ing may be thrown out of view. His title was extinguished on the 5th of February, 1844, in pursuance of a sale on a mortgage given by him on the 14th of December, 1835. If he had even granted a license in writing, or made a conveyance of the land, it would have been extinguished by the sale on the mortgage. His acts after the date of the mortgage and before the sheriff's sale, are deprived of all effect by the sale. His acts since the sale never had any effect. Ezra Spalding never said or did anything to encourage the erection of the dam on his land. All that can be said is, that it was built so near to his residence that he saw it as he passed along, and that he delayed bringing his action for about ten years. It is not in evidence that the defendants purchased the right to the plaintiff's land from any person. There is nothing to show that they had any ground whatever to believe that they had a right to commit the trespass complained of. They do not even produce their title to the land on the opposite side of the creek. The inference to be drawn from the non-production of it, is either that they are wrong-doers without title, or that their title excludes the land in controversy, and contains in itself, full notice that they were trespassing on another's land, when they erected their abutment on the plaintiff's side of the creek. As the evidence stands, it must be taken that the defendants were perfectly acquainted with their rights and had a full knowledge when they erected the abutment on Spalding's land, that they were trespassing on the rights of another. Notice is not required to be given to one already acquainted with his rights. There was nothing in the defence, and the Court committed no error in directing a verdict for the plaintiff below. Judgment affirmed. In the Supreme Court of Pennsylvania. HUYCK ET AL. v. TRACY. (Vol. IV., p. 764, 1857.) 1. A. agreed with B. that the latter should convey to the wife of A. and his heirs a tract of one hundred acres, and should also be answerable for liens to the amount of $400 upon a farm of A.'s, in consideration of which A. and his wife the same day conveyed the said farm to B. The deed for the one hundred acres was to be made as soon as desired, and as soon as the grantees should secure to B. the balance of liens against the farm, after deducting the $400. A. moved on to part of the tract, built a house, and cleared a few acres. The balance of liens to be secured amounted to over $800. A. and his wife were unable to pay or secure this balance, and B. three years afterwards agreed to convey to the children of A. and his wife thirty of the one hundred acres, in full satisfaction of the original agreement. These thirty acres were surveyed and divided off, and B. went on and cleared and improved the balance. A.'s wife subsequently procured a divorce from him, and he gave her the agreement for the conveyance of the thirty acres, which she afterwards conveyed to her son. Some fifteen years after the second agreement, the children of A. and his wife brought ejectment to recover from B. the balance of the hundred acres. A. and his family had occupied the thirty acres all the time, and were fully aware of B.'s occupation and improvement of the balance, without making any objection. Held: that in the absence of evidence that the liens upon the farm had been paid or secured according to the original agreement, the plaintiff could not recover. 2. That B. being lawfully in possession was not bound to account for the profits; and that evidence offered to show that these had paid the expenses and purchase money was rightly rejected. ERROR to Bradford County. Ejectment. On the 19th of March, 1835, Tracy, the defendant, agreed with Isaac Huyck to convey to Cynthia Huyck, his wife, and the heirs of said Isaac, a tract of one hundred acres; and to pay and answer for $400, then standing as liens upon a farm owned by said Isaac; in consideration of which, Isaac and his wife, on the same day, executed and delivered to Tracy a deed for said farm. The deed from Tracy, for the one hundred acres, was to be made as soon as desired, and as soon as the grantee should secure to Tracy the balance due from Isaac Huyck upon liens upon the farm, after deducting the $400 agreed to be paid by Tracy. This contract was signed by Tracy and Isaac Huyck. Shortly afterwards Isaac with his family moved on to one end of the tract of one hundred acres, built a house, and cleared some three or four acres. There were about seven acres already cleared when they moved on. At the date of the agreement, there were liens upon the farm amounting in all to $1129 40, which left a balance after deducting the $400 of $729 40, to be secured to Tracy by Cynthia Huyck and the heirs of Isaac before they were entitled to a deed for the one hundred acres. No part of this was secured or paid by them, and on the 12th April, 1838, it amounted with the interest to $863 60. Huyck and his wife finding themselves unable to pay these liens, urged Tracy to relieve them from the agreement, and allow them to keep some thirty of the one hundred acres, free from encumbrance; and on the 12th April, 1838, Tracy made a new agreement with Isaac and Cynthia Huyck, which was signed by all three of the parties, by which thirty acres of the tract was to be conveyed to the children of Isaac and Cynthia in full satisfaction of the original agreement. Within a few days afterwards this thirty acres was surveyed off, including the buildings which Isaac had put up and the larger part of the land he had cleared. After this, on the 23d August, 1838, a third party paid to Tracy a part of the liens which were jointly against Isaac and others; but a balance of several hundred dollars still remained unpaid and unsecured of the liens which were to have been paid or secured by the terms of the original agreement. The land relinquished to Tracy by the agreement of 12th April, 1838, being the balance of the one hundred acres, was mostly unimproved. Tracy cleared and fenced it, and expended some money in erecting buildings upon it. Huyck and his family occupied the thirty acres, claiming to the line by which the thirty acres were set off, and uniting with Tracy in making the division fence between them upon that line. In 1846, Cynthia Huyck obtained a divorce from Isaac, but they afterwards lived together on the thirty acres. Cynthia took from her husband the agreement of Tracy to convey the thirty acres to the children; and after her son Daniel, the plaintiff, came of age, she conveyed it to him. No objection was ever made to the improvement made by Tracy, although they were carried on with full knowledge of the Huycks. In 1853, Daniel C. Huyck and the other children of Isaac and Cynthia, brought this suit to recover the balance of the one hundred acres. Upon the trial, the plaintiffs objected to all evidence of the acts and declarations of Isaac and Cynthia Huyck at any time after the date of the original agreement; but the learned judge admitted the evidence. Plaintiffs also offered evidence to prove that the annual profit of the land had paid all expenses and purchase-money, but the offer was rejected. The learned judge instructed the jury that the plaintiffs were not entitled to recover. The jury found for defendant, whereupon the plaintiffs took this writ of error. The opinion of the Court was delivered by KNOX, J.-It is unnecessary to decide in the present action whether or not the agreement of 12th April, 1838, divested the interest of Mrs. Huyck and her children, in the land for which this suit was brought. When the agreement of the aforementioned date was made, the actual possession as well as the right of possession was in Isaac Huyck the father; and the agreement was, at the least, good against him, and sufficient to transfer the possession to the defendant. Conceding that the agreement of 19th March, 1835, gave to Mrs. Huyck and her children an equitable interest in the one hundred acres, and that this equity is still a subsisting one, the plaintiff cannot recover the possession from the owner of the legal title, until it is shown that the condition upon which the conveyance depended, has been fully complied with. The burthen of the proof was upon the plaintiff to show that the heirs mentioned in the first agreement had been paid or offered to be paid before the commencement of the suit; and as it is clear from all the evidence in the case that a considerable sum remains unpaid, the direction to the jury to find for the defendant was properly given by the learned judge, before whom the cause was tried; as the defendant was lawfully in possession, he was not bound to account for the profits derived from the land, and unless these were allowed to the plaintiff there is no ground whatever for the allegation that there was nothing due under the agreement of 1835. The admission of the declarations of Mr. and Mrs. Huyck in reference to the agreement of 1838, even if erroneous, became, in the view of the case here taken, wholly unimportant. The result must have been the same if they had been rejected; for it depended essentially upon the written agreement, and the failure on behalf of the plaintiff to prove a compliance with the terms of the one first entered into. The plaintiff had no case under the most favorable aspect in which it can be viewed. Judgment affirmed. In the Supreme Court of Pennsylvania. TEMPLE v. M'CONKEY. (Vol. V., p. 36, 1857.) 1. A. sold three lots to B. by articles of agreement. B., without having paid the purchase-money, conveyed one of the lots to C. In ejectment by C. against A. to compel specific performance, it was held that B. could not sever the contract without the consent of A., and that C. was not entitled to relief unless the circumstances of the case were such as to demand specific execution of the original contract. 2. Though time is not in general of the essence of a contract, it may be made so by agreement or become so by implication. 3. Even where time is not expressly or impliedly of the essence of the contract, if the party seeking specific performance has been guilty of gross laches, or has been inexcusably negligent in performing the contract on his part, or if there has been in the intermediate period a material change of circumstances affecting the rights, interests or obligations of the parties, in all such cases courts of equity will not grant relief. ERROR to the Court of Common Pleas of Erie County. This case was tried before Agnew, P. J., at a special court. It was argued at the last term of the Supreme Court in Pittsburgh, by Babbitt and Spencer for the plaintiff in error, and by Marshall for the defendant in error. The facts of the case are |