Lessee of Todd v. Pfoutz

The court said, that facts had not been sufficiently disclosed, to enable them to form an accurate judgment on the point submitted to them. It was hardly possible to believe, that no communications had passed between the vendor and his representatives, and the defendant, on the subject of their purchase, *for above seventeen years. Had no money been paid or tendered ? Had no further time for payment been [*179 given ? Had no money been demanded ?

The cases in England are not strictly applicable from our local situation. European lands are more stationary, and do not rise so rapidly in value as in a new country : and it will become a question of moment, how far the English decisions should be adopted, on agreements of considerable standing, where little or no money has been paid, and the state of property has greatly altered. Every case must depend on its own particular circumstances. It is always discretionary in a court of equity, whether they will decree the specific performance of a contract or not. *1794 Bro. Cha. Rep. 87. 1 Ves. jr. 565. Where trifling or backwardness has been shewn in the performance of an agreement, a specific execution will not be decreed, especially if circumstances are altered. 1 Fonbla. 384. 5 Vin. 538, pl. 18. But the prevailing distinction in equity, as to compensation for the breach of a condition, has been justly stated by the defendant’s counsel. Yet notwithstanding this, shuffling off payment of the money and delay, will excuse from the specific execution of articles; (2 Equ. Ca. Ab. 688, pl. 5) and where either party has been guilty of gross negligence, the court will not lend its assistance to the completion of the contract. 4 Bro. Cha. Rep. 497. If part of the consideration money has been paid on an agreement for the sale of land, it will not be vacated by default of payment of the residue. 2 Wms. 66. 3 Wms. 187. We believe, it will be found on examining the books, that in almost all the cases, where equity has refused to interpose their aid to complete an agreement, either circumstances have greatly altered, or there have been no bonds given, money paid, full possession delivered, or valuable improvements made. Here bonds have been given with warrants to enter up judgments, whereby the seller might have enforced the payment of his debt, complete possession delivered, and permanent valuable improvements made, at a great expence. Still we deem it most eligible, in the present state of the facts, to give no decided opinion. The ends of justice will be fully answered by taking a verdict for the plaintiff for the premises and judgment thereon, with a stay of execution tmtil the 1st November next. Let this judgment be subject to defeasance on the payment of the sum justly due under the articles, with interest and costs, before that day. If not then done, let the judgment be peremptory.

The parties acquiesced in the recommendation of the court, and a verdict was taken accordingly.