Buckner purchased from Lyne Shackleford in November, 1797, when the latter had no title to, or interest in the land; Upshaw, the respondent, being the owner. It had been granted to Beverly Roy by the Commonwealth of Virgina, in 1789, and sold by Roy to Shackleford. In April, 1797, Shackleford sold to Upshaw, and directed the title to be made to him. On the 20th of July, 1797, Roy conveyed to Upshaw; and in November afterwards, Shackleford sold a second time to Buckner.

To remedy this defect of title and want of good faith, in April, 1801, Shackleford entered into a covenant with Upshaw, by which the sale to Buckner, of November, 1797, was confirmed; and in May, 1803, Shackleford and Upshaw entered into another covenant, again confirming the contract between Shackleford and Buckner; and which is more specific in its terms than the first, of 1801.

By these contracts alone Upshaw was bound: and on them the bill is founded, and a specific decree asked. They must be taken together: so the complainants treat them in their bill; nor can the court do otherwise.

Upshaw, having stipulated to make title to Buckner, on receiving £420, the purchase money, took an assignment of the covenant 83* *between Buckner and Shackleford; on which it appears by the covenant of 1803, £420 was remaining unpaid.

purchase money from Buckner. The suit failed, because the patent from the Commonwealth of Virginia was void; the country having been ceded (north of the Ohio River) by Virginia to the United States, before the land was granted.

In 1826, Upshaw, on the production of the patent to Roy and his deed, obtained a patent from the United States, in confirmation of the Virginia grant. On this he brought another suit against the complainants; and in 1831 recovered the land. This is the judgment the bill seeks to enjoin.

During all this time, Upshaw was a stranger to the complainants; he set up no claim against them for the purchase money due from Buckner to him; he sought the land, and disavowed that Buckner's contract with the complainants bound him. And so he continues to do. [*84

His principal defense in the answer to the bill is, That having no contract, or privity of contract, with the purchasers from Buckner, he conceives they can have no right to come into a court of equity to enforce a specific performance of the contract with Buckner."

It is manifest that at no time were these complainants afforded the opportunity to pay the purchase money due from Buckner to Upshaw.

We therefore hold, that complainants were in no default prejudicial to their original equities, for failing to discharge, or offering to discharge, the bond of Buckner.

Nor could the complainants be justly charged with sleeping on their rights, had the true state of the facts been known to them. Until 1826, Upshaw was in no situation to comply with his part of the contract; that is, to make title. A court of chancery would have enjoined the payment of the purchase money before the patent issued from the United States-and set aside the contract, if the vendor could not have

It is insisted that a bill for a specific performance of the contracts could not be main-made title. tained until the purchase money was tendered to Upshaw, the vendor; and of this opinion was the Circuit Court; and principally on this ground, taken in connection with other circumstances, dismissed the bill.

We are of opinion that if such a rule exists in any case, it has no application to the one before us. The complainants purchased from Buckner when he had no interest in the land; and at that time they acquired no equity against Upshaw; yet of this fact they had no knowledge, and rested confident that they were occupying and improving the land under a good title. Nor did they have any knowledge of the contracts between Shackleford and Upshaw, after their purchase from Buckner, for many years; probably not until about the time the recovery was had against them in the action of ejectment in 1831. It was not Buckner's interest to give the information; and Shackleford took no further trouble on himself in the matter after 1803; he and Upshaw residing in the remote parts of Virginia, five hundred miles from the complainants.

Upshaw admits, in his answer, that he did not know Buckner had sold the land; or that it was in the possession of the complainants, until about the time he brought his first action of ejectment, in October, 1818: that he sued for the land, because he had failed to obtain the

Neither can this be treated as a stale claim, for another reason. The complainants went into possession under Buckner's deeds, dwelt upon, and in good faith improved the land; and are now seeking to protect their possessions and homes, in affirmance of their deeds.

We also hold that there was privity of contract between Upshaw and the complainants. When he sanctioned Shackleford's contract with Buckner, he became a party to it; Buckner had assigned all its benefits to the complainants, and they must be treated as rightful assignees; with the modifications imposed by the contracts of 1801 and 1803, between Upshaw and Shackleford.

The equitable title being in the complainants by a contract complete in all its parts, they are entitled to a specific decree of course. on principles too familiar to require authorities to support them. On this part of the case the court has had neither doubt or difficulty in arriving at a conclusion favorable to a specific decree.

The complainants being entitled to relief, the next question is, on what terms? For as they ask the active aid of the court to coerce performance of the respondent's contracts, they can only have such aid on the terms that they do him equity. A rule without an ex- [*85 ception, within our recollection. Having dealt

for an equitable title, complainants took it subject to all the equities existing between their immediate vendor, Buchner, and his vendor, Upshaw. It follows they must perform the covenants favorable to the defendant found in the contracts on which they seek relief. Therefore, before Upshaw can be compelled to convey the land, he is entitled to receive the pur chase money: unless his right is cut off by the contract, or has been forfeited by his subsequent conduct.

Kentucky for collection; the agent was fully authorized to receive the money and to make title to the land on its payment; which Buckner evaded, and the contract was put into the hands of another agent, O'Bannon, who collected $200 from Buckner; and in 1814 Buckner was sued in Upshaw's name as assignee, and the suit failed because an assignee could not sue upon such an instrument. During this time Upshaw had no valid title to the land, although there can be no doubt he thought the Virginia patent valid; still he could not have coerced payment from Buckner until 1826, when the patent from the United States was obtained, had the latter resisted payment on this ground. Under all the circumstances we think Upshaw did not forfeit his right to demand the purchase money from the com plainants.

The first objection is, that in the contract between Shackleford and Buckner, there is a power given to the latter to sell; until which time Shackleford agreed to wait for a portion of the money: that is, as to £170; provided the resale was made by the 1st of January, 1799: before which time, the sale was made to some of the complainants. It is true in the nature of buying and selling, that where a power of Shackleford sold to Buckner two tracts of resale is given to the vendee, he has conferred land; one of a thousand acres, and this in on him the corresponding power to receive controversy of seven hundred acres, for the payment. But this could not affect Upshaw's gross sum of £1,020; and obtained £600 on title: Buckner took no interest by his contract Anderson's bond in part payment It is inwith Shackleford; nor did the complainants sisted that this sum must be applied in disacquire any by their purchase from Buckner. charge of the complainants, as seven hundred Their equities originated with Upshaw's sanc- is to one thousand; and that they are only tion, given after the power had expired. He bound for the residue. might sanction the contract of Shackleford with Buckner, or not, at his election; and, of course, modify it to suit his own interest. Having the transaction in his power, he saw proper to become a party to the contract on the terms that he retained a lien on the land for the 30: First, by the covenant of 1801, he bound himself to Shackleford, to proceed against the land if he failed to receive payment from Buckner: and, second, by that of 1803 he bound himself to convey to Buckner on being paid the £420. The bill being founded on these contracts, Upshaw is entitled to be paid the purchase money, irrespective of the stipulation that Buckner was authorized to resell, by his contract with Shackleford.

In the covenants of 1801 and 1803, Upshaw admits that Shackleford sold to Buckner with his consent, and it is insisted for complainants that Upshaw must be held to have authorized Shackleford to sell before the contract of 1797 was made. All the evidence we find in the record of Upshaw's sanction, is found in the contracts of 1801 and 1803; by these he was not bound to convey until he received payment for the land; we think in this inodified 86* *form is Upshaw bound, and that he never intended simply to sanction Shackleford's sale to Buckner.

Next it is contended, respondent was negligent in not collecting a bond upon Coats, on which £250 was due. Upshaw's covenants have no reference to this security. It was delivered over to Shackleford by Buckner for Collection; credit was to be given for the money, if collected, on Buckner's bond. The claim was diligently pursued, but Coats proved insolvent: so that there is nothing in this objection.

Again, it is contended, and with much force, that Upshaw was grossly negligent in failing to collect the £420 from Buckner. He received Buckner's covenant in 1803. In 1804 it was sent by John H. Upshaw from Virginia to

The complainants are compelled to rely on Upshaw's contracts of 1801 and 1803, to maintain their claim to relief, and to affirm them in all their parts. By these contracts it appears the seven hundred acre tract was estimated at £420, and that no part of the purchase money for this tract had then been paid by Buckner: he was concluded from asserting the contrary, and so are the complainants.

*The next question is, from what time [*87 are the complainants bound to pay interest on the unpaid purchase money? They insist from the time Upshaw obtained his patent from the United States, in 1826. Respondent insists he is entitled to interest from the time the debt fell due against Buckner, or the 1st of January, 1799. Until the complainants were notified that, as purchasers of Upshaw's title, they were responsible to him for the purchase money, and recognized as his debtors, they had no opportunity to make payment: as to them, the debt was payable on demand, express or implied. Respondent admits in the answer that he neither pursued the land, or the purchasers under Buckner, until he failed to obtain payment from the latter. His first assertion of claim, was by the suit in ejectment in 1818, after which the purchasers cannot be heard to say, they remained ignorant of the defects in their own title, or of Upshaw's rights; it was imposed upon them to trace up the outstanding equities, favorable and unfa vorable. Had they done so, the contracts of 1801 and 1803 would have been discovered, and the state of the title explained; this complainants did in 1831; and it could have been done quite as conveniently in 1818. We therefore deem the suit equivalent to a demand.

That Upshaw had no legal title in 1818, is no excuse. The complainants entered upon, occupied, and enjoyed the fruits of the land, under his title; and could no more be allowed to disavow it while they remained in possession, than could a tenant for years be permitted to

So in effect, this

2.

*ORDER.

Buchannon et al.

disavow his landlord's title.
court held in Galloway v. Finley (12 Peters, Edwin Upshaw, Appellant,
264). But being remote purchasers of Up-
shaw's title; not from him, but another; and
only bound to pay the purchase money by the
rules adopted by courts of chancery; by the
same rules, the complainants are entitled to an
abatement of interest in part, accruing on
Buckner's contract; and as the right to receive
interest depends on the time when Upshaw no-
tified them that they were held responsible for
Buckner's failure to pay; and the action of
ejectment, of October, 1818, being equivalent
to a demand of payment, legal interest accrued
from that date.

This we deem a well-founded principle, where a personal demand existed upon real security, and is brought forward at a late 88*] *day. Interest may be allowed at the discretion of the court, only from the time of filing the bill, in such cases. The rule is established in the Court of Chancery in England, and can be properly applied in this case. (Pickering v. Lord Stamford, 2 Ves., Jun., 272, 582.) And under similar circumstances it equally applies where mesne profits are claimed. (Acherly v. Roe, 5 Ves., 565.)

[*89

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Ohio, and on the cross appeal by Edwin Upshaw, and was argued by counsel; on consideration whereof, it is now here adjudged and decreed by this court, that the said appeal of Edwin Upshaw be, and the same is hereby dismissed, with costs. Buchannon et al., Appellants,

v.

Edwin Upshaw.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Ohio, and was argued by counsel; on consideration where of, it is now here ordered, adjudged and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby reversed with costs, and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to proceed therein conformably to the opinion and decree of this court.

Cited-1 How., 196; 15 Wall., 379.

We order that the $200 paid to O'Bannon be deducted from the £420; leaving $1,200 due: on this sum interest will be allowed from the 15th of October, 1818, until paid. As the record does not show when the action of ejectment was brought, we assume the middle of JONATHAN STROUT ET AL., Libelants, &c., the month as the true time; the interest to be after the rate of six per cent. per annum.

Appellants,

V.

ers of the ship Louisville.

at anchor damaged by ship under sail.

The purchase money will be apportioned JAMES FOSTER ET AL., Claimants and Ownamong the complainants, according to the original value of the several tracts when purchased from Buckner: and the price paid to Ship him taken as the measure of value. Those claiming under Buckner's vendees will be governed by the same rule, of their vendor's. If the money is not paid in a limited time, sales will be ordered, of all, or any of the tracts, at the discretion of the Circuit Court, to raise the

money.

The injunction at law, in so far as to restrain the writ of possession, will be made perpetual; but will be dissolved as to the judgment for costs, so that an execution may issue to collect them.

The costs of this suit in the Circuit Court will be equally divided between the complainants and the respondent, Upshaw; they paying half, and he the other half; and the complainants will contribute among each other, in the same proportion that they are bound to do in discharging the decree for the purchase money.

The appellee Upshaw will pay the costs of this court.

On the complainants discharging the purchase money, the contract between Buckner and Shackleford will be assigned to them by Upshaw, if he is required to do so; and he will also be decreed to execute deeds to the complainants for the tracts they respectively claim, in such form, and with such covenants, as the Circuit Court shall direct.

The decree of the Circuit Court for the mesne profits, falls of course by the reversal of the principal decree.

If a ship be at anchor, with no sails set, and in a proper place for anchoring, and another ship,under sail, occasions damage to her, the latter is liable. But if the place of anchorage be an improper place, the owners of the vessel which is injured must abide the consequences of the misconduct of

the master.

In this case, the anchored vessel was in the thor

oughfare of the pass of the Mississippi River.

THIS case originated in the District Court of

the United States for the Eastern District of Louisiana, was carried, by appeal, to the Circuit Court, and finally brought here.

*There was much contradictory evi- [*90 dence about some of the facts. Those which were not disputed were these:

The Harriet, a ship of about three hundred tons, sailed from New Orleans for London on the 25th of May, 1836. On the 26th she passed the bar of the southwest pass, at the mouth of the river, and came to anchor. The ship Louisville, of five hundred tons burthen or upwards, was coming in, and a collision ensued between the two vessels. The Harriet was so much damaged that she put back for repairs. Her owners, Jonathan Strout and others, libeled the Louisville. The District Court, after a hearing, decreed in favor of the libelants, and against the ship Louisville, her tackle, apparel, and furniture, in the sum of $2,701.07, and costs of suit. The defendants appealed.

The Circuit Court reversed the decree of the District Court, with costs; and remanded the

diligence on the party in this case; so far as under sail knowingly and voluntarily attempt the Harriet was concerned, the Louisville was to pass one at anchor, and, in so doing, run entitled to the full use of the thoroughfare of afoul of her, and thereby cause her to sustain the pass; the master of the Harriet having ob- loss or damage, the vessel under sail, although structed it, with a full knowledge of the danger she may have used every possible exertion to of doing so, has been guilty of such miscon prevent the damage, but at a time when it was duct as to deprive the appelices of the right of too late to avoid the collision, is bound to pay action against the appellants. Hunt's Con., all the losses sustained in consequence thereof by the vessel at anchor.

230.)

It was insisted by the counsel of the appellees, that the Harriet being at anchor, and the other ship under sail, that the latter was there fore liable. It is true, if a ship be at anchor, with no sails set and in a proper place for anchoring, and another ship under sail occasions | damage to her, the latter is liable. But the place where the Harriet anchored was an improper place, and therefore the appellees must abide the consequences of the misconduct of the master. Wherefore, it is decreed and ordered that the decree of the District Court be reversed, and held for naught, and that the appellants recover of the appellees their costs in this behalf expended; and it is further decreed and ordered, that this case be remanded to the District Court, with instructions to dismiss the

libel of the libelants.

Messrs. Dickens and Hellen for the appellants.
Mr. Core for the appellees.

The reporter was not present at the argu ment, and has been furnished only with the notes of Mr. Dickens

Mr. Dickens laid down the following propositions:

1. The sea is a public highway or thorough fare, equally free to all persons and all nations. 2. All persons navigating the high seas have an equal right to sail through, or anchor in any portion of them.

3. All persons navigating the high seas, as aforesaid, are bound to take notice of all such vessels as may have come to an anchor, and so to navigate their vessel as not to run afoul, or otherwise injure those at anchor.

4. If a vessel under sail runs afoul of a ves sel at anchor in the high seas, the vessel in motion is bound to pay all damages.

|

In support of the fourth proposition, he cited Jacobsen's Sea Laws, edition by William Frick, in 1818, p. 339: "A ship which, under full sail, occasions damage to another which has no sail set, is liable for all damages."

To sustain the fifth proposition he cited Lock v. Seward (4 Carrington & Payne, 106), and Foot and Reynold v. Wiswall (14 Johns., 304): and for the seventh, Jacobsen's Sea Laws, 107, art. 36; 1 Bell's Comm., 580: Story's Commentaries on Bailments, p. 385; 3 Kent's Com., 230; Story as above, 381, 382: Collinson et al. v. Larkins (3 Taunt., 1), Haggitt v. Montgomery (5 Bos. & Pull., 446). Verplank et al. v. Miller et al. (1 Moody & Malkin, 69), Yates et al. v. Brown et al. (8 Pick. Mass. Rep., 83), Hawkins v. Dutchess and Orange Steamboat Company (2 Wend., 452), Snell, Stagg & Co. v. Rich (1 Johns., 305), Dodson's Admiralty Cases, 471, the case of The Neptune.

*That all possible diligence should have [*95 been used by the Louisville, he cited Story on Bailments, 334; 3 Pardessus, 79, par. 652; 1 Wash. C. C. R., 142; Stone et al. v. Retland (4 Martin's La. Rep., new series, 399); Martin et al. v. Blythe (1 McCord, 360).

The court being equally divided, the judg ment of the Circuit court was affirmed.

ORDER.

This cause came on to be heard on the tran

script of the record from the Circuit Court of Louisiana, and was argued by counsel; on consideration whereof, it is now here ordered. decree of the said Circuit Court in this cause adjudged and decreed by this court, that the be, and the same is hereby affirmed, with costs.

the United States for the Eastern District of

Cited-14 How., 538; 23 Wall., 14; 7 Otto, 315; Abb. Adm., 241; 1 Cliff., 413: 3 Cliff., 638; Newb., 235; 2 Ware (Da.), 361; 1 Abb. U. S., 463; 6 McLean, 230:3 Woods., 667.

OF MOBILE, Plaintiffs,

5. If the universal right of all vessels Davigating the high seas to anchor in any part thereof 94*] has been restricted, either by law or custom, and they are prohibited. from coming to an anchor in certain places, unless at their own risk, it is incumbent upon the party claiming the benefit of such restriction or prohibition, to MAYOR AND ALDERMEN OF THE CITY prove its existence clearly and conclusively; and also to prove, with equal clearness and certainty, the fact that the vessel complained of was anchored in such prohibited place, and that all ordinary diligence was used by those on board of the vessel in motion, to prevent the accident; otherwise, they will not be released from the payment of the damages sustained by

the vessel at anchor.

v.

J. EMANUEL AND G. S. GAINES,
Defendants.

City of Mobile title in lands under Spanish grant.

ters, 261, examined and confirmed.

The case of the City of Mobile v. Hallett, 16 Pe

Under the exception contained in the Act of Con6. The universal right of all persons navigat-gress of 1824, no title passed to the city of Mobile, ing the high seas to anchor wherever they may claiming to hold it under a Spanish grant which where the land was in the possession of a party happen to be, or in any place they may think had been confirmed by the United States. proper, has never been and cannot be restricted, but in certain particular local jurisdictions.

7. And last. If a vessel under sail comes unawares upon one at anchor, they are both bound to use every possible exertion to prevent a collision; and if either is deficient in that respect, it is bound to bear the loss: but should a vessel |

THE

case was brought up by writ of error from the Supreme Court of the State of Alabama, under the 25th section of the Judiciary Act of 1789.

The facts in the case were these:
On the 26th of September, 1807, the Spanish