granted the complainant amounted to an acquiescence in his failure to perform his contract, and kept the contract in force until the time limited in the notice of June 14, 1889. It is Insisted by the appellant that time was not of the essence of the contract, and that the Winter Park Company had no right to make it such, or to put a limitation upon the time of performance by the complainant, by giving such notice. We agree that time was not of the essence of the original contract in this case; unless expressly stated so to be it is not generally so regarded in a court of equity: Southern Life Ins. etc. Co. v. Cole, 4 Fla. 359. While time may not be the essence of the original contract the principle is well established that where one party to a contract is guilty of laches and negligence to perform the same, and the time for performance has passed, the other party may, by giving notice, fix a reasonable time for the performance of the contract, and has the right to treat the contract abandoned if not complied with in such limited time: Waterman on Specific Performance of Contracts, secs. 465-483; 2 White and Tudor's Leading Cases in Equity, 1137; note to Seton v. Slade, and authorities cited; Kirby v. Harrison, 2 Ohio St. 326; 59 Am. Dec. 677. Although the complainant was in default, he made no reply whatever to the notice. If he had desired still further extension of time he should have let his wishes be known. If he considered that he had further rights in the matter, and that the Winter Park Company could not put a limitation of time upon 267 him, he should have been prompt in the assertion of such rights. Failing to ask any further extension or to assert any right, he must be held as acquiescing in the demand contained in the notice, and as abandoning all rights he might have had to enforce the performance of the contract: Gentry v. Rogers, 40 Ala. 442, 449. In order that such a notice have the effect to put a limitation upon the time for the performance of a contract the time fixed for the performance of the contract should be a reasonable time. within which to do the act required. There cannot in the nature of things be any fixed rule as to what constitutes a reasonable time in such cases. It must depend upon the facts of each particular case. The time fixed for the perform ance of the contract in the notice in question was nearly forty days. The simple act required to be done was the payment of a sum of money. True the complainant lived in Massachusetts, and the defendant corporation was in Florida. We

cannot, however, close our eyes to what is a matter of common knowledge, that in this age of electricity and steam, in the facilities they afford for communication between different states of the union, and the transmission of money and other articles from one portion of the country to another, have practically annihilated distance and time. Under all the circumstances of the case we think the limitation of time fixed in the notice was a reasonable one.

There is another reason why we think the complainant was not entitled to specific performance of the contract: He did not come into court with sufficient promptness. While a court of equity will not, as stated, regard time as of the essence of a contract unless expressly made such by the contract itself, yet it will require that one who seeks specific performance of 268 a contract shall not be guilty of unreasonable delay, and shall seek his redress with reasonable promptness. The specific performance of a contract for the sale of lands is not a matter of right in either party, but rests within the sound. reasonable discretion of a court of equity. This discretion will only be exercised where the complainant shows himself prompt and eager to perform the contract on his part, and to have same performed by the other party: Knox v. Spratt, 23 Fla. 64; Van Doren v. Robinson, 16 N. J. Eq. 256; Goodwin v. Lyon, 4 Port. 297; Potter v. Dougherty, 25 Pa. St. 405; Gentry v. Rogers, 40 Ala. 442, 448, and authorities cited. In this case the complainant had no agreement or understanding for any extension of time for performance of his contract after January 1, 1888. His laches after that time was of his own fault and willfulness, and without the consent of the Winter Park Company. He had been long in default when the notice of June 14, 1888, was sent to him. After this notice he made no protest or assertion of his rights; no payments or efforts for further extension of time. When defendant, the Winter Park Company, wrote to him, he ignored the letters. Then, after the notice of June 14, 1888, was given him, making no reply, he waited for considerably more than a year after the property had been sold to another party before he tendered the money and sought to perform his contract, or sought to have the deed made to him. The suit was brought November 16, 1889, nearly one year and four months from the expiration of the time limited in the notice. This we consider an unreasonable delay. What is a reasonable time within which to file a bill for the specific performance of

a contract cannot be fixed with precision by any general rule. In Watson v. 269 Reid, 1 Russ. & M. 236, cited with approval in Knox v. Spratt, 23 Fla. 64, one year after default was held to be an unreasonable delay upon the part of a vendor. In Gentry v. Rogers, 40 Ala. 442, likewise cited in Knox v. Spratt, 23 Fla. 64, nine months was held to be unreasonable delay. The ground upon which delay in this class of cases is considered unreasonable is, that it raises a presumption that the party has abandoned the contract, and is equivalent to a consent to a rescission: Knox v. Spratt, 23 Fla. 64; Waterman on Specific Performance of Contracts, sec. 473, and authorities cited.

It is claimed by the appellant that although he might not have been entitled to a specific performance of the contract, yet that while he was a vendee in possession he made valuable improvements upon the land, and that the bill should have been retained, that he might recover compensation for these improvements. The alternative prayer of the bill is, that "said company be compelled to refund to complainant the difference between the fair value of said premises and the amount due said company." The "fair value" of the premises is not shown in the record. The price for which it was sold to Dorn and the value of improvements put upon it by the complainant are the only data throwing any light upon the subject of value of the premises. The case of Lewis v. Yale, 4 Fla. 418, asserts the general doctrine to be "that a court of equity cannot award compensation in damages for injury sustained by nonperformance of a contract, where the primary relief (specific performance) cannot be decreed." This case was upon the general subject of damages for the breach of contracts for the sale of lands, and the damages sought to be recovered were not on account of improvements erected upon the land. 270 The head-notes in the case of Glinski v. Zawadski, 8 Fla. 405, say: "1. Where the object of the bill is to compel the 'specific performance' of a contract, if the prayer be denied (as a general rule), the bill will be dismissed; but there are exceptional cases, as where equity is found to have arisen between the parties to the contract growing out of its peculiar character or nature. In such case the bill may be retained for the purpose of having that equity adjusted; 2. Where one contracts to purchase real estate, and proceeds to erect improvements thereon, if compensation therefor be decreed him, the amount is to be based

upon the actual value of the improvements, or, at farthest, upon a reasonable allowance, and not upon the amount expended." We have no doubt that in a proper case the equities might be such that, where the prayer of the bill for specific performance is denied, the court would retain the bill, and adjudicate any other equities which had arisen be tween the parties. In cases where the vendee in possession. had made valuable improvements upon the faith of his purchase, and the contract is such that specific performance thereof cannot be enforced, the vendor will be compelled to refund the purchase money, and to pay the actual value of the improvements: Waterman on Specific Performance of Contracts, sec. 281, and authorities cited. We find a large number of cases of specific performance of contracts for the sale of land, wherein the primary relief prayed for, i. e., specific performance, was denied, and yet compensation was allowed the complaining vendee for improvements put upon the land upon the faith of his contract. In all of these cases the complainant was free from fault, and specific performance was denied by reason of some defect in the contract, or noncompliance with the statute of frauds. 271 These adjudications are reiterations of the doctrine every where enforced by courts of equity, that the statute of frauds should not be used as an instrument of fraud. We have been unable to find any case where compensation was allowed a vendee where his case failed, not from any technical defect in the form of his contract, but on account of his own laches, negligence, and disregard of his obligations. The appellant in this case may suffer some pecuniary loss from which we might wish to save him, but he is in a predicament into which he has gotten himself by his own conduct, and from which we are powerless to extricate him: Hatch v. Cobb, 4 Johns. Ch. 559; Goodwin v. Lyon, 4 Port. 297.

There is no error in the decree appealed from, and it is affirmed.

VENDOR AND PURCHASER-TIME WHEN OF ESSENCE OF Contract, Gen. ERALLY.-Time is not generally deemed in equity of the essence of the contract unless the parties have expressly so treated it: Young v. Rathbone, 16 N. J. Eq. 224; 84 Am. Dec. 151, and note; Coleman v. Applegarth, 68 Md. 21; 6 Am. St. Rep. 417, and note. When time is not expressly stated to be of the essence of the contract courts are reluctant to enforce forfeitures: Sanford v. Weeks, 38 Kan. 319; 5 Am. St. Rep. 748, and note.

VENDOR AND PURCHASER-BREACH OF CONTRACT-NOTICE.-When time is not made of the essence of a contract for the sale of land, it is incum

bent upon the vendor or his assignee who would terminate the contract, and insist upon a forfeiture, to give notice to the vendee and a reasonable time within which to do any act required of him: Alexander v. Jackson, 92 Cal. 514; 27 Am. St. Rep. 158, and note.

SPECIFIC PERFORMANCE-EFFECT OF LACHES.-Specific performance of a contract to convey land will not be decreed if there has been great delay in complying with the contract of purchase, or in filing a bill to enforce the rights of a party to such contract: Hatch v. Kizer, 140 Ill. 583; 33 Am. St. Rep. 258, and note.

SPECIFIC PERFORMANCE-DISCRETION OF COURT.-A decree for specific performance is not granted as a matter of course, but rests in the sound discretion of the court: Friend v. Lamb, 152 Pa. St. 529; 34 Am. St. Rep. 672, and note, with the cases collected.

VENDOR AND PURCHASER-COMPENSATION FOR IMPROVEMENTS. — Although a parol agreement to convey land will not be specifically enforced, yet the party repudiating the contract will not be allowed to enjoy the benefit of permanent improvements put upon the land by one relying on such contract without compensation for the same: Pitt v. Moore, 99 N. C. 85; 6 Am. St. Rep. 489, and extended note; Herring v. Pollard, 4 Humph. 362; 40 Am. Dec. 653, and note. A bona fide occupant of land under a contract to purchase is entitled to charge for improvements exceeding the rent: Erving v. Handley, 4 Lit. 346; 14 Am. Dec. 140; Martin v. Atkinson, 7 Ga. 228; 50 Am. Dec. 403. See, also, Gibert v. Peteler, 38 N. Y. 165; 97 Am. Dec. 785, and note; and the note to Barrett v. Stradl, 9 Am. St. Rep. 805.

REEL V. LIVINGSTON.

[84 FLORIDA, 877.]

FRAUDULENT CONVEYANCES-DEBTOR AND CREDITOR-WHAT SUFFICIENT TO CREATE RELATION OF.-The contingent liability of a surety is sufficent to create the relation of debtor and creditor within the meaning of the statute of frauds against the fraudulent alienation of property, and a note given for a pre-existing debt and renewed from time to time by the maker and surety continues the debt in force as originally made.

FRAUDULENT CONVEYANCES-PURCHASE BY HUSBAND FOR WIFE-RIGHT OF HUSBAND'S CREDITORS TO ATTACK.-The fact that property is pur chased by the wife and partly paid for by the husband, and the deed taken in the name of the wife, coupled with an existing indebtedness of the husband, makes a prima facie case of fraud, and the creditor of the husband can subject the property in the hands of the wife or her legal representatives to his debt to the extent of the amount paid by the husband, unless the presumption of fraud is negatived by the financial condition of the husband, and the circumstances at the time, or other rebutting evidence.

FRAUDULENT CONVEYANCES-SUFFICIENCY OF PLEADING TO SHOW. - An allegation in a bill in equity that the payment by the husband of a mortgage note given for the purchase money of property conveyed to the wife was for the convenience of the husband, and for the purpose