CIRCUIT COURT OF THE UNITED STATES.

Spring Circuit.

MASSACHUSETTS, MAY TERM 1829, AT BOSTON.

Hon. JOSEPH STORY, Associate Judge of the Supreme Court. BEFORE Hon. JOHN DAVIS, District Judge.

ARCHDEACON MC NEIL vs. JAMES MAGEE AND OTHERS.

Bill for a reconveyance of an estate upon an agreement and subsequent award, dismissed upon the circumstances, the bill being brought against purchasers after a considerable lapse of time, the original vendee being dead and insolvent. Where an award directed each party to release to the other certain estate, and the term of 20 days was directed, within which the acts were to be done; the acts are to be deemed concurrent acts, so that neither party can insist upon a release without offering to execute a release on his own part to the other party. Courts of equity have jurisdiction to enforce a specific performance of an award respecting real estate. But he who seeks performance must show a readiness to perform all the award on his own part.

After long delay and laches a court of equity will not decree a specific performance of an award, especially where there has been a material change of circumstances, and injury to the other party.

A fortiori, it will not decree it against purchasers even with notice, if their vendee is dead and insolvent so that they can have no remedy over.

Quære, in what cases a court of equity will award damages as a compensation for delay on a bill for a specific performance.

In what cases the registry of a deed is constructive notice.

The registry of a deed or paper not duly for legally recorded, is not constructive no

tice.

Quære, if an award respecting real estate is required to be registered by the laws of Massachusetts.

Mc Neil vs. Magee et al.

Notice, if denied by the answer, must be proved by two witnesses, or by one witness and circumstances.

If a bill admits the defendant to be a purchaser of the legal title, and the plaintiff sets up an equitable title, and demands a conveyance of the legal title to himself, he must aver and prove all the material facts to entitle him to such conveyance. If he relies on notice in the purchaser, he must aver it in his bill, and if not admitted by the answer, he must prove the notice before he can have relief.

A purchaser, who chooses to answer the bill generally, need not aver, that he is a purchaser without notice. The plaintiff must prove notice.

BILL in equity. The cause came to a hearing upon the bill, answers, depositions, and exhibits; and was argued by Sumner and Webster for the plaintiff, and by William Sullivan for the respondents. The material facts are stated in the opinion of the Court, as follows.

STORY J. This is the case of a bill in equity, which was set down for a hearing at the last term, but from circumstances, to which it is unnecessary to allude, argued at so late a period of the term, that a continuance of it for advisement became indispensable.

On the 13th of February 1808, Mc Neil (the plaintiff) executed two deeds of conveyance (which were recorded on the same day) to James Magee, (one of the original defendants but since deceased,) whereby, for the asserted consideration of $40,000, he granted to Magee, in fee simple, certain parcels of land in Charlestown, Massachusetts. On the same day an agreement under seal was executed between the same parties, whereby, after reciting the sale by the deeds aforesaid, and that Magee had given his notes for the $40,000 purchase money to Mc Neil, and that Mc Neil was indebted to sundry persons as by a schedule annexed, amounting to $18,850, Magee covenanted, "that whenever the said Mc Neil, his heirs, &c. shall feel dissatisfied with the said security of the purchase money aforesaid, or shall require a reconveyance of the estate described by said deeds, and shall give notice thereof to the said Magee, his heirs, &c. he or they shall forthwith reconvey to said

Mc Neil vs. Magee et al.

Mc Neil, his heirs, &c. all right and title derived to him the said Magee by virtue of the two deeds aforesaid, the said Mc Neil giving up to the said Magee his notes aforesaid. And if the said Magee shall then have made any lease, sale, or other conveyance respecting any of the lands aforesaid, the same shall go to the benefit of the said Mc Neil, his heirs, &c. the notes, money, securities, or other property received in lieu thereof by said Magee to be transferred, &c. to the said Mc Neil, his heirs, &c. unless the said money &c. shall have been previously applied in payment of any of said Mc. Neil's debts as aforesaid." And it was therein afterwards declared, that "the true intent and meaning of the aforesaid contract is, that in case the said Mc Neil, his heirs, &c. shall elect to deliver up to the said Magee, his heirs, &c. the notes aforesaid, and have the land reconveyed to him or them as aforesaid, that the said Mc Neil shall account for, and repay all the sums paid by the said Magee on his said notes; and that the said Magee, his heirs, &c. shall account for all the lands sold, leased, or otherwise transferred, or incumbered either by applying the avails thereof to the said Mc Neil's debts as aforesaid, or any part thereof, or by transferring the said proceeds specifically to the value thereof to the said Mc Neil, his heirs, &c. on request; and all the residue of said estate, which may be unsold at the time of accounting as aforesaid, shall also be reconveyed to the said Mc Neil, his heirs &c. ; excepting however any and all incumbrances, whereby the said Mc Neil is to be benefited by having the amount, for which the same may have been incumbered, applied to the discharge of his debts, as herein provided. The said Magee to retain sufficient property to pay all reasonable expenses he may incur, in all negotiations in said property, and a just and fair compensation for his own time and trouble." This agreement was not recorded until the 25th of September 1809. There was a correspondent agreement executed by Mc Neil to Magee on the same day, giving Magee a like election to give up the purchase on the same terms, mutatis mutandis.

Mc Neil vs. Magee et al.

Difficulties, as might naturally be expected, soon grew up between the parties in the execution of the trusts thus generally created, and carrying in their own bosom the elements of discord.

On the 13th of April 1811, Mc Neil and Magee entered into an agreement under seal, by which they submitted all claims and demands growing out of the deeds and contracts aforementioned, or otherwise, to three arbitrators, and covenanted to abide by any award, which they or any two of them should make in the premises, under a penalty of $50,000. It was specially covenanted, that for any sums of money which the arbitrators should award to Magee for expenditures, services, &c. he (Magee) should take in payment and satisfaction such portion of the lands conveyed to him, as the arbitrators should award; and that the arbitrators should make a valuation of the lands conveyed, and award what portion should be conveyed to Magee, and what to Mc Neil, and describe the same accordingly, and state the time when the deeds necessary to carry their award into effect should be executed; and that Magee should reconvey all the rest and residue to Mc Neil in fee simple, free of incumbrances by him made; and that McNeil, on receiving such conveyance, should release to said Magee all right, title, claim, and demand, in law and in equity, as to the portion of said land, which should remain to Magee, and be by him held. The promissory notes were to be deposited with the arbitrators; and upon delivery of such deed to Mc Neil, or tender of delivery, the said notes were to be given up to Magee.

The arbitrators, after many hearings of the parties, on the 21st of May 1811 made their award. By it they awarded, that a balance of $27,100 was due from Mc Neil to Magee. They then proceeded to state their valuation and division of the lands conveyed, describing the same specifically, and awarded one portion, equal in value to $27,100, to Magee, and the other portion thereof, equal in value to $2832, to Mc Neil. They further

Mc Neil vs. Magee et al.

awarded, that Mc Neil should within twenty days execute a deed or deeds of release to Magee, with covenants of warranty against incumbrances made by him, and of all lawful claims of persons claiming under him, as to the lands awarded to Magee. And that Magee should execute within twenty days a deed or deeds of gift, grant, bargain, sale, and release, to Mc Neil, of all the land awarded to him, with like covenants of warranty.

On the 18th day of August 1811, Magee tendered a deed to Mc Neil duly executed and acknowledged by him, (Magee,) of the land awarded to Mc Neil, in conformity to the terms of the award; and at the same time requested Mc Neil to execute and acknowledge a deed of the lands awarded to him, (Magee,) which deeds were drawn up in conformity to the award. Mc Neil refused to receive the deed executed and acknowledged by Magee, and also to execute the deed prepared for him to execute to Magee.

A suit was brought by Magee against Mc Neil at the January term of the Court of Common Pleas for Suffolk County, 1812, for the penalty in the submission, to enforce the award. At the September term of the same Court in 1812, a suit was brought by Mc Neil against Magee, upon the notes given for the $40,000 purchase money. Both of these suits were brought to a decision at the March term 1814, of the Supreme Court of the State of Massachusetts, the first upon a demurrer to special pleadings; and the last upon an agreement of facts by the parties, bringing the validity of the award before the Court. After a hearing and due proceedings had, the Court appear to have adjudged the award good, as a bar to the suit upon the notes; and the other suit was decided in favour of Mc Neil upon the pleadings, the plaintiff's replication being adjudged to be bad and insufficient.

In the years 1813 and 1814 Magee sold the lands awarded to Mc Neil, for various considerations, to certain of the defendants; and in December 1814 he mortgaged the lands awarded to himself, (excepting that part, which had been mortgaged to Marga