McAusland v. Pundt , 1 Neb. 211 ( 1871 )

Ckounse, J.

This is an appeal from a decree rendered by myself, ■ sitting in the District Court for Douglas county, dismissing complainant’s bill. This court -being unanimous in sustaining the decision there made, I will briefly state some of the reasons inducing jt.

The suit was brought in the name of Alexander Mc-Ausland, and revived in the name of his children, the present complainants, to enforce the specific performance of a written contract entered into between one Hughes and himself, for the sale of a certain building lot in the city of Omaha.

The facts involved may be best understood when stated in the order of their occurrence chronologically.

: February 14, i859, William M. Jones held the legal title to a certain lot in Omaha, which may be designated as the Farnham street lot. On that clay a suit was instituted in the District Court for Douglas county, by Charles W. Green, and others, creditors of one Franklin W. Brown, against said Brown and Jones, alleging that Brown was the real owner of said lot, and asking a decree declaring that Jones held the same in trust for the benefit of the creditors of Brown, and that it be sold to satisfy their judgments. May 28, .1859, Jones, in writing, agreed to sell to John Hughes, aforesaid, the Farnkam street lot, Hughes to pay him $2,000 at any time Jones should execute and deliver to him a good and sufficient warranty deed of said premises, find until such time Hughes to pay Jones $300 annual rent for the use of the same. May, 30, 1859, Pundt and Koenig being seized in common of the lot in - question, and which may be distinguished as the “ Douglas street lot,” entered into a written agreement with Hughes, by which the latter agreed to convey by warranty deed the Farnham street lot to them, when he should obtain title to the same, when Pundt and Koenig were, besides other considerations, to convey to Hughes the Douglas street lot.

July 9, 1859, Hughes and Alexander McAusland enter into the agreement in writing, the specific performance of which is sought in this suit, by which Hughes sells to McAusland the Douglas street lot, and is to execute a good and sufficient deed for the same when McAusland shall have paid three several promissory notes given to Hughes, each for $116.67, payable in one, two and three years, respectively, with ten per cent interest annually. McAusland is to pay all taxes assessed on the premises. Upon McAusland’s failure to perform any of his agreements,' Hughes may declare all the remaining payments due, and may foreclose the agreement as a mortgage. Hughes agrees that if he shall fail to make the deed as therein named, McAusland shall collect the sum of $1,000 damages. The agreements of Hughes are guaranteed by Sahler and Company. Under this agreement, McAusland went into possession, put on the lot a .building worth from $1,000 to $1,500 ; has occupied the premises ever since, paid the taxes thereon but rarely, and has paid nothing upon the notes. January 15th, 1861, the District Court, in the suit of Green and other creditors against Jones, decreed that Jones held the Farnham street lot in trust, and that it be sold to pay Brown’s creditors. From this decree an appeal was taken to the Supreme Court of the Territory, but no bond was given to stay the execution of the decree. May 13, 1861, the Farnham street lot was sold by the sheriff under the decree last mentioned, Green, one of the plaintiffs, becoming the purchaser. The sale was confirmed, and Green received a deed for the premises. June 11, 1861, the Supreme Court of the Territory affirmed the decree of the District Court. From the judgment of that court an appeal was taken to the Supreme Court of the United States. March 11, 1861, Green sold and conveyed the Farnham street lot, so bought by him at sheriff's sale, to Pundt and Koenig aforesaid. July 10, 1862, Hughes, then residing in England, “ sold and conveyed and quit-claimed to John I. Bedick and Clinton Briggs, certain' real and personal property in Nebraska, describing among others the Farnham street lot, but not the Douglas street lot, “ and all other real or personal property which have any legal or equitable interest inalso “ sold and assigned to them all the moneys, rights and credits of every description belonging to him from any one, &c.” In December, 1865, the Supreme Court of the United States reversed the , decree of the District and Supreme Courts of Nebraska, in the case of Green and others, against Jones and Brown. March 24, 1866, Jones conveyed to Bedick and Briggs all of his interest in the Farnham street lot. Shortly thereafter, Bod ick and Briggs released to Pundt and Koenig their interest in the Farnham street lot, and received in return a deed for themselves of the Douglass street lot.

The complainant’s claim to succeed, proceeds upon the assumption that Re dick and Briggs, as the assignees, and under the conveyance from Hughes, first executed the contract between Jones and Hughes, thereby possessing themselves of the Farnham street lot, then exchanged that with .Pundt and Koenig for the Douglas street lot, in pursuance of the contract 'between Hughes and Pundt and Koenig; and that now having the lot in question as the assignees of Hughes, and having notice of Hughes’ contract with Mc-Ausland, they are as much bound as he would have been to convey to McAusland or his representatives. This theory gives no importance to the circumstance, that long-prior to the conveyance from Jones to Redick and Briggs, of the Farnham street lot, the same had been sold to Green under judicial sale, who had sold to Pundt and Koenig. This, to my mind, is a very important circumstance ; for, if Pundt and Koenig had already possessed themselves of a good title to the Farnham street lot, from another source than from Hughes, the consideration for which they were to give Hughes the Douglas street lot, was gone, and neither Hughes nor his assignees could claim the Douglas street lot because of the contract between Hughes and Pundt and Koenig. This circumstance appellant’s counsel wipes out in a very summary manner with a syllogism: “ No man. can transfer a greater right or interest than ho himself possesses.” Green’s title, Green being a party to the suit in which the decree was given, upon the reversal of the decree by the United States Supreme Court, must have reverted to Jones. Green conveyed to Pundt and Koenig ; therefore Pundt and Koenig’s title passed back to Jones. But the maxim here invoked, like many others, is subject to its qualifications and exceptions. The books are full of illustrations, showing that the rights which fall under the protection of commercial law, the respect paid to judicial proceedings, the regard given to claims of innocent parties, and the like, are considerations before which the rule must give way. By sale in market overt, one wrongfully in possession of a chattel may convey a good title to a bona fide, purchaser ; so, the holder of a negotiable note, who could not himself recover upon it as against the rightful owner, may frequently, by transferring it for value, vest, a perfectly valid and unimpeachable title in the assignee. So, under the law of stoppage in transitu, the title of the consignee may be such that the consignor may revest himself of the goods; but possessed of a bill of lading, the consignee may transfer a title to an innocent third party, which is beyond the power of the consignor to disturb. “ The law,” says Chancellor Kent, in Denniston v. Bacon, 10 Johns. 197, “has always had a regard for derivative titles, when fairly procured; and though it may be true as an abstract principle that a derivative title cannot be better than that from which it is derived, yet there are many necessary exceptions to the operation of this principle.” In that case, a sale under the power of attorney contained in a mortgage, being equivalent to a foreclosure under a decree of a court of equity, was held to give good title, notwithstanding the contract upon which the mortgage was given as security, was usurious, and the statute declared the contract and the security given under it, void.

Let it be conceded that, had Green retained the Farnham street property under the reversal by the United States Supreme Court of the decree of the courts of Nebraska, Jones would have been .in as of his former estate, is it because Green was seized of what counsel chooses to term a “ defeasible title,” or because of considerations of convenience, the relation of particular persons to the property at the time, and like matters not growing out of the character or quantity of the estate held by Green ? For it must be admitted, that if the owner of a determinable fee conveys in fee, the determinable quality of the estate follows the transfer. 4 Kent Com. 10. The District Court of Nebraska, with authority unquestioned, had decreed that Brown was the owner of the lot, and ordered that it be . sold. No supersedeas bond being filed to stay the execution of this decree, the sheriff was compelled to sell it. Revised Statutes, Code, title 24, section 775. The title he convoyed was the same quantity that Brown might have conveyed. That, by the District Court, was declared to be the fee simple in a decree which was in full force. It is not disputed but that had a- third party purchased at the sheriff’s sale, instead of a plaintiff in the suit, his title would have been absolute, and unaffected by this reversal. Wood v. Jackson, 8 Wend. 9 ; Woodcock v. Bennett, 1 Cow. 711; Taylor v. Boyd, 3 Ham. 337. This is so by statute, which makes no distinction in favor of'third parties. Code, 508. The deeds given to the party purchaser, and to third parties, are similar. No defeasance is expressed, and a deed cannot be defeated by one not in wilting. Therefore, with the same grantor, a given estate, conveyances identical, and under a law discriminating in favor of neither, it necessarily follows, that the estate passed in either case must be the same. If'there be any good reason why the property reverts from the hands of the purchaser plaintiff, it must be for some other than that he takes, what can legally be denominated, a defeasible title. Judge Lane, in Hubbel v. Broadwell, 8 Ohio, 120, (one of three cases cited in support of the position that had Green retained the property until the reversal of the decree, it must have reverted to Jones), says: “It is the settled policy of the court to protect judicial sales. Where lands have passed by sale under execution, to a stranger to a judgment, the statute compels the owmer of the land, on reversal, to pursue the fruits of the sale in the hands of his antagonist. But when a party to a judgment purchases and continues to hold, this rule does not apply with the same force. The purchaser is a party to the errors, and it seems most consonant with justice, to restore the land itself to its original owner, where it remains between the original parties, and within reach of the court, no new rights intervening.” The statute here referred to, is that of which I believe ours is a transcript. What warrant there may be for a court to override the express language of it, when it declares that “ such reversal shall not defeat or affect the title of the purchaser,” to the prejudice of a party to a judgment, because in his opinion, “ it seems most consonant with justice,” I shall not here stop to inquire. But from the peculiarly guarded manner of expressing himself, it is very certain that the rule here announced was not designed to extend to a case like the present .one, where the property has passed from the hands of the judgment creditor to those of third parties. The language used is u where a party to a judgment purchases and continues to hold ” aud “ where it remains between the original parties and within reach of the court, no new rights intervening.”

The next case, McBlain v. McBlain, 15 Ohio St. 337, is not one of reversal of a judgment, but of au order confirming a sale; a distinction to which some importance is given in the opinion. Even in this case, caution is shown not to extend the effect of a reversal to third parties. Welch, J., who delivered the opinion, says, “ It is enough here, however, to say that the purchaser was not only a party to the sale, but also a party to the suit, and that no legal rights had been acquired by-third parties before the reversal.” In the remaining case, Wambaugh v. Gates, 4 Seld. 138, the doctrine contended for, that title obtained .at a sale under a decree authorizing it, which is subsequently reversed by an appellate court, is subverted by the reversal, is simply assumed, with no argument or authority to support it.

Whatever may be thought of the correctness of the main position asserted in these cases, it does not follow that grantees from purchasing parties stand in the same position, but the contrary is plainly inferable from them. And this is consonant with authority and good reason.

In Lovett v. The Ger. Ref. Church, 12 Barb. 67, the contest was as to who were the rightful officers of a certain church corporation. The first party having, by a decree of the Chancellor, been declared the rightful officers, under authority given them, executed a mortgage and confessed a judgment. After this, the second party appealed from the Chancellor’s decree and it was reversed, and they were restored. In a suit brought to foreclose the mortgage given, while the first set of officers were acting, it was held that such mortgage was a valid lien. The court says: “Indeed, unless the decree of a court of competent jurisdiction protects third persons not parties to the suit, dealing with the successful party on the faith of the decree, no judgment can be of any avail until it shall have received the sanction of the highest tribunal of the land, or until the time for appealing shall have expired.”

The rights of third parties are well expressed by Bronson, Ch. J. in Langley v. Warner, 3 Com. 327. In that case Walsh recovered a judgment against Langley, upon which execution issued and money collected. By agreement between Walsh and his attorney, Warner, the money was paid by the officer to the latter to apply on account for services. On review by the Appellate Coui't, the judgment was reversed and restitution ordered. Langley being unable to collect the money from Walsh, on the order of restitution, brings an action against Warner. Having succeeded in the court below, the case was reversed in the Court of Appeals. The learned judge, in delivering the opinion of the court, among other things, remarks : “I see no principle on which the action can be maintained. The defendant has got none of the plaintiff’s money ; he has got nothing but his own. Walsh had a perfect title to the money when it was collected ; just as perfect as it would have been if no certiorari had been issued. He had a right to do what he pleased with the money, and he made a very proper use of it by paying his debts. The plaintiff has taken up the strange notion that because he was trying to get the judgment reversed, Walsh could not give a good title to the money, especially if he paid it to one who knew what he was trying to do. I am not aware of any foundation for such a doctrine. As Walsh had a good title to the money he could, of course, give a good title to the defendant, or any one else. No one was bound to presume that the judgment of a court of competent jurisdiction was erroneous,- and would be reversed. The legal presumption was the other way, that the judgment was right and would be affirmed. But if the judgment had been known to be erroneous, the pendency of the proceedings in error could not affect, in the least degree, the title of Walsh to the money. Nothing short of a reversal of the judgment could destroy or impair his right.”

In Gray v. Brignardello, in the Supreme Court of the United States, 1 Wallace, 627, it is laid down: “It is a well settled principle of law that the decree of a court which has jurisdiction of the person and the subject matter is binding until reversed, and cannot be collaterally attacked. The court may have mistaken the .law or misjudged the facts, but its adjudication, when made, concludes'all the world until set aside by the proper áppellate tribunal ; and, although the judgment or decree may be reversed, yet all right acquired at a judicial sale, while the decree or judgment was in full force, and which it authorized, will be protected. It is sufficient for the buyer to know that the court had jurisdiction and exercised it, and that the order, on the faith of which he purchased, was made and authorized the sale. With the errors of the court he has no concern.”

Numerous other cases' might be added, some declaring the doctrine generally and without exception;' while all agree that as to third parties, rights acquired under a judgment of a court of competent jurisdiction, are not affected by the reversal of such judgment. Third parties include as well those who may acquire their rights through a party 'to the suit, while the judgment is in force, as those who purchase immediately at the sale. The grantee of such party to the suit buys from one who obtained title through one of the best known sources. At the time of his purchase no appeal may have been taken, and he has no right to expect there will be. If an appeal has been taken, he is not to suppose that the judgment will be reversed, but the contrary rather. Notwithstanding, as in the case of Hubbel v. Broadwell, referred to by counsel, courts may, on'reversal of a judgment or decree, regard it as most consonant with justice to hand back the identical land, if yet in possession of a party; still, until reversal, it cannot be denied that the party purchasing under the decree or judgment has as good a title as a third person, and, if he conveys, transfers as complete a title as would be taken by a third party • directly at the sale. Both parties take under the same judgment or decree, and while it is in full force, the law protects both equally.

In this view of the point raised, Pundt and Koenig took from Green a title to the Farnham street lot, unaffected by the reversal of the decree in the case against Brown and Jones-.

The. discussion under this head, has thus far proceeded upon the assumption, that had Green retained the title to the Farnham street lot until the reversal of the decree under which he bought, Jones would have been in as of his former estate. This was conceded by counsel for appellee, and, as I understand, agreed to by a majority of the court.' As for myself, I prefer to go one step further, and hold that Green, as plaintiff in the suit, under the decree on which he purchased, took a title no more affected by a reversal of the decree than though he had been a stranger. This I regard the better ground, and in harmony with well established principles of law. With the concession, that a stranger to the suit would take a title unaffected by the reversal of the decree, as a legal conclusion, it follows with mathematical certainty, that the party to the suit who might buy at the same time, taking under the same decree and same proceedings and instrument, must take a like title, unless there be some controlling consideration opposed. After some examination, I have been unable to find any such reasons or considerations. Those assigned in the opinion in the case of Hubbel v. Broadwelli supra, seem unwarranted and are far from being satisfactory. There, it is seen, the positive terms of a statute which declares that “such reversal shall-not defeat the title of the purchaser,” are disregarded, and a party to the suit is excepted from its protection because he is “ a party to the errors, .and it seems most consonant with justice to restore the land to its owner.” To say nothing of a want of authority to summarily override a plain statute, is the reason well founded in fact? Is the rule following it a safe one to adopt and apply with the uniformity which should characterize all legal rules ? There is no law prohibiting the party to a decree to bid at a sale under it. He becomes a purchaser, when he bids more than a stranger. If he is not to have the same protection for his title, his bidding is discouraged, and to this extent the defendant, in a decree or judgment, is liable to have his property sold at a diminished price. If the property, as in the case before us, is a building lot, the value of which consists in affording a place to ereet a building, should the party purchaser be required to hold the property at great expense for years perhaps, to await the final result of an appeal before he can make any use of it ? If he is to build, is he to receive any consideration for his improvements ? On the other hand, and it is said to be a poor rule that does not “ work both ways,” suppose the property purchased by him to consist of valuable buildings, which, by accident, have been destroyed, is justice satisfied by returning to the original owner the lots and ashes ? Or should the property be timbered or mining lands, will it do for the party purchaser to strip them of the timber or minerals, and return the worthless soil? I know of no power in a court of equity to stop him who is possessed of a sheriff’s title, under a judgment in full force, from cutting timber or extracting minerals from lands purchased, even though he be a party to a judgment or decree. This must be because in law, he has the valid title. The law has provided against all this by allowing execution to be stayed by a proper bond.

These are but few of many queries which naturally suggest themselves, and which must show the working of such a rule very complicated, and anything but in consonance with justice. No force is given to the rule to say that he is a “ party to the errors.” If it be the errors which invalidate, they must operate against strangers as well.

The real ground assumed is, that as a party in possession it is the easier and simpler way to “ square up,” by handing back the identical land. This we have seen is a very uncertain and inequitable rule. To pursue the fruits of the sale, to have a return of the money for which the property sold, affords at once a fixed and invariable rule, and against which I can perceive no good objection. In presumption of law, the property being sold at public sale, brought its value. The sale was permitted by the defendant by not filing his super sedeas bond. The plaintiff, under the law, is at liberty alike with strangers, to.bid and purchase under the authority of the decree, and should have equal protection. Any errors which may have intervened, are the errors of the court with which he has no concern. In case of no reversal, the defendant is benefited by the plaintiff being a purchaser to the extent that he may have raised the price of the property sold. The only other objection I have heard or have been able to discover, is the loose expression thrown out in some cases where the right of third parties or strangers to the suit are referred to, that such rights are upheld: because such rule is calculated to encourage bidding, from which the inference is drawn, that parties to the judgment are not within the policy. This is fallacious. We acknowledge a sad weakness in solemn decrees and judgments of courts of unlimited jurisdiction, standing in full force, if they are subject to considerations of policy and convenience. No encouragement to bidding is an incident or result following the reliance or confidence which is always given to the face of judgments and decrees pronounoed by courts of competent jurisdiction, while such judgments and decrees stand in force and are unreversed. Such expressions, no doubt, take their origin from Manning’s case, 8 Colee, where it is said : “ If upon his judgment the plaintiff takes out afierifacias, and thereupon the sheriff sells a term for years to a stranger, and the judgment is afterwards revei'sed, the defendant shall only be restored to the money for which the term was sold, and not the term itself; for by the writ the sheriff had authority to sell, and if the sale might be avoided afterwards, .few would be willing to purchase under execution, which would render writs of execution of no effect.” — Bac. Abr. Tit. Ex. 2, Ro. 778 ; Cro. Eliz. 278 ; Moore 573 ; Leon 89 ; 1 Mand S. 425. It will be remarked that the principal asserted here is, that the stranger’s title to the term for years, rests upon the fact that “ by the wi’it the sheriff had authority to sell,” and what is said about purchasers being unwilling to buy if the rule were otherwise, is simply in commendation of the rule, and not the rule itself or the ground on which the rule rests.

This case, it will also be remarked, speaks of the sheriff * “ selling to a stranger” and seemingly makes a distinction in his favor. This is cited in many of the cases which maintain the rights of third parties, or strangers purchasing at judicial sales, and the inference has been drawn from the language used, that parties to the suit fall without the protection given by the law to strangers. Such use has been unwarranted and indulged in without examination. The sale of lands under execution, was unknown to the common law. Such sale would have been an invasion of the foedal principle then existing, which prohibited the sale or alienation of lands. Under the statute of Westm. 2, 13, Edwd. I. C. 18, the writ of elegit was given by which the defendant’s goods were appraised and delivered to the plaintiff. If this were not sufficient to satisfy the judgment then a moiety of his lands were passed to the plaintiff, to hold until out of rents and profits thereof the debt was levied. — 3 Blackstone's Com. 418. We can readily see that where no title passes but the lands are held to satisfy a judgment given, upon a reversal of such judgment, the lands should be returned to the defendant. This is illustrated in Tidd’s Practice, vol. 2, page 1138. “ But if a man recovers damages in a writ against B. and have an elegit of his chattels and a moiety of his lands, and the sheriff upon this writ deliver a lease for years, of the value of ¿650 to him, that recovered per rationable pretiurn et extentum, habendum, as his own term, in full satisfaction of ¿650, part of the sum recovered; and after B. reverse the judgment, he shall be restored to the same term, and not to the value ; for though the sheriff might have sold the term upon this writ, yet here it is no sale to a stranger, but a delivery of the term to the party that recovered, by way of extent, without any sale, and therefore the owner shall be restored. — Bac. Abr. Lit. Ex. 2 Cro. Jac. 246. That it would be otherwise if sold to a stranger who, of course, parts with his money, is true. — Selw. 108 ; Bac. supra.

Without pursuing this discussion further, to me, the rule contended for by counsel, seems without x-eason to sustain it, and no doubt, to a great extent, was induced.by a misapprehension of the authoi’ity cited in its support. The true i*ule, and the one I believe will be established generally, is that the title acquired under judicial sale is equally good, whether taken by a party to the suit or a stranger, and not affected by a l’eversal of the decree or judgment in the hands of one any more than in those of the other.

Counsel makes the further objection, that as vendees in possession under contract with Hughes, and through him under Jones, Pundt and Koenig could not allege their purchase of the oxitstanding titld against him or his grantors. For the pui’pose of answering this objection, we may regard the duties and obligations of a tenant paying rent, and a vendee in possession under a contract for the purchase of the premises the same, resting upon that principle of equitable estoppel which forbids a person denying a title, by recognizing which he was permitted to take possession. — ■ Mattis v. Robinson, ante.

This rule, however, must be confined to the title of the landlord' or person contracting to sell, had at the time such possession is given. Subsequently to making the lease or contract of sale, the lessor or vendor might sell the premises. In that case I see nothing to forbid the tenant or vendee in possession from recognizing or treating with him, to whom • the vendor or landlord had sold. What the vendor could himself voluntarily do, the law can as effectually accomplish in cases falling within its authority. In this case Pundt and Koenig did not question the title of Jones. Other parties did and the court adjudged that he bad no title, and ordered tbe premises sold as being, in fact, those of Brown. After Green had obtained the complete legal title, there was nothing in the way of Pundt and Koenig bargaining with him. It is well settled, that a tenant is not estopped from showing that the interest of the lessor has passed from him by his own conveyance, or by sale under judgment against him. — Bingham on Beal Estate. 210. The tenant himself may become purchaser at such judicial sale. — •Idem. 15 N. Y. 377. It follows, then, that Pundt and Koenig, after the reversal of the decree made in the case of Green and others against Jones and Brown, were possessed of a good title to the Farnham street lot from a source other than from or through Hughes, and that the consideration for which they were to convey to him the Douglas street lot was gone, and they accordingly relieved from their obligation to convey. It was then that Redick and Briggs obtained a release from Jones of his interest in the Farnham street lot. It has been shown that Jones, in fact, had no remaining interest in it. Whether Redick and Briggs knew this, or whether they supposed that by the reversal by the United States Supreme Court of the decx-ee, Jones was iixvested with his original title, it matters not. They bought evidently oxx their own behalf, and not as the x’epresexxtatives or assignees of Hughes. Hughes had years before abandoned his coxx.tract. With this pretence of title from Jones, Redick and Briggs approach Pundt and Koenig axxd obtain the Doxxglas street lot in consideration of their release to them of this assumed interest ixx the Fanxham street lot. Whether Redick and Briggs believed that, through the reversal aforesaid, they were seized of a good title to the Farnham street lot, or whether, thinking it a question of some doubt, the parties compromised up oxx aix axTangement which gave Redick axxd Briggs the Douglas stx'eet lot, or whether knowing they-took nothing under the Jones release, but, using the release as a pretext, exercised sharp j>raclice upon Pundt and Koenig, I deem it unnecessary to inquire ; and,although in getting this property in question they followed in the order of the several contracts enumerated, it is clear Redick and Briggs did not, in fact, act as the assignees of Hughes, following those contracts. They acted independently of them, and while they undoubtedly used a knowledge of them to their own advantage, it is their own good fortune, and cannot avail the appellants.

I have thus briefly reviewed the more important points, presented and very ably argued by counsel. There are other grounds still upon which the dismissal of the bill might properly have rested. At the very threshold of his application to a Court of Chancery, the complainant stood confronted by several rules which have controlled Courts, of Equity in denying relief of the kind sought here. Beyond what would have seemed profitable to him, McAusland performed none of the obligations of his contract with Hughes. The notes expressing the price to be paid for the Douglas street lot, were never paid, not a cent of principal or intei’est. The taxes which he undertook to keep dowxx were left unpaid, axxd the place xvas allowed to be sold axxd had to be redeemed by Pundt axxd Koexxig. More thaxx this, McAusland is sho wxx. to have ,beexx insolvent, axxd had Hughes sought to collect the notes he would have been unsucessful. Again, the property which at the time of makixxg the contract was worth, bxxt $500, and which remained so, or of evexx less value for sevexnl years, afterwards grew rapidly in value till worth several thousand dollars. A Court of Equity will xxot lend-its aid ixx case of gross xxegligeixce. — Dyce v. Ford, 4 Bro. C. C. 497. Nor will it allow pax’ties to lie by, with a view to see whether a contract will prove a gaining or losing bargain, axxd, according to the event, either abandon it,. or considering the lapse of time as xxothing, claim a specific performance, Alley v. Deschamps, 13 Vesey 228, unless the complainant has taken all the pains he could to be ready to carry into execution the agreement, Guest v. Hornfray, 5 Vesey, 822, nor, unless he has shown himself ready, prompt .andeager, Note 2, 5 Vesey 720, Sum. Ed., nor, must there have been a change in circumstances affecting the character and justice of the contract. — Pratt v. Law, 9 Cranch 456 493. The rules as announced in these cases, the record shows the complainant to have violated, unless he stands relieved by the excuse offered by his counsel. That is, because Hughes did not hold the title to the lot which he agreed to convey with warranty, and whether he ever could get it, being contingent upon the suit between Green and Jones, McAusland was excused from paying his notes at their maturity. This hardly satisfies. The suit involving Jones’ title was pending when the several contracts were made. McAusland was constructively advised of it, as there is no doubt he was in fact. He seems to have provided against an adverse determination of that suit by taking the guaranty of Sahler & Co., for some $2,000. The notes were negotiable, which were given on the making of the contract, and had McAusland been of sufficient responsibility they could have been transferred and collected. The prospect of a good title or the guaranty of Sahler & Co., seems to have been a sufficient warrant for him to erect a cheap building on the premises. To my mind all these circumstances are evidence that McAusland well knew the fact that Jones’ title was in litigation, and that he bargained and acted with reference to it. But after putting on a cheap building, and the property not appreciating for a time in value, he no doubt found it profitable and convenient to pay nothing on the purchase price, and to occupy the place for a term of years without the payment of rent and taxes. At last he asks that he be allowed to pay the five hundred dollars, which should have been paid years ago, and take a place worth as many thousand. This would be a good enterprise, and if it could have tbe favor of this tribunal, the courts would swarm with applicants eager to engage in like speculations. The decree rendered in the court below must be affirmed.

Judgment affirmed.