#### *Joseph Palmer*v. *W. H. B. Richardson.*

Columbia,

May, 1849.

As a general rule, the purchaser ofland would not he coerced by a decree of this Court, to perform his contract, without an investigation as to the title. *But*cases not unfrequently occur, in which the vendee will be considered as having waived his objections to the title, and will be decreed to perform and to accept such title as the vendor is able to give.

Where complainant’s devisor sold the land to defendant in 1841; and the defendant, the same year, went into possession, and retained possession until 1846, clearing and cultivating the land; and the land, in 1842, had been surveyed in the presence of defendant’s agent, who made no objection either as to quantity, location or title; and in 1844, defendant had written to complainant excusing liimselffor not having paid the purchase money, and expressing a strong desire to do so at an early day; and where no objection had ever been made to the title until after filing the bill — the Court *held*that, by his conduct, the defendant had waived his right to object to the title; or that to talco the most favorable view of the case possible as to him, the *onus*had fallen on him to show that the complainant had no title.

Where one entered into the possession ofland under a'contract to purchase, and had failed to comply with tire terms of the contract, notice by the vendor that until he did comply, he must suspend all further use of the land, is not a rescisión of the contract, but rather a demand for its fulfilment: neither does it debar the vendor of his right to interest on the purchase money from the time of the notice untilits final payment.

Where there was no original necessity for an order of reference, as to a title, to have been made, the order is merely administrative, and as such is liable to be recalled by the Chancellor who made it, or by any succeeding Chancellor.

*Before*DxjNkiN, Ch. *at Sumter, June,*1848.

The bill was filed for the specific performance of a contract for the purchase of land.

After hearing the case, his Honor decreed as follows.

Dunkin, Ch. The bill alleges that in 1841 the defendant agreed to purchase from Joseph Palmer, senior, a tract of land, on Santee river, for which he was to pay six hundred dollars, provided that the tract should be found, on survey, to contain one hundred acres of upland. That the title was to be made on payment of the purchase money.

The answer admits the agreement to purchase, and the price,-but insists that the contract did not depend alone upon the fact that the tract was to contain one hundred acres of upland, but also that one of the boundaries of the tract should be the centre of Rock’s Creek, and Santee river another boundary.

The contract was altogether in parol.

The defendant went into possession of the land in 1841, and continued in possession until the spring of 1846. Yery *17soon after the contract was made Joseph Palmer, senior, departed this life, having, by his will, devised this land to the complainant, his son.

On the part of complainant, G. D. Gayle was sworn. He testified that he was the manager of the defendant (W. H. B. Richardson) in 1842; that the defendant informed him of his purchase of this tract of land from Mr. Palmer; told him to have it cleared and planted; which witness did, that fall and spring following. On one occasion defendant told witness that Dr. Palmer had sent word that he wanted to have a settlement for the land, and the defendant requested witness to say to Dr. Palmer, that as soon as the title and plat was made out he was ready tor a settlement, Afterwards Dr. Peter Palmer came with a surveyor, (Samuel Joyner,) and witness went with them, as the agent of the defendant; they went round the lines. Defendant had told him that he was to give six hundred dollars, if there were one hundred acres of upland. Supposes there were one hundred acres, as he planted seventy five acres or near about that, for Mr. Richardson. The line was run-on the margin of the branch. He had understood from the defendant that he was to have the upland, and no part of the swamp, and it was so surveyed. Santee river runs on the north of the land. Gayle after-wards said, that the defendant told him, if there were one hundred acres of upland, he was to pay six hundred dollars. That he did not want the Rock Greek swamp. And the witness added that the defendant would be as well off without the swamp, or if it were owned by another, as the swamp was open and free to all. It seems that prior to 7th February, 1844, the complainant had, more than once, applied to the defendant for a settlement, for on that day the defendant addressed him a letter in the following language, viz:

*“*Dear Sir: — Your letter under date the 16th ult. has just been received. I assure you it has always been my disposition and wish to be prompt and punctual in all my transactions in life. The money for the land purchased of your father has been kept for some time waiting to hear from you on the subject, but not hearing I have been compelled to use it in the purchase of other property, which, I regret to say, puts it out of my power, just at this time, to comply, but assure you I will, as early as practicable, pay it to you, and if it should not be possible, from the sad disaster that befell my crops last year, to meet the payment, will give my note with security (if required) to meet it the next year, — when the note is given the titles can be executed, and retained by you till the note is paid, which I trust will subject you to no inconvenience. Be assured I feel greatly grieved it has so happened. You were correct in your letter in stating that you believed the *18other letter had not reached me, as it should have been duly _ attended to. I am, Dear Sir, with respect,

William H. B. Richardson.

Tq Dj. Jogeph Palmer> pineTille, S. C.”

Taking this letter in connection with the testimony of G. D. Gayle, it appears that the complainant, soon after his father’s death, in 1842, applied to the defendant for a settlement. A reply was sent by the witness, Gayle, that he was ready to settle, as soon as the titles and plat were made out. Accordingly Dr. Peter Palmer, the brother of the complainant, attended on the ground with a surveyor, and in company with the witness, as the agent of the defendant, the tract was surveyed, and the lines were run, with the approbation of the witness, and, as he supposed, according to the views of the defendant, as communicated to him by the defendant himself. The line was run on the margin of the branch. The defendant says the centre was the line, according to the contract. But the court can perceive no evidence that this was any part of the contract. On the contrary, Gayle says the defendant told him he was to pay six hundred dollars if there were one hundred acres of upland, and that he did not want the Rock creek swamp, “ he was to have the upland and no part of the swamp.” But when the defendant wrote the letter of the 7th February, 1844, he had been, for two years at least, in possession, under his purchase. He had cleared and planted the land. A survey had been made in 1842, as he had desired, in his reply to the complainant, and his agent attended at his request. If he was ignorant of the manner in which the line was run, certainly it was his own fault. If he was not ignorant and was dissatisfied it was his duty to have complained. It seems that after the complainant had compiled with the requisites of the defendant, in making the survey, he again applied to him, but his letter miscarried. On the 16th January, 1844, he reiterates the request, and the reply of 7th February, 1844, is received. Why the money was not paid, or the note given, the Court has no evidence. Nor is there any evidence as to the time when the defendant’s objection arose, or was communicated to the complainant.

Mr. Minns was called for the defence. He has been the overseer for the defendant since January, 1844. He said that in the early part of 1846 he received a note from the complainant, written to him as the agent of the defendant. — The Solicitor of the complainant insisted that the note should be produced. — This was not done. The witness proceeded to say that since February, 1846, the defendant had not occupied or intermeddled with the land. He said defendant wanted the land for planting. If the line were put where Joyner put it, he could not use it for swamp privileges. There would not be so much difficulty, if the line were put where *19defendant contends. The run of the branch was considered the Rogers line. ^ examined. The defendant’s object in, the purchase was the upland; that was his main object. Witness would consider the range of great use. Defendant has between three and four hundred acres of swamp, besides this. There are not more than five or six acres of swamp in *the*land agreed tobe purchased, if the agreement covered the Rogers tract. It was all open uninclosed, and could not be safely inclosed, jxj ¡*¡ examined. Complainant objected to defendant’s cattle ranging on the swamp land.

Sugd. 217.

The evidence of Gayle and of Minns, with the letter of the defendant, constituted the whole of the *testimony.*From that evidence the Court can perceive no satisfactory reason why the defendant should not comply with his contract, as established, and especially as so fully recognized in his letter of the 7th February, 1844.

It was suggested that the complainant had rescinded the contract by the letter to the defendant’s overseer in February, 1846. But there was no evidence of the contents of that letter, and the defendant declined to produce it. It is very certain, however, that if a purchaser is in possession of land, and has not paid the purchase money, this court would restrain him by injunction from committing waste or doing any act to the injury of the vendor. But there is no other proof than that the defendant, after cutting, clearing and planting the land for five or six years under a contract of purchase, abandoned the possession in the spring of 1846. The bill was filed 10th April, 1847.

It is ordered and decreed that the complainant deposite with the Commissioner of this Court, for the defendant, a conveyance of the premises ; and that the defendant pay to the complainant the sum of six hundred dollars, with the interest from the 1st January, 1842, together with the costs of these proceedings.

The defendant moved the Court of Appeals to reverse the decree of the chancellor, on the following grounds.

1st. Because the contract, as alleged in the bill, was not proved by two witnesses, and was denied in the answer.

2d. Because there was no proof in the case to justify the chancellor in stating in the decree that Joseph Palmer, senior, devised this land to complainant, his son.

3d. That the notice of the complainant in February, 1846, as set out in the bill, was a rescisión by him of the contract to purchase.

4th. That his Honor decreed full interest, although from February, 1846, defendant, by order of complainant, was not in possession of any of the said land.

5th. That there was no proof that the witness, Gayle, was the agent of defendant in the transaction, or acted for him in any other capacity than overseer.

*202 Swanst. 168. 15 Ves. 594. 2 Rich. Eq. 1 Madd. R. 316.

6th. That there was nothing in the proof to overrule the / defendant’s plea of Statue of Frauds.

7th. That the chancellor erred in requiring defendant to receive the title of complainant, without any proof that the title to the said land was in him, more especially as an order had been made in the case, by chancellor Harper, at June Term, 1847, as follows :—

“On motion of F. J. & M. Moses, defendant’s Solicitors, it is ordered that it be referred to the commissioner to enquire and report whether the title to the land referred to in the said bill is vested in fee in the complainant, and if so vested, whether the said complainant can make an unencumbered title for the same.”

And although timely notice was given to complainant’s Solicitor, that under the said order, defendant would require complainant to submit his title, on reference, before the commissioner.

8th. Because the said decree was, in other respects, against equity and justice.

*F. J*& *M.*Moses, for the motion.

*Miller,*contra.

*Curia, •per*

Dargan, Ch.

The defendant has moved to reverse the decree of the Circuit, on a variety of grounds: the first of which is, “ that the contract, as alleged in the bill, was not proved by two witnesses, and was denied in the answer.” The contract, as alleged in the bill, was substantially proved by G. D. Gayle, who represented himself as the defendant’s agent, when the land was surveyed. The defendant himself, in his answer, admitted a parol contract, not differing materially from that charged in the bill. In the opinion of this Court, the Chancellor was well warranted, on the evidence, to decree a specific performance of the agreement.

The second ground of appeal is that, “there was no proof in the case to justify the Chancellor in stating in the decree, that Joseph Palmer, sr. devised this land to the complainant, his son.” There was, in fact, no proof on the trial, that the complainant was the devisee of the vendor, Joseph Palmer. As a general rule, the purchaser of land would not be coerced by a decree of this Court, to perform his contract, without an investigation as to the title. But cases not unfre-quently occur, in which the vendee will be considered as having waived his objections to the title, and will be decreed to periorm, and to accept such title as the vendor is able to give. *Burroughs*v. *Oakly, Fleetwood*v. *Green, VanLew*v. *Parr.*The case of the *Margravine of Anspach*v. *Noel,*is very similar in its circumstances to the present case. In the case cited, the purchaser took possession of the premises, in pursuance of the terms of the agreement, within a *21short time after its execution, and very soon afterwards received an abstract of title, to which he made no objection, ( until about two years after it was delivered to him. In the mean time, he made alterations in the premises, and let them; and had written a letter, offering excuses for delaying payment of the purchase money. An inquiry into the title was refused, and a specific performance was decreed. The Yice Chancellor, Sir Thomas Piumer, says, *“*the alterations of the premises, and the letting of them, were acts strongly indicating an approval of the title.” The letter of the 4th January, in which the defendant expresses his vexation at being obliged to delay payment of the purchase money, seems founded on his approval of the title; for if the title was objectionable, he could not accuse himself of delaying payment of the purchase money. Until the title was completed, he was not bound to pay, <fcc. It would be difficult to conceive a case more parallel with the one now before us. In the latter, the complainant’s devisor sold the land to the defendant in 1841. In the same year, the defendant went into possession of the land, and continued in possession until 1846. In 1842 the land was surveyed, in the presence of the defendant’s own agent, and the lines run, without any objection being made, either as to the quantity set off to him, or the sufficiency of the title. In the mean time, the defendant, with a knowledge on the part of his agent, and, therefore, of himself, of the lines which had been run, and the quantity embraced within those lines, continued to occupy the land, to treat it as his own, and to make extensive alterations, by clearing and cultivating large portions of it. And during the continuance of his possession, as in the case of *the Margravine of Anspach*v. *Noel,*we find him addressing a letter to the complainant, offering apologies for the nonpayment of the purchase money, and expressing a strong desire to pay at an early day, and as soon as his finances, (which had been deranged by disasters to his crop) would admit. In this letter, not a syllable of suspicion is breathed upon the title. No objection of this character is made, until after the bill is filed. There is *now*no specific objection made as to the title. Nor does it appear that it is actually defective in the slightest particular. Under these circumstances, this Court is of the opinion, that the defendant has waived his right to object to the sufficiency of the complainant’s title; or, to take the most favorable view of the case possible, as to him, he has placed himself in a position in which the *onus*would be shifted from the complainant’s shoulders to his own, and in which it would *be for*him to shew that the complainant had no title.

The third ground of appeal is that *“*the notice of the complainant, in February, 1846, as set out in the bill, was a *22rescisión of the contract.” It must be remembered that the (je|en(jantj without paying the purchase money, or in any "way complying with the conditions of the contract, was in possession, had extensively cleared, and was cultivating the land. Under these circumstances, the complainant addressed the defendant a note, to the effect that he must cease all further use and cultivation of the land, until he had complied with the conditions of the purchase. This, the defendant says, was a rescisión of the contract. It is certainly a fanciful view of the subject, to construe an act into a rescisión of the contract, which was, in fact, a direct claim and demand for its fulfilment, according to its terms. The complainant, in that notice, did nothing more than he was entitled to do; to call upon the defendant to suspend his alterations, and his acts of waste, until he had complied with the conditions of the sale. In doing this, he did only what this Court would have enjoined and enforced, if its interposition had been sought.

The fourth ground of appeal is that *“*his Honor decreed full interest, although, from February, 1846, defendant, by order of the complainant, was not in possession of any of the said land.” The view taken of the last ground, applies with full force to this. The defendant was the party in default. He had been inducted into the possession, soon after the execution of the contract; at which time he should have paid the purchase money. The complainant was ready to make him titles, and had, several times, called on him to consummate the purchase. The delay was entirely on the part of the defendant, until at length the complainant, weary at the delay, required him to suspend the use of the land until he had complied with the terms of the contract. If he has not, from 1846, enjoyed the use of the land, as an equivalent for the interest, it is his own default.

The fifth ground of appeal is that “ there was no proof that the witness, Gayle, was the agent of the defendant in the transaction, or acted for him in any other capacity than that of overseer.” On this ground it is sufficient to say, that the Chancellor, in his decree, reports this witness as saying that when Dr. Peter Palmer came with a surveyor to survey the land, the witness “ went with them, as the agent of the defendant, and they went round the lines.”

The sixth ground of appeal is that “there was nothing in the proof to overrule the defendant’s plea of the statute of frauds.” The provisions of the statute of frauds have no application to a case like the present. The doctrine is too familiar to call for extended comment. The case is relieved from the operation of the statute, by the contract having been fully performed on the part of the complainant, so far as he was able to perform. The contract was, of course, *23null in its inception. But the complainant had let the defendant into the most full and complete possession, and wasv ready and insisted to give him titles, and to receive the purchase money. It is almost supererrogation to say, that the statute of frauds has no application to such a case.

The defendant’s seventh and last ground of appeal is, “that the Chancellor erred in requiring the defendant to receive the title of the complainant, without any proof that the title to the land was in him; more especially as an order had been made in the case by Chancellor Harper, at June Term, 1847, as follows: — On motion oí F. J. & M. Moses, it is ordered that it be referred to the commissioner to inquire and report whether the title to the land referred to in the said bill, is vested in the complainant, and if so vested, whether the said complainant can make an unincumbered title for the same.” The objection contained in the first part of this ground of appeal, — (that in reference to the complainant’s ability to give a good legal title) has been considered and disposed of, in the remarks which I have made upon the second ground of appeal. That part of the seventh ground of appeal which relates to the order of reference as to the title, is also unavailing. An order of reference as to the title, in a case like the present, is administrative. It was not, in any sense, a judgment upon any of the rights of the parties involved in the pleadings ; but was intended, merely to facilitate the investigation, and enable the Court to adjudge. As such, it was liable to be recalled by the Chancellor who made it, or by any succeeding Chancellor. This order of reference to the commissioner, as to a preliminary inquiry, related to a question which the Chancellor was competent to examine. The Commissioner not being ready with his report, the Chancellor had a right, himself, to examine into the matters referred to the Commissioner — or, in other words, there was no original necessity for the order of reference to have been made. It is a rule of practice founded on convenience. If the report of the Master had been submitted, and he had found against the title of the complainant, it by no means follows but that the defendant would still have been decreed specifically to perform his agreement, and to have rested for his security on the warranties of the defendant; because he had done acts bv which he had waived his right to object to a defective title as a ground of non-performance. The existence of the order of reference as to the title, might possibly have been a good ground for a motion to continue on the part of the defendant. He might have alleged surprise. But if I am not wrongly impressed, the defendant himself insisted that the trial should go on, notwithstanding the report had not come in, and the reference had not been held.

*24It is ordered and decreed, that the appeal be dismissed, and the decree of the Circuit Court be affirmed.

The whole court concurred.

*Decree affirmed.*