[33] States v. Merchants' Bank, 7 Gill, 415, 431; From these considerations, it follows that the averment in the third count of the declaration, that by the law of Pennsylvania the judgment rendered in that State against Charles Donoghue and John Donoghue was valid and enforceable against Charles, who had been served with process in that State, and void against John, who had not been so served, must be considered, both in the courts of Maryland and in this court on writ of error to one of those courts, an allegation of fact, admitted by the demurrer. ་ Mr. Justice Miller delivered the opinion of The suit was originally brought by a bill in The case as it was presented to the circuit court for final decree, and as it comes before us, is to be gathered from the pleadings, documen Upon the record before us, therefore, the tary evidence, written correspondence and dep plaintiff appears to be entitled, under the Con- ositions which are voluminous. We shall not stitution and laws of the United States, to judg-recapitulate the evidence, but state the materia! ment on this count. It having been admitted facts as we believe them to be established. at the bar that the other counts are for the John B. Eaton, the husband of the complainsame cause of action, it is unnecessary to con- ant, who resided with her in Maine and who sider them. The general judgment for the de-claimed to be the owner in his own right of ninefendant is erroneous, and the rights of both ty-five acres of land near the town of Defiance,in parties will be secured by ordering, in the usual the State of Ohio, lying between the Wabash and form, that the Erie Canal and the Pittsburgh and Fort Wayne Railroad, was in July, 1874, at Defiance, trying to sell it. Being in pressing want of money, he made his note for $400, payable to the Defiance National Bank in ninety days, dated July 30, 1874, with Holgate and New begin, who are James H. McKenney, Clerk, Sup. Court, U. 8. appellants here, as his sureties. This note they afterwards paid. Judgment of the Court of Appeals of Mary- WILLIAM C. HOLGATE ET AL,, Appts., v. RUFUS J. EATON, Admr. of ELIZABETH (See S. C., Reporter's ed., 33-42.) Husband and wife-contract by husband affect- 1. A wife's equitable estate in property held by her 2. Upon the facts of this case, it is held that the 3. Where time is not expressly or impliedly of the Argued Nov. 24, 25, 1885. Decided Dec. 14, 1885. On the same day Eaton made à conveyance, above mentioned, and at the same time he and absolute on its face, to Holgate, of the land Holgate executed the following agreement: [34] "Defiance, Ohio, July 30. 1874. APPEAL from the Circuit Court of the United ing to law. It is further understood and agreed States for the Northern District of Ohio. Messrs. Henry Newbegin and William Messrs. James H. Hoyt and H. 8. Sher- if, on or before said October first, any cause, said Holgate shall prefer not to hold said premises on the terms herein set forth, said Eaton agrees to repurchase same of him, and to release any installment that is unpaid of said Holgate, or portion of same, and the obligation to pay said Wilhelm's tax claims; also to refund [35] [36] [37] But we are of opinion that in this the master was in error. It is quite clear to us that Holgate had full notice of Mrs. Eaton's interest in the land, for he seems to have been aware of the nature of the assignment by Campbell of the notes and mortgage to Eaton, and therefore required that they be delivered up to him, if they could be found, and they were found. with interest four hundred dollars ($400) this | Mrs. Eaton required by the contract was un- J. B. Eaton. Wm. C. Holgate. [Seal.] Eaton should join with him as grantor in an- That all the parties understood that Mrs. It is argued on the part of the appellants, on It appears sufficiently, we think, on the final hearing, that Mr. Eaton had no other interest in the land at the time he executed this agreement and made his deed to Holgate than that of trustee for his wife. "The mortgage and notes on which judgment was taken, by which his title was acquired," were never produced until the hearing before the master in 1882, and the effect of them as evidence is thus stated by the master: "It appears that, by the will of William A. Allen, brother of Elizabeth R. Eaton, a share of his estate was given to her. Bartley Camp bell, of Cincinnati, her agent, seems to have had possession of this share of the estate, being personal property, and used it as his own. In accounting for the same, he assigned a mortgage which he held on lands in Defiance to John B. Eaton, her husband, in trust for Mrs. Eaton and her children. This mortgage was foreclosed under proceedings at Defiance, in which John B. Eaton appeared to be the only party in interest, and at the sheriff's sale he became the purchaser, and the sheriff's deed was made to him, of about ninety-five acres of land in Defiance. 22 It should be added that the assignment of this mortgage expressed on its face that it was for the benefit of Mrs. Eaton. It is said by the master that the deed from he might have to advance to buy in the tax title of Wilhelm, with the option, on the part of Holgate, to convert it into a purchase before October 1, that is, within sixty days. We do not deem it important to decide whether we call the transaction a mortgage or a conditional purchase. The effect is the same either way, as, if the purchase was perfected, the $400 was to be part of the purchase money. If it was not perfected, it, with the amount paid for the tax title, was to be a lien on the land conveyed. It seems that when Mrs. Eaton was informed of the transaction between her husband and Holgate she refused to abide by it, and would not make the deed which the contract called for. In August, Holgate had informed Eaton of his election to hold the land, and in a letter of September 30 he requests him to forward the deed in which his wife was to join. It is quite apparent that Mrs. Eaton had got possession or control of the notes and mortgage, which Mr. Eaton was therefore unable to surrender, and he had to confess his inability to get Mrs. Eaton to join him in the deed. About this time the railroad company, by judicial proceedings, condemned and appropriated thirteen acres of the land for its use; and the sum of $2,600 awarded as damages was matter of contention between Mrs. Eaton and her husband. Under these circumstances, Holgate and Newbegin entered into correspondence with Mrs. Eaton and her son, who acted for her in the matter. They both denied the binding force of the transaction with Mr. Eaton on M-s. Eaton. This correspondence ran through two years, in all of which Holgate and Newbegin urged [39] [38] [33] States v. Merchants' Bank, 7 Gill, 415, 431; | From these considerations, it follows that Mr. Justice Miller delivered the opinion of the court: This is an appeal from the Circuit Court for the Northern District of Ohio. The suit was originally brought by a bill in equity, in the name of Elizabeth R. Eaton, by her next friend, Rufus J. Eaton. During its progress Mrs. Eaton died, and her next friend was appointed administrator of her estate, and it was revived by him in that character. Afterwards her heirs were made plaintiffs also. The case as it was presented to the circuit court for final decree, and as it comes before us, is to be gathered from the pleadings, documenUpon the record before us, therefore, the tary evidence, written correspondence and depplaintiff appears to be entitled, under the Con-ositions which are voluminous. We shall not stitution and laws of the United States, to judg-recapitulate the evidence, but state the materia! ment on this count. It having been admitted facts as we believe them to be established. at the bar that the other counts are for the John B. Eaton, the husband of the complain. same cause of action, it is unnecessary to con- ant, who resided with her in Maine and who sider them. The general judgment for the de-claimed to be the owner in his own right of ninefendant is erroneous, and the rights of both parties will be secured by ordering, in the usual form, that the ty-five acres of land near the town of Defiance, in the State of Ohio, lying between the Wabash and Erie Canal and the Pittsburgh and Fort Wayne Railroad, was in July, 1874, at Defiance, trying to sell it. Being in pressing want of money, he made his note for $400, payable to the Defiance National Bank in ninety days, dated July 30, 1874, with Holgate and New begin, who are James H. McKenney, Clerk, Sup. Court, U. 8. appellants here, as his sureties. This note they afterwards paid. Judgment of the Court of Appeals of Maryland be reversed, and the case remanded to that court for further proceedings not inconsistent with this opinion. True copy. Test: WILLIAM C. HOLGATE ET AL,, Appts., v. RUFUS J. EATON, Admr. of ELIZABETH (See S. C., Reporter's ed., 83-42.) Husband and wife-contract by husband affect- 1. A wife's equitable estate in property held by her 2. Upon the facts of this case, it is held that the wife was not bound by her husband's contract affecting her equitable estate; that having repudiated his action in the matter until after a material change in the circumstances, she could not then take advantage of the contract: that no contract had been completed between her and the defendants; and that the bill should be dismissed, but that the cross bill of the defendants should be prosecuted to determine their rights growing out of a tax title and the payment by them of a certain sum on account of the husband." 3. Where time is not expressly or impliedly of the essence of a contract, in case of gross laches or inexcusable negligence on the part of a party who seeks a specific performance, or a material change in the circumstances affecting the rights of the parties, a court of equity will refuse to decree a specific performance. [No. 75.] Argued Nov. 24, 25, 1885. Decided Dec. 14, 1885. APPEAL from the Circuit Court of the Unit The history and facts of the case appear in Messrs. Henry Newbegin and William On the same day Eaton made à conveyance, absolute on its face, to Holgate, of the land above mentioned, and at the same time he and Holgate executed the following agreement: "Defiance, Ohio, July 30. 1874. "This memorandum witnesseth, that John B. Eaton, of Fryeburg, Maine, has this day sold to Wm. C. Holgate, 'that part of the east half of section twenty-seven (27), T. 4 N. R. 4 E., lying between the Fort Wayne road and the W. & E. Canal, and containing ninety-five acres, more or less, excepting 12 acres now held by Michael Gorman, all more fully described and set forth in a deed this day executed by said John B. Eaton to said Holgate. It is understood said Holgate is to pay for said land the claim Adam Wilhelm may hold on said premsum of six thousand dollars, and any valid tax ises, one thousand dollars of which is to be paid on or before October 1, next: two thousand dol lars in six months thereafter; fifteen hundred dollars ($1,500) in one year thereafter, and fifteen hundred dollars in two years thereafter, with interest from and after October first. It is further understood said Eaton is to execute another deed of warranty, his wife being joined with him as grantor in same, and to forward said deed on to H. Newbegin for said Holgate, which is to be substituted for the deed this day executed to said Holgate as aforesaid. And said Eaton agrees to send on to said Newbegin the mortgage and notes on which the judgment was taken by which his title was acquired, in case he can find same, which are to be filed according to law. It is further understood and agreed that if, on or before said October first, from any cause, said Holgate shall prefer not to hold said premises on the terms herein set forth, said Eaton agrees to repurchase same of him, and to release any installment that is unpaid of said Holgate, or portion of same, and the obligation to pay said Wilhelm's tax claims; also to refund 1 with interest four hundred dollars ($400) this | Mrs. Eaton required by the contract was un- But we are of opinion that in this the master It is quite clear to us that Holgate had full notice of Mrs. Eaton's interest in the land, for he seems to have been aware of the nature of the assignment by Campbell of the notes and mortgage to Eaton, and therefore required that they be delivered up to him, if they could be found, and they were found. J. B. Eaton. [Seal.] "Attest: Henry Newbegin.' Helgate immediately assigned to Newbegin an undivided half interest in this contract, of which Eaton had due notice. He also, within the time limited, notified Eaton of his election to hold the property, and required him to furnish the deed in which Mrs. Eaton was to join, and the mortgage and notes on which the foredheure proceeding was had, and on which Eatca's title depended. This deed, however, was not tendered to appelants until December 7, 1876, though the actice and request for it was received before October 1, 1874. As appellants rely upon this diay as a defense to the suit for the purchase money, it is necessary to consider its importance in the contract and the excuses offered for the delay. It appears sufficiently, we think, on the final bearing, that Mr. Eaton had no other interest the land at the time he executed this agreemeat and made his deed to Holgate than that of trustee for his wife. "The mortgage and botes on which judgment was taken, by which le was acquired," were never produced the hearing before the master in 1882, and ect of them as evidence is thus stated by It appears that, by the will of William A. Alen brother of Elizabeth R. Eaton, a share the state was given to her. Bartley Camp Cincinnati, her agent, seems to have had ssion of this share of the estate, being per*troperty, and used it as his own. In acwing for the same, he assigned a mortgage h he held on lands in Defiance to John B. Lan, her husband, in trust for Mrs. Eaton her children. This mortgage was foredcader proceedings at Defiance, in which B. Eaton appeared to be the only party in rest, and at the sheriff's sale he became the , and the sheriff's deed was made to about ninety-five acres of land in De ld be added that the assignment of herzige expressed on its face that it was the heeft of Mrs. Eaton. ita ad by the master that the deed from That all the parties understood that Mrs. Eaton had the paramount interest and equitable title to the land is seen in the whole subsequent correspondence. It is argued on the part of the appellants, on the other hand, that the deed of Eaton and the accompanying contract constituted a mortgage for the security of Holgate in regard to the $400 note which he agreed to pay, and for the sum he might have to advance to buy in the tax title of Wilhelm, with the option, on the part of Holgate, to convert it into a purchase before October 1, that is, within sixty days. We do not deem it important to decide whether we call the transaction a mortgage or a conditional purchase. The effect is the same either way, as, if the purchase was perfected, the $400 was to be part of the purchase money. If it was not perfected, it, with the amount paid for the tax title, was to be a lien on the land conveyed. It seems that when Mrs. Eaton was informed of the transaction between her husband and Holgate she refused to abide by it, and would not make the deed which the contract called for. In August, Holgate had informed Eaton of his election to hold the land, and in a letter of September 30 he requests him to forward the deed in which his wife was to join. It is quite apparent that Mrs. Eaton had got possession or control of the notes and mortgage, which Mr. Eaton was therefore unable to surrender, and he had to confess his inability to get Mrs. Eaton to join him in the deed. About this time the railroad company, by judicial proceedings, condemned and appropriated thirteen acres of the land for its use; and the sum of $2,600 awarded as damages was matter of contention between Mrs. Eaton and her husband. Under these circumstances, Holgate and Newbegin entered into correspondence with Mrs. Eaton and her son, who acted for her in the matter. They both denied the binding force of the transaction with Mr. Eaton on M-s. Eaton. This correspondence ran through two years, in all of which Holgate and Newbegin urged [38] [39] [40] her to fulfill the contract by making a convey- | prudence in enforcing a specific performance On the 7th December, 1876, she did, however, tender such a deed, which Holgate and Newbegin refused to receive, and demanded payment of the $400 they had paid the bank on the note for Mr. Eaton and the sum they had paid Wilhelm for his tax title, $424. Shortly after this the present suit was commenced. We think that the correspondence shows that during all this time, until a few months before Mrs. Eaton sent her conveyance, the appellants showed themselves ready, willing and eager to perform the contract; that Mr. Eaton, with whom they had contracted, proved himself unable to perform his covenant to procure his wife's conveyance; and that she, when appealed to and offered the consideration which the contract provided for, repudiated the husband's action in the matter, and held the notes and mortgage of the appellants for eighteen months, refusing to make the deed, without which she had no right to hold them a day. This deed was essential to the contract. Without it Holgate would get nothing for the money he had paid and the notes he had tendered. He had a right to prompt action on the part of Mrs. Eaton if she intended to accept the contract. We are bound to hold that while she had a right to refuse to be bound by the contract, she could not play fast and loose with the other parties to suit her pleasure. When, a year and a half after the notes and mortgages were sent to her, she tendered her deed it was too late to bind the appellants without their consent. An important consideration leading to the same conclusion is, that at the time the contract was made and for a year or more after the value of the property continued to increase, but, for reasons not necessary to discuss, it had decreased so largely that at the time she tendered her deed it was worth far less than when Holgate elected to keep the land as a purchaser and demanded of Eaton the joint deed of himself and Mrs. Eaton. It is reasonable to suppose that this depreciation in value entered into the motives which finally induced her change of mind in the matter. The injustice of permitting her to delay two years her consent under these circumstances is obvious. The case before us is practically a bill by Mrs. Eaton for specific performance. At law she could sustain no action on the notes, and the circumstances under which she received and held them and the mortgage would be a perfect defense to a mere foreclosure of the mortgage. Her only ground of success in the present suit therefore is in the principles of equity juris It is quite apparent, therefore, that if Mrs. Eaton is seeking to enforce the contract made with her husband, she has been grossly negligent, until altered circumstances have lost her the right to do so; and if she relies on a contract with herself, no such contract was ever completed. Her bill, therefore, should have been dismissed. Holgate and Newbegin, however, filed a cross bill against Mr. & Mrs. Eaton asserting a right to recover the $400 paid for Eaton, and the $424 paid for the deed of Wilhelm for his tax title; and Mrs. Eaton having died while these suits were pending, her executor and her children were made parties in both bills. This cross bill presents more difficulty to our minds than the main bill, for it seeks to subject the land to the payment of these sums with interest. Undoubtedly, if Mrs. Eaton had accepted the contract made by her husband she would have been bound by this part of it as well as the other, and, failing to perform her part of it, these sums would become a lien on the land, according to the agreement. But she never be came bound by that contract. As we have just said, no contract was ever made between her and Holgate. They never were bound to each other at any time. There was never a common consent of minds on the subject. We have also expressed the opinion that Eaton's deed to Holgate did not convey her equitable interest, nor did his contract bind her in the agreement. It did not bind her to join him in a conveyance, and it did not bind her land as security for the money advanced to her husband. The same consideration applies to the purchase of the Wilhelm tax title. We cannot see how the equitable estate of Mrs. Eaton in her lifetime, or of her heirs now that she is dead, can be made liable for a contract to which she was no party and which she never sanctioned. But appellants have such title or interest in the land as Mr. Eaton had, and which passed by his conveyance. This may be a life estate. It may be a right to hold as a lien for |