Bushrod Washington

“ Whether inability in the vendor to make a title, is, of itself, unattended by some peculiar circumstances of hardship, sufficient to justify the court in setting aside the contract, need not now be decided. ”

“ The next objection to the decree below is, that Auld had no authority, in virtue of the power of attorney from Dunlop & Co., to enter into an agreement to receive land in discharge of the debt due by Hepburn & Dundas.
This, like the former, is a new objection, not thought of, or argued, as a reason against a specific performance in the former suit. It is unnecessary to examine, with critical nicety, the import of the expressions used in the power of attorney to Auld. ”

“ Under such circumstances it would be inequitable to set aside the contract. The alienage of the complainants is urged as an additional reason for setting aside this contract. Although the incapacity of the purchaser to hold land might afford a reason for denying a specific performance upon the prayer of Hepburn & Dundas, (a point, however, not intended to be decided,) it is certainly insufficient to entitle the vendor, under the circumstances of this case, to a decree to rescind the contract. ”

“ DECREE.-These causes came on to be heard this 8th day of February, 1816, on the transcript of the records, and were argued by counsel, whereupon, it is decreed and ordered, that the decree of the circuit court of the district of Columbia for the county of Alexandria, in the suit of William Hepburn and the heirs and executors of John Dundas against Colin Auld, agent and attorney in fact for John Dunlop & Co., be reversed and annulled, and this court, proceeding to give such decree as the said circuit court ought to have given, it is further ordered and decreed that the said bill be dismissed. ”

“ Neither bills nor cash were paid, nor was the contract assigned, or a conveyance made, for it turned out that the vendor could not make a good title to the whole of the land until March, 1809. They have always retained possession, and the land is, in reality, unproductive of profits in any measure equal to the interest on the debt. ”

“ This offer being refused, Hepburn & Dundas filed a bill against Colin Auld, as attorney of Dunlop & Co., setting forth their ability and readiness to convey an unexceptionable title to this land, and praying that Auld, or Dunlop & Co., might be compelled to accept of a conveyance, and to pay the difference between the agreed value of the land and the sum awarded. ”

“ As to the remainder of this objection, it is founded altogether upon the deposition of Mr. Sheffey, the counsel for Graham's heirs, which, as it is explained by the same witness in a subsequent deposition, proves no more, than that such a proposition had been made by Edward Graham to Mr. Hepburn. That it was not accepted by him, is manifest by the judgment itself, which is unconditional, as well as by an agreement made between Hepburn & Dundas and Edward Graham, the day after the judgment was entered. ”