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HEPBURX

AULD

They further attempted to show, from the evi. dence, that it was the intention of the parties that such a release should be given in case of the assignment of Graham's contract, and that instructions to that effect were given to the scrivener who drew the articles of agreement. In support of their right to prove those facts by parol evidence, they cited 1 Fonb. 188. 2 Atk. 203. 3 Atk. 388. 1 Ves. jun. 456.

2. That it was not necessary that Hepburn and Dundas should have had a complete legal title in feesimple at the time of the agreement, nor at the time of the tender of the assignment of Graham's contract. But it is sufficient to entitle them to a specific execution of the agreement if they can now give a good title. Sugden's Law of Vendors, 249, 250.

Where time is not of the essence of the contract, the lapse of time is no bar to a specific execution. 1 Atk. 12. Sug. 246. 248. 2 P. Wms. 630. Long .ford v. Pitt. 2 Pow. 266. Newland, 230. 236. 238. 241.

Even if in this case time were material, Auld ha. waived it by his subsequent conduct. He never 6). jected on account of defect of title. He never asked for the title papers till 1804, nor has the de. fect of title caused any delay. The title was never questioned until March, 1805, long after the present bill was filed.

The title is now complete. The only question which can possibly be raised is as to any supposed interest which may have descended from Sarah Bronaugh and Francina Turner, upon Thomas West. But Thomas West, by joining in the deed from Mrs. Bronaugh, as well as by his own deed, has estopped himself from claiming any title. 5 Bac. Abr. 440. 445. tit. IVarranty.

A deed of partition between the original patentees ought now to be presumed after thirty-six years' pos- HEPAUÁN session in severalty. Sug. 213. 4 Term Rep. 482.

AULD. Cowp. 216, 217.

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It is not necessary under the law of Virginia that a deed of partition should be recorded.

For the appellee, it was said,

That Auld is a defendant. He does not come here to ask any thing. A court of equity will not decree that to be done which in eruity and conscience ought not to be done. He is a mere agent. The intention of the parties was to pay a debt, not to purchase land. The agreement was that Graham's contract should be so assigned to Auld that he should either have the land, or the money, at hís option. In order to do that, Hepburn and Dundas ought then to have had a good title ; for Auld could not compel Graham to pay the money, if Hepburn and Dundas had not a good title. Auld did every thing that he ought to have done. He offered to receive such an assignment, and to give such a receipt, as were conformable to the agreement.

If the vendor has not a good title at the time when the agreement is to be performed, and the vendee brings an action at law upon the articles, the vendor cannot have a decree for a specific performance, although he afterwards obtain a good title before judgment in the suit at law.

In April, 1801, Auld brought his suit at law upon the articles, and, as late as 1806, Hepburn and Dundas had not a good title.

The original patentees were joint-tenants. The will of John West did not sever the joint-tenancy, but all his interest vested in the survivors. They could only sever by deed. 2 Bl. Com. 186.

Neither joint-tenants nor tenants in common in

HEPBURN Virginia, could make partition by parol since the sta

tutes for recording deeds.

V. AULD.

That the completion of the title in Hepburn and Dundas, after suit brought by Auld upon the articles, was too late to entitle them to a specific execution. The counsel for Auld cited Newland on Con. tracts, 206, 207. 227. Sugd. 90, 91. 2 Pow. 19. 37. 69. 75. 79. 221. 267. 4 Ves. jun. 849. 5 Ves. jun. 818. 3 Atk. 388. 573. 1 Hen. & Munf. 131. 2 Bro. Chan. Cas. 343. i Bro. Chan. Cas. 93. 440. 2 Pow. 14. 2 Ves. 389. Sugd. 165. 5 East, 198. 1 Wash. 14. 1 Vern. 366. 1 Ves. 319. i Fonb. 107. 7 Ves. 211.

Even if there be only doubts about the title, a court of equity will not compel the purchaser to take it.

Parol testimony cannot be admitted to vary the written agreement.

1 Ves. 319. 426. 3 Call, 139. 2 Bro. Chan. Cas. 343. 4 Ves. jun. 849. 1 Fonb. 129.

The title as to Thomas West's part of Sarah Bronaugh's and Francina Turner's shares of the 6,000 acres, is clearly defective. He is not estopped by his deed to claim under a title which he has since acquired.

March 14.

MARSHALL, Ch. J. delivered the opinion of the court as follows, viz.

By the agreement of the 27th of September, 1799, the plaintiffs bound themselves, in the event of not paying, on the 2d of January, in bills of exchange, or money, the amount of the award to be rendered between the parties, to assign and transfer, on that day, to the defendant, a contract they had made with Graham, by which they had sold to him a tract of land containing 6,000 acres for the sum of 18,000

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dollars, payable at different times, with interest. They HEPBURN also bound themselves to execute an irrevocable

AULD. power of attorney enabling the defendant, in their names, to recover the possession of the land, or to enforce the payment of the purchase-money, at his election.

The defendant covenanted to accept this assignment, towards the discharge of the award, and, if it should exceed the amount thereof, to pay the excess.

On the part of the defendant it has been contended that this assignment was to be received as security for, and not as payment of, the debt due to Dunlop & Co. But on this point it is impossible to entertain a doubt. The contract itself is conclusive. The word " towards” was obviously introduced because, the award not being then made, it was uncertain whether the assignment would completely discharge its amount. But the words of the agreement admit of no other construction than that it was to bé received either in part or in full payment, as the sum awarded might be of a greater or less amount than the stipulated value of the contract to be assigned. All the testimony connected with the agreement of September, 1799, tends to confirm this construction.

The next inquiry respects the transactions of the 2d of January, 1800. The plaintiffs insist, and the defendant denies, that the tender made by Hepburn and Dundas on that day was a legal offer to do what they had covenanted to perform.

The efficacy of the assignment itself is not questioned ; but it is contended on the part of the defendant that the instrument is vitiated by the clause which is introduced into it, reciting, as a part of the consideration on which it was made, that a release of all claims and demands whatsoever, on the part of John Dunlop & Co. against them, had been given.

HEPBURN

AULD .

The contract of September, 1799, certainly does not,, in terms, stipulate for such a release; and if this recital in the deed of assignment could possibly prejudice John Dunlop & Co. that circumstance would unquestionably invalidate the tender. But if it should be deemed an unimportant recital, then the tender is a substantial performance of the contract, so far as it was to be performed on the 2d of January, 1800, and at least imposed on Colin Auld the duty of preparing an unexceptionable deed, and demanding its execution.

It has already been stated that, under the agreement of September, 1799, the assignment of Graham's contract was to be received in payment, and consequently that assignment, 'accompanied with a proper power of attorney, would discharge the award as fully as a payment in bills of exchange or money. Had the deed, therefore, limited its recital to a discharge of all claims and demands under the award, it would have been strictly correct; for to such a discharge Hepburn and Dundas were entitled. The deed of assignment, properly executed and received, and the power of attorney would, in law, have been a full payment of the award; and the subsequent claims of John Dunlop & Co. would grow nut of the agreement of September, 1799.

The inquiry, whether the general terms of the recital affords any substantial objection to the deed, produces two questions.

1. Could John Dunlop & Co. have had any other claim's and denrands on Hepburn and Dundas, than were comprehended in this award ?

2. Would this recital in the deed of assignment impair those claims which grew out of the agreement?

1. The papers themselves sufficiently show that every claim whatever of John Dunlop & Co. on Hepburn and Dundas was settled in the award. The

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