McCabe v. Matthews/Opinion of the Court
A decree for the specific performance of a contract for the sale of real estate does not go as a matter of course, but is granted or withheld according as equity and justice seem to demand, in view of all the circumstances of the case. Pratt v. Carroll, 8 Cranch, 471; Holt v. Rogers, 8 Pet. 420; Willard v. Tayloe, 8 Wall. 557; Hennessey v. Woolworth, 128 U.S. 438, 9 Sup. Ct. 109.

Tested by this rule, the decision of the circuit court was unquestionable correct. There is no averment in the bill of a tender of any money by plaintiff to defendant, and while it may be that the stipulations in the contract of conveyance by defendant and payment by plaintiff are independent covenants (Loud v. Water Co., 153 U.S. 564, 14 Sup. Ct. 928), and that the obligation of conveyance precedes that of payment, yet the omission of a tender is significant upon the question of how much the plaintiff suffers by reason of a refusal to decree specific performance. The only sum which defendant has received is one dollar, and that is the only definite amount which it is shown the plaintiff has expended. It is true the bill alleges that after the contract he went to the county seat of Volusia county, and expended time and money in obtaining information concerning the title, but how much time and money is not disclosed. In other words, the plaintiff, having invested a dollar in this speculation, waits nine years before he comes into a court of equity to ask a decree for the performance of his contract of purchase.

On the other hand, by the agreement between the defendant and Mrs. Montgomery, he was to convey to her a tract of land containing five acres, which he was to plant with five hundred orange stumps, the stumps budded with sweet buds, and grarantied to grow; to fence the land, and keep the trees from being damaged by stock of any kind. By the first instrument executed by the defendant, to wit, the assignment of a half interest in the agreement, the plaintiff was doubtless under obligation to assume the burden of half the consideration to be paid by defendant to Mrs. Montgomery. The second instrument, the contract to convey, upon which this suit is brought. executed the same day, was apparently in substitution of the assignment, and perhaps made the payment of the $150 the equivalent of such half of the consideration. As the defendant obtained a deed from Mrs. Montgomery, it is to be presumed that he fully complied with the terms of his contract with her; that he conveyed the five acres and performed all the work required thereon. Such was his investment over against the plaintiff's one dollar.

While plaintiff was not informed by defendant that the latter repudiated the contract, he had the very same year good reason to believe that such was the fact, because his letters to defendant were unanswered; indeed, his suspicions were aroused, and in consequence thereof he caused his contract to be recorded before the close of the year 1880. The deed to defendant was duly recorded in July, 1884, and the plaintiff had actual knowledge of this in the spring of 1887. Notwithstanding all this, he waits until March 1, 1889, before filing his bill, and, upon the entry of a decree against him, on April 13, 1889, he waits until March 9, 1891, before taking his appeal to this court.

Nowhere on the face of the bill is the value of the property disclosed; nothing to show a value sufficient to give jurisdiction to the circuit court, but by the affidavits filed after the decree of dismissal it appears that the entire property was worth at the time of the decree (which was less than a month and a half after the filing of the bill) the sum of $15,000. Great has been the change in the value of the premises! The half interest was worth at the date of his contract, as shown by the stipulated price, but $150, while at the time he brings his suit it is worth $7,500. It does not appear that he has done anything towards bringing about such increase of value, and no excuse is shown for his ignorance of the exact condition of affairs, or his inattention to the matter, except his residence in a remote province.

So that we have presented the case of one who, investing a dollar in a proposed purchase of lands, and doing nothing to assist his vendor in furnishing the property or performing the work necessary to be furnished and performed by such vendor to acquire the title to the lands, waits nine years after his contract has been entered into, nearly nine years after he has good reason to believe that such vendor repudiates all liability under the contract, nearly five years after notice has been given by such vendor of his acquisition of the title by filing the deed in the public records, two years after he receives actual notice of that fact, and then, without the tender of any money or other consideration, appeals to a court of equity to compel such vendor to deed to him an interest in land worth at the time of his contract only $150, and now $7,500. It seems to us to be a case of a purely speculative contract on the part of the plaintiff. Doing nothing himself, he waits many years to see what the outcome of the purchase by defendant shall be. If such purchase proves a profitable investment, he will demand his share; if unprofitable, he will let it alone. Under those circumstances, the long delay is such laches as forbids a court of equity to interfere. The decision of the circuit court is right, and it is affirmed. 

Notes