By the Court,
Whitoh, C. J.
We do not see as the verbal agreement set out in the bill, and which preceded the written contract for the sale of the land to the complainant, can be relied upon, for the purpose of controlling or varying the latter. Admitting that it has been proved as alleged in the bill, still by every sound principle of law applicable to contracts, where no fraud or mistake exists, the written contract must control. It contains the final agreement of the parties in relation to the sale of the land, and we cannot permit the alleged previous contract to vary it We shall therefore assume in disposing of the case, that the written contract set out in the bill and admitted in the answer, contains the agreement of the parties in relation to the sale of the land.
This agreement recites that Harvey Jones had sold to the complainant the land in dispute, and we think it bound Jones to convey it to the complainant upon receiving the price specified in the contract, at the time therein appointed for the payment; and bound each party to pay his proportion of the cost of improvements, made upon the property, and if one advanced more than his proportion, for the purpose of making the improvements, he was to receive interest thereon at the rate of twelve per cent., and made the money so advanced a lien upon the property. The question is, has this agreement been so kept and performed by the complainant; or if not performed by him, is there such an excuse for the nonperformance as to entitle him to a conveyance. The principles which govern contracts of this nature are quite familiar.
Ordinary courts of equity do not consider it essential that [414]*414the person who purchases the land should pay the purchase money at the precise day appointed for the payment, when the parties do not appear to have made the time of payment essential in the contract itself, and when the court has the power to compel the purchaser to make ample compensation to the seller for the delay.
The defendants contend that this contract was obtained by the complainant, by fraud and misrepresentation, and that in such cases the court will not decree a conveyance. This is true. But we see no evidence of fraud in the complainant, in the manner in which he obtained the contract from Jones. He had, just before the contract was entered into, purchased the land in dispute, together with other lands, from the United States, with money furnished by Jones, had taken the title in his own name but conveyed it to Jones, and we have looked in vain at the testimony to discover evidence of fraud or misrepresentation. Jones appears to have contracted without very much investigation as to the value of the land; but this is no reason why he should be relieved from the performance of his contract, if it was fairly entered into. By it, he was to receive for one quarter of the land described in the contract, one quarter of the sum which he had advanced to the complainant to purchase this and the other land bought by the complainant of the United States.
It is further said by the defendants that time was material as shown by the contract itself, or at least as shown by the situation of the property and the purpose for which the contract was made, and ■ the notice given to the complainant by Jones, that he should hold him to a strict performance of the contract. We see nothing in the contract which denotes that the parties intended to make the time when the payment was to be made material The contract says nothing on the subject. It provides for the payment of the purchase money, in one year from the date of the contract, making use of the [415]*415ordinary terms to express the time, without any intimation that the time was material. Nor do we see anything in the situation of the property, or the purpose for which the sale was made to indicate such an intention. It appears that the parties contemplated that improvements might be made on the land, and provided a mode for securing the person who should advance the money to make them; hut this does by no means imply that the parties intended that the right of the complainant to demand a deed of the land should depend upon the payment of the purchase money, at the exact time specified for the payment
If any doubt existed upon this subject, the power of attorney which the complainant executed to Harvey Jones, authorizing him to sell the land, would remove it. This power of attorney was executed on the 12th of April, 1847, about three months before the time fixed upon for the payment of the purchase money. It was accepted by Jones, and empowered him to sell the land and execute the proper deeds and conveyances. It further empowered him to collect the complainant’s proportion of the rent, and also his proportion of the money arising from the sales of the land, and to apply them in payment of the sum due from the complainant for the land, until the same and the interest thereon should be fully paid. This shows that the parties did not think it necessary that the purchase money should be paid at the exact time stated in the contract to entitle the complainant to a conveyance.
But the most serious objection which is made to complainant’s obtaining a conveyance of one-fourth part of the land, is the contract made by him with Yale, by which he assigned to Yale his interest in the contract for the purchase; Yale agreeing to obtain a title for him for one-half of the interest which he contracted for with Jones, and undertaking to pay the whole purchase money. It appears from the testi[416]*416mony that the interest which Yale acquired in this contract he conveyed to Jones, so that the latter became possessed of all the interest which was conveyed to Yale by the assignment. Assuming that this assignment was obtained from the complainant without the knowledge of Jones and of course without any fraudulent design on his part, what is its effect ? Is it a conveyance of one-half of the complainant’s interest, so that he is entitled now to only one-eighth of the lands ? We think not. We think it quite clear that if Yale had never-parted with his interest to Jones, he never could have claimed a title to any share of the land as against the complainant without payment of the stipulated sum agreed to be paid by him for the land. If this is so, it is equally clear that Jones, his assignee, can have no greater right. The proofs in the case fail to show that Yale or Jones has kept the agreement. If Jones had offered to convey one-eighth of the land to the complainant without the payment of any money by him; we do not see as he could claim any more of the land.
But certainly, Jones, after he had obtained a conveyance of Yales interest in the land, coirld not set up a right under it without a compliance with it on his part; he could not especially claim anything by virtue of that assignment, and at the same time insist that the complainant had no interest to assign.
Now the proofs show, beyond dispute, that Jones and those who now represent him in the suit have denied the complainant’s right to the land altogether; they have denied that the complainant had any right to any portion of the land, and the defence of this suit is based on such denial.
But the transfer of the assignment by Yale to Harvey Jones transfered also the obligation to perform the duty which the contract imposed on the former, and we are not prepared to say but that if Jones, when he obtained the contract from Yale, had offered the complainant a deed of one-eight of tb~ [417]
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By the Court,
Whitoh, C. J.
We do not see as the verbal agreement set out in the bill, and which preceded the written contract for the sale of the land to the complainant, can be relied upon, for the purpose of controlling or varying the latter. Admitting that it has been proved as alleged in the bill, still by every sound principle of law applicable to contracts, where no fraud or mistake exists, the written contract must control. It contains the final agreement of the parties in relation to the sale of the land, and we cannot permit the alleged previous contract to vary it We shall therefore assume in disposing of the case, that the written contract set out in the bill and admitted in the answer, contains the agreement of the parties in relation to the sale of the land.
This agreement recites that Harvey Jones had sold to the complainant the land in dispute, and we think it bound Jones to convey it to the complainant upon receiving the price specified in the contract, at the time therein appointed for the payment; and bound each party to pay his proportion of the cost of improvements, made upon the property, and if one advanced more than his proportion, for the purpose of making the improvements, he was to receive interest thereon at the rate of twelve per cent., and made the money so advanced a lien upon the property. The question is, has this agreement been so kept and performed by the complainant; or if not performed by him, is there such an excuse for the nonperformance as to entitle him to a conveyance. The principles which govern contracts of this nature are quite familiar.
Ordinary courts of equity do not consider it essential that [414]*414the person who purchases the land should pay the purchase money at the precise day appointed for the payment, when the parties do not appear to have made the time of payment essential in the contract itself, and when the court has the power to compel the purchaser to make ample compensation to the seller for the delay.
The defendants contend that this contract was obtained by the complainant, by fraud and misrepresentation, and that in such cases the court will not decree a conveyance. This is true. But we see no evidence of fraud in the complainant, in the manner in which he obtained the contract from Jones. He had, just before the contract was entered into, purchased the land in dispute, together with other lands, from the United States, with money furnished by Jones, had taken the title in his own name but conveyed it to Jones, and we have looked in vain at the testimony to discover evidence of fraud or misrepresentation. Jones appears to have contracted without very much investigation as to the value of the land; but this is no reason why he should be relieved from the performance of his contract, if it was fairly entered into. By it, he was to receive for one quarter of the land described in the contract, one quarter of the sum which he had advanced to the complainant to purchase this and the other land bought by the complainant of the United States.
It is further said by the defendants that time was material as shown by the contract itself, or at least as shown by the situation of the property and the purpose for which the contract was made, and ■ the notice given to the complainant by Jones, that he should hold him to a strict performance of the contract. We see nothing in the contract which denotes that the parties intended to make the time when the payment was to be made material The contract says nothing on the subject. It provides for the payment of the purchase money, in one year from the date of the contract, making use of the [415]*415ordinary terms to express the time, without any intimation that the time was material. Nor do we see anything in the situation of the property, or the purpose for which the sale was made to indicate such an intention. It appears that the parties contemplated that improvements might be made on the land, and provided a mode for securing the person who should advance the money to make them; hut this does by no means imply that the parties intended that the right of the complainant to demand a deed of the land should depend upon the payment of the purchase money, at the exact time specified for the payment
If any doubt existed upon this subject, the power of attorney which the complainant executed to Harvey Jones, authorizing him to sell the land, would remove it. This power of attorney was executed on the 12th of April, 1847, about three months before the time fixed upon for the payment of the purchase money. It was accepted by Jones, and empowered him to sell the land and execute the proper deeds and conveyances. It further empowered him to collect the complainant’s proportion of the rent, and also his proportion of the money arising from the sales of the land, and to apply them in payment of the sum due from the complainant for the land, until the same and the interest thereon should be fully paid. This shows that the parties did not think it necessary that the purchase money should be paid at the exact time stated in the contract to entitle the complainant to a conveyance.
But the most serious objection which is made to complainant’s obtaining a conveyance of one-fourth part of the land, is the contract made by him with Yale, by which he assigned to Yale his interest in the contract for the purchase; Yale agreeing to obtain a title for him for one-half of the interest which he contracted for with Jones, and undertaking to pay the whole purchase money. It appears from the testi[416]*416mony that the interest which Yale acquired in this contract he conveyed to Jones, so that the latter became possessed of all the interest which was conveyed to Yale by the assignment. Assuming that this assignment was obtained from the complainant without the knowledge of Jones and of course without any fraudulent design on his part, what is its effect ? Is it a conveyance of one-half of the complainant’s interest, so that he is entitled now to only one-eighth of the lands ? We think not. We think it quite clear that if Yale had never-parted with his interest to Jones, he never could have claimed a title to any share of the land as against the complainant without payment of the stipulated sum agreed to be paid by him for the land. If this is so, it is equally clear that Jones, his assignee, can have no greater right. The proofs in the case fail to show that Yale or Jones has kept the agreement. If Jones had offered to convey one-eighth of the land to the complainant without the payment of any money by him; we do not see as he could claim any more of the land.
But certainly, Jones, after he had obtained a conveyance of Yales interest in the land, coirld not set up a right under it without a compliance with it on his part; he could not especially claim anything by virtue of that assignment, and at the same time insist that the complainant had no interest to assign.
Now the proofs show, beyond dispute, that Jones and those who now represent him in the suit have denied the complainant’s right to the land altogether; they have denied that the complainant had any right to any portion of the land, and the defence of this suit is based on such denial.
But the transfer of the assignment by Yale to Harvey Jones transfered also the obligation to perform the duty which the contract imposed on the former, and we are not prepared to say but that if Jones, when he obtained the contract from Yale, had offered the complainant a deed of one-eight of tb~ [417]*417land, in accordance with its provisions, he would have discharged himself of his obligation. But he did not do so; he refused to regard the complainant as having any right at all to the land, insisting upon an alleged forfeiture of it by a noncompliance with the conditions of the contract of sale. He could not of course claim any right himself under a contract which he thus repudiated. He could not at the same time claim that the complainant was not entitled to his eighth as stipulated in the contract, and that his original contract for the sale of the land was modified by it so as to entitle him but to the eighth. The two positions are incompatible, and we incline to the opinion that by taking an assignment of Yale’s interest in the land, and refusing to comply with the obligations which it imposed upon him, the parties were restored to their original equities. How would the case have stood if Yale had not conveyed his interest in the land to Jones, but had refused to perform his engagement by paying Jones the purchase money, and procuring for the complainant a conveyance of one-half of his original purchase, and Jones had refused to convey upon having the purchase money tendered to him by the complainant ? In that case, if the complainant had filed his bill making both Jones and Yale defendants, and Yale had answered the bill setting up his inability to pay the money, or claiming that a court of equity could not make a decree against him to compel the payment, we think it clear that a court of equity would decree that his interest in the land was forfeited and gone, and that if the complainant was obliged to pay for the land according to his agreement with Jones, he should obtain a title to it. No court Avould decree that while the purchase money was paid by the complainant he should obtain but one-half of the land contracted for. Jones and those who represent him can stand in no better position; they do not claim anything under the contract made by the complainant and Yale On the [418]*418contrary they refuse to perform their part of it, and thus refusing they cannot set up any rights under it.
DECREE OE THE SUPREME COURT.
May 30th, 1855.
This cause came on to be heard on appeal from the decree of the circuit court of Marquette county, and was argued by counsel.
On consideration whereof, it is by the court now here considered, ordered, adjudged and decreed, that the decree of the circuit court of Marquette county in this cause, be and the same is hereby reversed with costs, to the said defendants and appellants. And it is further ordered that this cause be remanded to the said circuit court with directions to said court to enter an order in said cause that the same be referred to a commissioner to bring before him upon proper notice, the parties to this cause, and to receive proofs as to the amount of necessary improvements made upon the lands described in the contract between Harvey Jones of the one part, and Harrison Reed of the other, bearing date July 23d, 1846, set forth in the pleadings from the date of said contract, until the filing of the bill of complaint in this cause; by whom the same were made, the expenses or costs thereof, with the dates and amounts of all payments for such necessary improvements made by the parties respectively, and to whom the same were made respectively. Also that the Commissioner do take proofs as to the amounts expended in making such improvements upon said property as were necessary and required for the due use and preservation thereof at any time since the filing of the bill of complaint herein, with the dates of such expenditures, and by whom paid; that he also take proof as to the amounts received by either of said parties from the sales of any portion of said property, previous to the filing of the bill of complaint herein, and all rents, issues and profits, [419]*419derived by either, and all of the parties to the cause from said property, from the said 23d day of July, 1846, until the time of taking such proofs; the dates at which such rents, issues and profits were received, and by which of the parties; that the commissioner do report to the said circuit court all the proofs by him taken as to the character and necessity of the improvements, the costs thereof, by whom paid, and the dates of payment, as well as all proofs touching the receipts of reuts, issues and profits, and proceeds of sales. And upon the coming in of said report the said circuit court is hereby directed to determine how much the said complainant ought to pay to the heirs and legal representatives of the said Harvey Jones as for his, the said Harrison Reed’s, one-fourth part of all expenditures for necessary improvements made upon said property by the said Harvey Jones, or his heirs or legal representatives; and the sum of twelve hundred and fifty dollars ; and in determining the amount which ought to be paid, the said circuit court shall allow interest at the rate of seven per centum per annum upon the said sum of $1250, from the 23d day of July, 1846, until the 4th day of April 1849, the date of the tender made by the complainant, as appears in this cause, and interest at the rate of twelve per centum per annum upon all amounts paid out and expended for such improvements as aforesaid by either of the parties; and shall charge each party the last mentioned rate of interest upon all moneys received by them respectively from sales, and as rents, issues or profits of said property; and if upon such determination it shall appear to the said circuit court that any amount or balance remains due, and ought to be paid by the said complainant to the legal representatives of the said Harvey Jones, then the said circuit court is hereby directed to enter an order in this cause, that the said complainant do within such reasonable time thereafter as the said court may direct, pay such amount into the [420]*420said circuit court for the benefit of and to be delivered over to the legal representatives of the said Harvey Jones. And upon the payment by the said complainant as hereinbefore provided for, or if the said circuit court shall find that the one-fourth part of the proceeds of all sales, and of the rents, issues and profits of said property which have been received by the said Harvey Jones in his life time, and by his legal representatives since his death, is equal to the amount which ought to be chargable to the said complainant as hereinbefore directed, then and in either case the said circuit court is hereby directed to enter a final decree in this cause, thereby vesting in the said complainant, his heirs and assigns, the undivided one-fourth part of all the rights, title and interest which the said Harvey Jones had in and to all of the lands described in the aforesaid contract of the date of July 23d, 1846, at the date thereof.
And if, upon the proof so returned, the said circuit court shall find that any amount or balance ought to be paid by the legal representatives of the said Harvey Jones to the said complainant, after taking into account the sums paid out by the respective parties for necessary improvements on said property, as well as the sums received by the parties respectively as proceeds of sales, and as rents, issues and profits, and also the said sum of $1250 and interest for the time, and at the rate hereinbefore provided, then and in such case the said circuit court shall, by decree, direct the payment by the legal representatives of the said Harvey Jones out of his estate to the said Harrison Reed of such balance.