majority">McGirk

delivered the of the court.*

The points made by the appellant, are 1st. That the sheriff’s sale to Wash, and the deed under it ought to be set aside and held of no effect. 2nd. That if the court refuse to set aside the deed of the sheriff to Wash, on account of the irregularity and injustice of it, yet Wash must be held as a trustee invested with the legal title, first to satisfy Bryans’ and Dent’s judgment; and then to the use of Geyer and his creditors, or rather of his creditors. 3. The transaction may be considered as a mortgage; Wash in the first instance was a mortgagee, holding the legal title, subject to redemption, and having acquired it for the express purpose of securing certain debts. Ferguson also, after the legal title was conveyed to him, may be considered in the same light.

1st point. The reasons assigned for maintaining the first point, are first, that the judgments of Bryans, Dent and Turner, being by confession before the clerk, are nullities. And secondly, that no executions can issue .on such judgments; and thirdly, that Carr ordered his judgment to be returned; and Chenier had never ordered his execution out: and that the other two judgments were of date, subsequent to that of the deed, and therefore had not the priority of lien.

a judgment by confession before ¡°16* a® the statute8winch authorises sue _

L It lias been decided once, that a judgment by confession before the clerk of the circuit court, is legal — see Finley and Bryson, admrs. Caldwell, 1 vol. Mo. decís, p. 512. The court being willing to hear argument again on that subject, it was contended.that, by- the fifth article of the constitution of this State, the judicial power, as to matters of law and equity, shall be vested in a supreme court, in circuit courts, and in such inferior tribunals, as the general assembly may from time to time, ordain and -tablish; and the clerk of the circuit court, not being a judicial officer or an inferior judicial tribunal, within the contemplation of the constitution j any judgment ed before him, would be void. By'the act to establish circuit and county courts, passed 28th November 1820, the office of clerk of the circuit court is created; the 14th section of that, prescribes his ministerial duties, and then declares that the clerk of' the circuit court, shall have power and authority, to enter up judgments by confession, in time of vacation, by the defendant and plaintiff, his attorney or agent, appearing in their proper persons, and the defendant acknowledging that he justly owes the debt; and the said clerk, shall-accordingly issue execution upon each confession of judgment, in the same manner as though judgment 'had been obtained in open court.— Had the clerk been authorised to call parties before him, and to hear and decide causes, little doubt could be entertained, that the act of assembly, so far as it confers this power, would be void. But in matters of contract, it may be safely assumed as a truth, that any man of mature age may renounce the law made in his own favor. This power conferred on the clerk,, seems granted for the ease and convenience, both of debtor and creditor: the creditor is better secured, and the debtor has it in his power to make his terms with his creditor, and give him a judgment at a very inconsiderable expense. However excellent the trial by jury may be to settle disputed facts, it can’t be doubted that it is better that debtor and credit- or, when they can do so, should settle their affairs between themselves, than by the intervention of a court and jury. It is argued that great frauds and impositions might be practised in such proceedings before a clerk, a man for the most part, unskilled in law, and always discharging those duties in private. It might be asked whether fraud cannot enter the court house in term tin^e, while the most enlightened and upright judge occupies the bench? and whether it is not expected even there, that each suitor should attend to his own interests ? But *403if this argument avail any thing, it would equally serve to prove that deeds of trust, made for example, by A. to B. to secure to C. the payment of a sum of money, to be paid on a given day, with power to sell, in case of non payment, ought not to be tolerated; yet, throughout out* country, it is common to transact business m this wayv and the legality of such deeds has not yet been questioned. The deed of trust too, is a private transaction.— The judgments confessed by the debtor, before the clerk, an officer known to the law, and who is selected for his abilities and integrity; the debtor being present, one would suppose, would be much less liable to be infected by fraud. If it be admitted, that a man, who is permitted by the law, to manage his own business, without the intervention of guardian, ought not to confess a judgment before, a clerk of a circuit court, because frauds might be practised on him; it might successfully be contended, that for the same reason, he ought not to give a bond, execute a mortgage deed, or indeed, to make any contract, except before the circuit court. For a man wants time only, to obtain judgments pnany contract of any nature whatever; but that judgment, whether confessed before a clerk in vacation, or rendered by the circuit court, will be equally vitiated by fraud in obtaining it. A judgment confessed before a clerk under our statute, is the conclusion of law on a contract acknowledged of record; and so far as public convenience, ought to be regarded in deciding on the constitutionality of the act, permitting such judgments to be confessed, it would seem that they to be favored.

The circuit court judgmentíitsUOh judgments, and thereby alter lime wnen ineu lien would com-Where an atfor- - mey directs an execution to issue, contrary to the instructions of his an¿the sheriff sells prop-necessary, in or-der to affect the aheri^sai^to*8 prove himinform-ed of the fraud of attf-’he atty. for pltfs. i execution, pur-,ases the prop-se, professing tl time to act as a{ntfor his “ nut of their exis. — he holds o^months to giv the def! in exeition time to cu’smd1 widi'a prome in that evento reconvey the ¿F"failing to makeúy tender, he se) the proption tsatisf^the demais of his clientileld, that evideilofVraud theirt of the

*403JBut, another objection to these judgments was, that at a subsequent term entered up as judgments of the circuit court, they became merged in the higher judg-all of them being entered as judgments of that court after the 14th of November 1821, the day when the mortgage of Easton was recorded, then Easton has the first lien. If indeed, those judgments confessed before the clerk be void, no subsequent action of the circuit court can help them. But if, as it has been before decided, they were valid in themselves, then the action of the circuit court on them, can do them no injury; that court cannot, if the act under which they are rendered be make them its

The judgments in favor of Carr, and Chenier were rendered by the circuit court: to them, there is no objection; but it is said that a part of Carr’s judgment being paid, he had ordered his execution to be returned: and *404Chenier had not ordered one out and knew nothing of it. Admitting that it were true, that Carr having’ ordered his execution to be returned, that neither Chenier nor his attorney had ordered out his; and furthermore, that the sheriff, as is now perhaps for the first time contended in Missouri, had no right to sell property to make his fees, how would this effect the purchaser at sheriff’s Bad indeed would be the condition of the judgment creditors, and indeed of honest debtors, if the purchaser were required to look into the correctness of the sheriff’s.conduct in his sales: for there would be few purchasers, and the property would consequently be sold f°r very little. But for what purpose is it that sheriffs are required by law, to give bonds for large sums of money with good security, conditioned that they faithfully form their duties &c. If we advert to the practice under our own laws, the proper question to have Been put to Cheniea-, to prove that the execution was improperly issued, should have been, whether he forbade his attorney to issue one? and even had he done so, it would then have been necessary to affect the purchaser with the fraud of the attorney, by proving him informed of it; nothing of this kind is attempted: and both Geyer and Wash, deny all knowledge of the authority by which it issued; and Geyer positively alleges that the execution was pressed by Chenier’s counsel. All .this however, is immaterial, so long as the defendants are not. implicated in causing the execution to be improperly issued. The execution of Jamison, the complainant observes, is later in date than the mortgage of Geyer to Easton, and consequently adds, the mortgage has the first claim to be satisfied. By the law then in force, an instrument of writing, conveying an interest in land, imported notice of the sale of the land therein mentioned, from the day of recording it only. — See act supplementary to the laws of the territory, establishing a recorder’s office, approved 1st Feb. 1817, p. 119, of pamphlet edition. There were then in the hands of the sheriff, on the day of the sale of this property, three executions, on judgments rendered in the circuit court, on each of which, this property was liable to be sold. But if, as it has been before decided, (see Finley and Brysom, admrs. v. Caldwell, 1 vol. Mo. decisions, p. 512,) the three first judgments aboye mentioned be good, the executions are also: for the defendant, if he had a right to confess a judgment before the clerk, may also lawfully suffer an execution to issue in pursu-anee of the statutary provision. For, to resume the *405comparison of the judgment confessed before the clerk with the deed of trust, if it be found s proper thing that a man should confide to a trustee, the power of selling his property, on conditions prescribed in the deed, to sat-a which he may fail to pay; certainly it could noí; more imprucjent to allow tíre clerk, a public officer, to issue execution, to enable the sheriff to raise money which the debtor had confessed before the clerk to be due. In short, it cannot be doubted, that there would be much less risk to the debtor, whose goods, the sheriff, a public officer, liable to be proceeded against in summary manner by the court for any misconduct in office, and liable also on his bond, than to him whose goods are sold by a trustee. There seems to be no reason why the executions issued on these judgments should not be valid, and the sales under them good. Charges were made that improper means were resorted to by the defendant Wash, to hinder purchasers from bidding at the sale; he denies these charges, and no has been made him.

The second point is, that if the sheriff’s deed to Wash, be not set aside, yet Wash must be held as trustee, invested with the legal title, first to satisfy Bryans’ and Dent’s judgments, and then to the use of Geyer’s creditors.

It is insisted, that Wash made himself trustee,-and re~ ference is made to his answer and to that of Geyer, as wen a¿ t0 {¿e depositions of Dent, Simonds, McAllister Smith. His own answer is stronger against him than the evidence of any of the witnesses. Dent, the one 0f these witnesses perhaps, whose testimony n°t been set out, says he was present at the sale, that Wash was his attorney, and he enquired of Wash as to the payment of his judgment against Geyer above mentioned, and that Wash answered the judgment should be paid. Wash declared at the sale, that he did not wish, t0 purchase the property, that he’would make it satisfy c^ents’ debts, and if he were compelled to purchase it, he would receive the amount of his clients debts, if paid in SO or 60 days, and would convey the property to Geyer or his creditors. Geyer states that he promised to do the same, if the money were paid in a reasonable time, What would be a reasonable time in such a case? There can 110 doubt, that in the purchase of this property, a court of chancery would view him as the agent of his clients, Wm. P. and T. M. Bryan, and Frederick Dent; -an^ as suc^ ^ w011^ be Ms duty, either to sell the prop-erty to raise money to satisfy their judgments if he *406could, or to bold it for their use. He waited it seems by his answer, much longer than he promised, and it is not charged that he sold in less time, than he says he agreed to wait. To show his liability1 in consequence of being attorney, two cases are cited from Johnson’s chancery Reports — the first, Howell v. Baker and Clark, 4 J. C. R. p. 118. The facts were these: Boyd had recorded a judgment against Howell, for $112, 50; the property of Howell being a house and forty acres of land, were ad-vertisedto be sold; on the day appointed for the sale, he paid the attorney of Boyd fifty dollars and the sale was postponed; he paid at another time more money; property was again advertised and sold,-and the attorney became the purchaser for ten dollars. Howell tendered the attorney the balance due on the judgment, together with the ten dollars paid by him. it appeared m evidence that it was worth $2000 when it was sold at tion. That Howell was absent from the State at the time; that it was a stormy day and nobody but the deputy sheriff and the attorney, were at the sale; and that after the sale, the attorney frequently said he would give up the property to Howell, if he would pay the balance due on the judgment, and the ten dollars and compensate him for his trouble. The attorney sold the land to Clark, for $1200, and it ivas decreed that the plaintiff Howell, should have leave to redeem his land, Clark having purchased with notice. The chancellor says the defendant was one of the attorneys to the execution under which the sheriff sold the land; and it might be questioned whether an attorney can in such a case, become a purchaser for his own benefit: he is the agent of the plaintiff and generally has the control of the execution, and may direct the time and place of sale. It is well known that the sheriff receives his instructions from the attorney, and usually follows them under the general regulations the statute, in pressing or in postponing the sale; and as to the terms prescribed and the particular parts of the real estate to be selected. It is dangerous to allow person, who has such a material agency in the sale, the capacity!" of buying in on his own account — he who is intrusted with the business of others, ought- not to be allowed to make that business an object of interest to him self. It tends to abuse and corruption. It is upon this principle, that the assignees of a bankrupt are not allowed to become purchasers on the sale of the bankrupt’s estate, the bringing of it to sale and the time and manner of sale, gre very much in their power. A purchase by *407the solicitor of the assignees, is supposed to be within the mischief of the prohibition, for-he is their agent to direct the sale; and those who have a duty to perform for others, should not in the discharge of that very duty, deal for themselves. Chancellor Kent, then cites English author-to show that purchasers of bankrupts’ estate, at public sale by the assignees or their agent or solicitor, are not valid, but will be considered as made in trust for the persons entitled to the surplus, and be set aside on equitable terms. The purchase by the defendant in that particular case, he declines deciding on the general rule. It was made he says, under special circumstances, which are sufficient of themselves (and particularly when taken in connexion with his character as attorney to the execution,) to constitute him a trustee for the parties, whose interest were concerned in the sale. Boyd, who was plaintiff in the execution, directed the defendant to attend and bid off the property, and the defendant, afterwards confessed to his client that he had done so; and that the deed would be executed to Boyd. He also admitted to Howell, the defendant in that execution, that he had made a temporary sale of the property, to prevent the expense of further advertising it; and that he would give a receipt on the execution as soon as it was paid up. — • These two witnesses establish the fact, that the purchase was not intended at the time, to be absolute, and for the benefit of the defendant. Thus constituting himself'attorney also for the defendant in the execution. Indeed, continues chancellor Kent, such gross inadequacy of price, when taken in connection with the fact, that the sale was on a stormy day, and that no persons were present but the sheriff and the defendant, would well warrant the inference of fraud, on any other grond than the one I have taken. The most reasonable conclusion, and the only honorable one, to the defendant is, that the purchase was intentionally made at the time, in trust for the respective interests of the parties; Howell did nothing, af-terwards, to release his right and discharge the trust. The second authority cited, to prove Wash’s liability, is Arden and others, against Patterson and De Hart. Patterson was an attorney, who had been employed by the plaintiffs in this action, in the cause cited, to prosecute a suit for them: they failed for want of evidence, and were condemned to pay more than three hundred dollars in costs. Patterson however, in consequence of his sitúa-* tion as attorney in that cause, had acquired information, which if it had been communicated to his clients, would *408tiave enabled them to renew their action, with a moral certainty of success. This information he conceals from them, and purchases, for a very inconsiderable sum, their right of action. Chancellor Kent decreed that he should be held' as a trustee for the benefit of his late clients, of the amount he had recovered, in the right of action he purchased of them, without communicating to them the information he had acquired as above mentioned. Another cited from Yesey, vol. 8, p. 337, shows somewhat more than chancellor Kent, in his opinion first above cited, had said that a soliciter to a commission of bankruptcy would not be permitted to bid upon the resale, discharging him'self from the character of solicitor, without the previous .consent of the persons interested freely given upon full information. In the case of Howell v. Baker, 4 Johnson’s ch. Rep. 118, first above cited, chancellor Kent lays down the broad rule. The attorney is the agent of the plaintiff, and generally has the control of the execution; this rule prevails here. Ry special circumstances, in this case of Howell v. Baker, the attorney was made trustee, for the' benefit of the owner of the land sold, who was.defendant to the execution. ' Let us compare the situation of :the defendant in the cause under our consideration, with that of the attorney in the case cited. For there is not only the presumption ,of law that he was agent of his clients, but Dent, one of the plaintiffs in the execution, in his'deposition recognises him as his agent, and asks him before the sheriff’s sale how his judgment was to be satisfied; and but for the defendants answer, that, his judgment would be paid, Dent declared he should have made a bid for the property. The defendant in this cause declared at the sale, his intention to make the property bring the amount of his clients’ judgments, that is, Bryana’ and Dent’s and that he would be glad to receive the amount of his clients’ judgments, either from Geyer or any of his creditors; and that should he become the purchaser, and the amount, of said judgments should be paid to him in fifty or sixty days, he would reconvey to said Geyer, or to any trustee the creditors might name. After the sale, the same thing was repeated to Geyer. He waits a much longer time than fifty or sixty days, the time he had agreed to wait; and learning from Geyer that he could neither raise the money himself nor prevail on his creditors to do it, he determined to sell the property, to raise the money, to send to his clients; and accordingly did sell it. The property was sold at the court house the session of the circuit court. Our law *409leaving to the attorney no power to direct either the time or place of sale, as it appears from chancellor Kent’s the attorney could do in New "fork. Here the attorney having bought the property declares that he will assume the responsibility of holding the property for the useof Geyer 0£ his credltors> B0 or 60 days, and if within that time, he or any of them, will pay him the amount of his clients’ judgment, he will reconvey &c. Instead of 50 or 60 days, he waits 6 or 8 months, and Geyer declares his inability to raise the money, and thejunwil-lingness of his creditors. In the other case, the attorney was directed to bid off the property; and he confessed to his client, that he had done it, and said that the deed shoutd be made to him. He too, promised that the owner of the land sold, and defendant in the execution, might redeem if he would pay the money due on the execution. In good time the balance due was tendered to him, and he refused to accept it; and sold the land for ‡ 1200, for his oivn use. Wash after waiting a much longer time than he had promised, sells the land to satisfy the demands of his clients, the defendant in the execution making him no tender. The presumption is fairly raised, that their judgments are satisfied, for they do not complain; and evidence is given that Turners’s judgment also was satisfied, making a sum of about fj3000, according to the estimate of the complainant’s attorney; and■$2700,according to that of Ferguson, one of the defendants. But it was contended that Turner’s judgment,must in equity,be considered as discharged, because he had once executed Geyer’s chattels and released them without the consent of the other creditors. From the testimony of John Simonds, it appears that in December 1821 or January 1822, an execution was issued on this judgment, in favor of Turner; and that on 28th of January 1822, he returned it unsatisfied, by order of John Smith, who stated that the execution was assigned to him, Smith directing Gsyer’s personal property taken in execution, to be restored to him and released. From Smith’s deposition, taken by the complainant, it appears that in taking this assignment, he acted as the friend of Geyer, and became his security to borrow money to pay Turner the amount of his judgment; and that the assignment of the. judgment was made to him in consequence of his becoming the security of Geyer; and when the judgment was afterwards satisfied, he entered satisfaction on it. The house and lot was sold on the 10th June 1822, and Turner’s first execution being returned on 28th January preceding, another must *410have beéfi issued. To suppose that an execution issued on a judgment and returned as that was, for the ease and comfort of the defendant! and at his probable request, should be considered a discharge (in equity) of the judgment, would be strange indeed. We consider it no discharge, and that Turner’s judgment was for that matter, in full force.

atty> arising gross. inadequacy a* he sheriff’s sale or 1 the sale atauc- ■ trustee for benefit of the dei,s- creditors, takes a g00¿ iegai equitable0 tltlB" Atty, for plaintiffs in execution,purchased at sheriff’s sale, n inorderto raise the money due to deFin execution, to convey the pr nsiderationof11 certain sums paid down and other sums to belaid at conditioned void in case of failure to^ay at faffingto raise the money, applied to ^’forhim*1'and ^ took aXonvey-anee to himself, Fncf tFdef —llar

*410Contrasting then, the conduct of the attorney in the case we are to decidej with that in the case decided by chancellor Kent, it may be said that the one appears wholly bent on raising his clients’ money, with least inconvenience to the defendant, and at the risk of his clients’ displeasure, waits 6 or 8 months for the defendant to pay the amount of his clients’ demands before he sells. While the other disregards the instructions of his client by bidding off for himself, the land which he had been requested to bid off for his client; and when offered the amount he had paid by the defendant in the execution, together with the balance due, he refused to accept it, and sold the land for his own use. It remains tobe enquired, whether the house and lots were sold for a price so inadequate, as to raise the presumption of fraud? It will be remembered that the time and place here, are regulated by law, and are not to be altered by an attorney, or in any way prescribed by him, as we learn from chancellor Kent, they might bo in New York. We have seen, that at the sheriff’s sale, the conduct of the attorney was not proved to be such as charged in the bill. It then is necessary only, to enquire into the' sale at auction. One witness states, that the improvements cost more than ten thousand dollars: other witnesses state that they were worth from six to seven thousand dollars. These last witnesses agree, that at the time of the sale by the sheriff, property sold very low; and that very great sacrifices were made at sheriffs’ sales. One witness, John K: Walker, who says he was deputy sheriff at the time, and whose testimony has before been adverted to, states that the property in question could not in the summer of 1822, have been sold at a higher price than $3500, and probably for not more than $3000. John O’Fallon, another witness, whose testimony has also been adverted to, states that he was acquainted with the property in question, that he frequently attended sheriffs’ sales of real property, and sometimes purchased — property at that time was very low, and the witness did not suppose that the property in question would have brought more than $2500 at sheriff s sale, for cash at that time. Witness stated that *411he called on Ferguson while he claimed that property, to purchase it for a friend, on that friends representation that it could be purchased for $>4000, and on a long credit. His recollection was, that Ferguson said that was the’ price he asked, but he could not wait so long. It would seem that the very circumstance, that Geyer could not raise the money on the credit of his house and lots, to satisfy the executions of the Bryans and of Dent, controlled by Wash, within the time allowed him, viz: 6 or 8 months, ought to repel any presumption of fraud arising from inadequacy of price, when the property was made to satisfy the executions not only of the Bryans and Dent, but also that of Turner, which as has been observed, had been assigned to Smith, and who it will be recollected, was at the time of the sale absent, and had entrusted this with his other business to Ferguson — see his deposition m the bill of exceptions. Seeing then no evidence of- fraud in the conduct of the defendant, either in his conduct at the sale by the sheriff or at the sale at auction, we are led to the conclusion that he cannot be considered as a trustee for the benefit of the complainahtj It remains to be considered whether the complainant can be aided by the terms of the several bonds, made first by Ferguson to Geyer, and secondly, by Collier to the same^ ^d lastly, by Lindell to Geyer.

to raise the necessa-sums, toentitle to¿e°d0¿' applied to c. and at his request, B. 'VÍ° ten promise, that on the payment of £ would convey to him. — Held, after ‘^Pfd °^% <jef, has no claim in equity fora tract, and consequently, his cred-uors have none,

*411After Wash sold to berguson, berguson executed to Qgyer a bond, binding himself to convey the property to Geyer, in consideration of a sum certain paid down, and also, in consideration of certain sums to be paid at times therein specified, conditioned to be void incase Geyer hhled t0 PaY an7 the instalments or interest that might accrue. After some time, Geyer finding himself unable to make the payments, applied to Collier, who paid up f°r him* the money due, and took a conveyance, first from Wash, and afterwards from Ferguson when it was found to be necessary, who executed to him a bond to convey, on con(ptions similar to those contained in Ferguson’s Again Finding himself unable to make the pay-within the times fixed in the bond, he applies to defendant Lindell, and Collier at his request conveys to Lindell. Had the complainant tendered to Ferguson the several sums of money which Geyer contracted to Payen^^e himself to a conveyance of the land, or had he applied to a court of chancery to have the benefit of the bond made by Ferguson to Geyer, offering to pay th8 several instalments as they became due, it might probably have been successfully contended that he might be substi*412tuted to Geyer: but he waits till at Geyer’s instance, the property is conveyed to Collier, and by Collier again to Lindell: as all his title is to be derived from Geyer, if he have no claim either against Collier or Ferguson, the can have

Lindell in his answer states that he paid Colliér for the premises $>3800, and gave Geyer a promise in writing to convey the-premises to him, if he should before the day of May 1828, pay him the sum of |3800, and amount of rent then due. . .

Lindell filed his answer on the third day of April 1828, and on the first day of May then next, Lindell states that-Geyer’s right to purchase the premises ceased. i\o evidence appears to have been given on this point. We are then to take his answer as true, as he was required to state the agreement between him and Geyer.

' Can Geyer himself now come in and compel Lindell to convey to him, on the payment of the purchase money ? ihe case of Benedict v. Lynch, cited by the defendant’s counsel, is in point — see l Johnson’s ch. Rep. 370. This was a bill for the specific performance of an agreement for the sale of land, the plaintiff stated that on the 28th March 1810, he contracted with the defendant for the purchase of land described in the agreement signed by the defendant, which was as follows: That it was thereby agreed between the parties, that the defendant sell to the plain tiff a piece of ground (described therein) containing thirty-nine acres, at fourteen dollars and fifty cents per acre; and upon the following conditions being performed, to wit: that the plaintiff pay to the defendant $250 in one year, (March 1811) one third of the remainder in one year thereafter: one third the next year: and the balance the year following: with interest annually on all the sums; and upon his complying with the payments, the defendant agreed to give a deed. If the plaintiff failed in the payments or any of them, the agreement to be ■ void. That the plaintiff made and delivered to the defendant a counter part of the agreement. That the plaintiff took immediate possession of the land, cleared 8 acres, and built a house thereon; but in consequence of unforeseen disappointments, failed to make his payments; that in order to induce the defendant not to sue him for the purchase money, the plaintiff subsequently to the above contract, agreed with the defendant to clear five acres in one year, and in consideration thereof, the de- -■ fendant promised not to prosecute ' the plaintiff during that year. That he had since procuxed and tendered (in *413January 1814) all the purchase money to the amount of $720, though the whole of it was not due; but the defendant refused to accept the money, alleging that the contract was void; and had brought an action of ejectment against the plaintiff. The plaintiff prayed for an injunction, which was granted, on the plaintiff’s depositing the $720 with the register.

The answer admitted the agreement of 28th March 1810, and that it was without any other consideration therein stated; but denied the delivery by the plaintiff of any counter part of the agreement. The defendant admitted the entry of the plaintiff on the land, and the erections and improvements made by him, which he had used and enjoyed down to the time of the answer, without offering any compensation to the defendant. That he refused to accept the money tendered to him by the plaintiff, in February or March 1814, and to execute any conveyance. The defendant also stated, that in 1811 or 1812, the plaintiff often declared his inability to pay, and disclaimed all right to the premises, and relied wholly on the liberality of the defendant, to permit him - to occupy the premises until the defendant could sell them. That in the spring, 1812, the defendant required the plaintiff to quit the premises; and the plaintiff then agreed that if he might be allowed to occupy the premises for one year, he would clear and fence five acres of the land, to which the defendant assented. But the defendant denied that it entered into the consideration of this agreement, that the plaintiff should not be sued for the purchase money. Other declarations of the plaintiff that he had no claim to the premises, were stated in the answer, and all the facts stated in the answer were proved. The chancellor says, “I have considered this case with great attention, and I cannot discover any just principle arising out of the facts, that will warrant a decree for a specific performance. The bill is founded on an agreement of 28th March 1810, signed by the defendant. only, and by which he agreed to sell the plaintiff the land in question, upon the following conditions being performed at the times stipulated, to wit: (as above stated) under this agreement, the plaintiff entered into possession and made improvements, but he made no payments; and in October 1813, (which was about two years after the first default) the defendant considering the agreement as void or abandoned, sold the land to another person; and in February 1814, thepláintiff filed his bill fora specific performance. I need not stay to 'see how far the *414want of mutuality is applicable to this contract, since the decision can be placed with more satisfaction upon the intrinsic merits of the case. But the point being stated by the •counsel, I am unwilling to pass it by without observing that it has been ruled in several cases, that a bill for a specific performance, will not be sustained the remedy be not mutual, or where one party only, is bound by the agreement. There was an express stipulation in this contract, that if the plaintiff failed in either of his payments, the agreement was to be void. The first xprestion that naturally presents itself is, whether the time Was not here made part of the essence of the contract, and whether ,the contract did not become void on the failure of the plaintiff to make the first payment in 1811. Lord Thurlow is said to have intimated in Gregson v. Riddle, (cited in 7th Vesey, 268) that time could .not be made of ihe essence of the contract even by a positive stipulation ■of the parties; but there was no decision on this point. And in other and later cases, it has been admitted that the parties may make the time of the essence of the agreement, so that if there be a default at the day without any just excuse, and without any waiver afterwards, the court will not interfere to help the party in default. The case is not analogous to that of a mortgage, where .the only object of the security is the payment of the money; and not the transfer of the estate. And it seems to be conducive to the preservation of good faith, and the rights of the parties, that if the contract of the sale, is expressly declared to be vacated on non performance by a given day, that the courts should not interfere as of course, to annul such a provision. The opinion of Lord Loughborough, in Loyd v. Collet, contains a strong and decisive argument upon this point. There is nothing, he observes, of more importance than, that the ordinary contracts between man and man, which are so necessary in their intercourse with each other, should be certain and fixed; and that it should be certainly known when a man is bound, and when not. There is a difficulty to comprehend how the essentials of a contract should be different in equity and at law. It is one thing to say that time is so essentia], that in no case in which the day has been " by any means suffered to elapse, the court would relieve against it, and decree performance. The conduct of the parties, inevitable accideht &c. might induce the court to relieve. But it is a different thing to say the appointment of.a day is to have no effect at all: and that it is not in the power of the parties to contract, that if the *415agreement is not executed at a particular time, they shall be at liberty to rescind it. In most of the cases there have been steps taken. I want a case, he says, to prove that where nothing has been done by the parties, this court will hold in a contract of buying and selling a rule, t¡me js not an essejatial part of the contract. Here no step had been taken from the day of the sale for six months after the' expiration of the time at which the contract was to be completed. If a given default will not do, what length of time will do? An equity arising out of one’s own it is a head of

It Would be impossible for one, resumes chancellor Kent, to add to the perspicuity and energy of this reasoning; and the Lord chancellor in that case, held, that as the vendor had omitted to complete a purchase ior six months, being all that time in default, he was considered as having abandoned the contract; and he said there was no case where no step had,been taken by the one party, and the other had immediately when the time had elaps-r ed, refused to perform the agreement, that a performance had been decreed.

It may then be laid down as an acknowledged rule in the .courts of equity (and so the rule is considered in the elementary treatises on this subject — Newland on contracts, 242 — Sugden L. of vendors, 3rd London edition 268,) that where the party who applies for a specific performance has omitted to perform his part of the contract by the time appointed for that purpose, without being able to assign any sufficient justification or excuse for his delay: and when there is nothing in the acts or conduct of the other party, that amounts to an acquiescence in that delay, the court will not compel a specific performance. This rule appears to me to be founded in the soundest principles of policy and justice: its tendency is to uphold good faith and punctuality in dealing. The notion which seems too much to prevail (and of which the facts in the present case furnish an example,) that a party may be utterly regardless of his stipulated payments, and that a court of chancery will almost at any time, relieve him from the penalty of his gross negligence, is very injurious to good morals, to a lively sense of obligation, to the sanctity of contracts, and to the character of this court. It would be against all my impressions of the principles of equity, to help those who show no equitable title to relief. According to the rule then laid down by chancellor Kent, and so admirably vindicated, even Geyer* himself, if he has not paid the money to Lindel!, cannot *416now enforce a specific performance of the contract to ponvey. What relief then can the complainant expect, who so far from offering to pay Lindell the purchase nioney and rent, chooses to rest the merits of his claim upon frauds imagined by himself, but of which the testimony produced by him, furnishes the court no had the complainant availed himself of the offer which the imprudent good nature of one of the defendants in-'fiuced him to make to Geyer and his creditors, at and immediately after the sale by the sheriff, or had he before any default was made by Geyer in his payments to Ferguson first and next to Collier, applied toa court of chancery, tendering all the money due, little doubt can be entertained that such court would have substituted him to Geyer, so far as to have his mortgage satisfied out of the property, if that had been sufficient. But from some of the testimony given, there is little room left to believe that the complainant would have gained much by the interposition of a court of chancery in this way; and he has chosen to rest his claim on the alleged fraudulent conduct of the defendants.

Many of the arguments urged in this case have not been noticed in this opinion, on account of its great length, and a belief that the law was so well settled in this country that no notice was necessary. Such for instance, as that an attorney for the plaintiff in an execution, cannot bid off property for his client, but will be considered as holding it in trust for both parties in the execution; and the very cases cited to sustain the position show the error. A solicitor to the assignees of a bankrupt, is-virtually counsel both for the bankrupt and his creditors: for he is counsel for the assignees who hold the property in trust. And in the case of Howell v. Baker, above cited from 4th Johnson’s ch. Rep. chancellor Kent expressly recognises the attorney as the agent of the plaintiff, and the defendant Baker had at the sheriff’s sale, where he was attorney to the execution declared himself buying in the property for Howell the defendant. The chancellor, passing on from the consideration of the case of a solicitor of the assignees of a bankrupt, with the impression made by the evidence of the particular case on his mind, might well have, used the ambiguous words on which the counsel for the complainant in this ease rely; although quite a different inference is to be drawn from his positive declaration in the preceding part ■ of the opinion, that the attorney is the agent of the plaintiff, has the control of the execution &c. It cap *417hardly be supposed that any body, but such as are prejudiced by their interests, ever supposed that it was not the right, and sometimes even the duty of the attorney in Missouri, where the place, time and manner of selling* are not under his control, to attend the sale and bid for the property, ’till it brings the amount required to be raised. The argument that the sheriffs have no right to sell on execution to make their fees, is equally novel, and of as little weight, since if it were true, the sale under the execution would not on that account be void, when the execution had been issued to collect the debt as well as costs.

For the reasons above given, it seems the decree of the circut court, dismissing the complainant’s bill, ought not to be reversed. It is therefore affirmed, and the appellees are allowed their costs as well in the circuit court as in this court.

Wash Judge, being interested.

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