sufficiently stated in the opinion of the Court, which was delivered at Harrisburg, May 14, 1857, by

WOODWARD, J.-This is an equitable ejectment by a vendee's vendee, to enforce specific performance of articles of agreement; and the defence on the part of the vendor was, that there had been such delay, backwardness and laches on the part of the vendee that he was not entitled to demand specific performance. The articles were entered into on the 3d January, 1827, by Thomas Astley, for the sale to James M'Conkey of three lots in the borough of Erie, numbered 3230, 3231 and 3234, for the sum of $1800, payable $200 down and the residue in annual instalments, the last of which fell due January 1, 1831. M'Conkey paid the hand-money, went into possession and made further payments on the contract, as follows:

There remained due on the contract at the date of the last of the above payments, $1004 83.

On the 8th January, 1838, James M'Conkey sold and conveyed to the plaintiff in this action, one of said lots, No. 3234, by a deed which acknowledged a consideration of $1000, but of the payment of which there was no other evidence in the case.

In February, 1839, James M'Conkey died, insolvent; and in 1846, Henry Crammond, who six years before had purchased the legal title of Mr. Astley brought ejectment against the widow and heirs of M'Conkey, and on the 10th January, 1848, obtained judgment by default, and the ensuing May Term executed a writ of possession. Crammond, by his agents and tenants, have had the possession ever since. Temple is in under him and defends on his title.

William M'Conkey, though named in the writ of ejectment, was not served. He lived in Baltimore. The executors of James

M'Conkey having no means of payment endeavored to sell the property, but could get no offers for it beyond what was due on the contract. Jacob Hanson, one of the executors, swore that he applied to William M'Conkey to advance the money to pay the balance of the purchase-money, but he declined. This executor says they commenced offering to sell about 1842 or 1843. In 1844 or 1845, John Galbraith became the administrator de bonis non of James M'Conkey's estate, and tried to ascertain the value of the lots, but found they would not bring enough to pay the balance of purchase-money. The residue of his estate paid less than six per cent. of the judgments against it. On the 6th May, 1854, a tender of $1670 was made to Crammond's agent, there being then due on the contract $2016 31 besides $23 44 costs on the ejectment.

It does not appear from the evidence on our paper books by whom this tender was made. The plaintiff's counsel in their counter statement represent it as made by Thomas M'Conkey, one of the devisees of his father James, who came of age in the spring of 1854. The Court treated it as no doubt it was, a tender by William M'Conkey, the plaintiff. These are all the facts material to the questions which are here for review.

It is self evident that William M'Conkey's equities are founded on the contract of James M'Conkey. The Court ruled very properly that the M'Conkeys could not sever the contract for the three lots, without the consent of Astley or Crammond, and there was no evidence of such assent. If, therefore, William paid James $1000 for one of the lots, he held it subject to the purchase-money due on the articles, and was bound to the same equities as his grantor James. And though the present action is only for the one lot, he cannot recover unless a chancellor would decree specific performance of the whole contract. But the heirs or devisees of James M'Conkey are not asking for specific performance of the contract, and it is evident they have no interest in it, for the estate if conveyed to them would be swept by their father's creditors. The counsel for the defendant in error must see that this distinguishes the case from Heft & Hix v. M'Gill, 3 Barr 256, on which he relied. It is not the case of a bill in equity by heirs

VOL. I.-24

and devisees just emerged from the disabilities of their minority; but by a purchaser from the original vendee, who, to obtain title to the part he purchased, must make out the equity of his vendor to have specific performance decreed of the whole contract. Unless, therefore, James M'Conkey, if in full life could obtain a decree in his favor for the specific execution of the entire contract with Astley, this present plaintiff has not one inch of ground to stand on.

Well, then, what equity would James M'Conkey have were he on this record? From the time he went into possession under his contract until his family were turned out by legal process, more than 21 years, his payments amounted to only $151 28 more than the legal interest on the purchase-money. Bound by his contract to pay $1800 within four years, he paid only $151 28 of it in twentyone years. And then, lying by six years more, his vendor having meanwhile recovered the possession, he comes in, in 1854, twentyseven years from the date of the contract, and tenders what was due when the possession was changed in 1848, considering that the vendor's possession had kept down the interest since that time. This is very remarkable ground on which to ask for a decree of specific performance, especially in view of what was said in Tiernan v. Roland, 3 Harris 438, that a man cannot call upon a Court of equity for specific performance, unless he has shown himself ready, desirous, prompt and eager; and therefore time alone is in some instances, a sufficient bar to the aid of the Court. In Milberd v. Earle of Thayne, 5 Vesey 720, after a delay of seven years, the bill was dismissed on account of the staleness of the demand.

True, it is a maxim in equity, that time is not of the essence of a contract. Still it may be made so by the express stipulation of the parties, or it may arise by implication from the nature of the property or the avowed objects of the parties in buying or selling. And even when time is not thus expressly or impliedly of the essence of the contract, if the party seeking specific performance has been guilty of gross laches, or has been inexcusably negligent in performing the contract on his part, or if there has in the intermediate period been a material change of circumstances affecting

the rights, interests or obligations of the parties, in all such cases courts of equity refuse to decree any specific performance upon the plain ground, that it would be inequitable and unjust: per Story, J., in Taylor v. Longworth, 14 Peters 174.

The Court has often recognised and acted on these principles, and they are decisive against the plaintiff's action. It cannot be said that Astley was in the first default; for though he was to make the deed on payment of the third instalment, that was not paid according to the contract.

By the terms of the contract there would have remained due on the first of January, 1830, the time when the third instalment and interest were payable, only $400 of the purchase-money; instead of which, there was due on the 23d September, 1830, after the payment of that date, the sum of $1001 84. It is apparent, therefore, that Mr. Astley was not bound to make the deed on first January, 1830, and that the first default under the contract was on the part of M'Conkey.

Not only was the first default on his part, but afterward such gross laches as to destroy his claim to equitable relief. And besides, his death and the utter insolvency of his estate, as well as the long acquiescence of the plaintiff in the resumption of possession by the vendor, and his refusal to perform on the part of his vendor when solicited, are circumstances which so materially affect the rights, interests and obligations of the parties, that they would for ever restrain a chancellor from decreeing specific performance. No case that deserves to rank as an authority can be found to justify a decree upon such a state of facts.

We are, therefore, of opinion that the Court ought to have affirmed unqualifiedly the doctrine of the defendant's points. But they put the case to the jury on the intent of the plaintiff to acquiesce in Crammond's resumption of the possession. Granting that such intention was not found, this was not broad enough ground to rest a decree of specific performance upon. What if William M'Conkey did not intend to acquiesce in Crammond's possession? He did submit for six years, which was unreasonable delay. And if there had not been this delay-if he had demanded performance of the articles directly Crammond got into possession,

how would he have cured the previous gross laches? His promptness, had there been any, would have come too late.

The judgment is reversed and a venire de novo awarded.

Porter v. Dougherty, 1 Casey 405; Todd v. Campbell, 8 Id. 250; Coughanour v. Bloodgood, 3 Id. 285; Miller v. Henlan, 1 P. F. Smith 265; Lauer v. Lee, 6 Wright 165; Miller v. Phillips et al., 7 Casey 218; Church v. Ruland, 14 P. F. Smith 432.

In the Circuit Court of the United States-Western District of Pennsylvania.

Fox v. THE HEMPFIELD RAILROAD.

(Vol. V., p. 37, 1857.)

If parties, in making a contract under which disputes are contemplated as possible, agree under seal to submit any such disputes to private arbitration, as e. g., to the award of some third person, so that his decision shall be final and conclusive on them both, it is a bar to any action on the contract, that the plaintiff does not either aver and prove such award, or aver and prove such facts as excuse it.

THE plaintiff, a contractor on the Hempfield Railroad, declared in an action of covenant, on an article of agreement made by him with that railroad company, the present defendant, for the construction of a section of the road. He averred that he commenced the work according to contract and continued to prosecute the same, and was ready and willing to have completed it, but was hindered and prevented by the defendant from prosecuting and completing the work and was thereby deprived of his reasonable gains and profits that would have accrued to him, to the amount of fifty thousand dollars. He averred also that the defendants have not paid him for work which he did, the sum of twenty-five thousand dollars.

The defendants craved oyer of the articles of agreement, which on being read showed the following clause in them:

"And it is mutually agreed and distinctly understood that the decision of the chief engineer for the time being, shall be final