John Catron

“ The complainants being entitled to relief, the next question is, on what terms? For as they ask the active aid of the court to coerce performance of the respondent's contracts, they can only have such aid on the terms that they do him equity. A rule without an exception, within our recollection. Having dealt for an equitable title, complainants took it subject to all the equities existing between their immediate vendor, Buckner, and his vendor, Upshaw. It follows, they must perform the covenants favourable to the defendant found in the contracts on which they seek relief. ”

“ But, if there was a lien for the purchase-money after the sale to the complainants, we next claim that it was lost long ago by laches of Upshaw.
We have shown that Upshaw stood, not as vendor, but simply as his assignee of the debt due for the purchase-money. He was once connected with this land as a purchaser; but we have shown that he released the interest so acquired to Shackleford, and agreed to take a certain sum of money instead of the land. He had, therefore, in fact, only a money claim. The land was never his, nor intended to become his. ”

“ They did not offer to do equity when every shadow of suspicion was removed from the appellee's title. But did the defect in the appellee's legal title excuse them from the strict performance, or at least a tender of performance, of the original contract between Shackleford and Buckner? We think not. The appellee's equitable title was perfect, and he, as well as Shackleford and Buckner, believed that he was also invested with the perfect legal title, in virtue of the deed of conveyance from Roy, who had obtained a patent for the land from the state of Virginia. ”

“ But if Upshaw had been vigilant against Coats and Buckner, it is no excuse for his laches as against these complainants. He did know, as early as 1799, that these complainants were in possession of these lands, claiming and improving them as their own. Now in 1815, he was pursuing Burckner for the money; and up to 1820 the suit in chancery was going forward as to the Coats claim. He still considered the contract as open, and never makes any demand of these complainants. In 1818, he seeks to turn them out of possession by an action of ejectment. He does not ask them for the money. ”

“ Such laches will bar not only a mere equitable lien for purchase-money, which is the most that Upshaw ever had, but in equity it would bar a legal title, especially one obtained from a mere trustee, under circumstances like the present.
The rule prior in tempore does not apply where the holder of the first equity is guilty of laches. Sug. Vend. 728, 729.
We claim, therefore, that Upshaw is not entitled to demand the Buckner debt from the complainants. If he is entitled to any relief against the complainants, it is only to that. ”

“ The purchase-money will be apportioned among the complainants, according to the original value of the several tracts when purchased from Buckner: and the price paid to him taken as the measure of value. Those claiming under Buckner's vendees, will be governed by the same rule, of their vendor's. If the money is not paid in a limited time, sales will be ordered, of all, or any of the tracts, at the discretion of the Circuit Court, to raise the money. ”

“ And upon this reasoning it is, that when a man has trifled or shown a backwardness in performing his part of the contract, equity will not decree a specific contract in his favour, especially if circumstances are altered. ”

“ THIS was an appeal from the Circuit Court of the United States for the district of Ohio, sitting as a court chancery.
John Buchannon and others filed a bill in the Circuit Court of Ohio against Upshaw, stating that Upshaw had obtained a judgment in an action of ejectment against them, and praying for two things: 1. That he, Upshaw, might be perpetually enjoined from proceeding in execution upon said judgment; and, 2. That he might be compelled to convey by deed in fee simple, the land which had been the subject of the suit in ejectment. ”

“ The costs of this suit in the Circuit Court, will be equally divided between the complainants, and the respondent, Upshaw; they paying half, and he the other half: and the complainants will contribute among each other, in the same proportion that they are bound to do in discharging the decree for the purchase-money. ”

“ The appellants have based their right to relief on three grounds: 1st. That Shackleford, or the appellee, neglected to collect the amount due on Coats's bond. 2d. If that be not true, that they, or one of them, neglected to collect the purchase-money of Buckner. And, 3d. That the appellee never acquired his legal title until 1826. And, first, as to Coats's bond: Were it true, as charged, that it was through the mismanagement or omission of Shackleford, or the appellee, or both of them, that Coats's bond was not collected, would the condition of the appellants be improved thereby? We think not. ”

“ The simple question is, after such a contract, after such an agreement, after a sale to a third person, and payment in full by that third person, can the vendor say to the new purchaser, 'You have paid your immediate vendor just as I agreed you should, and I took his covenant. ”

“ On the 11th of December, 1789, Beverly Roy obtained from the commonwealth of Virginia a patent for one thousand acres of land in the Virginia military district of Ohio, and within Clermont county. He sold three hundred acres of this tract to one Buchannon, and contracted to convey the remaining seven hundred (the land in controversy in the present suit) to Lyne Shackleford.
On the 10th April, 1797, Shackleford sold this tract of seven hundred acres to Upshaw, the defendant in the present appeal ”

“ For the nine succeeding years no step is taken. On the 4th January, 1809, Buckner takes the matter in hand, and gives a power of attorney to Marshall to collect the money from Coats. In 1810, a bill is filed, in Buckner's name, against Coats's representatives, to set aside a fraudulent settlement, which is continued for ten years, and then dismissed upon the default of the plaintiff, December, 1820.
There is no evidence of the slightest action of Upshaw in these proceedings, nor is any thing of the sort stated in the answer. ”

“ The onus of sustaining O'Bannon's authority to receive partial payments rests with the appellants, and they have totally failed in proving the truth of their allegation. The credits endorsed on the contract refer to receipts given to Buckner. The appellants claim under Buckner; why, then, if those payments were made on said contract by the authority of the appellee, do not the appellants produce those receipts, and the authority, granted to O'Bannon, authorizing him to receive those partial payments? The appellants have presented no valid excuse for their non-production ”

“ Hill, the specific performance of an agreement to grant a lease was refused, the plaintiff having failed to file his bill for more than two years since notice from defendant of his intent not to perform his contract, on account of the plaintiff's non-fulfilment of his part of the agreement. ”