John Marshall

“ A point of considerable importance to the parties remains to be considered.
Mr Cathcart, in the contract of the 10th of September 1822, agreed to secure the payment of the purchase money for Howard by the execution of a deed of trust 'on the total amount of his claim on the United States, under the provisions of the 11th article of the treaty with Spain.' If the penalty be substituted for the purchase money, it should certainly retain the protection of the same security. ”

“ The peculiar language of the witness, that she 'is willing to declare on oath' what William Robinson stated; instead of declaring expressly what he did state; may be an accidental form of expression not entitled to much attention. If we understand the deponent as averring on oath what she declares she is willing to aver on oath, she represents Mr Robinson as saying, that Howard had on it a fine peach orchard near the fence that divided it from Riddle's place. This implies that the fence was the dividing line between the two places, which would be a misrepresentation of boundary. ”

“ The received construction in England at the time they are admitted to operate in this country, indeed to the time of our separation from the British empire, may very properly be considered as accompanying the statutes themselves, and forming an integral part of them. But however we may respect subsequent decisions, and certainly they are entitled to great respect, we do not admit their absolute authority. ”

“ This letter was of course transmitted to Mr Robinson, and returned by him to Mr Mason, with some remarks on it respecting the price at which Howard had been sold, and respecting his own propositions to Mr Cathcart. No notice is taken of what is said respecting the penalty. A charge, which might be expected to be repelled with some indignation if untrue, is passed over in total silence. The letter, with the remarks of Mr Robinson, is annexed to the deposition of Mr Mason. ”

“ Mr Robinson, without hinting that the object would not be obtained by the condition, assented to it, and the agreement was signed.
If this be a correct view of the transaction, it is not simply an instrument executed by a person who mistakes its legal effect, as it would have been had it been prepared with a penalty of one thousand dollars, and silently executed by Mr Cathcart in the full conviction that it left him the option to perform the contract or to pay the penalty. It is something more. ”

“ He ought to pay the penalty, as the equitable condition on which alone he can be permitted to resist a decree for a specific performance of the whole.
It has been argued by the defendant in error that the subsequent conduct of Mr Cathcart; his eagerness to take possession of the property ”

“ But the plaintiff in error alleges that he had disabled himself from complying with this part of the contract, by his previous conveyance of this fund to John Woodside in trust for Mrs Cathcart and her issue.
This being a voluntary conveyance is, at this day, held by the courts of England to be absolutely void under the statute of 27 Elizabeth, against a subsequent purchaser, even although he purchased with notice, 1 Mad. Ch. 271, 18 Ves. 110. 2 Taunton, 523. Their decisions do not maintain that a transaction, valid at the time, is rendered invalid by the subsequent act of the party. ”