*Present*— Chancellors Mathews, Hutson and Hunt;

#### Peirce Butler *vs.*James O’Hear.

CASE XCV.

The court pci the spe-ciñe per-íorinmice^of ment, and danf^o^ac-Wlí'cl a complainant cannot make out to be clearly good and free irom meum-bronces.

The bill was filed for the specific performance of an agreement for the sale of a house and lot in Charleston, **->*The bill charged that Thomas Bourke executed deeds on tho lltp an¿ 12tli of August, 1789, by which he convey-_ ed a bouse and lot of land on East Bay-street to John Williamson, his heirs and assigns. That at the time of ^10 execution of said deeds, there were several judgments subsisting against Pliomus Bourke, which aré stated in plc ppj. am\ jl6 had also mortgaged the property to the ’ *;*, commissioners of the loan office, to secure the payment 0p a sum borrowed from that office. That complainant ■ A having been bound as surety for John M4 Queen m several debts, he applied to him for counter security or indemnity. And ho stated that he had made arrangements by which he could apply the house and lot in question to that purpose,- and that Mr. J olm Williamson would convey the premises to any person to whom the complainant *383might dispose of the same; and complainant was appris • ed by Williamson of his consent to such arrangement. That the complainant understanding .Tames O’Hear wished to become the purchaser of said house and lot, had some conversation with him about the terms, and then addressed him a letter, and requested him if he approved the same, to sign a memorandum of agreement, which he inclosed; of which the following is a copy: «I have this day agreed to purchase of P. Butler, a certain house on East-Bay, at present occupied by captain II. Grant, for which I promise to pay 3000Í. in fundable indents, exclusive of the interest that may be due on them, on receiving such titles as Mr. Ward may approve of.” That James O’llear returned the paper, signed in the presence of a subscribing witness; and the said O’Hear kept a copy of the. said agreement. That complainant previous to the signing said agreement by James O’Hear, apprised him of the judgments and mortgage which encumbered the premises, but that the complainant having an assignment of the first judgment, he assured him that the same should never have any effect on the premises, and that he would release the premises from the same; and it was agreed between them, that with respect to the other judgments and mortgage, the defendant O’Hcar should keep in his own hands as many of the indents as at the current rate of sale might satisfy the mortgage; and that the judgments should he paid out of the consideration money upon the payment thereof. By defendant it was also agreed, that John Williamson should convey the house and lot to said OTicar in fee, but without warranting against the said judgments and mortgage, as he, O’Hear, wTas to retain in his hands the means of indemnity; and the said O’llear was to sign some paper expressive of such restriction of the warranty. That defendant O’Hear soon after took possession of the premises, as purchaser thereof under the agreement, and the complainant’s solicitor soon after drew sufficient deeds of conveyance in fee from the said John Williamson to said defendant O’Hear; and said deeds were sent to Georgia ío be executed by said Williamson and his wife. In the *384mean time the defendant O’Hcar repenting his bargain,. wrote a letter to complainant, dated 12th July, 1791, in which he declares “ that as he had contracted with ma-j°r Butler, and knew nothing of Mr. Williamson, he could not accept this title, but mast have conveyance from major Butler.” But complainant afterwards satisfied said O’Hcar of the propriety of accepting the titles from Mr. Williamson, who executed the deeds, and transmitted them to his agent to be delivered to complainant or said O’Hear, on his being indemnified against the incumbran-ces. That said James O’ilear being satisfied that he would be safe, as he would have the application of so .much of the purchase money as was requisite to payoff the said encumbrances, agreed to execute a deed to release Mr. Williamson from the operation of the covenants contained in the said deed in relation to said judg ■ ments and mortgage; and such a deed was prepared, and was approved by Mr. Ward the defendant’s counsel. That the agent of said Williamson, in confidence that Hits said deed would be executed by the said James O’Hear, delivered to the complainant the deed of conveyance from said Williamson, in order to tender the same to defendant in performance of his agreement. That a day was appointed for the delivery of the deeds, and for the payment of the indents, and the application of pari of the indents to satisfy the judgments and mortgage; but some difficulties arising about tbe dower not having been properly renounced, the defendant (although complainant made such offers to obtain the regular execution of the dower, and to indemnify him as satisfied the mind of his counsel) upon this and some disagreement about the indents to be reserved, refused to go on with the complex tion of the business, and shortly after wrote to complainant that unless, he received an unencumbered title from complainanthimself (and not Williamson) he should consider himself warranted in declining the business altogether. That in a few months after the proper renunciation of dower was obtained, and complainant’s counsel informed defendant that he was ready to deliver the deeds to the defendant, conveying a full and clear title from Mr. *385Williamson; but defendant said, as the 1st of October had elapsed, (which he had limited for the delivery of the deeds) he considered the agreement void. That complainant’s credit has suffered by his disappointment; that Mr. Williamson has withdrawn the deeds from the hands of his agent, because he was apprehensive they might be delivered to defendant before he was indemnified and released; but complainant was at all times ready to indemnify him, and doubts not he will be able in a short time to procure again the titles from said Williamson, so as to enable him to deliver them to defendant. Complainant’s hill prays that defendant may be compelled to a specific execution of the contract upon complainant’s delivering him gobd and sufficient titles from said Williamson, or such other good and sufficient titles as the court may direct.

*383JUNE, 1794.

*385The defendant James O’lfear admits that Thomas Bourke was seized and possessed of the house and lot in question; and that he conveyed the same to John Williamson; hut this defendant has reason to believe, not for valuable consideration, but to cover and protect the property from his creditors; and that Bourke continued to receive the rent of the house long after said conveyance to Mr. Williamson, who has conducted himself throughout the business as a mere stakeholder or trustee, without any interest. That defendant learnt those things after his agreement with the complainant, and they made him cautious in his conduct, as he understood the auditors of Bourke meant to look into that conveyance, and set it aside if they could. Defendant admits that there were divers judgments and a moi'tgage of record against said Bourke; but defendant denies that complainant apprised him of that circumstance; on the contrary, that he found them out himself, and mentioned it to complainant, and told him they must be removed out of the way before any contract could be carried fully into effect; and that he expected all the judgments against Bourke, and also the mortgage should be previously satisfied, which complainant promised should be done; and defendant avers that it was under’ this assurance that ho signed the, agreement *386in bill stated; that lie agreed to give 1800Z. sterling or SOOOZ. in fundable indents, at twelve shillings in the pound3 and complainant agreed to accept SOOOZ. in indents, and the agreement was signed accordingly; hut most expressly on the ground that all the incumbrances were to be removed, and defendant was to assume the loan office debt on himself, and retain indents at the then price (twelve shillings) sufficient to pay it off. Complainant directed defendant to take possession of the house, and told him to hold it rent free till titles were made, which he did. Defendant denies that it ivas agreed that the different judgments against Thomas Bourke were to he paid, out of the purchase money. Defendant relied on the complainant’s assurance that the incumbrances , were .to be removed. Defendant denies that it was mentioned to him at the the time of the agreement that the titles were to be made by Mr. Willidmson — he expected them from complainant, with whom he was contracting; and he learnt with surprise afterwards from his counsel, Mr. Ward, that the title was not in complainant, but in Mr. Williamson, and he thereupon expressly in a letter of 12th July, 1791, disclaimed having any thing to do with Mr. Williamson. Defendant denies that he took possession as purchaser, but under complainant’s permission to occupy the house, rent free, till the titles were completely executed. Defendant says that he was desirous to learn what sort of titles complainant meant to bring forward; and lie soon learnt from Mr. Ward that even if he (the defendant) should be willing to receive titles from Mr. Williamson, that gentleman .was unwilling to make a full conveyance, with the usual clauses of warranty, but only to warrant against himself and those claiming under him, which defendant declared to Mr. Ward he would not receive; and on complainant wishing defendant to write a letter to Mr. Williamson, requesting the execution of titles, without any warranty, defendant again wrote to complainant that ho had nothing to do with Mr. Williamson, hut solely with complainant, with whom alone he had contracted; and that if he could be induced to accept of a conveyance from Williamson, nothing huta full and *387completo warranty would satisfy him; and that if the matter was not satisfactorily closed by the 1st of October, 1791, lie should consider the business at an end; and de-fondant avers that he was ready on that day to have complied with Ms contract, having kept his funds in his hands for that purpose. That complainant went to Georgia, where Mr. Williamson resided, as he said, to get a title, and on Ms return called on' defendant and informed him that he had now arranged all matters, and requested a day might be fixed to settle. That accordingly a meeting took place, but defendant then found that even Mrs. Bourke.'s dower had not been renounced, nor the judg - ments taken up. Defendant admits that complainant offered to give his bond of indemnity to defendant, touch - ing Mrs. Bourke’s dower, and offered to assign him the judgment he- held in interest till he could recover against Bourke; but as this was leaving open an incumbrance against tlie property, the agent of Mr. Williamson (to whom lie bad transmitted the deeds of conveyance) refused to part with the titles, unless defendant would sub - scribe a formal exoneration and release of said Williamson from all responsibility, and all general warranty, which he was instructed positively to require; upon which, and upon complainant’s refusal to allow defendant to retain indents (at the then selling rate) to meet the debt on mortgage to the loan office, the parties separated; and defendant refused to go on with a contract so full of intricacy, and where such a doubtful title was offered him; and he wrote to complainant on the 4th of August, 1791, declining any further negociatiou, or to accept of any other than direct conveyances from the complainant himself, and that all the incumbrances should be actually removed, except the mortgage which defendant was to assume. To this letter defendant got no answer; and though it was injurious to him to keep such a sum unemployed,'' lie did so till October, when he wrote to Mr. E. Rutledge (whom lie understood to be the complainant’s counsel) that he considered the contract at an end, unless the proper lilies were delivered on that day, and the business settled, and offering to deliver up the premises, or to rent them. *388To tliis letter defendant got no answer. Defendant states, that though he meant to submit to Mr. Ward’s judgment the legal questions which might arise, he never meant to submit to him whether defendant should receive titles from a person with whom he never contracted; and still less whether complainant’s bond of indemnity should satisfy defendant instead of an actual renunciation of dower by Mrs. Bourke. That Mr. Williamson’s agent did not deliver the conveyance to complainant to he tendered; but at the request of hi,s counsel for perusal, with a promise of re-delivery, which was made; and the agent has since returned them to his principal. Defendant believing the business at an end a.fter the 1st of October, 1791, did, in December, enter into a new purchase, and applied his funds to that purpose; and he trusts he will not now be compelled to specific execution of a contract so often varied by complainant, and since abandoned; nor does he now believe that complainant could obtain or give a complete, clear, and secure title to defendant. He prays to he dismissed.

The cause came to a hearing, and the following evidence was given. The memorandum' of agreement for the purchase of the house and lot by O’Hear, as stated in the bill of complaint; conveyances of the house and lot from Mrs. Ellis to Thomas Bourke; conveyances from Bourke to John Williamson, for the consideration expressed of 3000b; deeds recorded 23d September, 1789; deeds prepared from Williamson tp Q’Hear, and to be delivered on certain terms.

Mr. Gaillard testified that he held one of the judgments against Bourke, and complainant had agreed to pay him indents at par: he attended fop that purpose the meeting at Mr. O’Hear’s.

Mr. Lamotte testified that ho knew Mr. O’Hear took, possession of the house, when Mr. Grant left it, He considered Mm taking possession as a purchaser, as he knew of the agreement for the purchase. Witness acted as attorney fox complainant, and received balance of rent from Grant

*389Mr. Pringle testified that he knew the bond and judg-meat of Waters against Bourke to be now the property of complainant. The titles were drawn by him, and sent to Mr. Williamson to be executed. He does not think they were ever shewn to Mr. Ward or Mr. O’Hear, before they wore sent to Mr. Williamson. He knew that the Island of St. Catharine’s was the consideration on the part of MQ.ueen for the house in town.

Mr. Ward testified that when the titles from William, son to O’Hear were shewn to him at the meeting spoken of by the parties, O’Hear asked him if they conveyed a clear and an unencumbered estate; he told him no, explicitly.

Mr. Grant testified that Williamson sent him an order, dated 18th of April, 1791, whilst he was occupant of the-house, t'o pay the rent to Butler. He never after that paid any rent to Bourke, but he had advanced Bourke eighteen month’s rent before. He quitted the house sooner than he wished, as O’Hear was anxious to get in. He left it on the 10th of June, and. O’Hear entered on the l£th of June. He entered as purchaser— O’Hear told him so.

Mr. Prince testified that the complainant told him he would go to Georgia, and get titles from Williamson, and then he would make titles to O’Hear, as he had objected to titles directly from Williamson to himself. Complainant told O’Hear he would take off every incum-brance on the house with.the purchase money. He heard complainant say that he had never agreed to O’Hear’s retaining any of the indents at all. Complainant told O’Hear immediately after signing the agreement, he might go into the house, and sit rent free till he delivered him good titles.

Mr. Morrison heard complainant say he had never agreed that O’Hear should retain any of the indents to take up the debt to the loan office; hut that O’Hear wanted to be off the bargain.

Mr. Daniel Desaussure testified that Mr. Williamson had sent him the titles for the house which Bourke had conveyed to him, with instructions not to deliver them to *390O’Hear, to complainant, or any other person, until he, Williamson, should be completely released from all reá-possibility, on any account for incumbrances, title, or' otherwise. That the witness did once, at the request of Mr. Pringle, loan him the titles, with a promise to return them, which was done. That finding the incum-brances were not effectually removed, and that O’Hear refused to release Williamson from the clause of warranty, and other obligatory clauses of the conveyance, which Williamson required (as he had no real interest, he would not he bound in any shape) he returned the title deeds to Sir. Williamson.

Mr. Williamson certified that he had instructed his: friend Mr. Dcsaussure, to whom he sent the deed of conveyance of the house, not to deliver the deed until he was completely exonerated from all responsibility or liability for defect of title, or any incumbrances on the same; and that his agent acted as he directed; and finding that he, Williamson, was not effectually released, returned the titles.

Mr. Pringle for complainant.

From the words of the. agreement it is specified, that the money was to be paid on the delivery of good titles. Then it is not indispensi-hie that the titles should be from the complainant; nor is any precise time fixed when the titles are to be delivered. That part of the agreement signed by Butler mentions that, he was not acting for himself, therefore it could not have been intended that the titles were to come from him. 2 Eq. Cas. abr. 689. 2 Powell, 37, 33, 268, 271. 1 Yes. 88, as to the retention of the money. 2 P. Wms. 630. 1 Atk. 12. 1 Bro.P. C. 218. 18 Viner, 188. Powell, 7. If the titles had been made directly by Williamson to Butler, the object of the conveyance to Williamson would-have been defeated, because M‘Queen intended the property put into Butler’s hands to indemnify him for being M‘Queen’s security'; whereas, had the titles been made to Butler, the house might have been subjected to his private' debts, and left M‘Queen liable to their joint debts.

Mr. E, Rutledge for complainant.

O’Hear knew of every incumbrance on the land before he signed the con*391tract. In searching the offices for incumbrances he musí have found the titles from Bourke to Williamson, and that there were no titles to Butler; how then could he expect titles from Butler? O’Hear took possession of the house after he was informed that titles were drawn and sent to Williamson for execution. This shews that he understood Williamson was to give the titles and that he acquiesced, On 21st December, 1791, Mrs. Bourke’s renunciation of dower was executed, and offered to be delivered to O’Hcar. This completed the title. The declaration of trust must always he made by the person in possession of the legal estate. This was in Mr. Williamson, and he has done so. The estate must follow the terms on which it was conveyed. It was expressly conveyed to Williamson to hold in trust to indemnify Butler against his securityship for M‘Queen. Quotes 1 Atk. 12. 1 Ves. 88. 2 Bro. 415. Powel, 231, 265.

Holmes for defendant.

Thi3 court will never decree the specific execution of contracts, unless mutual, and the circumstances such that the court could enforce its performance on both parties; but that could not be done in this case. . The legal estate in the house was in Williamson. He resided out of the jurisdiction of the court. Neither Butler nor the court could compel him to execute the agreement made by Butler. He has tried to induce Williamson to do so; but lie would not, unless clogged with such conditions of release to himself, as no prudent purchaser would give, and no court would direct. This ground alone is sufficient to prevent the court from interfering, and decreeing specific execution.

Mr. Harper for defendant.

O’Hear did not know any thing of Williamson in the first instance. As soon as lie was informed that Williamson was to make the titles to him, he wrote (on the 12th July, 1791) stating that he expected titles from Butler. This was within a month after the agreement. The contract wants the great in.* gredients of mutuality and certainty. Butler could not perform his part of the contract in a reasonable time; nor is it certain that he could at any rate, on such clear unqualified terms as would be just and safe to the purchaser. *392The flower of Mrs. Bourke was not renounced in due form till December, 1791, six months after the contracts and such titles as Mr. Ward would approve (which is the condition of the agreement) have not yet been produced. Mean time circumstances are materially altered. Contracts entered into to be performed on a day'certain, are void, if not performed at the day. But the conveyance from Bourke to Williamson being in trust for M‘ Queen, it became liable to his debts; and the title from Williamson could not have got the land clear of that incumbrance; these were concealments on the part of the complainant» At the time of the purchase, the house was incumbered with judgments and a mortgage, which was hot made known to O’Hear at that time. This is clearly a contract made under such circumstances as this court will not enforce. Quoted 2 Powell, 221. 3 Atk. 384. 2 Eq. Cas. abr. 20, 58, as to the contract. 1 Vern. 227. 2 Vern. 415, as to the uncertainty. 2 Eq. Cas. abr. 689, as to the alteration of circumstances. 1 Bro. 27, as to delay.

Mr. Read for defendant.

Mutuality of contract, and of the remedies upon them, are essential to their, justice, and to induce this court to decree specific performance. If O’Hear had filed his bill *vs.*the complainant for specific performance, he could not have obliged him to execute the agreement; for, as the complainant’s counsel insist (for another purpose) Butler was not acting for himself, nor does he state for whom he is acting. Then by the statute of frauds, he is not the party to be charged with the fulfilment of the agreemeut. If he could not be enforced to the performance of the agreement, this court will not decree against the other party. The complainant’s counsel contended that Williamson held in trust for M‘Queen, and,that by M‘Queen’s direction Williamson was to convey to whomsoever Butler should direct. — . If so, the house is liable to the debts of the cestui que trust, M‘Queen, and these incumbrances have never been removed; and the court will not decree a party to accept a title under such embarrassments and doubts.

Mr. Ford for defendant.

The rule is most clearly established that contracts must be fair, reasonable, mutu*393al, certain, made tor valuable consideration, and free from concealment or surprise, or this court will not decree a specific execution. See 2 Powell on Contracts, 221. 2 Comyn’s Digest, 129; but this contract was not reasonable, or mutual, or certain. Complainant was not tied down to any certain time. Defendant was obliged to hold his funds idle, to be always ready to meet, the demand when it suited complainant to comply. There was *no*mutuality. The defendant alone signed the contract, which was drawn and presented by the other party, and he was the only party hound. Complainant was not under such an obligation to convey the house, that he could kavebccn compelled to do so. There was also concealment on the part of complainant. lie did not disclose at the time of making the contract that the title of this property was not in the contractor, but in another,* and that he really had no power *to*convey the land. Why conceal this fact till O’Hcar bad signed the agreement? Because the knowledge of it might have prevented the purchaser agreeing to go on with the contract. He also concealed from defendant that M'Qaccn had any interest in the premises, and that the house might be subjected to bis debts, and he concealed the fact in whom the legal title really was. The opening and conducting the negociation was in complainant’s own name} and this surely led defendant to believe that he was dealing with him a known person, in whom he supposed he could rely} but it turns out he is dealing for others} some of them unknown to defendant, and in none of whom he had any confidence. Thus he was misled into the contract. Such conceal-ments are solid objections to a decree for specific performance. 2 Powell on Contracts, 222, 205. See Shirly and Gratton, 1 Bro. C. C. 440. The complainant who seeks a specific performance must shew that he himself was able and willing to have complied with the contract, and had taken all the steps incumbent on him to have dmic-::e: but complainant was not able at the time, of Mussel!', to have, made good tides. The legal title was not in Lhu, hat in 'Williamson} who, acting* for another, would no? be hound to do as complainant required, and acfwllv *r< -**394fused *to*convey, but on terms which the purchaser was not bound to accept. lie lived out of the jurisdiction and. control of the court; besides, Williamson held in trust» ^11 trust for whom? M* Queen says for him; and he au-thorises complainant to act. But where is the evidence of this? A letter from M‘Quecn. Was this obligatory on Eourke? or even on Williamson? Surely not. Then complainant was not in a capacity to comply with the contract; and if so, is not entitled to enforce it on defendant. A deed of trust must express the trust on its face; or there must he a declaration of trust by some collateral deed made by the grantor. The statute of frauds declares trusts void which do not carry these marks of authenticity. If the trust was valid as to MfQuecn, then the house was liable to his debts as cestui que trust, and complainant must remove those incumbrances, which has not even been offered or attempted. See 3 Atk. 186. 2 Vesey, senior, 52. 5 Bac. 590. 1 P. Wms. 323. O’Hcar refused, as he had a right to do, to receive titles from Williamson, when he was informed that it was intended to get titles from him, and required them from complainant as the person with whom he had contracted. But complainant has never been ready; nor has he yet offered to make titles himself to defendant; and the titles he does offer from Williamson do not contain those full and distinct warranties and covenants on which purchasers rely for their security; but he warrants only against himself, and those claiming under him, and requires a release from all liability for incumbrances. This court can never he prevailed upon *to*decree a specific execution of a contract by one party, when so many difficulties exist to his getting a good, clear, indefeasible title. But it is alleged that 0sHear, though he refused at first to accept titles from Williamson, afterwards agreed to do so, and to release the covenants of Williamson, and to accept a bond of indemnity against the dower. If the contract was ever so varied, it must have been by parol; for there is nota tittle of written evidence produced to that effect. Every tiling written is to the contrary; and the answer denies these allegations. Now the rule of the court is dear. Where *395the answer denies the allegations of the bill, the denial *fa*conclusive, unless the answer is contradicted by two witnesses, or one witness supported by strong* ciremnstan-ces. 2 Comyns, 124. So far as the defendant admits in his answer that he had nearly been prevailed upon to accept of the second proposals, to accept the title from Williamson, he expressly declares that he reserved to himself the right of examining when complainant brought forward the titles, and judging if he should be safes and also to have the consideration disposed of according to the proposal. But even these second proposals were not adhered to by the complainant. He denied the right of defendant to retain indents to satisfy the mortgage at the price of twelve shillings, w hicli was the price at the time of contracting, and insisted they should be retained at the rate of eighteen shillings, tin*, price on the dry of the meeting. Upon this point, as well as others, the parties broke off, asid this was the fault of complainant. These*' were imperfect negociationf:, not binding on cither party. Again Mr. Ward was referred to in the agreement as the counsel, who was to be satisfied with the conveyance to Mi*. OTíear; and he has given his decided opinion that trie titles offered to O’Hcar did not secure a good and sufficient title; and this difficulty is conclusive. Complainant must do every thing necessary to be done on his pari. He has not done so. Me never would take ‘Williamson’;? title to himself, and then give a clear, full, indefeasible title to defendant. There is a great difference between the court refusing to decree specific performance and destroy ing the contract. See 3 Atk. 383. 1 Vesey, sen. 279. Jr was contended that O’Hcar’s taking possession of the house was conclusive as an execution of the coni rack But defendant swears in his answer that he did not take possession with any intention to bind himself to the terms complainant should dictate, 01* to give up any just objee ■ tions to the title, lie took possession of the house because he supposed complainant would comply with his contract, and give him a good title; and because he was told he might take it rent free till good titles were made out to him. This his answer states, and is corrobora; ;d by the *396testimony of one Prince. Mr. Grant’s testimony does not destroy this evidence, for though he says Mr. O’Hear took possession under his purchase, he does not pretend know or explain the terms of the contract. To make a possession taken under such circumstances, conclusive on defendant, would be to entrap Mm, and to produce an effect never contemplated by him. See 1 Powell, 306. 2 Powell, 153, 221. 1 Vern. 229. 1 Vesey, 279.

Decree,

General Pinckney in reply for complainant.

The conveyance by Bourke to Williamson in trust for M‘ Queen was good, though the trust was not expressed, if the proceeds were applied to pay his debts. 1 Bro. C. C. 81; and it is immaterial whether Williamson know of the trust at the time it was created or not. The estate in M‘Queen was a power of appointment coupled with a beneficial interest, and there can be no lien on it in equity} but he may dispose of it to such of his creditors as he prefers. He has done so, and preferred the complainant, who was his security} and the trustee is bound to carry his directions into effect} if he does not, the court would remove him, and appoint another. Complainant had such an interest in the house, under the trust, as the court would have compelled him to convey to O’Hear if he had sought a specific performance. O’Hear being a purchaser without notice, no incumbrance on the land since the contract would attach to it, only prior incumbrances. 2 Eq. Cas. abr. 42. 2 P. Wms. 629. The statute of frauds-applies to ex-edited trusts, and not to executory trusts. 18 Vincr. 118,' 119. The agreement was general to take a title, and it is of no importance whether from Williamson or Butler. Some time after the argument, chancellor Rutledge delivered the decree of the court:

This suit is instituted by complainant to compel a specific performance of an agreement entered into by defendant for the purchase of a house and lot, and to pay the purchase money on complainant’s delivering him good and sufficient titles from J. G. Williamson. Defendant,, by his answer, admits he signed that agreement, hut without taking a counterpart, so as to hind the complainant to a, compliance with his paid of it; and he denies that *397at the time of making the contract it was agreed that the tUlc.s were to be made by Williamson; his name was not even mentioned, and defendant believed the title w;;s in complainant. There is a variety of other matter contained in both bill and answer, relative to parol agreements and conversations between the parties subsequent to the written agreement, and varying it in some measure; but as nothing w?s concluded upon finally, it is unnecessary to particularize it. Various grounds of objection were urged by defendant’s counsel to the execution of this contract. 1st, That it wants certainty, for that it is not specified by whom the titles were to be made. 2d, That there is no time limited for the making or delivering of titles. Sd, That it wanted mutuality; for, that by the agreement, defendant was bound to pay the money, but complainant was not thereby obliged to convey. 4th, Concealment on the part of complainant, in not disclosing; to defendant at the time of making agreement, the various incumbrances which the property was liable to satisfy. 5th, That circumstances had materially altered since the agreement for the. purchase. 6th, That complainant is not now able to make or procure a good title; for, that the estate conveyed by Bourke to Williamson, although on the face of the deeds it appeared to be an absolute conveyance, yet it was merely confidentially and in trust for J. M* Queen, and liable to satisfy Iiis debts. In support of these objections, a variety of cases were cited, many of which were very applicable and strong; and it was conceded that under the authority of those cases and the rules laid down in the books, if any of the objections were well founded, they would go so far towards vitiating the contract, that this court will not decree a specific performance of it. Upon mature consideration, the court are of opinion that of the various objections made, there is only one that appears to be well grounded, all the rest being sufficiently obviated by the defendant himself as will appear by referring to liis answer, or are refuted by complainant’s counsel. With regard to the uncertainty by whom the titles were to be made, tlie defendant after declaring that he looked on complainant as the owner of the house, and that he was *398to convey (which is something extraordinary, as the complainant in the letter wrote immediately above the agreement, declared he was not acting for himself) he goes 011 an!^ saJs i’1 fixe 01' six days after signing the agreement (and which by,the by was before lie teolc possession of the house) he was informed by Mr. Ward that the title, was in Williamson, and that Mr Pringle was drawing conveyances to be executed by Williamson to defendant; nor did he object to receiving titles from Williamson, till 12th July, move than one month after he had signed the agreement, when he wrote the letter to complainant, which is recited in his answer; so that however uncertain it might have been who was to convey at the time of signing that agreement, it was reduced to an absolute certain - ty in the course of a very few days afterwards. The second objection is, that no time is limited when titles arc to bo made. We do not apprehend it is material, because when no time is mentioned, it must always be intended a reasonable time. In the case of Grafton *vs.*Cook and Ragland, Ragland’s not having complied with his contract within the time limited in his bonds for making titles, was only one of the reasons assigned by the court for decreeing complainant’s bond to be cancelled; hut there were several other grounds for the decree equally strong. Ragland had never made or tendered titles to complainant; lie was not able to make them within the time limited; he had parted with his whole estate in the lands several years before; that estate was never revested till 1791, and complainant had been sued for the purchase money in 1789, and Ragland could not at the hearing of the cause make an indisputable title to the whole of the land, one fifth part of it having been sold under execution, issued out of the court of chancery in North-Carolina. 33ut lapse of time, unattended with other circumstances, is not of itself a sufficient ground for the court to refuse its aid, to compel a specific performance of an agreement. In the cause of Lewis *vs.*Lechmore, which has been very much relied on, the time was held to be material, because the price of stock from whence the money for the purchase was to arise on the day specified in tha+ agreement, *399was 260 per cent, and at the hearing hut 92 per cent, That case therefore does not apply in the present instance for it is in evidence that fundable indents are nearly at the same price as when the agreement was made. The oh-jection as to want of mutuality, was answered by complainant's counsel by the cases which they cited. And indeed there is no doubt but the court would have compelled him to make titles if he had refused on a bill brought by defendant for that purpose. As to the objection on the point of concealment, it must be observed that there is no charge of fraud, circumvention or surprise imputed to complainant; so that that objection is by no means well founded, especially as defendant by Ms answer acknow - ledges that all the incumbrances of the mortgage and judgments were known to him previous to Ms signing the agreement, and that he first understood and discovered them himself, and mentioned them in the first instance to complainant; nor could he undertake to say that complainant would not have mentioned them to him before, the contract was closed. That circumstances have materially altered since the agreement for the purchase, may he an objection on defendant’s part, because lie has parted with the indents which he then possessed; but it is not a solid objection, for the price of fundable indents (we have it in evidence) is nearly the came how that it was when the contract was entered into. The only objection then that remains is, that complainant is not how able to make or procure a good title, and this is the only one about which the court entertained a doubt, It was contended fin* com - plainant that bIcQucen took merely a power coupled with a beneficial interest in this land, and though liable to his debts, it was so only sub modo; and that lie had a power to direct the trust to be executed in favor of such of Iris «•editors as he chose to transfer it to. If in the conveyance to Williamson there had been «a clause declaratory of tiie trust, vesting expressly a power in M4 Queen to «'/¡recx convey an.ee of the premises to the use of suds of his (■•¡•editors as he chose, ii; might possibly have prevented any judgments against him from aí¡aching on that parti-«ihu* property; huí ar.tbid is not 1 be case, and from W5J *400liamson’s testimony it appears that lie held the promises confidentially, and in trust for McQueen’s use, subject to Ids controul and direction; and that M4 Queen exercised cvcry ac^ ownership over the house that cestui que trust could do, by receiving and disposing of the rents prior to Penman’s judgment; and as it is also admitted by complainant that his letter to Williamson directing him to convey to such person as complainant should direct, was subsequent to Penman’s judgment, we cannot consider Mm in the light merely of an agent, vested with a power of directing the trust to be executed in favor of particular creditors hut as the real cestui que trust; and therefore that the estate must be liable to all the incumbrances to which such estates are subject in the hands of cestui quo trust. The court therefore will refuse its aid to compel defendant to a specific performance of his agreement to accept a title which may eventually involve him in future litigation; and ordered the bill to be dismissed with costs.

A motion was made for a re-hearing, and was argued by Mr. Pringle and general Pinckney for complainant; and by Mr. Ford and Mr. Read for defendant. It was urged on the part of complainant, that Mr. O’Hcar having no notice of the trust to M'Queen at the time lie made the purchase from Mr. Butler, could not be affected by the judgments against M‘Queen; and being safe, he ought to perform the contract; and the direction of M‘Queen to convey as Butler should direct, shews a trust for him an a counter security. That after articles for the sale of land are executed, the interest rests in the vendee, and no judgments after the articles and before the execution of titles can affect the land. The common law cannot lay hold of a personal trust estate, though the statute of frauds gives a remedy against the lands by extent. The counsel cited 2 Powell, 56, 61. 1 Chan. Cas. 34, 39. 2 Comyns, 339. 13 Viner, 118, § *7,*Title Purchaser. 5 Bac, 583. 2 P. Wms. 81, 618, 678. For the defendant it was argued that the title was in too much obscurity for the court to impose it on the defendant. Here are trusts upon trusts; a conveyance in fee to Williamson, who has no in-*401iei'fsi. lie is said to hold in secret trust for McQueen; and M'-Queen directs Williamson by letter to convey as major Butler should direct. This raises another trust for Butler. How the judgments and liens against these several parties would affect the lands, cannot he seen; and the court will on no account oblige defendant to take a title under such difficulties, especially wb.cn the person to make the legal title requires to be released from the effect of such incumbrances and from the usual liabilities of a seller. It cannot be pretended that all these difficulties were disclosed either at the time, of the sale, or indeed at any time pending the negotiations; and such concealment is fatal to the contract. The counsel quoted 18 Viner, 118. Chanc. Cas. 34.

[I have no official statement of the opinion delivered by the court on the motion for a rodtearing; but 1»; is understood to have been rejected.]

Chancellor Hunt died in the summer of 1794, imme - diately after the rising of the court, and the vacancy was not supplied fin* some years. The court continued to be held by chancellors Mathews and Ilutledge.