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

#### William Wightman, *vs.*William Reside.

A bill for specific performance of a written contract for the sale of land.: The agreement set forth the terms of sale exactly. The purchaser paid part of the purchase money, took possession of the lot, and huiltthereon; but was detered from making the full improvements he intended, by a suit brought to recover the land *by*another *579person; pending’ that suit, which ws£ a long time undecided, no titles were made hy the vendor to the vendee. That suit was finally decid-ad against the claimant. The court decreed that the purchaser should compleat his purchase, on the vendor making him good titles with a general warranty. But no interest allowed on the arrears of purchase money till the date of the verdict, which established the title,

JUNE, 1808.

THIS bill was filed to enforce the specific execution of a contract for the sale of a lot of land in Charleston;

The bill set forth, that the complainant purchased of James Butler a lot of land in Charleston,- (described in the bill) and that he contracted, on the' 14th August, 1797, with William Reside for the sale of the said lot, on the following terms: that the purchaser should give bond for the payment of 600/. by three equal annual instalments, with interest from the date of the contract. That on the 21st October, 1797, the said parties entered into an additional written agreement, that any buildings erected on the lot lately bought of Mr. Wight-man should be at the risque of the purchaser, .(Reside) should the titles be called in question respecting Mr. Butler’s right to the property he sold Wr, Wightman; and Mr. W. agreed that Mr. Reside should have leave to remove the said buildings. That the said Wm. Reside paid 116/. to Wightman in part performance of the contract, and took possession of the land, and erected a wooden house thereon of considerable value. That soon after, and before any titles were executed by the said Wight-man to the said Reside, a certain Mr. Warnocic set up a claim, and brought an action to try the title to the said lot of land; which after some delay has been decided by the verdict of a jury and the judgment of the court, in favor of the said Wightman.

That pending the suit, Mr. Reside did not ask for a conveyance of the lot, nor did complainant tender him titles, That after the termination of the suit the complainant applied to defendant for a specific performance of the contract, and to pay the principal and interest of the purchase money or that he wordc? rescind the *580contract altogether. But the defendant refused to pay the interest, alleging that he was not bound to do so, as he could not improve the lot during the suit. But complainant insists he was bound to pry it, as he was really not prevented from enjoying the premises during the suit, but had leased them out, and as his resort would not have been to complainant incase of the actual loss of the land, under the additional agreement of the-21st October, 1797, but to Mr. Butler.

The bill prays for a specific execution of the contract, or of such other relief as, might be proper.

The defendant in his ansvrer admitted that he contracted .with the complainant by a written agreement on the 15th August, 1797, as stated in the bill. But he denies that he agreed to pay interest as charged; and the written agreement of the 15th August, which stipulates for the payments, and fixes the precise periods, does not say a word of interest. That by the agreement the complainant stipulated on receiving the first instalment, in payment of, .said lot, to make- titles to the said defendant, which of, course, as is alleged, meant conveyances in the usual form, and with the usual clauses and covenants and warranty." That subsequent to the contract, the additional agreement of the 21st October, 1797, mentioned in the bill,was entered *into;*'the meaning and intention whereof was not as stated by complainant, but that the complainant should warrant Mr. Butler’s title to said lot, and to protect defendant in the removal of the beddings he had erected, in case of the loss of'the suit. That defendant could riot be supposed 'to havé relinquished without consideration, his right to a perfect and warranted title, arising out of his érst contract; and if such a meaning can be attached to the subsequent memorandum of the 21st October, 1797, it was an imposition on him | and it is void as *nudum pqptum. '■ '*.'

The defendant admits that he paid 1Í 6i. part of the pur*581chase money, and took possession of the lot of land, and erected buildings thereon as charged. He also admits the suit by Warnock, and the final determination thereof in favor of the complainant. And that subsequently, the complainant applied to the defendant for a specific performance of the contract, which defendant was willing to do, except that he refused to pay interest whilst said suit was pending, as he was materially interrupted in the enjoyment of said property, and could not lease the same, during the litigation; and he did not dare to make his intended improvements, because he might not recover, (in-case of the loss of the land) damages proportioned to his expenditures, and because complainant had also set up a pretence that under the memorandum of 21st October, *1797,*he would not be liable to make good any losses to defendant, in case of eviction.

The cause came to a hearing, and after argument, Chancellor J ames delivered the decree of the court.

In his bill, complainant claims a specific performance of a written contract entered into with the defendant for the purchase of a lot of land, made on the 15th of Aug." 1797, by which contract, the defendant agreed to pay 600/. for the said lot, in three equal instalments, on the first day of October, 1797, 1798, and 1799, with interest from the date of the contract.

Complainant states, that in consideration of the said agreement,the defendant paid him 116/. on the same, took possession of the said lot, and has built a house thereon. Complainant further states, that as an action at law had been brought by Warnock and wife against the defendant to eject him from the said lot, that complainant and defendant entered into an additional written agreement, that the buildings erected on said lot should be at defendant’s risk. Complainant also further states, that having tender - ed good titles, he prays defendant may be decreed to a spe - cific performance.

The defendant in his answer, admits that he purchased *582said lot for 600/. payable in three instalments, as stated, by *complainant;*but he denies that he was to pay interest thereon, as stated in the bill. The defendant also admits that he took possession of the said lot, erected a house thereon, and paid a part of the purchase money; but he denies that the additional agreement set forth by complainant is to have the effect that he contends for. As to this additional agreement, it appears to the court that since it is agreed on all hands that the suit of Warnock and wife is at an end, and as the said additional agreement is predicated upon the suit, that ought also to be at an end. Then the case becomes a very plain one. Defendant acknowledges the contract, has taken possession of the lot, has improved the same, and paid a part of the purchase money *;*and therefore it is obvious that he must be decreed to comply with his contract. Also, as the said first agreement was in writing, signed by the parties, there can be no doubt but that defendant must pay interest on the purchase money *;*but as he was prevented from improving said lot to the extent he wished, by reason of the suit, let him pay interest only from the date of the verdict which established the title. ' Let complainant also execute to him good and sufficient titles, with a general warranty for the said lot. — « Let it also be referred to' the master to report such payments as have been made by defendant on the contract and ascertain the balance.

Parker & Lightwood for complainant,

W. Drayton for defendant.