stipulation on the part of the complainant to indemnify in consequence of this boundary, which stipulation was indorsed upon the conveyance; about the other one-sixteenth (of John Laurens) they discussed a long time. At length E. R. Laurens agreed to submit it to Mr. Petigru, and if he said *264John Laurens could sign the déed, he would do it. Upon consulting Mr. Petigru, witness was told by him that John Laurens could not conscientiously sign the deed with that boundary, in consequence of previous deeds which the family had executed. There the matter dropped. Witness never heard any more upon the subject until he afterwards learned that Laurens had sold to Thomas Bennett, and that an equity case would come out of it. The witness identified the deed prepared by Mr. Walker, and which Laurens declined to execute. The objection as to the southern boundary was after the agreement of 19th December, and was made when this title was tendered to be executed; that the witness carried the title to Mr. Petigru, and asked him if Laurens could sign it. The next day witness called at Mr. Petigru’s office, and he showed witness some family papers (of the Laurens’ family,) and said he (Laurens) could not sign it. In order to understand the character of this objection, as well as the subsequent testimony, it may be well to state that on 2d June, 1829, the heirs of Henry Laurens, deceased, (among whom were John Laurens,) being about to divide and lay out the marsh lands on East Bay belonging to that estate, made a communication to that effect to the City Council of Charleston, and expressed their willingness to have a piece of land in front of Society street reserved for a public street, upon certain conditions, and suggested that the value of such donation would be considerable, as, without it, the public had no egress to the river. On 16th June, 1829, Council agreed to the conditions, and referred to the City Attorney the matter of obtaining a deed of release. In July, 1829, it was brought to the notice of Council, that the heirs of Laurens desired an additional covenant on the part of the Council, in relation to the land to be ceded by them for the continuation of Society street; the matter was deferred; but on 21st August, 1832, Council agreed to the terms proposed, and directed the City Attorney to prepare the deeds accordingly. In June, 1844, the subject was fully reviewed by the City Council, the *265committee suggesting that the minority of some of the parties ■was the probable cause of the delay, and they again instructed the City Attorney to take the proper measures, as set forth in the report in relation to Society street.

In the mean time, to wit, on the 23d June, 1829, the heirs of Henry Laurens executed a deed purporting to be under the authority of proceedings had in this Court, at the sittings immediately previous to the date of said deed, by which, in consideration of four thousand two hundred and fifty dollars paid to them by Thomas Bennett, they conveyed to him all that parcel of land in the city of Charleston, butting and bounding to the west on East Bay street, to the south on lands now belonging to the said Thomas Bennett, *to the north hy ■ a street forty feet wide to he a continuation of Society street,*and to the east by Cooper Biver, “as will more fully appear by a plat thereof made and executed by Charles Parker, City Surveyor, dated 17th June, 1829, and hereto annexed as part of these presents.” This plat plainly delineated a street forty feet wide, as a continuation of Society street from East Bay to the channel of Cooper Biver, as the northern boundary of the land thus granted by the heirs of Henry Laurens, deceased, to Thomas Bennett. The deed and plat were both recorded in the Register Office, 10th August, 1830.

Mr. Porcher, in his cross-examination by the defendants, referred again to the interview which he had with Mr. Petigru, in consequence of E. R. Laurens’ statement that he (J. L.) would sign the deed if Mr. Petigru thought he might do so. Witness said that the paper which Mr. Petigru brought down was a deed from the Laurens’ family to Mr. Bennett, in which they had given, or reserved to Mr. Bennett, the right to that street; this was Mr. Petigru’s objection. Mr. P. wrote an interlineation, which, he said, if made, Mr. Laurens might sign the deed; the interlineation was like that in the deed afterwards executed by John Laurens to Thomas Bennett; this interlineation was submitted to the complainant, and *266he declined to receive such deed. When they were drawing the agreement of 19th December, witness hesitated about calling for the Southern boundary on Bennett’s land, as witness was under the impression there was a street there, as he had heard something of it. Complainant said, that rumor had all been done away with, and there was no street there; upon this representation, witness introduced this as the Southern boundary; if left to himself, he (witness) would have given a street as the Southern boundary, but complainant convinced him he was mistaken. All witness’s instructions as to the disposal of John Laurens’ interest, were received from Edward B.. Laurens. Witness understood that he was authorized to dispose of all John Laurens’ rights, whatever they might *be;*the Laurenses never authorized or recognized the Southern boundary as given by witness. At the time of the agreement, witness had seen no papers; if witness had seen the deed from the Laurens family to Thos. Bennett before he signed the agreement, he never would have signed it, giving that boundary.

*H. P. Walher, Psq.,*was the next witness called for complainant. His statement is fully detailed in the notes of evidence. Mr. Walker was the professional adviser of complainant, in November, 1849, in relation to this transaction. He examined the title, and was of opinion that the legal title to what was called “ Society street continued,” was in the Laurens family, and he drew the conveyances accordingly; these were rejected, and returned. Edward R. Laurens brought him a deed calling for Society street as the Southern boundary, and a deed was also brought, leaving the Southern boundary in blank; both were rejected by witness. Mr. Walker stated that Mr. Campbell became acquainted with the contract before the deeds, including the Schute’s Eolly and Town Creek land, were out of witness’ possession. He was in witness’ office, as an acquaintance, while he was drawing the deeds. When Mr. Campbell became acquainted with the contents of the deed, *267be remonstrated with witness, as be was requiring a deed with a description of this character, it was injurious to Mr. Bennett, and be showed witness thé deed of 1829 from the Laurens family, with this plat attached. Witness must have told Mr. C. that although Mr. B. might have the *use,*John Laurens had the soil. Mr. C. never conversed with witness afterwards, until the difficulty arose as to the completion of the contract. *On 2d January,*1850, witness addressed a letter to John Laurens, (of which he adduced a copy,) which he thinks he is not mistaken in saying that he left with Col. Poreher. Between the date of this letter and that of the 11th of January, hereafter to be noticed, witness and Mr. Campbell had a conference at' his office, and they attempted to draft a deed which would reconcile the claims of Mr. Bennett and the complainant. They accordingly framed a deed, which he (the witness) thought his client (the complainant) might very safely accept. (Witness produced from his papers the deed thus drafted.) The deed' thus prepared remained in Mr. Campbell’s possession for a day, and was then withdrawn by witness; it was withdrawn because complainant was unwilling to take any thing less than what he deemed his right. When the witness informed the complainant what was the character of the deed, he (complainant) objected, because it recognized the deed of 1829; as that deed (of 1829) was executed by the guardian of John Laurens, complainant was unwilling to recognize the, deed of 1829, or do any thing which 'would have that appearance. Witness finding that his course was somewhat censured, or not approved by his principal, withdrew the deed. On the 11th January, the witness addressed the letter of that date to John Laurens, which he thinks he left also with Mr. Poreher; and on 23 d January he addressed the final letter of 23d January to Mr. Poreher, which he (Mr. P.) thinks was duly received by him. Mr. Walker, in conclusion, said he did not think he had ever seen Mr. Petigru’s handwriting on the subject. Mr. Campbell told him (witness) that Mr. Petigru thought it was *268shameful in them to ask for such a boundary. Some time afterwards, Edward R. Laurens came to witness with the deed having the Southern boundary on Society street, and said, if they did not take that, it would be sold to somebody else. Witness replied, that could hardly he done with their agreement on record. Laurens replied, he did not care a fig about that. This conversation' was prior to the conveyance to Mr. Bennett. Witness ceased to have any communication with any party after the Spring of 1850, certainly not after April, he considered it useless to make any further effort.

' The deed from John Laurens to Thomas Bennett bears date 11th July, 1850, and was placed on record on the day following.

Defendants offered in evidence (among other things) a letter from E. R. Laurens to J. B. Campbell, as solicitor of Mr. Bennett, stating that John Laurens had refused, and still refused to convey to Mr. White his one-sixteenth of the marsh lands, with a Southern boundary upon the lands of Mr. Bennett ; and that it was time the matter should be definitely settled one way or the other, and requested to know whether Mr. B. would take the land at the same price, calling for a street or private way in continuation of Society street, as the Southern boundary. The deed of 11th July, 1850, to Thomas Bennett, describes the land as lying on the Eastern side of East Bay street, in the City of Charleston, between Laurens street and Society street continued; butting and bounding to the East on the channel of Cooper River, to the South on lands of Thomas Bennet, saving and reserving to the said Thomas Bennett his right in the continuation of Society street, as contained in a deed of the adjacent property, by Eliza Laurens, and others, dated 23d June, 1829, &e.

Mr. Petigru was examined for the defendants, and his recollection confirmed the statement of Mr. Porcher, so far as related to the interview with himself. He said Mr. (E. R.) Laurens had consulted him as a friend on the subject of the boundary to be given, and that he had recommended, in the *269way of concession, that a deed should be given with a description sucb as that contained in the deed of 11th July, 1850, to Thomas Bennett, (which was read to the witness.)

It seems only necessary further to add, that in the deed prepared jointly by Mr. Walker and Mr. Campbell, (and which seems to be in the handwriting of the former,) the premises are described, and bounded “ to the South on land of Thomas Bennett,” &c., “ saving and excepting so much thereof as, by a certain deed of conveyance, bearing date the twenty-third day of June, 1829, was conveyed to the said Thomas Bennett.’\

This bill was not filed until 22d July, 1852. Mr. Walker testified, however, that he did not know of the deed to Mr. Bennett until long afterwards; although, at the request of complainant, he had kept searching the offices; thinks he first knew of it in May, 1852.

The case will be first considered between the complainant and John Laurens. And it is deemed more simple, although .perhaps not strictly in accordance with the true position of John Laurens, to regard him as in all respect represented by Edward E. Laurens.

It has been properly remarked, that the specific performance of contracts belongs rather to the extraordinary jurisdiction of the Court of Chancery. Eor the breach of such contract, as of all others, the ordinary forum applies a remedy, although the remedy may be sometimes inadequate. The interference of this Court rests upon a sound judicial discretion. The agreement may relate to lands — may be in no manner repugr nant to the Statute of Frauds, may be perfect in all its parts,' and yet this Court be bound, on well settled principles, to decline its aid, and leave the party to such compensation in damages, as the. common tribunals afford. In *Wedgwood*vs. Adams, 6 Beav. 600, Lord Langdale, M. B., states the course of the Court., He says — “ The Court must always have regard to the circumstances of each case, and see whether it is reasonable that it should, by its extraordinary jurisdiction, interfere *270and order a specific performance, knowing at the time that if it abstains from so doing, a measure of damages may be found and awarded in another Court. Though you cannot define what may be considered reasonable or unreasonable by way of general rule, you may very well, in a particular case, come to a balance of inconvenience, and determine the propriety of leaving the plaintiff to his legal remedy by recovery of damages.” “ So, if the terms of the agreement are uncertain: if there has been an innocent misdescription of the premises : if the enforcement of the agreement specifically would injure the rights of third persons, or would subject the party himself to hardships, as in the instance cited by Lord Hardwicke in. *Hamsden*vs. *Hylton,*(2 Yes. 307,) relief is refused. The subject was fully discussed by Lord Redesdale in *Harnett*vs. Yielding, 2 Sch. & L. 549.” “ The party seeking 'a specific performance must show (says he) that he does not call upon the other party to do an act which he is not lawfully competent to do; for, if he does, a consequence is produced that quite passes by the object of the Court in exercising the jurisdiction, which is to do more complete justice. If a party is compelled to do an act which he is not lawfully authorized to do, he is exposed to a new action for damages at the suit of the person injured by such act; and, therefore, if a bill is filed for specific performance of an agreement, made by a man who appears to have had a bad title, he is not compellable to execute it, unless the party seeking performance is willing to accept such a title as he is able to give, *and that only in cases where an injury would he sustained hy the party plaintiff, in case he were not to get such an execution of the agreement as the defendant can give.*I take the reason to be this, among others, not only that it is laying the foundation of an action at law, in which damages may be recovered against the party, but also that it is, by possibility, injuring a third person, by creating a title with which he may have to contend. There is also another ground on which Courts of Equity refuse to *271enforce specific execution of agreements, that is, when, from the circumstances, it is doubtful whether the party meant to contract to the extent that he is sought to be charged — all these are held sufficient grounds to induce the Court to forbear decreeing specific performance, that being a remedy intended by Courts of Equity .to supply what are supposed to be the defects in the remedy given by the Courts of Law; under these circumstances, therefore, considerable caution is to be used in decreeing specific performance of agreements.”

It is not very clear that the decision of this case would require the Court to invoke the aid of principles thus strongly stated. The authority given to Mr. Poreher was altogether indefinite, except that he was to sell the interest of John Laurens, as well as that of Mrs. Read; nothing was said of quantity or boundaries, and yet it may well have been deemed sufficiently explicit for the purpose contemplated. It was very manifest that he misapprehended the intention of the parties when he undertook to bargain for their lands 'on the opposite side of the river. When the error was discovered, of course, neither party was bound, and a less sum was offered in Mr. Porcher’s letter of 7th December. The written agreement of 19th December, 1849, is on its face sufficiently vague ; nothing is said of quantity or boundaries, except in general terms. But the evidence of Mr. Poreher shows that the *boundaries were*discussed prior to the signature of the agreement. Intending to bargain for no more than the interest of his principals, he was under the impression that “ Society street continued,” or “ some street,” was the Southern boundary, until assured to the contrary by the complainant; and then, without referring to his principals, he signed the agreement, thereby intending to giveJMr. Bennett’s land as the Southern boundary, being c'onvineed by the reasons of the complainant, that there was no street on the Southern boundary. The argument on the part of the complainant, is, that under this agreement, the defendant, John Laurens, could be compelled to execute a title *272'calling for the land of Thomas Bennett as the Southern boundary, without any recognition of the existence of a street on the Southern border, or any reservation of the rights of Mr. Bennett, in relation to such street, under the deed of 1829. It appears to the Court an entire misapprehension to infer that, because no right in the public could be established, and that, moreover, some infirmity may exist in. the conveyance of 1829, therefore the complainant is entitled to a decree. The Court would not compel John Laurens to do an act which would stir such litigation. In the language of Lord Redesdale, they would not oblige him to execute a conveyance, which, by possibility, might injure a third person, by creating a title with which that third‘person may have to contend. Under such circumstances, the Court does not call in question the validity of the agreement, or its obligatory character, but leaves the party to such compensation for the breach as is afforded in an action for damages.

But this is not the ground upon which the defendant, John Laurens, would choose to place his case. On 2d June, 1829, those assuming to act for him, and in his behalf, while he was yet a minor, undertook to enter into an agreement with the City Council of Charleston, for the mutual benefit of the parties to the agreement, by which he, with the other heirs of Henry Laurens, did dedicate to the public use as a street, a certain portion of marsh land which they then owned, and through which the street was to pass from East Bay to the channel of Cooper River; and in consideration of such dedication, certain valuable immunities were secured to the owners of the adjacent lands. Some two years afterwards, to wit., in June, 1831, the head of the family, Mrs. Henry Laurens, asked and obtained from the City Council “ permission to erect a fence across” Society street continued, then recently granted by the heirs of Henry Laurens to the city; with a proviso, that the same be removed as soon as the City Council should direct the same. On the 23d June, 1§29, the southern part of this marsh land *273was conveyed to Thomas Bennett under decree of this Court, by persons assuming in like manner to act for the defendant; and, in their deed, the northern boundary of the land was described as “ a street forty feet wide, to be a continuation of Society street,” which street was distinctly laid out in a plat accompanying the deed, as running through the marsh land from west to east, leaving the land thereby granted to Thomas Bennett to the south of the street, and the residue of the marsh land to the north of said street. Whether the heirs of Henry Laurens could now deny the right of the public, or could disregard the representations thus made to a subsequent vendee, or whether John Laurens would now be at liberty to repudiate all the acts thus done in his name, are inquiries which the Court is not called on to solve. But the Court is asked to compel John Laurens to do an act which would throw discredit on these transactions, and would effectually estop him from confirming these transactions, if they now needed confirmation on his part. He was willing to execute a deed, the draft of which was prepared by the solicitor of the complainant, and acquiesced in by the solicitor of Mr. Bennett. The deed calls for the land of Thomas Bennett as the southern boundary of the premises to be conveyed, with a reservation of “ so much thereof as by the deed of 23d June, 1829, was conveyed to the said Thomas Bennett.” This was rejected, says Mr. Walker, by the complainant, “because it recognized the deed of 1829.” If the defendant had been so unfortunate as to embarrass himself by inconsistent obligations, — if, after a parol engagement to convey to one, he had entered into a written agreement to sell to another who was to pay on receiving'a good title,— Equity would not interfere in behalf of the latter vendee. Such was the doctrine maintained in *Patterson*vs. *Marty,*8 Watts, (Pennsylvania,) 374. Specific performance of a contract for the sale of land was refused at the instance of a vendee, where the contract was made in disregard of a prior parol sale by the vendor, though the vendee was ignorant of *274such prior sale, but tbe party was left to bis action for ■ damages.

Mr. Sugden, commenting on tbe opinion of Lord Redesdale in *Harnett*vs. *Yielding,*remarks that it is, however, tbe received opinion, that tbe purchaser may elect to take tbe title, such as it is, although no injury would be sustained by him in case the agreement were not executed: and that this rule does not lead to the difficulty apprehended, *because, in such case, the covenants must of course be so framed, as not to leave the seller exposed to any action on account of the flaw in his title.*Sugd. Yend. 209.

This is, substantially, what the defendant, John Laurens, seems, at all times, willing to have done. More than twenty years prior to the agreement of December, 1849, Mr. Bennett had. purchased from the family part of the premises, with a representation that his northern boundary was a street extending the entire length of his line from west to east. So soon as the difficulty arose, he, (John Laurens,) was willing to execute a deed leaving the southern boundary in blank; and after-wards, a deed giving Mr. Bennett’s land as the southern boundary, but with the qualification that this should not implicate the defendant, or embarass Mr. Bennett in relation to his rights under the previous purchase. If John Laurens had entered into an explicit agreement to convey, by metes and bounds, the entire premises from Laurens street to Mr. Bennett’s land, and had subsequently declined for these reasons, and on 1st of May, 1850, when all negotiation had avowedly terminated, this bill had been filed, the Court would be obliged, on acknowledged principles, either to leave the party to his legal remedy, or, entertaining the bill, have required the defendant to execute a conveyance with the reservations specified. It is not irrelevant to observe that the deed, with such- reservation, was prepared with the co-operation, or received the acquiescence and assent, of the solicitor of Mr. Bennett. This deed had been declined by the com*275plainant. “ After April,” (says Mr. Walker,) “ *I*ceased to have any conversation with' any party — I considered it useless to make any further effort.” Previous to this time, or about this time, E. R. Laurens had expressly notified the witness that, unless the complainant received the title tendered, the land would be sold to some other person. The Court only stops to remark that, at this juncture, it was the duty of the complainant to have applied promptly for the aid of this Court, if he considered himself aggrieved. See *Bouthcomh*vs. *the Bishop of*Exeter, 6 Hare, 211, (27 Eng. C. R.) and a case there cited, in which Sir John Leach dismissed the vendor’s bill, because he did not file it until the expiration of a year after the purchaser had declared the contract at an end. In the principal ease it is observed to be “ no uncommon thing for the Court to dismiss a bill, intending thereby to leave parties to their legal remedies, and upon the express ground that they are entitled to what the law will give them, though not entitled to the extraordinary assistance of a Court of Equity.” More than two years elapsed after the notice of Mr. Laurens, before this bill was filed. In the meantime, to wit., on the last day of May, 1850, Mr. E. R. Laurens addressed a communication to the solicitor of Mr. Bennett, in which, adverting to what had been done, and that it was time the matter of the marsh land should be definitely settled one way or the other; that “John Laurens had refused, and still refused, to convey with the southern boundary demanded; and that he understood Mr. B. would give the same price, with the southern boundary on Society street continued, he asks to hear from him on the subject.” On 11th July following, a conveyance was accordingly executed to the defendant, Thomas Bennett, by John Laurens, describing the premises as situate “ between Laurens street and Society street continued,” and, in other respects, precisely as set forth in the draft prepared by Mr. Walker and Mr. Campbell. Certainly Mr. Bennett must be affected with notice of the agreement of December, *2761849, because it was known to bis solicitor; but he knew also of the subsequent negotiations, and that they had been finally terminated. For the reasons heretofore stated, the complainant could have demanded from the defendant, John Laurens, no more than he had offered to do. "When this was declined, the defendant, John Laurens, was absolved from any equitable obligation to the complainant, and the purchaser from him can stand in no worse situation.

It is ordered and decreed that the bill be dismissed.

The complainant appealed on the grounds :

1. Because under the agreement made through P. J. Porcher, the complainant was entitled to a conveyance from the defendant, John Laurens, of his interest in the premises, in conformity with the terms of that agreement; that there was no impediment either in equity or conscience to such conveyance, and as the defendant, Thomas Bennett, purchased with notice of the previous agreement, the conveyance to him will not be allowed to defeat the equitable rights of. the complainant.

2. Because if the premises, or John Laurens’ interest therein, were inaccurately described in the agreement, or if there were any real objection founded either on the former conveyance to Thomas Bennett, or on the offer to the City Council of part of the premises to be used as a street, to his giving a conveyance in accordance with the description in the agreement, yet the complainant would still be entitled to a conveyance of John Laurens’ interest, according to such description as might be supposed consistent with his legal or moral obligations, and it is respectfully submitted that his Honor should so have decreed.

3. Because the complainant having never abondoned his contract, but continuing to insist on his rights under it, ought not, as it is respectfully submitted, be denied that equitable *277relief to which purchasers are entitled in this Court, on the ground of *laohes,*or lapse of time, or the notice given by the defendant, E. It. Laurens.

*Walker, Mitchell,*for appellant.

*Campbell, Lesesne,*contra.

The opinion of the Court was delivered by

Wardlaw, Ch.

In this case Thomas Bennett, a purchaser with notice of the claim of the plaintiff, has no superior equity to that of his vendor John Laurens. Where a person purchases with full notice of the legal or equitable title of other persons to the same property, he will not be permitted to protect himself against such title; and his own title will be postponed or made subservient to theirs. Courts of Equity will declare him a trustee for the benefit of the persons whose rights he has sought to defraud or defeat. Story Eq. 395.

Then the single question in the case is, whether or not John Laurens is bound to specific performance of the agreement of P. J. Porcher as agent, to convey the land in controversy.

This Court is of opinion, that the decree of the Chancellor dismissing the bill may be well maintained, on the single ground of improper delay in the plaintiff in applying for the peculiar remedy of equity after notice that his vendor renounced the agreement. Granting that J ohn Laurens is responsible for the conduct of his donee by parol of the land, yet this donee, Edward R. Laurens, in April, 1850, gave distinct notice to plaintiff that J ohn Laurens did not feel obliged to convey, and would not convey, the land according to the plaintiff’s interpretation of Porcher’s agreement as to boundaries, and that unless plaintiff, would accept a conveyance which, now confessedly, fulfils in substance the engagements of John Laurens “and the demands of the plaintiff, the land would be sold to some other *278person. Yet the bill was not filed until July 22, 1852, two years and a quarter after tbis notification. Time is not usually regarded in equity as of the essence of contracts, and anciently it was considered that it could not be rendered essential by the stipulations of the parties concerning lands; but the tendency of recent decisions is to require persons concerned in contracts relating to lands as in other contracts, to regard time as material. Other cases confirm the case of *Southcomb*vs. *Bishop of*Exeter, 6 Hare, 211, cited in the Circuit decree. In *Heaply*vs. Hill, 2 Sim. and Stu. 29, (1 E. C. R. 332,) Sir John Leach, Y. C., dismissed a bill by a lessee for specific performance of an agreement for a lease, because it was not filed for more than two years after the lessor had given notice to the plaintiff of his purpose not to perform the contract on account of the latter not having fulfilled it on his part; where the only reason assigned for delay was that plaintiff’s attorney had mislaid the papers relating to the transaction. In *Watson*vs. *Reid,*Russ. and Myl. 336, (4 E. C. R. 404,) Sir Thomas Plumer, M. R., dismissed a vendor’s bill for specific performance, on the ground of unreasonable delay, where the vendor did not file his bill until about a year after notice from the purchaser that the latter abandoned the contract. In *Walker*vs. *Jeffreys,*1 Hare, (23 E. C. R. 348,) Sir James Wigram, Y. C., approved the foregoing two cases as sound in principle, too authoritative to be shaken, and as establishing a rule, that if one of two parties to a contract concerning lands gives the other notice that he will not perform the contract, the other after such notice must be prompt in the assertion of his right to enforce the contract, or equity will consider him as acquiescing in the notice, and abandoning any equitable right to the specific execution of the contract, and will leave the parties to their remedies and liabilities at law. Where there is nothing but a resting on the equitable estate, without clothing it with a legal title, by a person in possession of the land and enjoyment of the profits, this is not such *laches*as will prevent relief. *Crofton*
      *279
      *v*s. *Ormsby,*2 Sch. and Lef. 604. But here the plaintiff has never been in possession, and contracted to buy lands yielding no rent on mere speculation. According to the rule in *Walker*vs. *Jeffreys,*the plaintiff is ousted from what is called, perhaps improperly, the extraordinary jurisdiction of this Court. I agree with the remark of Sir William Grant, M. R., in *Hall*vs. *Warren,*9 Ves. 608, that “supposing a contract about lands to have been entered into by a competent party, and to be in the nature and circumstances of it unobjectionable, it is as much of course in this Court to decree a specific performance as it is to give damages at law.” It is sometimes said that giving a specific performance is matter of discretion, but although this is true, yet as Lord Eldon says in *White*vs. *Damon,*7 Ves. 35, “the discretion is not arbitrary and capricious. It must be regulated on grounds that will make it judicial.” Discretion does not mean the caprice of a man sitting in the seat of judgment; and merely implies some latitude in the Judge to afford or withhold relief under the circumstances of each case, according to the rules and doctrines of the Court. Eor instance, when we declare the plaintiff in this case barred from specific performance by his unreasonable delay, we are not governed by the statute of limitations or any other statute, and we exercise a judicial discretion controlled by authoritative decisions in the Court.

The only excuse made for the plaintiff’s delay in filing his bill, is, that having recorded the agreement in the registry of mesne conveyances for Charleston, he waited to ascertain to what other purchaser John Laurens might convey the premises, and that he did not in fact ascertain that the land had been conveyed to Mr. Bennett, until a month or two before filing the bill. This excuse seems feebler than that assigned in *Heaply*vs. *Hill,*although of the same general character.— Registry of an agreement for the sale of land is not required by any statute, and of course cannot operate as implied notice to all persons. Mr. Bennett’s conveyance of the land was *280registered as required by our statutes, within a few days after July 11, 1850, and affected plaintiff and all other persons with implied notice. There can be no pretence of necessity on the part of plaintiff for waiting to ascertain a subsequent purchaser from John Laurens; for the plaintiff might have proceeded against John Laurens for specific performance as- soon as he refused or improperly delayed to fulfil his agreement; and surely *lis pendens*would afford much more implication of notice to subsequent purchasers, than the unrequired registry of the agreement.

If there was no other defence in the case the plaintiff must fail on his *laches*in pursuing the peculiar remedy of this Court. But we do not mean to disparage the reasoning of the Chancellor as to other objections to the bill; nor to affrm that plaintiff could have maintained his bill if filed the day after notice to him that Laurens had abandoned the contract. The refusal of the plaintiff to accept a conveyance tendered to him of all which he could equitably exact, even when advised to accept by his own counsel; his misrepresentation, whether innocent or intentional, to the broker and agent of defendant misleading the agent concerning Society street continued; his refusal to recognize to any extent the deed of 1829, which his vendor wished to affirm; the nature of his purchase, being of wild-lands of fluctuating and speculative value, for which he might be adequately compensated by damages at law; his insisting that John Laurens should violate his conscientious scruples, and possibly impair the rights of his previous grantees, Mr. Bennett and the City Council; the irregularity of the agent’s deputation; the indefiniteness of the description of the premises in the agreement, — these circumstances of themselves make the specific execution of the agreement very objectionable.

It is ordered and decreed that the decree be affirmed and that the appeal be dismissed.

JOHNSTON, DüNKIN and DaRGAN, CC., concurred.

*Decree affirmed.*