The Opinion of the Court was delivered by
Sullivan filed his bill to enforce the specific performance of a promise to pay the balance due for two tracts of land, sold to defendants. A demurrer to the bill was overruled, answers were filed, and a replication, and the cause heard upon agreed facts. Decree, that the money should be paid by a certain day. The money not being paid, a final decree was entered for the money, and execution awarded.
The facts are as follows: On the third day of July, 1841, Sullivan sold defendants two tracts of land for $990, and received $400 down, and took their note for $590, payable on or before the eighth day of June, 1842, bearing interest at twelve per cent, after maturity.
At the same time, he executed to them an agreement for a title, acknowledging the receipt of that sum, and describing the note given for the remainder, in consideration whereof, he agreed to convey them a title in fee, clear of incumbrance, “on or before the eighth day of June, 1842, on payment of a certain promissory note made by” the defendants as aforesaid.
By the agreement of facts it appears, that Sullivan left his residence in Iowa, prior to June, and went to New Orleans to transact business, expecting to be back ¿before the day of payment; but unexpected business or circumstances required his presence in Ohio, and detained him until the third day of July, and he did not make a tender of a deed on the eighth day of June in consequence of it.
*331The defendants lived in Rock Island. On the 4th day of June, Andrews wrote a note to Sullivan, requesting him to make the deed to the other two defendants, and one George Mixter, instead of himself, and sent the note to Sullivan’s partner. On the eighth day of June, they had the money ready to pay for the land, but did not tender it, or go to Rockingham, Iowa, plaintiff’s residence, to attempt it. On the second day after his return home,' Sullivan prepared a deed to the defendants, Moore and Lynde and to Mixter, as directed by Andrews, went to Rock Island, and informed defendants that he had title to the premises, and asked for payment. No money was paid, and no arrangement made. On the twelfth day of July he wrote them a note requesting payment, but it was not made. Afterwards, on the --day of July, or August, he formally tendered them a deed, which they refused without looking into it, and payment was refused. Soon after, the bill was filed.
At the time of making the contract, Sullivan had no title to one tract, in consequence of a mistake at the Land Office, but acquired it before;, the eighth day of June, though he never exhibited his title to defendants, nor did they ever require it. Defendants had puta dwelling on the land, worth $300. After the note fell due they abandoned the premises, of which they had had the possession, without giving Sullivan notice of it. There was some diminution in the value of the premises, but no material deterioration between the eighth day of June and the bringing suit.
The errors assigned are the overruling the demurrer," and not dismissing the bill; in rendering the firsji; decree to pay the money on a given day; and-in rendering "the final decree and awarding the execution for the debt and costs. •
The points made and insisted on are, that a Court of Equity has not jurisdiction of the case, as the plaintiff has a complete remedy at Law on his note; and secondly, that tjme is of the essence of this contract; and not having performed it on the day, the plaintiff is in default and cán have "no relief, in Equity, the defendants having a right to abandon, and rescind it, and which they have done.
The general rule is, as> contended for by defendants, that *332Equity will not interfere where the party has his remedy at Law. Stone v. Manning, 2 Scam. 531; Robinson v. Chesseldine, 4 do. 332; Story’s Eq. Pl. 373.
It is also true, that an action at law may be maintained upon this note, if plaintiff has performed his part of the agreement.
But it is equally true, that one particular branch of the jurisdiction of Courts of Equity is the enforcement of a specific execution of contracts. While the rule, therefore, is general, it is not universal, and it becomes necessary to inquire if this case be an exception.
In treating of remedies for the breach of contracts for the sale of land, Sugden remarks: “If either the vendor or vendee refuse to perform the contract, the other may bring an action for breach of contract, or file a bill for a specific performance, although it appears to have been formerly thought that as a vendor only wants the purchase money, his remedy was at law.” 1 Sug. Vend. 216, § 3. For the first clause, he cites 10 Mod. 503, and for the last, Bunb. 111; 1 Sim. & Stu. 174, and 6 Madd. 8*e.|
I have access to but one of these authorities, and that is 6 Madd. I can find no such case in the volume.
In speaking of compensation, or damages, as incidental to other relief, Justice Story says: “Where, upon a bill brought by the vendor against the vendee for a specific performance of the contract, and for a payment of the purchase money, if the decree is for a specific performance, Equity will decree the payment of the purchase money also, as incidental to the general relief, and to prevent a multiplicity of suits, although the vendor might, in many cases, have a good remedy at law for the purchase money.” 2 Story’s Eq. Jur. § 796. For this, he cites Brown v. Haff, 5 Paige, 235, 240; 1 Sim. & Stu. 174, 607, and Cathcart v. Robinson, 5 Peters, 269. Again, he says: “Where specific performance of a contract respecting chattels will be decreed upon the application of one party, Courts of Equity will maintain the like suit at the instance of the other party, although the relief sought by him is in the nature of compensation in damages or value, for in all such cases the Court acts upon the *333ground, that the remedy, if it exist at all, ought to be mutual and reciprocal, as well for the vendor as the purchaser.” 2 Story Eq. Jur. § 723. He cites the same Reports, and also, Forrest v. Elwes, 4 Vesey, 497, 10 Mod. 506; Newl. on Con. 91, and 4 Russ. 298.
The case of Brown v. Haff, 5 Paige, 235, was a bill to have a certain sum placed in the hands of a third person, to be applied in part payment of the purchase money so applied, and also for a decree for the remainder. The bill was sustained on these grounds, notwithstanding it was objected that plaintiff had his remedy at Law. In the case of Forrest v. Elwes, 4 Vesey, 497, an account was to bo taken, which is a peculiar jurisdiction of the Court of Equity, and the balance was decreed. The case of Cathcart v. Robinson, 5 Peters, 269, included many grounds of Equity jurisdiction.
Mr. Newland lays down the doctrine as Justice Story does, but he is speaking in reference to contracts in relation to land, and for it, cites 10 Mod. 506, a volume that I cannot procure. He seems to understand the doctrine as laid down by Sugden, for he says: “Such a remedy (by bill) is much more beneficial than the redress, which the latter (the vendor) would obtain at law, the only compensation which he would obtain there being damages for the loss which he might have sustained from the vendee’s not performing his agreement.”
By proceeding in Equity, the vendor may have it in his power to answer, and clear up, objections to his title that he could not at Law, in many cases. It may, in many cases, be the most advantageous for the vendee, as he may acquire the title, at the same time that he is adjudged to pay.
We are of opinion, that the bill for a specific performance will lie.
But we are of opinion, that the final decree rendered in this case with the award of execution is wrong. The decree should have directed a sale of the premises, upon default being made in payment, and also required the complainant to deposit with the Master a proper conveyance, to be delivered upon payment of the money.
The remaining question is, whether the plaintiff performed *334his part of this contract in such a manner as to entitle him to sue. Upon this subject, it has been well remarked by Mr. Cox, in note 2 to 1 P. Wms. 571, that “ cases of this kind depend so much on their own- particular circumstances, that it seems no general rule can be laid down.” Lord Redesdale admits, that it is difficult to reconcile all the cases in which Courts of Equity have given relief, and compelled a specific performance of agreements, or refused to do so. Mitf. Eq. Pl. 119, note q.
The doctrine in Equity is not forfeiture, but compensation* and they frequently relieve men who have acted fairly, though negligently, and dispense with that which would make compliance with what the law" requires oppressive. 2 Story’s Eq. Jur. § 775, and p. 84, note 1.
Time is not necessarily deemed of the essence of the contract in Equity, and Courts of Equity are frequently called on to relieve, where the terms for the performance and completion of the contract have not, in point of time, been strictly complied with. 2 Story’s Eq. Jur. §§ 776-7, and notes; 1 Sugden on Vend. 423 to 429; 2 Merivale, 138. I know it has been held to be, but I think this to be the better rule.
In this, as in all other cases, the intention of the parties is to govern, and that shall be gathered from the contract and circumstances. ' If it appear to be the intention that it shall cease, unless performed by a certain day, Equity would not relieve. I shall not attempt a review and analysis of the cases. They are-too numerous, and decided too frequently upon the particular circumstances of each case, to undertake to follow, as on a general rule.
In the case before us, the parties evidently did not intend that the contract should be void if not performed on the day named. The covenant of the plaintiff to convey is what is termed a mutual, dependant covenant, and he could only be compelled to perform it on payment or tender of the purchase money, and he could not otherwise be put in default. This was not done, although it was demanded within a month after it fell due, and a deed tendered about two months after it was due. His delay in not tendering a deed on the day, if, *335indeed, he were bound by contract to do so at all, until the money was tendered, is satisfactorily accounted for by his absence and unexpected detention from home. I am of opinion, that he has used due diligence in trying to perform his contract, and has shown himself eager to perform it, while the defendants have shown no disposition to complete theirs, nor any damage that would result from enforcing a specific performance against them.
The former decree is reversed, and cause remanded for final decree, the costs in this Court to be equally divided.
Decree reversed.