Dorsey v. Packwood. 12 H. Now, as the decision of the question involving the right and title of the plaintiff in error to Gooding's interest in this [* 125 ] fund under the insolvent proceedings was against him in the court below, and was one which, in our judgment, involved only a question of state law, and, therefore, not the subject of revision here, and was conclusive upon his rights, and decisive of the case, it follows that we have no jurisdiction within the principle of the cases to which we have referred; for the determination of the court upon the validity of the act of the legislature of 1841, in no way controlled the judgment at which the court arrived, as respected the plaintiff. That turned upon the decision as to the right of the plaintiff to the fund under the insolvent proceedings, as permanent trustee of Gooding, and whatever might have been the opinion of the court upon the other question, the result of their judgment would have been the same. For the reason, therefore, that this case falls directly within the decision of Gill v. Oliver's Executors, 11 How. 529, and is not distinguishable from it, the case must take the same direction, and be dismissed for want of jurisdiction. 12 H. 125; 17 H. 232, 239; 20 H. 535; 24 H. 317; 6 Wal. 258. NATHANIEL WILLIAMS, as permanent Trustee for the Creditors of JOHN GOODING, an Insolvent Debtor, v. CHARLES OLIVER, Robert M. GIBBES, and THOMAS OLIVER, Executors of ROBERT OLIVER, and JOHN GLENN and DAVID M. PERRINE, Trustees. 12 H. 125. NELSON, J., delivered the opinion of the court. [* 126 ] This case involves the same principles as the case of Williams, permanent trustee of James Williams, 12 How. 111, already decided; and we refer to the opinion there delivered, for our decision in this case. The case is dismissed for want of jurisdiction. GREENBERRY DORSEY, Complainant and Appellant, v. SAMUEL PACKWOOD, 12 H. 126. Upon a bill for specific performance of a contract to convey land, held, that the complainant was not entitled to a decree. 1. Because he had shown no performance or offer to perform, on his own part. 2. Because an agreement to convey in consideration of payments to be made out of the profits of the vendor's lands, was not a contract which a court of equity would enforce. 3. That the complainant had abandoned and released his claim. Dorsey v. Packwood. 12 H. APPEAL from the circuit court of the United States for the eastern district of Louisiana. The case is stated in the opinion of the court. Henderson, for the appellant. Butler, contrà. [* 134 ] GRIER, J., delivered the opinion of the court. The record of this case covers 840 pages; and the abstracts and briefs of counsel, nearly 300. But as the merits of the case, when extricated from the mass of matter with which it is enveloped, depend on the application of undisputed principles and axioms of the law, to a few leading facts, it will not be necessary that our statement of it should be proportionally voluminous. Dorsey, the complainant and appellant, filed his bill in the circuit court of Louisiana in March, 1848, claiming the specific execution of a contract in writing, executed on the 16th of April, 1821, which is as follows: "Samuel Packwood, now in the city of New Orleans, having lately purchased the plantation heretofore belonging to John La Farge, situated below town, on the right bank of the river, about eleven leagues, binds himself his heirs and executors, to transfer unto G. Dorsey, his heirs and executors, one half of the plantation above mentioned, also one half of the slaves, cattle, and stock, farming utensils, &c. &c. as soon as said G. Dorsey shall pay for one half of the cost of said property, either with his own private means, or with one half of the profits of the plantation; but it is agreed upon and well understood by said G. Dorsey, that Samuel Packwood, until said transfer is made, has the right and privilege of selling and disposing and transferring of said plantation to any person or persons that he may think proper to sell to, without consulting or asking the consent of said G. Dorsey, and the consent of said G. Dorsey shall not be necessary to make the sale good; and it is further agreed upon, that Samuel Packwood is to have the entire and complete control of said plantation, and every thing that appertains [* 135] to it, until said transfer is made to G. Dorsey; but if said Packwood should sell at any time previous to said transfer to G. Dorsey, he shall be answerable for, and shall account to said G. Dorsey for one half of the net profits of said sale." At the time this paper was executed, Packwood resided in New York, but was owner of valuable property in New Orleans, from which he derived his principal income. Dorsey was his son-in-law, Dorsey v. Packwood. 12 H. and a member of the mercantile firm of Morgan, Dorsey, and Co. This firm was in good credit, and acted as the financial agent of Packwood, lending him their acceptances, and advancing money for him, to enable him to complete his purchases, up to the time of their failure and bankruptcy, in 1825. At this time the firm was largely in advance to Packwood; but the balance due was afterwards paid by him, with interest. Dorsey had been chiefly instrumental in persuading Packwood to make this purchase, and owing to his expectation of a share in the speculation in case it should turn out to be profitable, the commissions charged for these financial accommodations were probably not so great as they otherwise might have been; and for the same reasons, also, Dorsey took an interest in the management of the plantation, made additional purchases, gave advice and superintendence, without at first making such additional charges as might have been made for similar services rendered to a stranger. When this purchase was made, the parties seem to have expected that after the first payment of $25,000 was made by Packwood, the profits of the plantation might in a great measure be depended on to liquidate the balance of its cost. But they were greatly deceived in this expectation. For many years the crops did not equal the expenses; so that, at the time of the failure of the firm of Morgan, Dorsey, and Co. in 1825, Packwood was in debt for the plantation, and the additional purchases of land and negroes, a sum exceeding one hundred and fifty thousand dollars, ($150,000.) Dorsey had paid nothing, and was then unable to pay any thing. The speculation seeming likely to turn out disastrous, he ceased to expect any advantage from it, or claim any interest in it, and accordingly, he advised Packwood to sell the greater part, if not all of it, "with the hope that he (Packwood) might get out of the scrape in four or five years." Indeed, for some years after this it appeared doubtful whether Packwood would be able to extricate himself from his pecuniary embarrassments consequent on this purchase. He finally succeeded, however, after a further struggle of some twelve or fifteen years, by sales of his other property, and the profits of the plantation, to rescue himself from impending ruin, and pay the debts in which he had been involved. During all *this time, Dorsey was unable to help Packwood out of his [136 difficulties, and ceasing to consider his expectations from Packwood's contract with him to be of any value, and as it might be considered a cloud upon the title, at the request of Packwood he voluntarily executed and sent to him the following release, witnessed by his wife: "This is to certify, that I hereby abandon and release unto Dorsey v. Packwood. 12 H. Mr. Samuel Packwood, any claim I have or might have to any interest in or to his plantation, in the parish of Plaquemines, or profits of the same, by virtue of any written document he may have given, or verbal promises made upon the subject." New Orleans, 20th January, 1836. Witness: E. H. Dorsey. G. DORSEY. From this time till 1838, Dorsey had the agency of the plantation under a power of attorney from Packwood. In that year Packwood cancelled his power of attorney, and appointed another agent, alleging that Dorsey had misused his power by indorsing his principal's name to sustain his private credit. This was the beginning of a coldness between the parties, which, after the refusal of Packwood to incur liabilities for Dorsey in 1840, and after the death of Mrs. Alice Packwood, the mother of Mrs. Dorsey, and the marriage of Packwood to a second wife, became a bitter family quarrel, followed by much litigation between the present parties. The nature and result of these suits, it is not necessary, for the purposes of the present case, to specify. Suffice to say, that Dorsey now revived his claim to a share in the Myrtle Grove property, on the ground that his half of the purchase-money had been paid by the rents and profits of the estate, and finally instituted this suit in March, 1848. In the original bill, the complainant founds his title to relief on an alleged lost agreement, dated on the 12th of April, 1823. But after the production by the respondent, of this instrument, dated 16th of April, 1821, he amended his bill, and made his claim under it. The respondent, in his answer, denies the existence of any other agreement either written or parol, and there is no proof to show the existence of either. The right of the complainant to relief will therefore depend on this instrument of writing, in connection with the facts, a brief outline of which we have endeavored to give, so far as we think them material to the decision of the cause. There is no allegation in the bill, or proof, that any clause was omitted from this instrument, either through mistake or inadvertence. It is signed by both parties in presence of attesting witnesses; and is expressed in clear and precise terms. But there is one character istic necessary to give it validity as a binding contract, in [*137] which it is entirely deficient. It wants mutuality. *It imposes no obligations on Dorsey whatever. He is not bound either to render services or pay money as a consideration for one half the land. Packwood could not support a suit upon it to compel Dorsey to do any thing. It is not an alternative obligation, because Dorsey is not bound to perform either alternative. The allegation, that "Dorsey elected the alternative of paying for the Dorsey v. Packwood. 12 H. pur and out of the profits," (or, in other words, with Packwood's money,) amounts only to this: That he was willing to accept one half of the plantation as a gift, but would pay no part of the chase money out of his own pocket. Nor is there any evidence that Dorsey ever notified Packwood of his election to do any thing. On the contrary, in January, 1825, before the failure of the firm of Morgan, Dorsey, and Co., when the speculation appeared likely to be a ruinous one, he elects to have Packwood "get out of the scrape," the best way he could, and his release, given in 1836, shows his elec tion to claim no interest in the property whatever. But even assuming that Dorsey was bound by this contract, it cannot come within the category of alternative obligations, where one of the alternatives was to pay with Packwood's money, and give nothing of his own. "An obligation," says Pothier, "is not alternative, where one of the things is not susceptible of the obligation intended to be con*racted; but in this case the obligation is a determinate obligation of the other. Therefore, it was decided, in 1. 72, § 4, ff. de sol, that if a person promised me in the alternative two things, whereof one belonged to me already, that he had not the liberty of paying that in lieu of the other-not even although it might afterwards cease to belong to me; because this not being, at the time of the contract, susceptible of the obligation contracted in my favor, the other only was due; cum re sua nemo deberi possit." Evans's Pothier, Part 2, c. 3, art. 6, No. 249. Assuming the obligation to be mutual, Dorsey was bound to "pay with his own private means one half of the cost" of the property, or offer to do it within a reasonable time, before he could claim the interference of a court of equity to enforce a specific execution of this contract. Equity will not decree the specific execution of mere nude pacts, or voluntary agreements not founded on some valuable or meritorious consideration. The same rule is applied to imperfect gifts, inter vivos, to imperfect voluntary assignments of debts or other property, to voluntary executive trusts, and to voluntary defective conveyances. When the obligation is mutual, the party asking a specific performance must show that he has been in no default in not having performed the agreement on his part, and that he has taken all proper steps towards the performance. He must show himself desirous, prompt and eager to perform the contract. If ⚫he has been guilty of gross laches, or if he applies for [* 138 ] relief after a long lapse of time, unexplained by equitable circumstances, his bill will be dismissed. It is clear, then, from this statement of the facts and law as they |