The Chief Justice delivered the opinion of the court:—
Booth, Chief Justice:
The specific performance of contracts is not a matter of right, but rests in the sound discretion of the court, regulated by general rules and principles, and not dependent upon whim or caprice. [2 Story, sec. 742.]
Where a contract respecting lands is in writing, and is certain, fair, equal and mutual, and founded upon adequate consideration, a [87] court of equity will decree a specific performance. [2 Story, sec. 751; Segden, chap. 4, sec. 2, p. 191.]
But if the intention of the parties, or the motive, inducement or consideration for entering into the contract can he ascertained only by conjecture; or where, by lapse of time, the case is involved in doubt or uncertainty; and generally, where under the circumstances of the case, the court is unable to do exact justice between the parties, a specific performance will not be decreed; but the complainant will be left to his remedy at law. The refusal of a court of equity to interfere, inflicts no injury upon the complainant. The decision in no wise aifects his rights to proceed at law for the recovery of whatever damages he may be entitled to; but is the mere declaration of an opinion that his case is not one where the aid of a court of equity can be invoked. [2 Story, sec. 767, 769, 787.]
The bill alleges that the complainant was in possession of, and had a right or interest in three houses and lots in Milford; one of which was a sadler’s shop; that the defendant on the 13th of July, 1811, instituted an ejectment for one of the lots designated in the bill as No. 3; that pending the ejectment, an agreement of compromise was entered into in writing, between the parties, at the October term, 1813, of the late Supreme Court; the terms of which agreement are, as is alledged, set .forth in the paper writing produced at the hearing of this cause, and signed by the parties, but without any date. The complainant prays an account, from the 1st of January, 1814, of the rents and profits of the premises mentioned in the paper writing; and if the debt is discharged, that the defendant may be compelled to convey the Milford property (excepting the sadler’s shop) to the complainant; and if the debt is overpaid, that the defendant may be decreed to pay the excess.
To decree a specific performance in the case, not only the fact of making the agreement, and its terms, must be clearly ascertained, but the consideration on which it was founded, must be established by distinct and unequivocal evidence: and as the time of making the agreement is a very material fact under the circumstances of the case, the complainant should prove it by unquestionable testimony. The defendant admits the paper writing; but positively denies that it was made or signed, at the time, or for any such purpose, or upon any such consideration, or that he went into possession under it, as is alledged by the complainant. Instead of taking the testimony of Messrs. Ridgely and Clayton, the attornies of the parties, in [88] whose hand writing the paper was drawn up, and who were best acquainted with the circumstances of the case, and might have been examined at the time of executing his commission; the complainant resorts to the testimony of his two sisters; who, after the lapse of thirty years, undertake to fix the precise time, and depose to the making and consideration of the agreement, without any knowledge of it, except what they derived from a conversation between the parties. Independently of the uncertainty of paroi evidence after the lapse of so many years, the testimony of these witnesses is at variance with the acts and admissions of the complainant on the same subject.
In the year 1843, he filed a bill against the defendant for a specific performance of the same agreement, alledging that it was entered into by these same parties in reference to another transaction,, that it was founded upon a different consideration, and made two or three years prior to the time mentioned in the present bill. The former bill states that the complainant’s real property had been taken and sold under execution process, and purchased by the defendant ; that a rule was obtained on the part of the complainant, to show cause why the judgment and execution should not be set aside; that pending this rule, the paper writing upon which the present suit is founded, was drawn up, and the agreement made in consideration of a compromise of the rule. It is conceded, according to modern decisions, that a bill in equity is not evidence against the complainant of the truth of the facts contained in it,, so far as-they may be taken as the suggestion of counsel. But a bill is always evidence for the purpose of proving as a fact, that it was filed or dismissed. And surely in another suit in equity, between the same parties, and upon the same subject matter, the dismissed bill would be proper evidence to prove as a fact, that it contained a certain statement, which, whether true or false, differs entirely from that contained in the bill, upon which the complainant seeks the aid of the court. So also does the recital in the deed from Workman to the complainant contradict his statement in the present bill, and the testimony of his sisters: and accords with the statement contained in the bill which was dismissed. The recital shows that the agreement was entered into in the year 1810, pending the rule to set aside the sheriff’s sale; whereas, the present hill states that the agreement was madó ánd the paper writing signed in October, 1813, pending the action of ejectment, and for the purpose of compro[89] raising that suit. The recital is evidence against the complainant as an admission, but not conclusive, as the defendant was not a party to the deed. The complainant, therefore, had a right to repel or explain the admission; but not having attempted to do either, the statement in his present bill, both as to the time and consideration of the agreement, is not sustained by sufficient evidence, and the subject is left in doubt and uncertainty.
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The Chief Justice delivered the opinion of the court:—
Booth, Chief Justice:
The specific performance of contracts is not a matter of right, but rests in the sound discretion of the court, regulated by general rules and principles, and not dependent upon whim or caprice. [2 Story, sec. 742.]
Where a contract respecting lands is in writing, and is certain, fair, equal and mutual, and founded upon adequate consideration, a [87] court of equity will decree a specific performance. [2 Story, sec. 751; Segden, chap. 4, sec. 2, p. 191.]
But if the intention of the parties, or the motive, inducement or consideration for entering into the contract can he ascertained only by conjecture; or where, by lapse of time, the case is involved in doubt or uncertainty; and generally, where under the circumstances of the case, the court is unable to do exact justice between the parties, a specific performance will not be decreed; but the complainant will be left to his remedy at law. The refusal of a court of equity to interfere, inflicts no injury upon the complainant. The decision in no wise aifects his rights to proceed at law for the recovery of whatever damages he may be entitled to; but is the mere declaration of an opinion that his case is not one where the aid of a court of equity can be invoked. [2 Story, sec. 767, 769, 787.]
The bill alleges that the complainant was in possession of, and had a right or interest in three houses and lots in Milford; one of which was a sadler’s shop; that the defendant on the 13th of July, 1811, instituted an ejectment for one of the lots designated in the bill as No. 3; that pending the ejectment, an agreement of compromise was entered into in writing, between the parties, at the October term, 1813, of the late Supreme Court; the terms of which agreement are, as is alledged, set .forth in the paper writing produced at the hearing of this cause, and signed by the parties, but without any date. The complainant prays an account, from the 1st of January, 1814, of the rents and profits of the premises mentioned in the paper writing; and if the debt is discharged, that the defendant may be compelled to convey the Milford property (excepting the sadler’s shop) to the complainant; and if the debt is overpaid, that the defendant may be decreed to pay the excess.
To decree a specific performance in the case, not only the fact of making the agreement, and its terms, must be clearly ascertained, but the consideration on which it was founded, must be established by distinct and unequivocal evidence: and as the time of making the agreement is a very material fact under the circumstances of the case, the complainant should prove it by unquestionable testimony. The defendant admits the paper writing; but positively denies that it was made or signed, at the time, or for any such purpose, or upon any such consideration, or that he went into possession under it, as is alledged by the complainant. Instead of taking the testimony of Messrs. Ridgely and Clayton, the attornies of the parties, in [88] whose hand writing the paper was drawn up, and who were best acquainted with the circumstances of the case, and might have been examined at the time of executing his commission; the complainant resorts to the testimony of his two sisters; who, after the lapse of thirty years, undertake to fix the precise time, and depose to the making and consideration of the agreement, without any knowledge of it, except what they derived from a conversation between the parties. Independently of the uncertainty of paroi evidence after the lapse of so many years, the testimony of these witnesses is at variance with the acts and admissions of the complainant on the same subject.
In the year 1843, he filed a bill against the defendant for a specific performance of the same agreement, alledging that it was entered into by these same parties in reference to another transaction,, that it was founded upon a different consideration, and made two or three years prior to the time mentioned in the present bill. The former bill states that the complainant’s real property had been taken and sold under execution process, and purchased by the defendant ; that a rule was obtained on the part of the complainant, to show cause why the judgment and execution should not be set aside; that pending this rule, the paper writing upon which the present suit is founded, was drawn up, and the agreement made in consideration of a compromise of the rule. It is conceded, according to modern decisions, that a bill in equity is not evidence against the complainant of the truth of the facts contained in it,, so far as-they may be taken as the suggestion of counsel. But a bill is always evidence for the purpose of proving as a fact, that it was filed or dismissed. And surely in another suit in equity, between the same parties, and upon the same subject matter, the dismissed bill would be proper evidence to prove as a fact, that it contained a certain statement, which, whether true or false, differs entirely from that contained in the bill, upon which the complainant seeks the aid of the court. So also does the recital in the deed from Workman to the complainant contradict his statement in the present bill, and the testimony of his sisters: and accords with the statement contained in the bill which was dismissed. The recital shows that the agreement was entered into in the year 1810, pending the rule to set aside the sheriff’s sale; whereas, the present hill states that the agreement was madó ánd the paper writing signed in October, 1813, pending the action of ejectment, and for the purpose of compro[89] raising that suit. The recital is evidence against the complainant as an admission, but not conclusive, as the defendant was not a party to the deed. The complainant, therefore, had a right to repel or explain the admission; but not having attempted to do either, the statement in his present bill, both as to the time and consideration of the agreement, is not sustained by sufficient evidence, and the subject is left in doubt and uncertainty.
But besides the discrepancy between the complainant’s bill and his acts and admissions, no adequate consideration appears to support the agreement. No motive or inducement existed on the part of the defendant to make it; and no right at law or in equity was surrendered or suspended on the part of the complainant. Why should the defendant have agreed to the terms mentioned to have been made by way of compromise to the ejectment, or of the title to the premises purchased by him at sheriff’s sale ? The judgment and execution under which the sale was made, would have been conclusive evidence against the complainant on the trial of the ejectment. His title, whatever it was, became vested in the defendant, , as purchaser. What was there then to compromise? If Hudson had no title; and the legal title, as he alledges, was in his infant daughter, Betsey Hudson, then about five or six years old; his agreement with Layton could not protect the latter from the assertion of the daughter’s title, at any time during the period of her infancy, or within ten years after her arrival to full age. The case then is simply this. Layton, in the year 1813, when this transaction is said by the complainant to have taken place, having title to the lands under a sale and deed made by the sheriff, prosecuted an ejectment against Hudson to obtain possession, which he must "inevitably have recovered. But he agrees to take possession under the authority of Hudson, and hold as a mortgagee; to treat the lands so purchased by him as mortgaged for the payment of his own debt against Hudson; to apply thé rents and profits in discharge of such debt; and when discharged, to convey part of the premises to Betsey Hudson, who already held the legal title, over which neither the complainant nor the defendant could have any control; and who might at any time during her infancy, or within ten" years after it ceased, have turned Layton out of possession, and recovered the mesne profits for her own use. It is impossible from any evidence in this cause, to determine with certainty, when this paper writing was made; what was its true consideration; or to what transaction [90] it had reference; whether to the ejectment in 1813, or to the rule for setting aside the judgment and execution in 1810. The most probable conjecture is, that it was drawn up as the proposed basis of some ulterior arrangement; which from some cause, now inexplicable, was not carried into effect. ■ The conduct of the complainant accords with this conjecture. He says the paper writing, when signed in October, 1813, was delivered to him, and has been retained in his possession ever since. It does not appear, nor does he alledge, that he ever communicated to his daughter the existence of this paper taken for her benefit, and to which so much importance was attached. She became the wife of Philip Workman, died many years after the agreement was made, and left to survive her an only child, her heir at law, and Workman, her husband; to whom, on the death of the child, the legal title passed, under the intestate laws. After the lapse of fourteen years from the death of Betsey Hudson, the complainant, on the 13th of August, 1841, obtains a deed from Workman for the legal title to two of the houses and lots in Milford. During a period of at least thirty years no demand is made on the defendant for an account, or touching any other matter in relation to this agreement;- either by or on behalf of Hudson, his daughter, her child, or her surviving husband. The whole subject slumbers in oblivion, until the complainant’s first bill is filed in 1843; in which, as in the present bill, he prays for an account, and that the defendant may be compelled to give him a deed of conveyance for the premises in question; at the same time insisting that the legal title had already been conveyed to him by Workman’s deed.
The complainant, therefore, has failed to sustain the case presented in his bill. The time when the agreement was made, the transaction to which it refers, the consideration or inducement for making it, all depend on mere conjecture, and are involved in uncertainty. Accompanying these difficulties, which embarrass the case, is the strong obj ection arising from lapse of time. In such case, where there have been loches and neglect, a court of equity remains passive, without reference to the usual presumption of payment, or analogy to the statute of limitation. It is the established doctrine of courts of equity to refuse their aid, or to interfere, after a considerable length of time, and where there has been a want of reasonable diligence. The doctrine is founded on public policy, the peacQ of society, and the difficulty of doing entire justice, when the [91] original transactions have become obscure by time, and the evidence may be lost, or depends on the precarious memory of witnesses. (See Perkins vs. Cartmell, decided by this court, 4 Harr. Rep. 270, and the cases there cited. Holt vs. Rogers, 8 Wheaton 433.)
Saulsbury and Bates, jr., for complainant.
Layton and Bayard, for respondent.
The opinion of the court is, that the complainant not having made out a case proper for the interposition of a court of equity, the decree of the Chancellor be affirmed, and that the complainant pay the costs.
Decree affirmed.