*Union.*

Heard by Chancellor Gaillard.

(use esxtí.

#### William Willbanks, et al. Administrator of S. Simpson, vs. James Duncan, (son of Alexander.)

This coart will give relief by perpetual injunction against ajuclg. meat at law, obtained by an assignee on abend to make titles to land, xvberc no conveyances bad been made or offered, conformably to the bond, till after the judgment had been made ¡ the representatives of the. *537-S&ligor being now ready to make the conveyances; and that, notwith» standing an adverse possession and claim by a third person.

Under the circumstances, the court thought the assignee bound to take the title with all its risks and imperfections.

The court will not direct the commissioner to examine the title 'Where it sees that to be unnecessary.

FEB'Y 1814.

This cause cattle to a bearing befóte Chancellor Caillard, who made a fdll statement of the case in his decree, which he delivered after the arguments

The bill states, that on the 11th day of Áíigusi$ 1796, Samuel Simpson sold to John Simpson a tract of laud, of 88 acres, and gave a penal bond, in the sum of lOOZ. sterling, With a condition to make titles to the said John Simpson, whenever he should make the last payment for the samé. The said Joint Went into peaceable arid quiet possession thereof, and there continued to live, occupy, possess and enjoy the sarrie until the month of May, 1802, at which time he *left*the Same, and went beyond the limits of this state. That the said Samuel departed this life intestate, on the ifth of October, 1797„ leaving a widow and five children. That about the ——* day of November following, William Wilbanks and Nancy Simpson, widow of the said Samuel, administered on the estate of the said intestate ; and that about the day of May, 1802, a few days before the said John left the state, he delivered to the said William the Said bond, requested him to take possession of the said, land, until he paid up the amount of the purchase money, which he Still owed for the land, and fob which two notest Of hand, payable to the intestate, were Irt the' hands of the said William, ds administrator of the said Samuel,, for the amount 6'f one hundred and twenty-eight dollars^ with interest theréon | and he at the same time requested the said William to dispose of the same if lie could da so, and pay off the two notes. That the said William did take the said land into possession, and held it as security for the purchase money of the same. That James Duncan, on the —— day of ——, 1802, had the land levied on as the property of the said John, and sold for a small Siam by the sheriff of Union district, to satisfy an csseeiu *538tion belonging to the said James, and received sheriff^ tifies. That about the month of October, 1807, the said J°hn Simpson returned to this state, and some time in the. February following, called on the said William, discharged *the*said two notes, and took the said bond. That *upon*the 29th February, 1808, the said John assigned the said bond to the said James, upon which the Said James commenced an action as assignee against' the said William and Nancy, the administrator and admi-nistratrix of the said intestate. And at March term, at á court held for Union district, recovered $428, with *Costs;*from which verdict the said William and Nancy appealed to the Constitutional Court, which came to a bearing upon the-day of Dec. 1811, at which time the appeal was dismissed, and the judgment below confirmed. The complainant therefore prayed an injunction to stay proceeding, and that the said James Duncan may *he*decreed to receive titles for the said land.

The case as stated in the brief has been made out,. Much that took place previous to the-29th February 1808 does not require a particular consideration, as the interest of the defendant only commenced at that time, and is derived altogether from the assignment of Simpson, for no claim is set up under the sheriff ’s title in 1802. Dun-Can, as assignee of Simpson, takes his place,- let ns seethe situation in which Simpson stood when he made the assignment.

Wm. Jackson says, that Simpson informed him just before lie quitted the state, that he had left the bond and the other papers with Wilbanks. That he was going away, and that if he did not return, he, Wilbanks, must take that and make the best of it; and that he owed $6000. A few years after, Simpson returns to the state, which was in 1807$ he told Starns and other witnesses to whom he was indebted, that he had authorized Wil-banks to sell the land $ that he had sold it to Gamblin, and that he was satisfied with the sale; and that his subsequent conduct furnishes evidence that he approved of what Wilbanks had done for *him;*for with a knowledge of it, and Gamblin’s possession, he took up the notes' *539•Which were out for the land, and received from Wilbanks the title bond which had been left with him. "Wilbanks appears from the testimony .in the case to have acted a friendly part towards Simpson, who had good reason to be satisfied with the manner in which he had discharged his trust. If Wilbanks put Gamblin in possession of the land by the authority of Simpson, Simpson could not complain of *it;*and if the sale of the land was made by Wilbanks, not as agent of Simpson, but as administrator of S. Simpson, it was void, and could not give Duncan a right to come upon the assets of the intestate’s estate for the penalty of the bond. It has been urged against a specific performance, that this contract has lain dormant for many years ; but it must be recollected that until 1808.* when Simpson took up his notes, he had not a right to ask for a legal title for the land. At that time Samuel Simpson, from whom he purchased it was dead, and. he could not get a good title but through the medium of this court. Instead of suing the bond, Duncan should have applied to this court for a title, and having obtained it, he might-have brought his action against Gamblin, who says he bought the land from the administrator ; knowing he had no right to sell, and that the title bond to it was out. It is not the fault of the widow and children of Samuel Simpson, that Duncan did not pursue his proper course.

The commissioner must draw out a title for the land to Duncan, to be executed by the widow and children of Samuel Simpson, by their guardian, and delivered to Duncan, who must release the verdict and costs at law, and pay the costs of this suit,

(Signed) Theodore Gaiieard.

From this decree there was an appeal. The brief .furnished the;court by the appellant, stated, that it appeared in this case from the statement in complainant’s bill, the defendant’s admission of facts, and testimony produced on the trial 3 that Samuel Simpson "sold a tract of land ' to John Simpson for fifty pounds. That John Simpson paid twenty pounds of the purchase money, and gave his notes for the balance, payable in one and two years* *540that Samuel Simpson gave bis bond to John Simpson-? bearing date in the year of-» conditioned to make titles-†0 John Simpson or his assigns, on thé last payment of the purchase money. That John Simpson went into tho possession of the land, improved it, and then left it. That Samuel Simpson died before the last payment was made. That William Wilbanks administered on his estate, and that the Said William was the acting administrator, That the said William took upon himself ps administrator, to sell the land, and did sell it to John Gamblin, and put him in possession of it, who now holds, and has had the possession for eight years. That *John*Simpson in , — ^ paid to the said William the balance of thé purchase money for said land, who held his|note aa administrator aforesaid, That James Duncan the de-« fendant, after the payment of the purchase money, purchased the said bond from John Simpson, and paid him $$590, and took an assignment of the same. That the de* fendant then applied to Gamblin for the possession of the land, who refused to deliver it, saying, he had purchased the land from Wilbanks, That the defendant theft offered to deliver the bond to any person if he could get possession of the land. That he offered the bond to Wib-feanks if he would give him the possession of the land, who refused. That the said William alleged that.he was authorized to sell, by John Simpson, but it was proven by J. Simpson he never authorized him, and it was proven by Gamblin, that he sold the land as the property of Samuel Simpson, deceased. It was also proven that Wilbanks was present when the assignment was made to Duncan, and never informed him of his sale of the land, or that he was authorized to sell by John Simpson. That Duncan, who was an innocent purchaser for a valuable consideration, and could neither get his money nor the Sand, brought his action on the bond aa assignee of John Simpson against the administrators of Samuel Simpson. That on the trial of the cause, the condition of the bond, and all the equitable circumstances were gone into before the jury, and the jury found a verdict for Duncan fey $42 &, and would have given a verdict for more, hu® *541that that amount was the penalty of the bond. On the suggestion Of the court, Duncan took a verdict for it. That the defendant’s case at law was conducted by able and experienced counsel, who had ®r might have had all the benefit this court could give them. That after this Verdict, the complainants filed their bill to stay proceedings at law, and compel D uncan to take a title for the land.

It appeared further on the trial in equity, that Wil-banks had rented the land to several persons before the sale made by him to Gamblin, That he had received rent for seyeral years for the benefit of the heirs of Simp-lon. That Gamblin paid to the heirs thirty dollars, a& part of the purchase money; and that his contract with Wilbanks was that be was to pay the heirs as they came Of age.

It also appeared that the land now was injured by the cultivation of Gamblin, and not worth much more than half what it was when Duncan purchased the bond. There was no evidence given on the trial (in equity) that Samuel Simpson, or his heirs had a title to the land, iior wfts there any title, or abstract of title submitted.

The court decreed, that Duncan should release his judgment and costs at law, and receive a title from the heirs of Samuel Simpson, and pay the costs of this suit.

The defendant therefore gives notice, that he will appeal to the Court of Appeals, to be holder» at Columbia j and will then move to reverse or change the decree of the Qourt on the following grounds ? '

First, — That Duncan had a right to sue at law oh the bond; and If he had not, the defendants at law ought to have pleaded in bar to his-action, and as they did not ■do so, equity will not relieve where there was a redress at law, if the party neglects to plead or mispleads.

Second, — Because the law had provided a particular remedy in this case, and equity will not extend or grant a further one. And under that particular remedy, the condition of the bond was submitted to the jury with all ‘the equitable circumstances,

*542Third, — Because, there was no evidence given of any title in Samuel Simpson, or his heirs, or any title, or abstract of title submitted to the court, although the purchase money was paid.

Fourth, — Because the land is of less value at this time than when Duncan purchased the bond, and the situation of the contract changed.

Fifth, — Because the court decreed a specific performance on the application of the representatives of the vendor.

Sixth, — Because the improper and illegal conduct of Wilbanks in the sale of the land, prevented Duncan from' .getting the possession of it.

Seventh, — Because the decree is contrary to equity and good conscience, in compelling Duncan to pay the costs in equity, when the heirs of S. Simpson had received eighty dollars on account of the sale of the land to Gamblin, and Wilbanks the administrator had received several years rent, which was sufficient to defray complainants costs ; which sum the heirs and administra* tor were not entitled to, if Duncan is obliged to receive the land, as lie is entitled to all the mean profits since the sale.

Gist defendant’s solicitor.

The appeal came to a hearing, and was argued by Messrs. Gist and Hooker for the appellants, and Mr. Crcswell for the respondent.'

Mr. Gist, for appellant.

The administrator of Samuel Simpson had no power to sell the land to Wil-banks. Duncan bad a right to sue the bond. — 1 Fonbi. 144, *5 ;*1 Yern. 119; 2 Yern. 325, 696.

Where the law provides a particular remedy, Equity will not give a.further remedy. — 2 Eq. Cas. 246 *; 1*Fonbi. 148,9; Cas. T. Talb. 173, 4. See Acts of Assembly, p. 213. — This act gave a remedy; and operates to prevent the necessity of going into courts of equity,‘ and the complainant having a remedy at law, cannot come here.

Courts of equity will not decree a purchaser to take a title which is even dubious. 1 Fonbi. 178. There w®? *543fio grant, no deduction of title from the grantee to Samuel Simpson : and here is an adverse title shewn in another party, which the purchaser could not get rid of. See 1 Fonbl. 361, 2, 384.

If the court does not take care that a good title should he made out, Duncan will loose his money and the land too. The decree should have, provided that the title deeds should have been given up by Simpson’s heirs.— The possession by Gamblin was adverse as to Duncan* hut not as to the heirs of Mr. Simpson who are minors.

The land is not of such value as it was when sold* by Gamblin’s wasting it.

The court will never decree specific performance in favor of the vendor, unless the vendee wants the thing in specie : at least not under the circumstances of this case.

Decree is wrong as to the costs at law, at all events* as he was entitled to sue at law: He had a right to go there.

Wilbanks, the administrator, is to blame in all the transactions of this case.

If the decree be not l’evei'sed it should be amended, by the commissioners being directed to inspect the title, and see that it is a good one, and that the deeds be given to the purchaser.

Mr. Creswell) for respondent.

Probable title is Sufficient ground to found a decree for specific performance. — 2 Pow. on Con. 37.

Possession has been in J. Simpson fr«n 1796, till 1802, ■when he went away : and the administrator of Samuel "Simpson, (Mr. Wilbanks,) sold to Gamblin, who has been in possession ever since and has made some payments.

The vendee is liable to all accidents to the subject of the contract, unless vendor be in default. — Pow. on Con. 56, 61.

The possession of Mr. Gamblin could not run against the minor children nor against Duncan.

Mr. Hooker for Mr. Duncan, — Let the decree be what it may, there is no reason to fix the costs on Duncan. Duncan could not get the title without trouble and costs. 2Je asked even possession till he couli get a title~¿-bnt it, *544was not given him — mor a title. Duncan had a right tcj-sue on his bond — he did so, and cannot be blanted for it; and still less to be saddled with costs. The hews are minors to tiiis day, and it is not known that they desire or will give him a good title. Duncan did not take the penalty of the bond $ but a verdict for damages under aur act of assembly. The heirs have received rents.

It is too late for the heirs to come now to insist on specific performance, after the verdict, at law for non-performance and after Duncan had solicited the performance of the contract, The court exercises the power of enforcing specific performance cautiously. The case of a contract to make titles on one side, and the other party giving a note for money, is not á case for enforcing specific performance against these.

Wilbanks is liable to the children# if he has acted improperly as to the estate of which he is the administrator# e'ó that the children cannot suffer.

The court upon consultation# being of different opinions, the majority of the judges delivered the following decree :

The defendant has appealed in this case on various grounds, hut the principal objections to the decree are these: First, — That the title of the complainants to the land contracted to be sold is a defective one, and the defendant therefore ought not to be compelled to receive such a title,. And Secondly, — That the defendant ought not to ho Charged with the costs.

We think that the first objection ought not to prevail, for the reasons given in the decree; and for the further reason, that if the title has been impaired by the adverse possession of Gamblin, it is the fault of the defendant# who, it appears, knew at the time he purchased that Gamblin was in possession. He should# therefore#, liave brought his bill for a specific performance, which Would have enabled him to bring an action at law for the recovery of the land, in time to prevent the possession of Gamblin, from ripening into a title for any part. It is not necessary under the circumstances stated, to refer this case to the commissioner# to enquire whether the *545complainants can give a good title. This is the ordinary practice of the court, but such a reference would here be useless, for the nature of the title is distinctly seen, and the defendant for the reasons already given, must take it with all its difficulties.

As to the costs, we are of opinion that these ought to be paid by the heirs of Samuel Simpson, and not by the defendant, because, a title from them could not be obtained without a suit. They should also pay the costs on the judgment obtained by the defendant on the title-bond, for he had a legal right to sue, and it is sufficient that the court compels him to accept the title in lieu of the damages recovered.

It is, therefore ordered and adjudged, that the decree be affirmed, except as to the costs, which must be paid by the complainants out of the estate of Samuel Simpson.

Theodore GaiuuaRD,

Thos. Wattes,

W. D. James.

The two other judges delivered the followingoplnion -

I have considered the case with attention, and regret I cannot agree with my brethren in affirming tl*e decree of the circuit judge.

It does not appear to me that we are at liberty to deprive James Duncan of the benefit of las judgment at law, on the bond to make titles, which he held, by assignment, and which he had a right to sue, unless we see that he is secured in a good title to the land. As Í do not perceive that he is secured in that respect, I cannot consent to make the injunction against his judgment at law perpetual. The substantial object of the com*-plainant’s bill in the Circuit Court, was to compel Dun}, can to accept a title to the land in lieu of the judgment o the bond to make titles, or in other words, to accept a specific performance of the contract. In all such cases, it appears to me to be the duty, and it is the course ofthp court, to see that the title offered is free from all reason able objections. In the present case, I do not think tba the complainant’s title is free from objection. I think *546that it is quite probable that the adverse possession of Gambito may be supported, ami defeat the title. This reasonable doubt, I think, ought to prevent the court from forcing Duncan to accept the title and give up his judgment on tho bond to make titles. I am, therefore, of opinion that the decree of the circuit court ought to be reversed. '

(Signed) *Henrx*W„ Desaussure.

I concur in the above opinion.

W. TaoMiesoY.