#### *Charles R. Thompson*vs. *Joseph H. Dulles.*

*Six*co-heirs make an informal división of their ancestor’s estate, and a plantation falls to the exclusive share of 0.: no conveyances are made, and W., one of the co-heirs, dies intestate, leaving an infant child his sole heir : the infant is a trustee for C. and hound to convey to him under statute, 7 Ann, c. 19.

It is not every interest that puts an infant trustee beyond the operation of the statute of Ann.

A conveyance made by an infant trustee, under a decree of the Court, is good, until the decree is reversed, and the conveyance avoided.

A good marketable title is all that is required of the vendor — plaintiff in a suit for spociiic performance : it is not enough for the defendant to shew that the title may, possibly be defeated.

Early in 1847, defendant agreed to purchase plaintiff’s plantation, and to pay for the same $1,000 in March, 1848; $2,000 in March, 1849; and $3,000 in March, 1850, without interest, — the plaintiff and defendant each to plant part for the year 1847, and full possession to be given to defendant on January 1, 1848. Plaintiff had a good equitable titlo, but his legal title was defective. Defendant took possession according to the agreement. In April, 1847, he discovered the defects in plaintiff’s title, and from that time till December, 1848, repeatedly importuned him to cure the defects, and execute a conveyance. On December 11, 1848, ho informed plaintiff, that he had been advised good titles could not be made, and on December 23, gave him notice, that, unless good titles were tendered by January 1,1849, he should consider the negotiation for the sale at an ond. On January 1, 1849, he, accordingly, abandoned the premises* — having paid no part of the purchase money. There were considerable difficulties in the way of the plaintiff in getting in the legal title. In 1848, he took some steps towards gotting it in. In August, 1849, he filed his bill for specific performance ; and in July, 1851, when the Master submitted his report, he had perfected his title *:*— Held, that, although there had been delay on the plaintiff’s part, it did not amount to such *laches*as deprived him of his right to a docreo for specific performance.

Principles on whieh the Court proceeds in granting or refusing relief, in suits for specific performance, where the party seeking relief is wanting in diligence.

Where no time is fixed in the contract, or time is not essential, it will not, however, be permitted to the party who is to make the conveyance, to trifle with the interests of the opposite party by unnecessary delay: it is in the powor of tho latter to fix some reasonable time, — not capriciously or with intent to surprise, but a reasonable time according to the circumstances of the case, — within which he will expect the title to bo made at tho peril of rescinding the agreement.

Notice on December 23, that unless good titlos were tendered by January 1, the purchaser would consider the contract at an end, *held,*under the circumstances of the cass, not to be reasonable.

The embarrassing state of tho title has always been recognized, as affording a reasonable excuse for delay.

*371*Before*Johnston, Oh., *at*Charleston, *February,*1852.

Johnston, Oh. The bill, in this case, relates to a body of land, situate in the Parish of St. Mathew, sold by the plaintiff, Thompson, to the defendant, Dulles.

The defendant was let into possession; but afterwards, abandoned the premises, and refused to complete the contract, on the ground of insufficiency of title, or delay on the part of the plaintiff to make him a good conveyance. The vendor brings this suit, (which was instituted the 29th of August, 1847,) to compel him to execute the contract of purchase.

Pending the suit, the titles were referred to Mr. Tupper, one of the-Masters, who has reported ; and exceptions are taken by the defendant to his report.

I shall, first, consider the report and exceptions, for the purpose of ascertaining the true state of the title.

The land consists of two tracts, viz :

1. A tract of 1,447 acres, called Lower Falls ; and

2. A small adjoining tract, of 100 acres.

1. With respect to the tract of 1,447 acres, or Lower Falls.

This body of land originally belonged to William Sabb. His estate consisted of Lower Falls, and another contiguous tract, called Providence.

He died intestate in 18 — •, leaving a wife, Ann ; a brother Thomas, and two sisters, Ann Stewart, (wife of James Stewart,) and Elizabeth Thompson, (wife of William R. Thompson.)

Under a summons in partition, issued from the Court of Common Pleas, the 10th of March, 1806, Commissioners were appointed, who divided the real estate of William Sabb, by allotting Providence to his widow, Ann Sabb, and Lower Falls to his brother, Thomas, and his sisters, Mrs. Stewart and Mrs. Thompson, in common. This partition was confirmed by the Court, the 18th March, 1808.

Thomas Sabb died in 181], intestate and without issue ; and his distributive share of Lower Falls became vested in, and distributable between, his widow, Sarah Frances, and his two *372sisters, Mrs. Stewart and Mrs. Thompson, (then a widow, her husband, William R. Thompson, having died in 1807.)

Sarah Frances, the widow of Thomas Sabb, married a second husband, James F. Erving. There is evidence, which, coupled with lapse of time and acquiescence, shows, in a manner sufficiently satisfactory, that she was compensated for her interest in Lower Falls by other real estate. *(a*)

Mrs. Stewart died in 1813, leaving her husband, James Stewart, and one child, Ann, to inherit her original share of Lower Falls, and her portion acquired as distributee of Thomas Sabb, and also her portion of what had been acquired from Thomas Sabb’s widow, Sarah Frances, as already stated.

James Stewart, the husband, on the 30th of May, 1818, conveyed all his interest in Lower Falls to Mrs. Thompson.

Ann, the child of Mrs. Stewart, married William L. Lewis, and died December 11, 1831, leaving her husband and three children: Ellen, (widow of William H. Colcock,) Ann and James, her sole distributees. On the 10th of April, 1849, these three children and their father, William L. Lewis, conveyed to the plaintiff, Charles R. Thompson, all their interests in Lower Falls.

What has been stated, shows that the plaintiff, by the deed of April 10, 1849, has the legal title to two-thirds of Mrs. Stewart’s original third of Lower Falls, as well as of her share, acquired through her brother, Thomas Sabb, and his widow ; and that the rest of the tract vested in Mrs. Thompson, his mother. It remains to be inquired, whether he has title to that residue.

Mrs. Thompson’s husband, William R. Thompson, died, as we have stated, in 1807; she died intestate, In November, 1838, leaving six children, of whom the plaintiff, Charles R. Thompson, is one. This gave him one-sixth of his mother’s interest in Lower Falls. He and the other five children made an informal division of her and her late husband’s estate, in 1839, in which Lower Falls fell to his exclusive share. No conveyances were *373made. But he had an equitable right to conveyances. The other five children of Mrs. Thompson were:

1. Caroline, wife of Dr. John B. Lewis. She ■ and her husband conveyed her interests to the plaintiff, the 13th of July, 1843.

2. Charlotte, who first married Derril Hart, and upon his death, Robert H. Goodwyn. She and her second husband conveyed her interests to the plaintiff, the 25th of December, 1848, and she renounced her inheritance the 9th of January, 1849.

3. John Linton Thompson. He died before his mother leaving two daughters: Margaret, who married Dr. Artemas T. Darby, and Anna, who married William H. Sinkler. These two daughters, with their husbands, conveyed their interests to the plaintiff, the 25th of December, 1848; the daughters relinquishing their inheritance, the 1st and 2d of January, 1849.

4. Mary Eugenia. She married A. B. Darbey, whom she survived; and after his death, she conveyed her rights in Lower Palls to the plaintiff, 25th December, 1848. The remaining child of Mrs. Thompson was,

5. William Sabb Thompson. He died intestate in 1841, leaving one child, his sole distributee, by the name of Emma Thompson. She is still an infant. Proceedings were instituted by the plaintiff, the of February, 1851, against this infant, upon the ground that her father was a trustee to release his interests in the land allotted to plaintiff in the division of 1839, and that the trust descended upon her, and that, therefore, she was bound to convey, under the Statute 7 Ann, c. 19, (b) enacted, “ to enable infants, who are seized or possessed of estates in fee, in trust, or by way of mortgage, to make conveyances of such estates.” A decree passed in the case, the 13th of February, 1851; in conformity to which, Emma Thompson, the infant, on the 28th of May, 1851, conveyed to the plaintiff the undivided sixth of her father in Lower Falls, which had descended to her.

It has been objected, that this conveyance is not binding on *374the infant, and does not constitute a title which a purchaser is hound to accept.

I am of opinion, that the conveyance is good, so long as the decree, under which it was made, remains of force ; — unless it can be shown that the decree is a nullity.

It has been argued, that the statute of Ann empowers the Court to direct a conveyance, by an infant, only where the infant is a naked trustee ; not where the infant, although a trustee, has an interest; and that the infant in this case had an interest, and, therefore, the decree, directing a conveyance by the infant, is null and inoperative.

It is not every interest that puts an infant trustee beyond the operation of the statute of Ann.

In *ex parte*Marshall, referred to in a note to-vs. Handcoclc, (c) the Master reported, that the infant was not only trustee as heir of the mortgagee, but had an interest in the mortgage money, as one of the mortgagee’s four residuary legatees ; and was, therefore, not a mere trustee, within the meaning of the statute. But the Master of the Rolls was of a different opinion, and by an order, made the 15th of June, 1797, directed the infant to convey the estate.

The same note states, that the same point had been decided by Lord Thurlow, the 15th of March, 1783, in a case where the heir of the mortgagee, who had died intestate, would be entitled, as one of his next of kin, to a share of the mortgage money, when paid to the administrator.

The reason why an infant trustee, possessed of sush an interest, is still within the statute, appears *to*be, (as explained by Lord Eldon, in-vs. Handcoclc, (d) that the mortgage money being part of the personal estate, may be paid to the personal representative of the mortgagee, who may compel the payment, and give a valid discharge for the debt; and, if well paid to the representative, the consequence is, that the infant, (though also a co-executor, as in---- vs. Handcoclc,) may be considered as a dry trustee, without interest.

But in-vs. *Handcoclc,*(d) Lord Eldon goes still *375further. He holds, not only that where the interest of the infant can be extinguished by payment to another, he is thereby reduced to a naked trustee, and may he compelled to convey under the statute ; but that though he possess an interest that cannot be thus extinguished, and is, therefore, not a dry trustee, and within the statute ; yet a conveyance, made by him, is not void, but voidable, and voidable only during infancy. That it passes the legal estate until avoided; and if made in a case where he would be hound to convey, when of age, a Court of Equity would prevent him from avoiding it at law, if he attempted to do so. “ In every way, therefore,” says his Lordship, *“*the title is good.”

In the case before me, the infant stands precisely in that situation. She would be hound to convey at majority. The Court would not, therefore, allow her to avoid the conveyance she has made.

But this is not all. The question with me is not, whether I ought now to direct a conveyance by this infant trustee, under 'the statute. The Court has already decreed a conveyance, and it has been made. That decree is in force; and until it is reversed, it must be taken to have been rightly made, and in a proper case.

Suppose the Court to have erred in compelling the conveyance ; neither the decree nor the conveyance is *void.*They are both good, until avoided ; and though there were a possibility that the infant may hereafter avoid them, I am to regard them, as, now, efficacious.

There is not another deed, in the whole chain of title, that may not, by possibility, be set aside, as well as this, by some future proceeding. But that is not enough to invalidate them in a contract of sale. Mathematical certainty is not attainable, and is not required, in such cases. Moral probability, sufficient to make a good marketable title, is all that is required. It is not sufficient for the defendant, in this case, to show, that the title tendered to him may, *possibly,*be defeated. He must show; that there is reason to apprehend it will be defeated. But, so *376far from that being the case, there is reason to believe it can never be defeated, or set aside.

My conclusion is, that the plaintiff had, when he sold, a good equitable title, and has now, a good legal title, to Lower Falls.

2. Then, as to the 100 acres adjacent. This tract also belonged, originally, to William Sabb, and was parcel of Providence, which was assigned to his widow, Ann Sabb, in the partition of 1808.

She afterwards married Donald Rowe; and on the 8th of August, 1809, joined him in a conveyance of Providence to Edward Richardson.

Edward Richardson, on the 3d of January, 1816, conveyed to his mother, Rachel Richardson.

Rachel Richardson devised her estate, by will executed 8th September, 1820, to her daughter, Mary R. McCord.

Mary R. McCord died intestate, leaving two daughters : '

1. Rachel Susan Bee, (by a former marriage,) who married John R. Cheves; and

2. Mary E. McCord, who married Christopher F. Hampton.

August 19th, 1843, Cheves and wife conveyed all the interest of the wife, in Providence, to Hampton and wife; constituting them tenant in entirety of Mrs. Cheves’ moiety.

Mrs. Hampton died intestate, leaving her husband, Christopher F. Hampton, and an infant daughter, Ann Hampton, her sole distributees.

By her death, her husband became entitled, as survivor, to the moiety of Mrs. Cheves, which had been conveyed to himself and wife, as tenant in entirety; and to one-third of his wife’s original moiety, as her widower. The child Ann, became entitled to the remaining two-thirds of the latter moiety.

■ July 16, 1850, Christopher F. Hampton released to the plaintiff all his right to the 100 .acres, which the plaintiff had sold to the defendant.

June 13, 1851, the infant, Ann Hampton, released all her interest to the plaintiff, in the same 100 acres. This release was *377executed under an order of this Court, obtained on the application of the plaintiff; in which she was held to be a trustee, and bound to convey. The trust arose from the fact, that Edward Richardson had undertaken to convey, and did convey to the plaintiff, this 100 acres by deed, dated the 29th of June, 1820. He afterwards died intestate, and his estate became divisible between Mrs. Cheves and Mrs. Hampton, who were his nieces.

The view I took in relation to the conveyance of the infant, Emma Thompson, is applicable to that of Ann Hampton; and shows that, in my opinion, it is a good conveyance.

The title of the plaintiff to this 100 acres is, therefore, sufficient.

If there is any impediment to the enforcement of the contract of sale, it does not consist in a present insufficiency in the title, but must arise from some other cause. ,

In order to discover whether there be any other impediment, let us now look into the treaty of sale, and the conduct of the parties.

The defendant, Dulles, resided in Philadelphia, but owned a plantation adjoining these two tracts of Charles R. Thompson. After some preliminaries between the parties, Mr. Dulles, (being at the time, at his South-Carolina estate,) addressed Mr. Thompson the following note:

St. Matthews, Deo. 4, 1846.

Dear Sir, — I have considered the matter of your river plantation, and have concluded to offer you $5,000, payable in three equal yearly instalments of $1,666 66 each, without interest ; leaving to your use, for the year 1847, the premises in use now, and the lands at present under cultivation, and to my use the fields and lands which have not been planted this present year. A deed, clear of incumbrances, to be made at the first payment, and the premises mortgaged for the balance.

If this proposition is accepted, please inform me at once ; and, if not, please return me this letter. It is the utmost I can offer *378now: and, if not accepted, I shall make such arrangements as to render the addition not important to me in future.

Yours respectfully,

JOSEPH H. DULLES.

I expect to return on Monday morning.

Mr. Thompson declined this offer, and Mr. Dulles proceeded to Philadelphia. After reaching that city, he received a letter from Mr. Thompson, to which he replied as follows:

Philadelphia, Jaw. 21, 1847.

Deae SiR : — I have received your favor of the 10th instant: and, although your price is far beyond my views, I have concluded to come up to your price, with some variation of the terms.

You propose three yearly payments of $2,000, without interest. To this I cannot accede.

But, on the basis of your retaining, for this year, the use of the premises and the fields cultivated by you last year, and my using the remainder of the lands, the whole to he given up to me on, or before, the first of January, 1848, with good title, clear of incumbrance, together with the buildings and fixtures, (including the tract, I think you said, one hundred acres, bought by you, adjoining your tract,) I will purchase the property on the following terms:

$1,000 payable first of January, 1848.

1,000 “ 1st March, 1849.

2,000 *“*1st March, 1850.

2,000 “ 1st March, 1851.

$6,000 without interest; the payments to be secured by mortgage of the premises, with the privilege of anticipating the payments, with allowance of interest.

I will add, that my object in making this offer is to arrange my planting the present year; and I fear it is even now too late.

Should I make the clearings now designed, I would not buy, *379at any price: for I do not desire to increase my property in Carolina.

My plan is to *sell woodlands*to those who want it, *to cover any purchase I may make.*If I clear what I want, this year, it will preclude any such operation. Please give me your decision. Very truly, yours,

JOSEPH H. DULLES.

This letter was shown to Thompson by William R. Rast, then in the employment of Dulles, as the overseer of his South-Carolina plantation: and he says Thompson declined the terms proposed.

But shortly after, another letter was written by Mr. Dulles to Mr. Thompson, from Philadelphia, and also confided to Rast, who carried it to Mr. Thompson. It does not appear that he delivered it, but showed it to Thompson, as he had the letter of 21st January. It was retained by Rast, but has been lost.

Rast, in his testimony, says, *“*Subsequent to this,” (i. e., to the letter of the 21st January, 1847,) “Dulles wrote again, making a different offer for the same place. I saw Mr. Thompson; showed him Dulles’ letter, and Thompson accepted the conditions laid down in the letter. The terms of the contract were $ 1,000 in March, 1848, $2,000 in March, 1849, and $3,000 in March, 1850, without interest.” He refers to a representation of the terms of Dulles’ letter, contained in a letter subsequently written by himself to Thompson, which he affirms to be correct, and in that letter he adds to the foregoing terms : *“*You,” (Thompson,) “to plant the upper part, and 'Mr. Dulles the lower part of the plantation, and you to give *full*possession the first-of January, 1848. The letter was tobe binding till Mr. Dulles came on ; — then he would arrange business with you himself.”

He testifies further, that upon this verbal acceptance of these terms by Mr. Thompson, he apprised his employer of the fact, by letter, and, as his agent, took possession of the lower part of *380Lower Falls, and cultivated it in common with the rest of his plantation. This possession was taken in or about March, 1847.

Mr. Dulles, he says, did not reply to his letter, hut came out about the beginning of April, and approved the contract that had been made. He also came out again towards the end of that year, (1847,) rode over the place with him, (Rast,) saw the crop gathered in bulk, and received from him. a full statement of what had been done. There was no discrimination in the crops, between what was made on Mr. Dulles’ original plantation, and that made on the part of Lower Falls worked by his hands.

During Mr. Dulles’.visit of April, he addressed the following note to Thompson:

St. Matthews, Apb.il 7, 1847.

*Charles R. Thompson, Esq.,*

My Deak, Sib, : — On looking over the papers, they appear to me so defective, and the right so much depending on possession, that it will, as I think, be requisite to take out a new grant, conforming with the re-survey of 1841; and to strengthen'this by obtaining a renunciation on the part of Mr. and Mrs. Hampton, [then alive,] if the legal title, under Mrs. Rachel Richardson, is in them, as I suppose it to be. The deed from Colonel Richardson is only an obligation against his estate *to*make a good title ; but conveys nothing, as I conclude from the papers executed by him.

It will be requisite, also, to have the deed of partition by your own family recorded, as I understand that instrument vests the title in you, so far as concerns the heirs of your mother. I presume it is in proper form.

The deed of James Stewart wants confirmation, by the proving and recording that instrument, and a renunciation on the part of the heirs of Mrs. Stewart.

And the interest of Thomas Sabb wants evidence, to show when and how it passed to your mother.

*381The evidence of possession, and the persons by whom it can be proved, can be given in a memorandum.

I apprehend, these things cannot be done befoie my going North, which must be next week, if possible. I return all the papers. Yours respectfully,

JOSEPH H. DULLES.

In December, 1847, we find Mr. Dulles again in St. Matthews, and addressing Mr. Thompson the following note :

St. Matthews, Dec. 4, 4847.

■ My Dear Sir : — Since I left with you the papers, with a note of what I supposed requisite, *I have not heard from you.*My expectation is to return to Philadelphia in ten or twelve days: and, if they are prepared, so as to make a conveyance which shall be deemed good, I am ready to complete the contract. Not being familiar with such matters, I would rest on the opinion of an attorney of experience in titles.

I am so busy, hunting an overseer and arranging for an early return, that I have not had time to call, and would not postpone this communication any longer.

Yours very respectfully,

JOSEPH H. DULLES.

Then follows this letter, after his return to Philadelphia — the whole of the premises being then in his possession:—

Philadelphia, Jan. 11, 1848.

My Dear Sir: — As there is an unavoidable uncertainty about the time of my visiting Carolina, this Spring, I take the liberty of suggesting the propriety of having the land papers prepared *at*once, and if, when they are completed, they are handed to Mr. Hutson, of Orangeburgh, who has attended to my law business, he will examine them and advise me, so that I shall be prepared to act.

I am so entirely unacquainted with such matters, that l do *382not presume to act on my own judgment; and, in any case of the purchase of real estate, refer the question of title to a legal adviser.

I suppose (of course) that a clear and good title can be made, and suggested some things last April; but I do not profess to judge whether they are requisite, or would be sufficient.

I may desire to *exchange, or sell, a fart of the tract, or 'perhaps all my lands;*and it is *essential*to me, (so far off,) to have the title complete, in itself, so that any third party would be satisfied with it: and I have gone to a great deal of trouble to make every thing clear and exactly defined, as to my own lands.

My stay at the South may be short: and it would be well to , have this matter attended to early, so that there may be *no dp-lay :*and I am also anxious to have it *fixed*absolutely, as, until this is done, *I cannot but act under disadvantageous restraint in the use of the property.*

With my best regards, &c.,

JOSEPH H. DULLES.

*Charles JR. Thompson, Esq., Fort Motte.*

He writes Mr. Thompson again in April, as follows :

Philadelphia, Apb.il 13, 1848.

Deas. Sib. : — I wrote to you on the 11th of January last, stating that there was an unavoidable, uncertainty about the time of my going to Carolina, and requesting that you would have the land papers prepared *immediately,*and, by submitting them to Mr. Hutson, of Orangeburgh, as proposed, I could perform my part of the contract, whether present or absent.

My mortgage was prepared a year ago, according to the terms of agreement, and I have been waiting to hand it over to you, as soon as the titles were ready.

I am ready now, as I have been, to make the first payment when the titles were prepared, and I only wait your action.

Mr. Hutson wrote to me that he would inform me, as soon as *383he examined your conveyances. If he has had the papers, and neglected to do so, I regret it.

The plan I proposed was the only one to *prevent delay:*and I now write to say, that I fear it will not be in my power to go to Carolina this Spring, various and important changes in my family prevent it, at present. But this will be no difficulty in the way of a settlement, as all can he done that the case requires, on notice that the title is ready.

Yours, very respectfully,

JOSEPH H. DULLES.

In December, Mr. Dulles is in Soulh-Garolina, and writes Mr. Thompson as follows:

St. Matthews, Dec. 11, 1848.

My Deae Sir : — Being advised by my attorney, after an examination of your papers, that a clear title cannot be made, to convey the lands at the Lower Falls place, I must, of course, relinquish the purchase.

This has been a great disappointment, and a serious inconvenience to me. Taking it, however, as one of the cases of unintentional error to which business transactions are liable, I am disposed to make the best of it, and am willing to pay what, under the circumstances, may be deemed a fair price for the use of such parts of the land as have been planted.

This, we may adjust ourselves, or leave to be settled by disinterested persons: so that there may be nothing to interrupt the friendship which has so long existed.

I expect to remain in the parish twelve or fifteen days, and then be subject to an immediate return to the North. I hope that, within that time, this matter may be settled to our mutual satisfaction. I shall be pleased to receive any proposition from you, and give it my immediate attention.

Yours, very respectfully,

JOSEPH H. DULLES.

*384He writes him again :

St. Matthews, Dec. 23, 1848.

Dear Sir : — Under the circumstances in which ! am placed, I deem it my duty to advise you, that if good titles to the Lower Falls Plantation, which you proposed selling me, are not tendered to me by the first day of January next, I shall consider the negotiations for the purchase of the same at an end. Urgent business requires my return home, at least by that time.

Yours, very respectfully,

JOSEPH H. DULLES.

On the 1st of January, 1849, Mr. Dulles closed the correspondence, by a delivery of the keys to Mr. Thompson’s overseer, and by the following note to himself:

January 1, 1849.

Dear Sir : — Having *received, no communication from*you, since the notice which I gave you on the 23d of December, I now surrender the proposed purchase of lands on the Santee, and return you the keys of the houses, which have not been used. I am assured, that the property is, in every way, in better condition than when it was left by your negroes, excepting the ordinary decay of the buildings.

Yours, very respectfully,

JOSEPH PI. DULLES.

These are the facts upon which the bill was brought: and it was filed, as has been stated, the 29th of August, 1849.

One of the questions presented in the case is, whether a contract of sale has been made out; and, if so, what are its terms?

The bill, after stating the two offers contained in Mr. Dulles’ letters af the 4th of December, 1846, and 21st January, 1847, which were declined, proceeds: “But the said Joseph H. Dulles, at the same time, authorized his agent, William It. Rast, to see your Orator, and to conclude the contract with him. That, *385about the first day of February, 1847, the said William R. Rast saw your Orator, and agreed with him for the purchase, on the same terms, as to the taking of possessioh of part immediately, and the residue in January, 1848, as mentioned in Mr. Dulles’ letters.” “And the said William. R. Rast, by the authority of the said Joseph H. Dulles, agreed that the said Joseph H. Dulles should pay your Orator, for the said plantation, the sum of $6,000, in manner following: that is to say, $1,000 in March, 1848; $2,000 in March, 1849 ; and the residue of $3,000 in March, 1850and avers delivery of possession, under that contract, which is stated to have been by parol.

The defendant admits his offers in the two letters referred to, and that they were declined. He also admits, that he gave authority to Rast to agree with the plaintiff for the purchase of the plantation; but his authority was special, to wit: to vary *the times of payment*proposed in his letter of 21st January, 1847, so as to make payment of $1,000 1st March, 1848: $2,000 1st March, 1849 : and $3,000 1st March, 1850: but to *retain and insist upon all the other terms of that letter.*

He insists that the possession taken by him was in pursuance of these terms, and pleads the statute of frauds to the contract set up by the plaintiff, so far as it departs from them.

The material departure suggested, is the omission, (in the plaintiff’s statement of the contract,) of the stipulations in the defendant’s letter, that “ a good title, clear of incumbrance,” was to accompany the full delivery of possession, in January, 1848; and that the purchaser was to have “ the privilege of anticipating the times of payment, with allowance of interest.”

It is further insisted, that the object of speedily obtaining the actual execution of a clear conveyance was stated by the defendant in his said letter, and was of the essence of the contract, and is omitted in the plaintiff’s statement of it. Upon this latter point, I am very clear, that although the disclosure of his purposes by the purchaser so bears upon the *execution*of the contract of sale, that it will not be allowed to be executed to the disappointment of the purposes so disclosed — in other words, *386will not be executed against good faith — yet the disclosure referred to forms no part of the contract, properly so called, and need not be stated as parcel of it.

The other departure from the contract, admitted by the defendant, might be more material, if the establishment of the contract depended altogether upon the defendant’s admissions.

Where the existence of *some*contract, (not reduced to writing,) is evidenced by acts done in partial execution of it, as in this instance, the case is so far taken out of the statute of frauds, that the contract actually made, and, of course, its particular terms, may be established by parol. In this case, the act of taking possession under a contract is proved. This is sufficient to displace the plea of the statute : and that being out of the way, we are to receive parol evidence of the authority of Rast, the agent, and of the contract which he made, (e)

I take it for granted, from his testimony, that *he*(Rast) made the contract, although that does not appear to be his apprehension of the matter. He proves the contents of the last letter which he showed to Thompson, without stating that it contained any express reservation of the terms of the previous letter, as defendant supposes. That letter, thus exhibited by him, was the basis of Thompson’s acceptance : and Rast’s only authority being to obtain that acceptance, the contract was closed by Rast by taking possession.

It is objected, that, although the part execution be adjudged to take the contract of the parties out of the statute, and to let in 'par°l evidence of the contract actually made, yet, as the defendant has denied the contract alleged in the bill, the single testimony of Rast is not sufficient, in this Court, to establish it, in opposition to the defendant’s denial. This objection is neither exactly accurate, nor does it do justice to the defendant, himself. It is not true that his answer is contradicted by Rast: *387because the defendant does not, in fact, *deny*the contract as alleged. To the allegation that East, as agent of the defendant, made a contract, in certain terms, the defendant answers that he gave East specific authority. This is. not, in my opinion, such a direct denial of the contract alleged, as renders it necessary to prove it by two witnesses.

So far, I am with the plaintiff in this case ; but the principal difficulties of the case are yet to be considered.

The plaintiff, at the time he made the agreement to sell, had not the legal title. But he had the equitable title: and the general principle is, that where the vendor has the equitable title in him, the getting in the legal title is a matter of conveyancing.

The plaintiff had the ability, at some time, sooner or later, to make a good legal title. Was there anything requiring him to make it out sooner than he has done ?

I have said that the contract proved, did not provide for the making of titles at a specified' time : and, in such cases, time is not generally essential.

Where a specific time is fixed by contract, it may generally he insisted on : and, when insisted on, the contract will not be enforced, unless there be a substantial compliance with its terms. (f) But parties who may insist upon the terms, may also waive them: and he who, either expressly or by his conduct, makes such a waiver, has no right afterwards to take advantage of the other party, by holding him literally to the terms which he has waived, *(g)*

On the other hand, where no time is fixed in the contract, the party who is to make the conveyance will not be permitted, on that account, to trifle with the interests of the opposite party by unnecessary delay: and it is in the power of that party to fix some reasonable time — not capriciously or unreasonably, or for the purpose of surprising him, and thus getting clear of the bargain, but a reasonable time, according to the circumstances *388of the case — within which he will expect the title to be made, at the peril of rescinding the agreement, *(h)*

These principles are clear. There is no mystery about the doctrine. Good faith is to govern in all cases.

There was, in the contract in this case, not only a want of ' stipulation as to the time when titles were to be made, but possession was to precede the title, and was taken accordingly.

Now, out of this possession arises another difficulty. It is contended by the plaintiff, that so long as this possession was retained, it was a continual waiver of all objections to the title, or of the defendant’s right to complain of the delay in making it out.

But where the contract authorizes possession to be taken before a title is made, the fact of possession cannot, by itself, be used against the purchaser, for that would be contrary to the very terms of the contract. (i) Nor is his taking possession with the vendor’s concurrence, a waiver of any right to call for a good title : and the vendor’s subsequent delivery of abstracts, or negotiations on the subject, render this clear. Nor will ordinary acts of ownership, after possession, vary the rights, as arising from possession: for what can be the purpose of taking possession, but to act as owner ?

A purchaser, who goes in under a contract for a good title, cannot be compelled, from the mere fact that he is in possession, to accept a bad or defective one. Nor is his possession any justification to the vendor in unreasonably delaying the title: nor will it, of itself, deprive him of the right to complain of such delay.

The reasonable doctrine to be deduced from all the authorities is, that this point, like every other, must depend upon good faith and fair dealing. (k) A party in possession will not be allowed to retain the possession, and, at the same time, insist on an entire recision of the contract: and, so long as he retains the *389possession, it is, unless under peculiar circumstances, *so far,*a waiver of all anterior objections, whether of defects in the title} or delay in completing it, that if title is made to him, while yet in possession, he must accept it. Why does he remain on the land, unless he is waiting for the title ?

In this case, it does not appear, that at the time of the agreement of purchase, Mr. Dulles had been informed of the state of the plaintiff’s title, and it is fair to presume that he took possession in ignorance of it.

The contract he made was executory in every particular, except as to the possession. But in April, 1847, it, appears from *his letter, he was*apprised of the state of the title. When he received this information, he might, perhaps, at once, have put an end to the agreement, by abandoning his occupancy of the land then in his possession, though, as his crop was pitched, the sacrifice would have been unreasonable. But he remained on it (constantly calling for the title, however,) for the year 1847. And in 1848, he took possession of the entire premises, and held it until the end of that year also.

During all this time, he was urgent for the title, and ready to perform his part of the agreement. There was neither neglect nor default on his part. If there was unreasonable delay on the vendor’s part, he had a right to complain of it, and his waiver of that right extended only so as to make the contract obligatory on him, if the complaint was removed before he abandoned it. (l)

And here, I think, is the main difficulty in the way of the plaintiff. It appears to me, he was too indifferent to the interests and claims of the defendant, as a purchaser, and, by his delay, kept him in suspense for an unreasonable time, not only as to his ultimate right to the property purchased, but also as to the plans and. arrangements which the defendant had, at the outset, informed him he must make, in consequence of the purchase.

*390■ An eminent elementary writer (m) says, that “ the exercise of this whole branch of Equity jurisprudence, respecting the re-cision and specific performance of contracts, is not a matter of right in either party: but it is a matter of discretion in the Court. Not, indeed, of arbitrary or capricious discretion, dependent upon the mere pleasure of the Judge, but of that sound and reasonable discretion, which governs itself, as far as it may, by general rules and principles: but, at the same time, which withholds or grants relief according to the circumstances of each particular case, where these rules and principles will not furnish any exact measure of justice between the parties.”

In another place, he says, that though time is not, generally, deemed in Equity to be of the essence of contracts of sale, unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract, yet, “ Courts of Equity have regard to time, *so far as it respects the good faith and diligence*of the parties.” *(n)***He observes further, that “ if circumstances of a *reasonable nature*have disabled a party from a strict compliance, or if he comes *recente facto*to ask a specific performance, the suit is treated with indulgence, and generally with favor, by the Court.” “But, then,” says he, *“*in such cases it should be clear,” *“*that compensation for the delay can be fully and beneficially given,” and “.that he who seeks a specific performance is” not only “ in a condition to perform his own part of the contract,” but, “ *that he has shown himself*ready, desirous, *prompt*and eager to perform the contract.” *(o)*

*■*Ch. Justice Marshall says, in *Brashier*vs. *Gratz,*(6 Wheat. 584,) “ If a bill be brought by a party who is himself in fault, the Court will consider all the circumstances of the case, and decree according to those circumstances.”

Chancellor Kent, in *Benedict*vs. Lynch, (1 Johns. Ch. *377,)*cites with approbation the doctrine laid down by Lord Hard-*391wicke, (1 Yesey, 450,) where the enforcement of contracts is put upon the footing, that “ the non-performance has not arisen by default of the party seeking to have a specific performance:” and adds, “ so it was held in the case of *Hayes*vs. *Caryll,*as early as 1702, (5 Yiner, 538, pi. 18,) that where one person has trifled,’ or shown a backwardness in performing his part of the agreement, Equity will not decree a specific performance in his favor — especially if circumstances are altered.”

In *Fordyce*vs. *Ford,*(4Bro. 494,) Lord Alvanley said, “the rule, now, is, that if either party has been guilty of gross negligence, the Court will *not*lend him its aid, to complete the contract.” Though, in that case, his Lordship decreed a specific performance, he added, that *he hoped it would not be understood, that a man entering into a contract should think himself entitled to take his own time to perform it.**(p)*

I am aware that most of these observations were made in cases where a specific'time was stipulated, in the contract, for the performance of the acts which the parties seeking a specific execution had omitted. But, in principle, there is no distinction between negligence to come up to a time stipulated, and negligence to perform duties which are incumbent, although no time is fixed in the contract. The principle is sound and just, and demanded alike by morals and by policy, that he who has neglected to perform a duty which he might have performed, and ought to have performed, has no claim upon the Court to compel the other party to perform his engagements. Whenever such negligent party comes into this Court, he must be told that he has neglected to do Equity, and has therefore deprived himself of the Equity he claims. “ An *Equity*arising out of one’s own neglect!” exclaims Lord Loughborough, in *Lloyd*vs. *Collett,*(4 Bro. 469,) “It is a singular head of *Equity!”**(q)*

*392There are cases in which the Court will help neither party, but will leave them both to their remedies at Law: of which the cases of *Gillam,*vs. *Briggs*and *Briggs*vs. *Gillam,*mentioned by Chancellor Harper, in *Whitworth*vs. *Stuckey,*are examples. One of these bills was by the vendor, to enforce the contract of sale, and the other by the purchaser, to rescind it. Both bills were dismissed, on the ground of laches in the parties who filed them, and they were left in the condition they had placed themselves.

In this case, it is true, that by the terms of the contract, the making of titles was not a condition precedent to the defendant’s first payment, as he seems to have supposed. The titles and the payments were independent. But if the defendant, after omitting his part of the contract, had filed his bill' for titles, I should have dismissed it. And so here, the plaintiff seeking to enforce payment, is not entitled to a decree, because he neglected to perform his own part of the agreement.

In the case before me, it is difficult to perceive any excuse for the delay of the plaintiff to perfect his title. It was not a delay arising from, and made necessary by, the *state of the title.*If he had proceeded diligently in proper steps to perfect his title, and the proceeding had been necessarily protracted by the *difficulty of the proceeding,*he might have been excused. But that was not the case. The co-heirs of his mother were around him; yet he never appears to have even presented deeds for their signatures, till the very end of 1848. The infant heiresses of William Sabb Thompson and Mrs. Hampton were not moved against till 1851, and *then*there was no difficulty. Was not this delay in taking proper steps, or any'steps, the merest *laches,*unless the plaintiff accounted for it ? Was it not necessary for him to excuse himself by evidence ? And what single circumstance has he shown, which prevented his proceeding? He was made aware, by the second letter of the defendant, what his plans and purposes were in the purchase, and could not expect that he would venture to sell woodlands in order to cover this purchase, until he was assured of the title. *393He should, therefore, have had sufficient regard to his interests to have made him diligent in getting in his title.

But look at the time the plaintiff allowed to elapse without taking *one single step to get it*in. Prom February or March, 1847, when the agreement was made, the defendant was continually importuning him to perfect it, holding himself ready the whole time to perform what was incumbent on himself. He pointed out the defects in the title, and requested that the plaintiff should proceed to cure them. This importunity continued until near the close of 1848, and *not a single step*appears to have been taken by the plaintiff until the 25th of December, 1848, when he got in the deeds of some of his mother’s heirs.

This was done under the spur of the notice extended by the defendant’s letters of the 11th and 23d of December, 1848. If so much could be done in that short interval, what excuse can be given for the total neglect of, and indifference to, the previous importunities of nearly two years *1*

If the defendant had not been constantly pressing the plaintiff to take steps to perfect his title, before he gave the notice of the 23d of December, 1848, I might have inferred that he was acquiescing in the plaintiff’s *laches*up to that time, and that so sudden a notice was calculated to surprise him. (r) But the whole correspondence repels that idea. The plaintiff could never, for a moment, have supposed, from anything in the defendant’s letters, from .first to last, that he was disposed to acquiesce in the least delay. He was indulgent, not acquiescent, and his kind forbearance should not, in good faith, be unreasonably turned against him. To all appearance, if he had not abandoned the premises and the contract, the plaintiff would never have proceeded to deduce his title. Was the defendant to wait forever *1*

It has been argued, that because the defendant, in throwing up *the*contract, offered the objection that he was advised *good**394*tilles could not be made,*therefore he had no other justification for that act. Did the fact that the plaintiff could make good titles, justify his *laches*in not making them ? Is it usual to limit a defendant to a single ground taken by him, merely because he fails to state others, equally, and indeed, more just? We might, it is true, infer, from the defendant’s silence on that occasion,»as to the plaintiff’s laches, that though sensible of it, he had waived it; but when we look to his previous letters, in which his constant theme is “ *no delay :*— make *the titles forthwith.,*— early *:*— at *once*— I *am acting under restraints until I get them,”*&c. — are these evidences of waiver ? or are they not evidences of a contrary character ? And as to the defendant’s prolonged indulgence — its length is only proof of the extent of his injury. Will it do to say, that the greater the delay — the more ripe the offence — the greater proof is the ending of it that complaint has been waived ?

Though a party be not bound to make titles at a *fixed time,*he is, nevertheless, bound to make efforts to complete them in a *reasonable Ivme.*If such a party manifests diligence, he will generally be sustained, if he is able to make titles at the time of the decree. But where there is not the least trace of diligence — but the reverse — I think it would be a sacrifice of sound policy to grant such indulgence. It must necessarily *encourage laches,*and leave the opposite party subject to unreasonable suspense and vexation.

In concluding to refuse the application for specific performance, I avail myself, with pleasure, of the offer of the defendant to make reasonable compensation for his use of the premises.

It is ordered, that the bill, so far as relates to a specific performance, be dismissed with costs; and that it be referred to one of the Masters, to inquire what sum should be paid by the defendant to the plaintiff, for his use of the land, the subject of the suit.

The plaintiff appealed, for the following reason:

That, as time was not of the essence of the contract, as his *395Honor has well shown, the circumstances of this case entitle the complainant, on grounds of Equity, and according to the rules of this Court, to a specific performance.

1. That after the defendant had taken possession, the sale was not executory, but executed : so that the question is, rather about the rescinding than about the performing of a contract. That defendant has shown no sufficient cause for rescinding his agreement, and would probably never have thought of doing so, but for the advantage, which he supposed that he had in the provisions of the statute of frauds — an advantage which he owed to the suppression of his letter to William R,. Hast, which, from the testimony of Hast, there is every reason to believe, came to his hands.

*2.*That all the delay was between February, 1847, and January, 1849. That great part of that delay is accounted for by the death of Mrs. Hampton. That complainant was not inactive : that he employed defendant’s solicitor, who made progress, and obtained the releases of December, 1848 : and the necessity for legal proceedings probably prevented him from going further. That, as soon as defendant assumed a position adverse to the fulfilment of his contract., complainant employed counsel, who lost no time in furnishing an abstract of the title, by their letter of the 9th February, 1849, and the bill was filed as soon as a reasonable time had been allowed to defendant to consider whether he would answer that letter. And the cause was actually at issue before the day for the last payment had arrived.

3. That legal-proceedings were necessary, not only to get in the legal estate vested in the infants, but to satisfy the defendant’s doubts : for it is evident that he retained those doubts up to the time of the hearing, and that, even if complainant had been as ready in 1848 as he was at the hearing, he would have met with the same resistance. So that the case presents, in fact, an example of a purchaser, who would accept of no title, but such as would be pronounced good upon the hearing of a bill *396for specific performance; and setting up, as a defence, that delay which he rendered inevitable.

Lastly. The defendant’s possession was not disturbed, or threatened, or ever in danger: and the delay of the conveyances, which is the only matter of complaint, neither caused him any loss, nor deprived him of any opportunity of gain.

*Taber, Petigru,*for appellant,

cited *Morphett*vs. *Jones,*I Swanst. 172; *Palmer vs. Richardson,*3 Strob. Eq. 16; 2 Story Eq. § 776-7; Atk. on Tit. 20 Law Lib. 70; *Radcliffe*vs. *War-rington,*12 Ves. 326 ; *Reynolds*vs. *Nelson,*6 Mad. R. 26 ; Sugd. Vend. 282 et seq.; *Pinlce*vs. *Curiéis,*4 Bro. C. C. 329 ; *Seton*vs. *Slade,*7 Ves. 265 ; *Langford*vs. *Pitt,*2 P. Wms. 629; 6 Bro. P. Cas. *291;'Hogg art*vs. *Scott,*2 Russ. & M. 293; *Hepburn*vs. *Auld, 5*Cra. 262; *Patón*vs. *Rogers,*6 Mad. 256; *Roach*vs. *Rutherford,*4 Des. 136; 1 Sug. 415; *Nokes*vs. *Kilmorey,*1 DeG. & Sm. 444.

*DeSaussure,*contra,

cited 2 Story, § 81-9, 771-8 ; 1 Wheat. 204; 5 Ves. 736; Id. 818; 4 Ves. 667; *Heapy*vs. *Hill,*1 Cond. Eng. Ch. R. 332 ; *Watson*vs. *Reid,*4 Id. 404 ; *Benedict*vs. *Lynch,*1 Johns. Ch. 370 ; 6 Wheat. 528 ; *Taylor*vs. *Brown,*2 Beav. 180; *Perkins*vs. *Wright,*3 Har. & McH. 326; 2 Wheat. 290 ; *Bryan*vs. *Reed,*1 Dev. & Batt. 78; 2 Cox Eq. C. 221; Dick. 400; *Southcombe*vs. *Exeter,*6 Hare, 213.

(a)

 Sugd. on Vend. Chap. 10, p. 88, note 1, (Hammond's edition.)

(b)

 P. L. 97 ; 2 Stat. 546.

(c)

 17 Ves. 383.

(d)

 17 Ves. 384.

(e)

 1 Mad. Ch. 377; 1 Ronb. 180, note (d); Sug. Vend. 83, 84; Atkins, on Titles, 66; 1 Ves. 221, 297: 1 Serg. & R. 80; 2 Johns. R. 587; *Gunter*vs. *Halsey,*Amb. 586; 3 Atk. 3 15 Mass. 85 ; 3 Burr. 1919; Kirby, 400; 1 Des. 350; 2 Des. 590; 4 Des. 77; 3 Ves. 39, note ; 12 Ves. 26.

(f)

1 Johns. Ch. 374, *et*saq.

(g)

 2 Story Eq. § 776,

(h)

**2 Story E<p § 777.

(i)

 2 Sug. 65, chap. 8, § I, pi. 26, 27, 28, 29, and soo chap. 4, § 4.

(k)

7c) 2 Sug. 21, chap. 8, § 1, pi. 27.

(l)

 2 Sug. chap. 8, § 1, pi.. 44; and *Knatchbull*vs. *Grueber, 1*Mad. R. 91.

(m)

 2 Story Bq. § 742.

(n)

 2 Story Eq. § 776.

(o)

 5 Ves. 720, note b, citing *MilwarA*vs. *Tkanet.*

(p)

**See *Milward*vs. *Thanet,*(5 Ves. 720, note,) and *Guest*vs. Homfray, (Id. 518.)

(q)

*Smith*vs. *Clay,*(Ami). 645 ; 3 Bro. e. c. 640, note,) *Beckford vs. Wade,*(17 Ves. 87,) and see 2 Rich. Eq. 441. “ Nothing,” says Lord Camden, in *Smith*vs. *Clay,*“ can call forth the Court into activity, hut conscience, *good faith,*and reasonable *diligence.*Where *these*are wanting, the Court is *passive,*and does nothing. *Laches*and *neglect*are always discountenanced.”

(r)

 2 Sug. 21, chap. 8, § *1,*pi. 44; *Knatchbull*vs. *Grueber,*(1 Mad. R. 91.)

The opinion of the Court was delivered by

DuNKiN, Ch.

This Court is so well satisfied with the conclusions of the Chancellor, upon the several legal propositions discussed in the decree, that it is deemed unnecessary to express more than a general concurrence in the principles announced. And, in the application of those principles to many of the questions involved, the Court is equally well satisfied. The decree substantially determines, (and we think rightly,) the existence and validity of the contract of February, 1847, of which the complainant asks the specific performance; that possession was taken by the defendant under that contract, and that the plea of the *397statute of frauds was inapplicable. It is further ruled, that when the complainant entered into the contract, he had a good equitable title to the premises, of which he was in possession and which he agreed to convey to the defendant, — the complainant had, in the language of the decree, “ an equitable title, with the ability, at some time, sooner or later, to make a good legal title;” and furthermore, that “the contract proved did not provide for the making of titles by a specified time.” “ There was in the contract,” says the Chancellor, *“*not only a want of stipulation as to the time when titles were to be made, but possession was to precede the title, and was taken accordingly.” The decree also determines, after fully considering the defendant’s exceptions to the Master’s report of July 1, 1851, that the complainant had then a good legal title to the premises, and that, “ if there is any impediment to the enforcement of the contract of sale, it does not. consist in a present insufficiency in the title, but must arise from some other cause.” The Chancellor then reviews the correspondence, and the conduct of the parties, from February, 1847, to the' latter part of December, 1848, and concludes, that in consequence of the neglect or unnecessary delay of the complainant, under the circumstances, the defendant was well warranted in his abandonment or surrender of the premises, on January 1, 1849, and that the complainant was entitled to the aid of this Court.

Although, as Mr. Sugden declares, “ every case of this nature must, in a great measure, depend upon its own particular circumstances,” (p. 445.) yet there are certain leading principles, which direct the judgment of the Court, in granting or refusing relief, where time is not an essential part of the contract. These are clearly stated in the decree. Where no time is fixed in the contract, or where time is not essential, it will not, however, be permitted to the party, who is to make the conveyance, to trifle with the interests'of the opposite party, by unnecessary delay; and it is in the p’ower of that party to fix some reasonable time, not capriciously or with intent to surprise, but a reasonable time according to the circumstances of the case, within which he will *398expect the title to be made, at the peril of rescinding the agreement. These sound principles are abundantly sustained by the authorities cited. It remains only to add, that, after such pre-emptory notice, it becomes the party notified, if, from any cause, he is unable strictly to comply, to apply promptly for the aid of the Court by filing his bill.

About the principal facts, there is no dispute. As early as April, 1847, the defendant, having examined the complainant’s papers, was aware of the defects in his legal title, and brought them to the particular notice of the complainant. In that yeai^ however, he went into possession of part of the premises, and, in January, 1848, he took possession of the whole, and planted and gathered the crop of that year. By the terms of his agreement, he was to pay the complainant one thousand dollars, on March 1, 1848. In his letter from Philadelphia, of January ll, 1848, he suggests to the complainant the propriety of having the land papers prepared at once, and when they are completed, submitted to the defendant’s legal adviser, Mr. Hutson, of Qrangeburgh, who would examine them, and advise him, so that he should be prepared to act. It does not appear, that the defendant made his payment of March 1,1848, although, as the Chancellor has ruled, “ the making of titles was not a condition precedent to the defendant’s first payment, as he seems to have supposed.” We concur with the Chancellor in this construction ; and *yet the*defendant may, very exusably, have supposed that they were dependent covenants, and the complainant may also very well have supposed, that this was the extent of the penalty he might incur, for not having the title completed at that time. Certainly, the complainant should have taken measures to perfect his title prior to J anuary, 1848, and the duty was still more imperative during that year. Yiewing his conduct in the most favorable light, he was guilty of neglect; and the only inquiry is, as to the effect of that neglect on the rights of the parties. There is no arbitrary rule upon the subject. It depends very much, not only upon the situation and conduct of the parties, but also upon the state of the title. In 1847, the *399defendant was let into possession of part of the premises, and in January, 1848, of the whole, under the contract set forth in the pleadings. He continued to use and cultivate the premises during these years. Early in 1847, he was aware of the complainant’s equitable title, and became also informed of the infirmity or defects in his legal title. These were brought by him to the notice of the complainant, in the spring of 1847; and his entry into full possession in January, 1848, was done with perfect consciousness that the legal title was yet incomplete. In his letter of January 11, 1848, he says. “ I take the liberty of suggesting the propriety of having the land papers prepared at once, and if, when they are completed, they are handed to Mr. Hutson, of Orangeburgh, who has attended to my law business, &c.” The evidence affords strong reason to infer, that the complainant, as the most ready and certain mode of complying with this suggestion, addressed himself to the same professional gentleman for the purpose of having the papers prepared. An important defect in the complainant’s chain of title was the want of a conveyance from the co-heirs of his deceased mother, Mrs. Elizabeth Thompson, — the partition of that estate, under which the complainant had held exclusive possession since 1839, having been informal. The deed of conveyance for this purpose, to be executed by the several parties who were of age, was adduced at the hearing. It is in the hand-writing of Mr. Hut-son, is dated by the draftsman, as prepared for signature, in the year 1848. The *month*was left in blank, and also the *year*of Independence. From which it is most probable that the deed was prepared prior to July 4,1848. This conveyance was executed by the parties on December 25,1848, and the renunciation of inheritance within fifteen days afterwards.

The other defects in the complainant’s legal title were not to be supplied by so plain a process. A release from Mr. and Mrs. Hampton was to be obtained, and a conveyance from the infant heir of William Sabb Thompson; and it became furthermore necessary to establish by parol evidence the legal title of the complainant in the interest of Thomas Sabb, or the extinguish*400ment or satisfaction of that interest. In the Spring of 1848, Mrs. Hampton died, and the infancy of her child added, very materially, to the difficulty and embarrassment in perfecting the legal title. It was for some time doubtful in what mode these difficulties could be obviated. So serious were they, that, in the judgment of Mr. Hutson, they had become insurmountable, and so, in the course of the year, he informed the defendant; for, on December 11, 1848, he writes to the complainant that he must relinquish the purchase, (not as it would seem from the letter, on account of the *delay*in completing the legal title,) but because of *“*being advised by his attorney, after an examination of the complainant’s papers, that *a clear title could not be made?*It is now manifest, and it is so adjudged, that in this opinion the legal adviser of the defendant was mistaken. The difficulties have been removed, and the legal title perfected. But the embarrassing state of the title has always been recognized as affording a reasonable excuse for delay, and especially under the circumstances of this case. Where “ a purchaser is aware of the objections to the title, and proceeds with the purchase, although the time fixed for the completion of the contract may have elapsed, and a much longer period may be requisite in order to make a good title, he will be held to have waived his right to object to the delay, and not be enabled to resist specific performance.” See a collection of the cases in a note to *Seton*vs. Slade, 2 vol. 2 part, p. 15, White and Tudor’s Lead. Cases in Equity. But the defendant, in his letter of December 11,1848, for the first time, notifies the complainant of his intention to relinquish the purchase, for the reason therein stated; and, in his more formal communication of the 23d of the same month, advises him, that if good titles are not tendered by the 1st January, he should consider the contract at an end; and accordingly, on January 1, 1849, he informs him of the abandonment of the premises and of the contract. It is hardly necessary to say, that if it was the duty of the defendant, after having determined to abandon his purchase, unless the legal title were completed, to give the complainant reasonable notice of his intention, or, in *401the language of the authorities, “ to fix some reasonable time, according to the circumstances of the case, within which he would expect the title to be made, at the peril of rescinding the contractthis notice was entirely insufficient. The defendant had been, during the whole year, in the full and undisturbed enjoyment of the premises which he had agreed to purchase. He had paid no part of the purchase money, although one thousand dollars had been payable on March 1, 1848. In his letter of April 13, he refers, it is true, to the delay in relation to the titles, but he says, *“*I am ready now, as I have been, to make the first payment when the titles were prepared, and I only'wait your action.” The complainant might very well understand from this, that the defendant intended to make no payment until the title was completed. But there is no evidence of his being apprised of any more serious consequence of his delay, until the receipt of the defendant’s letter of December 11, communicating the legal opinion that a clear title could not be made, and the notice of 23d December, that unless good titles were made within eight days, the contract would be rescinded. From this period, certainly, the complainant seems to have been sufficiently on the alert, not only in having his title completed, but, as. we all think, in applying for the aid of this Court in enforcing the performance of the contract. In the letter of his solicitors, of February 9, 1849, they inform the defendant of the precise nature of the difficulties in relation to the title,’ of the causes of delay, and of the mode of removing them, and intimate, if their opinion should not be satisfactory, as to his obligation to complete the contract, that he might select the forum, either of the State or Federal tribunals, in which the matter might be adjudicated. The bill was accordingly filed in August succeeding.

A recent decision in the English Court of Chancery has been brought to our notice, not as enunciating any novel principle,, but as exhibiting the judgment of an able Chancellor in the application of well known and established rules. *Southcomb*vs. *The Bishop of*Exeter, (6 Hare, 213,) 31 Eng. Ch. Rep. 212, is very analogous , in many of the circumstances, to this case. *402The bill was by the vendors, for the specific performance of a contract. It was dated October 16, 1840. The purchaser was to pay 20 per cent, deposit, and the balance on the 29th September, 1841, at which time the contract was to be completed, and the purchaser to have possession. The abstract of title was delivered on the 30th October, 1840. After some correspondence in relation to the title, the defendant, on August 20,1841, informed the complainants, that his legal advisers regarded the title as defective, and desired the plaintiffs to regard that letter as notice of his intention to rescind the contract. Subsequent correspondence, however, ensued, but always under protest that the defendant relied on this notice. The correspondence was not concluded until January 17, 1842, when the defendant’s solicitors informed the vendors’ solicitors that their client would fall back to his position under the rescinded contract, and referred to the letter of August 20, 1841.

The bill was not filed until 30th August, 1843. The Vice-Chancellor (Sir James Wigram) says, “the position of the vendors and purchaser, in this case, was this : on the 20th August, 1841, the purchaser had taken upon himself to declare the contract at an end, &c.and then adverts to the other circumstances. *“*Now, if,” says he, “ the plaintiffs had, immediately on the receipt of the Bishop’s letter of the 20th August, 1841, or had, within a reasonable time “afterwards, filed their bill, I could have had no doubt of the vendors’ right to the common reference as to title.” The bill was, however, dismissed on the ground of the delay from 17th January, 1842, till 30th August, 1843. “ I dismiss the bill,” says the Vice-Chancellor, “ upon the sole ground of the vendors’ delay in filing the bill, after the purchaser had given him distinct notice that he asserted a right to rescind the contract, and considered it at an end.” According to this decision, the complainant, in the cause before us, was entitled to the common reference of title; and it being well settled that the vendor is entitled to a decree, if he can make out the title at the time of the Master’s report, we are of opinion, that the plaintiff is entitled to the aid which he seeks.

*403It is ordered and decreed, that upon the execution, by the complainant, of a conveyance in fee simple of the premises described in the pleadings, with the usual covenants, and delivery of the same to the defendant, or his solicitors, the defendant pay to the complainant the purchase money, to wit, the sum of six thousand dollars,..with interest on the several instalments as they successively became due, according to the contract recognized and established by the Circuit decree, and that the premises stand pledged for the payment of the same.

It is finally ordered and decreed, that the costs, up to the filing of the Chancellor’s Circuit decree, be paid by the complainant, the subsequently accruing costs by the defendant.

DargaN and Wardlaw, CC., concurred.

*Decree reversed.*