[Present, Chancellors Rutledge, Marshall and James.]

Nov. 1804.

#### William Telfair, *vs.*Edward Telfair.

The court will decree specific execution of a contract for the conveyance ofland situate in this state, though the contract is in the form o’f a penal bond, and though the defendant resides out of the state.

THE bill was filed to obtain specific execution of a contract, for the purchase of a tract of land in South-Carolina, the contracting parties being partners. The defendant had given his bond to make titles to the land.

The bill stated that in 1772, complainant and defendant were connected in trade; complainant resided in London, defendant, then and still in Georgia. Defendant in May, 1794, bought of J. Smith and Elizabeth his wife, of Savannah, the plantation called Smithfield, containing 1,050 acres on Savannah river, in the State of South-Carolina, and took titles to him and his heirs for ever. That said purchase being made with the funds of complainant as well as defendant, he the defendant, on the day after the date of said titles, viz : on the 17th May, 1774, bound himself in a bond to complainant in the sum of 3,300/. with a condition that in case defendant (upon complainants paying him the sumofll,550/. currency on or b’efore the 31st August 1778, with interest from .the date of bond to be paid annually, and upon the further payment of a' moiety of all charges, &c. in repairs and buildings) would make him (said complain - *272ant) titles to one half of said planíatioh *;*'then said obligation to be void, or otherwise to be of force.

That said bond taken altogether was intended as an agreement to convey one half of said plantation to com» plainant, and ought to be carried into -execution by this honorable court. That notwithstanding such purchase from Smith, the land belonged to Basil Cooper, of London, as is proved by said defendants- letters, stating that on the 14th May, 17/4, said Edward Telfair purchased of Mr. Cooper his half of Smithiield, for 1650/. sterling and advising df his having executed a bond to make titles to half of said land to complainant uponhis paying defendant’s bond with interest, improvements, &c. That upon complainants being thus advised, he entered into bond with Basil Cooper, conditioned to pay 1650/. with interest from 17th May, (time of purchase) at the interest of South-Carolina, eight per cent, being for the-purchase of Smithfield. ■ That said bond was accepted by said Cooper, as a performance by complainant of the stipulation made by defendant, touching said land, and was also an exoneration of defendant, and a performance of the stipulations entered into by complainant, to wit: the payment of 11,550/. old currency, with interest at 7 per cent,- making 1650/. sterling, and complainant has taken up said bond, and is entitled to have half of said land conveyed to him and his heirs, according to the meaning of said bond, entered into by defendant', but settled by complainant. That in consequence of the revolution and the troubles incident thereto, complainant ' was a resident beyond sea until lately. That he has waited patiently for defendant to make him titles to said lands, hoping not to be compelled to resort to legal coercion against so near a relation; but defendant refuses to make titles, (although complainant has always been and still is ready, if there remains any thing on his part, to fulfil the same, and to come to a general account with defendant) & although complainant has paid said bond, -which was for the consideration money for said land, and although said defendant has it in his power, if any other charges have ac*273crued, to repay the same from the funds of complainant, which he retains in his hands, and upon which an account and general settlement will be found to exceed any charges which could possibly exist against complainant relative to said purchase. That the rents and profits of said plantation would themselves have defrayed the same.

Bill prays for a specific execution of said bond, and that titles be made by defendant for one half of said land.

To this bill, the defendant demurred for want of equity, but the demurrer was overruled, and the defendant ordered to answer.

On the part of the defendant, the following paper was filed :

The answer of defendant contests the jurisdiction of the court, and denies all and every the matters alleged in the bill of complainant, except only that a bond with such special condition as is set forth in the bill, was signed and sealed by the said Edward, deposited with the late Basil Cooper, deceased, who was to have transmitted the same to the said William Telfair, and the said Edward does not admit that the said William Telfair hath performed or complied with the conditions and covenants on his part to be performed. That on the contrary, the joint bond of Basil Cooper, and the said Edward Telfair, of which the original purchase of Smithfield, composes a part of the condition, is now in suit in the federal court of the district of Georgia. And flue bond executed by the said Edward to Basil Cooper for one thousand six hundred and fifty pounds for the said Cooper’s moiety, which the said William pretends to have satisfied, is now in suit in the same Circuit Court, to which suit, the said Edward among other pleas, has pleaded payment.

And the said Edward further saith, that Samuel Stiles obtained a judgment against him on the 21st February, 1793, in Beaufort district, in South-Carolina, for 1739/. 4s. *Sd.*which is in full force and unsatisfied, and for the payment of which,the said Edward conceives the said tract of land to be bound. And the said . Edward saith that he *274is a citizen of the state of Georgia, openly and notoriously residing there, and that he was not in the state of South» Carolina at the time of filing the said bill, so as to be served with process, and that he has always been and still is ready answer any suit, either at law or in equity brought against him in the courts of the United States for the district of Georgia. He therefore doth not admit, but insists against the power of the said Court of Equity, to call him in to answer as to matters contained in the said suit, he not residing in that state, nor being found there to be served with process. Wherefore for the several matters above stated, the said Edward requires that the said billbe dismissed.

The cause came to a hearing, and after argument,Chancellor Rutledge delivered the following decree of the court:

The bill and answer being read, the only evidence adduced was, on the part of the complainant: 1st. A letter from defendant to complainant, dated the 29th of May, 1774, advising him of his having purchased B. Cooper’s moiety of the tract of land called Smithfield, for complainant. 2d. A bond from defendant to complainant, to makfc him titles, on complainant’s giving his bond for the purchase money to B. Cooper, and paying his proportion of expenses for improvement, &c. 3d. Complainants bond to B. Cooper for the purchase money, which bond was cancelled, the complainants name and seal being torn off, from which circumstance it was argued for complainant, that the purchase money due thereon must have been paid. There was no evidence offered on the part of defendant; but the defence urged by his counsel, was principally against decreeing a specific execution of the contract, after the length of time which had elapsed since it had been entered *into;*and that the court should leave the party to his remedy at law on defendants *bond;*especially as it did not appear that complainant had ever paid any part of the expenses, &c. which was part of the condition of the bond. — - On the first blush of the case, the court were strongly in-*275dined to send the complainant to sede his remedy in the state of Georgia; but as he could at law only recover the penalty, and should he file his bill in the Circuit Court of *the*United States, and obtain a decree for a specific per-formalice, that court could only enforce its decree by the process of attachment against his person, the land lying in this state, whereas this court could enforce its decree by putting the complainant in possession of the land, if defendant should prove contumaceous, the court have therefore thought fit, on maturely weighing all circumstances of the case, to retain the suit, and to order and decree, that the defendant do forthwith make good and sufficient conveyances in fee simple to complainant of the land in bill mentioned ; that defendant be at liberty to file any discount which he may have against complainant for expenses incurred in improvements, &c. and that the land shall be considered as liable for the payment thereof -, complainant being equally at liberty to make his charge against defendant for rent or hire of the said land.

Desaussure and Ford for complainant,

Gaillard for defendant.

Costs to be paid by the defendant.