Dorsey, C. J.,
delivered the opinion of this court.
That an oral contract for the sale and purchase of the lands, mentioned in the proceedings in this cause, existed prior to the 1st day of June, 1.845, and that it never has been abandoned or rescinded by the concurrence of both parties, we regard as [348] fully and satisfactorily established by the proof in the record before us. And it is equally clear, that a compliance with the terms and condition of this contract, did not take place at the time anticipated by the parties, in consequence of the vendee’s objections to the sufficiency of the vendors’ title; which objections he promised to have removed in a very short time. That both parlies being desirous that the property contracted for should not remain unoccupied and unproductive, during the time about to be consumed by the complainant in perfecting his title, the original contract being left unrescinded and unchanged, except as to the time for its consummation, entered into a subsidiary agreement, whereby it was stipulated, that the defendants should take immediate possession of the property purchased and hold it, as the tenant of James Owings, at the rate of $900 a year, until the objections to his title could be removed; which removal, it was the anticipation and understanding of the parties, could be effected in a very short time. This condition of the parties, with regard to possession, which commenced on the 1st of June, 1845, is satisfactorily proved by two witnesses, Gambrill and Poe, who, in our interpretation of the other proof in the cause, wholly stand uneontradicted. Complainant, after spending much more time than was anticipated, in efforts, (partially unavailing,) for the perfection of his title to the satisfaction of the defendants, received notice from them, in February, 1846, that unless a clear title in the complainant were made to appear, they would give up the contract and abandon the possession of the premises, which they accordingly did, about the 1st day of June, 1846. On the 20th of May, 1846, the present bill of complaint was filed against the defendants, to enforce the specific execution of the contract between them, alleging his ability to give a good title to the property purchased. The defendants having denied almost all the allegations in the bill, have pleaded the statute of frauds, and deny their obligation to accept the title which the plaintiff is able to give them. In proof of his ability to execute the requisite conveyance, the plaintiff has shown a title in Richard Owings for the Guilford Mills, by a deed exe[349] cuted by James Carey, in 1799; and of bis right to the adjoining lands, he exhibits the deed of their former owner, Richard Odie, to Richard Owings and Isaac Paul, as joint tenants in fee, dated in May, 1799. It appears by the proof in the cause, that the property mentioned in both those deeds was, before the year 1813, held, and the mill carried on for the benefit of Richard Owings and Isaac Paul, in the name of “ Owings and Paul” That in or about the year 1813, Richard Owings sold out all his interest in the property to Isaac Paul, who thenceforth held and carried on the same, in his own name, until the 20th of April 1818, when Isaac Paul sold out all his interest, in the premises to Richard Owings, and gave to him a paper, signed by Paul and attested by two witnesses, stating, that Paul had on that day agreed to take 05,000 for his right and interest in the Guilford Mills and the adjoining land, “which is now bound by a judgment held by Mr. Richard Owings, and under execution for the same.” And it was also proved by the said subscribing witnesses, that it was the agreement between the said Richard Owings and Isaac Paul, that the 05,000 were to be credited on the judgments which Richard Owings iiad against Isaac Paul; which credit was then given in Paul’s presence, and Samuel Brown, Jr., one of the subscribing witnesses, who was the security of Paul, paid to Richard Owings the balance due on the judgment. In consequence of this sale, Paul, in less than a month after-wards, delivered the possession of the property to Richard Owings, who, with those claiming under him, have ever since been in the possession and enjoyment thereof. It does not appear that Richard Owings ever executed a deed to Paul, or Paul to Richard Owings. Richard Oioings died about the year 1819, and Paul about the year 1826.
Assuming, then, that the complainant held all the title which Richard Owings would possess, had he lived till the present day, and continued in the uninterrupted possession and enjoyment of the Guilford Mills and the adjoining lands, has the plaintiff such a title as the defendants are bound to accept under the contract in this case, is (he first question which presents [350] itself for our determination? Had the adjoining lands, the one hundred and twenty-seven acres, which were conveyed by Richard Odie to Richard Owings and Isaac Paul, been conveyed to Richard Owings only, as the Guilford Mills had been by Carey, this question ought to be answered in the affirmative. Because no belief can, rationally, be entertained for a moment, that a court of equity, under any aspect in which the fact and circumstances of the case could be brought before it, could sanction the claim of the heirs of Isaac Paul in attempting to assert an equitable title to the property in controversy. In respect to their claim of legal title, it could not be pretended that they had any.
But the deed from Odie did not transfer the one hundred and twenty-seven acres of land adjoining the Guilford Mills to Richard Owings only, but to Richard Owings and Isaac Paul, as joint tenants in fee; and Paul, by right of survivor-ship, became, at law, the sole owner in fee of the land covered by the deed from Odie, and, at law, so continued, notwithstanding the unregistered contracts which had, from time to time, been entered into between him and Richard Owings. It is apparent, therefore, that James Owings, apart from the title claimed by him from long continued possession and the statute of limitations, has, at law, in the adjoining lands, no title. Under the contract with James Owings, the defendants, upon performance on their part, had a right to demand, and were not bound to accept any thing short of an unincumbered legal estate in fee. If authorities be requisite for such a proposition, they may be found in 2 Sug. Vend., 139, where it is said, “if the contract is general, it amounts to an undertaking for the conveyance of a legal estate; and if the seller have no more than an equitable one, the contract is not binding upon the purchaser at law, nor, as we have seen, in equity, if the seller cannot procure the legal title:” and in the opinion of Chief Justice Marshall, in Garnett,&c., vs. Mason, et al., 1 Call, 368, who says: “Both on principle and authority, I think it very clear, that a specific performance will not be decreed on the application of the vendor, unless his ability to make such [351] a title, as lie has agreed to make, be unquestionable.” “He had a right to expect an unincumbered estate in fee-simple would be conveyed to him.” The proviso in the quotation from Sug. Vend., “if the seller cannot procure the legal title,” can be of no avail to the plaintiff. The case before us, is not that of a vendee going into a court of equity to be discharged from the obligation of performing his contract, on the ground that the vendor has but an equitable title, where the court will withhold the relief sought, until the vendor has an opportunity of proceeding in chancery to convert his equitable into a legal title. But it is the case of a vendor, who, (as is assumed,) has gone into equity, to render his title perfect at law, has failed to do so, and dismissed his proceedings for that purpose, and turns round and files his bill in chancery to coerce the specific performance of his contract, and to compel the vendees to accept his title in its then condition.
In behalf of the plaintiff it is alleged, that the possession held by him and those under whom he claims, since the contract, in April 1818, between Richard Owings and Isaac Paul, vests in the plaintiff a clear and unquestionable legal title, which the defendants are bound to accept. In 1 Hopkins Ch. R., 436, Seymour vs. De Lancey, et al., on a bill filed for the specific performance of a contract for the sale of land, it was held, that a “title by adverse possession for twenty-five years would be sufficient, if established, to preclude all other questions.” In 2 Sug. Vend., 125, we find it stated, that “in a case where a close called the ‘Oroyle,’ had always been known by that name, and had been possessed by the seller and his ancestors as part of the estate sold, but no mention was made of it in the deeds by name, and all the other lands were particularly described, the court considered the evidence of title to be merely that of long possession, and held that the purchaser was not bound to accept the title.” And the case of Barnwall vs. Harris, 1 Taunt., 430, sustains the principle, that a purchaser is not bound to accept a title, dependent for its establishment on oral testimony, resting in tiie peculiar knowledge of a single witness. Without attempting to recon[352] cile these authorities, apparently somewhat in conflict; or contending, that no case can arise in which a vendee would be required to accept a vendor’s title, resting entirely for its sustentation on his adverse, uninterrupted and notorious possession for upwards of twenty years, this court will content itself in saying, that the plaintiff in this cause has not shewn himself so entitled to the lands sold, as to authorise a court of equity to decree the specific performance of the contract, and to coerce the defendants to accept the title of (he vendor in the condition in which it is offered.
The facts upon which the appellant asserts the sufficiency of his legal title, are the following paper, and the evidence of the subscribing witnesses thereto, and the evidence of subsequent continuous possession. The paper is in the following terms:
“ April 20th, 1818.
I this day have agreed to take/ $5,000 for my right and interest for Guilford Mills, which is now bound by a judgment held by Mr. Richard Owings, and under execution for the same, and all the equitable right, title and interest I have in the land adjoining, which shall be clear of dower.
Isaac Paul.”
“ Samuel Brown, Jr., Basil Owings.”
This paper of itself, if capable of perpetual preservation, cannot be regarded, either at law or in equity, as transferring any title to the property mentioned therein to Richard Owings or any body else; it is nothing more than the written declaration of Isaac Paul, that he had on that day agreed to fake for it the sum of money he named. But that Richard Owings, or any other person, was in treaty for its purchase, or had agreed to become its purchaser, is a fact of which the paper, per se, furnishes no evidence. The paper alone, as a contract, has no operation, and its character, as such, is only shewn by the testimony of the two subscribing witnesses, who proved that it was intended as an agreement of sale between Isaac Paul and Richard Owings; and that the $5,000 were to be credited on judgments of Richard Owings against Isaac Paul, [353] under which the property was taken in execution and about to be sold; that the credit was forthwith given accordingly, and the possession of the property, with the key of the mills, was delivered to Richard Owings by Paul, before the 9lh of May, 1818. That Richard Owings, and those claiming under him, had ever since been in possession, was proved as well by the attesting as other witnesses. Upon this statement of facts, it is contended on the part of the plaintiff, that under the aforegoing agreement, from the time of the delivery of possession by Paul, in May, ISIS, till the month of June, 1845, the possession of the plaintiff, and those under whom he claims, was known to Paul, was held adversely, and must be deemed sufficient evidence to prevent the successful prosecution of any proceedings, either at law or in equity, which those claiming under Isaac Paul might, hereafter institute for the recovery of the property in question, or any portion of it. If all the facts detailed in the testimony of the subscribing witnesses, in relation to the agreement, of April, 1SI8, between Paul and Richard Owings, were, like tire possession, matters of notoriety, resting in the knowledge of the neighborhood in which they transpired, so as to be readily susceptible of proof, in the event of future litigation between the heirs of Paul and these defendants, the present appeal, to the discretion of the court of chancery, would he far stronger than it is in the attitude in which it is now .preseated. But such is not the character of the testimony now relied on. The material and most important facts to which the subscribing witnesses have testified, and which are mainly relied on by the plaintiff, appear to rest exclusively in their individual knowledge. With their decease, (and one of them it is said no longer exists,) all means of establishing the important facts to which they deposed are lost. Looking to the precarious duration of the proof on which the title of the plaintiff depends, to the fact lhafhe filed a bill in chancery against the heirs of Paul, to procure from them a conveyance by which his title at law was to be perfected, and afterwards dismissed it; and to the additional fact, that on the records of the court in which the judgments against Paul were rendered, [354] no entry of the credit of $5,000 has been made, could a court of equity, having a due regard to the claims that might arise from the heirs of Paul, upon the death of the remaining attesting witness, compel the defendants to accept a title, the continuance of which is so contingent and uncertain? We think not.
It has been insisted by the defendants, that they cannot be required to receive (he title proffered them by the plaintiff, because there is a suit now pending against him in the court of chancery, (commenced since the bill now before us was filed,) by one Zachariah Poultoti, for the recovery of the property, the subject of controversy in this case, in which he alleged, that on the 9th of May, 1818, he purchased the same of Richard Owings, and gave his eleven promissory notes, each for the sum of $1,000, was immediately put into possession thereof by Richard Owings, who gave a bond of conveyance therefor; and that he continued in the full possession and enjoyment of his purchase until the jrear 1830, when he was wrongfully dispossessed, by a fraudulent combination between (he plaintiff and Richard lglehart, the sheriff of Anne Arundel county, they pretending that there had been a sale of the property to the plaintiff, under one or more writs of fieri facias, upon judgments against Poulton, at the suit of Samuel and James Owings, executors of Richard Owings. The answer of James Owings swore away all the equity of the bill, and the answer is abundantly sustained by the testimony before us. In addition to the exhibition of the sheriff’s deed, the judgments and executions under which the property was sold, the oral testimony most satisfactorily shews, that the property was sold by the sheriff, at a bona fide, public and fair sale, at which Poulton was present, made no objection to it, and soon after, voluntarily, gave full possession to James Owings, which he and Arose claiming under him, have ever since uninterruptedly held. The question thence arises, is the pendency of this suit, under such circumstances, a sufficient ground for the refusal of a court of equity to compel the defendants to execute their contract? Wc do not so regard it. If it were so, it would estab[355] lisli a most unjust and inconvenient principle, by which an unscrupulous vendee might always evade the performance of his contract, by inducing a factitious claimant to institute proceedings against the vendor, at law or in equity, for the recovery of the property sold, or to establish some pretended lien upon it, after the vendor had filed his bill for the specific execution of the contract. That the mere commencement of a suit, for the recovery of the whole or a part of the laud sold, after the filing of a bill for the specific execution of the contract of sale, is not, of itself, sufficient to prevent the vendees being decreed to accept the title; provided it appears to the satisfaction of the court, that the suit so commenced cannot be successfully prosecuted. See the case of Osbaldiston vs. Askew, 1 Russell, 160. In 2 Sug. Vend., 124, it is stated, that “it is not a conclusive objection to a title, that a third party has filed a bill against the seller, claiming a right to the estate, but the nature of the adverse claim will be examined into.” If this be done, the claim asserted by Poulton in his bill in chancery, under the circumstances disclosed in the record before us, furnishes no ground against decreeing a specific performance of the contract sought to be enforced against the defendants. It being manifest, that Poulton's entire interest in the property in dispute, was legally sold and conveyed to the plaintiff.
The purchase made by James Owings of the sheriff of Anne Arundel county, who sold Zachariah Poulton's interest in the Guilford Mills and the adjoining lands, under two writs of fieri facias, issued on judgments obtained against him by the executors of Richard Owings, being the ordy title which the plaintiff professes to possess, or to be able to give to the defendants, we are necessarily led to the inquiry as to the nature and character of that title. The executors having issued executions against Zachariah Poulton, the only power thereby communicated to the sheriff, or which he could exercise under them, in reference to the property in question, was to seize and sell the interest and estate of Poulton therein. What was that interest? An equitable title derived from Richard Owings, under a bond of conveyance, and payment of part of the [356] purchase money. The legal title he could not have bought, because Poulton never possessed it, and, consequently, he could not derive it from any deed which the sheriff had authority to execute. And the equitable title, thus purchased by the plaintiff, was held by him, subject1 to an unquestionable lien for the balance of the purchase money due by Poulton to the executors of Richard Owings. Conceding, then, that Richard Owings was possessed of a legal estate in the property sold to Poulton, at the time of the sale, which is the most favorable assumption that can be made for the plaintiff, his title being purely equitable, the defendants were not bound to accept it, and, a fortiorif were they not bound to receive it, until disencumbered of such a lien as that which attached to iL Had they accepted it, and, to obtain a legal title, had filed a bill in chancery against the heirs of Richard Owings, the chancellor would not have’ recognised them as having any standing before him, but upon their paying or offering to- pay the balance of the purchase money due by Poulton.
But the defendants could not be compelled specifically ter perform the contract on another ground. The contract not having been reduced to writing, and the statute of frauds being relied on in the answer, as a bar to the relief sought by the bill, it was the incumbent duty of the plaintiff, before he could obtain a decree for specific execution, to prove the act of part performance charged in the bill, it being the only means by which the bar of the statute could be evaded. This act of part performance, viz.: the entering by the defendants into possession, under the contract of the premises purchased, the plaintiff having wholly failed to prove, even if his title were free from all exceptions, to a decree for a specific execution, of the contract, he has not shown himself entitled.
The only remaining reason assigned for the reversal of the decree of the chancellor, is, that it did not award to the plaintiff the rent to which, by the proof, he has shown himself to be entitled. In not decreeing such an allowance the chancellor did not err, because the subsidiary contract, which warranted the allowance, was not averred in the bilL It is true, as con[357] tended for in the argument for the appellees, that in an action at law, (lie rent might be sued for and recovered, and that for that reason the plaintiff suffers no loss by its non-allowance by the chancellor. But the institution of such suit now by the plaintiff, would be a fruitless experiment, the statute of limitations being a flat bar to such an action. As the rent in question is justly due to the plaintiff, and might have been decreed to him, had the appropriate averments and prayer been inserted in the bill, this court, believing that justice will not be attained, either by an affirmance or reversal of the decree of the chancellor, will sign an order remanding this case to the court of chancery, pursuant to the 6th sec. of the act of 1832, ch. 302, that the plaintiff, by an amendment of his pleadings, may place himself in a situation to obtain the relief indicated in the aforegoing opinion, and that such further proceedings may be had therein as the nature of the case may require.
cause remanded
under act of 1832.