Gilchrist v. Buie, 21 N.C. 346, 1 Dev. & Bat. Eq. 346 (1836)

June 1836 · Supreme Court of North Carolina

21 N.C. 346, 1 Dev. & Bat. Eq. 346

GILBERT GILCHRIST v. FLORA BUIE et al.

In a contract of sale, by which the vendors stipulated “ to make a sufficient title, as far as their claim extends in said land,” the words “ a sufficient title,” were held upon the whole instrument to mean “ a sufficient deed,” to assure the estate, if they had one, notwithstanding' “ a quit claim deed” was, by the articles, agreed to be given for other lands.

The plaintiff, by an original bill, filed the 21st of June, 1827, against Flora Buie, and Archibald Gilchrist and his wife, charged, that he purchased in April, 1823, from Daniel Buie, (then the husband of the defendant Flora,) and his wife Flora, and from the defendants, Archibald Gilchrist and his wife Mary, certain lands at the price of fifteen hundred dollars, and that he executed to Daniel Buie two bonds for three hundred and seventy-five dollars each, and to Archibald Gilchrist two other bonds for the like sums : that the lands so sold were claimed in fee, in right of the said femes covert, as having descended to them and others, as tenants in common of three tracts; of which one contained four hundred and fifty acres, in which their shares as claimed were two hundred and twenty-five acres; another contained-acres, in which their shares as claimed were one hundred and eighty-six and a half acres; and the third contained one hundred acres, in which their shares were thirty-two acres: that the said vendors and their wives intended to execute a bond to convey the title; but through ignorance of the necessity of a seal, did execute to him only a writing, in a penalty of four thousand dollars, to be void “ if they should make a sufficient title to a certain parcel of land belonging to the old plantation as far as their claim extends on said lands; and likewise a quit-claim deed to that part coming to them of the land belonging to the estate of Collin M'Pherson, deceased; and likewise their claim to one hundred acres of land, called Goodson’s lands, including Goodson’s fields; and when sufficient titles shall be madé to said lands, these presents to be null and void; but otherwise to remain in fulP force.”

June, 1836.

That soon afterwards, Daniel Buie died, and his widow filed her bill in the Court of Equity against the present plaintiff and the administrator of her late husband, and therein charged, that the said lands, so agreed to be sold, came to her by hereditary descent, and that she was willing to affirm the sale, if she should receive the price and cost; otherwise, she prayed that she might be declared to be entitled to the said two bonds, that were made payable to her said husband; and it was decreed thereupon, that the said administrator should assign the same to her, which was accordingly done; and she instituted actions at law, and recovered judgments thereon. The bill then charged, that the plaintiffhad been advised that the vendors had no title, either legal or equitable, to any but a very small part of the land; that the one hundred acres, called Good-son’s land, did not in any part belong to them, but was entirely covered by adverse and paramount title: that the defendants together claimed one-half of the four hundred and fifty acres, as heirs of their brothers, Archibald and Neil M'Pherson, who died intestate and without issue; but that, in fact, the said intestate Neil left four sisters and three brothers, some one or all of whom was or were born before the year 1795, before which time the said Neil died. The bill further charged, that the alleged title of said Archibald and Neil, is derived from their grandfather, John M'Pherson, who devised different parts of the same to them severally; but that in respect of the part given to Archibald, nothing passed, because the said Archibald died in 1790, and the said testator died in 1791, whereupon the same descended to his two sons, Daniel and Alexander. The bill further charged, that at the time of the purchase, no deficiency of title or quantity was made known to the plaintiff, and that he had no knowledge that there was any defect or difficulty in the title, but believed that the defendants had a good title to the respective shares aforesaid, amounting to the quantities aforesaid. The bill further charged, that the said Daniel M'Pherson, (one of the sons of the testator John, and the father of the said Archibald and Neil,) entered into the said lands; and, after residing on them for many years peaceably, died intestate and in possession, leaving three sons and four daughters, of whom the defendants, Flora and Mary, are two; and that soon afterwards, upon a petition in the County Court, to have the real and personal estate of said intestate Daniel divided, the whole of said lands was, as the estate of the said Daniel, the father, allotted to the said three sons, as their share; and they were ordered to pay a sum of money to each of their four sisters, for equality of division; and that such payments had been made and accounted by the defendants many years before they sold to the plaintiff. The bill further charged, that the intention of the parties was, that the defendant should convey one undivided half part of the “ old plantation,” containing four hundred and fifty acres, with general warranty, and the residue with special warranty; and that such is the meaning of the terms “ a sufficient title” in the agreement, in reference to the first-mentioned parcel; and that the plaintiff has requested the defendants to execute to him1 such conveyances,, but that they have refused, under the pretence that they were to make only a quit-claim deed for the whole. The prayer is for specific performance by conveyances from the defendants respectively, with covenants of general and special warranty as aforesaid, the plaintiff submitting to pay the purchase money; and if the defendants have not title, and “ cannot make a good and sufficient title according to the contract,” that the agreement be rescinded; and, in the mean time, for an injunction against proceeding therefor at law.-

Upon the bill an injunction was granted by a judge at chambers. The answer stated, that Daniel MXPherson, the father of the defendants, Flora and Mary, and also of Nancy, the wife of complainant, died seised of the Good-son place, and leaving four daughters and three sons, of whom Colin M‘Pherson was one, and 'he died intestate and without issue: by means whereof each of the defendants became entitled to, or claimed, on e-sixth part of that tract: that said Colin was also seised or claimed'another tract, (which is mentioned in the agreement as claimed under him,) and upon his death, each of his brothers and sisters acquired the like share of .one-sixth thereof: that upon the death of their grand-father, John M'Pherson, in 1791, their brother Neil claimed the tract of four hundred and fifty acres, called the Old Plantation, under his will, and entered into the same; and that said Niel died also in the year 1791, leaving no brother surviving him, but the three sisters .before-mentioned, and a fourth named Catharine, who is now living; and that the said four sisters were his heirs-at-law, and infants; and that their father, the said Daniel, and their uncle Alexander, did not claim any of the said .lands devised by the testator John, to their brothers Archibald and Niel; but that the said Daniel, upon the death of "the said Niel, did, on the behalf of his said four daughters; enter into all the said land, claiming the same for them, and for them alone, as the sisters and co-heirs of the said Neil, and continued to so hold for many years: that after the death of the said Neil, their father had three other children, sons, by the names of Hugh, Alexander, and the said Colin: but that they are unable to state when they were born: that in 1801, the said Daniel required his daughters to execute to him an instrument intended by him to bet a “ release to him and his heirs of all the estate real and personal of said Neil,” their brother, which they did under constraint and without consideration; and that the same is for that reason ineffectual; and also because it is informal in its terms, and is not under seal: that notwithstanding the said instrument, the daughters claimed the said land ; and after the death of the father in 1804, and intestate, they entered into it as their own by descent from their said brother Neil: that the administrators of their father’s estate procured upon motion commissioners to be appointed by the County Court, to divide the negroes and personal estate of their intestate amongst his children, and that in such division they understood that the lands were allowed to the sons, and money directed to be paid to the daughters, but the same was void, as none of the children were parties thereto, and it was never in any respect acted on, and the sons have not set up any claim to the land under the same, or otherwise; but the daughters have claimed and enjoy the land exclusively: that the plaintiff intermarried with Nancy, one of the daughters, shortly after the death of Daniel, the father, and also assisted his wife’s claim to some undivided fourth-part of the old place; and that in the year 1820, knowing the title and claim by descent, he took actual and exclusive possession thereof on behalf of himself and wife and her three sisters, and has lived on it ever since, undisturbed: that in April, 1823, the parties met on the premises to make actual partition thereof between the four sisters; but that the plaintiff being of opinion that it would be injurious to their interest to divide it, and wishing to keep the whole tract for his own residence, proposed to purchase the two shares of the defendants, and thereupon the contract was made asset forth in the bill. They allege positively that the plaintiff was not ignorant of the state of the title, or the manner in which it had been derived and was claimed by the daughters, but knew the same perfectly, and had consulted counsel on it:'that the true intent of the agreement was for a sale of their shares as claimed as aforesaid, and that they should execute a deed for their claim in the said land, or as far as their claim extends, and that they should not be answerable for the title or covenant against the claim of others. The defendant Flora insisted, that the decree in the former suit between her and the administrator of her husband and the present plaintiff,, as a defendant therein, whereby the administrator was ordered to transfer the bond's to her, and she' to make a conveyance to the plaintiff, is conclusive between the parties thereto, and relies on the same as a bar: and she answers, that in obedience to that decree, she did execute and tender to the plaintiff a deed for her share in all the said tracts, with special warranty, which he refused to accept, because it did not contain a covenant of general warranty, and not because of any defect of title, which he did in no wise there pretend. The defendants, Gilchrist and wife, answered that they were not bound, as they were advised, to enter into any covenant for the title,- except against their own acts, yet that believing the title to be indefeasible, and wishing to remove every obstacle to an amicable adjustment of the business, and to satisfy the plaintiff entirely, they did execute their joint deed to him in fee for one undivided fourth part of theold plantation, and for one undivided sixth part of the other parcels, with full covenants of general warranty and for quiet possession as to those shares ; and the said Nancy acknowledged the same before a judge upon privy examination, and thereupon it was tendered to the1 plaintiff, and refused by him. They also answered, that the plaintiff had paid to the defendant Gilchrist one hundred dollars, in part of one of the bonds to him. And all the defendants’ answered, that the plaintiff knowing the’ title, did upon the purchase take the exclusive possession of the same of the whole tract as his own, and has ever since occupied' it without paying any rent, and is still in- possession, claiming it as- his own, in right of his wife, and by virtue of the purchase from the other sisters. They answered further, that Alexander M'Pherson the uncle, lived in the neighbourhood for upwards of thirty years; and also that the youngest of their own brothers had been of full age for many years, and that no claim had been- set up by either to any part of the old place, or to the shares claimed by the defendant in the other lands.

The defendants exhibited with their answers the deed mentioned» in. their answers. That made by Mrs. Buie is dated, the 20th of September, 1825, and is of the tenor stated in her answers: that made by Gilchrist and wife is dated the 4th October, 1825, and is of the tenor stated in their answer,, and was acknowledged by her on the same day before a judge, who certified, that “ being privily examined by him as to her voluntary assent to the said deed, she replied that she executed the same without any constraint or compulsion whatever on the part of her husband, or any other personbut the deed attested has never been proved as to the husband, or acknowledged by him.

Before the coming in of the answers, the injunction was dissolved, and replication entered, and testimony after-wards taken, and the cause brought on to a hearing in October, 1832, and a decree made: in.it the Court declared, that the plaintiff was, at the time of executing the contract, in possession of the land mentioned in it as tenant in common, in his right of his wife, with the defendant, and since the agreement, had remained in the sole possession thereof, without eviction or disturbance by any person : that at the time of the contract, the complainant had as full, if not more full knowledge than the defendants of the nature and extent of their respective titles, and claimed in right of his wife, in all respects similar: that the defendants had respectively executed the deeds to the plaintiff which they had exhibited, and tendered the same before suit, and that the plaintiff had refused the same; and that they had been deposited in Court by the defendants, to be delivered over to the plaintiff, if the Court deemed them sufficient when the same should be ordered : that the Court approved of the said deeds as being sufficient, according to the terms of the agreement: and that the Court did not think fit, therefore, to inquire whether the quantity of land was equal to that alleged by the plaintiff to have-been sold: and, therefore, it was decreed that the clerk and master should deliver the said deeds to the plaintiff upon his application: and that the instrument or agreement made by the defendants to the plaintiff, should be delivered up to be cancelled: and that the plaintiff pay all the costs of the suit. From this decree the plaintiff prayed an appeal, but did not prosecute the same.

On the 20th day of. May, 1834, the plaintiff filed his bill to renew this decree, and therein alleged that he had fully performed the same, by paying the sums due on the judgment at law, and by doing all other acts on his part to be performed. The errors assigned are, first, that by the proper construction of the agreement, the plaintiff was entitled to conveyances, with covenants of general warranty, and for quiet enjoyment, and so the decree ought to have declared; whereas the deeds tendered have not any such covenants, and were declared sufficient and proper without them : secondly, that the defendants were bound by the contract also to make to the plaintiff a good title, as well as to enter into covenants- for it, and the Court ought so to have declared: and that the knowledge by the plaintiff of the state of the title, was in no way material to the case: thirdly, that the agreement ought not upon the fact declared to have been ordered to be delivered up : fourthly, that the declaration of the plaintiff’s knowledge of the title, was made without any sufficient relevant or competent evidence : fifthly, that the decree ought to have ascertained, whether the plaintiff would, by the said deeds, get a good title; and if not, to have restored to him the purchase money paid by him, and otherwise relieved him: and lastly, the general errors.

The defendants put in a demurrer, and for causes assign; first, that the plaintiff cannot have a bill of revivor after having his appeal allowed, and failing to prosecute it: and, second, that the bill is signed by one counsel only, when, by the course of the Court, two counsel ought to sign it, and certify, that in their opinion, there is suffici-ground for the same.

On the argument of the demurrer, his Honor Judge Strange, at Robeson, on the last Fall Circuit, sustained the same, and dismissed the bill with costs; and the plaintiff appealed to this Court.

Badger, for the plaintiff,

Devereux, for the defendants.

The signature of one counsel is sufficient to bills of review, for if filed upon newly discovered evidence, they are allowed by the Court j if for error in law, they are a matter of right

After an appeal prayed and allowed, and a failure to prosecute it, the appellant may still file a bill of review.

Ruffin, Chief Justice,

after stating the pleadings as above, proceeded as follows: — The decree on the bill of review does not state the grounds. of it. Whether they were those stated specially in the demurrer, or that the original decree was not erroneous in any of the respects stated in the bill.

The Court is of opinion, that neither of the special reasons bars the plaintiff's bill. It is a matter of practice in England to require the signatures of two counsel of character to a petition for rehearing or for appeal to the House of Lords, in order to avoid delays and prevent frivolous appeals. But we do not find sueh a rule laid down with respect to the bills of review, and it would seem tobe altogether inapplicable. Such bills, upon newly discovered evidence, can only be filed by leave of the Court; and the Chancellor grants that leave upon his own judgment, and not on the certificate of counsel. When they are brought for errors in law, apparent upon the decree, they are regularly entertained as a matter of course, as much so as a writ of error is at law. That is strictly a writ of right. And a bill of review is of that nature according to the course of the Court of Equity ; the only restriction imposed is, to require previous obedience to the decree, and a deposit to answer the costs, or here, as at law, to give security for the costs. It is sufficient, therefore, that, the bills be signed by one counsel.

The power to have a cause reexamined upon appeal, does not preclude a reexamination of it before the same Court in which it was first tried. We think the allowance of the appeal, and the failure to prosecute it, does not make it a decree by consent; nor ought to be attended by the consequences of such a decree in this respect. It is a principle with the Chancellor, as well for his own protection from error, as for the purposes of justice, and the satisfaction of suitors, never to conclude any question by a single hearing. Until a second, hearing be had in some one of the regular modes, any one of them which in the state of the case has not been specifically lost, or abandoned, is open to the party. After appealing and not acting on it, the same party cannot appeal a second time to a higher tribunal. But the first decree does not thereby stand as if it had been affirmed: especially in this state, when the appellee could have brought up the transcript, and asked upon it that the former decree should be affirmed. The opposite party cannot be injured by having the cause reconsidered upon a bill of review: for he can still appeal from the decree on it. Unless it would produce some prejudice to him,' the Court cannot but cheerfully entertain the right to revise its own acts at least once. Indeed it is more respectful that the Judge who pronounced’the decree, should have an opportunity of correcting his own errors in the first instance. The question ■ between1 the parties, therefore, depends upon the propriety of the decree in the original cause.

It has been contended for the plaintiff, first, that the contract ought to have been rescinded, because the defendants could not make him a good title'; and secondly, that if the contract ought to be specifically executed, without regard to the actual state of the title, the defendants ought to have been decreed to make conveyances with covenants of general warranty, and for quiet possession: and, therefore, that he ought,not to have been compelled to accept the deed of .Mrs. Buie, which has no such covenants, but only against her own acts, and those claiming under her, nor to accept that of Gilchrist and wife, because it has not been executed so as to pass even her estate, whatever it may be; and, thirdly, that the decree was erroneous, in .ordering the agreement to be deliveréd up. . ' . -

The merits of the cause depend upon the two first positions; and they again upon the proper circumstances of the contract. It is clear that the plaintiff cannot, upon the words of the agreement, or the understanding of the parties, claim in respect of the Goodson tract, and those called “ Colin M'Pherson’s Estate,” more than a conveyance for such titleas the vendors had : that is a deed with special warranty. There is no allegation of fraud; but the relief is put on the ground of the stipulations of the parties. The bill does riot plainly charge ignorance and a mistake on the part of the plaintiff as to the state of the title; and we suppose it was partly in reference to that charge that his knowledge of the title was declared in the decree: it seems to us to be altogether immaterial in every point of view, so far as- regards those parcels; because he took them at his own risk expressly ; and even if mistake would help him, he does not state it so that the Court can see in what it consisted, nor how it misled him. But the fact was found against him, and the declaration of it in the decree unnecessarily, will not hurt.

TT Upon a bill for a perfofC manee, in hie^vendor is bound to good title, but is not . compelled to covenant patentlyaP" good own acts1IS and those, under ^hfm. But in this ii'seems, that the vendee has a right to of general warranty,

The Court probably conceived, also, that the plaintiff’s knowledge of the title, and his taking possession under it in right of his wife, and her sisters, and the taking exclusive possession under the purchase of the sisters’ shares, were material to the relief which the plaintiff could have in that state of the case, in respect of the “ old plantation,” although he might under the contract itself, if matters had remained as they then were, have been entitled to demand a perfect title to that tract. Then certainly, on circumstances under which a vendee will be held to have waived all objections to the title, and to have so acted as to have . . it in his power to ask for nothing more than the conveyances of his vendor, — what, in such a case, are proper covenants to be inserted in the conveyance, would still have to be determined. In England, although a vendor must show a good title before the vendee shall be eom-pelled to accept it, yet it seems settled that the vendor is not obliged to covenant for the title thus apparently good, ,. . , . . , , • t> beyond his own acts and those claiming under him. But we believe that is not so considered in this country : at least it is not so settled; and in practice the vendee sel-d°m submits the title to counsel, or examines it himself, and therefore requires general covenants, which it is the constant course to give. If his Honor therefore, thought the plaintiff was ever entitled to a reference of the title in this ease, he must deem the rule of England to be that of this state, and that the purchaser cannot ask for r , general covenants; for the deed of Mrs. Buie has none suc^ to aPPended to it, as being proper in the case declared in the decree. That position has never yet been laid down by us or our predecessors; and would require very deliberate consideration, before the adoption or positive repudiation of it. The task of that examination is not imposed on us in this case; for the question does not arise, if the contract between these parties was written for a title, nor for covenants for a title. Such we think is its character ; and therefore all the inquiry into the knowledge or conduct of the plaintiff was superfluous.

The doubt can extend only to the first tract mentioned, —the old plantation, — to which the vendors are to “ make a sufficient title as far as their claim extends on said lands.” It is argued for the pláintiff that those terms in themselves embrace a good title, or at the least covenants for it; and must have that meaning when contrasted with the phrase “ quit claim deed,” which immediately follows, and is applied particularly to the other tracts. “ Sufficient title,” in its proper and obvious sense refers to the interest or estate in the land, and requires it fi> be indefeasible, and it may be also stipulated for the usual covenants for the title and enjoyment. But those words may be used in a different sense; and the question is, whether there is enough here to show that they were- We think there is. They are not contrasted in the agreement with the other words, for the purpose of obliging the vendors to show a good title to one parcel, and dispensing with it as to the others; nor to make a deed with general covenants as to the former, which might be omitted as to the latter :■ The term title is evidently used for deed. That is the vulgar sense in whieh it is often used; and that was the meaning of these parties. Deed dr conveyance must be substituted or interpolated to make it mean any thing; for,. tha,t the vendors should be able to make out a sufficient title, would not serve the plaintiff any purpose, unless they were required to convey it to him. To make a title, therefore, did not mean to make out one; but to make a deed, and a sufficient one, at least in point of form, and to pass the title. We will not say that if the agreement had stopped there the vendors might be deemed to have performed the agreement by a conveyance, good in point of form only, and might not have been bound to make one which was in fact operative, and would carry a good title. But it does not stop with those words. To what are they í0 make a sufficient deed Í Not to any particular undivided share or determinate quantity of land ; but to a certain tract of land, as far as their claim extends on said lands. Now, whatever the former expression may mean, if standing alone, these last words qualify it, and confine it to their claim, such as it is. A purchaser under a notice of a sale of an estate, “ as A. B. held it,” cannot insist upon any title but such as A. B. had; Freire v. Wright, 4 Mad. Rep. 193; even when the sale professed to be of the whole in severalty. To what could a general warranty be answered in this case ? The agreement does not specify what their claim was: what shares or proportions they had, or pretended to have. If the deed, therefore, followed the agreement, and conveyed their “ shares” or claim, the warranty would be futile; for, as far as their shares extended, the title would be good, and the covenant unnecessary, and beyond that the deed would not purport to convey, and there would be nothing for the covenant to operate on. It is said, however, that the vendors claimed each an undivided fourth part, and that establishes what was meant by their claim. But there is nothing in the agreement to that eflfeet; nor, if we can go out of it, is there any thing to show that such was the meaning of the parties. The defendants deny that charge in the bill, and say that they were only to convey the title they had. Suppose it had turned out, that the defendants owned the whole tract, could the Court say they had not contracted to sell the whole, when the agreement is for their claim in the tract without specifying what part ? It may be further argued, that the insertion of a general warranty in the deed of Gilchrist and wife proves the intention. It would certainly be some evidence of it, if they had not explained their reason and denied that inference, and their explanation is supported by the circumstance that the covenant embraces all the different tracts, while they certainly were not bound to warrant all. But what puts the meaning beyond doubt is, that the very same words, “ sufficient title,” are used in the close of the instrument in the sense of “ deed” only. It provides that when “sufficient titles shall be made to said lands,” the bond shall be void. What bonds 1 All that were sold, to parts of which the instrument is express that the sufficient titles shall consist of a “ quitfclaim deed.” We conceive upon the w’hole, that the sense of the parties was, that the defendants sold their interest, whatever it might be, and agreed to convey it by the description of their claim or shares therein. His Honor was, therefore, right in refusing to inquire into their title, either as to its validity or the quantity to which it extended. But we do not concur in that part óf the decree which declares the deeds tendered by the defendants to be proper and sufficient, according to the tenor and effect of the agreement. ■ That of Mrs, Buie we think was, for the reasons already given. If each vendor was bound for the performance of the others, upon the' agreement, she was not; because she was a married woman when it was made, and subsequently undertook!© carry only her own interest, as her hiisband had contracted she should; and her deed is effectual to that' purpose. But that of Gilchrist and wife is not effectual, according to several decisions of this Court,for the want of probate or acknowledgment as to the husband; before which, the wife cannot be privily examined. Burges v. Wilson, 2 Dev. 306. The decree ought, therefore, to have relieved the plaintiff, either by rescinding thé agreement as to that share, unless the husband, in a reasonable time, executed and procured his wife to execute a conveyance duly acknowledged; and we suppose that would have been the decree had- the objection been made or the acknowledgment read at the hearing. It is highly probable that it was not; for it is not even stated as one of the grounds of the bill of review, but is made in argument in this Court for the first time. For that reason we cannot correct the decree, although we think it erroneous in- this respect..

The deed °^ wife”d where the SinatiorTof fore the ac-both, is case of^ Burgess v. Devtlíépf 3063

Upbir ¿ bill °f review for errors in law, only th,ose can be reexamined which are anywhere’ the error' wasthat general were not directed to be inserted in a deed, the plaintiff cannot, at the hearing, the^eecT* was im-executed,

The rule is well established, that a bill of review must recite the former bill, and the proceedings which were had . 1 . on it, so as to hear what matters were in issue; and the former decree, so as to hear how those matters were dis- . 7 ... . posed of; and then the points in which that decree is conceived to be erroneous, so as to show what the party complains of, and how he is injured thereby. It is not enough that there is error, but it must be to the prejudice of the plaintiff; and therefore the other side may look into eveiT part °f the decree, and insist, that upon the whole of it, right has been done. Nor will any error, by itself, do, unless complained of in the bill; because the plaintiff may have had. an interest, at the time, in submitting to that part of the decree which is erroneous, and ought not to retract -when he finds his interest the other way; or the ... ...... * ' . defendants might have withheld this demurrer, and con-sen{e(j {0 the correction of the decree, if the bill had stated ... this objection. It is plain that this plaintiff had an interest wben the decree was pronounced, supposing it to be correct, in either respect, to state the deed as it is; for as the deed of the husband alone, with.covenants binding on him, it is better than the deed of both, without covenants, and will coerce the husband to have a deed by himself and his wife properly executed, in order to pass his title, and prevent that, at least, from being used so as to be a breach of his present covenants. However that may be, a bill of review does certainly bring up the whole decree; but the court-books, at the instance of the plaintiff, only as to those parts of the decree which he particularly complains of, and states in the bill as the grounds of it. Cooper’s Eq. PI. 95. We would not construe the terms in which the errors are alleged, with rigor, so as to exclude from re-examination, any thing that counsel could be supposed to have expected to insist on. But after the most liberal exposition of this bill, we cannot think that this point entered into the imagination of the draftsman. The whole scope of the bill is to have the construction of the contract corrected, and to have it declared that the plaintiff ought to have a good title, or covenant for such a title ; and the only objection to the deed is, that they did not convey such a title, nor contain such covenants. Not a word is said about the insufficiency of the deeds, for want of such execution. Now the Court is of opinion, that the plaintiff was not entitled to those covenants ; and the fact is, that they are in the deed from Gilchrist and wife. But the deed not being good as to her, and that being apparent, as it is said, justice ought to be done to the plaintiff. That is the difficulty ; it is not apparent, and cannot be made to appear in this suit, since the bill has no obligation which will enable the Court to look for the fact in the decree.

Upon a decree for a specific performance, it is proper to order the articles to be cancel-led. But it is otherwise ifthebillbe dismissed.

It has been urged, indeed, that it is covered by the assignment of error in that part of the decree which orders the agreement to be delivered up; which was done upon the idea that it had been performed before the original bill was filed. It struck us, at first, that there was an informality in directing, that, upon the plaintiff’s bill, instead of putting the vendors to their bill, after performance. But it is clearly otherwise. If the plaintiff’s bill had been dismissed, it would have been informal to cancel the agreement in the suit. But the bill was not dismissed, and the plaintiff got all he was entitled to, though not all he claimed. He got specific performance, according to the tenor and meaning of the articles ; for a tender of a deed is not performance of an agreement to convey in this Court, as at law. It only affects costs here, and the ven-dee may still file his bill to get the deed. Here that was done, and obtained, by the decree. Of course, when the agreement was fully performed under the direction of the Court, it was proper the Court should see that the party performing should be safe from further vexation on it. If the plaintiff were to proceed on it at law, the Court would be bound to restrain him by injunction; and therefore might at once detain the instrument, or order it to be delivered over. This part of the decree was therefore right in itself, supposing the construction of the instrument to be right, and we do not perceive how the allegation of error in it can reach the defect in Mrs. Gilchrist’s deed. The cancellation followed as a consequence of performance by the execution of that deed, and, consequently, the error in the order was the result of the defect in the deed. But that defect itself is not complained of in the bill, and therefore the Court can no more declare that there was error in cancelling the agreement, than we can declare it erroneous to have held the deed to be duly executed.

Upon the whole, therefore, the Court does not perceive any error in the decree, as complained of in the bill. Though not formally expressed, it is substantially right; anc* decree of the Court of Equity, whereby the plaintiff’s bill of review was ordered to stand dismissed, with costs, and the decree in the said bill of review complained of, was ordered to be affirmed, is by this Court affirmed, with costs.

PerCüRiam. Decree affirmed.