(August Term, 1857.)
In 1844, a parol agreement was made by the defendant to convey a body of land. In 1848, the defendant, in writing, recognised the agreement, and professed a willingness to perform it. After this, the plaintiff removed from the State, and for six years took no steps towards the completion of the contract, during which time the defendant put valuable improvements on the land. In 1854, the plaintiff filed his bill for a specific performance. Held that the plaintiff had laid by too long, and that he was not entitled to a specific performance.
CAUSE removed from the Court of Equity of Haywood county.
Jos. P. Jordan, for the plaintiff.
Baxter, for the defendant.
In the year 1844, the defendant entered into a parol agreement to sell and convey to the plaintiff a small body of land, the subject of this suit, including a mill seat, and, as a consideration, the plaintiff was to give the defendant credit for the price out of a claim for attorneys' fees, which the latter owed the former. In 1848, the plaintiff wrote to the defendant, inclosing him a blank deed, and stating that he wished the matter brought to a close. This letter was accompanied with a survey which the plaintiff had had made by the county surveyor. Upon the reception of this letter, the defendant sent a letter in reply, in which he recognised the parol contract as stated in plaintiff's letter, and professed his willingness to abide by and perform the same, but asked a little time to ride round the premises, to satisfy himself that the survey sent him was accurate. Nothing further was done by either party towards executing the agreement until the year 1854, when the plaintiff demanded a specific performance, and shortly afterwards filed this bill to enforce it.
The defendant answered that, very shortly after the above recited letter was written, the plaintiff removed from the State, and took no steps towards complying with the terms of their agreement, and that he believed from his conduct, he had abandoned all purpose of claiming a fulfillment of their bargain; that acting on this impression, he had, himself, gone on to improve the land, and had expended considerable sums of money in doing so, and insisted that it would be unreasonable at this late day to compel him to make such conveyance.
There was replication, and proofs were taken, which fully sustain the defendant's averments. The cause was set down for hearing and sent to this Court.
The bill is filed to procure a specific performance of a contract for the sale of land. The contract was made in 1844, and was by parol. The bill was filed at Fall Term, 1854, of Haywood Court of Equity. In his bill, the plaintiff states that, in 1848, he made a written demand on the defendant to execute his contract by conveying to him the land previously sold, which the defendant declined doing at that time. The plaintiff soon thereafter, as shown by the testimony, left the State, and did not return until 1854, when the bill was filed. In the mean time, the defendant, as he states in his answer, believing that the plaintiff had abandoned his contract and did not wish to proceed in it, expended a considerable amount of money in improving the land. The plaintiff can not sustain his bill.
When, in a contract, a particular time is specified for the performance of an act, time becomes, or may become, of its essence; if, however, no time is specified, within which a performance is to be made, the party to the contract who wishes to enforce a specific performance, must come forward within a reasonable time to demand it. The contract was made in 1844, and the bill not filed until 1854, ten years thereafter. A portion of this time is not to be counted, to wit, from 1844 to 1848 — four years. From 1848 to the filing of the bill is six years, during which the plaintiff makes no effort to enforce his rights; on the contrary, he leaves the State, and does not return until 1854, just before the bill is filed. The defendant was well justified in believing that the plaintiff had abandoned his contract, and that he was at liberty to proceed in improving the land. It would be doing injustice to the defendant, after such delay on the part of the plaintiff, and after he had dealt with the land as if discharged from his contract, to permit the plaintiff to come forward and insist upon a specific performance. What is reasonable time within which such a claim as this is to be preferred, the Court must decide under the circumstances; and we are of the opinion that the plaintiff has laid by too long, and that he has not preferred his claim within reasonable time. See McDowell and others v. Sims, 6 Ire. Eq. 276. Admitting that the letter of defendant in 1848 bound him, there was nothing to bind the plaintiff, and it would be unreasonable to keep the defendant bound for six years. Mizell v. Burnett, 4 Jones' Rep. 249.
PER CURIAM, Bill dismissed with costs.