[Present, Chancellors Rutiedge, James and. Thompson-.]

#### David Ramsay, and Martha L. Ramsay, and Paul Hamilton, *vs.*William Brailsford.

Where the complainant who seeks a specific performance of an agreement for the sale of land, has not performed what was incuip-*583bent on him by contract to do, the court will not decree specific per-formalice, especially if any injury lias, resulted to the defendant from such non performance. Bat the defendant, having taken possession of the land, andpaid part of the purchase money, and executed the agreement in part, the court trill consider him as having waived his objections to the complainants conduct, and will decree the execution of the agreement. It will, however, extend the time of payment, vary the security to be given, and regulate the payment of interest, ao cordingtothe justice of the case, under the circumstances produced by the conduct of the parties.

JUNE, 1808.

(A contract made in this state, for land lying in another state, may be enforced in personam, by one party against the other, according-to, the English authorities. But the question Of jurisdiction was waived in this case.)

THIS was a bill filed to compel the specific execution of án agreement for the said of a tract of land in Georgia.

The bill stated that Paul Hamilton, as truátee for Martha Laurens, had the legal seizin of one third part of a tract of land, called Broughton Island, situate in the state t>f Georgia, devised to her by her father, with a power to. sell the same, with the assent'of the trustee; and the said P. Hamilton gave his consent to a sale thereof about the 21st December, 1803. That an agreement was entered into with W. Brailsford, in substance as follows :

David Ramsay and Martha Laurens Ramsay, agreed to sell to Wm. Brailsford, their remainiñg one third of Broughton Island, and *to*deliver the said *W.*Brailsford two bonds, given to their trustee by Fabian; he the said W. Brailsford agreeing to give to Paul Hamilton, a bond including the principal of said two bonds, payable on the 1st day of March, 1805 *;*and to give their said trustee a further s um of four thousand pounds for the sai d third of Broughton Island, payable in four equal instalments,'with interest at the periods stated in the contract. And those bonds were to'be secured by a mortgage of the whole of Broughton Island; titles to be executed as soon as possible; but the titles on the one side, and the bonds on the other.; to be retained-until certificates are produced from the proper officers, that the mortgage aforesaid is duly re*584corded, and that there is no prior unsatisfied mortgage. judgment, or incumbrance whatever on the said Island, ^ was farther agreed that the interest due on the bonds of Fabian, should be paid in cash, or in notes *;*and that *a*year’s interest should be advanced at a fixed discount on the four bonds given for the purchase of Broughton island. That in consequence of the said agreement, the said Brailsford entered oh the premises, and hath kept possession *thereof;*and although complainants are now, and have been at all times ready to perform their part of the agreement, and have long since had titles drawn and executed by the trustee, yet defendant hath prevented the ■agreement from being earthed into specific execution. That although defendant had .paid complainant the sum of $2004 20 cents, yet that sum is not as much as defendant was by the agreement to have paid in cash, and that defendant refuses to pay the remaining part. That the de-1 Pendant hath neglected to secure the complainants, by a mortgage of the whole of the said island, and to produce a certificate that there was no incumbrance on the same.— That complainants have applied to defendant to comply ;.vith the aforesaid agreement, which he hath refused to do. The bill prayed for a *ne*exeat, and for r^ief.

To this bill, the defendant filed an answer.

The answer of William Brailsford, admits Paul Hamil ton is seized of the land in question, in manner stated, and that complainant Martha Laurens, is entitled to an equitable estate under the will of her father in the said land: lie also admits the agreement stated in the bill, and that, the complainants David Ramsay and Martha Laurens, may have informed him of the assent of the trustee to the sale, but avers the first regular notice he had of said assent, was by a letter of the said trustee, dated 27th March, 1806. He also admits that he entered on the said island soon after making the *agreement;*but not on account of the said contract, but in consequence of a contract made with, the administrator of Fabian, for the other two third'-. *585sf the island, who put him in possession thereof. Defeh-dant denies that complainants have been always ready to perform their part of the agreement, for he avers that the bonds of Fabian, which were.tfo have been delivered to him have been retained; although defendant, on his part, had paid the interest due thereon^ ¿nd one years interest bn the bonds to be given by *hini;*being so paid,, in consideration of his receiving said bonds of Fabian. That the immediate receipt of the said bonds of Fabian, formed á material part of the aforesaid contract, .to enable defendant. ■to compleat his contract with the representatives of Fabian.

That the complainant David Ramsáy, hath farther impeded said contract, by informing the administrator of Fa-bián, that defendant had not paid up the cash which he 1vas to advance, and that the complainant Dr. Ramsayj looked solely to the administrator of Fabian, for payment of the bonds in complainants hands. That the titles for the said one third of the said island have not been executed to this day; Defendant admits that he has not fully complied with his coritract, in procuring such ah unincum-bered title to the whole island, as to enable him to give a mortgage of the same, because certain judgments were oBtained against Fabian’s estate, which render it impossible for defendant to comply with the contracts Defendant .contends that the default of complainants in not delivering the bonds, was much greater thah the default of the defendants in not giving the mortgage; That defendant, as to the cash part of the contract, fully complied. That it was mutually agreed on- notwithstanding the express words of the contract, that whenever the cash payment was made, the titles and bonds were to be delivered to the defendant. The defendant admits that complainants Paul Hamiltori ánd David Ramsayj did by letter of 25th and 27th Marchj 1806, propose to release defendant from that part of the agreement respecting the mortgage of the whole' of the' island, and in lieu thereof, to receive a mortgage for the one third part thereof; but yet they refused to deliver up *586Fabian’s bonds. That defendant conceives the subject matter of complainant’s bill to be rather a quantum of da-' maSes than a case for a specific execution ; that defendant is willing the amount of damages sustained should be assessed by the master of this court, taking into view the proper rent for the said island, and the money advanced by defendant. Defendant denies all combination, and prays to be dismissed with costs.

The cause came to a hearing.

Thomas Martin was called as a witness by the complainants. He testified that the bonds of Mr. Fabian,, (given for the purchase of part of Broughton Island, from Dr. & Mis» Ramsay) were in hi? hands, as assignee of Dr. Ramsay, for the benefit of his creditors. That Mr. William Brailsford, the defendant, applied to him for them, and was anxióus to get them, but he refused to deliver them without security. He afterwards sued & got judgment on the bonds.

The agreement for the sale of the land, as stated in the bill, was produced.

Mr. PaRkee. for the defendant,

stated as an admitted fact, that the defendant had paid all the interest on Fabian’s bonds, and on his own to complainants, dowii to trie 1st of March, 1805.

He produced certificates of the proceedings of the court in Georgia, by which it appeared that the defendant was evicted by verdict and judgment from that part of Brough-ton Island which he had agreed to purchase from Fabian, on account of his not being able to comply with the terms. Judgment 16th May, 1806.

Also, the letter of Paul Hamilton, trustee, dated 27th March, 1806, approving the sale by Dr. and Mrs. Ramsay to the defendant.

And also, other evidence *•,*all of which that is material, is noticed in the decree.

Dr. Ramsay argued in *propria*persona, that the complainants had complied with their part of the contract as far as defendant was entitled by his acts to have it com-pleated. But that defendant had not complied on his part, *587for he had never produced the certificate required, by the agreement, nor given the mortgage. That defendant had nevertheless taken possession of the land, and , occupied it, and was bound to complete the purchase, and make the payments. 1 hat his non-compliance was a great injury to complainants, and that the defendant had no equitably claim to be released from his contract,

Mr. PaekeR and Mr. Drayton for the defendant,

in? sisted that the defendant might well-object to the jurisdiction of the court to decree the specific execution of a contract for the sale of land, lying in Georgia, out of the jurisdiction of the court.* And also, that he might require the complainant’s bill to be dismissed, and thatthey should be sent to law, where they had adequate remedy for the-recovery of the money due on the contract. But that the defendant being desirous to obtain a final decision on the merits, waived both these objections.

As to the merits, the complainants are not entitled to a specific performance of this contract, for they had not-complied with the terms of it. It was part of the agreement *588, that the complainants should cleliver to the defendant the bonds of Mr. *Fabian;*and nothing afterwards occurred to alter this agreement. And it was indispensably necessary to the arrangements of the defendant, to get possession of those bonds to enable him to settle with' Fabian’s administrator. He was defeated in these objects, by the refusal tó deliver these bonds to him : Also, by Dr. Ramsay’s letters to Fabian’s administrator, calling on him for payment of the bonds, and enforcing the demand by suit,

■ On the other hand, the defendant had doné' every thing' in his power to comply with his agreement, and was always ready when complainant should comply with his part. He had paid the' interest due on Fabian’s bonds, and onhiá own contract, and yet he got no benefit by it. That the bonds of the defendant'were not to be delivered to com-i plainant till the titles were delivered him, which had never been done yeti The delay, and the' injury resulting from it to defendant, ought therefore to mtliice-ihe court not to decree a specific performance of this contract, but :to leave' the parties to their legal remedies. There was no more *589reason that tbe vendee should -be bung up an indefinite time, before the contract was complied with, than the vendor. The vendor should be obliged to complete the tifies at the time specified, or in a reasonable time-after; or the court would not decree specific performance. 'J "

1 The counsel cited 4 Ves. jun. 690. 1 East, 627, and Givens v. Calder, ante, p. 171,2, fkc.

Besides, the deeds of conveyance now offered for the first time, are not perfect. There is no wan anty, nor proper covenants.' They are not such deeds as a purchaser is bound to accept; nor can the trustee now make good titles to the purchaser, though he might have .done so under the will of Mr. Laurens, (devising the land to his daughter Mrs. Ramsay,) before Dr. Ramsay’s rights had been transferred by assignment.

The judgments against Dr. Ramsay bound his rights, and his assignment conveyed them. Here were then legal and equitable rights to be regarded, which prevented the trustee from making good titles to the purchaser : and the court would not oblige him to'accept conveyances, *590which might not give him a good and perfect title. Nor would the purchaser be safe under these circumstances, without his seeing to the application of the purchase money to its proper purposes. Lumbe. v. Mills, 5 Ves. 520. See also Burden v. Dean, and Oswell v.. *Probat;*2 Ves. jun. 608,680, Brown v. Clark, and Freeman v. Paisley; 3 Ves. jun. 166, 421, Franes v. Franes; 4 Ves. 515, Co. Lit. 290, n. 1, 351, Sug. *331;*Mitford, 39, *78*— 144. 2 Bla. 335.

Dr. Ramsay spoke in reply, but rto note of his argument has beep preserved.

*

 This question of the jurisdiction of the Court of Chancery, with respect to lands in other countries, is a very delicate . one. There are some decisions which throw lig-ht upon it. In the case of the Earl of Derby v. The Duke of Athol, decided by the Lord Chancellor Hard-wicke, 1 Ves. sen. 202, it was determined first, on the point of pleads ing, that whoever pleads to the jurisdiction, must shew what other court has jurisdiction; and that for the want thereof, the plea is bad, and ought not to be allowed. Becond, on the merits, that the general averment, thatno title to land, &c. lying in the Isle of Man, is examinable in this court, is not true or well founded, but is laid down much too large; because upon an equitable right to that Island, and both parties resident within the jurisdiction of this court, it might be determined here. So upon a mortgage of the Island, and'the mortgagor & mortgagee residing within the jurisdiction of the court, upon a bill concerning it, the court would hold jurisdiction of it; for a Court of Equity acts in *personam.*And in the case of Penn v. Lord Baltimore, also decided by Lord Hardwicke, in 1750, a specific performance was decreed of articles executed in England, concerning the boundaries of two Provinces in America. The Lord Chancellor in delivering his very able judgment in the case, stated that the original jurisdiction on the direct question of the right of the boundaries *588was not in the Court of Qhancery; but that the contract of the parties brought it within the jurisdiction. For it was-foundedon articles’ executed in England, under seal, formutrial consideration, which gives’ jurisdiction t'othe Kjng’s Courts, both of law and equity, whatever be’ the subject matter. '• There are several cases, wherein collaterally, and by reason of thecontraet of the parties, matters outofthejurisdictioá-of the court originally will be brought within it. The - conscience of the party is bound by the agreement, arid being within the jurisdic-turn of this court, which, acts *inpeiisonam,*the court may properly decree it as an agreement, if there be a foundation for it. The Lord, Chancellor decided also,that the objectipn'as to the lapse of time, in' the performance, should not- prevail; for it is the business of this court to relieve against lapse of time in the performance of an agree--mentj especially where the non-performancehas not arisen from any fault in the party seeking the specific performance.' The Chancellor saidthat the objection that the decree could not be énforced inrem,’ was not valid 5 for though the court co.uld not ehforce its decree in *vem,*it could in *personam*; and that the strict primary decree in thisj court, as a court of equity, is in *personam,*long before it was settled whether this court could issue process to put into possession in a suit of lands in, England, which was first begun, and settled fit ths time qf *589James the first Btit it is ever since done by injunction, or writ of assistance to the sheriff, (Vide Stribley v. Hawkie, 3, Atk. 275, 6.) . la Lord Chancellor King’s time in the case of Richardson v.'Hamilton, the attorney-general of Pennsylvania, the court made a decree, respecting á house and lot in Philadelphia, though it could not be enforce'd iri *rem. •*

*1*The Lord Chancellor Hardwicke decreed in the principle case that the agreement should be carried into-execution by Lord Baltimore.' -But having added, “ that the plaintiff' and defendant Should- hold according to the articles,” he afterwards altered that, slaying it’ would be improperio have a decree in this court, for quiet fnjoyment of land's in another jurisdiction, in America But he left it .on the footing, that the court would enforce the decree in *personam,*if itwerenot obeyed. See alsothecases of Foster v. Vassall, 3 Atk. 589. Roberdeau v. Rous, 1 Atk. 543; and Lord Cranstown v. Johnson, 3 Ves. 170, decided by Lord Chancellor Loughborough,

' In the case of Pike v. Hoare, Amb. 428, Lord Chancellor Henlyre-fusedto direct an issue to try the validity of a will madein England, relating to real estate lying in Pennsylvania. - And he said that Lord Hardwicke1 had expressly made the distinction in Penn v. Lord Baltimore, and that it was the contract which ^ave the court jurisdiction in that case. ' *‘ '*

Chancellor James

delivered the decree of the court.

The complainants in this case pray for a specific execu- . , , . tion of a contract made with defendant for the sale of one third part of Broughton Island, of which they state defends ant to have been in possession, ever since a short time after the date of the said contract, to wit, on the 21st Dec. 1803. The defendant insists that the said contract should now be rescinded, becap.se the complainants prevented him from complying with the same, by not delivering to him J. Fabian’s bonds, as he alleges they were bound to do by the contract, previous to his taking any steps to comply with the1 contract.

The court then took a full view of the contract, and of the conduct of the parties under it, and declared its opinion to be, that the complainants were bound to have delivered the bonds of Fabian to the defendant, when he made the payments which he actually did; and that certain ill consequences having resulted to the defendant, from the complainants not having delivered these bonds, the court would not have decreed a specific performance of the contract, if the matter had rested there. But (the court said) the decree for specific performance does not now depend upon the mutual stipulations of the contract, for it appears that the defendant took possession of the land with complainants permission, shortly after the date of the agreement. That he has remained in possession ever since, *591and has also paid tbe interest which he was bound to pay by the terms of said agreement. Therefore he has in part executed th’e contract, and by his own act, has waived the mutual stipulation, and it is too late for him now-to *x** . . say to complainant, you have not performed the condition precedent, and therefore are not entitled to a specific performance.* But as the complainants by their own act in pressing for the payment of the bonds of Fabian, and threatening suit, when in equity they ought to have tendered the same to defendant, have thereby indirectly compelled the the administrator of, Fabian to eject the defendant from the other two thirds of the Island, and rendered it impossible for him now to mortgage the same; therefore the court will Only direct him to give four bonds for the purchase money of the remaining third, and that he do mortgage the said third. But as defendant has paid to complainant all *the interest*due *on*Fabian’s bonds to the 1st March, 1805, and one 3'rears interest in advance on the purchase money, that he be allowed the amount of the money so paid on Fabian’s bonds, with interest thereon from the time he paid it, as a part of his purchase money; and that the same-be deducted from the first bond, which he is hereby decreed to give to complainants trustee. But as it appears by a letter of Mr. Harford, as early as the 20th of August, 1805 — “ that Dr. Ramsay had written two letters to Mr. Elliott, urging him to make speedy arrangements to take up his bondsand the first letter from the trustee, Paul Hamilton, threatening to sue, is not until the 3d September, 1805, it appears to the court that the conduct of Dr. Ramsay, in particular, has not been equitable.

1st. In not offering to deliver the bonds of Fabian, thereby to ascertain if defendant could comply with his part of the contract; and in constituting himself the judge of his ability to comply with the same.

2d. In making use of those bonds knqwingly, (for by *592the letter of Brailsford, above cited, he ought to have known it) as the indirect means of evicting defendant from !;^e other two thirds of the island, and thereby lessening the value of the remaining third.

Under all these circumstances, it appears to the court that defendant is entitled to some favor.

It is therefore decreed, that the complainants do make to the defendant good and sufficient titles for the said third of Broughton Island, and that the defendant do give bonds and a mortgage of the premises. The bonds to be made in the following manner, viz. the first bond for the balance of the first instalment, if any, as above directed! payable on the 1st March, 1809, when the last instalment, was to have been paid ; and the three remaining bonds, payable in the three following years, viz. 1810, 1811, and 1812.

Moreover, as the use of said lands, enjoyed by the defendant, ought to be adequate to the interest of the purchase money, let the said four bonds draw interest from the time that defendant took possession of the lands, with permission of complainants. Also, let it be referred tc the master to ascertain the time of defendants taking possession, to liquidate the several sums, and to take bonds and mortgage on the principles above established-*

*

 See the case of Fludyer v. Cocker, 12 Vesey, 25, 6; and Powell vs. Martin. 8 Vesey, 146.

*

 There is a slight notice on some of the papers of a re-hear-iiig, or hill of review. But I have no notes of it, and there does hoi seem to have been any alteration of the decree.