(v) Equity looks upon things agreed to be done as actually performed. Treat, on Eq. b. i. ch. 6, § 9. But nothing is looked upon in equity as done, but what ought to nave been done, not what might have been done; nor will equity consider things in that light in favor of everybody, but only for those who had a right to pray that it might be done. Sir Thomas Clarke, M. R., Burgess v. Wheate, 1 W. Bl. 129, 1 Fonb. Eq. (5th ed.) 419.
(w) Lord Eldon, C, Seton v. Slade, 7 Ves. 274.
(x) The rule is, said Sir Thomas Clarke, Burgess v. Wheate, 1 W. Bl. 129, that the remedy in equity shall either be between the parties who stipulate what is to be done, or those who stand in their place. The rule applies between successive personal representatives; thus the contract of an administrator, made in a due course of administration, may be enforced against an administrator de bonis non, Hackett v. McNamara, Lloyd & G. cas. temp. Plunket, 283.
(y) A, one of two coparceners, without authority from B, the other coparcener,
Preston, 95 U. S. 200; or for a long lapse of time, without very satisfactory evidence of the terms of the contract, Ritson v. Dodge, 33 Mich. 463. Specific performance was denied of an agreement to convey land where a purchaser failed to pay any portion of the purchase-money, save a part of interest on it, for six years from the date of the agreement to convey Henderson v. Hicks, 58 Cal. 364. See also Illinois, etc R. Co. 93 I11 290. Where a deed to a railroad company stipulates that it shall erect a convenient bridge over the premises, at a spot to be selected by the grantor, but does not fix the time for performance, the grantor's failure to designate the spot within a reasonable time, and neglect for twenty years to call on the company for performance, are such laches as will preclude the grantor from specific performance. Williams p. Hart, 116 Mass. 513. Sixty years' delay in seeking relief by specific performance, was held a bar, in Johnson v. Somerville, 6 Stewart, 152. - K a valid contract to sell it to one, sells it to another purchaser who takes possession, equity will inquire whether this second purchaser had notice or knowledge of the first bargain; and if he had, will decree specific performance, or the conveyance of the land to the first purchaser, against him as it would against the original owner, (z)1 So if a landlord demise certain premises by a lease, and a third party enter upon the premises with the consent and permission of the lessee, this third party will be considered, as to all the landlord's rights, as in under the lease, although he disclaim all privity with the tenant (a) executed a deed purporting to convey a portion of the land by metes and bounds to C. Afterwards A and B jointly conveyed the whole laud to D, who had notice of the previous transaction; in the deed from A to C, B's name was inserted as one of the grantors, though he had neither consented thereto, nor did he in point of fact execute the instrument; C filed a bill against D, setting up such deed as an agreement for the conveyance of the parcel of land therein mentioned, and prayed a specific performance, which was granted. McKee v. Barley, 11 Gratt. 340. Sed queere. This case is certainly an extreme one.
(z) Taylor v. Stibbert, 2 Ves. Jr. 437, Potter v. Saunders, 6 Hare, 1. See But-trick v. Holden, 13 Met. 355. So also in the case of a chattel. Clark v. Flint, 22 Pick. 231. In like manner, the vendor may enforce the contract against an assignee of the vendee, or rather against the land in his hands. Champion v. Brown, 6 Johns. Ch. 402. And the assignee of the vendor may have an equity to a specific performance. Thus, a purchaser having given his note for the purchase-money to the vendor, who assigned it for value to the plaintiff, it was held, that the latter might maintain a bill for a specific execution of the contract of sale, making both the vendor and the purchaser defendants; in which proceeding the vendee might be required to pay the money to the plaintiff, and the vendor thereupon to deliver a deed of conveyance to the vendee. Hanna v. Wilson, 3 Gratt. 243, which see for a form of decree in such case, giving also to the plaintiff the security of the vendor's lien. A mortgagee who purchases the equity of redemption, may be compelled to execute an agreement for lease entered into by the mortgagor, of which agreement the mortgagee had notice when he purchased. Smith v. Phillips, I Keen, 694. As to the performance of a contract of an ancestor in tail, by the heir, see Partridge v. Dorsey, 3 Harris & J. 302. A contract was made for the sale of a lot of land and a house thereon; but before the time for the delivery of the deeds, the house was accidentally burned. The seller duly tendered his deed, which the buyer refused to receive; and it was held, that the seller was entitled to specific performance, the buyer being in equity the owner of the house by the contract. Brewer v. Herbert, 30 Md. 301.
(a) Howard v. Ellis, 4 Sandf. 369.
1 Thus, when a railroad company issued a circular inviting people to settle and improve its lands, and agreeing to give the preference to such when the lands were sold, and a person settled on such land, filed his application to purchase as directed, made valuable improvements thereon, but the company, without notice to him that the price had been fixed and not giving him the option, sold the land to another who had knowledge of the prior agreement, the offer and acceptance were held to create a valid contract, and the purchaser was compelled to convey to the settler. Boyd v. Briuckin, 55 Cal. 427. Where land was sold by a warranty deed subject to a mortgage, and was afterwards bid in by the mortgagor at the foreclosure sale, a purchaser from the grantee at the first sale cannot com pel the mortgagor to convey the land, without payment to the latter of the mortgage debt, the purchaser not having shown a bona fide purchase without notice, Berry v. Whitney, 40 Mich. 65; but not as against a bonafide purchaser who has paid the purchase money, and if part of latter remains unpaid, it may be claimed by the prior purchaser, Haughwout v. Murphy, 6 C. £. Green, 118. - K.