*95The opinion of a majority of the Court was drawn up, and delivered by Sheflex J.
A dissenting opinion was delivered by Emeky J.
Shepley J.It appears from the bill and answer to be admitted, that on the seventeenth day of December, 1830, the defendant and J. O. Rogers purchased of the State, six lots of land in township number two in the old Indian purchase, the defendant taking the whole title and giving his notes payable in one, two, three, and four years with interest annually, and securing the payment of them by sureties and by a mortgage of the premises. These notes remaining unpaid on the eleventh of July 1832, the defendant agreed to sell his half of these lots to the plaintiff according to the terms of the contract now sought to be enforced. It is important in the first place to ascertain the intention of the parties and their rights as exhibited in their contract; and the position of the parties upon the answer and proof introduced. The contract is informally and loosely drawn. The word consideration was used for, or intended to convey, the same idea as the word condition, and with the following words to express the terms to be inserted in the condition of the bond, and required to be performed before a conveyance could he demanded. It could not have been the intention, that the plaintiff should pay each note as it became due, for one had become due and remained unpaid. On the contrary, it could not have been the intention of the parties to permit the whole principal and interest to remain.unpaid for an indefinite period, thereby constantly increasing the amount to be paid. The deed could not be given and the whole contract settled before the last instalment became due ; and the plaintiff could not have expected, nor did the contract contemplate, upon the most liberal construction of it, a longer delay. Perhaps the most correct construction would be, that the plaintiff was to pay the note, which had become due, in a reasonable time, and the others as they should become payable. This only would save the defendant from harm and danger. The contract not only requires the defendant to give a bond, but to convey the land upon the plaintiff’s performing on his part. The fair conclusion from the testimony of Jordan is, that some advance upon the price was secured to the defendant in his settlement with *96the plaintiff, and that would constitute a good consideration for the contract. The whole amount of principal and interest having become payable on the seventeenth of December, 1834, remained unpaid until the 30th day of March, 1835, when it was paid by the defendant. The plaintiff having wholly failed to comply with the terms of the contract, can have no right at law, unless he proves a waiver or assent to this delay. He alleges in his bill, that not being convenient for him to pay the notes at maturity, he made an agreement with the agent of the State, that they should remain uncalled for so long as he should permit the property to remain in the same condition ; and that in consequence of it, the notes remained uncalled for until paid by the defendant. The answer expresses the defendant’s disbelief of any such agreement, and denies, that he was advised of it or assented to it. There is no proof of it, and it must be regarded as having no existence. The answer alleges, that the plaintiff gave the defendant a note payable in four months, and that it was agreed, that before the expiration of that time the sums due to the State should be paid and the whole business be finally closed; and that he was to be paid for his expense and trouble about the business ; and that the timber which had been cut upon the land should be sold and the proceeds applied to the payment of the notes to the State. These allegations contradict the written contract, are not responsive to the bill, are without proof and must also be regarded as having no existence. The rights of the parties rest therefore upon the contract. It is not necessary to detail the testimony introduced to prove an assent to the delay or waiver of the time of performance by the defendant. AH the acts and declarations took place, before the last instalment became payable ; and the most that can be made of them is, that the defendant considered the contract as subsisting, and assented to all the previous delay, or waived his objections to it. From the time when the plaintiff, in the autumn of 1834, demanded of the defendant the execution of the bond, and was refused, to the time when the defendant paid the notes, th.ere is no proof of any act or declaration of either party. The land was covered with a growth of wood and timber which appears to have constituted itsjprinci pal value. On the 17th of December, 1830, the six lots were *97purchased for $1170,40 and one undivided half of them sold on the first of May, 1835, for $7839,73.
It remains to state some of the principles upon which courts of equity will or will not decree a specific performance ; and to apply them to the facts presented in this case. It is a matter of discretion in the court, whether or not to decree a specific performance, not dependent however upon the arbitrary pleasure of the Judge, but regulated by general rules and principles. When the contract is in writing, is certain, fair in all its parts, is for an adequate consideration, and is capable of beiug performed, it is a matter of course for a court of equity to decree performance. 2 Story’s Eq. ■§> 751. And performance may in a proper case be decreed where the party has lost his remedy at law. Radcliffe v. Warrington, 12 Ves. 331. But ladies and negligence in the performance of contracts are not thereby to he countenanced or encouraged, and the party seeking performance must shew, that he has not been in fault, but lias taken all proper steps towards a performance on his own part, and has been ready, desirous, and prompt to perform. Milward v. Earl Thanet, 5 Ves. 720, note (b) ; Fonb. Eq., ch. 6, §2.
There has been some difference of opinion whether a contract, which could be enforced by one party only, ought to be decreed to be specifically performed. Chancellor Kent, in Clason v. Bailey, 14 Johns. R. 485, says the weight of argument is in favor of the construction, that the agreement concerning lands to be enforced in equity should be mutually binding ; but be reviews the cases, and says the point is too well settled to be now questioned, that it may be thus enforced, if binding upon one party only. This appears now to be the generally received doctrine, and it has boon admitted in this State. Getchell v. Jewett, 4 Greenl. 350. The grounds upon which courts of equity have proceeded in such cases appears to be, that the statute of frauds, as decided in the courts of law, requires only the signature of the party to be charged to become legally binding upon him ; and equity, finding a contract legally binding, will decree its performance. Where the contract is binding at law therefore, the want of mutuality is no objection. Flight v. Bolland, 4 Russell, 298. Wiiere its binding efficacy has been lost at law by lapse of lime, courts of equity are in the *98habit of relieving, when time is not essential to the substance of the contract. Time is of the essence, where the thing sold is of greater or less value according to the effluxion of time, and the sale of a reversion, and of stock, are put as examples of the rule. So when a house is known to have been purchased for a residence at a particular time, and when the parties have by their contract expressly so agreed, time is essential. And in these cases no relief is given against the lapse of time. It is not of the essence of the contract, where the object is security for the payment of money; and in the ordinary case of the sale of an estate, the general object being the sale for an agreed sum, the time of payment is regarded as formal, and that stipulation as meaning, that the purchase shall be completed within a reasonable time, regard being had to all the circumstances. 1 Young & Collyer, 415. Time is not however in such cases to be altogether disregarded, but to entitle him to relief where time is not essential, the party asking it must show, that circumstances of a reasonable nature have prevented a strict compliance, or that it has been occasioned by the fault of the other party, or that a strict compliance has been waived._ Where he has been guilty of laches, and offers no satisfactory reason for it, and the other party has not waived or acquiesced in it, no relief can be granted. In Lloyd v. Collett, as reported in 4 Ves. 689, note (b,) the chancellor says, “ I want a case to prove, that where nothing has been done by the parties, this court will hold in a contract of buying and selling, a rule that certainly is not the rule at law, that the time is not an essential part of the contract. Here no step has been taken from the day of sale for six months after the expiration of the time at which the contract was to be completed. If a given default will not do, what length of time will do ? It is true the plaintiff must have considered himself bound after the day; so he was; he could not take advantage of his own neglect.” In Guest v. Homfray, 5 Ves. 818, the master of the Rolls says, “ the only question is, whether the plaintiff has done enough to show, he took all the pains he could to be ready to carry into execution the agreement.” “ The plaintiff does not seem to me to have done all he ought to have done. It rests entirely upon that point.” In Benedict v. Lynch, 1 Johns. Ch. R. 375, this question was very much considered by the chancellor, who states the rule to be, “ that *99where the party who applies for a specific performance, has omitted to execute his part of the contract by the time appointed for that purpose, without being able to assign any sufficient justification or excuse for his delay, and where there is nothing in the acts or conduct of the other party, that amounts to an acquiescence in that delay, the court will not compel a specific performance.” And again, “ from the review which I have taken of the cases, the general pn'nciple appears to be perfectly established, that time is a circumstance of decisive importance in these contracts, but it may be waived by the conduct of the party ; that it is incumbent on the plaintiff calling for a specific performance to show, that he has used due diligence, or if not, that his negligence arose from some just cause ; that it is not necessary for the party resisting the performance to show any particular injury or inconvenience; it is sufficient if he has not acquiesced in the negligence of the plaintiff, but considered it as releasing him.” In such cases, the party is regarded in equity as having abandoned his contract. Nor will equity give relief against the lapse of time, where there has been a very material change in the value of the property making a great change in the condition of the parties. In such cases, the utmost watchfulness is expected of the party not to let the contract fall. In Paine v. Mellen, 6 Ves. 349, the vendor did not perform in time, but the purchaser consented to complete the contract upon certain terms, and before the deeds were executed, the houses were burnt. It was held, that the vendor could be relieved only by proving an actual acceptance of the terms by the purchaser before the loss. In Brashier v. Graty, 6 Wheat. 539, it is said, “ another circumstance, which ought to have great weight is the change in the value of the land.” “ Had the land fallen in value, he could not have paid the purchase money.” Where the price agreed for in the original contract greatly differs from the value, it is an ingredient, which associated with others, will contribute to prevent the interference of a court of equity. Cathcart v. Robinson, 5 Peters, 264. Nor where from a change of circumstances since the contract, performance would be attended by peculiar hardship. Perkins v. Wright, 3 Har. & McHen. 324. Nor where the remedies are not mutual, and the chance for gain is all upon one side, and that of loss all upon the other. In Alley v. Deschamps, 13 Ves. 228, the chan*100cellor says, “ it would be very dangerous to permit parties to lie by with a view to see whether the contract will prove a gaining or losing bargain, and according to the event, either abandon it, or considering the lapse of time as nothing to claim a performance.” In Brashier v. Graty, it is said, “ Mr. Brashier then if he did not execute his part of the contract with punctuality, ought to have executed it before a great change of circumstances took place.” “ This total want of reciprosity gives increased influence to the objections to a specific performance, which are furnished by this great '• alteration in the value of the article.” Mr. Justice Story, in his treatise, says, “ but if circumstances of a reasonable nature have disqualified the party from a strict compliance, or he comes reeenti facto to ask for a specific performance, the suit is treated with indulgence, and generally with favor by the court. But then in such eases it should be clear, that the remedies are mutual; that there has been no change of circumstances affecting the character or justice of the contract. 2 Story’s Eq. 87. So where one was entitled to a renewal of a lease for lives, when one life should drop, but was not obliged to renew, having let two lives drop before he applied for a renewal, equity could give no relief. Bayley v. Corporation of Leominster, 1 Ves. Jr. 475; The City of London v. Mitford, 14 Ves. 41. And a change of possession, or an advance made as a partial payment will not in such cases make any difference. Alley v. Deschamps, and Guest v. Homfray, before cited.
It will be perceived, that the court cannot in this case decree a specific performance without a violation of these well established rules. Allowing that the defendant had waived all compliance up to the time when he refused to give the bond, that left the parties upon their legal rights, and should have put the plaintiff upon bis guard to perform punctually, when the time arrived for a final close of the business, and not to cast himself upon the favor of one, who had just admonished him, that he did hot mean to perform, if he could avoid it. This refusal to give a bond might have justified the plaintiff in refusing to pay, if the bond had been essential to enable him to obtain the title, hut it was not; the contract which he had, was sufficient for that purpose, for it is agreed in it, that a deed is to be given upon payment. The plaintiff offers no reason for neglecting to pay from the 17th of December to 30th of March, *101and during that time there is no proof of a waiver or acquiescence on the part of the defendant. And lilis takes place in a case in which the plaintiff was required by the change in value to be especially watchful against any tiling, that would entitle the defendant to be discharged. Could it be admitted, that the plaintiff has not been guilty of laches, there is no mutuality in the remedy; and although this is no objection, where there is a compliance, yet where there is not, as Mr. Justice Story states the law. it is an insuperable one. In addition to this, there has been a most extraordinary change in the value of the property since the contract; it having been sold for more then eleven times tlie amount agreed to be paid; and while this change has been taking place, all the chance for gain lias been on the side of the plaintiff, while the defendant, if there had been a loss occasioned by fire, by trespassers, or otherwise, must have borne it, for he could not compel a performance. According to the rules applicable to sales of estates in England, there could not in this caso be a decree for a specific performance, and there is less reason for it in this country, and especially in a case relating to lands covered with a growth of timber, and having no fixed or certain value, but rising and falling in price according to the market for lumber, and greatly affected in value by other causes. In this particular hoy more nearly resemble stocks; and time is of the essence of the contract in such cases, and no relief can be given. Tlie remark of Livingston J., in Hepburn v. Auld, 5 Cranch, 279, applies with great force to this case. Speaking on this subject, lie says, “ but there is a vast difference between contracts for land in that country and this. There the lands have a known, fixed, and stable value. Here tlie price is constantly fluctuating and uncertain. A single day often makes a great difference ; and in almost every case time is a very material circumstance.” But while the plaintiff is not entitled to a decree, the defendant has no claim upon the court for any thing, which they are not obliged by law to give him, for he has refused to give the bond according to bis contract, lias attempted to vary the contract by parol proof, and has set up other improper grounds of defence, and failed to support them, and he is not entitled to costs.
Bill dismissed without costs.