APPEAL from the circuit court of the United States for the district of Tennessee.
The case, as stated in the opinion of the court, was as follows.
The suit was brought in February 1823, for a specific performance of a contract, made in January 1794, for the sale of land, under the following circumstances. On the 6th of January 1794, John Rogers, of Virginia, executed his bond to James Dickinson, of the same state, in the penal sum of two thousand pounds, upon condition, after reciting that Rogers had on that day sold to Dickinson a tract of land lying in Kentucky, containing about twelve hundred acres, for one hundred and twenty pounds, that if Rogers, his heirs or assigns, shall make, or cause to be made to Dickinson, or his assigns, a good and lawful deed for the land, when required, then the obligation to be void. On the same day, Dickinson executed to Rogers a counter bond, in the penal sum of two hundred and forty pounds, upon condition, after reciting the sale of the same land to Dickinson, and the receipt by Rogers of forty-five pounds, part of the consideration money, 'that if Rogers shall, on or before the 1st day of January 1795, make a fair and indisputable title in fee simple to Dickinson, &c. of the said tract or parcel of land, and Dickinson, after that conveyance being made, shall pay to Rogers the further sum of seventy-five pounds lawful money; but if no such conveyance of said land shall be made, then the said Rogers stands indebted to the said Dickinson in the sum of forty-five pounds already advanced as mentioned aforesaid, then this obligation to be void, or else to remain in full force and virtue.' At the time of this contract of sale, Rogers had no patent fot the land; but only a plat and certificate of survey of it upon a military warrant. Rogers died in April 1794, without children, unmarried and intestate, leaving his father, George Rogers, his heir at law, who then lived in Virginia, and afterwards died there in March 1802, having, by his last will, devised the land in controversy, of which he had obtained a patent in 1799, to his two sons, Edmund Rogers and Thomas Rogers (the defendants), and to his four daughters, to each of them one sixth part; and constituted his said sons trustees for his four daughters during their lives, and afterwards for their children respectively in fee, with power to sell the same, &c. He also appointed his two sons executors of his will.
Dickinson continued to reside in Virginia until his death, in 1806; and by his last will, he devised his estate to his wife Mary Dickinson, under whom the plaintiff, Ann Holt, claims, as her daughter and sole heiress at law, the land in controversy. The suit is brought against the defendants, Edmund and Thomas Rogers, without making the four daughters, or any of them or their representatives, parties.
The circuit court dismissed the bill of the complainants, and they prosecuted this appeal.
The case was submitted to the court on printed arguments, by Mr Bibb, for the appellants; and by Mr Tompkins, for the appellees.
The argument for the appellants stated, that the defendants, by their answers, exhibit the obligation from Dickinson to Rogers, above recited, and rely on two defences:
1st. 'That the obligation from Rogers to Dickinson, and from Dickinson to Rogers taken together, leaves it entirely optional with said Rogers whether he would convey the land or not: and if he did not convey it, he was then bound to pay forty-five pounds.'
2dly. Length of time.
Upon hearing, the circuit court dismissed the bill.
As to the first defence set up by the defendants, the counsel for complainant believes it is not tenable.
Rogers bound himself, absolutely and unconditionally to convey the land to Dickinsen, at no fixed day, but 'when required.' The bond of Rogers to Dickinson recites the transaction as a sale, not as a security for money lent. The penalty is two thousand pounds, evidently intended to enforce a conveyance. The bond from Dickinson to Rogers is in the penalty of two hundred and forty pounds; the condition recites the transaction as a sale of the land for one hundred and twenty pounds, and the payment of forty-five pounds thereof. It is an obligation upon Dickinson to pay the residue of the purchase money on or before the 1st day of January 1795; and there is annexed thereto, as a precedent condition to be performed by Rogers, 'the conveyance of a fair and indisputable title in fee simple.' 'After that conveyance being made,' Dickinson was to pay the residue of the price. If the conveyance was made before the 1st January 1795, yet Dickinson was not bound to pay the balance until that day.