The Opinion of the Court was delivered by
Caton, J.In this case both parties were equally in fault, and neither should be allowed to complain, that the other had not technically, and punctually fulfilled. The complainant did not have the improvements completed as he had agreed, by the first of June. This default was not of such importance, that the Court might not disregard it, or make a compensation in damages. So also, was Brown in default, by not being ready by the same day, to make the four hundred dollar payment, which was to be paid partly with two horses, a carriage and harness, and the balance in cash. Some slight excuse is offered by the complainant for not completing the ceiling of the house, such as that the lumber was not yet sufficiently seasoned; and the defendant offers a very satisfactory reason' why he was not there by the first of April. It was known that he resided in Ohio, when the contract was made, whence he was to come, and take possession in the ensuing spring. Oh account of high water, he was delayed till the third of April, and very soon after he took possession of the farm, and offered to deliver the horses and carriage at a value to be ascertained by third persons, if the parties could not agree, and to pay the balance of the four hundred dollars in money. The complainant refused to receive the property, but insisted that the whole of that instalment should be paid in money; or at any rate, all except one horse, which he sometimes said he was willing to fake. For this he sometimes assigned as a reason, that the property was not delivered on the very day, and sometimes, that the mare was not of the precise description'represented when the contract was made, Upon two occasions. Cannon attempted, or pretended to tender a deed to Brown, but it is manifest that he did not intend to let Brown have the deed unless the four hundred dollars were paid in money. Although the testimony is somewhat contradictory, as to these transactions, we are satisfied from a careful examination of all the evidence, that Cannon was desirous of being able to say here, that he had tendered a deed, rather than that Brown should accept it, and make the payment according to the original contract. Throughout, Cannon has manifested a determination to take advantage of Brown’s accidental’ delay of a few days, forgetting that he was as much in default, by not having the repairs completed by the time agreed upon. In neither case was the delay hardly of sufficient importance, or injury, to require a Court to notice it. Besides, by transferring the possession of the farm on the fifteenth of June, and thus proceeding with the contract, after both parties had been guilty of failing to perform strictly, they mutually waived the right to complain of such non-performance. And independently of that waiving of these mutual failures, one is a fair set-off against the other. Neither party then could complain of the other till he had put his adversary in default by a substantial performance on his part, and a failure or refusal to perform by the other. The complainant should have presented the deed and offered to deliver it, subject only to the condition that Brown should deliver the property as agreed upon, and pay the balance of the four hundred dollars in money. Without this, there is no sufficient consideration to compel Brown to act. Doyle v. Teas, 4 Scam.
This the complainant has never done. The evidence shows that Brown advanced about as far towards performance as Cannon did. He frequently offered to deliver the property and pay the balance inmoney,buthe never formally tendered either, and it is manifest from the evidence that he was pretty strongly induced to have his own price for the property, which he had agreed to deliver. On the whole, we are well satisfied that neither party has as yet performed his part according to the spirit and substance of the agreement, but each has manifested a desire to get some technical advantage of the other, so that he might realize little better results than he was in good faith entitled to. When the Court sees such a disposition manifested, its suspicions are at once awakened, and it will look with no extraordinary degree of favor upon the claims of parties, based upon acts, which were never designed in good faith to carry out a contract, but rather to secure a technical advantage.
But there is another objection of much graver importance. Brown .insists that there is such a doubt hanging over the complainant’s title, that he ought not to be compelled to take it. It is admitted on both sides that the title shown by the record stands thus : The complainant shows a regular chain of title from the United States to himself. Against this stands a tax deed for the principal part of the premises, issued in 1836, the sufficiency of which was not questioned on the argument. In answer to this, the complainant shows that he has been in possession since 1838 claiming title under his deed, and adverse to the tax title. This would be sufficient to maintain ejectment against any one defending under the tax title, except as to persons against whom our seven years’ limitation law did not run, and would constitute an absolute title, but for the claims of infants, feme coverts, and others disabled to assert their claims, whose rights are excepted from the operation of that statute. It does not appear whether or not there are any such persons, holding the tax title, and the question now is, whether the chance of there being such persons, is sufficient to create such a doubt, of the sufficiency of the complainant’s title, which now rests entirely on his adverse possession as to justify the complainant in refusing to complete the purchase. A reference to a few of the many authorities on this subject will suffice to show what the law is.
In 1 Sug. on Vend, bottom page 339, it is said: “To enable Equity to enforce specific performance against a purchaser, the title to the estate,, ought, like Caesar’s wife, to be free even from suspicion; for it would be an extraordinary proceeding for a Court of Equity to compel a purchaser to take an estate which it cannot warrant to him.” And in Stapylton v. Scott, 16 Ves. 272, although Lord Eldon was of opinion that the title was good, yet inasmuch as some doubt was implied by a provision of the will of the ancestor, of the title to a part of the estate, he refused a specific performance, notwithstanding the Master reported a perfect title. In Lowes v. Lusk, 14 Vesey, 547, a specific performance was denied, because the vendor had committed an act of bankruptcy, although he swore on an examination before the Master, that there were no debts on which a commission could issue, and there was no evidence tending to show that there were such debts, by which alone the title could have been endangered. Drew v. Clark, 9 Vesey, 368. The complainant was entitled to a term of four thousand years, and a forfeited mortgage on the reversion in fee, yet the bare possibility of a redemption of such a dry remainder, induced the Court to refuse a performance. In Sheffield v. Mulgrave, 2 Vesey, 526, the chancellor refused to compel a party to receive a title, although it had been found to be good by a Court of Law, because he suspected that there might be some latent Equity existing against it. The Chancellor in the case of Roak v. Kidd, 5 Vesey, 647, refused to direct a trial at law to ascertain if the title was good, when the defendant objected and the Court entertained doubts of the sufficiency of the title, but dismissed the bill. On this subject also, Chief Justice Marshall, in the case of Garrett v. Macon, 2 Brock. 244, says : “Both on principle and authority, I think it very clear that a specific performance will not be decreed on the application of the vendor, unless his ability to make such a title as he has agreed to make be unquestionable.” These references might be extended, but we deem it unnecessary.
The rule of law, then, undoubtedly is, that a purchaser who bargained for a good title, shall not be compelled to take one which is subject to suspicion. This does not mean that the title shall be good beyond a possible peradventure, for then he might never be satisfied, but then it must free from reasonable doubt. It must be such a title to which no reasonable man would object; such an one as a prudent man would' not'hesitate to invest his own money upon, at a full market price; such an one as will bring, in the market as high a price with, as without the objection. When we force a title upon a party, we must feel an assurance that it cannot be taken from him. It is not sufficient that the title is probably good, but we must feel a.reasonable certainty that it is so.
Is the complainant’s title thus clear, is the important question. Of all, known titles to land beyond a mere naked possession, which are prima facie good, there is perhaps none, recognized by law, more doubtful and uncertain, than those depending for their validity upon an adverse possession ' under a Statute of Limitations; and especially are such titles unsatisfactory, when they depend upon a limitation law of recent date, prescribing a short time, and which does not run against those who may not immediately assert their rights.
The cases already referred to, show that it is not sufficient, in all cases, to show a title prima facie good, as was contended for by the counsel for the complainant. It is for him to make out a title free from reasonable suspicion or doubt, and not for the defendant to show that his suspicions are certainly well founded, and that the title offered him must fail. It is sufficient for him to point out a way in which it reasonably may fail. It is not for him to hunt up those persons who may come in and destroy the title, but the complainant should show with reasonable certainty, at least', that there are none such; that the tax title was in one against whom the statute under which his possession becomes available, did run. We will not say that lapse of time would in no case satisfy us, for although it is possible that the title might pass from infant to infant, for an indefinite length of time, so that the statute would never commence its operation, yet after a time, that would become so very improbable as not to excite the apprehension of a reasonable mind. . In the case of Seymore v. DeLancey, Hopkins’ R., Chancellor Sanford says: “But if the possession of William Seymore had been clearly adverse for twenty five, years, his title would not, I think, be sufficiently impeached, either by the slight proof that Henry E. Lutterloh may have been an alien, or, if he was a citizen, by the mere contingency, that his title may have resided since his death, in persons disabled to assert their rights.” Lutterloh had at that time been dead about thirty nine years. Such a length of time may have been sufficient to allay all reasonable apprehensions in the opinion of the Chancellor. While this case may show, so far as a mere dictum can do so, that a title depending upon adverse possession, under limitation laws, may become satisfactory, it by no means asserts that the Court will in all cases compel a party to receive such a title. The cloud which may hang over a title, may be of every imaginable shade of obscurity from that which admits of neither light nor hope, to that which is scarcely perceptible.
While we may not require the title to be free from every speculative doubt, it ought not to be subject to a reasonable one — such as would excite a just apprehension. If such doubt exist, the complainant must clear it away, till his title would bring as much in market as if no question were made in relation to it. Has this been done with the title before us? We think not. We cannot say that it certainly is a good title. In the language of one of the authorities, we cannot warrant it to the purchaser. What reasonable man, owning this title, would not prefer to have this doubt removed — this cloud dissipated ? Who would not give a valuable consideration to obtain a complete release of all such outstanding claims as might exist? Who would not pay his money more freely, and make his improvements with a greater feeling of security, if this uncertainty were not resting upon his title, for there surely is an uncertainty about it? No prudent individual would be willing to assure this title for nothing, and we ought not to compel the defendant to take it for a clear title, and pay a full price without such assurance. After being compelled to do so, he would still be glad to pay something more, to be made certain that'none could contest his rights.
Our revenue laws, under which tax titles are obtained, secure to persons not able to assert, their claims, a right to redemption for two years after their disabilities cease, and we all know that a tax title, otherwise unquestionable, will not bring any thing like a full price, when the condition of the person holding the former title is not known. When there may be such right of redemption, it is believed that a guaranty is always required, and never refused, against such a contingency, when a full price is paid. The man who would ask or give as high a price for a title thus obscured and doubtful, as for one about which no question could be raised, would be considered extravagant or reckless, if not worse. The cases are parallel. This title may • be good. We cannot say that it is not, nor can we say that it is, which we ought to be able to do, before we force it upon the party.
For two reasons, then, should the bill have been dismissed. When it was filed, the complainant was as much in default as was the defendant. Neither party had strictly performed, nor yet had either party abandoned the contract. The defendant still retained possession of the farm, with the consent of the complainant. Again, the complainant has not shown such a title as Brown should be compelled to accept and pay for. Whether the objections to this title can be cleared up, we do not know, as each party seems to hat'e proceeded on the assumption that the burthen of proof was on the other.
There is another objection to the decree which we feel called upon to notice. Assuming that the Court was right in decreeing a specific performance by both parties, it was improper for the decree to direct the sheriff to appraise and value the horses, carriage and harness. The value of these articles might have been found by the Court, if it were satisfied from the evidence before it, or it should have been referred to a Master or Special Commissioner — who, to be sure, might have been the sheriff — to have determined the same upon proof and made a report thereof. Whether the value of the property was found by the Court directly, or through the medium of a proper officer, it should in either case have been done through the medium of testimony, and not by the judgment of the Court or officer on inspection. In that way alone could the right of either party be secured to have the question or judgment reviewed. This is not one of those cases where the Court may appoint Commissioners to act on view. Here the decision of the sheriff was made final, concluding the parties, and to be acted upon immediately. Whether the officer to whom a reference is made hears testimony, or decides upon his own observation and judgment, in either case, his determination should be reported to, and approved by the Court, before it becomes final.
The decree of the Circuit Court must be reversed with costs, and the bill dismissed, but without prejudice.
Decree reversed.