1803. O'HERLINY V. HEDGES. Bill praying agreement for a lease for lives ought to name the lives to be inserted. not be imagined for a moment that the plaintiff would answer such a description. It is clear that Hedges cannot be compelled to perform this agreement, unless he has covenants from Riordan as a man of substance for the performance of these terms: now though, if the lease had been executed, Riordan would have been bound, and then the plaintiff would have had a right to an assignment on indemnifying Riordan from the covenants, yet where is his right to compel Riordan to enter into these covenants ? I apprehend the principle of equity does not compel him to do so. (And I am to consider what was the value of the lands in 1789; not what it is now, and whether it was so valuable that another person would have been disposed to indemnify against these covenants.) But I cannot compel Riordan to enter into these covenants; if he had entered into them, and had done an act that was fraudulent against his cestui que trust, he must have abided by the consequences; but not having done so, can I decree him to enter into these covenants ? Yet I must do so, to make the decree that is sought; on this ground, therefore, it is very difficult to make the decree that is sought. But the plaintiff by his bill does not offer any thing on execution of an the subject: he does not name lives to be inserted in the lease, which is an important part of this case, for the lease, if any, must be for three lives: lives named in 1789 might all have died, or two of them, or one of them might have died since. The circumstance of delay is very considerable in this case; and it is no excuse that the plaintiff was under difficulties, for though that would excuse a delay that was prejudicial to himself, it would not excuse a delay that was an injury to a party who is now, in 1803, to have a lease forced upon him which ought to have been executed in 1790. The whole case of the plaintiff rests upon part-performance; for without it, his case comes within the statute of frauds. Now what is the part-performance relied on? is it payment of the sum of 100%.? that payment is no injury to the plaintiff: it is an injury to Riordan, who cannot be allowed it against the plaintiff: and the increased rent stands on the same ground(a). Then comes the possession of the wood-land by Mr. Hedges, the only thing that makes any difficulty in the case. What are the circumstances with respect to that? it is true he had the possession and cut down the trees. They were his own trees, and it was no injury to the tenant to cut them down, except the trespass on the land if he entered to cut them down without authority. But I will suppose that his object was to take this ground into his demesne: that object is defeated; for before he had raised his wall two feet high, these matters came out, and then he abandoned it. From 1792 to 1803 he had received no benefit from the contract: and it was not his fault that he had not, for he was deceived by the person with whom he contracted, who did not acknowledge that he was a trustee; and the instruments under which he claimed an interest do not shew him to be a trustee, so as to raise a constructive notice against Mr. Hedges. Is this a ground for a court of equity to interpose by decreeing a specific execution, which is an extraordinary mode of relief, given to aid the defective relief that a court of law can afford, which can only give damages? Suppose 'Riordan had brought his action against Hedges, what damages would a jury give him? none at all, or merely nominal, because he was not fairly dealt with. He would be obliged to pay the 100%. indeed, and that he offers to do (a) That payment of money is not part performance of an agreement touching land, vid. ante 41, 42, Clinan v. Cooke, and cases there referred to. by his answer. But this is a contract on which no action at law could be maintained, notwithstanding what Mr. Justice BULLER says in one or two cases, that part-performance takes a case out of the statute, at law as well as in equity. That opinion will be found wrong; and I recollect Mr. Justice BULLER, upon being pressed with the consequences of that opinion in case of a demurrer to evidence, being obliged to abandon the position. The ground on which a court of equity goes in cases of part-performance, is that sort of fraud which is cognizable in equity only. But suppose, instead of an action, that Riordan had filed his bill against Hedges. Riordan could not have a specific performance because he had misconducted himself, so that the bill would have been dismissed as against him. Then what is this case? The plaintiff can stand only in the situation of Riordan, on the principle that Riordan being trustee can gain no benefit to himself, and bringing it to that, I think the decree was right. There is a great deal to be considered with respect to contracts of this kind. Here is a contract for the occupation of land, in which contract the solvency and the character of the tenant are intimately concerned: they are not so important however as if the lease were at a rack-rent-there the solvency and character of the tenant are every thing. Now, suppose a trustee was to contract for a lease at a rackrent, and that cestui que trust filed a bill for a specific performance: says the defendant,' I agreed with this man as a "good tenant-a solvent man, and skilled in the improvement ' of ground: you are poor-you are ignorant of the cultiva'tion of land; and because he happens to be your trustee, ' though there is no trust apparent, must I put upon my estate a tenant who will ruin it.' Can this be equity? I think not. If indeed such a lease had been actually execut- I think it would be infinitely too much to found such a decree as is sought, upon a principle made for a quite different purpose, and therefore I think the former decree. ought to be affirmed, but without costs, as there was some doubt in the case. 1803. O'HERLIHY V. HEDGES. 1803. March 9. Purchase money unpaid is, prima facie, a lien on the lands sold; and if a security is taken for that money, it lies on the vendee to shew that the vendor agreed to rest on that securi ty, and to discharge the lands. A note passed by ven dee to a trustee for part of the Y HUGHES v. KEARNEY. By indentures of lease and release, bearing date the 18th and 19th days of March 1741, Thomas Hughes conveyed the lands of Moortown in fee to John Kearney, the father of defendant, in consideration of the sum of 2,050.; and a receipt for that sum was executed on the back of the conveyances: but the sum of 1,2451. remaining unpaid at the time of executing the deeds, Kearney executed a promissory note for that sum to William Knox as a trustee for Hughes; and there being debts of Hughes affecting the lands, the amount of which was not ascertained, it was agreed that the note should remain in the hands of the trustee until they should be ascertained. In July 1742, Kearney paid 600% to the trustee in part discharge of the note, and in August 1743, | he paid off a judgment debt affecting the lands, of 3401. 18. 7d. Several other small payments were made, the last of not ascertained which was on the 7th of April 1746, at which time there was a balance due of 3214 on account of the note. In December 1749, Kearney filed a bill against Hughes and Knox, praying an account of judgments and incumbrances affecting the lands, and that they should account with him; and that the note should be brought in and given up to Kearney, he paying what was due thereon, (if any thing). That suit was protracted from various causes till June 1767, when there was a decree to account, but nothing further was done in the cause, purchase mo ney, out of the amount of which incumbrances then were to be sat isfied, and the balance only paid to the vendor, is not such a security as will dis charge the lien on the lands. Thomas Hughes died in May 1769, and in February 1770 the present bill was filed by his younger children, the principal object of which was to make the purchased lands lia |