The Opinion of the Court was delivered by
Treat, C. J.This case was not set down for hearing on the bill and answers, but it appears to have been submitted and decided on the pleadings and proofs without objection ; and under such circumstances, on the authority of the case of Jameson v. Conway, decided at this term, the mere want of a replication is not a sufficient cause for reversing the decree. The parties waived the filing of the replication by treating the cause as at issue.
The testimony of the witness, Riley, must be considered in this Court. 'If he was disqualified on the score of interest, the objection should have been taken in the Court below' by a direct application to exclude the deposition. If sustained by the Court, the complainant might have rendered the witness competent by a release, and then proceeded to retake his deposition ; or it might have established the same facts by other testimony. A party is not permitted to remain silent-while the cause is progressing, and then raise such objections at the hearing, or in the appellate Court. Such a practice would occasion much delay and inconvenience and often operate as a fatal surprise to the adverse party.
Regarding, then, the cause as at issue, and the testimony as competent, the question arises, is the complainant entitled to the relief sought by the bill. The agreement purports to be founded on a pecuniary consideration passing from Riley to Webb. It however conclusively appears that aio money or other thing was ever paid to Webb, or contracted to be paid. To sustain the covenant, therefore, on the part of Webb to convey a moiety of the land to Riley, some other consideration than that stated in the agreement must appear; otherwise, the agreement must be regarded as voluntary, and cannot be enforced. It is a stern rule of Equity, that it will not decree the specific execution of a contract, unless it is based on some fair and valuable consideration. It is insisted that a controversy existed between the parties concerning the title to the land, and that the agreement was made for the purpose of settling and defining their respective rights. If such was the case, and there is any mutuality in the agreement, it ought to be enforced. To be binding, however, in Equity, it must have been made under such circumstances as will effectually conclude Riley from ever asserting title to the other moiety of the land; and as the complainant is now seeking to enforce the covenant, such as will conclude it -from claiming title to the same moiety. The bill .states that Webb executed the agreement to settle all controversy respecting the title of the land. The answer denies that it was made on the adjustment of any such controversy, but alleges that it was purely voluntary, and without consideration. The testimony of Riley, the only witness in the case, fails to convince us that there was any such consideration passing from him to Webb, as will authorize a Court of Equity to carry the agreement into effect. There was no mutuality in the contract, as shown on the face of the agreement, or appearing in the circumstances attending the transaction. No release or covenant was required or given by Riley. No controversy was existing between the parties, which was so adjusted as to secure to Webb one moiety of the land, and to Riley the other moiety. If they contemplated such a result, it is but reasonable to conclude that their intentions would be evidenced by some instrument of writing. Riley did not claim the land from Webb as a legal right, but only on the score of sympathy and friendship j and the claim was in part conceded, as he states, unconditionally, and as a peace offering.
Reverse the position of the parties, and suppose that the defendants were now seeking to quiet their title to the other moiety of the land, could it be successfully contended that Riley, by accepting the agreement, and the complainant, by receivingan assignment of it, would be estopped from denying that title. We do not hesitate to say that upon such a loose and inconclusive case, as is here presented, the bill would be dismissed. And this is really the true test by which to determine whether there was any mutuality in the contract. In the opinion of the Court, the agreement is void for the want of mutuality, and the parties must stand by their legal rights.
The decree of the Circuit Court is reversed with costs, and the bill is dismissed.
Decree reversed.