1816. Hepburn & V. Co. awarded to Dunlop & Co., Hepburn & Dundas should, on that day, pay to Auld as much money as should make up the deficiency; and if, on the other Dunlop & hand, the said purchase money and interest should fall short of the sum awarded, that Auld would, on the same day, pay to Hepburn & Dundas the excess over and above the sum awarded. Lastly, it was stipulated, that if Auld should recover the land, and be enabled to sell the same for more than was allowed to Hepburn & Dundas, by the said agreement, together with the costs and expenses attending the recovery, Auld should pay to Hepburn & Dundas the expenses incurred in prosecuting the suit commenced by them for the recovery of this land. In pursuance of these articles, an award was made by the day mentioned in the submission, which award stated, that the sum of 4,3791. 9s. 03d., sterling, including interest, would be due to Dunlop & Co. on the 1st day of January, 1800. This sum fell short of the purchase money and interest, due by Graham to the same period, the sum of 4947. 6s. 8d., Virginia currency. Hepburn & Dundas having prepared a deed of assignment of Graham's contract, and a power of attorney, as stipulated in the abovementioned agreement, offered to deliver the same to 'Auld on the 2d of January, 1800, which he refused to accept, because the deed recited, as a part of the consideration, that a release had been executed by Auld, of all the claims and demands whatsoever of Dunlop & Co. against Hepburn & Dundas, and because, as is asserted by Auld, Hepburn & Dundas required Auld to execute such a release prior to the 1816. Hepburn & V. delivery of the deed of assignment. The suit of Hepburn & Dundas against Graham, for the recovery of the 6,000 acres of land, was prosecuted against his heirs; and in May, 1801, by a compro- Dunlop & mise between Hepburn & Dundas, and the defendants in the ejectment, judgment was rendered in favour of Hepburn & Dundas. Without noticing, particularly, the conduct of those parties subsequent to the transactions of the 2d of January, 1800, as well as on that day, it may be sufficient to say, that if the tender made by Hepburn & Dundas was, upon the condition asserted by Auld, to have been annexed to it, and if, in consequence thereof, any legal advantage accrued to him, it was waived by his subsequent conduct. As late as February, 1807, Auld made a tender of the difference between the sum awarded to Dunlop & Co., and the purchase money and interest due upon Graham's contract, and demanded a deed; but this demand was made in a manner, and under circumstances, which this court, upon a former occasion, deemed unreasonable. Things remained in this situation, until some time about April, 1801, when Hepburn & Dundas instituted a suit at law against Auld, for the difference between the sum awarded to Dunlop & Co. and the amount of the purchase money and interest due by Graham's contract, on the 2d of January, 1800. About the same time a suit at law was commenced by Auld, against Hepburn & Dundas, upon the agreement of the 27th of September, 1799, to recover the whole sum awarded. In the first case, Co. 1816. Hepburn & V. 'Dunlop & Co. the this court, upon a writ of error, decided upon pleadings, (which were so drawn as to present the Dundas point,) that Hepburn and Dundas had no right to demand of Auld a release of all claims and demands against Dunlop & Co., to be executed as a precedent act to the assignment of Graham's contract, and the delivery of the power of attorney; and, on that ground, judgment was rendered against Hepburn & Dundas." In the other case, the pleadings presented the question, whether the recital of such a release in the deed of assignment offered to be delivered by Hepburn & Dundas, invalidated the tender? Upon a writ of error, it was decided, by this court, that the recital of the release could not impair the rights of Dunlop & Co., under the agreement of September, 1799, and that it formed no objection to the assignment; consequently, that the tender and refusal amounted to a performance, in like manner as if Auld had accepted the assignment; but that Hepburn & Dundas would still be obliged to execute a proper deed of assignment, and a conveyance of the land, whenever they should be required to do so. Judgment was, accordingly, rendered in this suit against Auld.” Hepburn & Dundas having been thus defeated in their attempt at law, to enforce a performance of the agreement, filed a bill in equity, praying for a specific performance. The answer of Auld contained, amongst other objections to a specific performance, an allegation that the title of Hepburn & Dundas 1816. Hepburn & V. Co. to the land was defective. Hepburn & Dundas then set forth their title in a supplemental bill. This suit came on to be heard, upon an appeal to this court, at the same time that Auld's suit at law against Hep- Dunlop & burn & Dundas, above mentioned, was decided. This court determined, 1st. That since Auld had, by his conduct subsequent to the 2d of January, 1800, waived all objections to the tender of the assignment of Graham's contract on that day, and did not refuse to receive a conveyance which was offered to be made by Hepburn & Dundas, in June, 1801, on account of any defect in the title, but for other reasons which would equally have operated with him had there been no such defect, Hepburn & Dundas would still be entitled to a specific performance if they could then make a good title. 2dly. That the title appeared by the bills to be defective as to 20 acres, being Thomas West's part of Mrs. Bronaugh's 1,000 acres, and also his part of Francina Turner's interest in the same tract, and also on account of the failure to record Thomas West's deed to Hepburn & Dundas for 1,000 acres. For these defects in the title, the bill was dismissed. Presuming that this decree, which seemed to close for ever the doors of a court of equity against Hepburn & Dundas, opened them to Dunlop & Co. to get rid of the contract altogether, Auld filed the bill which is now under consideration, stating, amongst other things, the previous and present inability of Hepburn & Dundas, to make a good title to this 1816. Hepburn & V. Dunlop & Co. be set land; Hepburn & Dundas seem to have given a very different construction to the above decree, and suppos ing that if, within a reasonable time after it was pronounced, they could remove the objections to their title which were pointed out in the decree, they might still call for a specific performance, they soon obtained a conveyance from the heirs of Thomas West, of all their right, title, and interest in and to this land, and on the 27th of March, 1809, less than a month after the decree of dismission by this court, they offered to convey to Auld a good and sufficient title. This offer being refused, Hepburn & Dundas filed a bill against Colin Auld, as attorney of Dunlop & Co., setting forth their ability and readiness to convey an unexceptionable title to this land, and praying that Auld, or Dunlop & Co, might be compelled to accept of a conveyance, and to pay the difference between the agreed value of the land and the sum awarded. These suits came on to be heard at the same time. In the suit brought by Dunlop & Co., against Hepburn & Dundas, it was decreed by the court below that Hepburn and the heirs of Dundas should pay to Dunlop & Co., or their agent, the sum of 33,060 dollars 37 cents, being the amount of the sum award |