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comply with his contract. (Wilson v. Tappan, 60. Rep.. 175.)

Upshaw could not demand either money or land, until 1826, for he could never before that day make a title. And up to this moment he cannot perform that very contract, with which | he is connected as assignee-the contract between Shackleford and Buckner. If these complainants are to pay the purchase money for Buckner, they can only be asked to do so upon having the benefit of that contract and a performance from the other party. Shackleford stipulates to make Buckner a warrantee deed, and that deed Upshaw has not yet produced. If Shackleford is dead, we must have such a deed from his representatives as binds his estate. Upshaw's deed will not satisfy the contract. We do not know what he may have done to encumber the title, or how safe we would be with his warantee. We are not bound to take it as of course.

69*] *Further, before Upshaw could rescind the contract and take the land, he must place us, as Buckner's assignees, in statu quo. He must give us the claim on Coats; he must transfer to us the claim on Buckner; and he must pay back, to us the money he received from Buckner.

Lastly. The contract for the one thousand seven hundred acres is one; it must be rescinded in foto, or not at all; and as to the one thousand acres it can never be rescinded, for that part of it is performed.

III. If the court require the complainants to pay the Buckner debt, a question arises, whether a pro rata allowance be made for the 2000 paid by the Anderson bond.

It is clearly right to allow that credit. Shack leford sold to Buckner two tracts as one, for an entire consideration of £1,020. The contract speaks of the two tracts; that is, the tract of one thousand acres, and of seven hundred acres, "as the one thousand seven hundred acres,” There is no price fixed for one as distinct from the other; the sale is in solido. The £600 is paid and indorsed generally upon the contract. No application was made to one of the tracts by the parties at the time of the payment. In deed, without the concurrence of both the parties, such special application could not be made. The contract did not admit it, for here was no case of two debts, or of two tracts of land, with distinct sums due for each. There was but one debt, due for two tracts of land, sold as one. IV. As to the rents and profits and improvements.

I: the court are of opinion that Upshaw is entitled to the land, the remaining question is upon that part of the decree of the Circuit Court which touches the allowance to be made to Upshaw for rents, and to the complainants for improvements.

The decree gives to the complainants their improvements made up to the year 1818, without interest; and to Upshaw the annual rents and interest from 1818 to 1840, by which, in addition to the land, now worth from $15,000 to $20,000, Upshaw recovers a decree against the complainants for $4,762.30, being a little more thin the balance due upon the Buckner debt! We claim the true rule to be, to allow improvements up to the time of bringing the ejectment upon which the land was recovered, and to charge rents from that time.

*This is according to the rule fixed by [*70 the occupying claimant law of Ohio. It is said that law does not apply to this case, as the title of the complainants is not adverse to that of Upshaw.

It is shown that the complainants took the possession under a claim of the fee, having paid their vendor in full, and taken a conveyance in fee. They did not hold in subordination to any one. Their possession was therefore adverse. (Jackson v. Ellis, 13 Johns., 118.) The occupying claimant law, therefore, furnishes a rule of adjustment which this court will follow. (Bank of Hamilton v. Dudley's Lossee, 2 Peters, 526.)

Messrs. Morehead and Cor argued for the appellee upon the following grounds: The appellants have not sustained by proof the material allegations in their bill.

1. The appellants in their bill charge that Shackleford was authorized by the appellee to sell the land to Buckner; the answer negatives the allegation, and there is no proof contradicting the answer.

2. The appellee, however, admits that in 1800 he gave his conditional assent to that sale; and if the condition had been complied with on the part of Buckner, his assent would in equity be construed as having relation back to the time of Shackleford's contract with Buckner, and have bound him to convey the land. The conditions on which his assent to that contract was obtained are, Shackleford agreed to assign him the contract made with Buckner, and give him full power and authority to receive from Buck ner the £420 then due for the land, with interest thereon, at the rate of 5 per cent. per annum, from the 1st day of December, 1797, till paid, and Buckner was to pay him the money thus due; and, on those conditions being complied with, the appellee assented to the sale, and bound himself to convey the land to Buckner.

3. The conditions on the agreement to perform which the assent of the appellee was ob tained, as aforesaid, so far as the same were to have been performed by Shackleford, were never performed by him until the 16th of May, 1803. Until those conditions were performed by Shackleford, the appellee had no power or

authority to apply to either Buckner or [*71 Coats for payment, or to receive and receipt for the purchase money, if the same had been tendered to him. The written order on Copeland, which Buckner gave to Shackleford, to which we have already referred, was never transferred by Shackleford to the appellee; so that the appellee never had anything to do with the collection of Coats's bond, or any authority to receive the money due thereon, had it been collected.

4. That part of the condition, namely, the payment of the £420, with interest, &c., which was to have been performed by Buckner, has never been performed, either by him or by any other person for him. The payments credited on the contract between Shackleford and Buckner, while the same remained in possession of O'Bannon, were never received by the appellee. O'Bannon had no authority from the appellee to receive from Buckner partial payments on the contract. His authority was limited and confined to the receipt of the en

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tire sum due and the delivery of the deed. The allegation in the appellant's bill, that O'Bannon was duly authorized by John H. Upshaw, whom they charge was invested with power of substitution, to receive from Buckner partial payments on said contract, is positively denied by the appellee in his answer, and that denial is fully sustained by the depositions of John H. Upshaw and the receipt given by him to the appellee, for the said original contract left with O'Bannon, and power of attorney dated April 4, 1804, to which the court is respectfully referred. From that denial, and those depositions and receipts, we draw the conclusions: 1st. That the appellee executed a deed to Buckner, as an escrow, and placed the same in the hands of his agent, John H. Upshaw, for the purpose of being delivered to Buckner upon the receipt from him of the £530 98., the purchase money then due on the land. 2d. That, for the purpose of avoiding any difficulty with Buckner respect ing the conveyance of said land, the appellee empowered his said agent, on the receipt of the said purchase money, to execute to Buckner such other or further conveyance or assurance as might be deemed necessary, in order to invest in Buckner a perfect title. 3d. That said agent was not empowered to receive partial payments on said contract, but was limited and confined to the receipt of the entire sum due. The words 72*] in the power referred to in the said receipt are, and to receive of said Buckner the sum of five hundred and thirty pounds," &c., "for the above land." The appellee was willing to confirm the contract upon being paid the entire sum due, but not otherwise. He was not, by the receipt of partial payments, willing to extend the time of payment of the residue to an indefinite period. 4th. That said agent was not, by his principal, invested with power of substitution. This is inferable from the fact that no such power is referred to in the re-, ceipt which he gave to his principal. 5th. That the power given to said agent by his principal does not contain, as charged in the appellant's bill, a clause authorizing him to receive any balance that might be due on said contract, if any was due. 6th. That the power given by said agent to O'Bannon was not greater than said agent himself possessed; for said agent deposes and says, “I certainly did not consider myself authorized to tender Buckner a title until the money was paid, and I certainly did not give to O'Bannon a power greater than the 6th. When John H. Upshaw, as agent of the one possessed by myself." And, 7th. That appellee, afterwards called upon Buckner for O'Bannon was not the attorney of the appellee payment, he acknowledged that the entire sum for the purposes charged in the appellant's bill. was due, and promised to make payment in If these conclusions are sustained by the prem- some short time, if said agent would wait. The ises, it results that O'Bannon had no power de- said agent did wait, as requested, but no payrived from the appellee to receive partial payments were made to him by Buckner. ments on the contract, and that the credits indorsed on said contract by him must be laid out of the case. The onus of sustaining O'Bannon's authority to receive partial payments rests with the appellants, and they have totally failed in proving the truth of their allegation. The credits indorsed on the contract refer to receipts given to Buckner. The appellants claim under Buckner; why, then, if those payments were made on said contract by the authority of the appellee, do not the appellants produce those receipts, and the authority granted to O'Bannon, authorizing him to receive those

partial payments? The appellants have presented no valid excuse for their nonproduction; and the very fact of keeping back those documents, if such really exist, raises a suspicion that all was not right, and that, if they were produced, they would prove the allegations in their bill to be untrue. The two payments indorsed without the authority of the appellee must, therefore, we respectfully submit, be laid out of the case.

The £600, the proceeds of Anderson's bond, was applied in *payment of the money [*73 due by Buckner to Shackleford on the one thousand acres of land surveyed for Javin Miller, and which was sold by the latter to the former, as aforesaid, and no part of that sum was applied in payment of the lands in question. This position is sustained from the following facts and circumstances:

1st. Shackleford, at the time he contracted with Buckner, was invested with the equitable title to this one thousand acres, but he was not invested with either the equitable or legal title to the seven hundred acres of land in question, and it is therefore reasonable to infer that he applied that sum to the payment of the debt due to himself.

3d. £600 was the precise sum which was to be paid by Buckner to Shackleford for that one thousand acres of land.

3d. In 1803, Shackleford procured Chamberlayne, the patentee of said one thousand acres of land, to execute a deed of conveyance for the same to Buckner, and the said deed and the patent which Chamberlayne had obtained for the land were afterwards transmitted to Buckner, by the hands of the appellee or his agent, John H. Upshaw. Would Shackleford have done that if any portion of the purchase money still remained due to him by Buckner?

4th. When Shackleford, in 1800, first informed the appellee that he had sold to Buckner the seven hundred acres of land in question, and agreed to assign to him the contract he had made with Buckner, he stipulated with him that the entire purchase money was still due for the land by Buckner.

5th. When Shackleford, in 1803, assigned to the appellee the contract he had made with Buckner (for the sale to him of the lands in question), he covenanted with the appellee that there was then due by Buckner, on said contract, the sum of £530 98.

We therefore assume it as an indisputable fact, that no part of the purchase money for the lands in question was ever paid by Buckner, either to Shackleford or to the appellee, or to any other person authorized by the appellee to receive and receipt for the same. No [*74 money was ever collected, either by Shackleford or the appellee, on Coats's bond. The defense successfully made by Buckner in the Circuit Court of Kentucky to the action brought by the appellee, as assignee, to recover the purchase money due on the land, evinced a determination on his part not to perform the

either actually performed or tendered performance on his part, and that the opposite party refused compliance on his part? These principles are so well understood, and have so often received the sanction of this court, that we do not deem it necessary to cite authorities in support of them. We therefore respectfully submit, that were Buckner or his heirs the parties complainant in this suit, that a specific execution of the contract in question would not be decreed by this honorable court.

contract he had made with Shackleford, and, by that unequivocal act, the appellee had a right to declare the contract at an end, and no further obligatory on him; and he did so declare it, and immediately thereafter commenced an action of ejectinent in the seventh Circuit Court of the United States, District of Ohio, against the tenants in possession, who claimed to have derived their title under Buckner. To that Action, the appellants, or the persons under whom they claim, were admitted as defendants, and, on trial, a verdict and judgment were ren- 6. Do the appellants, as against the appellee, dered in their favor, on the ground that the stand upon more favorable ground in a court appellee, who was the lessor of the plaintiff, of equity than Buckner or his representative was only invested with the equitable title under would have stood? No consideration ever and in virtue of the deed to him from Roy, moved from the appellants to the appellee as which was based on a patent granted to him by an inducement to the conveyances asked; they the Commonwealth of Virginia, which bore never tendered, nor do they, in their bill, offer date subsequent to the date of the deed of ces- to pay the consideration money contracted to sion from Virginia to the United States. Being be paid by Buckner. They were not parties thus defeated in every attempt made by him, to the contract made by Shackleford with Buckfirst, to recover the money for which the land ner, and consequently no privity of contracts had been sold by Shackleford to Buckner, and, exists between them and the appellee. Upon second, to recover possession of the land itself, what ground or principle, then, are the appel the appellee procured from Roy and wife a lants, as against the appellee, entitled to the resecond deed of conveyanee, and, in 1826, ob- lief prayed for in their bill? Upon the ground tained from the United States a patent for the of privity of *contract, they are not en- [*76 land, on which he instituted an action of eject- titled to relief, because such privity existed. ment against the appellants, and obtained a The appellants have, however, invoked the verdict and judgment of eviction against them; benefit of the contract between Shackleford and and in order to obtain a perpetual injunction Buckner, which has been assigned to the ap against further proceedings on that judgment, pellee; but can that contract, if it were admitand to compel a conveyence of the lands in ted they are entitled to its benefit, aid them? question, the appellant filed the bill under The terms of that contract were never perwhich the decree complained of was rendered. formed by Buckner. If they are entitled to 4. And the question here occurs, were this a the aid of that contract, it must be on the suit prosecuted by Buckner or his legal repre- ground, that in equity, though not at law, they sentatives against the appellee, in order to com- must be considered as Buckner's assignees, and pel the specific execution of the contract entered consequently, in reference to that contract, as into between Shackleford and Buckner, for the standing in his shoes; and with reference to the sale and conveyance of the lands in question, appellee, as subject to the same equity to which would this court grant the relief asked? Buck it was subject in the hands of Buckner. As ner has neither paid nor tendered payment of the assignees of Buckner, they acquired no the purchase money. Would this court, then, better title in equity than was vested in Buckdecree in his favor? Is it not a rule in equity, ner at the time of the assignment. If, therethat where the party to a contract not only neg-fore, Buckner could not in equity compel the 75*] lects to perform it, but, by his conduct, evinces a determination not to perform it, that the opposite party is at liberty to put an end to it, and that where the purchaser neglects for an unreasonable length of time, although often requested, to pay the purchase money, and in the mean time, as in the present case, the land has increased in value tenfold, that a court of equity will not interpose in his behalf, by compelling the specific execution of the contract? If Buckner had made prompt payment, the appellee could readily have invested the avails of the sale in other western lands, which, at this day, would have been worth thousands of dollars more than the lands in question, with all the improvements which have been made on the lands by the appellants, and have avoided the trouble and expense of many long and wearisome journeys, and the expenditure of thousand of dollars in ineffectual attempts to recover his just rights. Is it not also a rule in equity, that he who asks must himself do equity to him against whom he asks it; and that he who claims the aid of a court of equity must show that he has not only been at all times ready, willing, anxious, and eager to perform the stipulations on his part, but that he has

specific execution of the contract in question, neither can the appellants compel it. The assignee of a contract for the sale and conveyance of land, where he himself has neither performed nor tendered performance, must abide the fate which awaited the assignor, where he neither fulfilled nor offered to fulfil the terms of the contracts, the specific execution of which is sought. In Stanley v. Gadsby (10 Peters, 522), this court is reported to have said, “If a complainant does not aver in his bill his readiness to pay both principal and interest, he can have no standing in a court of equity." The payment or tender of the purchase money is indispensable on the part of him who asks the specific execution of a contract. (Stratford v. Alborough, Ridgeway's Ch. R., and 2 Bligh's R., 596, 4.) Again: both Buckner and the appellants have trifled with the appellee; and it seems to be a settled rule in equity, that where one party to an agreement trifles, and shows a backwardness to perform on his part, equity will not decree a specific performance in his favor. (Harrington v. Wheeler, 11 Ves., 856.) In the case of Edwards v. Parker, lately pending in Brown County, Ohio, which was a bill to enforce the specific execution of a contract, the Supreme

Court of the State refused to decree in favor of the complainant, on account of the lapse of time since the contract should have been complied with. (S. P. Mayo v. Deschamps, 13 Ves., 25; Grant v. Humphrey, 8 Ves., 815; and Highby v. Whittaker, 8 Ohio, 201.) In this last case the purchaser of the land delayed payment of 77*]*the principal part of the purchase money for about ten years after it was due, and the court decided that he could not compel, in equity, the specific execution of the contract; that the trifling indisposition of the complainant, his want of integrity and intention to pay for the property, and his utter inability to do it, un questionably gave to Burchard, under whom Whittaker claimed, the right to put an end to the contract; and that as the complainant had occupied the land sold, the fair rent of which was equal to the actual payment made, Brunce, the seller, had a right to rescind without offer ing to refund the amount received. (Sce, also, Remington v. Kelly et al., 7 Ohio R., 103.) It is now more than forty-one years since the purchase money for the lands in question fell due, and during that whole period neither Buckner nor the appellants have either paid or offered to pay the purchase money; upon what ground, then, can they insist that the decree is erroneous? Every man is to suffer for his own delay or neglect. (Speake v. Speake, 1 Ves., 217.) The plaintiff in equity, if he either will not, or, through his own negligence, he cannot, perform the whole on his side, has no title in equity to the performance of the other party. (Butcher v. Hinton, 1 Ch. Ca., 302; Keen v. Stukely, Gil. R., 155; Pope v. Roots, 7 Bro. P. C.. 184; Earl of Evershap v. Watson, Rep. Temp. Finch, 445; 2 Freeman, 35; Hutton v. Long, Temp. Finch, 12.) So, if the plaintiff has not performed his part of the agreement, he must, in equity, show that he was in no default in not performing it, but must also allege that he is still ready to perform it. (Fields v. Hooker, Merivale, 224; and Fane v. Spencer, Merivale, 430, in note.) And upon this reasoning it is. that when a man has trifled or shown a backwardness in performing his part of the contract, equity will not decree à specific contract in his favor, especially if circumstances are altered. (Hayes v. Caryll, Jan., 1792; 5 Vin. Abr., 538, pl. 18.) Neither will equity decree an agree ment which appears afterwards to have been discharged by parol, though the original agreement was in writing. (Goman v. Salisbury, 1 Ves., 240; Lord Milton v. Edgworth, 6 Brown, P. C., 580; Segal v. Miller, 2 Ves., 299; Inge v. Sippingwell, Dick.. 469; Daved v. Simonds, 1 Cox's R., 406; and Stephens v. Cooper, 1 Johns. Ch. R.,420,430.) In the case of Heafly v. Hill, the specific performance of an agreement to grant 78*] a lease was refused, the plaintiff having failed to file his bill for more than two years since notice from defendant of his intent not to perform his contract, on account of the plaintiff's non-fulfillment of his part of the agreement. In this case, at the time of service of the declarations in the first action of ejectment brought by the appellee against the appellants, the appellants had notice that the appellee did not intend to perform the agreement in question, on account of the neglect of Buckner in not paying the purchase money due on the land; and yet no payment or offer of payment

2d.

was made by them, nor did they file their pressent bill until more than ten years had elapsed after the receipt of actual notice that the ap pellee considered the contract at an end, and no further obligatory on him. Even in the bill which the appellants have filed (but which they never filed until all their efforts to baffle the appellee at law had failed), they have not tendered payment of the purchase money, unless that clause in the prayer of their bill which asks for a decree upon such terms as the court may seem just can be construed as an offer to pay the purchase money due, with interest. To construe that clause in the prayer of the bill as an offer to pay would be giving to it a construction which is incompatible with the general frame of the bill, and the grounds on which the appellants have based their right to the relief invoked. The appellants have based their right to relief on three grounds: 1st. That Shackleford, or the appellee, neglected to collect the amount due on Coats's bond. If that be not true, that they, or one of them, neglected to collect the purchase money of Buckner. And, 3d. That the appellee never acquired his legal title until 1826. And, first, as to Coats's bond: Were it true, as charged, that it was through mismanagement or omis sion of Shackleford, or the appellee, or both of them, that Coats's bond was not collected, would the condition of the appellants be improved thereby? We think not. The balance due on Coats's bond was £250, and the entire sum due was £420. Consequently, there remained due, after deducting Coats's bond, £170, which fell due in 1799. This balance has never been either paid or tendered to the appellee. If, therefore, the balance on Coats's bond was lost through the negligence of Shackleford and the appellee, or one of them, that negligence only operated as a release pro tanto of the obligation of Buckner to pay, or tender payment *of [*79 the purchase money; and from thence it results, as the £170, with interest, was never paid or tendered, that the appellants are not entitled to the relief which they ask. But is it true that Shackleford and the appellee, or one of them, had the management of the claim against Coats; and that, through their mismanagement or neglect, or the mismanagement or neglect of any of them, said claim was lost? Coats's bond was never assigned by Buckner to Shackleford; nor did the parties stipulate that Shackleford should have the management or control of the suit which had been ordered on that bond. The stipulation on the part of Shackleford was to wait for the amount due on Coats's bond until judgment was obtained thereon. That stipula tion was coupled with this condition, namely: that Buckner gave to him an order in writing, on the attorney in whose hands Coats's bond had been placed for collection, requesting him to pay over the money to Shackleford, when collected. Buckner did not give the written order which he covenanted to give, but gave to Shackleford an order of the description promised on Copeland, who never was employed, nor ever had anything to do in the collection of Coats's bond. Buckner's covenant was there fore broken; and so much of the purchase money as was to have been paid by the proceeds of Coats's bond became due on the day the contract between Buckner and Shackleford was

executed. But if this be deemed too rigid a construction of Buckner's undertaking, as it respects the order, in writing, he obligated himself to give to Shackleford, yet it is clearly discoverable from the words as well as from the general scope and design of the parties, as expressed in the contract, that Shackleford only stipulated to wait for the £250 until judgment was rendered on Coats's bond. That judgment was rendered in May, 1800, and on that day, at all events, the remaining balance of the purchase money of the lands in question fell due. Buckner was informed by Shackleford when judgment would be rendered, and that Coats intended to enjoin the judgment. The evidence shows that neither Shackleford nor the appellee had any management or control of the suit on Coats's bond: that neither of them were guilty of any mismanagement or neglect in relation thereto; that the attorney having the management of that suit procured judgment to be rendered thereon at as early a day as practic80 Jable: that, after judgment, every reason able effort was made to enforce collection, but without effect; that the insolvency of Coats was ultimately ascertained; that, from weigh ng the evidence with care, the inference is strong that Coats was insolvent in 1797, and that Buckner was duly notified of the result. We therefore respectfully submit, that the first ground assumed by the appellants, on which they assert their claim to relief, has no solid base on which to rest. Their second ground is equally unsustainable. What has the solvency or insolvency of Buckner, at certain periods, to do with this case? He stipulated with Shackleford to pay for the land a certain amount, and within certain periods-uncertain, it is true, at the time of contracting, but which were rendered certain by the happening of the events referred to in the contract. Shackleford waited until those events happened. The £170 fell due at all events in 1799, if not before, and the £250 in the May following, when judgment was rendered on Coats's bond. Shackleford did not stipulate to wait for the purchase money longer than those periods. If not paid then, he had a right to put an end to the contract. There is no clause in the contract which required him to sue for the purchase money in case Buckner failed to pay within the stipulated periods. It was therefore optional with Shackleford, on Buckner's neglecting or refusing to pay within the stipulated periods, either to put an end to the contract or to sue for the money due. If Buckner was able to pay, why did he not pay? Until he made payment, the equitable title to the land purchased, or rather contracted for, did not vest in him. There was no considera tion to raise a case in him. If he was able to pay, why did not the appellants compel him to make payment? Why did they not see that the money they had contracted to pay Buckner for the land was applied to the payment of the purchase money which Buckner had contracted to pay Shackleford? The appellants claiming under Buckner are chargeable with notice of the fact, that he only held title under his contract with Shackleford, which obligated him to pay £420, with interest, before he could demand of Shackleford the legal title. Was it Bot, therefore, their duty to have seen that the purchase money paid by them was faithfully

applied to the payment and discharge of Buckner's contract with Shackleford? Buckner's solvency or insolvency has therefore nothing to do with the case. The consideration [*81 has never been paid or tendered, and consequently the appellants have no right in equity, as against the appellee.

But it is also insisted that the appellee never acquired the legal title to the lands in question until 1826; and consequently, until he did ac quire the legal title, that neither Buckner nor those claiming under him were bound either to pay or tender the purchase money. But did they either pay or tender the purchase money when the legal title was obtained? No; they neither did the one nor the other. How, then, are they entitled to relief on that ground? They did not offer to do equity when every shadow of suspicion was removed from the appellee's title. But did the defect in the appellee's legal title excuse them from the strict performance, or at least a tender of performance, of the original contract between Shackleford and Buckner? We think not. The appellee's equitable title was perfect, and he, as well as Shackleford and Buckner, believed that he was also invested with the perfect legal title, in virtue of the deed of conveyance from Roy, who had obtained a patent for the land from the State of Virginia. The attorney who instituted the first action of ejectment for the appellee, and the appellee himself, must have been impressed with the belief that the appellee was at that time invested with the legal title, otherwise the conduct of the attorney was dishonorable and dishonest, and that of the appellee simple and foolish. Upon comparing dates, it was found that the patent had issued since the date of the deed of cession, and consequently that the appellee was not invested with the legal title. Did that discovery excuse the appellants from paying or tendering the purchase money, in pursuance of terms of the original contract? lants either did or did not know, at the time the purchase money fell due, that the appellee was not invested with the legal title. If they did know, it was their duty to have tendered the money, demanded a good title, and, at the same time, to have informed the appellee of the defect which existed in the title; and, on the other hand, if they did not know of the defect, they have no excuse for the neglect in making payment. The appellants have presented no valid excuse for the nonpayment or tender of the purchase money, and consequenly are not entitled to the relief claimed.

the

The appel

*The conduct of the appellants, evinced [*82 by the institution and prosecution of their separate suits, in Clermont County, against the appellee, to which we have referred in the abstract, at the time this suit was pending in the Circuit Court, does not present them or their case in the most favorable point of view before a court of equity.

He who asserts a claim in a court of equity ought to present himself with clean hands and a pure heart, if he expects to receive a favorable response to his petition.

Mr. Justice CATRON delivered the opinion of the court:

This is an injunction bill, to restrain the defendant from taking out a writ of possession

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