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V. AULD.

HEPBURN They say that he had objected that the original patentees were joint-tenants, and that it does not appear that partition was made among them by deed.

To this they answer, first, that after such a lapse of time deed ought to be presumed. And, secondly, that upon inquiry they found that George Muse, Andrew Lewis, and Peter Hog died before 1787; that Adam Stephen died since 1787, and Andrew Waggoner and John Polson were still alive, who made deeds of confirmation to Hepburn and Dundas. That they also obtained a like deed from the residuary devisee of Adam Stephen.

They also state that Auld had objected, that the partition between the devisees of John West, not being by deed, was not valid; and that Francina, although she had consented to take her thousand acres on Pokitallico creek, might yet claim a share of the 6,000 acres.

To this they answer, that a parol partition among the devisees was valid.

They state that it was further objected by Auld, that Sarah Bronaugh had never duly conveyed her 1,000 acres to Hepburn and Dundas, and that she was not privily examined according to the laws of Virginia.

To this they answer, that they believe she was privily examined, but the commission is lost or mislaid so that they cannot find it. And further that Sarah Bronaugh died in 1795, without issue; and Francina, who had intermarried with Charles Turner, died without issue in 1796, and her husband in 1802, by which deaths the interest of those ladies in the 6,000 acres, if any they had, devolved upon their brothers Thomas, John, and Hugh, and their sister Catha ine Dude, whereupon Hepburn and Dundas obtained from John and Hugh, and Bald. win Dade and Catharine Dade, deeds of confirmation as to the shares of Sarah and Francina. They did not get such a deed from Thomas, because he

HEPBURN

had before conveyed to them his interest in those lands.

Auld's answer to the supplemental bill, denies that any division ever took place between the devisees of John West, under his will, and avers that Francina always refused to sell her interest in the Ohio lands to Hepburn and Dundas, and that it was settled upon her husband Charles Turner, who died leaving two children by a second marriage.

That the interest of Sarah Bronaugh never passed from her to Hepburn and Dundas, for want of her privy examination.

That the deeds from Hugh West and Thomas West, were not recorded within the eight months, so as to be valid against creditors or subsequent purchasers without notice. That Thomas was embarrassed in his circumstances for many years previous to his death, and there are still debts due from him by bonds and judgments, which bind any lands which descended to him from his sisters Sarah and Francina.

Swann and P. B. Key, for the appellants.

E. J. Lee and C. Lee, for the appellee.

On the part of the appellants, it was contended,

1. That Hepburn and Dundas had done every thing on their part necessary to entitle them to a specific execution of the agreement, and to compel Auld to accept the land and give a release of all demands of Dunlop & Co. against them.

That they were entitled to such a release upon making the assignment of Graham's contract.

Upon this point the argument took nearly the same course as in the case between the same parties, ante, vol. 1. p. 324..

V

AULD.

HEPBURN

y.

AULD.

They further attempted to show, from the evidence, 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. Longford v. Pitt. 2 Pow. 266. Newland, 230. 236. 238.

241.

Even if in this case time were material, Auld has waived it by his subsequent conduct. He never objected on account of defect of title. He never asked for the title papers till 1804, nor has the defect 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. Warranty.

A deed of partition between the original patentees

ought now to be presumed after thirty-six years' possession in severalty. Sug. 213. 4 Term Rep. 482. Cowp. 216, 217.

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

For the appellee, it was said,

He does not come

That Auld is a defendant. here to ask any thing. A court of equity will not decree that to be done which in equity 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 his 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 vendec 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.

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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

V.

AULD.

HEPBURN Virginia, could make partition by parol since the statutes 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 Contracts, 206, 207. 227. Sugd. 90, 91.; 2 Pow 19. 4 Ves. jun. 849. 5 Ves. 1 H n. & Munf. 131.

37. 69. 75. 79. 221. 267.
3 Atk. 388. 573

jun. 818.

2 Bro. Chan. Cas. 343. 1 Bro. Chan. Cas. 93. 440.
2 Pow. 14. 2 Ves. 389. Sugd. 165. 5 East, 198.
1 Wash. 14. 1 Vern. 366.
7 Ves. 211.

1 Ves. 319. 1 Fonb. 107.

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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