
15 U.S. 290 (1817)
2 Wheat. 290
MORGAN'S heirs
v.
MORGAN et. al.
Supreme Court of United States.
March 8, 1817.
March 11, 1817.
*293 Mr. M.B. Hardin and Mr. Jones, for the appellants.
*295 Mr. Talbot, contra.
*297 Mr Chief Justice MARSHALL delivered the opinion of the court.
In this case two questions respecting the formal proceedings of the circuit court have been made by the counsel for the appellant.
The first is, that one of the complainants in the original suit having settled in the state of Kentucky after this bill was filed, that court could no longer entertain jurisdiction of the cause, and ought to have dismissed the bill.
We are all of opinion that the jurisdiction having once vested, was not devested by the change of residence of either of the parties.
*298 2d. It appearing from the will that at its date the testator had a child who is not a party in this suit, the bill ought to be dismissed, or the decree opened and the cause sent back to make proper parties.
It is unquestionable that all the coheirs of the deceased ought to be parties to this suit, either plaintiff or defendant; and a specific performance ought not to be decreed until they shall be all before the court. It would, perhaps, be not enough to say that the child named in the will, and not made a party, is most probably dead. In such a case as this, the fact of his death ought to be proved, not presumed.[b] But as the opinion of the court on the merits of the cause will render it unnecessary to decide this question, it is thought best for the interest of all parties to proceed to the consideration of another point which will finally terminate the contest, *299 so far as it is to be determined in a court of equity.
This is a suit for the specific performance of a contract, either by conveying lands in the state of Ohio, stipulated to be conveyed as the consideration for land sold in the state of Kentucky; or, if that be out of the power of the obligor, by paying money in lieu thereof. Although the contract is not contained in one instrument, but consists of two bonds, the one given by Charles Morgan of Pennsylvania, binding himself to convey the land in Kentucky, and the other by Charles Morgan of Kentucky, binding himself to convey the land in Ohio; yet, it is essentially one contract; and it sufficiently appears that the land in Ohio forms the consideration for the lands in Kentucky. It is then a case standing on those general principles which govern all applications to a court of equity, to decree the specific performance of a contract.
In cases of this character, no rule is more universal than that he who asks for a specific performance must be in a condition to perform himself. This point was fully considered in the cases decided in this court between Hepburn and Dundas, and Colin Auld as the agent of Dunlop & Co., and the principles laid down in those cases are believed to be entirely correct.[a]
Let us inquire, then, whether the plaintiffs in the court below have brought themselves within this rule.
It is incumbent on them to show an ability to convey to the defendant in that court a clear estate in *300 fee simple in the tract of one thousand acres lying in Kentucky, which was sold to him by their ancestors. Have they done so?
The co-heirs are, some of them, femes covert, and some of them infants. The decree against the defendant for the value of the Ohio land is not dependent on their making him a conveyance of the land in Kentucky, but is absolute. He is to pay the consideration money, and then obtain a title if he can. It is true that in the event of selling the Kentucky land, which is to take place after exhausting the personal estate of Charles Morgan of Kentucky, the complainants are directed to join in the conveyance; but this contingency may not happen; and if it should, a decree that femes covert and infants who are plaintiffs, and against whom no cross bill has been filed, should convey, might not secure a conveyance.
This might be corrected by sending the case back with instructions to new model the decree so as to adapt it to the situation of the parties, did it appear to the court that the appellees are able to make such a title as the appellant ought to receive.
But the appellees appear to the court to be incapable of making an unincumbered title to the land sold by their ancestor. Six hundred and sixty-six acres have been sold under an execution, and conveyed by the officer making the sale. The terretenants have been brought before the court. The bill, as to them, has been dismissed, and from the decree of dismission there has been no appeal. Can this *301 court close its eyes on their title, or declare it invalid?
It has been said that the sale is fraudulent, irregular, and illegal. But the court empowered to examine these allegations has decided against them, and from its decree no appeal has been taken. The incumbrance is an incumbrance in fact, and its legality can be inquired into by this court only in a suit to which the persons claiming the title are parties.
It might be urged, that as the appellant sold to Patton, and Patton holds also under the sheriff's sale, he is not now at liberty to consider Patton's title as an incumbrance on the land.
This argument would be entitled to great consideration was it applicable to the whole land sold by the sheriff. But it is inapplicable to one hundred and sixty-six acres, part of the tract which has never been sold by the appellant.
If the titles acquired under the sheriff's sale be such as would be annulled in a court of law or equity, (concerning which this court gives no opinion,) it was incumbent on the plaintiffs to annul them before they obtained a decree for a specific performance.
Other objections have been made to the decree of the circuit court. It has been said that the contract was in its origin unequal, and that the ancestor of the appellees had in his life time, by his conduct, disaffirmed the contract. It is deemed unnecessary to examine these objections, because the court is of opinion that the inability of the appellees to make *302 such a title to the land at this time as the appellant ought to accept, deprives them of the right to demand a specific performance. Neither party can at present claim the aid of this court, but ought to be left to pursue their legal remedies.
Decree reversed, and bill dismissed.[d]
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*304 
*305 
NOTES
[b]  The general rule, requiring all persons interested to be made parties to the suit, is confined to parties to the interest involved in the issue, and who must, necessarily, be affected by the decree. It is a rule of convenience merely, and may be dispensed with when it becomes extremely difficult or inconvenient. Wendell v. Van Rensselaer, 1 Johns. Ch. Rep. 349. And the want of proper parties is not a good plea, if the bill suggests that such parties are out of the jurisdiction of the court. Milligan v. Milledge et ux. 3 Cranch, 220. Travers v. Buckley, 1 Ves. 385. Cowslad v. Coley, 1 Vern. 140. In such a case, if the property in litigation be within the control of the party who is brought before the court, it may be acted upon by the court. Smith v. Hibernia Company, 1 Schoales & Lefroy, 240. Williams v. Whinyates, 2 Brown's Ch. Cas. 399. No person need be made a party, against whom if brought to a hearing, the plaintiff cannot have a decree; as a residuary legatee, and a bankrupt in a suit brought against the assignees. De Golls v. Ward, in note 1 to 3 Pere Will. 311.
[a]  Vide ante, Vol. I. p. 179.
[d]  There can be no doubt that the origin of the doctrine of the English court of chancery, as to the specific performance of agreements, is to be traced to the Roman law; although the commentators on that law are divided in opinion as to whether it would compel the actual delivery of the thing sold, or whether, in case of refusal, on the part of the vendor, his obligation resolves itself into the payment of pecuniary damages. Those civilians who are of the latter opinion, ground themselves, 1st. On the Code de act. vend. et empt. L. 4. tit. 49., § 4. which subjects the vendor to damages for refusing to deliver possession of the thing sold. 2d. On the maxim of law that nemo potest cogi præcisè ad factum; from whence they conclude that nemo potest cogi ad traditionem. The contrary opinion is supported, among others, by Pothier, who states it to be conformable to the practice on the European continent to enforce a specific performance of the contract of sale. He answers the above objections drawn from the 4th law of the Code, de act. vend. et empt., by stating that this law does indeed give to the vendee the action in id quod interest, against the vendor who refuses to deliver possession of the thing sold; but that it does not confine his remedy to this action alone. He cites Paulus, Sent. 1. 13. 4. as a precise authority that the vendor may be compelled to deliver the thing specifically, potest cogi ut tradat; but as it may not always be convenient or practicable for the vendee to cause himself to be put in possession manu militari, he is, by this law, permitted to resort to his action in id quod interest. He has the choice of the two remedies. As to the argument drawn from the maxim, that nemo potest cogi ad factum, and that those contracts which consist in the obligation to do a certain thing, resolve themselves in id quod interest actoris, Pothier answers that this maxim is inapplicable, except where the act to be done is a mere personal act of the debtor merum factum; as where a person contracts to copy a manuscript, or to excavate a ditch, in which case, if the agreement be not performed, the obligation necessarily resolves itself into pecuniary damages. But that the act of delivering possession of the thing sold, is not merum factum, sed magis ad dationem accedit: and that the debtor may be compelled to perform it specifically. De Vente, No. 68. This principle he extends even to personal property; but in the practice of the English court of chancery agreements respecting chattels are not, in general, enforced, as has been before noticed. Ante, Vol. I. p. 154., note (a.) So, also, that court refused to decree a specific performance of a covenant to make good a gravel pit. Scholefield v. Whitehead, 2 Vern. 127. And to refer a controversy to arbitration. Street v. Rigby, 6 Ves. 818. These last cases fall within the distinction stated by Pothier of a mere personal act, the obligation of which, in case of non-performance, resolves itself into pecuniary damages; to recover which the party must resort to his action at law. But Lord Hardwicke held, contrary to the principle of this distinction, in the case of the City of London v. Nash, 3 Atk. 512., that a covenant to build or rebuild might be specifically enforced, but not a covenant to repair. And the same case is mentioned as within the jurisdiction of the court of chancery in the year book of 8 E. 4. 4. b., one of the earliest recognitions of the equitable powers of the court. But the modern authorities seem to lean against this doctrine. Lucas v. Commerford, 3 Brown's Ch. Cas. 167. S.C. 1 Ves. jun. 236. Mosely v. Virgin, 3 Ves. 184. Flint v. Brandon, 8 Ves. 164. Errington v. Aynesley, 2 Brown's Ch. Cas. 343.

Although the vendee is not obliged to take a defective title, yet, if there be a mistake or misrepresentation as to the quantity or quality of the property sold, or of the estate of the vendor therein, the vendee may, if he elects so to do, have the difference deducted from the purchase money by way of compensation, and a specific performance as to the rest. There is a settled distinction, when a vendor comes into a court of equity to compel the vendee to a performance; and when a vendee seeks to compel a vendor to perform. In the first case, if the vendor is unable to make out a title as to part of the subject matter of the contract, which was the principal object of the purchaser, equity will not compel the vendee to perform the contract pro tanto. In the second case, the vendee may, if he chooses, take the part to which a title can be made. Waters v. Travis, 9 Johns. Rep. 465. Milligan v. Cooke, 16 Ves. 1. Halsey v. Grane, 13 Ves. 77. Mortlocke v. Buller, 10 Ves. 316. Paton v. Rogers, 1 Ves. & Beat. 353. But where the particular or memorandum described the estate as containing, by estimation, so many acres, "be the same more or less," the vendee was held not to be entitled to an abatement in the price for a deficiency in the quantity of acres sold. Winch v. Winchester, 1 Ves. & Beat. 375. The court of chancery, in decreeing a specific execution of agreements, governs itself by a moral certainty, for it is impossible in the nature of things there should be a mathematical certainty of a good title. Therefore, it was held in England that a reservation in the grant of an estate by the crown of royal mines within the premises was not such a blemish in the title as would excuse the vendee from taking it; because it seems the crown had no power to grant a license to any person to come upon a subject's estate and search for such mines; and even if it had the power, it was extremely improbable that it would ever be exercised. Lyddal v. Weston, 2 Atk. 20. So, also, in this country, where A. contracted to convey to B., "by a good and valid conveyance in law," a farm, which was originally parcel of a large tract of ground granted by the proprietor of a manor to the ancestor of A., in fee, "yielding and paying to the grantor, his heirs and assigns, the yearly rent of ten shillings," the proportion of which quit rent, on the farm, was 54 cents a year the existence of the quit-rent being known to B. at the time of the contract, it was held that the existence of such an incumbrance, (if it were any,) was no objection to a decree for a specific performance of the contract. Ten Broek v. Livingston, 1 Johns. Chan. R. 357.
In general, the vendor may compel a specific performance, if he can make a good title at the time of the decree, although he had not a good title when the land ought to have been conveyed according to the terms of the contract. Langford v. Pitt, 2 Pere Will. 630. Mortlocke v. Buller, 10 Ves. 315. Coffin v. Cooper, 14 Ves. 205. Hepburn v. Auld, 5 Cranch, 262. Hepburn et. al. v. Dunlop et. al. Ante, Vol. I. p. 179. Where, after bill, answer, and replication, no farther steps were taken in the cause for upwards of twenty years; this was held as not of itself a reason for refusing a specific performance, there being acquiescence on both sides. Cain v. Allen, 2 Dow 289. And where an agreement for the sale of lands was suffered to remain unexecuted for fourteen years, the vendee having taken, and continued to hold, possession; the court, under the peculiar facts of the case, decreed a specific performance of the contract.  Waters v. Travis, 9 Johns. R. 466. But, as a general rule, the court will not suffer a party, at the distance of years, to come to the court and say that he is ready to make a good title, and demand a specific performance. Jenkins v. Hiles, 6 Ves. 646. Wynn v. Morgan, 7 Ves. 205. And the parties may make time of the essence of the agreement, so that if there be a default at the day, without any just excuse, and without any waiver afterwards, the court will not interfere to help the party in default. Benedict v Lynch, 1 Johns. Chan. Rep. 370.
The court of chancery will not, except under very particular circumstances, upon a bill for the specific performance of a contract, if the party be not entitled to a specific performance, direct an issue of quantum damnificatus, or a reference to the master to ascertain the damages. The plaintiff, if he chooses that remedy, must resort to law, it not being like the case of a defect of title as to part, or of quality, or quantity, where a specific performance may be decreed as to so much as the vendor is able to perform, and a compensation to the vendee for the residue. Todd v. Gee, 17 Ves. 273. But where the defendant has put it out of his power to perform the contract, the bill will be retained, and it will be referred to the master to assess the plaintiff's damages. Denton v. Stewart, 1 Fonb. 38, Note y., and 165, Note b., and 1 Ves. 329. 17 Ves. 276, Note b. Greenaway v. Adams, 12 Ves. 395. And where a specific performance was refused, because the contract was within the statute of frauds, yet the plaintiff having sustained an injury for which he was entitled to compensation, and for which he had no remedy, or at best a doubtful and inadequate remedy at law, the court retained the bill and awarded an issue of quantum damnificatus to assess the damages sustained by the plaintiff by the acts of the defendants. Phillips v. Thompson et al., 1 Johns. Chan. Rep. 131.
