^(. ^ LAW BOOKS ^^ 337 W. MADISON ST. (Eormii ICam ^rl^nnl ICthrarg JMaraljaU iEquttg QlnUertion dtft of iE. i. MaraljaU. 81.2]. 1. 1334 CORNELL UNIVERSITY LIBRARY 3 1924 084 257 488 SELECTED CASES ON EQUITY BY GEORGE L. CLARK Author of "Principles of Equity" PART I— CHAPTERS I TO IV. u 1921 E. W. STEPHENS PUBLISHING COMPANY Columbia, Missouri ^^ZHI COPYKIGHT 1921 BY George L. Clark. TABLE OF CONTENTS PART I. CHAPTER I. Intkodtjction 1 CHAPTER II. Specific Pekfobmancb of Contracts Section 1. In General Section 2. Affirmative Contracts Section 3. Negative Contracts 30 30 39 65 Section 4. Relief For and Against Third Persons — Equitable Servi- tudes 83 Section 5. Consequences of Right of Specific' Performances 120 Section 6. Partial Performance with Compensation 144 Section 7. Defenses 152 CHAPTER III. Specific Repaeation and Prevention of Torts 225 Section 1. Waste 225 Section 2. Trespass 237 Section 3. Private Nuisance 253 Section 4. Disturbance of Private Easements 285 Section 5. Obstruction of Public Rights 296 Section 6. Public Nuisance 300 Section 7. Common LaAV Copyright— Statutory Monopolies 316 Section 8. Interference with Trade Interests — Fraud 331 Section 9. Interference with Contract and Business Relations 344 Section 10. Defamation— Interference with Privacy 364 Section 11. Interference with Domestic, Social, and Political Re- lations 381 CHAJPTER IV. Prevention of Crimes and Criminal Proceedings (in) .391 Cornell University Library 3J.. The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084257488 TABLE OF CASES Adams, Taylor v. : 228 Amer. Law Book Co. v. Edward Thompson Co. 344 Amer. Soc'y etc., Davis v. 393 Anaconda, etc. Co., Bliss v. 283 Appleton, Robinson v. 91 Arizona Ins. Ag'y, Bisbee v. 396 Babcock v. McCamant 23 Badger v. Boardman 98 Baghurst, Nibert v. 158 Bailey v. Duncan 133 Baker, Rhoten v. 23 Baltimore Coal Tar Co., Equi- table Gas Co. V. 54 Bangor, etc. R. R., Coding v. — 211 Barton, L,ippincott v. 234 Bastable, Pearce v. 84 Bennet, Lawes v. 130 Betts V. DeVitre 324 Birch, Hercy v. 28 Bisbee v. Arizona Ins. Ag'y 396 Bishop V. Newton 187 Blew V. McClelland 139 Bliss V. Anaconda etc. Co. 283 Block V. Morrison 136 Boardman, Badger v. 98 Bodwell V. Bodwell 181 Boeckler v. Mo. Pac. Ry. Co. _. 245 Brande v. Grace 287 Brewer v. Marshall 113 Bridgman, Sturges v. 261 Brown v. Smith 199 Brown, Wannamaker v. 149 Buchan, Marsh v. 198 Buck, Tuttle v. 360 Buckley, Hill v. 145 Buckland v. Hall 182 Bull, Logan & wife v. 323 Burnham, Fleming v. 155 Burrell, Krehl v. 393 Byrnes, Jackson v. 66 Caldwell V. Depew 206 Campbell v. Gilman 5 Carpenter v. Mutual Co. 48 Caton V. Caton 163 C, B. & Q. R. R. V. Reno 208 Charless, Rankin v. 355 Cheuvronts, Dees v. 349 Chubb V. Peckham 213 (v) Clegg V. Hands 101 Cloyd V. Trotter 9 Cobb V. Saxby 294 Cohn, Day v. 195 Coles V. Feeny 123 Combs V. Fisher 141 Com'th V. McGovern .. 306 Continental Paper Bag Co. v. Eastern Paper Bag Co. 326 Cooper V. Jarman 125 Corbin v. Tracy 43 Cornellier v. Haverhill Shoe Mfrs. Ass'n 353 Crabtree v. Welles 157 Crisp, Joyner v. 147 Crocker v. Manhattan Life Ins. Co. 244 Crossett, Owens v. 253 Daly V. Smith 73 Daniel v. Ferguson 290 Daniels v. Davison 83 Darst V. Kirk 30 Daughetee, Ohio Oil Co. v. 225 Davenport, Paddock v. 38 Davis V. Am. Soc'y etc. 393 Davis, Sawyer v. 364 Davison, Daniels v. 83 Day V. Cohn 195 Day, Sprake v. 137 Dees V. Cheuvronts 249 DeHeld, Soltau v. 375 Depew, Caldwell v. 206 DeVitre, Betts v. 324 Dickenson v. Grand Junction Canal Co. 100 Dills V. Doebler 35 Dockstader v. Reed 81 Doebler, Dills v. 35 Dr. Miles Medical Co. v. Park & Sons Co. 115 Dressel v. Jordan 222 Duflfy v. Kelly 178 Duncan, Bailey v. 133 Durrett v. Hook 205 Eastern Paper Bag Co., Conti- nental Paper Bag Co. v. 336 Eaton V. McCall 6 Edelen, Hampson v. '. 136 Edward Thompson Co., Amer. Law Book Co. v. 344 VI TABLE OP CASES. Edwards v. West 142 EUice, Potter v. 124 Ellis V. K. C. R. R. 269 Emack V. Kane 364 Engle V. Walsh 385 Equitable Gas Light Co. v. Balti- more Coal Tar Co. 54 Everett v. Paschall 300 Feeny, Coles v. 122 Ferguson, Daniel v. 290 Fessler v. Town of Union 396 Fisher, Combs v. 141 Flansburg, Powers v. 391 Fleming v. Burnham 155 Fobes, Leach v. 41 Foote, Parker & Edgarton v. 285 Foster v. Kimmons 37 French, Webster v. ^ 193 Fuelle, Lohse Pat. Door Co. v.— 350 FuUerton, Pomeroy v. 188 Gartrell v. Stafford 39 Georgia v. Tennessee Copper Co. 309 Gerard v. Lehigh Stone Co. 173 Gibson, Whatman v. 91 Giles V. Walker 259 Gilman, Campbell v. 5 Gladville v. McDole 167 Coding V. Bangor, etc. R. R. ___ 211 Gottschalk v. Stein " 46 Gould V. Partridge 104 Grace, Brande v. 287 Grand Junction Canal Co., Dick- enson V. 100 Green v. Green 176 Great Falls Mfg. Co. v. Worster 12 Gruban, Kirchner v. 79 Guard v. Whiteside 65 Gupton V. Gupton 85 Gwathney v. Stump 1 Hale V. Hale 161 Hall, Buckland v. 183 Hamilton-Brown Shoe Co. v. Saxey 346 Hammond, Port Royal Co. v. 20 Hampson v. Edelen 136 Hands, Clegg v. 101 Hanson, Johnson v. r 173 Harper v. Virginian Ry. Co. 60 Harris, Munden v. 371 Hartman v. Wells 93 Haskins v. Ryan 316 Hatton V. K. C. etc. R. R. 354 Haverhill Shoe Mfrs. Ass'n, Cor- nellier v. 353 Haverty, Murray v. 333 Hawarden v. Y. & L. Coal Co. 357 Hellriegel v. Manning - 138 Hercy v. Birch 38 Herrick, Morrison v. 160 Hetfield v. Willey 300 Hill V. Buckley 145 Hodgdon, Mansfield v. 153 Hoffman, Tabor v. 331 Home Land Co., McNamara v. 43 Hook, Durrett v. 305 Horse Shoe Club v. Stewart 400 Horsley, Woolums v. 153 Howley, Kearns v. 387 Hoyt V. Tuxbury 193 Hughes, Webb v. 196 Isaacs v. Skrainka 203 Jackson v. Byrnes 66 Jarman, Cooper v. 135 Jaynes & Co., Regis'v. 335 Johnson v. Hanson 173 Jordan, Dressel v. 222 Joyner v. Crisp 147 Kane, Emack v. 364 Kansas City, etc. R. R., Ellis v. 354 Kansas City, etc. R. R., Hatton V. 269 Ivavanaugh, Royal League v. 16 Kearns v. Howley 387 Kellar, Watts v. 220 Kelly, Dufify v. 178 Kimmons, Foster v. 37 King V. Smith 331 King V. Stuart .-. 237 Kirchner v. Gruban 79 Kirk, Darst v. 30 Kiser, O'Kane v. 144 Kline Drummond Co., St. Louis Range Co. v. 31 Kosminski, Kuzniak v. 371 Krehl v. Burrell 393 Kuzniak v. Kosminski 271 Ladd V. Osborne 241 Langford v. Pitt 130 Lansdowne v. Lansdowne 335 Lawes v. Bennett 130 Leaycraft, McClure v. 108 Leach V. Fobes 41 Lechmere, Lewis v. 45 Lehigh Stone Co., Gerard v. 173 Lewis V. Lechmere 45 Lincoln, Murphey v. 241 Lippincott V. Barton 334 Logan & Wife v. Bull ^ 333 Lohse Pat. Door Co. v. Fuelle -_ 350 Losee v. Morey 40 Lyons, Pyatt v. 186 McCall, Eaton v. 6 McCamant, Eabcock v. 32 McClelland, Blew v. 139 McClure v. Leaycraft 108 McDole, Gladville v. 167 tabijE of cases. VII McGovern, Comth v. 306 Mclntyre, Whipple v. 357 McNamara v. Home Land Co. 42 Magloughliii, Scott v. 27 Manhattan Life Ins. Co., Crocker V. 244 Manning, Hellreigel v. 138 Mansfield v. Hodgdon 153 Marchant, Roberts v. 123 Marsh v. Buchan 198 Marshall, Brewer v. 113 Meves, Thurber v. 218 Meyer, Ullsperger v. 316 Meyer, Weis v. 89 Midgley, Wood v. 175 Milligan, Nelson y. 378 Missouri Pac. Ry. Co., Boeckler V. 245 Morey, Losee v. 40 Morris v. Morris 229 Morris v. Parry 24 Morrison, Block v. 136 Morrison v. Herrick 160 Moss & Raley v. Wren 33 Munden v. Harris 371 Murphey v. Lincoln 241 Murray v. Haverty 332 Mutual Co., Carpenter v. 48 Myers, National Life Ins. Co. v. 368 National Life Ins. Co. v. Myers 368 Nelson v. Milligan 278 Newton, Bishop v. 187 Newton v. Newton 129 Nibert v. Baghurst 158 Nisbett & Potts Contract, In re 95 Norfolk, Peabody v. 68 Ohio Oil Co. V. Daughetee 225 Ohio Oil Co., State v. 298 O'Kane v. Kiser 144 O'Neill V. Webb 55 Osborne, Ladd v. 341 Overbaugh, Young v. 170 Owens V. Crossett 253 Paddock v. Davenport 38 Pansette, Savings Bank Co. v. _ 150 Park & Sons Co., Dr. Miles Medical Co. v. 115 Parker & Edgarton v. Foote 285 Parkhurst, Warren v. 272 Parry, Morris v. 24 Partridge, Gould v. 104 Paschall, Everett v. 300 Peabody v. Norfolk 68 Pearce v. Bastable 84 Peckham, Chubb v. 313 Pennis, Stuart v. 50 Pennsylvania, etc. R. R., Toledo, etc. R. R. V. 24 Peters, Wheaton v. 323 Pierce, World's Dispensary Med. Ass'n V. 339 Pitt, Langford v. 120 Pomeroy v. Fullerton 188 Portland, etc. R. R., Sullivan v. 26 Port Royal Co. v. Hammond 20 Potter V. Ellice 124 Potter V. Whitten 3 Powell V. Santa Fe R. R. 58 Powers V. Flansburg 391 Pyatt V. Lyons 186 Rankin v. Charless 355 Rector of St.- David's v. Wood 53 Reed, Dockstader v. 81 Regis v. Jaynes & Co. 335 Reno, C, B. & Q. R. R. v. 33 Rhoten v. Baker 33 Roberts v. Marchant 133 Roberts v. Scull 105 Robinson v. Appleton 91 Routh V. Webster 343 Royal League v. Kavanaugh 16 Rutherford v. Stewart 47 Ryan, Haskins v. 316 St. Louis Range Co. v. Kline Drummond Co. 31 Santa Fe R. R., Powell v. 58 Savings Bank Co. v. Parisette __ 150 Sawver v. Davis 364 Saxby, Cobb v. 394 iSaxey, Hamilton-Brown Shoe Co. V. 346 Scott V. Magloughlin 27 Scull, Roberts v. 105 Shubert v. Woodward 56 Skrainka, Isaacs v. 203 Slingerland v. Slingerland 165 Smith, Brown v. 199 Smith, Daly v. 72 Smith, King v. 231 Smith, Wells v. 190 Snetzer, Snook v. '_ 19 Snook V. Snetzer 19 Soltau V. DeHeld 275 Sprake v. Day 137 Stafford, Gartrell v. 39 Starr v. Woodbury Glass Works 342 State V. Ohio Oil Co. 298 Stein, Gottschalk v. 46 Stewart, Horse Shoe Club v. — 400 Stewart, Rutherford v. 47 Stewart, Turner v. 247 Strohmaier v. Zeppenfeld 163 Stuart, King v. 337 Stuart V. Pennis 50 Stump, Gwathney v. 1 Sturges V. Bridgman 361 Sullivan v. Portland etc. R. R. „ 36 VIII TABLE OF CASES. Tabor v. Hofifman 331 Taylor v. Adams 22S Tennessee Copper Co., Georgia V. 309 Thompson v. Winter 184 Thurber v. Meves 318 Toledo etc. R. R. v. Pa. etc. R. R. 24 Town of Union, Fessler v. 296 Tracy, Corbin v. 43 Trotter, Cloyd v. 9 Tumlinson v. York 152 Turner v. Stewart 247 Tuttle V. Buck 360 Tuxbury, Hoyt v. 192 Ullsperger v. Meyer 216 Union Bag & Paper Co., v. Whalen v. 280 Union Ry. Co., Whitney v. 117 Virginia R'y Co., Harper v. 60 Walcott V. Walker 330 Walker, Giles v. 259 Walker, Walcott v. 330 Walsh, Engle v. 385 Wannamaker v. Brown 149 Warfield, Ex parte 381 Warfield-Howell Co. v. William- son 4 Warlier v. Williams 251 Warren v. Parkhurst 272 Washburn Iron Co., Wesson v. 313 Watts V. Kellar 220 Webb V. Hughes 196 Webb, O'Neill v. 55 Webster v. French 193 Webster, Routh v. 343 Weis V. Meyer 89 Welles, Crabtree v. 157 Wells, Hartman v. 93 Wells V. Smith 160 Wesson v. Washburn Iron Co. 313 West, Edwards v. 142 West, Western Wagon Co. v. __ 61 Western Wagon Co. v. West — 61 Whatman v. Gibson 91 Whalen v. Union Bag & Paper Co. 280 Wheaton v. Peters 322 Whipple V. Mclntyre 357 Whiteside, Guard v. 65 Whitney v. Union Ry. Co. 117 Whitten, Potter v. 3 Willey, Hetfield v. 200 Williams, Warlier v. 351 Williamson, Warfield Howell Co. V. 4 Winter, Thompson v. 184 Wood, Rector of St. David's v. 53 Wood V. Midgley 175 Woodbury Glass Works, Starr v. 342 Woodward, Shubert v. 56 Woolums V. Horsley. 153 World's Dispensary Med. Ass'n V. Pierce ^ 339 Worster, Great Falls Mfg. Co. v. 12 Wren, Moss & Raley v. 38 Y. & L. Coal Co., Hawarden v. 357 York, Tomlinson v. 153 Young V. Overbaugh 170 Zeppenfeld, Strohmaier v. 63 CASES ON EQUITY PART 1. CHAPTER I. INTRODUCTION GWATHNEY v. STUMP. (Supreme Court of Tennessee, 1814, 2 Tenn. (3 Overton) 308.) OvBRTON, J. . . . The great and important principles of the court of chancery, so necessary to the preservation of law in a free country, were unknown in the time of Coke. The exercise of its neces- sary powers met with his decided and strenuous opposition. And it will always be kept in mind that the jurisdiction of chancery was then in its infancy. Its superiority to courts of law, in adapting its modes of redress in civil cases, to the varied actions of men was then unknown ; nor in fact had any efforts been made to ascertain the limits of its jurisdiction, narrow as it was. We have not a vestige of a decision in chancery previous to the time of Charles II. It was the court of common law that anciently did all the business- and it was in advancement of the jurisdiction and improvement of those courts, that we find the sturdy and capacious mind of Coke employed. Most of his reported cases, and references to other re- ports respected cases decided at law. In his time, and particularly with his disposition, if a man could not obtain remedy at law, he must generally go without it. Though there was not wanting a disposition to make the modes of redress at common law, adequate to the exigencies of society; yet so confined were those courts in their method of proceeding, as to be incapable of administering substantial justice in many cases; this generated a disposition in the nation to enlarge the chancery powers, to administer justice where the modes of redress at law were incompetent to afford it. As commerce extended, and civilization progressed, the necessity and convenience of the exercise of chancery powers increased; until 1 The statement of facts has usually been omitted. Where parts of the opinion have jjeen omitted, such omission has been indicated thus: . (1) 2 INTRODUCTION. (Part 1 we see at this day, a court of equity, exercising undisputed juris- diction, not only as an auxiliary in the cause of justice, agreeably to its original character; but exercising concurrent jurisdiction with courts of law, in relation to many of its important branches, when the modes of legal redress have been found to be embarrassed, doubt- ful, or inadequate. . . . The principles which govern the rights of men are exactly the same in courts of law, and courts of equity. The history of our jurisprudence shows that the latter has ever acted as pilots for courts of law, in the improvement of legal science. Sir John Mitford ob- serves, that "the distinction between strict law and equity is never in any country a permanent distinction. It varies according to the state of property, the improvement of arts, the experience of judges, the refinement of a people" — and again, that "law and equity are in continual progression, and the former is constantly gaining ground upon the latter. A great part of what is now strict law, was formerly considered as equity; and the equitable decisions of this age will un- avoidably be ranked under the strict law of the next." Mitf. 428, 431. In this short outline, we see the boundaries between law and equity, described by the pen of a master in his profession. The precedents result in this, that wherever a party can obtain adequate relief in a court of law, according to its modes of proceeding, he shall not have relief in equity. But where the remedy is difficult, embarrassed, or inadequate, equity will entertain jurisdiction. 3 Johns, 590, 2 Cains 251, Hughes Rep. 79, 10 Johns. 587. But it is of great importance, that the jurisdiction of courts of law and equity, should be kept as distinct as possible. Thus, Sir John Mitford, afterwards, when chancellor of Ireland, observes, in the case of Shannon and Bradstreet, when speaking of the constitution of courts of justice, "It is a most important part of that constitution, that the jurisdiction of the courts of law and equity, should be kept perfectly distinct ; nothing contributes more to the due administration of justice. And though they act in a great degree by the same rules, yet they act in a different manner, and their modes of affording relief are different. And anybody who sees what passes in the courts of justice in Scotland' will not lament that this distinction prevails. But Lord Mansfield seems to have considered that it manifested liberality of sentiment, to endeavor to give the courts of law the powers which are vested in courts of equity; that it was the duty of a good judge Ch. 1) IKTBODTJCTION. 3 ampliare jurisdictionem. This, I think, is rather a narrow view of the subject. It is "looking at particular cases, rather than at the gen- eral principles of administering justice, observing small inconveniences, and overlooking great ones." 1 Sen. and Lefroy 66. POTTER V. WRITTEN. (Missouri Court of Appeals, 1911, 161 Mo. App. 118, 143 S. W. 453.) NixoN, P. J. . . . In the case at bar, in the original action the defendant was personally served with process and personally appeared and filed an answer, thus conferring on the" court jurisdiction over his person. There is no contention that the circuit court of Jasper county did not have jurisdiction over the class of actions to which this action belongs, and we hold that said circuit court did have jurisdiction of the subject matter of action, whether the action be considered as an action at law, on the promissory note as contended by appellant, or as a suit in equity for the foreclosure of the lien of a pledge as contended by respondent. Under our code of procedure we have but one form of action for the enforcement or protection of private rights which is called a civil action. We submit all causes to the judgment of one court; and, in order to enable it to fulfill its functions, the law has clothed the judge thereof not only with the attributes of a law judge, but also with those of a chancellor (State ex rel. v. Evans, 176 Mo. 1. c. 317, 75 S. W. 914). Both legal and equitable causes of action may be joined in the same petition if connected with the same transaction. (Blair v. Railroad, 89 Mo. 383, 1 S. W. 350; Woodsworth v. Tanner, 94 Mo. 124, 7 S. W. 104.) The fact that a statutory remedy has been provided does not exclude the original equitable remedy; so that under the decisions of this state ample play is given to the powers of a court of equity, and when it has once acquired jurisdiction for one purpose the general principle is enforced that it will retain juris- diction for all purposes and do complete justice and not put the parties to the trouble of an action at law. . . . The wisdom of the law should no longer require a litigant to be driven from one court to another, nor be compelled to have two causes of action and two trials instead of one when the whole matter can be disposed of in one action. . . . 4 INTRODUCTION. (Part 1 WARFIELD HOWELL CO. v. WILLIAMSON. (Supreme Court of Illinois, 1908, 233 111. 487, 84 N. E. 706.) ViCKBRS, J. . . . Plaintiffs in error seek to maintain the proposi- tion that since the relation of the parties, as well as the relief sought, is purely legal, equity has no jurisdiction. Defendant in error seeks to uphold the jurisdiction of equity, on the ground that the case falls within the exclusive jurisdiction of a court of equity. Neither of these contentions is sound. In our opinion the case belongs to that class where both the primary rights and the relief sought are purely legal and therefore cognizable in a court of law, but of which a court of equity will take jurisdiction on the ground that, owing to the methods of procedure and the means available to carry its decrees into execution, its remedies are more adequa:te, complete and prompt than those afforded by a court of law. ^Defendant in error in the case at bar is the holder of six policies of insurance on which it claims a liability against plaintiffs in error on account of the loss of its goods by fire/^' There is nothing in the character of the rights or in the ul- timate relief sought that distinguishes this case from any other claim under an insurance policy for loss. It would be a very unusual state of facts if one holding a fire insurance policy could not maintain an action at law thereon to recover for a loss. We see no reason for holding that the policies involved in this suit might not be sued on in a court of law. It does not follow, however, that because the case is one in which a remedy at law is afforded, equity will not also take jurisdiction of the same state of facts to afford the same redress. If the remedy in equity is more adequate because of some special cir- cumstance of the situation, the jurisdiction of equity will be sustained. In the case at bar the ultimate relief sought is the satisfaction of a legal demand, but this demand is to be paid out of a particular fund created or to be created by contributions made by a large number of persons, which is either in the hands of the manager or is to be col- lected by him from the subscribers. It may become necessary, before the decree is satisfied, to require the manager to perform some or all of the personal duties which he has assumed in respect to the col- lection and disbursement of the funds of the indemnity company. If so, the procedure in courts of equity is peculiarly well adapted to enforce the performance of any personal act required of plaintiffs Ch. 1) INTRODUCTION. 5 in error in order to obtain satisfaction of the decree. One of the oldest maxims of egjiity is that it acts m pe rsona m — not in rem. A decree in chancery speaks in words of command to the defendant, but to carry it into effect some personal act of the defendant is re- quired. For instance, equity determines that one party is the owner of the equitable title to land and decrees that a conveyance shall be made by the holder of the legal title thereof. Such a decree does not, ex propria vigore, vest the title. The personal act of the defendant, or some one for him, in making the conveyance is necessary to carry the decree into effect. (1 Pom. sec. 428, et scq.) A court of equity has all the powers of a law court to enforce its decrees by an execution against the property of the defendant. In addition to the usual proc- ess of execution against the goods, chattels, lands and tenements of the defendant, a court of equity may, if necessary, attach the de- fendant and enforce a compliance with its decree by fine or imprison- ment, — one of both, — or may direct a sequestration for disobedience to its decree. (Kurd's Stat. 1905, chap. 22, sec. 47.) By the flexi- bility of its procedure and the score of reinedies it is authorized to employ to secure satisfaction of its decrees, courts of equity are pe- culiarly well equipped to furnish complete and adequate relief in cases of this character. There is a legal obligation at the foundation of the suit, but difficulties may arise out of the manner in which the obligation rests upon the persons or property of plaintiffs in error or in the efficiency of the process belonging to the law court which makes the legal remedy inadequate. (Wylie v. Coxe, 15 How. 416; Barber V. Barber, 21 Id. 582.) In Weymouth v. Boyer, 1 Ves. Jr. 416, Mr. Justice BuUer says: '"We have the authority of Lord Hardwicke that if a case was doubtful or the remedy at law difficult we would not pronounce against the equity jurisdiction. This same principle has been laid down by Lord Bathurst." (See Society of Shakers v. Watson, 68 Fed. Rep 630.) We have no doubt of the jurisdiction of a court of equity under the facts disclosed here. ;■ . . . CAMPBELL V. OILMAN. (Supreme Court of Illinois, 1861, 26 111. 210.) This was an action of assumpsit, brought by the indorser of a promissory note against the makers. 6 iNTEODucTiON. (Part 1 Declaration in the usual form, with special and common counts. Plea : That since the commencement of the suit, in a certain cause in said court, in which William Engles, Michael Engles, John Engles, and Joseph Engles by William Engles, his next friend, were com- plainants, and Peter Engles, Catherine Goetell, Peter Goetell, said defendants, Orris H. Bullen and George C. Campbell, and also Joseph O. Glover, were defendants, the said Campbell and Bullen were en- joined from paying said note until the further order of said court, and that said order was in full force and effect. Demurrer to plea, general and special. . . . Brebse^ J. . . . The demurrer was properly sustained to the plea in this case. No case can be found in the books, where a temporary injunction, like that set out in the plea, was ever held to be a bar to the recovery of a judgment in an action upon a note. It acts only upon the defendant's name in the writ, and would operate to prevent pay- ment, but not on the action of the court to render a judgment. By proceeding, the plaintiff might, possibly, subject himself to a contempt, but the court might proceed with the cause. If such an injunction could be pleaded in bar, it would amount to a complete satisfaction of the debt, as much so as actual payment. The appellants were called upon to produce authority for such a plea, but none is shown. . . . EATON V. McCALL. (Supreme Court of Maine, 1894, 86 Maine, 346, 29 Atl. 1103.) WiSwELL, J. Bill in equity between parties resident in this State to foreclose a mortgage upon real estate situated in Nova Scotia. The defendant failing to appear, the bill was taken pro confesso. Afterwards on motion for a decree, the justice presiding at nisi prius, being doubtful as to the jurisdiction of this court, with the consent of counsel for the complainant reported the case to the law court to determine whether the bill should be sustained, and what decree if any, should be made. It is a famiHar maxim of equity jurisprudence, that equity acts against the person. Where the subject-matter is situated within another State or country, but the parties are within the jurisdiction of the court, any suit may be maintained and remedy granted which Ch. 1) INTRODUCTION. 7 directly affects and operates upon the person of the defendant and not upon the subject-matter, although the subject-matter is referred to in the decree, and the defendant is ordered to do or refrain from cer- tain acts toward it, and it is thus ultimately but indirectly, affected by the relief granted. Pomeroy's Equity Jurisprudence, § 1318. Common instances of such an exercise of equity powers, are where courts, having jurisdiction of the person, decree the specific perform- ance of contracts to convey lands, enforce and regulate trusts, or relief from fraud, actual or constructive, although the subject matter of the contract, trust or fraud, either real or personal property be situated in another State or country. A leading case upon this sub- ject and one often cited in modern cases, is that of Penn v. Lord Baltimore, 1 Ves. 444, decided in 1750 by Lord Chancellor Hard- wicke. The fact of the situs of the land being without the commonwealth does not exempt defendant from jurisdiction, the subject of the suit, being the contract, and a court of equity dealing with persons, and compelling them to execute its decrees and transfer property within their control, whatever may be the situs. Pingree v. Coffin, 12 Gray, 288. The principle is thus stated by the Federal Supreme Court : "Where the necessary parties are before a court of equity, it is immaterial that the res of the controversy, whether it be real or personal property, is beyond the territorial jurisdiction of the tribunal .^jJt has the power to compel the defendant to do all things necessary, according to the lex loci rei sitae, which he could do voluntarily to give full effect to the decree against him. Without regard to the situation of the subject- matter, such courts do consider the equities between the parties and decree in personam according to those equities, and enforce obedience to their decrees by a process in pcrsonaM." Phelps v. McDonald, 99 U. S. 298. Our court in Reed v. Reed, 75 Maine, 264, sustained a bill and made the necessary decrees to redeem from a mortgage lands situated in the state of Wisconsin. And the court has in many cases proceeded and granted relief upon the maxim, equitas agit in personam. The English chancery courts, regarding the right to redeem as a mere personal right, and the decree for a foreclosure, a decree in personam, have often decreed the foreclosure of mortgages upon lands beyond the jurisdiction of the court. Toller v. Carteret, 2 Vern. 495 ; Paget v. Ede, L. R. 18 Eq. 118. S iNTEODucTiON. (Part 1 In this country the question has frequently arisen as to the power of an equity court to decree the foreclosure of a mortgage upon property situated both within and without the jurisdiction of the court. The doctrine is sustained by the highest authorities that a court having jurisdiction of the person of the mortgagor, or of the owner of the right to redeem, may decree such a foreclosure. In Muller v. Dows, 4 Otto, 444, it was held that a U. S. Circuit Court for the District of Iowa, which had jurisdiction of the mortgagor and the trustees of the mortgage, could make a decree foreclosing a mortgage upon a railroad and its franchises and order a sale of the entire property although a portion of the property was in the State of Missouri. Mr. Justice Strong in delivering the opinion of the court said, "Without reference to the English Chancery decisions, where this objection to the decree would be quite untenable, we think the power of courts of chancery in this country is sufficient to authorize such a decree as was here made. It is here undoubtedly a recognized doctrine that a court of equity sitting in a State and having juris- diction of the person may decree a conveyance by him of land in another State, and it may enforce the decree by a process against the defendant. In Union Trust Co. v. Olmstead, 102 N. Y. 729, the plaintiff sought by foreclosure and sale to enforce a mortgage executed by the de- fendant corporation upon property, a part of which was situated in another State. The court held that although the decree of foreclosure might not be operative beyond the territorial limits of the jurisdiction, that the court might have required the mortgagor, being within the jurisdiction, to execute a conveyance of the property situated in the other State. To the same effect are numerous other decisions by courts of the highest authority in this country, both Federal and State. After an examination of these authorities we have no doubt that this court has the power to make a decree compelling a mortgagor, over whom it has jurisdiction, to make a conveyance of the mortgaged premises, after failure to pay the amount ascertained to be due, within the time fixed by a decree of the court, which time should not be less than the statutory period allowed for redemption in the place where the land is situated. Ch. 1) introductiojSt. 9 But as to when and under what circumstances this power should be exercised by the court, is, we think, another and quite different question. It must be remembered that no decree of the court would be operative except one against the mortgagor, or person having the right to redeem, commanding a conveyance. The court could not proceed in the usual and customary method by decreeing either a strict foreclosure or a foreclosure by a judicial sale. Neither the decree it- self nor any conveyance under it, except by the person in whom the title is vested, can operate beyond the jurisdiction of the court. Wat- kins V. Holman, 16 Pet. 25. ( A court cannot send its process into an- other State nor can it deliver possession of land in another jurisdiction. Muller V. Dows, supra. It can only accomplish foreclosure of such a mortgage by its decree in personam, compelling a conveyance. We do not think that a chancery court should exercise this power except under unusual or extraordinary circumstances. Wherever it is necessary in order to prevent loss or to protect the rights of a mortgagee it may be done, for instance in the case of a mortgage upon property situated both within and without the State, where un- less a sale of the entire property could be made at one time, great loss might ensue, or in other cases where an equally good reason existed. But ordinarily we think that the holder of a mortgage should be re- quired to resort to the remedies or the courts of the jurisdiction in which the land is situated. This is in accordance with the principle, than which none is better established that the disposition of real estate, whether by deed, descent, or by any other mode, must be governed by the law of the state where the same is situated. Watkins v. Hol- man, supra. ! In this case there are no reasons, either alleged or apparent why the ('holder of the mortgage cannot foreclose the same according to the / law of the place where the land is situated, without loss or great in- convenience. We think therefore that the entry should be. Bill dismissed without prejudice. \ CIvOYD V. TROTTER. (Supreme Court of Illinois, 1887, 118 111. 391.) Scott, C. J. The bill in this case was brought in the circuit court of Wayne county, by William Trotter, against James C. Cloyd, and 10 INTRODUCTION. (Paxt 1 was to remove a cloud from the title to property which complainant claimed to own. A decree was rendered in accordance with the prayer of the bill, and as the title to the property is involved, defendant brings the case directly to this court on error, as he is authorized by law to do. No question is raised on the bill, and the assignment of errors does not make any discussion of the merits of the case necessary. De- fendant is a non-resident of the State of Illinois, and the service upon him was by a service of a copy of the bill upon him, at his residence in the city of New York. It is objected, the service was insufficient, and as there was no appearance by defendant, or by any solicitor for him, the court had no jurisdiction to render the decree it did. Section 14 of the Chancery Act (Rev. Stat. 1874, p. 200) provides : "The com- plainant may cause a copy of the bill, together with a notice of the commencement of the suit, to be delivered to any defendant residing or being without this State, not less than thirty days previous to the commencement of the term at which such defendant is required to appear, which service, when proved to the satisfaction of the court, shall be as effectual as if such service had been made in the usual form within the limits of this State." The point is made against the sufficiency of the service in this case, that the notice of the commencement of the suit was not signed, either j by complainant, or any solicitor for him. The Statute does not, in terms, require the notice to be served shall be signed either by com- plainant or his solicitor, but the better practice, no doubt, is, that it should be signed. In this case the notice was attached to the bill, and may be treated as a part of it, and as the bill was signed by the solicitor of complainant, that is thought to be sufficient, and especially when considered in connection with the affidavit of the party making the service, wherein it is alleged he "served a copy of the within bill and notice of the commencement of the suit, upon" defendant. In this respect the notice is sufficient. It is further objected, no summons was issued for defendant, and no effort made to obtain personal service upon him. Here, again, the statute is silent. It is not provided summons shall be issued and returned not found, before a defendant residing or being without the limits of this State may be served with a copy of the bill filed against him, and of a notice of the commencement of the suit. But if the statute did require the issuing and return of a summons, it is thought this record does show a summons was issued, and returned not found. Ch. 1) INTEODXJCTION. ll as to defendant, before the copy of the bill was served upon him. The question of jurisdiction is always a preliminary one, and the court, in this case, found, by its decree, it appeared "to the court a summons had been issued against defendant and returned not found." There is nothing in the record itself that contradicts this finding of the court, and it must therefore be regarded as having been correctly found. No summons is found in the record for defendant. The clerk recited that the only summons found among the papers of the case, is one for J. B. Cornell, at the suit of William Trotter. Cornell is not a party to this suit in any way. There is nothing whatever to show the summons transcribed into the record was issued in this case, or that it was before the court when it found, as it did, th3.t "a summons had been issued against defendant, and returned not found." It may be that a sum- mons for defendant was issued, and lost from the files. How that may be, of course does not appear, but it is certain there is nothing to show the court found incorrectly on this jurisdictional question. The third error of the series, viz., the court erred in entering a personal judgment against defendant for costs, and in awarding ex- ecution against him for the collection of the same, seems to be well assigned. There was no appearance in the court below, either by defendant, or any solicitor for him, and it is not perceived how that court obtained jurisdiction of his person so as to render a personal decree against him, for costs or otherwise, and to award execution against him, as for the collection of a personal money decree. So far as the property situated within the jurisdiction of the court is involved, the court had jurisdiction to decree concerning it, and defendant, and all parties claiming through or under him, would be bound. But that fact gave no jurisdiction to the court to render a personal money de- cree against him, as the court might do if defendant had been within its jurisdiction. It affirmatively appears in this case, defendant re- sided in another State. Treating the service by copy of the bill, and notice of the commencement of the suit, as effectual "as if such serv- ice had been made in the usual form within the limits of this State," as the Statute provides shall be done, still such service does not confer jurisdiction on the court, of the person of defendant, so as to enable it to render a personal money decree against him, to be collected by execution.r No one will insist the court could send its process out of the State, and by proof of service within a foreign State acquire juris- ^^ INTRODUCTION. (Part 1 diction over the person of defendant, so as to render a personal money decree against hinT> It is so obvious it need not be stated, that persons residing or being without the limits of this State can not be subjected to the jurisdiction of the local courts by the service of process or other service upon them at the place of their domicile. The decree of the circuit court, so far as it adjudged costs against defendant, and awarded execution for the collection of the same, will be reversed in this court, but in all other respects it will be affirmed ; and as he ought, on account of the wrongful conduct alleged against him in the bill, to pay such costs, plaintiff in error will be required to pay all costs in this case in this court. Decree reversed in part and in part affirmed. GREAT FALLS MANUFACTURING COMPANY v. WORSTER. (Supreme Court of New Hampshire, 1851, 33 N. H. 463.) In Equity. The following case was stated in the bill : The orators are a corporation established at Great Falls, on Salmon river, in Somersworth, and own five cotton mills there, with suitable machinery, and to enable them to use the mills, they need the water of Salmon river. For this purpose, they have kept up a dam for some years past, across the river, at the outlet of the Three Ponds, so called, partly in Milton, in this county, and partly in Lebanon in the State of Maine, and have thereby accumulated the water in rainy seasons, and have used it in seasons of drought. The respondent, who is a citizen of New Hampshire, claims an interest in certain tracts of land, some of which are in Milton, and some are in Lebanon, and which are flowed by the water of the pond created by the dam, his rights to which lands are denied by the orators. The respondent has recently destroyed a part of the dam, and threatens to remove the whole of it, so that it shall be no higher than, as he alleges, it ought to be, and so that it shall not cause the water to flow the lands in which he professes to have an interest. The bill prays, that he may be enjoined from destroying any part of the abutment, dam, or superstructure, and from inter- meddling with it in any way. The bill contained other allegations, which are at present immaterial, the only question now raised, being, whether the court had jurisdiction Ch. 1) INTRODUCTION. 13 to restrain a citizen of this State, from going into another State, and committing acts injurious to the property of the orators situated here. . . . Gilchrist, C. J. The appHcation now before us is made by vir- tue of the provision contained in No. 7, ch. 171, Rev. Stat., which authorizes the court to "grant writs of injunction whenever the same shall be necessary to prevent injustice." Questions analogous to that now presented have often been investigated, both in England and in this country, and the principles recognized by the decisions, go far enough to authorize the court to grant the relief now prayed for. The court are not asked to assume any jurisdiction, or exercise any con- trol over the land in Maine, or to interfere with the laws of that State. Nothing more is asked than that the respondent, a citizen of New Hampshire, and residing within her limits, shall be subject to her laws, and that, being within reach of the process of this court, he shall be forbidden to go elsewhere and commit an injury to the prop- erty of other citizens, situated here, and entitled to the protection of our laws. In the case of Penn v. Lord Baltimore, 1 Ves., 444, Lord Hardwicke recognized and acted upon the principle that equity, as it acts primarily in personam, and not merely in rem, may make a decree, where the person against whom relief is sought, is within the jurisdiction upon the ground of a contract, or any equity subsisting between the parties respecting property situated out of the jurisdiction. A decree was made, for the specific performance of a contract relating to the boun- dary between the colonies of Pennsylvania, and Maryland. In the course of his judgment. Lord Hardwicke says: "this court, therefore, has no original jurisdiction on the direct question of the original right of the boundaries, and their bill does not stand in need of that. It is founded on articles executed in England, under seal, for mutual considerations, which gives jurisdiction to the king's courts, both in law and in equity, whatever be the subject-matter." He subsequently says: "the conscience of the party was bound by this agreement, and being within the jurisdiction of this court, which acts in personam, the court may properly decree it as an agreement." This case decided, that although the subject-matter of a contract be land out of the jurisdiction, the boundary of the land may be settled by a degree for a specific performance of the contract. In this way a party within the jurisdiction may be compelled to do an act of justice, 1^ INTRODUCTION. (Part 1 in relation to land out of the jurisdiction. The case is a leading one, and its principle has been extensively followed. This doctrine, how- ever, was not first suggested by Lord Hardwicke. Before his time, it was well established in the court of chancery, although it had not received so elaborate an exposition in any preceding case, as in the decision referred to. In the case of Arglasse v. Muschamp, 1 Vernon, 75, the bill prayed for relief against an annuity charged upon the orator's lands in Ireland, on the ground of fraud. The respondent pleaded to the jurisdiction of the court, that, the lands lying in Ire- land, the matter was properly examinable there, and that the court ought not to interpose. The Lord Chancellor said: "this is surely a jest put upon the jurisdiction of this court, by the common lawyers ; for when you go about to bind the lands, and grant a sequestration, to execute a decree, then they readily tell you, that the authority of this court is only to regulate a man's conscience, and ought not to affect the estate, but that this court must agere in personam^ only; and when, as in this case you prosecute the person for a fraud, they tell you, you must not intermeddle here, because the fraud, though committed here, concerns lands that lie in Ireland, which makes the jurisdiction local ; and so would wholly elude the jurisdiction of this court." The plea was overruled. In the case of Toller v. Carteret, 2 Vernon, 494, the bill was to foreclose a mortgage upon the' island of Sarke, and the respondent pleaded to the jurisdiction of the court, that the island of Sarke was part of the Duchy of Normandy, and had laws of its own, and was under the jurisdiction of the courts of Guernsey, and not with- in the jurisdiction of the court of chancery. But it was held, "that the court of chancery had also a jurisdiction, the defendant being served with the process here, et aequitas agit in personam, which, is another answer to the objection." In Lord Cranstown v. Johnson, 3 Ves., 170, the master of the rolls, after commenting on some of the cases, says : "these cases clearly show, that with regard to any contract made, or equity between persons in this country, respecting lands in a foreign country particularly in the British dominions, this court will hold the same jurisdiction, as if they were situated in England." In Portariington v. Soulby, 3M & R. 104, the bill was to restrain the respondents from suing in Ireland, upon a bill of exchange given for a gambling debt. Upon a motion to dissolve the injunction Lord Brougham said: "In truth nothing can be more unfounded, than the doubts of the jurisdiction. That is grounded, like all Ch. 1) INTRODUCTION. 15 other jurisdiction of the court, not upon any pretension to the ex- ercise of judicial and administrative rights abroad, but on the circumstance of the person of the party on whom this order is made, being within the power of the court. If the court can command him to bring home goods from abroad, or to assign chattel interests, or to convey real property locally situate abroad ; if for instance as in Penn V. Lord Baltimore, it can decree the performance of an agreement touching the boundary of a province in North America; or as in the case of Toller v. Carteret, can foreclose a mortgage, in the isle of Sarke, one of the channel islands, in precisely the like manner can it restrain the party, being within the limits of its jurisdiction, from doing anything abroad, whether the thing forbidden be a conveyance, or other act iii_^ais, of the instituting or prosecution of an action in a foreign court." The principle that a court in chancery will exercise such a power as the orators ask should now be enforced, whenever the case is one of equitable cognizance, and the parties are within the jurisdiction, al- though the property may be beyond it, is as fully recognized by the courts in this country, as in England. In Massie v. Watts, 6 Cranch, 148, the question was whether the defendant, being within the juris- diction of the circuit court in Kentucky, could be decreed to convey lands in Ohio, and the defence was that the land lay beyond the juris- diction of the court. Marshall, C. J., said, "where the defendant i.'^ liable, either in consequence of contract, or as trustee, or as the holder of a legal title acquired by any species of mala fides practiced upon the plaintiff, the principles of equity give a court jurisdiction, wherever the person may be found, and the circumstance that a ques- tion of title may be involved in the inquiry, and may even constitute the essential point on which the case depends, does not seem sufficient to arrest that jurisdiction. . . . In the case of Sutphen v. Fowler, 9 Paige, the bill was filed for the specific performance of a contract for the sale of lands in Michi- gan, against the infant child of the contracting party, who at the time of his death was entitled to a conveyance of the legal title to the prem- ises, which was subsequently made to the defendant. It was held, that the court had jurisdiction to decree the specific performance of a contract for the sale of lands in another State, where the person of the defendant was within reach of its process, and might direct a conveyance by the infant when she should arrive at the proper age 16 INTRODUCTION. (Part 1 to enable her to transfer the legal title according to the laws of Michi- gan and might authorize the orator to take and to retain possession of the premises until that time, if he could obtain possession of them without suit. It was also held, and that is very pertinent to the present inquiry, that in the meantime, the court might grant a perpetual in- junction, restraining the defendant from disturbing the complainant in such possession, or from doing any act whereby the title should be transferred to any other person, or in any way impaired or incumbered. This decision is in point not only as regards the principle, but also in relation to its application to a state of facts similar to those in the case now before us. Nothing more is asked by the orators here, than that the defendant should be restrained from injuring or inter- fering with the property of the orators situated in Maine, and the above case of Sutphen v. Fowler is an express adjudication that he may be so enjoined. The principle is also recognized and stated, by the most eminent elementary writers. Jeremy's Eq. Jur., 557; Story's Eq. Jur., 743, 744, 899, 900. It would be a great defect in the administration of the law, if the mere fact, that the property was out of the State could deprive the court of the power to act. As much injustice may be perpetrated in a given case, agairist the citizens of this State, by going out of the jurisdiction and committing a wrong, as by staying here and doing it. The injustice does not lose its quality by being committed elsewhere than in New Hampshire, and as the legislature has conferred upon the court the power to issue injunctions whenever it is necessary to prevent injustice, it is the duty of the court to exercise that power upon the presentation of a proper case, and when it can be done consistently with the acknowledged practice in courts of equity. As the principle which is sought to be applied here, has been recognized for nearly two hundred years, we have no hesitation in holding, that the court has jurisdiction to issue the injunction prayed for. ROYAL LEAGUE v. KAVANAGH. (Supreme Court of Illinois, 1908, 233 111. 175, 84 N. E. 178.) Dunn, J. The appellant filed its bill in the circuit court of Cook county for an injunction to restrain the appellee from bringing an action in the State of Missouri against the appellant upon a benefit Ch. 1) INTRODUCTION. 17 certificate issued by it to Thomas W. Kavaiiagh, in which the appellee was named as beneficiary. The circuit court sustained a demurrer to the bill, which was thereupon dismissed for want of equity, and that decree having been affirmed by the Appellate Court, this further appeal is prosecuted by the appellant. . . . The bill further alleged that the appellee, in order to evade the law of Illinois by which her rights should be determined and in order to a!vail herself of the law of Missouri, now threatens to bring legal proceedings in Missouri on the benefit certificate to compel the ap- pellant to pay the sum of $4,000 whereas in truth and in fact it is liable for no more than $322.84, which action and conduct on the part of the appellee, unless restrained, will be a fraud upon the appellant and will result in depriving it of its rights under the laws of this State. . . . There is no question as to the right to restrain a person over whom the court has jurisdiction from bringing a suit in a foreign State. (Harris v. Pullman, 84 111. 20). The courts do not, in such cases, pretend to direct or control the foreign court, but the decree acts solely upon the party. The jurisdiction rests upon the authority vested in courts of equity over persons, within the limits of their jurisdiction and amenable to process, to stay acts contrary to equity and good conscience. The State has power to compel its own citizens to re- spect its laws even beyond its own territorial limits, and the power of the courts is undoubted to restrain one citizen from prosecuting in the courts of a foreign State an action against another which will result in a fraud or gross wrong or oppression. (Snook v. Snetzer, 25 Ohio St. 516; Keyser v. Rice, 47 Md. 203; Teager v. Landsley, 69 Iowa, 725; Wilson V. Joseph, 107 Ind. 490; Dehon v. Foster, 4 Allen, 545). But the court will not restrain the prosecution of a suit in a foreign jurisdiction unless a clear equity is presented requiring the inter- position of the court to prevent a manifest wrong and injustice. It is not enough that there may be reason to anticipate a difference of ppinion between the two courts, and that the courts of the foreign State would arrive at a judgment different from the decisions of the courts in the State of the residence of the parties. (Carson v. Durham 149 Mass. 52). It is not inequitable for a party to prosecute a legal de- mand against another in any forum that will take legal jurisdiction of the case, merely because that forum will afford him a better remedy 1 Eq.— 2 18 INTRODUCTION. (Part 1 than that of his domicile. To justify equitable interposition it must be made to appear that an equitable right will otherwise be denied the party seeking relief. Thorndike v. Thorndike, 142 111. 450. A person has the right to select such tribunal having jurisdiction as he chooses for the prosecution of his rights, and the court which first obtains jurisdiction will retain it. Such jurisdiction cannot be defeated because the defendant may prefer another tribunal in which he supposes the decision will be more favorable to him. In this case it is not averred that the Suprenie Court of Missouri has laid down any rule of law different from that of this court. The averment is, that in two cases mentioned the Court of Appeals of Missouri has settled the rule of law in that State in accordance with the statement thereof in the bill. It is not averred that the Court of Appeals of Missouri is the court of final appellate jurisdiction in the State, or that the court of final appellate jurisdiction has made any decision of any question involved in this case. While the law of another State is matter of fact of which we cannot take judicial notice, yet the allega- tions of the bill in that regard are entirely consistent with the hypothesis that the Court of Appeals, whose decisions are alleged to have estab- lished the law of Missouri, may be an inferior court of that State of lim- ited territorial jurisdiction, whose decisions are subject to review by the Supreme Court. This court cannot, in advance of its announcement by the Supreme Court of Missouri, assume that the common law in that State will be declared to be different from the common law as construed in this State. Allegation and proof that a court of a State not having final appellate jurisdiction has settled a particular rule of law does not constitute allegation or proof that such rule is the law of the State. So far as appears, if the appellee should bring an action in the State of Missouri against appellant on this benefit certificate, and if the nisi prius and Appellate Courts should decide against ap- pellant, it would be entitled to have such decision reviewed by the Supreme Court of the State of Missouri, and we have no reason to suppose that that court will not do justice between the parties and give effect to the rules of law applicable to the case. The judgment of the Appellate Court will be affirmed. Ch. 1) INTRODUCTION. 19 \ SNOOK et al. v. SNETZER. (Supreme Court of Ohio, 1874, 35 Ohio St. 516.) RBx, J. The assignments of error and the arguments in the case present two questions for the determination of this court. The first question relates to the exemption laws of this state, and makes the point, whether, by the laws in force when the debt in question was contracted, June 2, 1866, the earnings of the debtor for his personal services within the three months next preceding when necessary for the use and support of his family, were exempt from being applied to the payment of his debts. The policy of this state, as exhibited by its legislation for more than a quarter of a century, had been to protect the family of a debtor, in some measure, from the consequences of debts contracted by its head. . . . Construing the provisions of the code in accordance with well-established rules on that subject, we have no doubt that by these provisions it was intended to exempt, as well in attachment as under the proceedings in aid of execution, the earnings of the debtor for his personal services for the time prescribed, where the same were necessary for the purpose named. The remaining question to be determined is: Have the courts of this state authority, upon the petition of a resident who is the head of a family, by injunction, to restrain a citizen of the county in which the action is commenced from proceeding in another state to attach the earnings of such head of a family with a view to evade the exemp- tion laws of this state, and to prevent such head of a family from avail- ing himself of the benefit of such laws? The authority of the courts in such a case to restrain a citizen from thus proceeding for the purpose named, is, in our opinion, clear and indisputable. In exercising this authority, courts proceed, not upon any claim of right to control or stay proceedings in the courts of another state or country, but upon the ground that the person on whom the restraining order is made resides within the jurisdiction and is in the power of the court issuing it. The order operates upon the person of the party, and directs him to proceed no further in the action, and not upon the court of the foreign state or country in which the action is pending. On this subject, Mr. Justice Story, in his Commentaries on Equity Jurisprudence, section 899, says : "Although the courts of one country 20 iNTEODucTiON. (Part 1 have no authority to stay proceedings in the courts of another, they have an undoubted authority to control all persons and things within their territorial limits. When, therefore, both parties to a suit in a foreign country are resident within the territorial limits of another country, the courts of equity in the latter may act in personam upon those parties, and direct them, by injunction, to proceed no further in such suit." In such a case, these courts act upon acknowledged principles of pubjic law in regard to jurisdiction. They do not pre- tend to direct or control the foreign court, but, without regard to the situation of the subject-matter of dispute, they consider the equities between the parties and decree in personam according to those equities, and enforce obedience to their decrees in personam. THE PORT ROYAL RAILROAD COMPANY v. HAMMOND. (Supreme Court of Georgia, 1877, 58 Ga. 533.) WarnBr, C. J. The defendant is a Georgia corporation, created by an act of the general assembly of this state, and its powers and duties are to be exercised and performed within the territorial limits of the state. As an artificial person, it has no extra-territorial exist- ence — 14 Ga. Rep., 328. The object and prayer of the complainant's bill is, that the defendant may be decreed to specifically execute the contract, alleged to have been made with the defendant, for the right of way for its railroad through the lands of the complainant, situated and being in the state of South Carolina, and to recover damages for the injury already sustained from the non-performance of that con- tract. The complainant's equity is based upon his alleged right to have the defendant compelled, by a decree of the court of this state, to specifically perform the alleged contract in the state of South Car- olina, by keeping the ditches open upon the complainant's land, situated in that state, to the depth of five feet, and to construct, and keep in proper repair, sufficient cattle-guards or stock-gaps, upon the com- plainant's land, in the state of South Carolina. There is no doubt that when a court of equity has jurisdiction of the person of a de- fendant, it may decree the specific performance of a contract for the conveyance of land situated in a foreign state or country, and also restrain a defendant by injunction in certain specified cases, by acting ^'h- 1) INTEODUCTION. 21 upon the person of the defendant within its jurisdiction; and that is the principle which the complainant insists should be applied to the defendant in this case. Ahhough a court of equity will act upon the person of a defendant within its jurisdiction, and compel the specific execution of a contract in relation to lands in a foreign state, on a proper case being made, still, we are not aware that the court has ever gone to the extent of compelling a defendant by its decree, to go into a foreign state and specifically execute a contract there, even in the case of a natural person ; and, more especially, when the defendant is an artificial person, having no legal existence beyond the territorial limits of the state 'which created it. The court of equity of Richmond county, in this state, had no juris- diction to compel the defendant, by its decree, to go into the state of South Carolina and specifically execute the alleged contract, as set forth in complainant's bill, by opening the ditches on complain- ant's land there, and keeping the same open to the depth of five feet, and by constructing and keeping in repair proper and sufficient cattle- guards, or stock-gaps thereon, and, upon its failure to do so, to en- force that decree by an attachment and sequestration of its property in this state. If the acts required to be done on the part of the defendant, by the decree of the court, in the specific execution of the contract in question, were required to be performed in this state, there would not seem to be any well-founded objection to the jurisdiction of the court, notwith- standing the land, the subject matter of the contract, is situated in the state of South Carolina. This, however, is as far as the principle con- tended for has been recognized. See Wharton on Conflict of Laws, .sections 288, 289, 290. But the specific execution of the contract, as prayed for in complainant's bill, can only be performed by going on the land in South Carolina and cutting ditches upon it there to the depth to five feet, and keeping them open so as to effect the stipulated drainage of the land, and by constructing and keeping in repair proper and sufficient stock-gaps thereon. To hold that the court has jurisdic- tion to grant the specific relief prayed for against the defendant, would be to decide that a corporation, an artificial person, having no legal ex- istence beyond the territorial limits of the state which created it, can be compelled to go into another state in which it has no legal existence, and there to cut and keep open ditches, construct and keep in repair 22 iNTEODucTioN. (Part 1 stock-gaps on the complainant's land in that state, and, upon its fail- ure to do so, that its property, in this state, may be attached and se- questered to compel the performance of such specific acts by the de- fendant in a state and country 'where it has no legal existence to perform the same. ... It would, therefore, seem to be much more equitable and just that the complainant should seek a specific execution of the alleged contract against the corporation with which it was made, and in the courts of the state in which the land is situated, and obtain his decree in accordance with the laws of that state, and where the court will have no jurisdiction to enforce it in conformity therewith. The specific execution of contracts by -a court of equity must always rest in the sound discretion of the court. To compel the Georgia corporation, by a decree of the court, to specifically perform the alleged contract, made by the complainant with the South Carolina corporation, and to enforce its performance in the latter state by an attachment and sequestration of its property situated in Georgia, would be unfair, unjust, and against good conscience, inasmuch as its prop- erty in this state may not be more than sufficient to discharge its own contracts and liabilities to its creditors here. In our judgment the court erred in overruling the defendant's de- murrer to the complainant's bill. Let the judgment of the court below be reversed. BABCOCK V. McCAMANT. (Supreme Court of Illinois, 1870, 53 111. 215.) Walker, J. . . It has long been the practice, in equity, to en- join the collection of a judgment that has been paid, satisfied, or it has otherwise become inequitable to enforce; and our statute has recog- nized the right to enjoin judgments. But it is urged that the remedy was complete under the statute, by applying to the circuit judge at chambers, to order a stay of proceedings under the execution, until a motion to quash the execution and levy could be heard at the next tei^m. This may be true of the execution, and a levy, but it is not clear that the circuit court could correct the judgment on a motion. But even if it could, it is more satisfactory and complete to grant the re- lief in equity. The facts alleged and admitted by the demurrer, show oil. 1) INTEODTJCTION. 23 gross fraud, and fraud is a matter of equity jurisdiction, and that court did not lose it by the statute conferring similar jurisdiction upon the courts of law. If, then, under the statute, or the inherent power of a court of law- to control its process and records, that court could correct the judgment, still it would not deprive equity of juris- diction. . . . RHOTEN V. BAKER. (Appellate Court of Illinois, 1903, 104 111. App. 653.) Wright, P. J. This was a bill in equity liled by the plaintiff in error against the defendants in error to require the latter to accept the damages and pay the benefits assessed by a jury for the laying out and opening of a road for private and public use, under the pro- visions of section 54 of the act in regard to roads and bridges under township organization, and to prevent the defendants from combining and confederating together to defeat the opening of such road. The court sustained a demurrer to the bill and dismissed it for want of equity, and to reverse the decree this writ of error is prosecuted. . . In these conditions plaintiff claims no adequate remedy exists at law, and that he is without such remedy save in a court of equity. It is, however, insisted by the defendants that inasmuch as the statute gives to the verdict of the jury in such cases the force and effect of a judgment, which it does, that plaintiff's remedy is at law; desiring it to be inferred, we presume, that an execution might be is- sued upon the judgment for the damages assessed. . . . Plaintiff, therefore, by the facts stated in his bill, admitted by the demurrer, had a right to the road in question, and by the same facts defendants wrongfully obstructed such rights in such manner as the law could afford no adequate remedy for the wrong done by the defendants. If we are right in this conclusion, and we feel sure of that, then no au- thority need be cited to prove that a bill in equity is the appropriate remedy ; for when a right is given to a person, then wrongfully taken away by another, and the law by reason of its universality can not afford a remedy in the peculiar circumstances of the case, equity will correct the law and furnish the remedy. . . . Reversed and remanded. 2^ iNTEODucTioN. (Part 1 TOLEDO, A. A. & N. M. RY. CO. v. PENNSYLVANIA CO. et al. (U. S. Circuit Court, 1893, 54 Federal Reporter 746.) Ricks, J. . . It is said the orders issued in this case are with- out precedent. Every just order or rule known to equity courts was born of some emergency, to meet some new conditions, and was, there- fore, in its time, without a precedent. If based on sound principles, and beneficent results follow their enforcement, affording necessary relief to the one party without imposing illegal burdens on the other, new remedies a"nd unprecedented orders are not unwelcome aids to the chancellor to meet the constantly varying demands for equitable relief. Mr. Justice Brewer, sitting in the circuit court for Nebraska, said : "I believe most thoroughly that the powers of a court of equity are as vast, and its processes and procedure as elastic, as all the chang- ing emergencies of increasingly complex business relations and the protection of rights can demand." Mr. Justice Blatchford, speaking for the supreme court in Joy v. St. Louis, 138 U. S. 1, 11 Sup. Ct. Rep. 243, said : " . . . It is one of the most useful functions of a court of equity that its methods of procedure are capable of being made such as to accommodate themselves to the development of the interests of the public in the progress of trade and traffic by new methods of intercourse and transportation." I MORRIS V. PARRY. (Missouri Court of Appeals, 1904, 110 Mo. App. 675, 85 S. W. 620.) Johnson, J. . . The relief granted by the court under this strange petition is contained in the following portion of the decree, "that the testimony of John H. Winkle incorporated in the disposition of said John H. Winkle on file in the office of the clerk of the circuit court of Barton county in the case of R. E. Smith against Joseph C. Parry and Nancy C. Parry, defendants, be and the same is hereby es- tablished and perpetuated as and for the testimony of the said John H. Winkle for the purpose of establishing the existence of said deed of Ch. 1) INTRODUCTION. 25 said Joseph C. Parry and Josephine Parry to Barton county . . . and in all suits by Nancy C. Parry having for the purpose the establish- ment of a right of dower in her as the widow of Joseph C. Parry in and to said real estate against all persons whomsoever the same is hereby decreed to be competent testimony." A certified copy of the decree was ordered to be filed and recorded in the office of the recorder of deeds. This proceeding does not fall within the purview of statutory law — Revised Statutes, sections 4525-4542 and 4565-4571 — nor is the rem- edy sought one known to equity jurisprudence. Every remedy, legal or equitable, having for its object the perpetuation of testimony, is confined to the testimony of witnesses in being. . . . Respondent, freely conceding that no precedent exists in support of his novel claim, invokes the aid of the general power inherent in equity to provide a remedy where one is lacking for the protection of a right under the maxim, "equi ty wil l no t suffer a right to be without a remed y." It is true, as urged: "every just order or rule known to equity courts was born of some emergency to meet some new con- dition and was, therefore, in its time without precedent,'' and "the powers of a court of equity are as vast and its processes and procedure as elastic as all the changing emergencies of increasingly complex bus- iness relations and the protection of rights can demand." But however far-reaching and puissant the arm of equity may be, it has its sphere of operation to which it is confined. It supplements and aids the law, does not invade its domain and never works for the destruction of legal right nor in opposition thereto. "Equity will not give a rem- edy in direct contravention of a positive rule of law." (Bispham's Princ. of Eq., sec. 37; Story's Eq. Juris., sec. 12.) What is the real aim and object of this proceeding? Stripped of verbal embelhshments and reduced to naked fact, it is an attempt to force the admission of incompetent testimony at the trial of the dower suit. That the evidence is incompetent is confessed and urged as a ground for equitable relief. If competent, there is abundant authority in this State justifying its admission without the aid of equity. . . , The decree in this case presents the anomaly of a court sitting as a chancellor making an order upon himself as trial judge to admit as evidence in an action pending before him in the latter capacity the de- position of a deceased witness taken in another cause clearly incom- 26 INTRODUCTION. (Part 1 petent under elementary principles of law, for this is all the decree .amounts to. . . . , The testimony of the witness, now deceased, taken in the form of a deposition over ten years ago in the suit of Smith against the de- fendant herein and her husband, is incompetent as evidence in the pending dower suit brought by defendant against plaintiff, for the reason that it is hearsay. It is true, the question of title involved in the pending cause is the same as in Smith against this defendant, but the parties are different and there, is no privity between the plaintiff in the last-mentioned action and the defendant in the one pending. The land involved in the two suits is different. . . . SULLIVAN V. PORTLvVND, ETC., R. R. CO. (Supreme Court of the United-States, 1876, 94 U. S. 806.) SwAYNE, J. ... To let in the defense that the claim is stale, and that the bill cannot, therefore, be supported, it is not necessary that a foundation shall be laid by any averment in the answer of the defendants. If the case, as it appears at the hearing, is liable to the objection by reason of the laches of the complainants, the court will, upon that ground, be passive, and refuse relief. Every case is gov- erned chiefly by its own circumstances; sometimes the analogy of the Statute of Limitations is appHed; sometimes a longer period than that prescribed by the statute is required ; in some cases a shorter time is sufHcient ; and sometimes the rule is applied where there is no statu- table bar. It is competent for the court to apply the inherent principles of its own system of jurisprudence, and to decide accordingly. Wilson V. Anthony, 19 Barber (Ark.), 16; Taylor v. Adams, 14, id. 62; John- son V. Johnson, 5 Ala. 90; Person v. Sanger, 2 Ware, 256; Fisher v. Boody, 1 Curtis, 219; Cholmondly v. Clinton, 2 Jac. & Walk. 141; 2 Story's Eq., sect. 1520a. "A court of equity, which is never active in giving relief against con- science or public convenience, has always refused its aid to stale de- mands where a party has slept upon his rights, and acquiesced for a 'great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive, and does nothing. Laches and neglect Ch. 1) INTRODUCTIOX. 27 are always discountenanced ; and, therefore, from the beginning of this jurisdiction there was always a limitation to suits in this court." Smith V. Clay, Ambler, 645. . . . f SCOTT V. MAGLOUGHLIN. (Supreme Court of Illinois, 1890, 133 III. 33, 34 N. E. 1030.) Shope, C. J. A bill in equity was filed by appellants to foreclose a trust deed dated February 2, 1885, executed by John Magloughlin and wife to John W. Scott, as trustee, to secure the payment of a promissory note of the same date, for $1000, payable in one year, and made by said John Magloughlin payable to his order, and indorsed by him in blank. The note is claimed by appellants to have been ex- ecuted for an indebtedness due and owing from Magloughlin to Robert Blair, and to have been delivered to said Robert or to William T. Blair. The blank indorsement had, at the hearing, been filled up by writing over the name of Magloughlin the words, "pay to order of Albert B. Clark." . . . The defenses set up were, in substance, that there was no consider- ation for the note, and that the note and trust deed were executed at the suggestion and instance of William T. Blair to cover up the equi- table title of Robert Blair in the premises thereby conveyed, for the purpose of defeating the claim for alimony of the wife of said Robert, in a pending proceeding for divorce against him. . . . Appellants come into a court of equity and ask that the equitable rights of Clark be enforced by a foreclosure of the trust deed. In that proceeding the note is a mete incident to the relief sought, while the trust deed is the foundation of the right to relief in equity. The uniform holding in this State, is that a mortgage is a mere chose in action, and when the powers of a court of equity are called into ac- tivity to enforce it, relief will be denied if there are equitable reasons why its power should be withheld, or if, in equity and good conscience, the relief asked should be granted. It may be conceded that if Clark was an assignee for value before maturity of the note (which he was not), he would, under the statute respecting negotiable instruments, be pro- tected against these defenses in a suit upon the note ; yet, the trust deed not being negotiable, the right resting in him would be an equitable 28 INTRODUCTION. (Part 1 right only, and he would take it subject to the legal and equitable defenses to which it was liable before it came to his hands. There are some exceptions to the rule, perhaps; but upon examination it will be found that the right of Clark falls within none of them. A court of equity, when its power is invoked, will not deprive a party, unless controlled by some inflexible rule of law, .of such defenses, either legal or equitable, as are intrinsically just in themselves, or permit the complainant to recover contrary to the principles of equity. Olds v. Cummings et al., 31 111. 188 ; Sumner et al. v. Waugh et al., 56 id. 538 ; Walker v. Dement, 42 id. 280 ; Thompson v. Shoemaker, 68 id. 256 ; Bryant v. Vix, 83 id. 14. . . HERCY v. BIRCH. (High Court of Chancery, 1804, 9 Vesey 357.) By Indentures, dated the 1st of June, 1787, between Lovelace Hercy, Thomas Birch, and Abraham Henry Chambers, reciting, that they had on the 25th of March last commenced co-partners in the business of a banker, it was agreed, that they should continue to carry on the said business for the term of ten years ; and that in case any or either of them should after the expiration of that partnership continue to carry on the business of a banker, either alone or in partnership with any other person, until any one or more of the parties to the indenture should have a legitimate or illegitimate son, whom the father should by writing or by his will desire to have introduced to the said business, and who should live to attain the age of sixteen, the party or parties to the indenture, who should so carry on the said business of a banker, should take such son, whether legitimate or illegitimate, apprentice for five years ; and after the expiration of such apprenticeship should re- ceive him into the partnership, then carried on by any of the parties, and admit him to an equal share with the then partners, so soon after his age of 21 as might be; but not till after 20 years from the date of the indenture. . . . The bill was filed by that illegitimate son, having attained sixteen years of age, against the partners, praying, that the Defendants may be decreed specifically to perform the agreement in the said indenture, and take the Plaintiff apprentice, and at the expiration of the appren- Ch. 1) INTE-ODUCTION. 29 ticeship admit him to an equal share of such business &c. . . . The Lord Chancellor (Eldon). . . As to the question, whether this Court would decree execution of such a covenant, if the law had determined, that he might have damages against them for refusing to take him apprentice, it would be difficult to refuse him the ordinary relief this Court gives ; but what rule is to form his share of the profits ? With respect to the object of this covenant, no one ever heard of this Court executing an agreement for a partnership, when the parties might dissolve it immediately afterwards. I am of opinion, this is such a covenant, as this Court cannot spe- cifically execute. The bill was dismissed. 30 SPECIFIC PEEFOEMANCE OF CONTBACTS (Paxt .1 CHAPTER 11. SPECIFIC PERFORMANCE OF CONTRACTS. SECTION I. IN GENERAL DARST V. KIRK. (Supreme Court of Illinois, 1907, 230 111. 531, 83 N. E. 863.) Hand, C. J. . . . The law is well settled that parties to a suit cannot ordinarily confer jurisdiction upon a court over the subject-mat- ter of a suit by stipulation or consent where by law the jurisdiction of the subject-matter of the suit has been conferred upon another court. To illustrate: The parties to an action at law could not, by stipulation or consent, confer upon a court of chancery jurisdiction to try an action of trespass or slander, and in such case the decree of the court, if entered, would doubtless be a nullity, although the jurisdic- tion of the court passed unchallenged. There is, however, another class of cases, involving matters of contract and the like, which, while they do not come within the ordinary jurisdiction of a court of equity, yet only want some equitable element to bring them within such juris- diction, and in such cases the defendant by his action may estop him- self to afterward raise the question of jurisdiction in the trial or upon appeal. In both cases there is a want of jurisdiction. In the first there is a total want of power to hear and determine the case, and in the other the want of power is not absolute, but qualified. In the first class a stipulation or consent conferring jurisdiction would be void, while- in the latter class it would be binding upon the parties. (Rich- ards V. Eake Shore and Michigan Southern Railway Co., 124 111. 516.) In this case a partnership had existed between the appellant and appellee, and while they had transferred the partnership property and business to the corporation organized by them under the name of the Rex Manufacturing Company, it does not appear that there had been a settlement of said partnership matters between them, and the dh. 2) IN GENERAL. 31 stock for which the $3,000 was received was stock of the corporation received in payment of the partnership business turned over to the corporation. The settlement of partnership matters and the adjustment of partnership accounts are fruitful sources of litigation and fall within the jurisdiction of courts of equity. If the appellant had been brought into a court of chancery by the filing of a bill and the service of process to answer for non-payment of said $1,200 in the first instance, there might have been some force in the position that he should have been sued for said sum of $1,200 in an action at law; but he having been sued in an action at law and thereafter stipulated that the case should be transferred to the chancery side of the docket of the court where it was pending, and that the pleadings should be amended and the case should thereafter proceed as a chancery suit, in view of the fact that the subject-matter of the suit grew out of a partnership matter, we think the suit should be held to fall within the second class of cases above referred to, and that this is a case in which jurisdiction may be conferred upon a court of chancery by the stipulation or con- sent of the parties, and that the appellant should be held to be estop- ped by said stipulation from raising the question of the want of juris- diction in a court of chancery to hear and determine this cause. City of Chicago V. Drexel, 141 111. 89 ; Mertens v. Roche, 39 N. Y. App. Div. 398. . . . ST. LOUIS RAN^E CO. v. KLINE-DRUMMOND MERCAN- TILE CO. (Missouri Court of Appeals, 1906, 130 Mo. App. 438, 96 S. W. 1040.) GooDE, J. . . . The case is that of a vendee of personal prop- erty who has refused to accept the goods bought, and as different rules for the measurement of damages are laid down in such cases according to the circumstances presented, it is essential to fix in mind the important facts of the present controversy. At the time of de- fendant's refusal to accept any more ranges, plaintiff had on hand six hundred and three, of which about twenty-five were completed and ready for delivery and all the parts of the others were manufactured and ready to be put together. . . . •J^ SPECIFIC PERFORMANCE OF CONTRACTS (Part 1 If the buyer of personalty refuses to accept the subject-matter of the bargain when tendered by the seller in proper condition and at the proper time and place, the law allows the seller several modes of re- dress. If the contract has been so far performed by the seller that the property is ready for delivery before he has notice or knowledge of the buyer's intention to decline acceptance, he may treat the property as belonging to the buyer, hold it subject to the latter's order and re- cover the full agreed price ; or he may sell it for the buyer's account, taking the requisite steps to protect the latter's interest and get the best price obtainable, and then recover the difference between the proceeds of the sale and the agreed price ; or he may treat the sale as ended by the buyer's default and the property as his (the seller's) and recover the actual loss sustained, which is ordinarily the difference between the agreed price and the market price. (Dobbins v. Edmonds, 18 Mo. App. 307, 317; Kingsland v. Iron Co., 29 Mo. App. 526; Lum- ber Co. V. Chicago Lumber Co., 51 Mo. App. 555; Richey v. Tenbroek, 63 Mo. 563; Hayden v. Demetz, 53 N. Y. 426, 431.) Where specific articles are sold, and especially where they are manufactured pursuant to an order from the vendee, the title is regarded, usually, as having vested in the latter without delivery, so as to give the vendor the right, on refusal to accept, to recover the stipulated price. Under such cir- cumstances the case presented is different from that of a sale of goods generally, like merchandise or corporate stocks currently dealt in, when it is contemplated that specific articles or stocks shall be subsequently selected and delivered pursuant to the contract. (Bethel St. Co. v. Brown, 57 Maine 9; Page v. Carpenter, 10 N. H. 77; Brookwalter v. Clark, 10 Fed. 793; Shawhan v. Van Nest, 25 Ohio St. 490; Mitchell V. LeClaire, 165 Mass. 305.) The decisions holding vendees re- sponsible for the full contract price in cases of specific articles manu- factured for them, proceed on the assumption that they have acquired title to the property and that it is held subject to their order, or else that it is worthless in the hands of the vendors so that the latter can- not partly reimburse themselves for their loss by using or disposing of it. (Black River Lumber Co. v. Warner, 93 Mo. 374, 6 S. W. 210; Crown Vinegar & Spice Co. v. Whers, 69 Mo. App. 493 ; Brookwalter V. Clark, supra.) In the Missouri cases just cited, the property sold had been manufactured and was ready for delivery. The opinion in Lumber Co. v. Warner says that when the subject-matter of the con- tract is specific articles made for the vendee, and the vendor has com- Ch. 2) IN GENERAL,. 311 pleted his contract, it is just that the damages in case of refusal to accept the goods shall be their contract price ; but that the vendor will hold the property for the vendee. In Mitchell v. LeClair, supra, the defendant had ordered sixty tubs of butter which plaintiff set apart for him, but he subsequently refused to take it. Referring to these facts, the court said that if the vendee in such case refused to take the goods and pay for them, the vendor might recover the price, if he kept the goods in readiness for delivery to the purchaser. It some- times happens, as in the instance of a suit of clothes made for a person, or a portrait painted for him, that the thing sold is obviously worthless to any one else and then, we apprehend, the seller could recover the full price on the purchaser's refusal to accept without regard to wheth- er the contract was still executory, provided it had been performed to the extent of having the subject-matter of it ready for delivery. (Allen V. Jarvis, 20 Conn. 38.) This is not such a case; for it is apparent that the unaccepted ranges had a value either as scrap iron or as ranges ; and, indeed this proposition is conceded. We have said that plaintiff did not elect either to hold the ranges as defendant's property to be delivered on demand, or sell them for defendant as its agent. On the contrary plaintiff treated the ranges as its own and proceeded to sell them from time to time. In view of this fact, de- fendant is entitled to a deduction of the value of the ranges from the agreed price. . . . MOSS & RALEY v. WREN. (Supreme Court of Texas, 1909, 103 Texas 567, 113 S. W. 739, 130 S. W. 847.) Gainks, C. J. . . . The appellants were employed as real estate brokers to make sale of certain land belonging to appellee, and having effected, as they claimed, a sale to one Clark, brought suit for their commission. In the contract for the conveyance of the land, after specifying the price, consideration, etc., the following stipulation was inserted: "And it is further mutually agreed in case purchaser fails to comply with the terms hereof relating to the payment and securing of the purchase price as above mentioned and by the time herein designated, purchaser shall forfeit the amount paid hereon to seller and 1 Eq.— 3 34 SPECIFIC PEEFOBMANCE OF CONTRACTS (Part 3 the same shall be paid to seller by said trustees and accepted by said seller as and for liquidated damages for such injury and damage as the seller may suffer by reason of the nonperformance of this contract on the part of the purchaser." The question certified for our determination is, whether upon this contract a sale was effected so as to entitle the appellants to their commission. We have numerous decisions holding that, although there is a stipulation in the contract of this character, payment of a fixed sum of money as liquidated damages does not affect the contract for sale i of the land but that the seller can enforce specific performance. (Hem- ming V. Zimmerschitte, 4 Texas, 159; Williams v. Talbot, 16 Texas, 1 ; Vardeman v. Lawson, 17 Texas, 11; BulHon v. Campbell, 27 Texas, 653; Gregory v. Hughes, 20 Texas, 345). It seems to us that these decisions are decisive of the case. If the vendor of the land can enforce a specific performance of the contract to pay for it, then the broker has effected a sale, valid in law, and is entitled to his compensation. We have also examined the authorities cited in the- certificate upon the same proposition and find it is amply supported by them. (Lyman v. Gedney, 29 N. E., 282 ; Hull v. Sturdi- vant, 46 Me., 34; Hooker v. Pynchon, 74 Mass. (8 Gray), 550; Ewins V. Gordon, 49 N. H. 444; O'Connor v. Tyrrell, (N. J. Eq.), 30 Atl, 1061 ; Palmer v. Bowen, 34 N. E., 291, affirming s. c. in 18 N. Y. Supp., 638; Kettering v. Eastlack, 107 N. W., 177). We therefore answer the question submitted in the affirmative and say that the contract ij such that appellee is entitled to have it specifically enforced, and that therefore the appellants are entitled to their commission for making the sale. Opinion filed December 2, 1908. On Rehearing. Gaines, C. J. Upon consideration of the motion for a rehearing in this case we are of opinion that we erred in disposing originally of the question. Referring to the stipulation quoted at the end of the statement of the case it is to be noted that it provides that the $1,000 put up as Ch. 2) IN GENEEAI.. 35 a forfeit "shall be paid to the seller by said trustees and accepted by said seller as liquidated damages for such injury and damage as the seller may suffer by reason of the non-performance of this contract on part of the purchaser." Now, it occurs to us that if nothing had been said as to the acceptance of the $1,000 by the seller, our original opinion would have been correct. But if the seller is bound to accept the sum for such damages as may be suffered by reason of the non- performance of the contract on part of the purchaser, can he sue the proposed purchaser for specific performance of the contract? The contract evidently was that the proposed purchaser should have until a future day to pay the price and accept a conveyance, yet should he decline for any reason to pay the price and to accept the land, he may pay the liquidated damages and be absolved from further suit. Moss & Raley entered into a contract with Clark to sell him certain lands and stipulated that in case he failed to buy, he should forfeit $1,000 which had been put up to enforce the bargain. He chose to forfeit the $1,000 which absolved him from further obligation. Before Moss & Raley were entitled to their commission they should have procured a purchaser who was willing to enter into a contract to purchase the land absolutely. For this reason we answer the question in the negative. Opinion filed June 23, 1909. ^ DILLS V. DOEBLER. (Supreme Court of Errors of Connecticut, 1893, 62 Conn. 366, 26 Atl. 398.) Andrews, C. J. The plaintiff and defendant in June, 1890, entered' into a contract for the lease of certain rooms in the city of Hartford and the practicing of dentistry therein, the eighth paragraph of which contained these clauses : — "And the said Doebler, in consideration of the premises, does further covenant and agree to and with the said Dills, that he, the said Doebler, will not, at any time within ten years after the termina- tion of this contract, engage in or carry on directly or indirectly within the limits of fifteen miles of said Hartford, the business or profession of a dentist, or any branch of the same, either as principal, employee. '^6 SPECIFIC PERFORMANCE OF CONTRACTS (Part ] agent or partner, or in any manner or form or in any capacity what- ever: — Provided, and it is hereby understood and agreed by and be- tween the parties hereto, that in the event of the said Dill's failure to retain said rooms for said practice by reason of the said Dills- Hinckley lease, then and in that event this section of the contrafct becomes void by said Doebler paying to said Dills five hundred dollars, and giving bond in like sum that he, the said Doebler, will not use the term 'Associate Dentists' in connection with announcing or ad- vertising a future practice of dentistry in said Hartford. . . . And it is further mutually understood and agreed by and between the parties hereto that the said Doebler may be at liberty to practice dentistry in said Hartford at any time after the termination of this contract, by the paying to said Dills of one thousand dollars, and giving such bond as is hereinbefore alluded to in reference to the term 'Associate Dentists.' ". . . An examination of the agreement between these parties makes it evident that they were contracting upon the theory that the defendant was to resume the practice of dentistry in Hartford upon his own accord when the contract should be terminated. He was of course to pay for the right so to resume. The section quoted in its earlier part spoke of a termination of the contract by reason of the failure of the plaintiff's title to the rooms. In such event it is entirely certain that the defendant would have the right to engage in dentistry upon paying four hundred dollars, for it is provided that the section was then to become void. The latter part of the section speaks of the termination of the contract from any other cause. Then the defendant is required to pay one thousand dollars in order "to be at liberty to practice dentistry in said Hartford." In the one case the defendant was to pay four hundred dollars, in the other one thousand. But in respect to his liberty to resume business on his own account there is no distinction. In either case the contract stipulates for damages and not for the removal of competition. The contract presents an alternative. It virtually says to the defendant — "If you enter into the business of dentistry in Hartford after the termination of this agreement, you must pay to the plaintiiT the damages named." The language used indicates this thought; and there is nothing in the relation of the parties, or in the business of dentistry, nor in the surrounding circumstances, to indicate otherwise. Presumably eh. 2) IN GENERAL. 37 there are many dentists in the city of Hartford. Lessening their num- ber by one could not benefit the plaintiff in any perceptible degree. Nor would the defendant by practicing there be likely to injure the plaintiff at all seriously. The plaintiff having contracted to take damages must seek his remedy in a court of law. FOSTER V. KIMMONS. (Supreme Court of Missouri, 1874, 54 Mo. 488, 26 Am. Dec. 661, 663 note.) VoRiES^ J. ... In the case under consideration, the evidence shows, that the contract, which is asked to be specifically performed, was a gift of a piece of land, upon which is situated a celebrated spring; that the defendant, or donor, had a larger tract of land at and con- stituting the spring tract; it is not pretended that the whole tract of land was included in the gift; no mention is made in the evidence of the quantity of the land given, either by referring to its legal sub- divisions, or otherwise. The only evidence, tending in that direction, is, that the defendant, while riding over the land, had pointed out to the witness a tree at a considerable distance, which he supposed was near where one corner of the land would be, and he had also stated the course which he supposed one line of the land would run. This is the only description given, while the evidence clearly shows, that the son, to whom the land is charged to have been given, did not claim the whole of the spring tract. It is impossible, therefore, to ascertain from any contract or gift proven what part, or how much, of the tract was given or intended to be given; the only evidence being, that one line of the land was supposed to be near a certain tree, without anything to indicate the number of acres given, or where the other lines were, or were supposed to be. It must at once be perceived, that it would be impossible for a court of equity to specifically perform the contract, and know the very contract made, or intended by the parties, was being performed as to the quantity and boundaries of the land. The court would have to first make the contract, and then perform it. This a court of equity can never do. It follows, that the plaintiffs' petition was, for this reason, properly dismissed. 38 SPECIFIC PEKPORMAKCE OF CONTRACTS (Part 1 PADDOCK V. DAVENPORT. . (Supreme Court of North Carolina, 1890, 107 N. C. 710, 13 S. E. 464.) Shepherd, J. Two causes of action are set out in the complaint, — one for damages for breach of the contract, and the other for its specific performance. The court held, upon demurrer, that neither of the said causes of action could be maintained. . . . The second cause of action is for specific performance, both against Davenport, who executed the contract, and Thrash, who purchased of him with notice of the claim ,of the plaintiff. The true principle upon which specific performance is decreed does not rest simply upon a mere arbitrary distinction as to different species of property, but it is founded upon the inadequacy of the legal remedy by way of pecu- niary damages. This principle is acted upon where there is a peculiar value attached to the subject of the contract which is not compensable in damages. The law assumes land to be of this character "simply because," says Pearson, J., in Kitchen v. Herring, 7 Ired. Eq. 191, "it is land, — a favorite and favored subject in England, and every country of Anglo-Saxon origin." The law also attaches a peculiar value to ancient family pictures, title-deeds, valuable paintings, articles of unusual beauty, rarity, and distinction, such as objects of vertu. A horn which, time out of mind, had gone along with an estate, and an old silver patera, bearing a Greek inscription and dedication to Hercules, were held to be proper subjects of specific performance. These, said Lord Eldon, turned upon the pretium affectionis, which could not be estimated in damages. So, for a faithful family slave, endeared by a long course of service or early association. Chief Justice Taylor remarked that "no damages can compensate, for there is no standard by which the price of affection can be adjusted, and no scale to graduate the feelings of the heart." Williams v. Howard, 3 Murph. 80. The principle is also applied where the damages at law are so uncertain and unascertainable, owing to the nature of the property or the circumstances of the case, that a specific performance is in- dispensable to justice. Such was formerly held as to the shares in a railway company, which differ, says the court in Ashe v. Johnson, 2 Jones, Eq. 149, from the funded debt of the government, in not always being in the market and having a specific value ; also a patent, Ch. 2) AFFIRMATIVE CONTEACTS 39 (Corbin v. Tracy, 34 Conn. 325) ; contract to insure (Carpenter v. Insurance Co., 4 Sandf . Ch. 408) ; and like cases. The general prin- ciple everywhere recognized, however, is that, except in cases falling within the foregoing principles a court of equity will not decree the specific performance of contracts for personal property; "for," re- marks Pearson, J., in Kitchen v. Herring, supra, "if, with money, an article of the same description can be bought, . . . the remedy at law is adequate." See, also. Pom. Spec. Perf . 14. Applying these principles to the facts alleged in the complaint, it must follow, we think, that this is not a case which calls for the excercise of the equitable power of the court. The trees were purchased with a view to their servance from the soil, and thus being converted into personal property. It is not shown that they have any peculiar value to the plaintiff, nor does there appear any circumstances from which it may be inferred that the breach of the contract may not be readily com- pensated for in damages. Neither is it shown that other trees may not be purchased, but it is simply alleged that they are scarce at the contract price. The simple fact that they are near a water-course does not alter the case, for the conveniences of transportation are elements which may be considered in the estimation of the damages. Neither is the circumstance that the plaintiff purchased "a few trees of like kind," in the vicinity, sufficient to warrant the equitable intervention of the court. We can very easily conceive of cases in which contracts of this nature may be specifically enforced, but we can see nothing in this complaint which calls for such extraordinary relief. The ruling of the court as to this branch of the case is sustained. . . . SECTION II.— AFFIRMATIVE CONTRACTS GARTR^LL v. STAFFORD. (Supreme Court of Nebraska, 1883, 13 Nebr. 545.) Maxwell, J. This is an action to enforce the specific performance; of an alleged contract for the conveyance of real estate. . . . -iO SPECIFIC PEEFOEMANCE OF CONTRACTS (Part i The second objection of the appellant is that the plaintiff has an adequate remedy at law in an action for damages. The rule contended for by the appellant undoubtedly applies to contracts for the sale of personal property, the reason being that damages in such cases are readily calculated on the market price of property such as wheat, corn, wool, etc., like quantities of the same grade being of equal value, and thus afford as complete a remedy to the purchaser as the delivery of the property. Adderley v. Dixon, 1 Sim. & Stu. 607. But the rule is a qualified one and is limited to cases where compensation in dam- ages furnishes a complete and satisfactory remedy. Story's Eq., S. 718, and cases cited in note 3. The jurisdiction of courts of equity to decree specific performance of contracts for the sale of real estate is not limited, as in cases respecting chattels, to special circumstances, but is universally maintained, the reason being that a purchaser of a particular piece of land may reasonably be supposed to have consider- ed the locality, soil, easements, or accommodations of the land, gen- erally, which may give a peculiar or special value to the land to him, that could not be replaced by other land of the same value, but not having the same local conveniences or accommodations. Adderley V. Dixon, 1 Sim. & Stu., 607, Story's Eq., sec. 746. Willard's Eq., 279. An action for damages would not, therefore, afford adequate relief. LOSEE V. MOREY. (Supreme Court of New York, 1865, 57 Barb. 561.) BocKES, J. ... As a general rule, the specific performance of contracts rests in the discretion of the court. It is not, however, an in- dividual or arbitrary discretion, but a judicial discretion which con- forms itself to general rules and settled principles. The right to have specific performance is a positive right, neither to be exercised or withheld capriciously, or simply at will. When all is fair, and the farties deal on equal terms, it is a universal rule, in equity, to en- orce contracts for the sale of lands specifically, at the demand of ither the vendor or vendee; and in such case it is as much the duty of the court to decree specific performance of the contract as it is Ch. 2) AFFIRMATIVE CONTEAOTS 41 to give damages for its breach. (Willard's Eq. 280. Story's Eq. No. 746, 751, 9 Vesey, 608. 12 id. 395, 400. 3 Cowen, 445. 6 Bosw. 245.) In the last case cited the court remarks that the discretion to be exercised in these cases, "is governed, for the most part, by settled rules ; and where a plaintiff is seeking a relief to which by such rules he is clearly entitled, and no- substantial defense to his claim is established, the relief may not be capriciously denied." It follows, therefore, that if a contract for the sale and purchase of lands has been fairly obtained, without misapprehension, surprise, mistake or the exercise of any undue advantage, and it be not unconscionable in its terms, the right of the parties to its specific performance is a settled and positive right, which the court is bound to mai^itain and enforce. It is insisted, in the next place, that the case is not of equitable cognizance, because the plaintiff has, as is urged, a perfect remedy at law, on the contract, for damages. This objection is not available in a case like this, where the contract is for the purchase and sale of lands. In such case the vendee is not deemed to have a per- fect remedy in an action at law for damages. He is entitled to the land, according to the terms of the purchase. A compensation in damages will not afford adequate relief ; "for the peculiar locality, soil, vicinage, advantage of markets and the like conveniences of an estate contracted for, cannot be replaced by other land of equal value." LEACH & WIFE v. FOBES. (Supreme Court of Massachusetts, 1868, 11 Gray (Mass.) 506.) BiGELOW, J. . . . Nor have we any doubt as to the right of the plaintiffs to ask for the enforcement of this contract by a decree in chancery. The remedy at law is not adequate and complete. The agreement is not one for the transfer of shares in a corporation merely. It is a contract also for the conveyance of a certain right or interest in real estate, which is an appropriate subject for specific relief in equity. The court has jurisdiction to decree that the land which is the subject of the agreement shall be conveyed to the plaintiffs; and, as it will- give relief for this part of the contract, it will also entertain jurisdiction of the whole agreement, and enforce the other stipulations 42 SPECIFIC PERFOBMANCE OF CONTEAOTS (Part 1 respecting the transfer of shares in the incorporated companies named in the bill, instead of turning the party over to seek his remedy therefor by an action at law. The more recent authorities are quite decisive as to the authority of a court of chancery to decree the specific per- formance of a contract for the transfer of shares in joint stock com- panies or corporations, in cases in which it appears that the capital stock is fixed at a certain amount and the number of shares is limited. Duncuft V. Albrecht, 12 Sim. 189, Shaw v. Fisher, 2 De Gex & Sm. 11, and 5 De Gex, Macn. & Gord. 596, Cheale v. Kenward, 3 De Gex & Jon. 27. But without deciding whether a suit in equity can be sup- ported for sole purpose of enforcing a contract for the sale of shares in a corporation, we are of opinion that such an agreement may be enforced in equity when it forms part of a contract for the sale and transfer of real estate, and the suit is brought for the conveyance of the land as well as for the transfer of the shares. Decree accordingly McNAMARA et al. v. HOME LAND & CATTLE CO. et al. (Circuit Court of Montana District, 1900, 105 Fed. 303.) Knowles^ D. J. . . . The case was brought to compel the specific performance of a contract for the sale and delivery of certain personal property, described in the bill herein, and situated within the state of Montana. ... It is evident that this construction of the con- tract contended for on the part of the said cattle company would force the complainants to seek redress for said cattle company's breach of this contract in the state of Missouri, and that the complainants could not have done so with any assurance of obtaining complete redress in Montana. It is an important consideration in this case as to whether sufficient equities have been presented to justify this court in awarding specific performance of this contract. The master has found that the cattle company is solvent. He has found, however, that the property of said company chiefly consists of an indebtedness due it from the St. Louis Stamping Company, a Missouri corporation and doing business in that state. What the nature of this indebtedness is and how it is evidenced does not appear. When such indebtedness becomes due is also a matter not in evidence, or determined by the Oh, 2) AFFIBMATIVB C0NTBAC5TS 43' findings of the master. A party should not, under the circumstances presented by this case, be compelled to seek a foreign jurisdiction to collect damages for the breach of a contract when he has in his own hands the means of remunerating himself therefor. Johnson v. Brooks, 93 N. Y. 343. In the case of Clark v. Flint, 33 Am. Dec. 733, it is held that, where the remedy at law would be against a person actually insolvent, such legal remedy would not be adequate, and would be a ground for equitable jurisdiction. In 22 Am. & Eng. Enc. Law, 992, it is stated that the insolvency of a defendant is a ground for equitable relief, where the specific performance of a contract for the sale of chattels is presented. As far as the defendant the Home Land & Cattle Company is concerned, I think it may be treated as if insolvent in Montana. It had not the means wherewith to liquidate complainants' claims on account of the deficiency of the cattle above mentioned, if complainants paid to the defendant bank the amount due for the last delivery of cattle made to them. The cattle gathered by the defendant the Home Land & Cattle Company in the year 1898 were upon the range, and scattered, and it would seem unjust to re- quire a creditor to hunt them up in order to render them subject to his demand. With this view of the law and the facts presented in this case, I have reached the conclusion that sufficient equities are presented to entitle complainants to the relief prayed for in their bill. It is therefore ordered that complainants have a decree for the specific performance of this contract as to the cattle and horses described in the bill. CORB^N V. TRACY. (Supreme Court of Connecticut, 1867, 34 Conn. 335.) Bill in equity, brought by the petitioners, a joint stock corporation, to the superior court for Hartford county, to compel the specific per- formance of a contract to assign a patent right. The superior court (Loomis, J.) passed a decree in favor of the petitioners, and the re- spondents filed a motion for a new trial and a motion in error. The case is sufficiently stated in the opinion. CarpSntbr, J. . . . The ground of the jurisdiction of a court of equity in this class of cases, is, that a court of law is inadequate 44 SPECIFIC PERFORMANCE OF CONTRACTS (Part 1 to decree a specific performance, and can relieve the injured party only by a compensation in damages, which, in many cases, would fall far short of the redress which his situation might require. Whenever, therefore, the party wants the thing in specie, and he cannot other- wise be fully compensated, courts of equity will grant him a specific performance. They will decree the specific performance of a con- tract for the sale of lands, not because of the peculiar nature of land, but because a party cannot be adequately compensated in damages. So in respect to personal estate ; the general rule that courts of equity will not entertain jurisdiction for a specific performance of agreements respecting goods, chattels, stocks, choses in action, and other things of a merely personal nature, is limited to cases where a compen- sation in damages furnishes a complete and satisfactory remedy. 2 Story's Eq. Jur. Nos. 717, 718. The jurisdiction, therefore, of a court of equity does not proceed upon any distinction between real estate and personal estate, but upon the ground that damages at law may not in the particular case, afiford a complete remedy. 1 Story's Eq. Jur., §§ 716, 717, 718 and cases there cited ; Clark v. Flint, 22 Pick., 231. When the remedy at law is not full and complete, and when the effect of the breach cannot be known with any exactness, either because the effect will show itself only after a long time, or for any other reason, courts of equity will enforce contracts in relation to personalty. 3 Parsons on Con- tracts (5th ed.) 373. An application of these principles to the case before us relieves it of all difficulty. The contract relates to a patent right, the value of which has not yet been tested by actual use. All the data by which its value can be estimated are yet future and contingent. Experience may prove it to be worthless ; another and better invention may super- sede it; or it may itself be an infringement of some patent already existing. On the other hand it may be so simple in its principle and construction as to defy all competition, and give its owner a practical monopoly of all branches of business to which it is applicable. In any event its value cannot be known with any degree of exactness until after the lapse of time; and even then it is doubtful whether it can be ascertained with sufficient accuracy to do substantial justice between the parties by a compensation in damages. On the whole we are satisfied that justice can only be done, in a case like this, by a specific performance of the contract. Ch. 2) AFPIEMATIVE CONTRACTS 45 LEWIS V. LORD LECHMERE. (English Court of Chancery, 1721, 13 Modern Reports, 504.) I This was a bill brought by the plaintiff for a specific performance of articles, bearing date the thirtieth day of August 1720, whereby Lord Lechmere had covenanted to purchase such an estate at forty years purchase ; provided the plaintiff did, on or before the tenth day of November following, lay such an abstract of the title before Lord Lechmere's Counsel, as they should approve. . . . It was said by the counsel for the defendant, that though in case of articles entered into for the purchase of lands, the vendee may undoubtedly exhibit his bill in equity for the specific performance of these articles ; yet it might admit of a doubt, whether the vendor might do the same. As to the vendee, though he has an action at law upon the articles, yet that sounds only in damages; and therefore he may come into equity for the land, which on several accounts may possibly be more desirable to him than any pecuniary compensation. But for the vendor, he only desires to have the money ; and that, whether it be recovered at law in damages, or in equity, is but money still. If it be said, that at law the jury may at their own liberty and discretion, give him what damages they upon all the circumstances of the case think reasonable ; whereas upon a bill in equity, your lord- ship has no power to vary from the sum contracted for in the articles, be the circumstances of the case what they will; this seems to be a very odd reason for coming into a court of equity, and the reverse of what generally intitles people to relief in equity. But to this it was answered, that upon mutual articles there ought to be mutual remedies : that if the vendee had a remedy both in law and equity, the vendor would not be upon a par with him, unless he had so too ; that the remedy the vendor had at law, was not a remedy adequate to what he had in this court ; for at law they only could give him the difference in damages, whereas he might for particular reasons stand in need of the whole sum. . . . 46 SPECIFIC PEBPORMAWCE OF CON TRACTS (Part 1 GOTTSCHALK v. STEIN & LEOPOLD. (Court of Appeals of Maryland, 1888, 69 Md. 51.) Robinson, J. . . . Now in this case, the appellant agreed to sell to the appellees the three promissory notes of Weiller & Son, and the appellees agreed to buy these notes for a specific purpose, which was known to the appellant. An action at law for a breach of the con- tract, would not, it is clear, give to the appellees the subject-matter of the contract. And besides, the damages to be recovered must neces- sarily be uncertain. The face value of the notes is seven thousand five hundred dollars, and the appellant agreed to sell and transfer them to the appellees, upon the payment of three thousand dollars. If the firm of Weiller & Son was perfectly solvent, there would be no dif- ficulty in determining the measure of damages. But the firm, the record shows, was insolvent, their assets being insufficient to pay their debts. And in an action at law the measure of damages would de- pend upon the personal ability of the members of the firm to pay the amount due on the notes, and this being uncertain, the damages to be recovered must also be uncertain. The legal remedy under such cir- cumstances would fall short of that redress to which the appellees are justly entitled, and is not, therefore, as beneficial to them as the spe- cific performance of the contract. There is no distinction, it seems to us, between this case and Wright and others v. Bell, 5 Price, 325. There the assignees in bankruptcy, agreed to sell a debt of i550 due the bankrupt for iSOO, and the defendant having refused to pay the £500, a bill was filed for the specific performance of the contract, and it was argued that the remedy of the plaintiff was by an action at law for a breach of the contract. But the Lord Chief Baron held, that although equity would not, as a general rule, enforce the performance of contracts, for the sale of chattels, yet a contract to sell a specific debt, was an exception to the rule. And then again in Adderley v. Dixon, 1 Sim. & Stu., 607, where the plaintiff being entitled to a dividend in two bankrupt estates, agreed to sell the claims for 2s. and 6d. in the pound. Sir. John Leach, Vice-Chancellor, said: "Courts of equity decree the specific performance of contracts, not upon any distinction between realty and personalty, but because Cll. 2) AFFIEMATIVE CONTEACTS 47 damages at law may not, in the particular case, afford a complete remedy. The present case being a contract for the sale of the un- certain dividends which may become payable from the estates of the two bankrupts, it appears to me that, upon the principle estabHshed by the cases of Ball v. Coggs, 1 Bro. P. C, 140, and Taylor v. Neville, (cited in 3 Atk., 384,) a Court of equity will decree specific perform- ance, because damages at law cannot accurately represent the value of the future dividends; and to compel this purchaser to take such damages, would be to compel him to sell these dividends at a con- jectural price." So in this case, the damages at law being uncertain on account of the failure of Weiller & Son, the appellees are entitled to the specific performance of the contract. RUTHERFORD v. STEWART. (Supreme Court of Missouri, 1883, 79 Mo. 216.) Henry, J. This is a proceeding by injunction to restrain defend- ants from taking and using certain brick made by Helflin & Sheperd- son on a tract of land owned by plaintiff. Helflin & Sheperdson agreed to manufacture brick and pay Rutherford for the use of the ground, and gave him a mortgage to secure him the price they were to pay and for certain advancements of money for them, upon one kiln of bricks, to contain 100,000 bricks. . . . Afterward, on the 22nd day of July, 1878, said mortgagor exe- cuted to defendant Stewart, a mortgage of "all the bricks now being moulded at the brick-yard, on the land of W. T. Rutherford. . . . and all the bricks that will be moulded and turned at said brick-yard, during the season for such work of 1878, commencing on the 29th day of July, 1878," to secure a promissory note of that date for $250, payable to said Stewart. . . . A second mortgage was executed by said Sherperdson & Helflin to Rutherford, after the second kiln was burned, to secure a debt to Rutherford of $502, advanced by Rutherford and used by the firm, to make said brick. . . . The only question in the case is whether the mortgage to Stewart was a valid mortgage, the appellant contending that it was of personal ^8 SPECIFIC PEEFOE.MANCE OF CONTEACTS (Part 1 property not then in existence, and, therefore, conveyed nothing. Of the brick then made, it was certainly a -good conveyance, and that, in equity, it covered all the brick made when Rutherford took his second mortgage, we think equally clear. As between Stewart and the mort- gagers, and persons claiming under the latter, with actual notice of the mortgage, the mortgagee's equitable right to the property would seem to be unquestionable. If the entire kiln was completed when plaintiff took his second mortgage, he took it subject to the first, and on no principle of equity, can he be entitled, as against Stewart, to any of the bricks except such as were made after his, Rutherford's mortgage was executed. That the mortgage of Stewart took effect upon the bricks in the kiln when it was executed, is not questioned. The other propositions above stated, were discussed in Wright v. Bircher, 72 Mo. 179, in which this court approved what was said by Mr. Justice Story in Mitchell V. Winslow, 2 Story 630, and by Davis, J. in Morrill v. Noyes, 56 Me. 458; s. c, 3 Am. L. Reg. (N. S.) 18. Justice Story observed: "It seems to me the clear result of all the authorities, that whenever the parties, by their contract, intend to create a positive lien or charge, either upon real or personal property, whether in esse or not, it at- taches, in equity, as a lien or charge upon the particular property, as soon as the assignor or contractor acquires title thereto, against the latter and all persons asserting a claim thereto, either voluntarily or with notice, or in bankruptcy." . . . CARPENTER v. THE MUTUAL SAFETY INSURANCE COMPANY. (New York Court of Chancery, 1846, 4 Sandf. Ch. 436.) Demurrer. The bill set forth an agreement for insurance made by the authorized agent of the defendants, the terms of which were fully stated, the payment of the stipulated premium by the complain- ant to the defendants, and the omission of the latter to execute a policy of insurance conformably to the agreement, on being requested. The bill also stated the loss of the premises insured, and the com- plainant's consequent right to recover the amount agreed to be insured. Ch. 2) AFFIRMATIVE CONTRACTS 49 The prayer was for a payment of the loss and for general relief. The defendants demurred to the bill for want of equity. . . . Thjj Vics-Chancblloe. The circumstance that the bill seeks per- formance of a contract relating to personal property, is not of itself a valid ground of demurrer. There are many instances in which equity compels a specific performance of such contracts. The real, serious objection to the bill, is that the complainant has an adequate remedy at law. I think, however, that it is now the established doctrine, that the insured may, in such a case, resort to a court of equity. In Perkins v. The Washington Insurance Company, 4 Cowen, 645, our highest court maintained a suit like this in all respects. The de- fendant there was a corporate body, which answers under its seal and makes no discovery. It is true that the report of the case does not show any discussion of the question of jurisdiction in the court below, or that the point was presented. But the severe litigation of the cause, the eminent counsel engaged in it, and the opinion of Senator Golden, furnish strong evidence that the law was deemed to be too well settled, to warrant any debate in regard to it. That learned judge says, in his opinion (p. 661), that the re- ceipt for the premium ''answers all the use of a policy, except that the latter authorizes the assured, in case of loss, to sue in a court of law, instead of being obHged to resort, as in this case, to a court of chancery." The case cited has ever since been regarded as decisive of the juris- diction in equity. Thus, the now chief justice, in delivering the opinion of the supreme court, in Lightbody v. The North American Fire Insurance 'Company (23 Wend. 18, 25), speaking of a state of facts similar to those in this bill, says, "if his remedy at law was questionable" (and the judge thought he had such a remedy by an action on the case), "he had a perfect equitable right to the delivery of the usual policy, which he might have enforced in the proper forum ;" citing Perkins v. The Washington Insurance Company. . . . With these authorities, and I may add, the very general understanding of the profession for a long period that such is the law, I have no doubt as to the jurisdiction in this case. It surely can make no difference in respect of the jurisdiction, that the loss insured against has occurred. 1 Eq.-^t * SPECIFIC PERFOKMANCE OF CONTBACTS (Part 1 be only ground upon which it can be maintained, is for a specific ;rformance by the execution and dehvery of a pohcy. The further lief by decreeing payment, where there has been a loss, is merely cidental, and to avoid expense. Now take the instance of an agree- ent to insure, where there has been no loss. The right of the assured receive a policy is perfect and may be enforced immediately, the emium having been paid. An action at law in such a case would be Drse than useless to him, for he could recover no more than nominal images. The value of a policy, previous to a loss, would not be ificient to carry the costs of a suit at law. In this respect it is wholly unlike the contract to deliver bills or )tes payable at a future day, on a sale of goods. There, on a failure deliver the bills or notes, an action lies upon the special agreement, which the damages may be at once ascertained and full justice ine, by giving the price of the goods sold. Here, after a barren re- very at law for the non-delivery of the policy, if a loss occurred, lother suit must be brought for the real damages ; and in the second it, the assured would probably encounter a plea setting up the first covery as a bar to a further prosecution. It is obvious that a suit at law, before a loss, is an inadequate, if it a fatal mode of redress. And as I have remarked, the principle the jurisdiction in equity, is the same whether a loss has occurred not. It therefore cannot be taken away or impaired, if perchance e remedy at law, when first invoked after a loss, may lead to the me results. The demurrer must be overruled with costs, and the usual order tered. STUART V. PENNIS. (Supreme Court of Virginia, 1895, 91 Va. 688, 23 S. E. 509.) RiELY, J. This is a suit in equity to compel the specific performance a contract in writing for the sale of growing timber trees. Upon demurrer to the bill, it was dismissed by the court. There was and could be no objection urged against the relief sought owing out of any indefiniteness as to the terms of the contract, or to its subject-matter. The defense of the appellee was that the bject of the contract was personal property, and not an interest in Ch. 2) AFFIRMATIVE CONTRACTS 51 real estate ; and being personal property, and there also being an ade- quate remedy at law for the breach of the contract, a court of equity would not specifically enforce it. On the other hand, counsel for the appellant claimed that standing trees so pertain to the soil that a contract for their sale is in law a sale of an interest in land; and that as under the general rule, a court of equity will always enforce, in a proper case, the specific performance of a contract for the sale of land (2 Minor's Inst. 867 ; and Pomeroy on Specific Performance of Contracts, sec. 10), such relief should have been granted in this case. . . . Land includes everything belonging or attached to it, above and below the surface. It includes the minerals buried in its depths, or w;hich crop out of its surface. It equally includes the woods and and trees growing upon it. Rooted and standing in the soil, and draw- ing their support from it, they are regarded as an integral part of the land just as are the coal, the iron, the gypsum, and the building stone which enter so largely into the business of commerce. Attached to the soil, they pass with the land as a part of it. A conveyance of the land carries with it to the grantee the right to the forests and trees growing upon it. In the dealings of men, growing timber is ever regarded as a part of the realty. Upon the death of the ancestor they pass with it to his devisee, or descend with it to his heir, and not to his executor or administrator. They are not treated as personalty. They are not subject to levy and sale under execution. And so, upon principle, sound reason, and authority, we are of opinion that they con- stitute an interest in, or are a part of, the land, and must be so treated by the courts. We are the better satisfied with the conclusion reached, in that it has the merit of being easily understood and readily applied, not only to this particular industry, but to the many other useful, varied, and boundless natural products of a similar kind of the section of the State whence this case comes, in whose development its people are becoming more largely engaged year by year. But if the contract was not to be treated as a sale of an interest in land, of which it is as much a matter of course for a court of equity to decree a specific performance as it is for a court of law to give damages for the breach of it, we are, nevertheless, of the opinion that it would be a proper case for the enforcement of the contract. While the doctrine is well established that a court of equity will not, in general, decree the specific 52' SPECIFIC PERFOBMANCE OF CONTRACTS (Part 1 performance of contracts relating to chattels, yet it will do so where the remedy at law is inadequate to meet all the requirements of a given case, and to do complete justice between the parties. The true equity rule is thus laid down in Story's Equity J., sec. 33: "The remedy must be plain ; for if it be doubtful and obscure at law, equity will assert a jurisdiction. It must be adequate; for if at law it fall short of what the party is entitled to, that founds a jurisdiction in equity. And it must be complete; that is, it must attain the full end and justice of the case. It must reach the whole mischief and secure the whole right of the party in a perfect manner, at the present time, and in future; otherwise, equity will interfere and give such relief and aid as the exigency of the particular case may require." The remedy at law would fall short in the case at bar of measuring up to this rule. The vendee had the right, if he chose to exercise it, to let the trees remain standing upon the land for a period of three years. Where the fulfillment or execution of a contract may extend through several years, it would be difficult to estimate the damages. His profits, depending in such case on future events, could not be es- timated in present damages without being largely conjectural. As is said by Pomeroy in his book on Contracts, sec. 15: "To compel a party to accept damages under such circumstances is to compel him to sell his possible profits at a price depending on a mere guess." Then again, the trees included within the body of land described in the contract and bought by the appellant have not been marked or counted, and he has been forbidden by the appellee to mark or disturb them. He has no way of ascertaining their number but by going on the land and marking and counting them. After being forbidden to do this, he is without the means of ascertaining the number of the dif- ferent kinds of trees purchased, and without knowing their number, it is not possible to ascertain his damages. The remedy at law in this case would clearly be neither adequate nor complete. For the foregoing reasons, we are of opinion that the court erred in sustaining the demurrer to the bill, and the decree complained of must be reversed. Oh. 2) AFFIEMATIVE CONTBACTS 53 \ RECTOR OF ST. DAVID'S v. WOOD. (Supreme Court of Oregon, 1893, 24 Ore. 396, 34 Pac. 18.) MooRB, J. . . . The record shows that the stone which defend- ant agreed to furnish is of a peculiar kind, color, quality, and texture, and that no other stone of like character can be procured ; that he had furnished enough of such stone to build about two-thirds of the walls, and if plaintiff cannot procure a sufficient quantity of the same kind to complete the work, it will be necessary to use other stone and thus destroy the beauty and harmony of its building, or the walls must be taken down and rebuilt with other stone; that defendant is insolvent, and therefore unable to complete his contract, although he has received nearly the whole consideration therefor. Under this state of facts, can a court of equity decree a partial performance, so as to carry out as near as possible the original intent of the parties? The contract was to furnish the stone and other material, and erect the walls. The defendant's pecuniary condition precludes a specific performance of that part of his contract which required him to furnish other neces- sary material and do the labor, if such a decree were possible (Pom- eroy, Specific Performance § 293) ; but if he be incapacitated from performing it in the precise terms, the court will, if it is possible, decree a specific execution according to its substance, by making such variation from unessential particulars as the circumstances of the case require or permit: Idem, § 297. Courts will not generally decree the specific performance of a con- tract to deliver personal property (Waterman, Specific Performance, § 16), and yet it was held in Hapgood v. Rosenstock, 23 Fed. Rep. 86, that "agreements for the assignment of a patent, and for the de- livery of chattels which can be supplied by the vendor alone, are among those which will be specifically enforced." This decision was ap- proved by the supreme court of Massachusetts in Adams v. Messenger, 147 Mass. 185 (17 N. E. 491). Applying these rules to the case at bar, the defendant has stone which cannot be procured from any other quarry, and plaintiff must use it or the harmony of its building will be marred, and since the defendant cannot be required to do that which his pecuniary condition forbids, he can be negatively required <'i4 SPECIFIC PEEFOEMANCE OF CONTKAOTS (Part 1 to specifically perform the contract by compelling him to allow the plaintiff to take the necessary stone to complete the building. . . . \ EQUITABLE GAS LIGHT CO. v. BALTIMORE COAL TAR & MANUFACTURING CO. (Court of Appeals of Maryland, 1885, 63 Md., 385.) AlvEY, C. J. . . . It is certainly a well recognized general prin- ciple by Courts of equity that they will not decree specific perform- ance of contracts for the sale of goods and chattels, not however be- cause of the nature of the property, the subject-matter of the con- tract, but because damages at law, calculated on the market price of the goods and chattels bargained for, furnish, in ordinary cases, an adequate redress to the purchaser for the breach of the bargain by the vendor. 2 Sto. Eq., sec. 717; Sullivan vs. Tuck, 1 Md. Ch. Dec, 63. But there are many exceptions to this general rule, founded principally upon the inadequacy of the remedy at law in the particular case, or the special and peculiar nature and value of the subject-mat- ter of the contract. In the 2nd vol. of Story's Equity, sections 718 to 725, the general rule, with the exceptions thereto, will be found fully discussed, with reference to all but the very recent cases. And among the cases forming exceptions to the general rule, there is one stated of a contract for the sale of 800 tons of iron, to be paid for in a certain number of years by instalments, of which specific performance was decreed; for the reason, as supposed by the author, that, under the particular circumstances of the case, there could be no adequate compensation in damages at law ; for the profits upon the contract being dependent upon future events could not be correctly estimated in an award of present damages. And so in the case put by Lord Hardwicke, in the case of Buxton vs. Lister, 3 Atk., 385, and repeated by Judge Story, as an apt illustration; a man may contract for the purchase of a great quantity of timber, as a ship-carpenter, by reason of the vicinity of the timber, and this may be well known and under- stood on the part of the seller ; and in such case a specific performance would seem to be indispensable to justice. And so Mr. Pomeroy in his excellent work on Specific Performance of Contracts, sec. 15, p. ^'t. 2) AFFIRMATIVE CONTEACTS 55 20, states it as a well settled principle in the doctrine of specific per- formance, that a contract for the sale and delivery of chattels which are essential in specie to the plaintiff, and which the defendant can supply, while no one else can, will be specifically enforced. In such case the plaintiff could not be indemnified by any such amount of damages as he could recover at law. In this case the allegation is that the coal tar contracted to be sup- plied by the defendant is indispensabe to the business of the plaintiff, and that the latter cannot otherwise obtain a supply in the City of Baltimore, and that if the defendant were permitted to withhold the supply, the plaintiff would be subjected to great additional expense and labor in procuring the material from distant cities. This gives the material a special and peculiar value to the plaintiff in Baltimore, and makes it specially inequitable in the defendant to refuse to perforni its agreement. As was said by the Chancellor in Sullivan v. Tuck, supra, it would be impossible, or at all events extremely difficult, for a Court of law to give the plaintiff adequate damages, that is, to de- termine and measure the amount of damages which the plaintiff may sustain in the future, by the refusal to allow it to take away the material from the defendant's works, in fulfillment of the contract. The contract, therefore, according to the allegations of the bill, being one of a nature proper to be specifically enforced, the Court will interfere by injunction to restrain the defendant from otherwise dis- posing of the subject-matter of the contract, though the negative ob- Hgation not to otherwise dispose of the material may be only implied from the positive terms of the agreement. This principle is abundantly established by repeated decisions. Order affirmed, and cause remanded. O'NEIIvL V. WEBB. (Missouri Court of Appeals, 1898, 78 Mo. App. 1.) Ellison, J. This action is based on a bill in equity to compel de- fendant to transfer to plaintiff three shares of stock in the Webb City Ice & Storage Company. The trial court gave plaintiff a decree and defendant appeals. . . . 56 SPECIFIC PERFOKMANCE OF CONTRACTS (Part 1 In the first place the rehef sought here by plaintiff is questioned, viz : Compelling defendant to transfer to plaintiff three shares of his stock in the corporation so as to make plaintiff an owner of one half of the entire capital stock. It is contended that full relief may be had in damages. We grant that ordinarily specific performance of a contract for the transfer of corporate stock will be denied. But we think this a proper case for the relief asked. It is an exceptional case. It will be noticed that the contract contemplates not merely the trans- fer to defendant of three shares of stock, but that he shall transfer stock sufficient that plaintiff shall be the owner of one half of the entire stock. The words of the contract are "one half of all the stock" of the corporation. It so happens, in this case, that added to what stock plaintiff owned and which was retransferred to him by defendant as directed by the contract, it only required the transfer of three more shares to put plaintiff into the ownership of one half of all. But the chief value would not be the money value of the three shares, but rather the power and influence it would give plaintiff in the management and direction of the corporation. By becoming owner of one half the stock plain- tiff would be enabled to check any proposed management of the com- pany's affairs which he might think was detrimental. And so it ap- pears clear to us that this is not like a case where one should merely seek the compulsory transfer of some shares of stock, which would only have the effect of putting him into possession and ownership of such shares the loss of which might readily be made good by damages in the shape of the money value of such stock. We think, therefore, that the case is exceptional and that plaintiff has no adequate remedy at law. We have not been able to discover any reason for interfering with the decree of the trial court and hence affirm the judgment. All concur. shuMrt v. woodward. (United States Circuit Court of Appeals, 1909, 167 Fed. Rep. 47.) Sanborn, C. J. The complainants pray in their bill, and the orders challenged grant, a temporary injunction against the violation by the defendants of the contract of May 4, 1908. . . . ^^- 2) AFFIRMATIVE CONTEACTS 57 The specific performance of a contract by a court of equity is not a matter of right. It rests in the discretion of the court, not in its arbitrary whimiscal will, but in its sound judicial discretion informed and directed by the established principles, rules, and practices of equity jurisprudence. Hennessey v. Woolworth, 128 U. S. 438, 442, 9 Sup. Ct. 109, 32 Iv. Ed. 500. Nor are these principles and rules and this practice hard, fast, or without exception. They are rather advisory than mandatory, and the application of the rules and of their exceptions to each particular case as it arises is still intrusted to the conscience of the chancellor. Yet these principles and rules and this practice serve to inform the intellect and to enlighten the con- science, and by them the judicial discretion of the court must be guided. . . . The amusement company agreed by the fourth, seventh, eighteenth, and nineteenth paragraphs of the contract that it would supervise and control without charge, and that Woodward should manage for $50 per week, the Shubert Theater, subject to the orders and direc- tions of the Shuberts, that Woodward would approve the bookings of the theater, and that its funds should be deposited to the credit of the Shuberts' account by a treasurer appointed by them. Neither the amusement company nor the court, however, has the power to efficiently compel Woodward to do any of the things here required to be done by his personal services, because he is not a party to the contract, he has not agreed to do as the contract recites, and be- cause, if he had signed and agreed, the examination and approval of the bookings and the suitable management of the theater are personal acts whose rightful performance requires special knowledge and experience in the business of operating theaters, and the exer- cise of skill, discretion, and cultivated judgment, and in the end rests wholly in the will of Woodward. Courts of equity have no efficient means, and therefore will not ordinarily attempt, to constrain an individual to perform personal acts which require special knowl- edge and experience and the exercise of skill, discretion, and cul- tivated judgment. . . . Again, the enforcement of the specific performance of the con- tract in hand will necessarily entail upon the courts through many years the supervision and direction of a continuous series of acts, many of which will present the question whether or not they accord with the contract, such as, what bookings should be approved or dis- '•''^ SPECIFIC PEEFOEMANCE OF CONTEACTS (Part 1 approved, how many and what persons should be employed to operate the theater, how the intricate details of the business of the theater should be conducted, how its operation should be advertised, and many other unforeseen issues which the complicated performance con- templated cannot fail to raise. It is conceded that a court of equity has ample power to determine all these questions and to conduct this busi- ness by its receiver, or master, and that it will sometimes enforce the performance of contracts where the performance involves more in- tricate details, or longer periods of time, where the other equities of the complainant in the case, or the public interest, are controlling. But in the absence of such public interest, or such controlling equities, or of clear evidence that irreparable injury will probably result to the complainant if it withholds the relief sought, a court of equity does not constrain, and it ought not to compel, the enforcement of the specific performance of a contract which cannot be consummated by a speedy, final decree, but which involves the supervision of a con- tinuous series of acts which must extend through a long period of time and which will require the exercise of special knowledge, judg- ment, and experience. The brevity of time and the duty of the court to other litigants praying the determination of their suits ordinarily forbid a court to assume unnecessarily so burdensome a task. POWELL V. SANTA FE R. R. (Supreme Court of Missouri, 1908, 215 Mo. 339, 114 S. W. 1067.) ValIvIant^ P- J- ■ • • "After findings on the issues submitted to the jury had been reported, the court entered the following find- ing and judgment: . . . "In our opinion this case should be determined with respect to plaintiff's equity arising from the fact that when the railroad was first built, a subway was left for his use and he constructed his barns and fences with reference to that way. It appears that he has two barns immediately north of the track and an inclosure around them where he feeds his stock. Some three hundred feet away and on the south side of the track is the spring to which the stock go from the lots about the barns to get water. To use a grade crossing, Ch. 2) AFFIKMATIVE CONTEACTS 59 plaintiff will be compelled to reconstruct his fences and barns or pay ten dollars a month to a hand to watch his cattle as they go through the gates and over the grade crossing to get water. This will render his farming operations more irksome and expensive and his farm less valuable. There is some testimony that he might dig a pond on the north side of the railroad; but this testimony is accompanied by the statement of the witness that the pond would soon be filled with mud. It is apparent to any one that serious inconvenience and con- siderable loss will be thrown on the plaintiff if he is forced to do without the undergrade way. No testimony is before us by which we can compare the expense he would be put to in changing his present arrangements with the expense of the defendant in making an arched passage through the embankment. The railway company chose not to prove what the cost of the underground passage would be, though it was easy to prove. We are, therefore, left to our own judgment about the matter, which is that the expense of constructing an arch would be much less in the long run than the expense to the plaintiff in using the grade crossing, to say nothing of the incon- venience of doing so. Now, the company's having left a subway for the plaintiff from the first, and permitted him to use it for ten or twelve years and arrange his barns and fences with reference to it, gives him a clear equity to have the continued use of it, unless the damage to the defendant will be out of proportion to the benefit to him. The testimony of defendant's witness Saunders explodes the theory that a subway will be detrimental to defendant's property or dangerous to its employees or the public. We think the cost of build- ing it will not be inordinate. . . . The right that a farmer has to the establishing of a crossing where a railroad divides his land, is given by statute and the statute itself seems to come naturally in response to a demand of right and justice. The statute is, to a considerable extent, general in its terms, leaving many details to be adjusted according to the particular situa- tion and circumstances of the particular case, and this adjustment must be made by the court according to the dictates of an intelligent sense of justice, regarding the rights and duties both of the railroad company and those also of the landowner. The statute has given, to neither the one nor the other the right to dictate the location or manner of construction; therefore, when the parties cannot agree, the court must exercise its best judgment and decide the controversy with due "*^ SPECIFIC PEE.FOEMANCE OF CONTEAGTS (Part 1 regard to the rights of both. AVe think that the opinion above-herein copied shows that the Court of Appeals understood and appreciated the situation and correctly applied the law to the facts of the case; therefore, we adopt that opinion as the opinion of this court. . . . HAMPER V. VIRGINIAN RY. CO. (Supreme Court of Appeals of West Virginia, 1915, 76 W. Va. 788; 86 S. E. 919.) Miller, J. The covenant in plaintiff's contract of September 20, 1902, and in their deed of February 23, 1903, a part of the con- sideration for their grant of a right of way and depot grounds to the Deepwater Railway Company, defendant's predecessor in title, and specific execution of which is sought by the bill, is as follows: "It is further agreed that said Railway Company is to erect on the land of the parties of the first part, a depot, for the general accommodation of the public. The said depot is to be built and operated within one year from the completion of said R. R.'' (1) The first proposition, that a court of equity will not decree specific performance of such a contract, is not one of general applica- tion. A correct statement of the rule, according to reason, and the great weight of authority is, that such contracts are not void per se and will be specifically enforced, unless to do so would be to subor- dinate public to private interests, or would so hamper the railway company that it would not properly discharge its duties to the pub- lic in general. . . . (2) It is true that specific performance is not always a matter of right, and rests in the sound, not arbitrary discretion of the court ; but specific performance will not be withheld when no hardship or injustice will result, and where an action at law for damages will not be adequate. We do not think the case presented here can be relievable at law as completely and adequately as by specific perform- ance. How could the plaintiff's damages be measured? Not only is valuable property involved, but the service of the railway company to the public in general, and to plaintiffs in particular, and for an Ch. 2) AFFIRMATIVE CONTEACTS 61 indefinite time, not inconsistent with the public interests, is also involved. How could damages of this character be adequately meas- ured in a court of law? Our decisions say, generally, that the rem- edy at law must be as adequate and complete as in equity in order to deprive one of equitable relief. . . . We are of opinion that the decree should be so modified as to continue the same in force so long and so long only as consistently with defendant's duties to the public in general, and compliance there- with shall not have become unduly burdensome and unjust, and the de- fendant may reasonably be required to maintain and operate the depot at Harper, and that when in accordance with these principles it can no longer reasonably be required to continue the maintenance and op- eration of said depot, the coercive power of the court may be with- drawn and the parties left to the pursuit of such legal remedies as they may then have. . . . As so modified we are of opinion, therefore, to affirm the decree. WESTERN WAGON AND PROPERTY CO. v. WEST. (Supreme Court of Judicature (1893) 1 Chancery Division, 271.) Chitty, J. . . . The Plaintiffs are the assignees for value of the benefit of a contract to make a loan of money at interest upon security. Having given notice of their assignment, they claim to recover from the defendants the iSOO which the defendants lent and paid to Pinfold under the contract. ... A Court of Equity will not decree specific performance of a contract to make or take a loan of money, whether the loan is to be on security or not. This was decided by Sir John Romilly in Rogers v. ChalHs (1), and Sichel V. Mosenthal (2), and these decisions were approved of by the Privy Council in Larios v. Bonany y Gurety (3). In other words, a Court of Equity will not compel the intended lender to make, or the intended borrower to take the loan, but will leave the parties to such a con- tract to their remedies by action at common law for damages. It (1) 27 Beav. 175. (2) 30 Beav 371. (3) L. R. 5 P. C. 346. ^^2 SPECinO PEKFOKMANCE OF CONTKACTS (Part 1 follows, then, that Pinfold could not have maintained a suit in equity against the defendants to compel them to lend the £500, and that, in- asmuch as the plaintiff's as assigns of Pinfold, are in no better position than Pinfold himself, the plaintiffs cannot maintain such a suit. STROHMAIER v. ZEPPENFELD. (Missouri Court of Appeals, 1877, 3 Mo. App. 439.) Hayden, J. This is a bill in the nature of a bill in equity, asking that the defendant may be compelled to execute a renewal of a lease. A former owner of the leased lot had leased it to the respondent for a term of ten years, and in the lease was the following covenant : "And it is covenanted and agreed by and between the said parties that, at the end of the term hereby demised, this lease shall be renewable for the further term of ten years, provided that the party of the second part giving [give] to the party of the first part notice in writing of his or their wish to renew the same, three months at least before the end of the term. And the lease so renewed shall contain all the covenants, agreements, clauses, and stipulations herein con- taind, with this exception only: The annual rents to be reserved on the renewal shall be six per centum upon the value of the demised premises, exclusive only of the improvements thereon placed by said lessee, or his legal representatives, if any, which value shall be es- timated by two disinterested freeholders of the city of St. Louis, one of whom shall be selected by the party of the first part and the other by the party of the second part," etc. . . . It is well settled that a court of equity will not specifically enforce a contract for arbitration. Where arbitrators are to act, the court will neither compel their appointment, nor, when they are appointed, will the court compel them to act. Agar v. Macklew, 2 Sim. & Stu. 418; Milnes v. Gery, 14 Ves. Jr. 400; Story's Eq. Jur., sec. 1457. But where, as in the present case, the parties have by a written contract definitely agreed upon, all the substantial terms, equity will not per- mit one of them to set up his own wrong as a defense to the non- performance of the contract, and thereby to keep possession of the oil. 2) AFFIRMATIVE CONTRACTS 63 property which the first party has laid out in the expectation that the contract would be performed. In such a case, when the defendant refuses to comply with his contract, he subjects himself to the op- eration of those remedies which courts of equity afford. Having broken the contract himself, it does not lie in his mouth to say the contract cannot be performed because it provides that one element in ascertaining the rent is a valuation by persons to be selected by the parties. The answer to this is that, as the owner of the ground re- ruses to perform the contract precisely as made, and thereby works a wrong to the lessee, for which the latter has no adequate legal remedy, a court of equity, to prevent a failure of justice, applies its own remedy to the breach of contract. In such cases a court of equity does not proceed upon the basis of enforcing the contract exactly as made by the parties, but upon the theory that, while in all important respects the contract can be specifically performed as the parties made it, in some minor matter where, through the wrong of the party resisting, it cannot be exactly enforced, equity, in pursuance of its principle of substituting compensation for performance, where it is necessary in order to attain the ends of substantial justice, will apply its own remedies to the wrong, and thus secure that which, in essentials, is a performance. The real difficulty lies in deciding what contracts are so uncertain that equity will not apply this rule of compensation to them. On the one hand, equity cannot make contracts for the parties; on the other, it will not let the defendant escape the consequences of his obligation where only some insignificant detail is in doubt. While the rule itself is admitted, there is a conflict, in the older authorities, as to what terms are of the essence of a contract. ... In Hall v. Warren, 9 Ves. Jr. 605, where the valua- tion was to be by appraisers appointed by the parties, the master of the rolls, Sir William Grant, said : "Nothing appears in the acts to be done so purely personal that they cannot be supplied without the intervention of the mind and the act of the party; for they are to be done with reference to a given mode; and, with regard to ascer- taining the value, a mode equivalent and as effectual and fair may be found." Whatever may be said as to the older cases, this appears to be an accurate expression of the principle upon which the more recent cases have proceeded. In Judson v. Judson, 19 Eng. Law & Eq. 547, where the contract provided that each party should appoint a valuer, and the valuers appointed could not agree, and the vendor 64 SPECIFIC PEBFOEMANCE. OF CONTBACTS (Part 1 then refused to join in any scheme for a valuation, the court decreed specific performance. The vice-chancellor said : "The sixth condition stated that the purchaser should take the property at a valuation, the essence of the stipulation not appearing to be the mode in which the valuation was to be made." Bunnell v. Ketaltas, 16 Abb. Pr. 205; Kelso V. Kelly, 1 Daly, 419, where the authorities are reviewed with much care. It seems clearly the doctrine of the later cases that equity will, to prevent a failure of justice, apply its own remedies, and thus, where the substantial terms of a contract are agreed upon, arrive approximately at the minor details and then specifically enforce the contract. Parker v. Taswell, 2 De G. & J. 559; Norris v. Jackson, 3 Gif. 396; Backus' Appeal, 58 Pa. St. 186, 193. This rule has an a-fortiori application where there is a part performance, or where the party seeking to enforce the contract has laid out money or property in the faith that the other party will keep his covenants. It would be peculiarly hard if relief should be denied to the plain- tiff in the present case. Since the decision of the Supreme Court of this state in the case of Arnot v. Alexander, 44 Mo. 25, persons taking leases with covenants similar to that in the present lease have had, in some sort, a right to expect that courts of equity in this state will enforce them. The clause drawn in question in that case is not, in- deed, precisely similar to the one here in dispute. But the court argued from the certainty of a covenant of the present kind to the covenant there in question. Stating it as an established proposition that a court of equity would hear evidence and fix the amount of the rent, in a case where the amount for the renewal term is left to be determined by the valuation of third parties, the Supreme Court, passing over the later cases from Vesey, Jr., presented to its con- sideration, sanctioned the doctrine of Sir William Grant in Hall v. Warren, which has been quoted above. Wherever a rule is laid down which may operate as a rule of property, the courts ought not to de- part from that rule without very strong reasons. It is believed that there are many leases with covenants similar to that contained in the present. The cases of Biddle v. Ramsey, 52 Mo. 153, and Hug v. Van Burkleo, 58 Mo. 202, are not in conflict with the recent cases which we have cited. As has been shown, a court of equity does not en- force the contract as made by the parties, in such cases as the present. On the contrary, equity proceeds upon the basis that the contract. oil. 2) NEGATIVE CONTEAOTS. 65 as made, cannot be enforced, and applies its own remedies to the violation of its rules. The relief given is of a purely equitable nature, and the ground on which the plaintiff is entitled to it is that, while he has a clear right of action, he has no adequate remedy at law. In the case of a covenant like that now in question, it is obvious that it is not of the essence of the contract that the valuation should be made by "disinterested freeholders" rather than by a court of equity. That is an immaterial detail, and a mode as effectual and fair may be found. Accordingly, the court should hear evidence, and upon the case as made, and upon the facts as ascertained from the evidence, specific performance may be decreed. SECTION III. NEGATIVE CONTRACTS. GUARD V. WHITESIDE. (Supreme Court of Illinois, 1851, 13 III. 7.) This was an action of debt brought in the Circuit Court of Hardin County, upon an injunction bond. The appellants filed a plea in bar, stating that on the 10th day of April, 1851, it was agreed between the parties to the suit that if the appellants would give the appellee a horse worth seventy-five dollars he would not bring suit on the bond until the 25th of December, 1851 ; that the horse was delivered in pursuance of this agreement. To which plea there was a demurrer, which was sustained. . . . Treat, C. J. The defendants pleaded in bar of the action, that, before the commencement thereof, the plaintiff agreed with one of them to forbear the collection of the bond until the 25th of Decem- ber, 1851, if said defendant would pay and deliver a certain horse at the price of $75, which horse was then deHvered. The agreement relied on in the plea must be considered as an undertaking by the plaintiff not to sue on the obligation within a specified time. A cove- nant never to sue is regarded as an absolute release. It is so held to avoid circuity of action; for if the covenantor should be permitted 1 Eq.— 5 f>6 SPECIFIC PERFOBMANCE OP CONTEACTS (Part 1 to sue in violation of his covenant and recover, the other party, in an action for a breach of the covenant, would recover precisely the same damages. But a covenant not to sue within a limited time can- not be pleaded in bar of an action brought before the time has ex- pired (Evans V. Lohr, 2 Scam. R., 511; Payne v. Weible, 30 111. R., 166; as part failure of consideration, Hill v. Enders, 19 111. 165; Morgan v. Fallenstein, 27 111. R., 32; Parmelee v. Lawrence, 44 111. R., 405). The remedy of the party is a direct action on the covenant. The law on this subject is too well established to admit of a doubt or discussion. It is only necessary to refer to some of the principal authorities. Thimbleby v. Barron, 3 Mees. & Wels, 210; Winans v. Huston, 6 Wend. 471 ; Perkins v. Oilman, 8 Pick. 229 ; Walker v. McCulloch, 4 Greenl. 421 ; Ward v. Johns, 6 Munf. 6; Lane v. Owings, 3 Bibb, 247. There is a very satisfactory reason why a plea in bar of the action should not be sustained. A judgment for the de- fendant, on such a plea, would forever conclude the plaintiff from bringing another action. There would seem to be a propriety in al- lowing a defendant to set up the covenant as a defense to the further maintenance of an action brought in violation thereof — such a defense as would defeat the particular action, without concluding the plain- tifif from bringing another after the time limited had expired. But we must be understood as expressing no opinion upon the question, whether the rules of the law will tolerate a defense of this character. The judgment is affirmed. JAcks 'SON V. BYRNES. (Supreme Court of Tennessee, 1899, 103 Tenn. (19 Pickle) 698, 54 S. W. 984.) Wilkes, J. Jackson sold to Byrnes a livery stable and outfit for $1,500, situated in the town of Cedar Hill, Robertson County. The purchaser insists that as a part consideration for the contract, Jackson agreed that he would not engage in the same business at that place so long as he, the purchaser, continued in the business. The contention is that he breached this agreement by letting horses and wagons to hire. The plaintiff sued for this breach, and there was a trial before the court and a jury, and a verdict and judgment for $400, and defendant has appealed and assigned errors. Cll. 2) NEGATIVE CONTRACTS. 67 As the first assignment of error, it is said that such contract is contrary to pubHc poHcy, and should not be enforced. In this connection it is said there is a variance between the allega- tion in the declaration and the evidence; that the declaration alleges that the defendant was obligated not to enter into the business at Cedar Hill, while the evidence was to the effect that he would not enter irito the business anywhere. We think this contention not well made, and taking the evidence as a whole, it clearly appears that Cedar Hill was the place of the location of the business, and that the contract did not relate to doing business anywhere else. We do not think such an agreement is so opposed to public policy as to be void. Such contracts have been upheld and enforced by the courts. Beach on Modern L,aw of Contracts, Vol. 2, Sec. 1569; Clark on Contract, pages 448, 449. It is well to remark in this connection that the case is not simply one of a sale of good will. A sale merely of good will does not, of itself, imply a contract on the part of the vendor to not engage again in a similar business. Lord Eldon defined "good will" as simply a possibility that the old customers would resort to the old place. But this definition is, per- haps, too restricted. Slack v. Suddoth, 102 Tenn. 375. Suffice it to say that an obligation not to enter into a similar busi- ness will not be implied from a mere sale and transfer of good will, and the present is not such a case, but one where there was an ex- press parol agreement collateral with the conveyance of the property, but not embodied in it, not to enter into competition in the same busi- ness and territory as the plaintiff did business in so long as he con- tinued in it. The next assignment is as to the measure of damages. The court charged the jury that the proper measure was the difference in value of the property with the good will and without competition of the defendant, and the value of the property without the good will and with the competition of the defendant. In the same connection the trial Judge instructed the jury that they must look to the evidence and see if there was any competition, and its character and extent, whether full or slight, and the extent to which the property was depreciated from the purchase price as agreed on and as shown by the proof, as the damages plaintiff would be entitled to recover. We do not understand the trial judge to mean that a single act of com- ^8 SPECIFIC PEEFOBJMANCE OF COjSTTEACTS (Part 1 petition would be a breach of the contract, and he did not intend to lay down two rules, but only to instruct the jury as to how they should arrive at the difference in value with and without the competition. But it is said the rule itself is erroneous, and that the proper rule is that the plaintiff can only recover such actual damages and loss as he may be able to show up to the bringing of the suit. Authorities are cited upon both theories. . . . The court is of opinion that in a case like the present, and under the facts, the plaintiff's proper remedy is to enjoin the defendant from engaging in the competitive business contrary to the agreement. This would, so far as results go, be to specifically enforce the contract. If, however, the plaintiff resort to an action for damages for a breach, only such actual damages as have been sustained up to the bringing of the suit should be recovered. If the competition is continued, injunction may also be resorted to. It is practically impossible to determine the difference in value of the property or contract with and without the proviso against com- petition. No witness could know, and the plaintiff himself could not state how long he would continue in business, and, in the absence of this fact, there could be no tangible basis for an estimate of dam- ages. No sum is fixed in this case as liquidated damages, and there is no allegation that any specific amount was given for this prohibition, but the statement is simply to the effect that it was a part of the con- sideration. For these reasons we are of opinion there is error in the judgment of the court below, and it is reversed and the cause remanded. Ap- pellee will pay costs of appeal. PEABODY V. NORFOLK. (Supreme Court of Massachusetts, 1868, 98 Mass. 452.) Gray^ J. It is the policy of the law, for the advantage of the pub- lic, to encourage and protect invention and commercial enterprise. If a man establishes a business and makes it valuable by his skill and attention, the good will of that business is recognized by the law as Ch. 2) NEGATIVE CONTBACTS. 6& property. If he adopts and publicly uses a trade-mark, he has a remedy, either at law or in equity, against those who undertake to use it without his permission. If he makes a new and useful inven- tion of any machine or composition of matter, he may, upon filing in a pubHc office a description which will enable an expert to under- stand and manufacture it, and thus affording to all persons the means of ultimately availing themselves of it, obtain letters patent from the government securing to him its exclusive use and profit for a term of years. If he invents or discovers, and keeps secret, a process of manu- facture, whether a proper subject for a patent or not, he has not indeed an exclusive right to it as against the public, or against those who in good faith acquire knowledge of it; but he has a property in it, which a court of chancery will protect against one who in violation of contract and breach of confidence undertakes to apply it to his own use, or to disclose it to third persons. The jurisdiction in equity to interfere by injunction to prevent such a breach of trust, when the injury would be irreparable and the remedy at law inadequate, is well established by authority. In the earliest reported case of this class, Lord Eldon indeed re- fused to grant an injunction against imparting, in violation of an agreement, the secret, not only of a patent which had been obtained and had expired, and which the whole public was therefore entitled to use; but also that of making a certain kind of pills, for which no pat- ent had been procured ; and stated, as a reason for the latter, that, if the art and method of preparing them was a secret, the court could not, without having it disclosed, ascertain whether it had been in- fringed. Newberry v. James, 2 Meriv. 446. But the same learned chancellor afterwards considered the general question as still an open one, whether a court of equity would restrain a party from divulging a secret in medicine, which was not protected by patent, but which he had promised to keep ; and in such a case dissolved an injunction of the vice-chancellor, upon the sole ground that the defendant made af- fidavit that the secret was not derived from the plaintiff. Williams v. Williams, 3 Meriv. 157. And in a later case he unhesitatingly granted an injunction against one who by the terms of his agreement with the plaintiff was not to be instructed in the secret, and who had obtained a knowledge of it by a breach of trust. Yovatt v. Winyard, 1 Jac. & Walk. 394. 70 SPECIFIC PEEFOEMAXCE OF COXTBAOTS (Part I Sir John L,each decreed, in one case, specific performance of an agreement by a trader to sell the good will of a business and the ex- clusive use of a secret in dyeing; and, in another, an account of the profits of a secret for making a medicine against a son of the in- ventor, holding it in trust for his brothers and sisters. Bryson v. Whitehead, 1 Sim. & Stu. 74; Green v. Folgham, lb. 398. In a more recent case, Morison, the inventor and sole proprietor of a medicine, for which no patent had been obtained, entered into part- nership with Moat, to whom he communicated the secret of making the medicine, but did not make the secret a part of the assets of the partnership, and reserved it to himself as against all other persons, and Moat covenanted not to reveal it to any person whomsoever; by subsequent agreement Morison's sons and a son of Moat were ad- mitted as partners in the business ; and the secret was surreptitiously obtained from Moat by his son. After the death of both the origi- nal parties, on a bill brought by Morison's sons, who were also legatees of the secret, against Moat's son, Vice-Chancellor Turner, in an elaborate judgment reviewing all the English authorities, granted an injunction restraining the defendant from using the secret in any manner in compounding the medicine; and refused to restrain him from communicating the secret, simply for want of any allegation or evidence of an intention to communicate it. Morison v. Moat, 9 Hare, 241. The defendant appealed; but the order was affirmed; and Lord Cranworth, delivering the opinion of the court of appeal, said: "The principles that were argued in this case are principles really not to be called in controversy. There is no doubt whatever, that when a party who has a secret in trade employs persons under a contract express or implied, or under duty express or implied, those persons cannot gain the knowledge of the secret and then set it up against their employer." 21 L. J. (N. S.) Ch. 248. . . . The contract between Peabody and Norfolk was, on the part of Norfolk, to serve Peabody as engineer in his jute factory so far as required, and particularly in the construction and running of the machinery, and not to give any third person information directly or indirectly in regard to any portion of the machinery, but to "consider all of said machinery as sacred to be used only for the benefit of said Peabody or his assigns, and by all means in his power prevent other persons from obtaining any information in regard to it such Oh. 2) NEGATIVE CONTEACTS. 71 as would enable them to use it ;" and, on the part of Peabody, to pay Norfolk an annual salary "in full compensation for the above de- scribed services," provided he should render his services acceptable to Peabody as he had theretofore, and Peabody or his assigns should continue the business of manufacturing jute goods. The "above described services" clearly include, not only the affirmative promise to serve as an engineer, but the negative promise not to disclose the secret, and to do his best to conceal it; and the salary is a legal and sufficient consideration for all the agreements of Norfolk. The plaintiffs do not ask for specific performance of Norfolk's promise to serve as engineer. It is therefore unnecessary to consider whether that promise is limited in point of time or determinable at pleasure, or is capable of being specifically enforced. Whatever may be the limit or effect of his obligation to serve, he is bound by his con- tract never to disclose the secret confidentially imparted to him during the term of his actual service. And this part of his agreement may be specifically enforced in equity, even if the other part could not. Lumley v. Wagner, 1 De Gex, Macn. & Gord. 604. The bill alleges that the invention and the process of manufacture have been kept secret, and that the secret is the property of the original plaintiff and of great value to him, and was confidentially imparted to Norfolk ; and on demurrer these allegations must be taken to be true. Although the process is carried on in a large factory, the workmen may not understand or be intrusted with the secret,^ or may have acquired a knowledge of it upon the like confidence. A secret of trade or manufacture does not lose its character by being confi- dentially disclosed to agents or servants, without whose assistance it could not be made of any value. Even if, as is argued in sup- port of the demurrer, the process is liable to be inspected by the as- sessor of internal revenue or other public officer, the owner is not the less entitled to protection against those who in, or with knowledge of violation of contract and breach of confidence, undertake to dis- close it or to reap the benefit of it. The danger of divulging the secret in the course of a judicial investigation affords in our opinion no satisfactory reason why a court of equity should refuse all remedy against the wrongdoers. The supplemental bill alleges, and the demurrer admits, that Cook, with notice of the relations between Peabody and Norfolk, has tnade arrangements to have the secret communicated to him by Norfolk,. 72 SPECIFIC PEKFOKMANCE OP CONTEAOTS (Part 1 and together with him to use it for their own benefit. Upon such a state of facts, Cook has no better equity than Norfollc. The executors of the will of the original plaintiff succeed to his rights, and appear on the allegations of the bills to be entitled to the relief prayed for. Morison v. Moat, above cited. Demurrer overruled. DALY V. SMITH (New York Superior Court, 1874, 38 N. Y. Sup. Ct. Rep. 158.) FrEBdman, J. This is a motion on the part of the plaintiff for the continuance, during the pendency of the action, of an injunction, heretofore granted, preliminarily restraining the defendant, Fanny Morant Smith, from performing as an actress upon the stage of the Union Square Theater. The papers on which the motion is based show, among other things, that on February 11, 1874, a contract in writing was entered into between the plaintiff and Fanny Morant Smith, by which the latter covenanted and agreed, among other things, to act, to the best of her ability, in theatrical performances, on the stage of plaintiff's theater, during the seasons of 1874, 1875, and 1876, all such parts and charac- ters as the plaintiff might direct, and that she would not act at any other theater or place in the city of New York, from the day of the date of said contract until the determination thereof, without the written consent of the plaintiff. The plaintiff then avers a breach of said contract on her part, by accepting an engagement to play dur- ing the ensuing season of the Union Square Theater, and allowing her appearance at that place to be publicly advertised, and after setting forth various alleged equities, which it is claimed, on his part, en- titled him to an injunction, and which will be noticed hereafter, he prays that she may be enjoined from continuing the breach. The sole object of the action, in which her husband has been joined as a party defendant, is to have her thus restrained by the decree of this court, and it is clear, therefore, that unless an action for that purpose alone can be maintained, the court is without jurisdiction to restrain her during the pendency thereof. Cll. 2) NEGATIVE CONTEACTS. 73' The very first question to be considered, therefore, is whether the action will lie as brought. It is conceded, by both sides, that the action could not be maintained for the strict performance of the whole contract, if it had been brought in that form, that in such case there would be no power in the court to compel, either by order or final decree, the defendant to act. The question, whether or not a court of equity will interfere by injunction to prevent a breach of a contract for personal services, or whether the complainant must look to his damages at law as his sole redress, has been frequently, and on several occasions quite elab- orately, discussed both in England and in this country. On a cursory reading the authorities may seem somewhat conflicting, but a careful perusal of them in the light of the facts before the court on the several occasions, can leave no doubt as to the existence of the power. . . . In the still later case of Lumley v. Wagner (1 De Gex, MacN. & G. Ch. 604), decided in 1852, in which the plaintiff prayed that the defendant Johanna Wagner, who had contracted to sing and perform at his theater, and not to use her talents at any other, might be re- strained from signing or performing at another theater in violation of her contract. The Lord Chancellor re-examined the jurisdictional question involved at great length, upon both principle and authority, discussing and reviewing many cases, and he concluded by saying that he wished it to be distinctly understood, that he entertained no doubt whatever, that the point of law had been properly decided in the court below, where the jurisdiction had been assumed and exercised. He also entered into a minute examination of the facts of the case, and upheld the injunction on the merits as well as on the point of law raised. In the course of his remarks, he expressly overruled Kemble V. Kean, and Kimberly v. Jennings. The criticism of Lumley v. Wagner, in which Lord Selborne, L. C, indulged in Wolverhampton & Walsall Railway Co. v. London & Northwestern R. R. Co. (decided in 1873, and reported in 16 L. R. Equity Cases, 433), is not an indication that the existence of the power contended for will ever be questioned by the courts of England, hereafter. In that case, the complainants sought by means of an in- junction to indirectly compel the defendant to use a certain railway line as they had agreed. The defendants insisted that as the bill sought to restrain the breach of a particular clause of an agreement of which as a whole, the court will not enforce specific performance, and there 74 SPECIFIC PEBFOEMANCE OF CONTEAOTS (Part 1 being no negative stipulation in the agreement, capable of being isolat- ed, so as to form a distinct contract, as in L,umley v. Wagner, the court could not interfere, but should leave the parties to their remedy at law. It was in reply to this claim which involved a concession of the existence of the jurisdiction in case of the presence of a negative clause, that Lord Selborne, assuming that in Lumley v. Wagner, the Lord Chancellor had placed his decision solely upon the presence of the negative clause, made the remark that in that case the jurisdiction of the court had been enlarged on a highly artificial and technical ground, and that it was the safer and the better rule to look in all such cases to the substance and not to the form. "If," said he, "the sub- stance of the agreement is such that it would be violated by doing the thing sought to be prevented, then the question will arise whether this is the court to come to for a remedy. If it is, I can not think that ought to depend on the use of a negative rather than an affirmative form of expression. If, on the other hand, the substance of the thing is such, that the remedy ought to be sought elsewhere, then I do not think that the forum ought to be changed by the use of a negative rath- er than an affirmative. "Acting upon the rule thus laid down, and com- ing to the conclusion that the complainants had a substantial equity. Lord Selborne assumed jurisdiction, though there was no negative clause, and overruled defendants demurrer to the complaint. . . . The authorities so far considered show conclusively that in England, at least, the jurisdiction of courts of equity over suits like the one at bar, is now too firmly established to be again shaken. Nor has such jurisdiction been seriously questioned in this State. . . . And in the recent case of DePol v. Sohlke (7 Rob. 280), Mr. Justice Jones assumed throughout that the right to issue an injunction to prevent the breach of a covenant to render personal services, on the ground that the performance of the act would produce irreparable damages, could not well be questioned. But he denied the motion for an injunction on the ground that the plaintiffs did not then have, and were not likely to have for some time to come, an establishment in active operation, that, therefore, no custom could, for the time being, be withdrawn from them, and that consequently, no damages were resulting, or could be anticipated to result, for some time to come, from the act which plaintiffs sought to enjoin. So, upon principle, can I conceive of no reason why contracts for theatrical 'performances should stand upon a different footing than Cfh- 2) NEGATIVE CONTKACTS. 75 Other contracts involving the exercise of intellectual faculties; why actors and actresses should by the law of contracts, be treated as a specially privileged class, or why theatrical managers who have to re- ly upon their contracts with performers of attractive talents to carry on the business of their theaters, should, with the large capital neces- sarily involved in their business, be left completely at the mercy of their performers. On the contraiy, I am of the opinion that actors and actresses, hke all other persons, should be held to a true and faith- ful performance of their engagements, and that whenever the court has not proper jurisdiction to enforce the whole engagement, it should, like in all other cases, operate to bind their consciences, at least as far as they can be bound, to a true and faithful performance. As pointed out by Judge J. F. Daly, in Hayes v. Willio (11 Abb. Pr. N. S. 167), and his remarks upon this point are entitled to respect, not- withstanding the fact that his decision has been reversed upon another point, the resort to actions at law for damages for a sudden desertion of the performers in the middle of their season, will, in most cases fail to afford adequate compensation; and it is not always that the manager is deprived of his means of carrying on his business, but that his performers, by carrying their services to other establishments, deprive him of the fruits of his diligence and enterprise, increase the rivalry against him, and cause him irreparable injury. If, there- fore, such a manager comes to a court of equity and makes proof of these facts and circumstances, showing, also, that the contract upon which he relies is a reasonable one, that he is in no wise to blame for its breach by the defendant, and that he has no adequate remedy at law, upon what principle of justice or of common sense is he to be told that he must, nevertheless, seek his remedy at law, and take the chance by proving his damages by legal evidence before a jury. Of what benefit would even a verdict be to him in case the defendant is wholly insolvent? Is it not an old and fairly settled principle of equity jurisprudence, that just because there is in such a case no adequate remedy at law, it is the office and the duty of equity to step in to prevent a failure of justice? In the language of Lord Chancellor St. Leonards, a judge would desert his duty who did not act up to what his predecessors have handed down as the rule for his guidance in the administration of such an equity. Suffice it, therefore, to say, that upon principle as well as upon authority, I am fully persuaded that this court does possess the power 76 SPECIFIC PEEPOEMANCE OF CONTEACTS (Part 1 and jurisdiction which has been invoked by the plaintiff. At the same time, I am well aware that there is no branch of equitable jurisdiction which requires more discretion in the exercise of it, than the one that has been here considered. It remains, therefore, to be seen whether the plaintiff shall have the benefit of it on the merits of his case. The plaintiff shows that the defendant, Fanny Morant Smith, is a distinguished actress and a great artistic acquisition, both in name and dramatic service, to any theater; that, therefore, for several seasons past he considered it important to secure her professional services for his theater, and did secure them, that the last contract for such seasons expired in the month -of June last ; that before the expiration of that contract, to wit, on the Uth of February last, the new contract was entered into under which the present controversy has arisen; that the last named contract covers the seasons of 1874, 1875 and 1876, each season to commence on or about September 1 of each respective year, and to terminate on or about June 15 of the following year, and that by it Fanny Morant Smith, in consideration of a weekly salary of one hundred and thirty dollars, to be paid to her during the first season, and a like salary of one hundred and thirty-five dollars to be paid to her during the second and third seasons, payment to be made on Monday, at noon, of each week, bound herself to act, to the best of her ability, in the performances to be given during the said seasons, all such parts and characters as the plaintiff might direct, and to con- form to and faithfully obey certain rules of plaintiff's theater, referred to in, and made part of said contract, and not to act at any other theater in the city of New York, from the date of said contract until the de- termination thereof, without the written consent of the plaintiff. The contract also shows that each week is to include such rehearsals as may be ordered by the plaintiff, without any extra payment therefor. The plaintiff further shows that he made such contract, as the de- fendant Fanny Morant Smith well understood at the time, because of his desire, first to secure her dramatic service, secondly her name, and thirdly to prevent her acting elsewhere in New York without his permission, and obtaining eclat for a rival theater; that the latter is always an essential reason with managers, and is well understood by every actor and actress, as it was understood by the defendant; that relying on said contract, he announced her in all the daily papers in the city of New York, and widely throughout the United States, as a ^•'ll- 2) NEGATIVE CONTBAOTS. 77 member of his company for this year's season, to commence August 25 ; that a rehearsal for the performance to be given on that day was ordered for Saturday, August 15, that she was notified to attend the same, but that she refused ; that he has substantially selected and pre- pared those plays which are to be presented up to the close of the said season, and in doing so has relied on her services, and has man- agerially distributed and prepared many parts for her to perform therein; but that in violation of her contract and against plaintiff's express prohibition, she entered into an engagement to play during the ensuing season at the Union Square Theater, a rival to plaintiff's theater, and that with her consent she is publicly announced to appear there. And finally the plaintiff shows that it will be impossible to replace her by any other artist at this date, inasmuch as engagements are made in the spring ; that he will therefore be irreparably damaged and injured in his business, not only by her departure, but also by her appearance and performance at the rival establishment and that a computation of the damage thus resulting to him in loss of receipts and otherwise will be utterly impossible in an action at law. None of these allegations have been denied, or attempted to be denied, by the defendant, Fanny Morant Smith, except the allegation that the plaintiff has selected parts for her, and in respect to that, she only avers generally, that she has no knowledge, and does not believe the fact to be as stated by the plaintiff, which can not be held to amount to a denial, especially as she admits to have been summoned to a rehearsal, and to have refused not only to attend, but even to look at the role assigned to her. Nor has the force of any of the said allegations of the plaintiff been weakened by any allegation on her part, unless it be by the allegations that she notified the plaintiff, some time after the execution of the contract, of her intention and desire to cancel the same, and that she is pecuniarily able, to the extent of twenty thousand dollars, in real estate, to respond in any damages he may recover against her at law. Upon the whole case, as made by the plaintiff, the facts thus averred by her, even if true, are quite un- important. So, when the contract is scrutinized in its entirety, and . with due regard to its nature and the situation, and the prior dealings of the parties, nothing can be found in it which could be construed into a hardship upon her. Even the fact that the prohibition runs from the date of the contract, and not from the commencement of the 78 SPECIFIC PERFORMANCE OP CONTRACTS (Part 1 regular season of 1874-1875, is not an unreasonable circumstance in this case, however unreasonable and inequitable it might be in others. It has been conceded by both sides, that the defendant, Fanny Morant Smith, is not only a great actress, but that she is also a shrewd lady of great business capacity, and mature age and judgment, and it is therefore safe to assume that, in the light of her past experience with the plaintiff, she made the best bargain for herself that could be got under the circumstances. Nor does she claim that the contract is void on grounds of public poHcy, as being in restraint of trade. On the contrary, the learned counsel who represents her, admits that such is not the fact. The plaintiff has, therefore, made a case as strong as Lumley v. Wagner, in all respects, and in some respects even stronger, and he is entitled to his injunction, unless the defendant, Fanny Morant Smith, establishes an affirmative defense. . . . Upon full consideration of all the questions arising in this case, as presented by the affidavits of the parties, I am entirely satisfied, not only, that the plaintiff has made out a case which calls strongly for the interposition of the equity powers of this court, but also that the de- fendant, Fanny Morant Smith has no defense on the merits. This brings me to the last question involved. The parties evidently fore- saw that differences might arise between them during the life of the contract, and so careful were they, that they provided even for the contingency which has arisen in this case. The contract says, that if the defendant, Fanny Morant Smith, should refuse to fulfill her part, and should attempt to perform at any other theater before the termi- nation of her agreement with the plaintiff, the plaintiff may by legal process or otherwise, restrain her from so performing, on payment to her during such restraint of a sum equal to one-quarter of the salary to be paid to her under the contract in lieu of the said, or any other, salary under the agreement during the period covered. I refrained from noticing this clause at an earlier stage, because parties can not confer jurisdiction by stipulation. But as the jurisdiction exists, as I have already shown, wholly irrespective of the clause, it was com- petent for the parties to agree upon the terms of restraint in a proper case, and as this is a proper case for an injunction, irrespective of said clause, I have no inclination to interfere with the arrangement which the parties saw fit to make. The plaintiff evidently considered that, though in case of disagreement, he could not compel the defendant, Ch. 2) NEGATirE CONTEACTS. 79 Fanny Morant Smith to act, it was worth about thirty-three dollars a week to him to keep her from constituting an attraction for a rival establishment, and she, having agreed to it, has no cause of complaint, for her restraint is not predicated by the court upon the existence of the clause. By the terms of the contract, restraint and payment are mutually dependent on each other, and the restraint is not to extend beyond the limits of the city of New York, and a contract to this effect is therefore presented, which the court can completely and effectually enforce. No previous payment or tender is necessary to the main- tenance of the action. The motion of the plaintiff for the continuance of the injunction during the pendency of the action, is therefore granted, with ten dollars costs, but on condition that the plaintiff pay to the defendant, Fanny Morant Smith, during such continuance, one-quarter of the salary to which she would be entitled under the contract in case of performance, such payment to be made to her, or her order, as she may direct, in weekly installments, payable on Monday of each week, and that he also pay to her or her order, forthwith, such sum as may have accrued since the granting of the preliminary injunction con- tained in the order to show cause herein. KIRCKNER & CO. v. GRUBAN. (Supreme Court of Judicature, (1901) 1 Ch. Div. 413.) Eve, J. It is admitted, or conceded, I think I may say, by counsel for the plaintiffs that if this were a mere affirmative agreement by the defendant to serve the plaintiffs until July 1, 1910, and he had refused to continue that service, the Court would not according to the well-settled practice, interfere by an injunction to compel him to render his services to the plaintiffs down to the date at which in the ordinary course the engagement of service would come to an end. But it is urged here that it is not merely an affirmative covenant, but that there is in this document a negative stipulation which the Court, according to the practice, can enforce by restraining the defendant in the terms of the covenant. The negative stipulation is to be found ^^ SPECIFIC PERFOEMANCE OF CONTEACTS (Part 1 in clause 7 of the agreement. "Mr. Gruben" — that is the defendant — " agrees under a penalty of 20,000 marks to remain in his position and not to give notice before July 1, 1910." Now it is said that what he has done is a breach of his agreement not to terminate the service before July 1, 1910, and if the matter were entirely free from authority that would be an argument to which I think I should have had to give very much more weight than I am able to do in the present state of the authorities. The question as to the practice of the Court to enforce affirmative covenants of this sort was dealt with and finally disposed of, at any rate for the present, by the case of Whitwood Chemical Co. v. Hardman (1891) 2 Ch. 416, and at a later date the principle upon which that and similar cases had been determined came up for consideration before the late Kekewich J. in the case to which I am about to refer, the case of Davis v. Fore- man (1894) 3 Ch. 654, 655, 657. There the form of the agreement between the employer and the employed was this : "The employer hereby agrees with the manager that he will not, except in the case of misconduct or a breach of this agreement, require the manager to leave his employ and determine this agreement during such period that he shall draw from the said business £15, each and every month." There was an agreement in the negative by the employer that so long as a certain state of things continued to exist he would not give notice to the employee determining the engagement. Kekewich, J., having heard all that was to be said on behalf of t-lle plaintiff, who in that case was the employee seeking to restrain the employer from acting upon the notice, gave his judgment, in which he arrives at this con- clusion, that though in form the stipulation or agreement is negative, in substance it is really affirmative and positive, that an agreement not to give notice to determine his employment is for all practical pur- poses an agreement to continue the . employment, and having come to that conclusion he says : "Having regard to the principle expounded by the Court of Appeal in Whitwood Chemical Co. v. Hardman (1891) 2 Ch. 416, and recognized again in the case of Ryan v. Mutual Tontine Westminster Chambers Association (1893) 1 Ch. 116, which is not directly in point, what ought I to do here, in dealing with a covenant or stipulation which, as I have said, though negative in form is posi- tive in substance? There is a clause in the agreement that the em- ployer will not, except in the case of misconduct or a breach of the agreement, require the manager to leave his employ — in other words, Oh. 2) NEGATIVE CONTEACTS. 81 give him notice to quit. That is, to my mind, distinctly equivalent to a stipulation by the employer that he will retain the manager in his em- ploy. It is only the form that is negative. If the Court comes to the conclusion that that is really the substance of the agreement (which, being an agreement of service, cannot be specifically enforced), is it right, having regard to the line the authorities have taken, to say that merely because the agreement is negative in form an injunction ought to be granted ? To my mind, I should be going distinctly against the last decision in the Court of Appeal if I were to apply the doctrine of lyumley v. Wagner (1852) 1 D. M. & G. 604, which is not to be extended, to a case of this character." It seems to me that every word of that judgment is applicable to the present case, and that I should be disregarding an authority which is certainly binding upon me if i were to hold that merely because Mr. Gruban has entered into a contract not to terminate the engagement before July 1, 1910, I could grant an injunction the effect of which would be as against him to order specific performance of an agree- ment to continue to serve the plaintiffs down to July 1, 1910. So that on the first part of the motion I hold that, apart from all other con- siderations, the plaintiffs would not be entitled to the order for which they ask. . . . DOCKSTADER v. REED. (Supreme Court, Appellate Division, New York, 1907. 121 N. Y. App. Div. 846; 106 N. Y. Supp. 795.) Houghton, J. The plaintiff is the proprietor of a minstrel troupe, and on the 19th day of March, 1907, the defendant contracted by writ- ten agreement with him at a stipulated salary per week to sing and play until the end of the season of 1909. The defendant entered upon his employment and continued until September, 1907, when he aban- doned his contract, claiming that his health was such that he could not continue singing and traveling about the country and parading the streets in inclement weather. The record contains an affidavit by his physician that to continue in such work and expose himself to varying climate throughout the country would greatly endanger defendant's 1 Eq.— 6 82 SPECIFIC PEHFOEMANCE OP CONTRACTS (Part 1 health which is not robust. The part to which defendant was cast in plaintiff's troupe was a bass singer in a quartet, rendering several songs during the performance. The court granted an injunction during the pendency of the action, restraining the defendant from rendering any services to any other person than the plaintiff or giving any theatrical performance in public as an actor. The contract which the defendant signed is the usual unique one which theatrical managers often demand from actors which they em- ploy, and in it the defendant confessed that the services which he was to render were "special, unique, and extraordinary," and admitted that he could not be replaced, and agreed that in the event of its breach the plaintiff would suffer irreparable injury, which could not be as- certained or estimated in an action at law, and consented that an in- junction might be issued against him 'restraining him from rendering services for any other person. This confession and defendant's own estimate of himself is the only proof in the case that his services were unique and that he could not be replaced. The contract gave the plain- tiff the right to discharge the defendant, without recourse, if his ser- vices were unsatisfactory, and also the absolute right of discharge, without cause, upon two week's notice ; and it is quite improbable that a bass singer in a minstrel quartet cannot be found to take defendant's place. Notwithstanding the agreement of the defendant, we think the facts did not warrant the granting of an injunction. Parties to an agreement cannot contract that courts will exercise their functions against or in favor of themselves. Whether or not a court will so exercise its powers is for the court itself to determine. While equity will often restrain an actor under contract to perform for one and not to perform for another, or from performing for an- other during the period of the contract, an application for equitable relief is addressed to the sound discretion of the court, and will not be granted where the party seeking relief is not specifically bound by the contract, so that the obHgations are reciprocal and enforceable. Lawrence v. Dixey, 119 App. Div. 295, 104 N. Y. Supp. 516. Whether equity will intervene to restrain by injunction the violation of a re- strictive covenant in relation to personal services depends in large measure upon whether a substitute for the employee can readily be obtained, and whether such substitute will substantially answer the purpose of the contract. Strowbridge L,ith. Co. v. Crane, 58 Hun, Ch. 2) BELIEF FOR AND AGAINST THIRD PERSONS. 83 611, 12 N. Y. Supp. 898. In Shubert v. Angeles, 80 App. Div. 625, 80 N. Y. Supp. 146, an injunction was granted against an actress ap- pearing for a rival house in violation of her contract; but it there appeared that she was engaged by the plaintifif because- of her special talent as a mimic of other actresses and actors, and that her part could not be taken by another. The salary agreed to be paid defendant was quite moderate, and indicates that his part was quite ordinary, and manifestly could be easily filled. It is undisputed that he was ill, and that a continuance under the contract with plaintifif would endanger his health and be likely to destroy his voice altogether. The court below felt constrained to grant the injunction because of the peculiar provision of the agreement. We are of opinion, however, upon all the facts disclosed, that the plaintiff was not entitled to an injunction during the pendency of the action, and that the order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur. SECTION IV. RELIEF FOR AND AGAINST THIRD PERSONS —EQUITABLE SERVITUDES. DANIELS V. DAVISON. (High Court of Chancery, 1811, 17 Ves. 433.) In this case the Lord Chancellor (Eldon) pronounced the following judgment : I have already expressed my opinion, that the Plaintiff is entitled to a specific performance of the agreement for the sale of these premises to him ; and, with regard to the subsequent sale by the Defendant Davison to the other Defendant Cole, my notion is, that the Plaintiff has an Equity to have a conveyance of the premises from Cole; upon the ground, that Cole must be considered in Equity as having notice of the Plaintiff's equitable title under the agreement; that Cole was bound to inquire ; and therefore, without going into the circumstances, to ascertain, whether he had, or had not, actual notice, he is to be considered as a purchaser of the other Defendant's title, 84 SPECIFIC PEKFOEMANCE OP CONTRACTS (Part 1 subject to the equity of the Plaintiff to have the premises conveyed to him at the price, which he had by the agreement stipulated to pay to that Defendant ; and that it is competent to the Court to make that arrange- ment as between Co-defendants. The Plaintiff, therefore, deducting his costs out of the money he is to pay, must have such conveyaijce from one or both the Defendants, as the Master shall settle, if they differ ; but I can go on farther than to regulate as between the Defendants the payment of that money, which the Plaintiff is to pay. PEARCE v. BASTABLE. (Supreme Court of Judicature, 1901, 3 Ch. 123.) CozEns-Hardy, J. The case is plain. There was a contract, which is in no way impeached, for the sale to the plaintiff of the equity of redemption in certain leasehold property. On this contract a deposit was paid by the purchaser, and the title was accepted by him. Then the vendor became bankrupt, and a delay ensued, which was pos- sibly occasioned by the bankruptcy proceedings. The draft assignment was sent in by the purchaser and approved, and the engrossment was forwarded. There is no dispute about the form of the assignment — it was of the leasehold property subject to the mortgage. The trustee in the vendor's bankruptcy has, to use plain language, the impudence to say that he will disclaim the contract without disclaiming the lease, keep the deposit paid by the purchaser and leave him to take such steps in the bankruptcy as he may think fit to take. That the trustee cannot be allowed to disclaim the contract without disclaiming the lease was plainly shown by the decision of Cave, J., in Re Kerkham, 80 L,. T. Jour. 322. There, before bankruptcy, a man contracted to sell lease- hold property to another who sold his rights under the contract to a third person. The trustee in the bankruptcy of the original vendor purported to disclaim the contract without disclaiming the lease, and the Court held that it was not competent for him to separate the sub- ject-matter of the contract from the contract and keep the property, and that the disclaimer was void. That is precisely this case. The disclaimer which the trustee has purported to make is a nullity. What Ch. 2) BELIEF FOR AND AGAINST THIKD PERSONS. 85 is the position of the trustee in such a case? It has been contended on his behalf that the fact of the bankruptcy makes all the difference as regards the liability to specifically perform a contract. In support of that, Holloway v. York, 25 W. R. 627, has been referred to. The effect of that decision is correctly stated in Dart's Vendors and Purchasers, 6th ed. p. 1126— that is to say, that specific performance cannot be decreed against the trustee in bankruptcy of the purchaser. That decision has no application to a case in which the vendor's trustee in bankruptcy is the defendant. If any authority is needed in support of this finding it is to be found in Ex parte Rabbidge, 8 Ch. D. 367, 370, where James, L,. ]., said : "The result was that, upon the adjudication being made, the legal estate in the property vested in the trustee in the bankruptcy, subject to the equity of the purchaser under the contract. That equity gave him a right to have the property conveyed to him, upon payment of the purchase-money to the person to whom the pro- perty belonged." And Cotton, L. J., said : "The trustee in the bank- ruptcy . . . has vested in him the estate of the bankrupt in the property. He was not in the fullest sense of the word a trustee of the property for the purchaser, because the whole of the purchase-money had not been paid. But he took the legal estate in the property, sub- ject to the equity of the purchaser under the contract, which gave the purchaser the right to say. Convey me the estate on my paying the purchase-money." Anything more explicit on this part of the case could not well be imagined. All that the plaintiff asks the trustee to do is to execute the engrossment already approved and assign the pi'operty to him, and, the plaintiff disclaiming any right of proof against the bankrupt's estate, an order for such execution, and that the defendant is to pay the costs of the action, must be made. . . . GUPTON v. GUPTON. (Supreme Court of Missouri, 1870, 47 Mo. 37.) Bliss, Judge, delivered the opinion of the court. This is a petition for the specific performance, or for compensation for its breach, of a contract to make a will in favor of plaintiff. The plaintiff, Mrs. Gupton, is a daughter, by a former marriage, of Celia 86 SPECIFIC PERFOEMANCE OF CONTRACTS (Part 1 Barnett, wife of Morgan L. Barnett, both defendants ; and the petition alleges that said Morgan L. Barnett, being himself childless, seventy- three years of age, and very infirm, applied to the plaintiffs to take him and his wife to their home, and take care of them during their lives, and, in consideration, agreed to devise and bequeath to them the land in controversy ; that plaintiffs accepted the proposition, and in the fall of 1862 took defendants, Morgan and Celia Barnett, into their house, who became members of the family and were kindly and faithfully cared for by the plaintiffs, who are still ready to keep them in com- fort and happiness during their lives ; that, in pursuance of said agree- ment, the said Morgan, in 1865, destroyed an old will, and made a new one devising and bequeathing to petitioners all his property; that the possession of the farm in controversy was given up to plaintiff, Arring- ton, who made improvements upon it, rented it out, and paid the taxes. The petition further shows that on the 10th day of August, 1867, the said Morgan L. Barnett, in violation of his agreement, without consid- eration, and with full knowledge by the parties of all the facts, con- veyed the principal part of his farm to said A. Madison Gupton, and the remainder to his wife, the said Celia, who have taken possession of the same. The petition closed with several specific prayers and with a prayer for general relief. . . . From a careful examination of all the evidence bearing upon this part of the case, I cannot find that the plaintiffs failed in living up to the spirit of their agreement. It does not appear that any discontent had arisen in the mind of Mr. Barnett until the latter half of the fourth year of his residence with them, and we have seen how trifling were the first causes. An old man, nearly eighty, struck with paraly- sis, unable to walk, who, as he says, had recently given hundreds of dollars to the plaintiff and his family, who had made his will, leaving them everything, became excited about the collection of a few dollars by the one who was soon to receive everything; and when he paid him, while others were present, charges him, the next time he calls upon him, in a sarcastic and cutting manner, with bringing in wit- nesses to see it paid. It is manifest that the whole trouble was in the excited mind of Mr. Barnett, but how the feeling arose and in- creased does not appear from any direct testimony. It could not have sprung from Gupton and wife absenting themselves from his room, as he charges them both with doing, because it was the cause of and not Ch. 2) RELIEF FOE AND AGAINST THIRD PERSONS. 87 the effect of their being less familiar, and because, from the whole testimony, it is clear that his recollection of time, as well as events, is not to be relied on. A fact or two, however, throws a little light upon the matter. Defendant, A. Madison Gupton, is a nephew of plaintiff and was a frequent visitor at his house. In April it is shown that he asked Mr. Barnett to let him have his farm, and he would take care of him. Nothing further appears except that about the first of August, while the plaintiffs were away from home for some ten days, this Madison brings a magistrate to Mr. Gupton to acknowledge the deeds, and then the whole matter was closed up. This man, a frequenter at the house, his eye on the farm from the beginning of the troubles, his final success in obtaining the property — ^put these facts together, and may we not conjecture that he at least was not indifferent to the con- tinuance of the difficulties thkt were about to prove so fruitful to him? That an agreement to dispose of property by will in a particular way, if made on a sufficient consideration, is valid and binding, is settled in this State by Wright v. Tinsley, 30 Mo. 389, where the subject is con- sidered at length and the authorities reviewed. The statute of frauds is set up as a defense, inasmuch as the orig- inal agreement was not made in writing. But this defense will not avail for the obvious reason that the contract was in a great measure performed by both parties. The plaintiffs took Mr. and Mrs. Barnett to their house and provided for them until they left. The possession of the farm was also surrendered and the will was executed according to the terms of the contract. Nothing remained to be done by either party except the continued support of the makers of the will, which is tendered by the plaintiffs. Such partial performance has always been held to take the case out of the statute. (20 Mo. 84; 45 Mo. 288; Sugd. Vend. ch. 3, § 7, and cases cited in notes; 2 Sto. Eq. § 759 et seq.) Contracts like the one under consideration have been before the courts, and have uniformly been held to be valid when partially performed, and when the refusal to complete them would work a fraud on the other party. In Brinker v. Brinker, 7 Penn. St. 53, such an agreement was sustained, not because possession of the property was delivered, but because the will was executed according to the terms of the agreement. The cases of Van Dyne v. Vreeland, 3 Stockt., N. J., 370, and Davidson v, Davidson, 2 Beasley, N. J., S. C, were both very similar to the present, and the verbal promises of the owners of the property °8 SPECIFIC PERFORMANCE OF CONTRACTS (Part I were enforced for the reason that the services and support contracted for had been rendered. Defendants claim that the plaintiff is entitled to no relief in this action for the further reason that Barnett, by his deed to Madison Gup- ton, has put it out of his power to dispose of his property by will ; that in any event the contract can not be fully executed until the death of Barnett, and hence his only remedy is by a suit for damages for a breach of the agreement. In support of this claim reliance is had upon McQueen v. Chouteau's Heirs, 20 Mo. 222, and upon Hatch v. Cobb, 4 Johns. Ch. 559, and Kempshall v. Stone, 5 Johns. 193, cited in that case. McQueen v. Chouteau's Heirs was a bill for specific perform- ance founded upon a contract to sell, and the vendor had conveyed the property to a third person after having offered to fulfill. Upon this point the judge remarked that, in cases similar to this, courts of equity have refused to decree a specific performance of the contract, and have refused to entertain the bill for the purpose of compensating the complainant in damages, but have left him to his action at law on the agreement. The court, it will be seen, adopts no general rule, and the cases referred to are entirely consistent with the plaintiff's equity, even if specific performance could not be decreed. Hatch V. Cobb was a case where the purchaser of land by contract had neglected to pay, and, after its conveyance by his vendor, filed his bill. The court decided that specific performance could not be de- creed, that the complainant was not entitled to compensation in equity, and remitted him to his suit upon his covenant for damages if he was entitled to any. The court, however, admits that, in a special case, a bill for damages might be sustained ; and, in referring to ' Phillips v. Thompson, 1 Johns. Ch. 131, where the bill was retained in order to afford compensation, says that the court made out a case of very clear equity for relief, and the remedy was precarious at law. The bill was dismissed in Kempshall v. Stone because "the remedy was clear and perfect at law by an action upon the covenant," the defend- ant having conveyed the land to a third person, for good consideration, without notice. The doctrine of these cases is simply this: that when the vendor of land by contract conveys the property contracted to be sold to a third person, in such a manner that the land can not be reached, the court will not entertain a petition in equity for a specific perform- Ch. 2) KELIEP FOR AND AGAINST THIED PERSONS. 89 ance merely for the purpose of compensating the purchaser in dam- ages, but will leave him to his action upon the agreement. Some ground for equitable interference will be required, and in the case at bar there is abundant ground, even if the contract could not be specifi- cally enforced. First, it is a parol contract, which can not be sued on at law, but which equity will enforce under the circumstances hereto- fore indicated. Second, Barnett has conveyed to Madison Gupton all his property, and a judgment for damages merely would be altogether useless. It must be made to fasten upon some property which can only be reached in equity, not by a creditor's bill, but as being subject to the plaintiffs' claim by the terms of the contract, or he is wholly without remedy. Third, the case made hy the petition is altogether and throughout equitable ; and having thus obtained jurisdiction, the court will give the plaintiff's any relief to which they are entitled. A. Madison Gupton took with full notice, and in fraud of com- plainant's rights, and it is not in his power to remit us to a money demand. It would be a mockery, as well as a bounty to an unwarrant- able interference by strangers in a case like the present, to say that the plaintiff' is entitled to only a money judgment ; and our courts have gone as far as any other in giving effectual relief. . . . The judgments of the court below are reversed and the cause re- manded, with directions to proceed as herein indicated. The other judges concur. WE^IS V. MEYER. (Supreme Court of Arkansas, 1866, 1 S. W. 679.) CoCKRiLLj C. J. Weis' complainant in equity, for the specific performance of a contract to convey lands, was dismissed upon general demurred, and he has appealed. He was not a party to the contract which he sought to enforce, but was the vendee of one who was named in it as a beneficiary of its provisions. The only question seems to be, did this give Weis the right to enforce the contract ? The complairit alleges that the owners of a plantation in Chicot County conveyed a part of it to Isaac Hilliard, in 1879, and sold "0 SPECIFIC PERFORMANCE OF CO.NTBAOTS (Part 1 or leased other parts of the place to divers other persons, among whom were the mercantile firm of Dryf us & Meyer ; that afterwards, when the lands were about to be sold under a decree foreclosing a lien superior to the rights of the vendees, the vendors, in order to pro- tect them from injury, entered into an agreement in writing with Dryfus & Meyer, by which it was arranged that the latter parties should buy in all of the lands subject to be sold under the decree, the greater part of which still belonged to the original vendors, and im- mediately convey, by quitclaim deeds, to the parties who had already purchased parts of the plantation referred to; an arrangement being made by which Dryfus & Meyer should be made whole for the amount paid by them in discharging the decree. It also alleged that Dryfus & Meyer purchased the land under the decree, and took a conveyance to themselves in execution of the agreement; and that afterwards. Dryfus conveyed to Meyer all his right, title, and interest in the premis- es, and that Meyer bound himself to carry out the agreement entered into by the firm, but that he now refuses to execute a deed to Hilliard, or to the appellant, who is Hilliard's vendee. Taking the allegation of the complaint as true, Dryfus & Meyer, upon their purchase under the decree, held the naked legal title to the lands that had been previously conveyed to Hilliard in trust for, him, and it was their legal duty to execute a deed to him in accordance with their contract. After the conveyance by Dryfus to Meyer, the latter held the legal title subject to the same duty. The obligation of Dry- fus & Meyer was assumed for their own as well as for the express benefit of Hilliard and others in similar circumstances, and was in- duced by their common grantors, who were resting under a legal ob- ligation to protect from harm the interests in the lands they had sold. The right of a party to maintain an action on an agreement made with another for his benefit is a doctrine to which this court has given its assent, and it entitled Hilliard to maintain suit in his own right to enforce the contract set forth. Hecht v. Caughron, 46 Ark. 132, The appellant, by Hilliard's conveyance to him of his entire interest, succeeded to his rights, and was entitled to -file the complaint in his own name. The decree must be reversed, and the cause remanded, with in- structions to overrule the demurrer. Cll. 2) EQUITABLE SERVITUDES. 91 ROBINSON V. APPLETON. (Supreme Court of Illinois, 1888, 134 111. 276, 15 N. E. 761.) Shope, J. This was a bill filed by the executors of the last will of James E. Cooley, deceased, for the specific performance of a con- tract, made by their testator with David B. Sears, since deceased, for the sale of several tracts of land. The law is well settled, . that the vendor may have a specific performance of a contract for the sale of land decreed against his vendee. (Chambers v. Rowe, 36 111. 171.) The remedy in cases of specific performance is mutual, so that either the vendor or vendee may avail of it. Story's Eq. Jur. sees. 723, 789, 790, 796 ; Andrews et al. v. Sullivan, 2 Gilm. 332 ; Burger et al v. Potter et al. 32 111. 66.) This remedy extends in favor of the personal repre-' sentatives of a deceased vendor (Burger v. Potter, supra), and against subsequent purchasers or assignees of the vendee, taking with notice. (Story's Eq. Jur. sec 789; Champion v. Brown. 6 Johns. Ch. 398.) The proceeding in this case may be regarded as in rem, as against appellants, who took as assignees of the original purchaser. It is clear that the vendor or his personal representatives can not have a personal decree against appellants, unless they, in their purchase from the ven- dee, Sears, assumed the payment of the unpaid purchase money as part of the price they were to pay Sears for his interest in the land. . . . WHATMAN V. GIBSON. (High Court of Chancery, 1838, 9 Sim. 196.) The Vicb-Chancellor. The Defendant Gomm admits, by his answer, that he does threaten and intend to use the house numbered seven, as a family hotel and inn and tavern; there can be no doubt, therefore, that he has brought himself within the words of the coven- ant in the deed of February 1799. Now, though neither the conveyance to Cull, nor the conveyance to Austin (under which the parties severally claim), has been pro- P2 SPECIFIC PERFOEMANCE OF CONTRACTS (Part 1 duced, yet, I must take it as a fact, that those deeds recited that Cull and Austin had executed the deed of February 1799: and, with respect to that deed, it seems to me that the matter is to be considered, in this Court, not merely with reference to the form in which the covenants are expressed, but also with reference to what is contained in the pre- liminary part of the deed, namely, that Fleming had determined and proposed, and did thereby expressly declare that it should be a general and indispensable condition of the sale of all or any part of the land intended to form the row, that the several proprietors of such land respectively for the time being should observe and abide by the several stipulations and restrictions thereinafter contained or expressed in regard to the several houses to be erected theron, and in all other par- ticulars. Then follow the stipulations ; and, whatever may be the form in which the covenant is expressed, the stipulations are plain and .distinct. One of them is that none of the proprietors of any of the several lots or parcels of land intended to form the row, shall, at any time or times or on any account or pretense whatever, erect or suffer to be erected on any of the several lots or parcels of land, which shall be to them respectively belonging for the time being or on any part of them or any of them, any public livery stables or public coach-house, or use, exercise or carry on, or suffer to be used, exercised or carried on thereon or on any part thereof, the trade or business of a melting founder, tobacco-pipe maker, common brewer, tallow chandler, soap boiler, distiller, innkeeper, tavern keeper, common alehouse keeper, brazier, working smith of any kind, butcher or slaughterman, or any other noxious or offensive trade or business, whereby the neighbor- hood may be, in any respect, endangered or annoyed, or burn or make, or suffer to be burnt or made, on any of the said lots or parcels of land or on any part of any of them, any bricks or lime ; and that no other building or buildings than good dwelling-houses or lodging-houses shall be erected in front of any of the said lots. It is quite clear that all the parties who executed this deed, were bound by it: and the only question is whether, there being an agree- ment, all persons who come in as devisees or assignees under those who took with notice of the deed, are not bound by it. I see no reason why such an agreement should not be binding in equity on the parties so coming in with notice. Each proprietor is manifestly interested in having all the neighboring houses used in such a way as to preserve the general uniformity and respectability of the row, and consequently Cll. 2) EQUITABLE SERVITUDES. 93 in preventing any of the houses -from being converted into shops or taverns, which would lessen the respectability and value of the other houses. As the release of 1802 recites that Austin executed the deed of 1799, I must take it as a fact that he did execute it; and then, what- ever may be the form of the covenant, or whatever difficulty there may be in bringing an action on it, I think that there is a plain agreement which a court of equity ought to enforce : and, as the Defendant Gomm admits that he intends to carry on one of the prohibited businesses, he comes within the purview of the deed, and ought to be restrained from fio doing by the injunction of this Court. . . . Injunction granted. HARtVan v. WELLS. (Supreme Court of Illinois, 1913, 257 111. 167, 100 N. E. 500.) Farmer, J. The bill in this case was filed by appellant to enjoin appellees from violating a building line agreement entered into be- tween appellant and the grantor of appellees, and for a mandatory injunction to compel appellees to remove certain porches erected in violation of said building line agreement The existence of the building line agreement and its violation by appellees are not controverted. They claim they had no actual notice of the existence of said agreement, but it was a matter of record be- fore they or their predecessor in title purchased lot 3, and they were bound to know of its existence. The real defense made by appellees is that appellant's property is not damaged by the porches construct- ed in violation of the agreement, and that on account of their cost, the material out of which they are constructed and the nature of the construction it would be inequitable to compel their removal. No com- plaint is made by appellees of the injunction restraining them from completing, repairing or rebuilding said porches, or any part therof, which project more than four feet east of the building. We are at a loss to understand why, if it was inequitable to require the removal of said structures projecting beyond the building line, it would not also be inequitable and unauthorized to enjoin their completion and ^* SPECIFIO PERPOEMANCE OP CONTBAOTS , (Part 1 maintenance. It is apparent that i^ their incompleted state they are of little value for use, and if their completion and repairing would be a violation o.f the agreement authorizing interference by injunction, it would seem their maintenance would be also. Restrictions against the use of property held in fee, it is true, are not favored, and doubts will, in general, be resolved against them, but where the intention of the parties is clearly manifested in the creation of the restrictions they will be enforced in a court of equity. (Eckhart v. Irons, 128 111. 568; Hutchinson v. Ulrich, 145 id. 336, Hays v. St. Paul M. E. Church, 196 id. 633; Curtis v. Rubin 244 id. 88.) It is true, parties may by their own acts place themselves in a position where equity wjll not interfere, or the property and the use to which it may be put and the character of the vicinity and environment may be so changed that the purposes for which the restrictions were imposed will not be affected by their enforcement. In such cases enforcement may be denied. (Ewertsen v. Gerstenberg, 186 111, 344; Curtis v. Rubin, supra.) There was nothing shown as to the use of the property here involved, its environment or the acts of the parties which would bring it within the class of cases where the enforcement of such restrictions has been denied. The building of the porches was begun without the knowledge of appellant and when he was absent from home. As soon as he returned and discovered the building line agreement was being violated he made known to appellees his objections. Appellant had kept and performed the covenants on his part by paying to Lederer the $2000 in cash and giving lot 3 the benefit of an easement of five feet off the north side of lot 4 for hght and air. All of this appellees were bound to know, as the agreement was a matter of record. The evidence as to whether appellant's property was damaged by the violation of the agreement was conflicting, but we do not think that was a material question. In Consolidated Coal Co. v. Schmisseur, 135 111. 371, the court, in discussing the enforcement of negative cove- nants in courts of equity, said it was well settled that equity would entertain bills for injunctions to prevent their breach although the breach would cause no substantial injury or although the damages might be recoverable in an action at law. "This is upon the principle that the owner of land selling or leasing it may insert in his deed or contract just such conditions and covenants as he pleases touching the mode of enjoyment and use of the land. As said in Steward v. Winters, 4 Sandf . Ch. 587 : 'He is not to be defeated when the cove- Cll. 2) EQUITABLE SEEVITXJDES. 95' nant is broken, by the opinion of any number of persons that the breach occasions him no substantial injury. He has a right to define the injury for himself, and the party contracting with him must abide by the definition.' (Hill v. Miller, 3 Paige, 254; Macher v. Foundling Hospital, 1 Ves. & B. 188; High on Injunctions, 1142.) In this latter class of cases the court proceeds upon the ground that the grantor or lessor having expressly stipulated that the grantee or lessee shall not do the particular thing complained of, the latter is bound to refrain, and the former is not required to submit to the opinions of others as to whether he will or will not suffer substantial injury." That case was cited and quoted in substance in the opinion in Star Brewery Co. v. Primas, 163 111. 652. In Steward v. Winters, supra, cited in both the last mentioned cases, Vice-chancellor Sanford, delivering the opinion of the court, said: "It is said that the remedy at law for damages is adequate, and that, so far from there being an irreparable injury by the continuance of the breach of this covenant, it is shown there can be no injury at all. I apprehend that we are not to regard this sub- ject in the manner indicated by the latter proposition. The owner of land selling or leasing it may insist upon just such, covenants as he pleases touching the use and mode of enjoyment of the land, and he is not to be defeated, when the covenant is broken, by the opinion of any number of persons that the breach occasions him no substantial injury. He has the right to define the injury for himself, and the party contracting with him must abide by the definition." We do not regard it necessary to cite further authority upon this question. None in this State, at least, will be found to the contrary. In our opinion the case made by appellant entitled him to the man- datory writ prayed for, commanding appellees to remove the struc- tures extending beyond the building line. . . . IN RB NISBET AND POTTS' CONTRACT (Supreme Court of Judicature, (1906) 1 Ch. Div. 386, 409.) CozEns-Haedy, L. J. Now, the suggestion which is at the root of the appellant's argument is this, that a squatter can wholly disregard restrictive covenants affecting a building estate. That is so startling ^6 SPECIFIC PERFORMANCE OF CONTEACTS (Part 1 a proposition, and so wide-reaching, that it must be wrong. The value of estates in the neighborhood of London and all large towns, and the amenity of those estates, depend almost entirely upon the continuance of the mutual restrictive covenants aflfecting the user and the enjoyment of the property ; and when we are told that the squatter, notwithstanding that he is a mere trespasser, is to be in a better posi- tion than that occupied by a person deriving a title strictly through the original covenantor, one feels that there must be an answer to the argument ; and I think the authorities, when carefully examined, make the answer quite plain. The benefit of a restrictive covenant of this kind is a paramount right in the nature of a negative easement not in any way capable of being affected by the provisions of the Statute of Ivimitations on which the squatter relies. The only rights extinguished for the benefit of the squatter, under s. 34 are those of persons who might, during the statutory period, have brought, but did not in fact bring, an action to recover possession of the land. But the person en- titled to the benefit of a restrictive covenant like this never had any cause of action which he could have brought, because unless and until there is a breach, or a threatened breach, of such a covenant, it is im- possible for the person entitled to the benefit of it to bring any action. It appears, therefore, so far as the squatter himself is concerned, that both during the currency of the twelve years and after the expiration of the twelve years, there could be no possible answer to the claim of anyone seeking to enforce the covenant. In fact, there would, so far as he is concerned, be no difference between this covenant, which is in the nature of an equitable easement, and a legal easement strictly and properly so called. But although the squatter took the property sub- ject to this equitable burden, it may be that the present vendor, who purchased from or through the squatter is able to say that the burden does not affect the property in his hands. But what must he prove in order to claim this exemption? He must prove that he is a purchaser for value of the legal estate without notice. If in the old days he had simply pleaded "I am a purchaser for value," such a plea would have been demurrable; he would have had to go further and allege and prove that he was a purchaser for value without notice, and he must do the same at the present day. Now, can the present vendor allege and prove that he was a purchaser for value without notice? I think not. It is not necessary, of course, to prove actual notice ; that has not been contended. But if a purchaser chooses to take a title without Ch. 2) EQUITABLE SERVITUDES. 97 making full inquiries, he cannot be allowed to say that he had no notice of that which a full abstract would have disclosed. On this point the observations of North, J., In re Cox and Neve's Contract (1891) 2 Ch. 109, and the passages from his judgment which have been referred to, are so much in point that I may venture to read them. He says : "I must say that I dissent entirely from the proposition that the purchaser would have taken the property free from the restrictive covenant, if he had made no inquiry. On the contrary, I think he would have been bound by it, and for this reason. He had agreed by the bargain contained in the conditions of sale to accept a title of less than forty years. That cannot relieve him from all knowledge of the prior title, or, it would come to this, — that, if a man was content to purchase property on the condition that he should not inquire into the title, he would acquire a title free from any existing restrictions, and would not have constructive notice of any incumbrance." Of course, the law does not permit of anything so absurd as that, and I should be sorry to think that there could be any real doubt upon the subject. In the case of a lessee the law has gone possibly one step further, because in Patman v. Harland 17 Ch. D. 353, it has been held, and so far as I know it has never been questioned, that a lessee is affected with notice of any restrictive covenants the existence of which he would have learned if he had investigated the lessor's title, even though, since the Vendor and Purchaser Act, 1874, the lessee is not entitled, under an open contract for a lease, to require the produc- tion of the lessor's title. As Sir George Jessel in that case' said, that alteration of the law did not really prevent or interfere with the ap- plication of Tulk v. Moxhay, 2 Ph. 774. If the lessee wanted to escape from that obligation, he, in agreeing to take the lease, should have required the production of the lessor's title. So that the doctrine has been extended, and I venture to think properly extended, not merely to a case where a purchaser under an open contract would be affected with notice of a document forming part of the chain of title, but also, at least in the case of a lease, to a case where a purchaser under an open contract would not be entitled to require production of the documents which alone could give him notice. I think that a squatter, who has been in possession for moi-e than twelve years, is certainly in no better position that any other person. He cannot make a good title without delivering an abstract extending over the full period; and if the pur- 1 Eq.— 7 98 SPECIFIC PERFOEMANCE OF CONTEACTS (Part .1 chaser is willing to take a title depending upon the Statute of Limi- tations and the effect of s. 34, he must take such title subject to the equitable burden, as it is often called by analogy to Tulk v. Moxhay, 2 Ph. 774, except in so far as it can be shown that the equitable burden has been got rid of by means of a purchaser for value without notice. BADGER V. BOARDMAN. (Supreme Court of Massachusetts, 1860, 16 Gray, 559.) Bill in Equity to enforce a restriction in a deed from Oliver Downing to the defendant of one of several parcels of land on the westerly side of Bowdoin Street in Boston. From the bill and answer and evidence it appeared that Downing, being the owner of all these parcels of land, which were described on a plan thereof, dated the 12th of December, 1843, and recorded in the registry of deeds on the 21st of March, 1844, conveyed to the defendant in fee simple the parcel or lot numbered 3 on the plan, with the build- ing thereon standing, by metes and bounds and "subject to the follow- ing restriction that no out buildings or shed shall ever be erected west- erly of the main building of a greater height than those now standing thereon ;" and that on the 25th of December 1844, Downing conveyed the parcel or lot numbered 4 on the plan to George Roberts, with all the rights, easements, privileges and appurtenances thereto belonging, which afterwards came by mesne conveyances to the plaintiff. The bill was dismissed, and the plaintiff appealed. BiGBLOW, C. J. The infirmity of the plaintiff's case is that there is nothing from which the court can infer that the restriction in the deed from Downing to Boardman was inserted for the benefit of the estate now owned by the plaintiff. If it appeared that the parties to that conveyance intended to create or reserve a right in the nature of a servitude or easement in the estate granted, which should be at- tached to and be deemed an appurtenance of the whole of the remain- ing parcel belonging to the grantor, of which the plaintiff's land forms a part, then, it is clear, on the principles, declared in the recent decision of Whitney v. Union Railway, 11 Gray, 359, that the plaintiff would be entitled to insist on its enjoyment, and to enforce his rights by a Ch. 2) EQUITABLE SERVITUDES. 99 remedy in equity. But there is an entire absence of any language in the deeds under which the parties claim, from which it can be fairly inferred that the restriction in the deed to the defendant against erecting his building above a certain height was intended to enure to the benefit of the estate now owned by the plaintifif. The restriction is in the most general terms, and no words are used which indicate the object of the grantor in inserting it in the deed. Nor is there any language in the deeds under which the plaintiff claims title, which re- fers specifically to this restriction, or from which any intent is shown to annex the benefit of this particular restriction to the plaintiff's es- tate. Generally, when such a right or privilege is reserved, the pur- pose intended to be accomplished by it is stated in the conveyance or can be gathered from a plan referred to therein, or from the situa- tion of the property with reference to other land of the grantor. All parties then take with notice of the right reserved and the burden or easement imposed. But the conveyances in the present case contain no such clause, nor is there anything in the terms of the grant, or in the circumstances surrounding the parties when it was made, to lead to an inference in favor of the claim set up by the plaintiff. For aught that appears, it might have been intended by the parties for the benefit of the grantor only so long as he remained the owner of any of the land of which that conveyed to the plaintiff originally form- ed a part. However this may be, it is certain that the defendant took his grant without any notice, either express or constructive, that this restriction was intended for the benefit of the plaintiff's estate. This is the material distinction between the case at bar and that of Whitney V. Union Railway, above cited. And it is vital to the rights of the parties, because, as the case stands, the plaintiff is not entitled to avail himself of the equitable principle, that the defendant has taken his estate with notice of a stipulation for the benefit of the estate now owned by the plaintiff, which in equity by accepting the grant the de- fendant would be bound to observe. We are therefore of opinion that the clause in the deed to the defendant, creating the restriction on the enjoyment of his estate, must be construed as a personal covenant merely with the original grantor, which the plaintiff cannot ask to have enforced in this suit. Bill dismissed, with costs. 100 SPECIFIC PEEFORMAWCE OF CONTEACTS (Part 1 DICKENSON V. GRAND JUNCTION CANAL CO. (Cases in Chancery, The Rolls Court, 1853, 15 Beav. 260.) The; Master op the Rolls. . . . The object of the suit is to restrain the Defendants, the Grand Junction Canal Company, from using a well sunk by them near Tring, in Bucks, at a place called the Cow Roast Lock, to compel them to fill up this well, and to restrain them from excavating any other well, whereby the supply or flow of water in the stream called the Bulbourne may be obstructed from flow- ing down to the Plaintiffs' mill. . . . The first question that arises under this state of circumstances is, whether this is such a contract, as this Court will restrain the parties to it from violating, and upon this I cannot entertain the slightest doubt. The consideration for it was valuable, and the C'ompany obtained the advantage of that consideration in the cessation of those continued actions by which they were harassed, and in which, up to that time, they had failed, and had had to pay large and repeated damages. The next question is, whether the acts of the Defendants are a violation of this contract. The report of Mr. Cubitt shows conclusive- ly, that by means of the pumping at the well, the waters are diverted from the said rivers; and independently of the decision of the Court of Exchequer, I should, on the evidence of his report, have entertained no doubt that the Company had committed a violation of this contract and of this Act of Parliament, by pumping the water out of this well into the summit level of the canal. The decision of that Court, however, on the case sent by Lord Langdale, is in my opinion conclusive on this subject, notwithstanding the arguments I have had addressed to me, to distinguish the facts there stated from the facts in evidence before me. If it be a contract duly entered into between the parties, it is no answer to a violation of it to say, that it will not inflict any injury upon one of the contracting parties. If the Plaintiffs have purchased fi'om the Company a right to preserve the waters in the Rivers Bul- bourne and Gade from being diverted in any other manner than as diverted at the passing of the Act of 58 Geo. 3, it is no answer to them Ch. 2) EQUITABLE SERVITUDES. 101 to say, that the diversion proposed will not be injurious to them, or even to prove that it may be beneficial to them. It is for them to judge whether the agreement shall be preserved, so far as they are concerned, in its integrity, or whether they shall permit it to be violated. It is therefore, in my opinion, a matter of no moment in this case, that the Plaintiffs have given no evidence of any actual damage done to them, or of any actual diminution of water at their mills. Having established that the acts of the Defendants are a violation of the con- tract entered into between them and the Plaintiffs, and a violation of the Acts of Parliament passed to carry such • contract into effect, the Plaintiffs are entitled to call upon this Court to protect them in the enjoyment of that right which they have so purchased, and this Court is bound to preserve it from being broken in upon. I am of opinion, therefore, that I must grant a perpetual injunction to restrain the Company from further excavating &c. &c., and that the Defendants must pay the costs of this suit. CLEGG V. HANDS. (Supreme Court of Judicature, 1890, 44 Ch. Div. 503.) Cotton, L,. J. . . . The covenant in this case is that the said lessee will not at any time during the continuance of the demise, direct- ly or indirectly, buy, receive, sell, or dispose of, or permit to be bought, received, sold, or disposed of, in or about the demised premises, any ales or stout (other than best stout) other than such "as shall have been bona fide purchased of the said lessors, or from them, or either of them, either alone or jointly with any other person or persons who may hereafter become a partner or partners with them or either of them." It is said that these latter words shew that the covenant was not in- tended to extend to the assigns of Clegg & Wright, because part of the definition of the persons who are included in the expression "lessors" is repeated here in terms which exclude the full application of that definition. But I cannot think that that is so. The covenant, reading it by the light of the definition, was entered into with the lessors, Clegg & Wright, and each of them, and the heirs, executors, adminis- trators, and assigns of them and each and every of them; and al- -'-^•'" SPECIFIC PEKFOBMANCE OF CONTEAOTS (Part 1 though it perhaps was not necessary to have added these words at the end of the covenant, I cannot think that that addition prevents the covenant from being a covenant with the assigns of those who were the grantors of the lease to the Defendants. But then it is said, as I understand the argument, that it can only- have been intended to include such assigns as carry on the business of brewers at the particular brewery which was assigned to Cain, and where the business of brewing is no longer carried on. The case of Doe V. Reid, 10 B. & C. 849, was much relied upon for the purpose of that construction, but it was a case where the language was dif- ferent, and in my opinion there is nothing here to shew such an inten- tion. Then there is this clause : "Provided they or he shall at such time deal in or vend such liquors as, aforesaid, and shall be willing to supply the same to the lessee of good quality and at the fair current market price." Well, it was pointed out by one of us in the course of the argument, that there is some protection granted here to the pub- lican by this provision that the beer shall be of good quality, and that it shall be supplied at the fair current market price. That, in my opinion, shews clearly that it was not intended in this case to restrict the benefit of the covenant to the persons carried on this brewery at this particular place, for it does not in any way refer to the beer which is to be provided, as being beer made by the land- lords or their assigns. The words are, "Provided they or he shall at such time deal in or vend such liquors." It shows that there was no intention whatever to stipulate that the persons entitled to the bene- fit of the covenant were to be persons who made beer. It was not provided that they should continue to make the beer they were sell- ing; but it was provided that it should be of good quality and be sup- plied at the fair current market price, and that they should deal in and (rend beer. Considerable light was to my mind thrown upon the true intention of the parties by what was put before us by Mr. Collins in his reply, that at the time the covenant was entered into these land- lords not only made beer, but bought beer, and supplied those who were lot bound by any restrictive covenants to take beer from them alone. That, I think, shews what they were intending to provide for, viz., not ;hat they should only supply beer which they themselves made, but 'hat they should go on doing what they were then doing, supply beer either by making it, or by buying it, so long as they were able to supply it of good quality and at the fair market price. . . . Cll. 2) EQUITABLE SERVITUDES. 103. But then it is said that this Court has decided that the doctrine of Tulk V. Moxhay will not be extended beyond a restrictive covenant. Now, in Tulk v. Moxhay the covenant was not in its terms restrictive, but it implied that the piece of ground in question there was to be used only as an ornamental garden. That again implied that the purchaser was not to build on it, which was what he was about to do. In this case, even if the covenant was in form a contract to buy all beer from the Plaintiffs, that would involve a negative contract that he should not buy his beef from anybody else ; and in my opinion this case does not come within the rule which we laid down in the case of Haywood V. Brunswick Permanent Benefit Building Society, 8 Q. B. D. 403. In that case land had been granted in fee in consideration of a rent-charge and a covenant to build and repair buildings, and the Court refused to enforce the covenant, considering the doctrine of Tulk v. Moxhay not applicable, to the case of a covenant which was not in its nature restrictive, and could only be enforced by making the owner of the land put his hand in his pocket. In my opinion, both on the ground that here the covenant did run with the land, and also on the ground that the doctrine of Tulk v. Moxhay does apply, I think" the order of the Vice-Chancellor is right. LiNDivEY, L,. J. . . . Then comes a question as to whether this contract is one which can be enforced in equity, having regard to the doctrine relating to specific performance and injunctions. Mr. Collins has suggested that, although this covenant is negative in point of form, it is afifirmative in substance, and that therefore an injunction ought not to be granted. But when you look at the whole of this case, you find that the covenant, which he suggests is affirmative, really involves a negative element in it. If you treat the covenant to keep open this place as a public-house and to sell beer there as an affirmative covenant, you cannot treat the covenant as to the buying of beer as merely an affirmative covenant to buy beer of the lessors. You must put in the words, "and the lessors exclusively." If you get that, you get a nega- tive portion of the covenant which can be properly enforced consistent- ly with the doctrine applicable to cases of this kind; and therefore, whether you regard it as an affirmative covenant with a negative ele- ment in it, or whether you regard it as split up, as it is here, into these two parts, partly affirmative and partly negative, that negative part can be properly enforced. 1-04 SPECIFIC PERFORMANCE. OF CONTRACTS (Part 1 For these reasons it appears to me that the decision is right, and :he appeal must be dismissed with costs. .>s GOULD V. PARTRIDGE. (Supreme Court of New York, 1900, 53 N. Y. App. Div. 40, 64 N. Y. Supp. 870.) The Phoenix Mills was the owner of a valuable water privilege, as well as of the means and appliances for utilizing the same. It was also the owner of a tract of land for which it had no particular use. To meet this condition of affairs it subdivided its surplus land into parcels and then sold the same to various parties. In order, however, to enhance the value of the land thus placed upon the market, and induce purchasers to buy, the company agreed to furnish a certain amount of power with each parcel sold. As a consequence, the land with this incident -attached to it found ready sale, and the purchasers thereof immediately set about to erect buildings for manufacturing purposes upon their respective parcels, in reliance, doubtless, upon the right to the water power which their several grants secured to them. In these circumstances, if, as claimed by the plaintiff, there was a com- munity of interest or a privity of estate between the original grantor and grantees, the covenant made by the former would unquestionably be one which would run with the land and one for the breach of which an action at law could be maintained by the covenantee or his grantees. But, even in the absence of any community of interest or privity of estate, it has been held that the owners of land may by agreement create mutual easements for the benefit of each other's land, which will be enforced in equity ; that an easement of this character can be created by grant, and that the right to its enjoyment will in like manner pass as appurtenant to the premises in respect of which it was created. In discussing a similar proposition in the American note to Spencer's Case, 1 Smith, Lead. Gas. (6th Am. Ed.) 167, it was said: "But al- though the covenant when regarded as a contract, is binding only be- tween the original parties, yet, in order to give effect to their intention, it may be construed by equity as creating an incorporeal hereditament (in the form of an easement) out of the unconveyed estate, and ren- Ch- 2) EQUITABLE SERVITUDES. 105 dering it appurtenant to the estate conveyed ; and, when this is the case, subsequent assignees will have the right and be subject to the obliga- tions which the title or liability to such an easement creates." . . . The defendant took her title to the premises owned by her with actual and full notice of the covenant in the Howe deed, and of all the equities arising therefrom. Moreover, she and her predecessors in title gave practical construction to the language and obligations of that covenant by sustaining the burden which it imposed for a long term of years; and in view of these circumstances it would, as was said by Allen, J., in Trustees, etc., v. Lynch, supra, "be unreasonable and unconscientious to hold (her) absolved from the covenant in equity for the technical reason assigned that it did not run with the land so as to give an action at law." We think the interlocutory judgment appealed from should be affirmed, with the usual leave to answer. . . t ROBERTS V. SCULL. (New Jersey Court of Chancery, 1899, 58 N. J. Eq. 396, 43 Atl. 583.) Grey, v. C. . . .The complainant in this suit is the owner of a house and lot situate on the east side of United States avenue in At- lantic City. She alleges that forty years ago one Brown, being the holder in fee of a tract of land of which her lot formed a part, opened a street, now called United States avenue, and built two houses on each side of it, facing on said avenue and set back from the street or proper- ty line a distance of thirty-two feet, and afterwards sold lots on either side of said avenue ; and that in each of the deeds conveying those lots there was inserted a condition that the house or houses to be built thereon should be in keeping with those already built by him and set back a distance of thirty-two feet from the property line, and that no stables or outbuildings should be erected on any of said lots ; and that as a result of said restrictions United States avenue has been built up with cottages in good style, and said lots have been keep free from all buildings except such as face on United States Avenue. . . . It appears to be settled law in the state that restrictive covenants of the character set forth in the bill, will be enforced in equity, not only against the original grantee, but also against all subsequent pur- 30^ SPECIFIC PERFORMANCE OF CONTEAOTS (Part 1 chasers with notice of the covenant. De Gray v. Monmouth Beach Co., S Dick. Ch. Rep. 329 ; Hayes v. Waverly &c. Raihoad Co., 6 Dick. Ch. Rep. 345, and cases there cited. The parties who may enforce such restrictive covenants are the original grantors with whom they were made and all subsequent pur- chasers of the lands to be benefited by them. The parties against whom they may be enforced are the grantees who accept deeds contain- ing the restrictions, and all those who subsequently purchase the re- stricted lands with notice of the covenant. The principle upon which a person not a party to a restrictive cove- nant is permitted to enforce it, is based upon the idea that the sub- sequent purchaser of lands to be benefited by the enforcement has made his purchase and paid his consideration in the expectation of the benefit to accrue to the land bought, from the observances of the re- striction imposed by his grantor upon the use of the lots previously conveyed to the covenantor, and no injustice is worked upon the cov- enantor or his assigns with notice of the covenant by restraining them from using the land in a maAner inconsistent with the contract under which they obtained the title and which fixed the price they paid with relation to the restrictions imposed. Tulk v. Moxhay, 2 Phil. 774. That is, the prior purchaser from the common grantor, by reason of the restrictions imposed, paid less price for his land ; the party who sub- sequently purchased from the common grantor a part or the whole of the land to be benefited by the restrictions, bought in consideration of the benefits coming to his lot because of the restrictions. This re- lation is such a privity as supports an equity in the subsequent pur- chaser of the lot benefited by the covenant to enforce it. But this rule, while operative to enable a subsequent purchaser of land to be benefited by a restrictive covenant to enforce it against the prior purchaser, who made it, and against his assigns, with notice of it, does not work inversely to support the claim of a prior purchaser from the original owner to enforce a restriction imposed by the latter upon a lot subsequently conveyed. De Gray v. Monmouth Beach Co., 5 Dick. Ch. Rep. 329. The prior purchaser did not buy in expectation of any benefit to be derived from the subsequent covenant not yet in existence, nor did the subsequent purchaser make his covenant with the common grantor with relation to lands which the latter had previously conveyed and in which he had no interest. Ch. 2) EQUITABLE SERVITUDES. 107 In order to entitle prior purchasers from a common vendor, or those claiming under them, to enforce such covenants, it must be shown that they are parts of a general plan adopted for the development and' improvement of the property by laying it out in streets and lots, pre- scribing a uniform building scheme, regulating size and style of houses, or uses to which the buildings may be put. De Gray v. Monmouth Beach Co., supra. When there is such a general plan and covenants imposing uniform restrictions, each purchaser, as he buys his lot and accepts the restrictive covenant, pays his purchase-money in consider- ation of, and relying upon, the subsequent execution of the general plan by the imposition of like covenants upon succeeding purchasers. This equity arises in favor of a grantee under the restriction of the uniform plan, as well as against the original owner who promulgates and sells lots on the general plan and attempts to make subsequent con- veyances in avoidance of it, as against a grantee who accepts a deed with the restrictions, and does acts in breach of them. . . . There is a suggestion in the bill that there was such a general plan of improvement, but the supporting proof depends entirely upon the complainant's unaided depositibn. She was not a purchaser from Brown, the common grantor, nor does she appear to have any know- ledge of his original design in laying out the property. She testifies as to her information and belief as of the time when she purchased from L,adner, or some subsequent grantee, that the lot north of her and those on United States avenue were subject to covenants "that no dwelling-house could be erected on any of said lands except those that front on United States avenue, and set back thirty-two feet from said avenue." No map of the lots is shown marking the building line, nor is there any proof of any action by the common grantor. Brown, indicating a design on his part to develop the land upon a uniform plan of which the covenants in the deed of Brown to Graham for the defendant's lot, fixing the building line, &c., formed a part. The complainant herself does not appear to have any knowlege upon the subject save from hearsay. The coincidence that all the deeds conveying any portion of the property contained the same cove- nants would not, if it were true, be sufficient of itself to show that the covenant made by Graham on receiving his deed from Brown in 1888 was intended to be for the benefit of Ladner's lot, who had bought 108 SPECIFIC PEEFOKJVIANCE OF CONTBAOTS (Part 1 from Brown in 1882, six years before. Mulligan v. Jordan, 5 Dick. Ch. Rep. 363. The proof submitted does not support the claim that the covenants were part of a general building plan. . . . \ McCLURE V. LEAYCRAFT. (New York Court of Appeals, 1905, 183 N. Y. 36, 75 N. E. 961.) This action was brought to restrain the defendant from erecting an apartment house upon premises owned by him situate on the south- west corner of 145th street and St. Nicholas avenue in the city of New York. Either party owns land nearly adjacent to that of the other and on the same block. There is a four-story dwelling designed for but one family standing on the land of the plaintiff, while the premises of the defendant are vacant. Both parties took title from a common source and subject to a covenant, made November 9th, 1886, against the erection at any time upon any part of the tract to which the lands of the respective parties belong "of any buildings except brick or stone dwelling houses" or "any tenement, apartment or community house." On the 8th of December, 1886, the covenant was so modified as to per- mit the erection of churches upon the tract and to Hmit the period of re- straint to twenty-five years. These covenants by express agreement ran with the land and the instruments containing the same were duly recorded as conveyances in the proper office. Shortly before the com- mencement of this action the defendant filed plans to erect and had begun the erection upon his premises of a six-story modern apartment house, "divided into forty-two independent and separate suites of rooms or apartments, each suite containing a complete set of rooms and improvements such as are usually found in a first-class private dwell- ing house." In addition to the foregoing facts the trial court found as follows : "Tenth. That at the time when the conveyances hereinbefore set forth were made and entered into, the real property in the vicinity of the property hereinbefore described was occupied exclusively by small private dwellings, and was classed as a private residential district, and Ch. 2) EQUITABLE SEEVITUDES. 109 such houses were built solely for one family and occupied by one family, and there were no places of business, flats, tenements or apart- ment houses in the immediate neighborhood of the property affected by the said covenants. "Eleventh. That since the making of the said covenants and with- in the period of about ten years last past great changes have occurred in the neighborhood and in the class of buildings erected upon the prop- erty in said neighborhood, and in the immediate vicinity of the prem- ises owned by the plaintiff and the defendant, and there has been erect- ed upon such property, including the three corners directly opposite to defendant's premises, large apartment houses having a great many apartments therein, several on each floor and several stories in height, and which are occupied on the ground floor by places of business and used for business purposes, numerous flats or tenement houses have been built on the block fronting on One Hundred and Forty-fifth street between St. Nicholas and Bradhurst avenues, which is in the vicinity of plaintiff's and defendant's property." "Fourteenth. That the erection upon the said land of the said apart- ment house which the defendant proposes to erect thereon will not de- crease the fee value of the plaintiff's premises or of the land and dwell- ings within the tract hereinbefore described, but will increase the value thereof, and the use of the same as an apartment house will not make the neighborhood undesirable nor decrease the value of the adjoining property. "Fifteenth. That the change which has taken place in the character of the neighborhood has made the property, including the tract here- inbefore described, especially the land owned by the defendant, unde- sirable for the erection of a private dwelling thereon. "Sixteenth. That by reason of the change in the character of the neighborhood and of the immediate vicinity of plaintiff's property and defendant's property the same has been so altered as to render inex- pedient the observation of the said covenants, and it would be inequi- table to enforce the covenants hereinbefore set forth against the de- fendant, as the enforcement of the same would cause him great dam- age and would not benefit the owners of the adjoining property." The complaint was dismissed on the merits, for the reason, among others, "that the character and condition of the neighborhood have so changed since the making of the said agreements that it would be in- equitable to enforce a covenant prohibiting the erection of a structure -^10 SPECIFIC PERFORMANCE OF COWTEAOTS (Part 1 such as the defendant proposes to erect and equitable reHef en- joining the defendant from erecting the said structure should be re- fused." Vann, J. . . . Assuming, therefore, that the defendant was about to violate the covenant, the question is whether upon the facts found and approved by the courts below relating to the radical change in the situation of the property affected by the covenant, a court of equity was bound to refuse equitable relief in the form of an injunction and to leave the injured party to recover his damages in an action at law. If the granting or withholding of a permanent injunction is within the absolute discretion of the Supreme Court, the exercise of that discretion by the Appellate Division in favor of the plaintiff is 1 syond our power to review; but if the facts found compel the con- cmsion, as matter of law, that an injunction should be refused, as in- equitable, the order of reversal was wrong and the judgment rendered by the trial court should be restored. While a temporary injunction involves discretion, a permanent injunction does not when the facts conclusively show that it would be inequitable and unjust. A court of equity will not do an inequitable thing. It is not bound by the rigid rules of the common law, but is founded to do justice, when the courts of law, with their less plastic remedies, are unable to afford the exact relief which the facts require. Its fundamental principle, as its name implies, is equity. It withholds its remedies if the result would be unjust, but freely grants them to prevent injustice when the other courts are helpless. It cannot set aside a binding contract, but when the effect would be inequitable owing to facts arising after the date of the agreement and not within the contemplation of the parties at the time it was made, it refuses to enforce the contract and remands the party complaining to his remedy at law through the recovery of damages. These principles were applied by this court in an important case which we regard as analogous and controlling (Trustees of Columbia College V. Thacher, 87 N. Y. 311). In that case adjoining landowners in the city of New York had entered into reciprocal covenants restrict- ing the use of their respective lands to the sole purpose of a private residence and expressly excluding "any kind of manufactory, trade or business whatsoever." After the lapse of nearly twenty years the de- fendant permitted a building upon his land, which was bound by the Ch. 2) EQUITABLE SEEVITUDES. Ill covenant, to be used for the business of a tailor, a milliner, an insur- ance agent, a dealer in newspapers and tobacconist. After commence- ment of an action by the other landowner to restrain such use an elevat- ed railway was. built and a station located in the street in front of the premises of both parties. It was found as a fact that the "railway and station affect the premises injuriously and render them less profitable for the purpose of a dwelhng house, but do not render their use for business purposes indispensable to their practicable and profitable use and occupation. The said railway and station, however, do not in- juriously affect all the property fronting on Fiftieth street and in- cluded in the said covenant, but only a comparatively small part there- of." The trial court awarded a permanent injunction and the General Term affirmed the judgment, but the Court of Appeals reversed and dismissed the complaint on the ground that a contingency, not within the contemplation of the parties, had frustrated the scheme devised by them and rendered the enforcerhent of the covenant oppressive and inequitable. This court obviously held that an injunction, under the circumstances, was not within the absolute discretion of the Supreme Court, for otherwise, according to its uniform rule of action, it would not have reversed the judgment or dismissed the complaint. The opinion of Judge Danf orth, concurred in by all the members of the court, declared that there was a clear breach of the covenant which, under ordinary circumstances, would entitle the plaintiff to an injunction, but, he said, "though the contract was just and fair when made, the interference of the court should be denied if subsequent events have made perform- ance by the defendant so onerous that its enforcement would im- pose great hardship upon him and cause little or no benefit to the plaintiff. (Willard v. Tayloe, 8 Wall. 557; Thomson v. Harcourt, case 66, p. 415, vol 2, Brown's Parliamentary Reports; Davis v. Hone, 2 Sch. & Lef. 340; Baily v. De Crespigny, L. R. (4 Q. B.) 180; Clarke v. Lockport and Niagara Falls Railroad Company, 18 Barb. 350)." After reviewing the authorities cited, the learned judge continued: "In the case before us, the plaintiffs rely upon no circumstance of equity, but put their claim to relief upon the covenant and the violation of its conditions by the defendant. They have established, by their complaint and proof, a clear legal cause of action. If damages have 112 SPECIFIC PEEFOE.MANCE DP COKTEACTS (Part i been sustained, they must, in any proper action, be allowed. But on the other hand, the defendant has exhibited such change in the condition of the adjacent property, and its character for use, as leaves no ground for equitable interference if the discretion of the court is to be govern- ed by the principles I have stated, or in the cases which those principles have controlled. . . . The road was authorized, by the legisla- ture, and, by reason of it, there has been imposed upon the property a condition of things which frustrates the scheme devised by the parties, and deprives the property of the benefit which might otherwise accrue from its observance. This new condition has already affected, in various ways and degrees, the uses of property in its neighborhood, and property values. It has made the defendant's property unsuitable for the use to which by the covenant of his grantor, it was appropriat- ed, and if, in face of its enactment and the contingencies flowing from it, the covenant can stand anywhere, it surely cannot in a court of equity." This case was followed in Stokes v. Stokes (155 N. Y. 581, 590) ; Amerman v. Deane (132 N. Y. 335, 359) ; Conger v. N. Y., W. S. & B. R. R. Co. (120 N. Y. 29, 32) ; Page v. Murray (46 N. J. Eq. 325, 331). (See, also, Jewell v. Lee, 96 Mass. 145; Taylor v. Longworth, 14 Peters, 172, 174; Duke of Bedford v. Trustees British Museum, 2 My. & K. 552; Sayers v. Collyer, L. R. (24 Ch. Div.) 170). So long as the Columbia College case stands, the judgment appealed from cannot, for the same principle controls both. In each the changed condition was wholly owing to the lawful action of third parties, which made the allowance of an injunction inequitable and oppressive. In- deed, an injunction in the case before us would be more oppressive than in the case cited, for it is expressly found, and the finding is final here, that the proposed erection would actually increase the value of the plaintiff's premises, while the enforcement of the covenant, without benefiting any one, would cause great damage to the de- fendant. It is a reasonable inference from the evidence that the rent roll of the defendant's land, with such dwelling houses on it as would rent to the best advantage, would not exceed $4,500 a year, while an apartment house such as he proposes to erect would rent for over $40,000 a year. Nineteen of the twenty-five years which bounded the life of the covenant in question have passed, and the object of the parties in Ch. 2) EQUITABLE SEEVITXJDES. 113 making it has been defeated by the unexpected action nf persons not under the control of the defendant. Under the circumstances now ex- isting the covenant is no longer effective for the purpose in view by the parties when they made it, and the enforcement thereof cannot re- store the neighborhood to its former condition by making it desirable for private residences. If the building restriction were of substantial value to the dominant estate a court of equity might enforce it even if the result would be a serious injury to the servient estate, but it will not extend its strong arm to harm one party without helping the other, for that would be unjust. An injunction that bears heavily on the de- fendant without benefiting the plaintiff will always be withheld as oppressive. No injustice is done, for the damages sustained can be recovered in an action at law, and the material change of circumstances so affects the interests of the parties as to make that remedy just to both. . . . BREWER V. MARSHALL AND CHEESEMAN. (New Jersey Court of Chancery, 1868, 19 N. J. Eq. 537.) The injunction in this case restrains the defendant, Marshall, from selling or removing from the farm conveyed to him by the defendant, Cheeseman, known as the Swope farm, any marl, and from digging any marl on it except for the use of the farm. The defendants have filed their answer, and move to dissolve the injunction. . . . Thb Chief Justice. . . . George Cheeseman was originally the owner in fee of the several tracts of land now respec- tively owned by the appellant, Mr. Brewer, and by the respondent, Mr. Marshall; that on the 23rd day of February, 1841, he conveyed to the grantor of the appellant, the lands now held by the latter, and also, by the same instrument, another tract of twenty- eight acres, and that in this deed there was a covenant in the following words, viz. : "Also, the said George Cheeseman, his heirs or assigns, are not to sell any marl, by the road or quantity, from off his premises adjoining the above property." The tract described in this covenant as that to which the restriction was to apply, is now owned by the re- lEq.— 8 114 SPECIFIC PEEFORMANCE OF CONTEAOTS (Part 1 spondent, Mr. Marshall, who, notwithstanding the covenant just quot- ed, has exercised, and still claims, the right to sell marl therefrom. . . From this view of the authorities, I am entirely satisfied that a court of equity will sometimes impose the burthen of a covenant relat- ing to lands on the alienee of such lands, on a principle altogether aside from the existence of an easement or the capacity of such covenant to adhere to the title. So far I think the law is not in doubt, and the only question in this case, which 1 have regarded as possessed of any material difficulty, is whether the covenant now in controversy is em- braced within the proper limits of this branch of equitable jurisdiction. The inquiry is, have courts of equity ever gone the length of enforcing contracts similar to the one now before us? . . . But, in the second place it seems to me that this covenant, on which this suit rests, is illegal in itself, and absolutely void. The substance of this covenant is, that neither the former owner of these premises, nor his assigns, shall sell by the quantity any marl taken from these lands. This is not a restriction on the use of the land, for the marl can be dug up and used upon the land ; but the restriction is on the sale of the marl after it shall have been dug up. Marl of course is an article of merchandise and the covenant restrains traffic in that article. It prohibits the sale of it at any time, in any market, either by the owner of the lands or by his assigns. Now it seems to me that this is a plain contract "against trade and traffic, and bargaining and con- tracting between man and man." That it is the rule that all general restraints of trade are illegal, has never been doubted since the famous opinion of Lord Macclesfield, in Mitchel v. Reynolds, reported in 1 P. Wms. 181. And the development of this rule, and its application under a variety of conditions, can be traced in the series of decisions which have been carefully collected and intelligently commented on in the notes to the case just cited in 1 Smith's L. C. 182. The reason upon which this rule is founded, is thus expressed by Mr. Justice Best, in Homer v. Ashford, 3 Bing. 326; "The law will not permit any one to restrain a person from doing what his own interest and the public welfare require that he should do. Any deed, therefore, by which a person binds himself not to employ his talents, his industry, or his capital, in any useful undertaking in the kingdom, would be void." And so far has this principle been carried, that even in cases in which the restraint sought to be imposed is only partial, it has been repeatedly Ch. 2) EQUITABLE SEEVITXJDES. 115 held that such agreement will be void, unless it be reasonable, and that no such agreement can be reasonable in which the restraint imposed on the one party is larger than is necessary for the protection of the other. Horner v. Graves, 7 Bing. 743. Tested by these principles the covenant in question appears to be destitute of all the essentials of a legal agree- denied. (Ewertsen v. Gerstenberg, 186 111. 344; Curtis v. Rubin, supra). ment. The restraint it imposes is general both as to time, place, and persons. It transcends, by far, the limits of utility to the covenantee. I cannot say that this covenant is legal, any more than I can say that a covenant on the part of a farmer not to sell, nor permit any of the future owners of his farm to sell, any grain to be grown on his farm, would be legal. I think all such engagements are nugatory as opposed to the valuable rule of law just referred to, and which is designed, and is so well adapted, to promote commerce by preventing the imposition of all unnecessary trammels, either on labor or on property. In this view, I am prepared to say that the complainant's case has no legal foundation. DR. MILES MEDICAL CO. v. PARK & SONS CO. (United States Supreme Court, 1910, 220 U. S. 373, 394.) Mr. Justice Hughes. — The complainant, a manufacturer of proprietary medicines which are prepared in accordance with secret formulas, presents by its bill a system, carefully devised, by which it seeks to maintain certain prices fixed by it for all the sales of its pro- ducts both at wholesale and retail. Its purpose is to establish minimum ■ prices at which sales shall be made by its vendees and by all subsequent purchasers who traffic in its remedies. Its plan is thus to govern direct- ly the entire trade in the medicines it manufactures, embracing inter- state commerce as well as commerce within the States respectively. To accomplish this result it has adopted two forms of restrictive agree- ments limiting trade in the articles to those who become parties to one or the other. The one sort of contract known as "Consignment Con- tract — Wholesale," has been made with over four hundred jobbers and wholesale dealers, and the other, described, as "Retail Agency Con- tract," with twenty-five thousand retail dealers in the United States. 316 SPECIFIC PERFORMANCE OF CONTRACTS (Part 1 The defendant is a wholesale drug concern which has refused to enter into the required contract, and is charged with procuring medi- cines for sale at "cut prices" by inducing those who have made the contracts to violate the restrictions. The complainant invokes the es- tablished doctrine that an actionable wrong is committed by one who maliciously interferes with a contract between two parties and induces one of them to break that contract to the injury of the other and that, in the absence of an adequate remedy at law, equitable relief will be granted. Angle v. Chicago, St. Paul, Minneapolis & Omaha Railway Co., 151 U. S. 1; Bitterman v. Louisville & Nashville Railroad, 207 U. S. 205. The principal question is as to the validity of the restrictive agree- ments. . . . The present case is not analogous to that of a sale of good will, or of an interest in a business, or of the grant of a right to use a process of manufacture. The complainant has not parted with any interest in its business or instrumentalities of production. It has conferred no right by virtue of which purchasers of its products may compete with it. It retains complete control over the business in which it is engaged, manufacturing what it pleases and fixing such prices for its own sales as it may desire. Nor are we deahng with a single transaction, con- ceivably unrelated to the public interest. The agreements are designed to maintain prices, after the complainant has parted with the title to the articles, and to prevent competition among those who trade in them. The bill asserts the importance of . a standard retail price and al- leges generally that confusion and damage have resulted from sales at less than the prices fixed. But the advantage of established retail prices primarily concerns the dealers. The enlarged profits which would result from adherence to the established rates would go to them and not to the complainant. It is through the inability of the fa- vored dealers to realize these profits, on account of the described com- petition, that the complainant works out its alleged injury. If there be an advantage to a manufacturer in the maintenance of fixed retail prices, the question remains whether it is one which he is entitled to secure by agreements restricting the freedom of trade on the part of dealers who own what they sell. As to this, the complainant can fare no better with its plan of identical contracts than could the dealers themselves if they formed a combination and endeavored to establish oil. 2) EQUITABLE SERVITUDES. 117 the same restrictions, and thus to achieve the same result, by agreement with each other. If the immediate advantage they would thus obtain would not be sufficient to sustain such a direct agreement, the asserted ulterior benefit to the complainant cannot be regarded as sufficient to support its system. But agreements or combinations between dealers, having for their sole purpose the destruction of competition and the fixing of prices, are injurious to the public interest and void. They are not saved by the advantages which the participants expect to derive from the en- hanced price to the consumer. People v. Sheldon, 139 N. Y. 251 ; Judd V. Harrington, 139 N. Y. 105 ; People v. Milk Exchange, 145 N. Y. 267; United States v. Addyston Pipe & Steel Co., 85 Fed. Rep. 271 ; on app. 175 U. S. 211 ; Montague & Co. v. Lowry, 193 U. S. 38; Chap- in V. Brown, 83 Iowa, 156; Craft v. McConoughy, 79 Illinois, 346; W. H. Hill Co. V. Gray & Worcester, 127 N. W. Rep. (Mich.) 803. The complainant's plan falls within the principle which condemns contracts of this class. It, in effect, creates a combination for the prohibited purposes. No distinction can properly be made by reason of the particular character of the commodity in question. It is not en- titled to special privilege or immunity. It is an article of commerce and the rules concerning the freedom of trade must be held to apply to it. Nor does the fact that the margin of freedom is reduced by the control of production make the protection of what remains, in such a case, a negligible matter. And where commodities have passed into the channels of trade and are owned by dealers, the validity of agree- ments to prevent competition and to maintain prices is not to be de- termined by the circumstance whether they were produced by several manufacturers or by one, or whether they were previously owned by one or by many. The complainant having sold its product at prices satisfactory to itself, the public is entitled to whatever advantage may be derived from competition in the subsequent traffic. . . . \ WHITNEY V. UNION RAILWAY COMPANY. (Supreme Court of Massachusetts, 1858, 11 Gray 359.) Bill in equity, filed at April term 1857, alleging that the plaintiff for forty years had been seised in fee of certain lands in Cambridge ; 118 SPECIFIC PEEFORMANCE OF CONTEAGTS (Part 1 that she had incurred great expense in procuring a survey and plans thereof, and constructing and grading streets thereon, intending the same for private residences ; that on the 10th of September 1851 she sold and conveyed by warranty deed (duly recorded) to Artemas White a lot of this land, subject to these restrictions : "That if the said Artemas White, his heirs or assigns, shall suffer any building to stand or be erected within ten feet of Ivambert Avenue, or shall use or fol- low, or suffer any person to use, or follow, upon any part thereof, the business of a taverner, or any mechanical or manufacturing, or any nauseous or offensive business whatever, then the said grantor, or any person or persons at any time hereafter, who at the time then being shall be a proprietor of any lot of land, represented upon said plan, east of lot No. 27 and north of Lambert Avenue, shall have the right, after sixty days' notice thereof, to enter upon the premises with his, her or their servants, and forcibly, if necessary, to remove therefrom any building or buildings erected or used contrary to the above restrictions, and to abate all nuisances, without being liable to any damages there- for, except such as may be wantonly and unnecessarily done." The bill further alleged that White erected a stable on this lot, and kept horses for hire and at livery, against the remonstrance of the plaintiff, and to her nuisance and injury. . . . The bill prayed for an injunction to restrain the defendants from erecting additional stables, or laying rails or constructing a turntable in the street, or keeping a stable for horses upon the premises, and for an abatement of these nuisances .... BiGELOW, J. — The claim of the plaintiff to equitable relief rests mainly on the validity of the restrictions contained in her deed to Artemas White of September 10th 1851, under which the defendants hold the estate described in the bill. By the facts stated in the bill and admitted by the demurrer, it appears that the plaintiff was origi- nally the owner in fee of a large tract of land, which she caused to be surveyed and laid out in lots, with suitable ways or streets affording convenient access thereto, intending to sell them to be used and occu- pied by private dwellings. One of these lots she sold and conveyed to White by the deed above mentioned, containing the clause as to the use and occupation of the premises, which is fully stated in the bill. This lot by mesne conveyances has become vested in the defendants. The plaintiff still continues the owner of a part of the tract originally laid out by her, and occupies a dwelling house thereon, nearly opposite to Ch. 2) EQUITABLE SEEVITTJDES. 119 the lot now owned by the defendants. She was therefore the original grantor by whom the restrictions were created, and, as the owner and occupier of a part of the estate out of which the land owned by the defendants was granted, and for the benefit and advantage of which the restrictions were imposed, she has a present right and interest in their enforcement. The purpose of inserting them in the deed is mani- fest. It was to prevent such a use of the premises by the grantee and those claiming under him, as might diminish the value of the residue of the land belonging to the grantor, or impair its eligibility as sites for private residences. That such a purpose is a legitimate one, and may be carried out, consistently with the rules of law, by reasonable and proper covenants, conditions or restrictions, cannot be doubted. Every owner of real property has the right so to deal with it, as to restrain its use by his grantees within such limits as to prevent its appropriation to purposes which will impair the value or diminish the pleasure of the enjoyment of the land which he retains. The only restriction on this right is, that it shall be exercised reasonably, with a due regard to pub- lic policy, and without creating any unlawful restraint of trade. Nor can there be any doubt that in whatever form such a restraint is placed on real estate by the terms of a grant, whether it is in the technical form of a condition or covenant, or of a reservation or exception in the deed, or by words which give to the acceptance of the deed by the grantee the force and effect of a parol agreement, it is binding as be- tween the grantor and the immediate grantee, and can be enforced against him by suitable process, both in law and equity. . . . But it is very clear that a suit in equity to compel a compliance with such stipulations concerning the use of property must be seasonably commenced, before the persons in possession of the estate have ex- pended money or incurred habilities in erecting buildings or other structures on the premises. It would be contrary to equity and good , conscience to suffer a party to lie by and see acts done involving risk and expense by others, and then permit him to enforce his rights and thereby inflict loss and damage on parties acting in good faith. In such cases, a prompt assertion of right is essential to a just claim for relief in equity. In the present case, the plaintiff can have no equitable relief to prevent the use or procure the abatement of the stable erected by White. Having stood by and permitted its erection, she cannot now invoke the aid of the court to enforce a remedy in equity for its re- ?20 SPBCIPIC PERFOEMANCE OF CONTRACTS (Part 1 moval. Whether she has been guilty of further laches, so as to pre- vent her maintaining the bill against the defendant for acts done by them in enlarging the stable, can be determined only upon hearing the facts bearing on the question. . . . SECTION V. CONSEQUENCES OF THE RIGHT OF SPECIFIC PERFORMANCE LANGFORD v. PITT. (In Chancery, 1731, 3 Peere Williams, 629.) Upon a bill brought by the plaintiff for the performance of articles for a purchase, the case was: The plaintiff Langford, vicar of Ax- minster in Devon, did by attorney enter into articles with Governor Pitt for the sale of lands in Cornwall. The articles were dated Novem- ber, 1725, whereby the plaintiff agreed to convey the premises to the governor and his heirs, on or before Lady Day then next, at the costs and charges of the governor, and as counsel should advise ; upon the making of which conveyance the governor covenanted to pay £1500 to the plaintiff. Governor Pitt lived until after Lady Day, but in 1722, long before the executing of these articles, made his will, by which he devised all his real estate to his son Robert Pitt for life, remainder to his eldest son John Pitt for life, remainder to his first, etc., son in tail male sue-, cessively, with several remainders over, bequeathing all his personal estate to trustees to be invested in lands and settled as above; and dying soon after Lady Day, 1726, his said eldest son and heir laid claim to the premises, as descending to him, and made his will, wherein by express words he devised the premises thus articled to be purchased to his wife and others, in trust to pay his debts, etc., and soon after- wards died, leaving John Pitt his son and heir, to whom the governor Ch. 2) CONSEQUENCE OP SPECIFIC PERFORMANCE. 121 had devised all his estate expectant on the death of Robert Pitt the son. . . . Then the question was between the defendants, whether the devisees of Robert Pitt the son, or the grandson under the will of the governor, were entitled to the lands thus articled to be purchased, for it was agreed that the purchase-money was to be paid by the executors of Governor Pitt. And for the latter it was objected by the attorney and Solicitor-Gen- eral, that when the governor by his will devised all his real, and also his personal estate to be laid out in land and all this to be for the bene- fit of his grandson John, after the death of his son Robert Pitt, either m one shape or other, these lands thus agreed to be purchased by the governor should pass; that nothing could be plainer than his in- tention to dispose of all his estate both real and personal; and Mr. Solicitor cited the case of Greenhill v. Greenhill, 2 Vern. 679, by which it is decreed that were a man articles to buy land, this gives the party contracting an equitable interest in such land, which he may devise, though before the day on which the conveyance is to be made. Master op the Rolls. I admit the case of Greenhill and Greenhill, in which I myself was of counsel, to have been so deter- mined; but this material difference is observable between the two cas- es : there the articles for the purchase were entered into by the testator before he made his will, and so the equitable interest which he gained' thereby was well devisable; but in the present case Governor Pitt's will was made prior to the articles for this purchase, before he had any equitable interest in the land, consequently (Vide Green v. Smith, 1 Atk. 572; Potter v. Potter, 1 Ves. 437) when he had no kind of title, he could devise nothing ; so that this interest in the premises gained by the governor's articles must have descended to his son Robert Pitt as heir-at-law, who might well devise the same ; and though it may at first look strange, that when the governor devised all his real and per- sonal estate, these words should not carry all, yet it will not seem strange, when it is considered that an estate purchased after the will cannot pass thereby; now these articles are as a purchase subsequent, and though the governor's executors are to pay for such purchase, they cannot have the benefit of it, being to advance the money only as a debt from their testator. . . . 122 SPECIFIC PERFORMANCE OF CON'TRACTS (Part 1 COLES V. FEENEY. (New Jersey Court of Chancery, 1894, 53 N. J. Eq. 493, 29 Atl. 172.) The bill is brought for the specific performance of a contract for the sale of land by the testatrix to the defendant Feeney, on the 26th of December, 1891, by which the testatrix, in consideration of $3,000, agreed to convey to the defendant Feeney, a tract of land in Jersey City, of which she was the owner, the conveyance to be completed on the 26th of January, 1892. The contract was signed by each of the parties. Three days after the date of this agreement Mrs. Coles died testate of a will, by the first item of which she devised "so much of my real estate situate in Jersey City in the State of New Jersey derived by be from my son William F. Coles lately deceased as at my decease shall remain unsold and shall not then be improved by dwelling-houses or other buildings." This devise covers the land cov^ed by the con- tract. . . . The bill alleges that shortly after the will was proven the executors tendered a deed to Mr. Feeney for the tract of land in question and demanded payment of the purchase-money, and that he declined, not on the ground that the deed was not tendered at the time fixed by the contract, but because the executors were unable to give a perfect title. 'ihe defendant Feeney answers, and bases his refusal to complete the purchase solely on the ground of the inability of the executors to make a complete title in the absence of the devisees of the lot in ques- tion, who, being numerous, were not made parties. . . . PiTNBY, V. C. — I do not think the rights of the parties turn upon the question, so much discussed in the briefs, whether or not the land in question "remained unsold" at the decease of the testatrix, and because sold was not devised by her under the first item of her will, or whether she "died seized" of it in such sense as to bring it within the scope of the power of sale contained in the thirteenth item. If this contract of sale was a valid contract, its effect was to work a conversion of the land from real to personal property. This it was in the power of the testatrix to do, notwithstanding her will, which was made before the date of the contract. Such conversion, if made, had the effect of taking the land out from under the operation Ch. 2) CONSEQUENCE OF SPECIPiC PERFORMANCE. 123 of the first clause of her will and giving the proceeds of it to her re- siduary legatees and devisees as a part of her personal estate, and, in the absence of any power of sale, it seems to me entirely clear that the executors would have the right, and it would be their duty, to take proper proceedings to perfect the conversion by compelling the trans- fer of the legal title to the purchaser and obtaining from him the pur- chase-money. Miller v. Miller, 10 C. E. Gr. 354. In contemplation of equity, the title to the property vested in the purchaser as soon as the contract was executed and delivered, subject, however, to a hen in favor of Mrs. Coles for the unpaid purchase-money, and that hen is capable of being enforced by her executors against the specific devisees of the particular land, even in the absence of any power of sale, by compelling them to convey to the purchaser and compelling the purchaser to pay to the executors the purchase-money. This right of the personal representatives depends entirely upon the validity of the contract, and in order to enforce such right they must establish its validity as against either the heir-at-law or devisee, as the case may be. . . . This view of the case shows that the bill is defective in not making parties the several devisees under the first clause of the will. If they' had been made parties I should say the executors were entitled to re- Hef. But it is manifestly unjust, and not in accordance with equity, to ask the purchaser to take a title the validity of which depends upon a nice question of construction, when it is within the power of the executors to eliminate all question and room for debate by making the specific devisees parties. The case may stand over, to enable the executors to bring in those devisees if they shall be so advised. Otherwise, I will advise that the bill be dismissed. ROBERTS V. MARCHANT. (High Court of Chancery, 1843, 1 Phillips 370.) The Lord Chancellor. This was a suit by the administrator of the vendor against the purchaser of an estate for a specific performance of the agreement of sale. The Defendant by his answer 124 SPECIFIC PERFOBMANCE OF . CONTEACTS (Part 1 objected that the heir-at-law of the vendor ought to have been a party to the suit. The Vice-Chancellor Wigram allowed the objection. This is an appeal from that decision. It was argued that by the contract the estate was converted into personalty, and that the heir-at-law had no interest in the matter. But that is to assume the very point in controversy, for the heir-at-law may dispute the contract and controvert its validity. It was further argued, that, as a general rule, it is not necessary to make parties to the bill those who are not parties to the contract ; but that rule does not ex- tend to representatives ; and the heir-at-law is the representative of the vendor as to the realty. . . . POTTER V. ELLICE. (New York Court of Appeals, 1873, 48 N. Y. 321.) This is an action against the heirs of a vendor, to compel the specific conveyance of land. The executors of the deceased vendor are not made parties. . . . At the close of the testimony, the defendant's attorney "moved to dismiss the complaint, on the ground that the said Charles R. West- brook and John Rossell were not made parties to the action." The motion was denied by the referee, who rendered judgment for the plaintiff to the effect that the property be conveyed by the defendant to the plaintiff; that the money paid into court by the plaintiff (upon a tender) remain until the delivery and execution of the said deed to the plaintiff, and that then the same be paid to the administrator of EHice, upon application for the same to the court. Hunt, C. It is difficult to say that this action is well brought, the administrators of Mr. Ellice not being made parties. The heir of Mr. Ellice holds the legal title, in trust, to convey the same to the vendee upon performance of the conditions of the contract. He is a mere instrument, having no real interest in the matter in a case where the contract is performed. The administrators are the real parties in interest. Both by the statute and the common law the interest in the contract passes to them. They are the parties to whom he money Ch. 2) CONSEQUENCE OF SPBCIEIO PEBPOBMANCE. 125 is to be paid, and who have the entire beneficial interest in the con- tract. Their discharge or receipt is a necessary muniment to the vendee. They are the parties not only who receive, but who are to settle or to contest, as the case may be, the amount to be paid by the vendee in ful- fillment of his contract. No one else can legally adjust the amount to be paid, or acquit for the payment. (2 R. S. 83 ; id., 194, No. 169 ; Havens v. Patterson, 43 N. Y., 221 ; Lewis v. Smith, 5 Seld., 502, 510; 1 Sug. on Vend., 264; Calvert on Parties in Eq., 327). The admin- istrators are parties, without whose action some of the most important points cannot be determined. Among these are the existence of the contract and the amount to be paid in fulfillment of its terms. Ad- mitting these general rules, the court below supposed that reasons existed why they should not control the present case. Among other things, it is said that the personal representatives of the vendor were tendered the amount claimed to be due upon the contract, according to their own statement of the amount due. How has this been estab- lished, and by whom ? By witnesses in a suit to which the administra- tors were not parties. This is a loose rule, by which the parties are to be bound, and their rights cut off by testimony in suits to which they are not parties, and in which they have no opportunity to establish their rights. . . . w/V COOPER V. JARMAN. (Equity Cases before the Master of the Rolls, 1866, h- R. 3 Eq. Cas. 98.) On the 12th of October, 1863, the intestate had entered into a con- tract with Messrs. James and Robert Lawrence, for the erection, by them, of a house on a piece of freehold land belonging to him. The house was in course of erection, but not finished at the time of his death; it had since been finished, and Joseph Charles Jarman had paid i799.19s. out of the personal estate of the intestate to Messrs. Lawrence for the completion of the contract by them. The question now raised was, whether the payment of this sum ought to be al- lowed to Joseph Charles Jarman, as the legal personal representative of the intestate. . . . 126 SPECIFIC PERPOEMANCE OF CONTEACTS (Part 1 Lord Romilly, M. R., after stating the facts, continued : The next of kin contend that this sum ought not to be allowed and that the heir-at-law must personally bear the expense of completing the house. The ground on which this is insisted on by the next of kin, is, that the contract was of such a character that the specific performance of it could not have been enforced against the intestate if he had thought fit to resist it, and that if he had done so, and had in the middle stopped the further building of the house, the only remedy which Messrs. Lawrence could have had agafnst him would have been by an action for damages sustained by them by the breach of contract by the in- testate. There can not, however, be any question but that the ad- ministrator would have been liable, in an action brought by the Messrs. Lawrence, if he had refused to allow them to complete the contract. . . . I think it cannot be good law that an administrator is bound to do an injury and inflict damages upon a person with whom the intestate had entered into a contract, and to prevent that person from completing his contract because, by so doing, he would increase the personal estate of the intestate. There is, as it appears to me, a wide distinction between the case of this description and the case of a con- tract for the purchase of a piece of land. In that case, the personal estate of the intestate, or testator, is bound to pay the purchase-money, provided a good title can be made ; but if a good title cannot be made, then there is no contract, and no action would lie against the repre- sentatives of the intestate, because the contract, in the absence of any express stipulation, necessarily is inferred to have been to buy land with a good title; and if the deceased person had contracted to buy land with any particular title, in a manner to bind him, this con- tract would bind the personal estate in the hands of the next of kin. But I have seen no case, and I am unable to believe that any case can be found, where a legal personal representative has been made answer- able for performing a contract entered into by the deceased per- son, and at the time of his death intended to be performed by him, merely because, according to the peculiar rules of equity relating to the doctrine of specific performance, such a contract could not have been enforced by a suit in equity against the deceased person, or against his representative. Here, unquestionably, the intestate had bound himself, as far as possible, during his lifetime. The house had been begun; the building was in progress when he died. If the oil. 2) CONSEQUENCE OF SPECIFIC PEBFORMANCE. 127 Messrs. Lawrence had, therefore, refused to go on with the build- ing, an action would have lain against them at the suit of the ad- ministrator; and it cannot, in my opinion, be law, that the next of kin should be entitled to call upon the heir-at-law to resist the Messrs. Lawrence, and hinder them from coming on the land, and prevent them from completing the contract because, in the opinion of the next of kin, the damage sustained by the contractor would possibly be less than the amount to be paid for the fulfillment of the contract. Be- sides which, if I am so to hold, no rule could be adopted which would be certain. The administrator could not safely pay the amount of dam- ages claimed by the contractor for the loss sustained by the breach of the contract. If he did, the next of kin might successfully say that he paid more than a jury would have allowed ; and if he resisted, and went to trial at law, and thereupon the amount of damages found by the jury, together with the costs of the suit, should exceed the amount to be paid for the completion of the contract, could the legal prsonal representative be allowed to deduct this in taking the ac- counts? I apprehend clearly not. The administrator has, in my opinion, a clear duty to perform. The moral duty is distinct, ''t is to perform the contract entered into by his intestate. The legal duty, in this instance, as I believe it is in all cases where it is fully understood and examined, is identical with the moral duty. I am, therefore, of opinion that this sum has been properly allowed in the accounts of the administrator. SPRAKE V. DAY. (Supreme Court of Judicature, 1898, 2 Ch. Div. 510.) The testator, by his will, dated June 2, 1893, appointed the plain- tiffs and the defendant H. J. Sprake, to be executors and trustees thereof. And he devised his dweUing-house known as Weston Manor House, together with the stables etc., thereto belonging, and certain closes of land adjoining, to the use of Elizabeth Louisa Sprake-Day during her life, and after her decease to the use of her daughter Alice Maud Day (the other defendant) during her life. . . . In May, 1893, the testator entered into a contract with some 128 SPECIMO PERFOBJVTANCE OF CONTRACTS (Part 1 builders for the erection of some cottages upon a part of the property thus devised to Mrs. Sprake-Day and her daughter. The testator had also entered into another contract with the builders for the erection of a house on some land situate at a place called Misterl'in which belonged to Mrs. Sprake-Day, it having been conveyed to her absolutely at his instance during his Hfetime. At the time of the te';- tator's death neither of these contracts had been completed, and after his death the builders were not allowed by the plaintiffs to finish the work. . . . NoiTH, J. As regards the property which was devised by the testator for the benefit of Mrs. Sprake-Day and her daughter, and which was the subject of a contract for building existing at the time of his death, I think a case is made for an inquiry, because it seems to me that Cooper v. Jarman applies. It is said that that case stands by itself ; but although, so far as I know, there has been no other case which supports it, on the other hand there is none against it, and ir lays down an intelligible principle. It has been unreversed for a great many years, and though no doubt the point is one which does no', often arise, still there the case stands, and I must follow it, but I do not think it applies to the Misterton property which was not given by the testator's will. That property had at some time before his death been conveyed direct to Mrs. Sprake-Day at his instance. Then the testator entered into a contract for the building of four cottages upon this land. This contract has not been completed, but the per- son entitled to the benefit of it has carried in a claim against the testator's estate, and it appears from the chief clerk's note that a certain sum has been allowed. I do not see that any claim has been made by Mrs. Sprake-Day in respect of this. property. The property was conveyed to her out and out, and the testator entered into some contract with respect to it, but whether under such circumstances that she could have compelled him to carry out the contract I do not know. I can understand that there might be circumstances under which he would have been bound to carry out such a contract, by reason of some consideration moving from her to him to induce him to undertake the liability. But the evidence which has been adduced does not establish any liability of that kind, and I do not see how a person who for this purpose is a stranger — the owner of the prop- erty before the testator's death and not taking it under his will — can claim to have a contract entered into by the testator with a builder Ch. 2) CONSEQUENCE OF SPECIFIC PERFORMANCE. 129 to erect houses upon it carried out. Under these circumstances I can only direct an inquiry whether the testator had entered into any and what building contracts or contract affecting the property devised to Mrs. Sprake-Day for her life, with remainders over, and whether any and which of such contracts were uncompleted at his death in respect of which his estate was under any and what liability, and whether any and what compensation should be paid by the testator's estate in respect thereof. NEWTON V. NEWTON. (Rhode Island Supreme Court, 1876, 11 R. I. 390.) DuRifgi;, C. J. This is a motion for leave to amend a bill in equity. The bill is brought by the widow and children of William Newton, late of Newport, deceased, against Edward F. Newton, administrator upon his estate. The bill sets forth that on the 4th day of February, 1847, William Newton conveyed to the defendant for $2,000, one undivided half part of a certain lot of land in Newport, and that on the 13th day of February, 1858, said William Newton conveyed to the defendant for $1,500 one undivided half part of a certain other lot of land in Newport. The bill further sets forth that there was among the personal property of William Newton which came into the hands of the defendant, in his capacity as administrator as aforesaid, as the plaintiffs have recently been informed, a certain bond or writing obligatory, executed by the defendant and delivered to William Newton, the purport of which was as follows, to wit: It recites the sales above mentioned, and binds the defendant under a penalty of $4,000 to fulfill an agreement by which he grants "the privilege to the said William Newton at any time, at his own option, for or within the term of seven years from the present date, to purchase the whole of said two estates for the sum of eight thousand dollars." . . . If the administrator should purchase under the option, he should doubtless purchase for and in the name of the heirs at law, the property being real estate. In this state, where the next of kin and the heirs at law are generally the same persons, and where the real and per- sonal estate is equally liable for debts, such a change in the form of the 1 Eq.— 9 130 SPECIFIC PEBFOBMANCE OP coiv'rKACTS (Part 1 assets, if wisely made, would be of small importance. But to test the power of the administrator, we may inquire what the result would be at common law. At common law the next of kin and the heirs at law are often not the same, and real estate is not liable to the same extent as personal property for debts; and therefore to concede to the administrator the power to accept the option would be to con- cede to him the power, to the extent of the option, to change the suc- cession to the property, and to qualify its liability for the debts of the intestate. We think there is no principle on which this could be permitted. Moreover, in the case at bar, the administrator, to have accepted the option, would have had not only to pay $8,000, but also to exonerate the maker of the bond from partnership losses and liabilities. Neither the bill nor the proposed amendment offers to fulfill this condition, or shows that it was ever within the power of the administrator to fulfill it. Certainly the administrator had no power to bind the estate to such an exoneration by any contract of indemnity, if that was required for the fulfillment of the conditions. Such a contract would have been beyond his capacity as administra- tor. . . . LAWES V. BENNETT. (In Chancery, 1785, 1 Cox 167.) Thomas Witterwronge, seized in fee of a farm called Bently, by indenture, dated 2nd October, 1758, demised the said farm to John St. Leger Douglas, Esquire, his executors, administrators, and assigns, for seven years under the yearly rent of £106 14s. 6d. and upon the back of the said indenture, was indorsed a memorandum or agreement signed by Witterwronge and Douglas bearing even date with the said indenture, whereby it was agreed by and between the said Witter- wronge and Douglas, that in case Douglas should at any time after the 29th of September 1761, and before the 29th of September 1765, be desirous of absolutely purchasing the fee simple and inheritance of the said premises, mentioned in the said indenture, for the sum . of £3000 to be paid by him to the said Witterwronge at the execution of the conveyance thereof, and of such his mind and intention should Ch. 2) CONSEQUENCE OF SPECIFIC PERFORMANCE. 131 give notice in writing to the said Witterwronge before the 29th Sep- tember 1765, then Witterwronge agreed to sell to Douglas the fee simple and inheritance of the said premises for the said sum of £3000 and to execute proper conveyances thereof. Thomas Witterwronge, by his will dated 1st September 1761, devised all his real estates of which he was seized or entitled to, unto his cousin John Bennett, and he thereby gave and bequeathed his personal estate to the said John Bennett, and to the plaintiff Mary, sister of the said John Bennett (after payment of his debts and leg- acies) to be divided equally share and share alike, and appointed John Bennett and plaintiff Mary joint executors. Testator died in June 1763, and on Uth February 1764, John Ben- nett settled an account with plaintiff Mary, of all the testator's per- sonal estate, and paid her £324 6s. 3d. as her moiety thereof, and the account was signed and allowed by both of them. By deed poll, dated 2d of March 1762, made between the said John St. Leger Douglas of the one part, and William Waller Esquire of the other part, after reciting the said lease of 1758, and the mem- orandum or agreement thereon indorsed, the said John St. Leger Douglas, for the consideration therein mentioned, assigned the said premises and all his interest therein, and all benefit and advantage which should or might arise from the said agreement to the said will- iam Waller, his executors, administrators, or assigns, for all the residue of the term then to come therein. On the 2d February 1765, William Waller called upon John Bennett to perform the contract entered into by the testator for sale of the premises for £3000, which Bennett complied with, and accordingly by indentures of lease and release, dated 1st and 2d of February 1765, in pursuance and performance of the said agreement, so indorsed upon the said indenture of 1758, and in consideration of £3000 the said John Bennett did bargain, sell, etc. the said premises to the said Wil- liam Waller, his heirs and assigns for ever. In 1779 John Bennett died, leaving defendant his widow and ex- ecutrix; and the present bill was filed by Thomas Lawes and Mary. his wife (sister of the said John Bennet), stating, that they had not until lately discovered the sale of the estate to Waller, and claiming one moiety of the purchase money received by Bennett, as being part of the personal estate of the testator Witterwronge, and which he had 132 SPECIFIC PEEPOBMANCE OF CONTKAOTS (Part 1 devised equally to Bennett and plaintiff Mary. And this was the single question in the cause, whether the premises being part of the testator's real estate at the time of his death, but sold afterwards under the circumstances aforesaid, the purchase money should be considered as part of the real or personal estate of the testator. . . . Master op the; Rolls. Although this case may be new in species, yet the principles upon which it seems to me to depend are perfectly clear, and are so well established in this court, that if I am wrong it must be by misapplication of those principles. No stress can be laid upon the will of Witterwronge, for that is expressed in very general terms. He had two species of property, one of which gives to Ben- nett, the other to Bennett and his sister. Then which kind of prop- erty is the present? It is very clear that if a man seized of a real estate contract to sell it, and die before the contract is carried into execution, it is personal property of him. Then the only possible dif- ficulty in this case is, that it is left to the election of Douglas whether it shall be real or personal. It seems to me to make no distinction at all. Suppose a man should bargain for the sale of timber, provided the buyer should give proper security for the payment of the money. This when cut down would be part of the personal estate, although it depends upon the buyer whether he gives security or not ; (as to what has been said about Douglas' being able to release his power of election, I think a court of equity would relieve against that, if it appeared to be done collusively to oust the legatee of his personal es- tate;) when the party who has the power of making the election has elected, the whole is to be referred back to the original agreement, and the only difference is, that the real estate is converted into per- sonal at a future period. The case of Bowes v. Lord Shrewsbury, 5 Bro. Pari. Ca. 269, shows the nature of the property may be altered otherwise than by the act of the original owner, although that was altered by the act of the legislature and not of any third person: but it shows generally that there is no iiTipossibility in the nature of the thing. As to the length of time, I think I can take no notice of it in this case, for here there is no pretense to presume the demand satisfied. On the contrary, it has been withholden for another reason. ' I must therefore declare this £3000 to be part of the personal estate of the testator, and that the plaintiffs are entitled to one moiety there- of, and the Master must inquire whether the plaintiff Thomas has h. 2) CONSEQUENCE OF SPECIFIC PERFORMANCE. 133 lade any, and what settlement on the plaintiflf Mary, etc. And as I interest, as it appears that Bennet laid out this money in the funds, tid consequently has made interest of it ; he must be answerable for iterest, from 1st February, at 4 per cent. . . . BAILEY AND WIFE v. DUNCAN'S REPRESENTATIVES. (Kentucky Court of Appeals, 1827, 4 Monroe, 356.) Owsley, J. ... . We have already seen that Isaac Duncan, le husband, resided upon the land at the time of his decease, and lat as respects the present contest, it is not competent for Bailey and is wife, who claim under his' purchase, to contest the goodness of is equity, so that in deciding upon the widow's right to dower, the uestion arises whether or not a wife is entitled to dower in land, of 'hich her husband dies possessed, though without having the legal tie, but to which at the time of his death he is equitably entitled to conveyance of the legal title from another? Were this question to be decided upon common law principles, the nswer would undoubtedly be in the negative. As early as Vernon's ise, 4 Co. R. 1, it was held that a wife was not dowable of a use efore the statute of uses; and since the statute, uses or trusts not secuted by the statute have been repeatedly held not to give the 'ife a greater interest that uses at common law. In the case of Bottomley v. Lord Fairfax, Free. Ch. 336, the court ly, "that if a husband before marriage conveys his estate to trustees tid their heirs, in such a manner as to put the legal estate out of him, lOUgh the trust be limited to him and his heirs, that of this trust state, the wife, after his death, shall not be endowed, and that this Durt hath never yet gone so far as to allow her dower in such a case." In the case of Chaplin v. Chaplin, 3 Peere Wm. R., the chancellor lys, "that as at common law, an use was the same as a trust is now, follows, that the wife can no more be endowed of a trust now, lan at common law, and before the statute, she could be endowed E an use." And in the case of Godwin v. Winsmore, 2 Atkins, 526, Lord [ardwicke observes, that "it is an estabhshed doctrine now that a 134 SPECIFIC PERPOEMAJSICE OF CONTEACTS (Part 1 wife is not dowable of a trust estate; indeed, says he, "a distinction is taken by Sir Joseph Jekyll, in Banks v. Sutton, 2 P. W. 708, 709, in regard to a trust where it descends or comes to the husband from another, and is not created by himself ; but I think there is no ground for such a distinction, for it is going on suppositions which hold on both sides." Thus stood the doctrine of the law upon the subject of estates in trust, until the passage of an act by the legislature of Virginia before the separation, and which has since been reenacted by the legislature of this state, and is contained in 1 Dig. L,. K. 315. The act provides, that, "where any person to whose use, or in trust for whose benefit, another is, or shall be seized of lands, tene- ments or hereditaments, hath or shall have such inheritance in the use or trust, as if it had been a legal right, the husband or wife of such person would thereof have been entitled to courtesy or dower, such husband or wife shall have and hold, and may by the remedy proper in similar cases, recover courtesy or dower of such lands, tenements, or herditaments." With respect to uses and trusts embraced by the provisions of this act, the doctrine of the common law has undoubtedly undergone a change, and although formerly a wife was not dowable of such a use or trust, she may now by the remedy proper in such a case, recover dower of the lands to which others are seized to the use, or in trust for the benefit of the husband. In deciding upon the question under consideration therefore, the main and only inquiry for the court, is to ascertain whether or not it was intended by the makers of the act, to authorize a wife to recover dower in lands, to which the husband had at his death an indisputable right in equity to a conveyance of the fee simple estate, though the right be devised under an executory con- tract for the title, and not resulting from an use or trust, expressly declared by deed. With respect to trusts of the latter sort, the pro- visions of the act are too explicit, in favor of the wife's right, to admit of a difference of opinion; and if we advert, as we should do, to the old law as it stood at the passage of the act, the mischief which must have actuated the legislature in making the change, and the remedy which the act has provided, we apprehend, but little doubt will be entertained as to the propriety of giving such a construction to the act, as will embrace all trusts, whether expressly declared by Ch. 2) CONSEQUENCE OF SPECIFIC PERFOEMANCE. 135 deed or resulting from executory contracts, by construction of courts of equity. The interests of the cestui que trust is precisely the same, let the trust be created in the one way or the other, the justice of the wife's claim is as strong in one case as the other ; and, as she was not dowable in a trust of either sort, before the enactment of the statute, the mischief to be remedied by the act, emphatically demands that the wife should be endowed of trust estates of both sorts. We have been unable to find any case, either in this country or Virginia, where dower has been decreed to the wife, in an equitable estate in fee, to which the husband became entitled by contract, for a conveyance of the land; but the right of the wife to dower in such a case came before the appellate court of the state of Virginia, in the case of Rawton v. Rawton, 1 H. M. R. 92, and although a majority of the court decided against the claim of dower in that case, two out of the five judges composing the court, were expressly in favor of the claim for dower ; and the decision of the others went not upon the idea of dower not being allowed in an equitable estate, but upon the principle that the equitable estate, of which dower was claimed, was not made out by the testimony irl the cause. And in the case of Claibourn v. Claibourn, which afterward came before the same court. Judge Roane, who was one of the judges that decided against the widow's claim of dower in the former case, in remarking upon that case, after stating its circumstances, says, "the transaction having happened subsequent to the act of 1785" (the act of which the act of this country is a tran- script), "the widow claimed her dower only under the provision of that statute. Three of the judges overruled her claim ; but it was on the ground of no contract having been proved, as they thought, for more than a life estate, in favor of the husband: two other judges thought that the husband had an equitable estate in fee, and on that ground were in favor of the dower, under the act of 1785." In the course of his remarks he further says, "the counsel in opposition to the claim of dower, admitted that under the act of 1785, the widow was entitled to dower, provided it should appear that her husband had such an equity in a fee simple estate, as would authorize a court of equity to decree the legal estate." Thus it seems to have been the concurrent opinion of the bar and the bench of the supreme court of Virginia, that since the act of 1785, of which ours is a copy, that a wife is dowable, of any equity in a fee simple estate, belonging to 136 SPECIPIO PERFORMANCE OF CONTEACTS (Part 1 the husband, if it will authorize a court of equity to decree the legal title. . . . HAMPSON V. EDELEN. (Maryland Court of Appeals, 1807, 2 Harris & J., 64.) Chase, C. J. In this case it appears that a considerable part of the purchase money was paid, and possession given of the land, prior to the obtention of the judgments by Hampson against Wade. A contract for land bona fide made for a valuable consideration vests the equitable interest in the vendee from the time of the execu- tion of the contract, although the money is not paid at that time. When the money is paid according to the terms of the contract, the vendee is entitled to a conveyance, and to a decree in chancery for a specific execution of the contract, if such conveyance is refused. A judgment obtained by a third person against the vendor, mesne the making the contract and the payment of the money, cannot defeat or impair the equitable interest thus acquired, nor is it a lien on the land to afifect the right of such cestui que trust. A judgment is a lien on the land of the debtor, and attaches on it as a fund for its payment ; but the legal estate in the land is not vested in the judgment creditor, although he can convert it into money, to satisfy his debt, by pursuing the proper means. BLOCK V. MORRISON. (Supreme C<»urt sf Missouri, 1»92, 112 M». 343, 2« S. W. 34«.) Black, J. . . . The deed from Easton to Hammond states that it was made in consideration of $1,583, paid by Hammond, and pur- suant to the considerations of a certain bond executed by Easton to Hammond and Wilkinson, dated the third of September, 1818. Ham- mond, therefore, held a title bond for the conveyance of the land as far back as 1818, which was before the date of the judgment under which Ch. 2) CONSEQUENCE OP SPECIFIC PEBFOEMANCE. 137 the property was sold. Did this title bond create in the vendee an interest in the land which was subject to sale under execution? The answer must be in the affirmative. The statute in force at that time provides that the sheriff's deed "shall be effectual for passing to the purchaser all the estate and interest which the debtor had or might lawfully part with in the lands at the time judgment was obtained." 1 Terri- torial L,aws, 120, sec. 45. In Brant v. Robertson, 16 Mo. 129, this court said: "When parties have bound themselves by agreement to convey land and to pay for it, equity recognizes an interest in the land as already in the purchaser,- and the case is the stronger when the purchaser has actually paid in whole or in part ; and in either case, the interest of the purchaser may be sold on execution, upon the principle that the vendor is to be re- garded as seized in equity to the use of the purchaser. But if no money has been paid, and if the person who may become the purchaser is not actually under any obligation to pay, then there is no seizin in the sell- er, even in equity, to the purchaser's use, and there is no interest in the land in him which is liable to sale on execution." It is true the statute then in force made "all real estate, whereof the defendant, or any person for his use, was seized in law or equity," subject to sale on execution; and "real estate" was defined to be "all estate and interest in lands, tenements and hereditaments." The words of the statute then in force were different from the words of the statute now in ques- tion, but there is no substantial difference in their meaning. The statute now in question makes any interest in land which the debtor may sell subject to sale under execution. That a title bond for the conveyance of land gives the vendee an interest which he may sell can- not be doubted. The principle of law is well settled that, where there has been a contract for the sale of land, the vendor becomes the trustee of the land for the vendee, and that the vendee has an interest in the land which may be sold under execution. Papin v. Massey, 27 Mo. 445 ; Hart V. Logan, 49 Mo. 47; Morgan v. Bouse, 53 Mo. 219. In some of these cases the vendee had been put in possession, and in others the whole or a part of the purchase money had been paid; these cir- cumstances may make out a stronger case, but the principle still stands, that the vendee in a title bond has an interest in the land which he may sell, and which he may enforce by specific performance, and which is subject to sale under execution. . . . SPECIFIC PERFORMANCE OF CONTRACTS (Part 1 \ HELIvRElGEL v. MANNING (New York Court of Appeals, 1884, 97 N. Y. 56.) Earl, J. — This action was brought by the plaintiff to compel e defendant to specifically perform a contract for the purchase of nd. . . ; Upon the trial, the counsel for the defendant offered as follows: To prove that during the four years of the running of the contract . question, the buildings on the premises have never been painted, though they required painting ; that they have been suffered to be- )me dilapidated for want of painting, that Mr. Hellreigel has allow- I them to run down ; that he has realized every thing from the build- gs without paying out anything on them for repairs ; to show that i has permitted the sewers to be stopped up ; that the cellars are filled ith water to the depth of two feet and upward; that the gates have ;en broken off the hinges ; that the sidewalks have been permitted to :come out of repair, and dangerous for the people passing over it," id that, in consequence of all these, the building had depreciated in ilue to the extent of several hundred dollars. There was no allegation I the answer nor offer to prove that the plaintiff had done anything in- ;ntionally or willfully to damage the buildings or depreciate their ilue. The deterioration in the condition of the buildings seems to ave been due to natural causes, and the ordinary use of them. It is Dt claimed that there is anything in the language of the contract 'hich required the plaintiff to keep the premises in repair, and hence is conduct in reference to them must have been such that it would be lequitable and unjust for a court of equity to enforce the contract in is favor. There was no allegation in the answer, and no proof that the remises were not worth the sum which the defendant agreed to pay 3r them. There was no proof, or offer to prove, that the plaintiff had ;aHzed more than a fair interest upon his investment from the rent f the premises, and hence that he put into his pocket what he might fell have expended in keeping the premises in good repair. We do not erceive that, under the circumstances, he owed the defendant any duty D keep the premises in repair. A party agreeing to sell and convey )h. 2) COSrSEQUENOE OF SPECIFIC PEEFOB.MANCB. 139' iremises at a future day does not, in the absence of stipulations to that ffect, owe the vendee any duty to keep them in good repair, or to :uard against the decay which is due to time and ordinary use. Cir- umstances might occur which would impose such a duty upon the 'Cndor ; but they do not exist in this case, and were not offered to be iroved. . . . BLEW V. McCIvEIvIvAND. (Missouri Supreme Court, 1860, 29 Mo. 304.) Napton, J. On the 8th of November, 1856, Blew, the plain- iff, made a verbal contract with McClelland for the purchase of a lot n the town of Princeton, Mercer county, on which there was a tavern ,nd other buildings. The improvements constituted the principal 'alue of the property. The price agreed on was $1,550, five hundred if which was paid down. McClelland was to execute on the same lay, or the Monday following, a title bond for a conveyance of the itle when the purchase money was paid, and Blew was to give his notes or the balance of the purchase money. On Sunday, the 9th of No- ember, the buildings were all destroyed by fire. Nothing further was lone ; the title bond, although tendered, was never received, and the lotes for $1,050 were not executed. McClelland had a policy of in- urance on the premises for eight hundred dollars, which he collected rom the company, representing himself as the owner, and which in his .nswer he offers to treat as a liquidation of the purchase money, pro anto. This suit is brought by Blew to recover the five hundred dollars urchase money advanced, and the only question presented by the ecord is whether, under these circumstances, the action will He. The case of Paine v. Meller, 6 Ves. 349, is understood to have de- srmined that, where there is a contract for the sale of a house, and be- ore a conveyance the house is burned down, the loss falls on the pur- haser, and the purchaser is still bound to execute his agreement to lay the purchase money. This does not appear to have been the pinion of the Master of the Rolls in Stout v. Bailey, 2 P. Wms. 220, /ho thought, in such a case, the purchaser would not be bound. But Sir Edward Sugden seems to regard the decision of Lord Eldon, in 340 SPECIFIC PERFORMANCE OF CONTRACTS (Part 1 Paine v. Meller, as the true exposition of the law. It is based upon the doctrine that equity regards as done what has been agreed to be done, and therefore, after a valid agreement to purchase, looks upon the purchaser as the owner. Hence Sir Edward Sugden declares the law to be that a vendee, being equitable owner of the estate from the time of the contract for sale, must pay the consideration for it, although the estate itself be destroyed between the agreement and the convey- ance ; and, on the other hand, he will be entitled to the benefit which may accrue to the estate in the interim." (1 Sugden on Vendors, 277). The principle has, in England, been carried to the extent of holding that, where an agreement was made for the purchase of an estate, in consideration of an annuity for life to the vendor, and he dies before the conveyance and before the annuity becomes due, the contract will still be specifically enforced. (Mortimer v. Cupper, 1 Bro. C. C. 156; Jackson v. Lever and others, 3 Bro. C. C. 605). But the maxim of courts of equity, that whatever is agreed to be done is considered as actually performed, is confined to cases where the contract or agreement is a valid one and can be enforced. If the contract, by reason of its being by parol, is one which neither a court of equity or of law can enforce, and nothing has been done to withdraw it from the operation of the statute of frauds, the title remains as it was, both in law and equity, unaffected by the parol agreement ; and whatever accidental losses the property may sustain must of course fall upon the owner. In such a case, it is clear that if, after the parol agreement to purchase, a valuable gold mine was found upon the premises, the purchaser could not compel a specific performance, un- less there had been a change of possession or some other circumstance which courts have determined sufficient to take a case out of the statute. Neither ought he to be compelled to pay his purchase money, when a fire has destroyed the buildings which formed the principal inducement for the purchase. It would be very inequitable to adopt a rule which would not operate alike on vendor and vendee, which would leave it to the option of one to enforce the contract or not, as it might promote his interest or caprice. The case of McGowan v. West, 7 Mo. 569, was a case where the purchaser had taken possession, and by reason of that circumstance could have enforced a con- veyance notwithstanding the contract was by parol. This court would not permit him to hold on to the land, and set up, as a defense to a )h. 2) CONSEQUENCE OF SPECIFIC PERFORMANCE. 141 uit upon his note for the purchase money, that the contract was a parol ine. In the present case, there was no change of possession, and there vas no other circumstance which would have enabled the plaintiff to inforce a specific performance of the contract had the estate, instead )f being almost rendered valueless, been unexpectedly increased in 'alue. As the contract could not be enforced by the purchaser, it vould be unjust to enforce it against him. (Cunnutt v. Roberts, 11 B. ^onr. 42). . . . COMBS v. FIskER. (Kentucky Court of Appeals, 1813, 6 Ky. 51.) Combs being the owner of a tract of land, with a cabin and other im- )rovements thereon, on the 10th day of January, 1806, sold the same to ?isher, and promised to deliver possession thereof to Fisher, in the ;ame situation it then was, against the first day of January next there- ifter. To recover the amount of an obligation executed by Fisher in )art pay for the land and improvements. Combs prosecuted suit and )btained judgment in the Casey Circuit Court. For the purpose of )btaining reHef against that judgment, Fisher exhibited his bill in :hancery, alleging the purchase of the land and improvements afore- aid, the promise of Combs to deliver possession in the same situation t was when the purchase was made, etc., and charges that the place vas not delivered in that situation, but that the cabin was burned and I number of rails destroyed, etc. He prayed and obtained an injunc- ion on the judgment at law, and asked for general relief. The in- unction was dissolved ; but on a final hearing of the cause, the Circuit 2ouTt decreed compensation for the cabin and the rails, the value vhreof was ascertained by the verdict of a jury. From which de- ree this writ of error has been prosecuted. We think the decree if the Circuit Court correct. The evidence in the case satisfactorily iroves the promise on the part of Combs to deliver possession of the ilace in the same situation it was when Fisher purchased, and that the abin was burned and rails destroyed before possession was delivered. !^ombs' express promise, therefore, should be binding on him. The cir- umstance of the cabin having been burnt by accident, as is urged by 142 SPECIFIC PEKFOEMANCE OF CONTRACTS (Part 1 Combs, cannot relieve him from his express understanding. For wherever the covenant is express, there must be an absolute perform- ance, nor can it be discharged by any collateral matter whatever — Esp. N. P. 270. The objection to the smallness of the amount in con- troversy we think not entitled to any weight. The cause was finally tried on the bill, answer, etc. No objections were taken to the juris- diction by plea in abatement, nor does any exist on the face of the bill; upon such a state of pleadings, no objection to the jurisdiction can be maintained on the final hearing of the cause. DucRUE Affirmed. EDWARDS V. WEST. (In Chancery, 1878, L. R. 7 Ch. D. 858.) Fey, J. The plaintiffs in this case, allege that the option of purchase which was given by the lease of the 29th of September, 1870, to be exercised by a notice given on or before the 25th of March, 1875, and to be carried into completion on or before the 29th of Sep- tember, 1875, was enlarged by subsequent correspondence, that by vir- tue of that correspondence a new contract was constituted under which the 29th of September, 1876, was substituted for the 25th of March, 1875, and that the option was exercised on the 28th of September. I will assume, for the purpose of the present judgment, that the Plaintiffs are correct in that contention. There are, therefore, four dates material to consider; first, that of the contract creating the op- tion ; secondly, that of the injury to the premises ; thirdly, that for the exercise of the option; and fourthly, that for the completion of the purchase according to that option. Now the point which I am about to decide arises from the pay- ment of a sum of between £11,000 and £12,000 by the insurance offices to the Defendant consequent upon the injury to the property by fire on the 6th of May, 1876. The Plaintiffs contend that that money so re- ceived by the Defendant was received by him as part-payment of the £14,000, which the Plaintiffs, under the option, were bound to pay; and that contention has been supported by three methods of argument. Ch. 2) CONSEQUENCE OF SPECIFIC PERFORMANCE. 14o In the first place, it has been said that by the law of England, the exercise of the option causes it to ixlate back to the time of the creation of the option in such a matter as to render the property for this purpose property of the purchaser as from the date of the contract which gave the option ; so that here, although the option was given by a contract made in April, and not exercised till the 28th of September, yet that when it was so exercised on the 28th of September, it operat- ed retrospectively, and made the property the property of the pur- chaser as from the month of April preceding, and consequently made the vendor trustee of the fruits of the property for the purchaser. Now it appears to me that such a conclusion would be highly inconven- ient, because it would place a person under the obligations which rest upon a trustee, or make him free from them, by reference to an act which was not performed until a future day; and the retrospective conversion of a person into a trustee of property is a result eminently inconvenient. . . Upon that general principle, then, I should hold that the argument is untenable. But, then I am told that the case is covered by authority, and for that purpose my attention is very properly drawn to the cases which began with Lawes v. Bennett, 1 Cox, 167, and which shew that where there is a contract giving an option to purchase real estate, and the option is not exercised till after the death of the person who creat- ed the option, nevertheless the produce of the sale goes as part of his personal estate, and not as part of his real estate. Now, whether Lawes v. Bennett is or is not consistent with the general principle upon which conversion has been held to exist, it is not for me to say. It is enough for me to say that the case has been followed in numerous other cases, though it has been observed upon by more than one Judge as somewhat difficult of explanation. I think that the language of Lord Eldon in Townley v. Bedwell, 14 Ves. 591, and of Vice-Chancellor Kindersley in Collingwood v. Rew, 3 Jur. (N. S.) 785, shows that they were not satisfied that that case was consistent with the general prin- ciples which were applicable to cases of conversion; and therefore, although I should implicitly follow Lawes v. Bennett in a casse between the real and personal representatives of the person who granted the option, I do not think that I am at liberty to extend it so as to imply that there is conversion from the date of the contract giving the option as between the vendor and the purchaser who claim under it. It is to be borne in mind that no authority can be produced which has ex- 144 SPECIFIC PEEFORMATSrCE OF CONTRACTS (Part 1 tended the doctrine of Lawes v. Bennett in the shghtest degree beyond what was decided in that case. The principle, whatever it be, has never been appHed except as between the real and the personal representa- tives of the original creator of the option, and I for one shall not ex- tend it, because I think that it is limited by the general principle to which I have adverted. Therefore, upon that ground, I hold that there is no conversion of the estate from an earlier date than the 28th of Sep- tember, when the notice was given. The fire having taken place, and the insurance money having been received at an earlier date, the intend- ed purchaser has no right, upon the general principles of conversion, to assert a title to that money. ... SECTION VI. PARTIAL PERFORMANCE WITH COMPENSA- TION. O'KANE V. KISER. (Indiana Supreme Court, 1865, 35 Ind. 168.) FrazBr, C. J. . . .The payment of the money and the conveyance of an unincumbered title were dependent acts, and, at law, there could be no recovery unless such a title was offered on the day. MqCuUoch V. Dawson, 1 Ind. 413. It follows that in the present case, the suit on the note can only be sustained, if at all, as being in equity to compel a specific performance, time not being regarded in equity as so strictly of the essence of the contract. But one who comes into equity seeking to compel a specific performance must show that he has performed, or offered to perform, the acts on his part to be performed, which con- stituted the consideration of the contract which he asks the court to compel the other party to perform. This is thoroughly settled by the authorities, acting upon the maxim that "he who seeks equity must do equity." It is also in entire harmony with the principles of justice and honesty. The purchaser here agreed to pay his money for an unin- cumbered title, not for the mere covenant of the vendor against in- ^h 2) PARTIAL PERFOEMANCE WITH COMPBNSATION. 145 cumbrances. He purchased the land, not the vendor's contract, aiid having contracted for the former unincumbered, a court of equity will not compel him to take it with on unpaid mortgage upon it, and the covenant of a solvent party against the mortgage. The power of the :ourt to compel a specific performance is an extraordinary power, and will not be exercised in behalf of a party who is either unwilling or unable to do that for which the defendant agreed to pay. We cannot perceive that any influence, in such a case, ought to be given to the fact that the purchaser had knowledge that the incum- brance would not be due on the day fixed for making the conveyance. It was certainly competent for the parties to contract for its removal before its maturity. They did so contract in this case, and must abide by their agreement. The judgment is reversed, with costs, and the cause remanded for a new trial. HIIvIv V. BUCKIvEY. (High Court of Chancery, 1811, 17 Ves. 394.) The Master op the Rolls (Sir William Grant). The facts of this case are very few ; and there is very little controversy upon them. In the particular, which was sent by the Defendant's agent to the Plaintiff's, which is the basis of the subsequent negotiation, the woods, called the Kestle Woods, including the Gulberry Marsh, were repre- sented as containing two hundred and seventeen acres and ten perches. In fact there was not that quantity by about twenty-six acres. No de- ception was intended. The Defendant's agent fell into a mistake; the nature and cause of which now distinctly appear: but I do not think myself warranted by any evidence in the cause to infer, that the Plaintiff knew the real quantity. A very intimate acquaintance with the premises would not necessarily imply knowledge of their exact contents ; while the particularity of the statement descending to perch- es, would naturally convey the notion of actual admeasurement. Where a. misrepresentation is made as to the quantity though innocently, I ipprehend, the right of the purchaser to be to have what the vendor can give ; with an abatement out of the purchase-money for so much as 1 Eq.— 10 146 SPECIFIC PEEFORMANCE OF CONTRACTS (Part 1 the quantity falls short of the representation. That is the rule gener- ally ; as, though the land is neither bought nor sold professedly by the acre, the presumption is, that in fixing the price regard was had on both sides to the quantity, which both suppose the estate to consist of. The demand of the vendor and the offer of the purchaser are supposed to be infiuneced in an equal degree by the quantity, which both believe to be the subject of their bargain: therefore a rateable abatement of price will probably leave both in nearly the same relative situation, in which they would have stood, if the true quantity had been originally known; and I do not think I could upon any principle in the case of Mortlock v. Buller to which this bears no resemblance, exempt these defendants from this equity upon the ground of their be- ing trustees, and not owners. But there is a difficulty in this case from the nature of the mistake which must have influenced the vendors in their estimate of the price in a manner, that, if a rateable abatement were now to be decreed, would be extremely disadvantageous to them ; for, though they believ- ed they had two hundred and seventeen acres to give to the purchas- er, and must be supposed to have asked a price in proportion, yet they did not believe that it was all woodland. They imagined, that twenty- eight acres consisted only of hedges and fences, and other waste. They could not certainly set the same value upon that, though perhaps it was considered of some value, as upon land, covered with wood of mature growth; therefore, by a rateable abatement from the purchase- money it is clear they must allow to the purchaser much more than they would have received from him ; and consequently they would be com- pelled to accept less than it was ever in their contemplation to take. That is not all. The purchaser also would obtain a better bargain than he ever had in his contemplation. He was in the course of the negotiation furnished with the value of the woods, qua wood, as ascer- tained in the year 1805. The value being given, it was immaterial, in that respect, whether the woods were spread over a greater or less number of acres. The valuation had no reference to the quantity of ground. All the wood upon the estate was comprehended ; and it was represented to the purchaser, that what he was to get was wood, which in 1805, was of the value of £3500. He has got all the wood, upon which that value was set. Is he entitled, also, to the value of twenty- six additional acres of wood; which he would have in effect by an Ch 2) PAETIAL PEEFOKMANCE WITH COMPENSATION. 147 abatement, made to him out of the purchase-money upon the propor- tion merely of quantity and price. The wood would have been no more valuable to him, if in fact it had occupied two hundred and seventeen acres, instead of one hundred and eighty-eight; nor would he have paid a shilling more for it; as the price of the wood was not fixed with reference to the ground, which it covered. Therefore it is only in the price of the soil, and not in the price of the wood that the pur- chaser could be injured by the mistake of the vendor; the particular representing the wood as occupying two hundred and seventeen acres : the purchaser has the right quantity of wood ; but not of soil. He is therefore entitled to some abatement ; as they gave him reason to oe- lieve, that he was to obtain two hundred and seventeen acres of soil ; but the abatement is to be only so much as soil, covered with wood, would be worth, after deducting the value of the wood ; and with an abatement, to be ascertained upon that principle, the argument ought to be earned into execution. . . . JOYNER V. CRISP. (North Carolina Supreme Court, 1913, 158 N. C. 199, 73 S. E. 1004.; Brown, J. . . .The facts are, as appears by the pleadings : That the property in question, known as the "Peebles Place," belonged to the feme plaintiff for her life, and after her death to her children some of whom are minors. At the time the contract referred to was enter- ed into between the plaintiff and the defendant, the defendant admits he knew the status of the title, and there is nothing in the pleadings them- selves which indicate, or even allege, that any imposition was practiced upon the defendant, or that he entered into this contract except with his eyes open. The contract upon its face indicates plainly that it does not lie within the power of the plaintiffs of their own will to comply with it. It appears upon its face that the plaintiffs own practically nothing but a life estate, and that the only method to carry out the contract was by appealing to the judicial tribunal to decree a sale of the infants' estate. The following excerpts from the contract are plainly indicative that resort to a judicial tribunal was absolutely es- sential to its performance, viz: "This option is to remain in force 148 SPECIFIC PERFORMANCE OF CONTRACTS (Part I for ninety days, or until such time as the parties of the first part can obtain by special proceedings in the superior court of Pitt county a judicial decree confirming to the party of the second part a fee-simple title." Again : "Upon the performance of the above stipulations by the party of the second part, the parties of the first part will agree to exe- cute in their own proper persons and by the decree of the superior court a deed in fee simple," etc. The plaintiffs in this case had no power to enter into a contract to sell their children's land, and a mere promise to resort to a court for the purpose of decreeing a sale of it cannot possibly be enforced, for it is beyond the power of the plaintiffs to predicate what the judgment of the court may be. Upon this principle it is held that a party cannot recover upon a contract wherein a guardian who owned certain interest in land of which his ward was part owner agreed to institute and to carry through court proceedings necessary to the consummation of a sale or exchange of such property. Zander v. Feely, 47 111. App. 660; LeRoy v. Jacobosky, 136 N. C. 444, 48 S. E. 796, 67 h. R. A. 470. There have been cases where guardians have entered into such con- tracts, and, upon failure to perform them, have been held liable in damages personally. Mason v. Waitt, 4 Scam. (111.) 127, and Mason V. Caldwell, 5 Oilman 196, 48 Am. Dec. 330. But we find no instance where such contract has been specifically performed by decree of court, unless it was to the ward's interest. In regard to the contention that the defendant is entitled to the par- tial performance and conveyance of the life estate, and damages in the way of abatement of the price, it may be said that we recognize the general rule that, where the vendor has not substantially the whole in- terest he has contracted to sell, yet the purchaser can insist on having all that the vendor can convey with compensation for the difference. But in this case it is apparent on the face of the contract that it was to be performed as a whole, stand or fall as an entirety, and therefore it cannot be specificially enforced as to part. It is admitted by the defendant in his answer that he knew that the land in fee belonged to the plaintiff's children. It semes to be well setled that the rule that when a person makes a contract for the sale of real estate, in which he has only limited interest, he may be compelled in equity to convey as much of the property as lies in his power to convey, with a deduction from the agreed price, does not Ch 2) PAETIAL PEEFOEMANOE WITH COMPENSATION. 149 apply where the purchaser at the time of the sale had notice of the defect in the vendor's title. . . . WANAMAKER v. BROWN. (South Carolina Supreme Court, 1907, 77 S. C. 64, 57 S. E. 665.) The following is the circuit decree, omitting the formal judgment: "The above-entitled action for the specific performance of a con- tract for the sale of real property, with the reservation of a portion of the purchase money, as indemnity against an outstanding incum- brance of an inchoate right of dower, came on to be heard before me. on the pleadings and testimony taken and reported by the master. From the testimony, I find as a mater of fact: That on August 31, 1905, the defendant, being the owner of a certain lot of land, described in the complaint, and hereinafter described in this decree, agreed to sell and convey the same to the plaintiff by a good and sufficient deed of conveyance. . . . That on September 23, 1905, the plaintiff tendered, and offered to pay, to the defendant the sum of $5,400, as the balance of the purchase money due under said agreement, and demand- ed the delivery of a good and sufficient deed of conveyance to said pro- perty. Whereupon the defendant tendered a deed of conveyanc to said property, which contained the usual covenants of warranty against the grantor and all others, but did not have indorsed upon it, nor was it accompanied by, renunciation of the dower right of Mrs. Mary Ann Brown, the wife of the defendant, in said property. The plaintiff re- fused to accept the deed tendered on the ground that there was not indorsed upon it, nor was it accompanied by, a renunciation of said dower rights, but offered, and still offers, to accept said deed of con- veyance, and pay the balance of the purchase money, if the defendant would consent to a deduction from the purchase money of such amount as might be ascertained by the courts to be the value of such dower rights, or to the retention by plaintiff of such porportion of the pur- chase money as might be necessary to indemnify him against the claim of Mary Ann Brown for dower, so long as said claim might continue to exist as an incumbrance on said property ; the payment of such amount so reserved to be made to the defendant at such time as the incum- 350 SPECIFIC PEBFOBMANCE OF CONTRACTS (Part 1 brance of the outstanding inchoate right of dower should be removed, and to be secured by a mortgage on the property conveyed. The de- fendant declined this proposition or to deliver any other deed than that tendered by him, on the ground that his wife refuged to renounce dower, and that he was not called upon to give any other indemnity against such claim than that contained in the usual covenant of war- ranty contained in the deed tendered. The defendant in 57 years of age, and his wife 52. If the dower were now accrued, it would be one- sixth the value of the property. "As matter of law, I conclude, under authority of Payne v. Melton, 69 S. C. 373, 48 S. E.. 277, that an outstanding inchoate right of dow- er is such an incumbrance as a purchaser should be protected against. This protection may be given either by reducting from the purchase money the actual value of such inchoate right of dower at the time of the purchase, as indicated in that, and other cases, or by providing for a retention of a portion of the purchase money, secured by a mort- gage on the land, until such dower right has vested, or ceased to exist, as an indemnity against such outstanding incumbrance. This latter provision seems to me more equitable and just than the former, on account of the difficulty of arriving at the present money value of the inchoate right. . . . Pope, C. J. The facts of this case are set out in the decree of his honor, the circuit judge, which is affirmed for the reasons therein stated. Appeal dismissed SAVINGS BANK CO. v. PARISETTE. (Supreme Court of Ohio, 1903, 68 O. St. 450, 67 N. E. 896.) Spear, J. It is insisted by counsel for plaintiff in error that the stipulation in the option is for a deed conveying the entire proper- ty free from any and all rights, claims and incumbrances, and of the latter class is the inchoate right of dower ; that the obligation, there- fore, rested on the vendor to clear the title, and convey free of all claims of every kind; that failing this the vendee should have been allowed to retain so much of the purchase money as will protect his title against such inchoate right of dower, and the vendor decreed to convey on re- Oh 2) PARTIAL PBRFOEMANOE WITH COMPENSATION. 151 ceiving the remaining part of the purchase money, and that the re- fusal of the circuit court to so adjudge was error. . . . What was the contract specific performance of which plaintiff de- manded, and what the breach, if any? The parties were the vendor, the husband, and the vendee, the plaintiff. The paper itself carries the information that it was when drawn contemplated to be executed by some one other than the vendor, and since the plaintiff was aware that he had a wife living, the inference is natural that she was the person whose signature had been expected. The paper further showed that she had not signed, and the fact found is that she had made no agree- ment to sign or sell the property, or release her inchoate right of dower. Furthermore, the absence of her signature would suggest a refusal by her. The Company knew, therefore that it was dealing with the husband alone as to his right and title in the property, it knew that the wife could not be compelled to sign, and that, therefore, the con- tract was impossible of specific execution if construed to include her dower. It knew that it was accepting a contract which on its face did not purport to sell any interest but that of the husband, and especially did not purport to sell or agree to convey any inchoate dower of the wife. In this situation of affairs the Company chose to agree to pay the stipulated price for just what the option purported to sell. No fraud or overreaching or mistake of any kind is charged. The vendor is ready to convey just what the stated terms of his contract obligate him to convey. How can the Company reasonably demand that the court import into the contract a stipulation to convey by a deed contain- ing a covenant against this dower right, when no agreement of that character, nor respecting incumbrances of any kind, is expressed, and when in all probability, had such a demand been made of the vendor, he would have refused to comply with it? We think it cannot. The effect of the construction contended for by counsel would be either to attempt to arrive at a sum to be deducted absolutely by a process ad- mittedly speculative, or to suspend the payment of a considerable portion of the purchase money to the grantor during the joint lives of himself and his wife, which it seems to us, could never have been with- in the contemplation of the parties when this optional contract was signed. Plaintiff was in a court of equity pressing an inequitable de- mand. We think it was properly refused. On the plaintiff's own con- struction of the option the Company is in the attitude of one who takes ■^52 . SPECIFIC PERPOHMANCE OF CONTEAOTS (Part 1 the promise of another to do that which it is known he cannot perform except by the concurrence of a third person. Such purchaser contracts with full notice of the uncertainty attending the seller's ability to per- form, and, not having been misled to his injury cannot now ask the extraordinary aid of a court of conscience in repairing such loss, if any, as he has sustained by the vendor's failure to complete his con- tract. . . . SECTION VII. DEFENSES. TUMLINSON V. YORK (Texas Supreme Court, 1858, 30 Texas 694.) Hbmphili,, Ch. J. This was a suit for specific performance of a bond for title to land. It was commenced in the county court, where the prayer for performance was refused. On appeal to the district court, this judgment was reversed, and the cause has been brought by appeal to this court. We are of opinion that there was error in the judgment of the district court. The bond does not recite any consideration. There is no allegation in the petition, that a valu- able consideration was paid by the vendee, and although there is no statement of facts, and we cannot ascertain from the record what facts were in proof, yet there being no allegation of the essential fact of valuable consideration, we cannot presume that, in violation of the rules of evidence, such fact was established by proof. The averments and proof must correspond ; and this being the rule, we must presiime there was no evidence of valuable consideration. It is a well established rule, that specific performance of an agree- ment to convey land will not be enforced, unless founded on a valuable consideration. Where the receipt of such consideration is expressed in the agreement, or bond, its existence would be prima facie presum- ed; but where not so expressed, or admitted by the vendor in the pleadings, it must be established by proof ; and being a material fact, it --h- 2^) DEFENSES. 153 nust be averred that the proof may be admitted. Boze v. Davis, 14 Tex. 331 ; Short v. Price, 17 id. 397. In the latter case, reference was lad to art. 710 of the Digest, and it was held inapplicable to cases vhere the plaintifif must show a valuable consideration as prerequisite the decree, and where, on principles of equity jurisprudence, the seal mparts no efficacy to the instrument on which the suit is brought; hat the only effect of the article would, in such cases, be, that where 1 valuable consideration is expressed in the instrument, it could not be mpeached by the defendant, unless under oath; whereas on general )rinciples of equity, this would not be required. . . . MANSFIELD v. HODGDON. (Massachusetts Supreme Court, 1888, 147 Mass. 304, 17 2Sr. E. 544.) Holmes^ J. . . . The defendant Hodgdon's undertaking not laving been a mere offer, but a conditional covenant to sell, bound him rrevocably to sell in case the plaintiff should elect to buy, ' and should )ay the price within thirty days. The usual doctrine as to conditions .pplies to such a covenant, and as the covenantor by his own conduct :aused a failure to comply with the condition in respect of time, he vaived it to that extent. And upon the same principle he exonerated he plaintiff from making any tender when the new terms had been greed upon, by wholly repudiating the contract. Carpenter v. Hol- omb, 105 Mass. 280, 282. Ballou v. Billings, 136 Mass. 307. Gormely ■. Kyle, 137 Mass. 189. Lowe v. Harwood, 139 Mass. 133, 136. If it le true, as testified for the defendant, that he also objected to signing , deed conveying the mountain lot, this was a further excuse for the elay. Galvin v. Collins, 128 Mass. 525, 527. A covenant to sell is not voluntary in such a sense that equity will re- use specific performance. If the defendant conveys, he will get uid pro quo. WOOLUMS V. HORSLEY. (Kentucky Court of Appeals, 1892, 93 Ky. 582, 20 S. W. 781.) Holt, C. J. . . . In December, 1888, this suit was brought for specific performance of the contract. The main defense is that 154 SPECIFIC PEKFORMANCE OP CONTRACTS (Part 1 it was procured through undue advantage, and under such circum- stances that, in equity, its performance should not be decreed. . . . There is a distinction between the case of a plaintiff asking a specific performance of a contract in equity, and that of a defendant resist- ing such a performance. Its specific execution is not a matter of abso- lute right in the party, but of sound discretion in the court. It re- quires less strength of case on the side of the defendant to resist the bill, than it does upon the part of the plaintiff to enforce it. If the court refuses to enforce specifically the party is left to his remedy at law. Thus a hard or unconscionable bargain will not be specifically en- forced, nor, if the decree will produce injustice or under all the circum- stances be inequitable, will it be rendered. In other words, a court of equity will not exercise its power in this direction to enforce a claim which is not, under all the circumstances, just as between the parties, and it will allow a defendant to resist a decree, where the plaintiff will not always be allowed relief upon the same evidence. A contract ought not to be carried into specific performance unless it be just and fair in all respects. When this relief is sought ethics are considered, and a court of equity will sometimes refuse to set aside a contract, and yet refuse its specific performance. . . . The appellee testifies that he did not know anything as to the mineral value of this land when the contract was made ; but it is evident he had a thorough knowledge of the value in this respect of lands gener- ally in that section, and of the developments then in progress or near at hand. All this was unknown to the appellant. It is evident his land was valuable almost altogether in a mineral point of view. While it is not shown what it was worth at the date of the contract, yet it is proven to have been worth in April, 1889, fifteen dollars an acre, and that this value arises almost altogether from its mineral worth; and yet the appellee is asking the enforcement of a contract by means of which he seeks to obtain all the oil, gas, and minerals, and the virtual control of the land, at forty cents an acre. The interest he claims un- der the contract is substantially the value of the land. Equity should not help out such a harsh bargain. The appellee shows pretty plainly, by his own testimony, that when the contract was m.ade he was advised of the probability of the build- ^t- 2) DEFENSES. 155 ng of a railroad in that locality in the near future. His agent, when he trade was made assured the appellant that he would never be both- ered by the contract during his life time. He was lulled in the belief ;hat the Rip Van Winkle sleep of that locality in former days was to ;ontinue ; and the grossly inadequate price of this purchase can only be , iccounted for upon the ground that the appellant was misled and acted inder gross misapprehension. The contract was not equitable or reasonable, or grounded upon sufficient consideration, and no interest has arisen in any third party. A. court of equity should, therefore, refuse its specific enforcement, but :he appellant should have what was in fact paid, with its interest ; and when this is done his petition should be dismissed. . . . FLEMING V. BURNHAM. (New York Court of Appeals, 1885, 100 N. Y. 1, 2 N. E. 905.) Andrews, J. The most serious objection made by the purchaser •elates to the sufficiency of the deed of February 14, 1833, from Thomas McKie and Andrew Stark, two of the four executors lamed in the will of John McKie, to Cerardus De Forest, to pass title ;o the premises in question. . . . The purchaser is entitled to a marketable title, free from reason- ible doubt. The purchaser bids on the assumption that there are no undisclosed defects. The purchaser pays and the seller receives a :onsideration, regulated in view of this implied condition. Objections vhich are merely captious or mere suggestions of defects which no rea- lonable man would consider, although within the range of possibility 3r those which are clearly invalid by the law as settled, whatever doubts nay at a former time have existed as to the question raised, are not ivailable to a purchaser, and will be disregarded. But the question jresented to the court on an application to compel a purchaser on a ju- iicial sale who raises objections to the title tendered to complete the )urchase, is not the same as if it was raised in a direct proceeding be- ween the very parties to the right. Where all the parties in interest ire before the court and the court has jurisdiction to decide, they are :oncluded by the judgment pronounced, so long as it stands unrevers- 156 SPECIFIC PERFORMANCE OF CONTRACTS (Part 1 ed, however imperfectly the evidence or facts were presented upon which the adjudication was made, or however doubtful the adjudica- tion may have been in point of law. If the controversy involves a dis- puted question of fact, or the evidence authorizes inferences or pre- sumptions of fact, the finding of the tribunal makes the fact what it is found to be for the purpose of the particular case, although the evi- dence of the fact may be weak and inconclusive, or although it is ap- parent that there are sources of information which have not been ex- plored, which if followed might have removed the obscurity. The par- ties are nevertheless concluded in such a case, because they were par- ties to a judicial controversy before a tribuna,l constituted for the very purpose of deciding rights of persons and property and before which they had an opportunity to be heard. But the court stands in quite a different attitude, where it is called upon to compel a purchaser to take title under a judicial sale, who asserts that there are outstanding rights and interests not cut off or concluded by the judgment under which the sale was made. The objection may involve a mere question of fact or it may involve a pure question of law upon undisputed facts. In either case it may very well happen that the question is so doubtful that, although the court would decide it upon the facts disclosed, in a proceeding where all the parties interested were before the court, nevertheless it would decline to pass upon it in a proceding to compel a purchaser to take title and would relieve him from his purchase. The reason is obvious. The purchaser is entitled to a marketable title. A title open to a reasonable doubt is not a marketable title. The court cannot make it such by passing upon an objection depending on a disputed question of facts, or a doubtful question of law, in the ab- sence of the party in whom the outstanding right was vested. He would not be bound by the adjudication and could raise the same ques- tion in a new proceeding. The cloud upon the purchaser's title would remain, although the court undertook to decide the fact or the law, whatever moral weight the decision might have. It would especially be unjust to compel a purchaser to take a title, the vahdity of which depended upon a question of fact, where the facts presented upon the application might be changed on a new inquiry or are open to op- posing inferences. There must doubtless be a real question and a real doubt. But this situation existing, the purchaser should be discharged. (Shriver v. Shriver, 86 N. Y. 575, and cases cited; Hellreigel v. Man- ning, 97 id. 56). . . . Ch. 2) DEFENSES. 157 CRABTREE v. WELLES. (Supreme Court of Illinois, 1857, 19 111. 55.) Welles and his wife had verbally contracted with Crabtree to sell him a piece of land for one hundred and fifty dollars; fifty dollars was paid at the time of the bargain, and Crabtree was to have a deed when he would pay the other one hundred dollars. Crabtree tendered the remaining one hundred dollars, but Welles refused to make the conveyance, but prior to the tender of the one hundred dollars, Welles sued Crabtree before a justice of the peace for a debt due him from Crabtree, when the latter attempted to set off against the claim the fifty dollars advanced for the land, but this set-off was not allowed. Crabtree, after having made the tender of the one hundred dollars, as the price of the land, which was refused by Welles, brought an action to recover back the fifty dollars originally advanced. On the trial of the suit for the recovery of this sum, it was attempted to defeat the recovery by showing that a set-off had been attempted in the first suit between the parties, and before the tender of the one hundred dollars. The Circuit Court, Breese, Justice, presiding, gave judg- ment, upon the finding of the jury for fifty dollars, whereupon Crab- tree prayed an appeal. . . . Caton, C. J. The law is, that one who advances money in part payment of a parol purchase of land, cannot recover it back, till he has offered to fulfill the parol agreement, and the other party has repudiated it by refusing to perform. If he repudiates it himself, without the default of the other party, he must lose what he has paid. Such parol agreement is not abso- lutely void, but is only voidable, and is binding on both parties, and may be enforced either in a court of law or equity, unless the statute of frauds be interposed, to relieve the party from his obligations under it. If a party who receives money or its equivalent, under such parol con- tract, afterwards repudiates it, the law will raise an assumpsit on his part to refund the payment recovered; for he shall not return the money under the contract, while he denies his obligation to perform it, but until he refuses to perform it the law will not imply a promise to refund the payment received under it. Welles, therefore, had no ^ SPECIFIC PERFORMANCE OF CONTRACTS (Part 1 ise of action against Crabtree for the fifty dollars which he had paid 1 on the parol agreement until after he had placed himself in a iper position by demanding of Crabtree that he go on and perform parol agreement upon tendering him the remaining hundred dol- 3, and Crabtree had thereupon refused to comply. The law cannot ;sume a promise to refund that money till such refusal has taken ce, and, till then, no cause of action existed in favor of Welles linst Crabtree on account of that advance. At the time of the trial the former cause which was relied upon as a bar to this action ;lles had not made the tender of the last payment, and Crabtree had : repudiated the parol agreement, so that no liability then existed linst him to refund the fifty dollars. The question, then, is, whe*-h- his attempt to bring in, and recover it back on the trial of the form- action between the same parties, is a bar to this action. On this nt there ought not to be any doubt or controversy. At the time of t trial, the money was not due, and for that reason he could not n recover it. The account then presented was, or must be pre- ned to be, for fifty dollars, then claimed to be due, which he did not 1 could not prove. This is for fifty dollars not then due, but which ; since become due, and consequently, could not be barred by any- tig that was then due. Suppose on the former trial, Welles had filed, a set-oflf, a note executed by Crabtree to him for fifty dollars, which, Dn its face, was not due till thirty days thereafter, could it be pre- ded that the abortive attempt to set it off on the former trial would a bar to an action upon the note instituted after its maturity? The :ement of the proposition is enough to illustrate the utter fallacy of whole defense. The Circuit Court decided properly, and the judg- nt must be affirmed. NIBERT V. BAGHURST. (New Jersey Court of Chancery, 1890, 47 N. J. Eq. 301, 20 Atl. 352.) iRBEN, V. C. The bill of complaint in this action is filed by mcis Nibert against George Baghurst and wife and Francis illips, for the specific performance of a contract for the sale of ds and the conveyance of the same according to the alleged terms reof. . . . ^h. 2) DEFENSES. 159 The defendants resist the application for an injunction, on the grounds that the alleged agreement was by parol, and is not enforce- ible under the statute of frauds, and that it was made on Sunday, and s void under the laws of this state. The petitioner seeks to avoid the objection based on the provision )f the statute of frauds, first, on the ground that there had been such I part performance of the contract as to take the case out of the ;tatute, under the rules which obtain in the courts of equity, and that here was a sufficient memorandum under the statute of this state. . . The clear weight of the testimony is, that the possession of Nibert, o far from its being by the act or consent of Baghurst and under the Lgreement was forcible and against his positive and reiterated protest. J'ossession taken and held under such circumstances can not be con- ;trued to be a part performance of the contract. . . . The equity arising from the expenditure of money in the building )f a house is based on the rightful possession by Nibert of the prop- ;rty, and the knowledge of Baghurst and his acquiescence in such Lcts of assumed ownership. Equity proceeds on the ground that it would be a fraud for the vend- ir to allow the vendee to continue in possession and expend his money n improvements, so as to render it impossible for the parties to be re- tored to their original situations, confessedly on the faith of an agree- nent of sale, and then try to avail himself of the statute of frauds to ivoid the contract. Young v. Young, 18 Stew. Eq. 27, 34; Eyre v. iyre, 4 C. E. Gr. 102 ; Green v. Richards, 8 C. E. Gr. 32 ; Brewer v. Vilson, 2 C. E. Gr. 180, 185; Pom. Cont. § 104; Pom. Eq. Jur. § :409. The bare statement of the principle presupposes acquiescence on the tart of the vendor, and acquiescence assumes knowledge of the vend- e's acts. "For, to constitute fraud, there must coincide, in one and he same person, knowledge of some fact and conduct inequitable laving regard to such knowledge." Fry Spec. Perf. § 389. We have seen that the possession of Nibert was against the wish ind warning of Baghurst, and it clearly appears that the latter com- nenced proceedings in ejectment as soon as he heard the building vas being erected. The erection of the house and the possession of the and are both of the same character. They fail as elements of part per- 'ormance, because done without the knowledge or acquiescence of he vendor. . . . 1^0 SPECIFIC PERFORMANCE OP CONTRACTS (Part I MORRISON V. HERRICK. (Illinois Supreme Court, 1889, 130 111. 631, 23 N. E. 537.) Bailey, J. Regarding the oral contract for a lease as suffficient- ly proved, the question arises whether such part performance has been shown as will take it out of the operation of the Statute of Frauds. . . . The evidence shows beyond controversy that the complainants ex- pended large sums of money in making permanent improvements upon the demised premises and in fitting up and furnishing the same for use in carrying on their business, and it is equally beyond controversy that these expenditures were made under and in reliance upon the original contract for a lease for a further term of five years. So far then as the making of valuable improvements can constitute an element of part performance, the complainants have established their right to a de- cree. It is true the improvements were all made before the term con- templated by the oral agreement was to commence, and while the com- plainants were in possession under their former lease, but that cir- cumstance does not seem to us to be material, so long as the improve- ments were in fact made in reliance upon and in pursuance of the pro- visions of the oral agreement. The more difficult question relates to the possession which the com- plainants must establish and rely upon as an act in part performance. It is undoubtedly the rule that acts of part performance, whatever they may be, must refer exclusively to the contract, and be such as would not have been performed but for such contract. They must be such as can not be explained consistently with any other contract than the one alleged, that is to say, they must refer to, result from, and be done in pursuance of such contract. If therefore possession is relied upon as an act of part performance, it must be possession under the contract sought to be enforced. The continuance of possession taken before the contract was made is accordingly not usually held to be sufficient. 2 Reed on Stat, of Frauds, sec. 585. This rule applies es- pecially to cases where the previous holding is under a lease, for as the tenant may lawfully continue in possesion until notice to quit, such continuance in possession is presumptively referable to the lease. It has therefore been sometimes questioned whether, as between landlord Ch. 2) DEFENSES. 161 and tenant, part performance is possible. But the better doctrine would seem to be, that one continuing in possesion is at liberty to prove, if he can, that his possession, after the termination of the form- er lease, is under the oral contract. . . . In Mundy v. Johffe, 5 Mylne & Craig, 167, a tenant who went in- to possesion of premises under a former lease, obtained from his land- lord an oral contract for a renewal of his lease for a further term, said contract stipulating, among other things, for the making of certain improvements on the demised premises. The tenant continued in pos- session, and after the stipulated improvements were made, brought his bill for a specific performance of the contract, and it was held, as a matter about which there could be no doubt, that a sufficient part per- formance was shown. ... Applying this rule to the present case, we are disposed to hold, that, while, prima facie, the complainants, by remaining in possession after the expiration of the term to their former lease, assumed the position of tenants holding over, the presumption that they did so is not con- clusive, but is subject to be rebutted by evidence tending to a contrary conclusion. Of this character is the evidence of the expenditures made by them by way of improvements under and in performance of their oral agreement. These expenditures serve to explain and character- ize their subsequent holding over after the termination of their former lease. Presumptions are thereby raised which are sufficiently cogent to overcome the ordinary presumption that a tenant holding over does so under his former lease. It is against all ordinary probability that, after having expended $6000 or over in reliance upon and in perform- ance of the agreement for a lease for five years, they were content to assume the attitude of mere tenents holding over, thus placing them- selves in a position where their landlord would be at liberty to termi- nate their tenacy absolutely at the expiration of the first year, and thus deprive them, without the possibility of adequate recompense, of inuch the larger part of the benefit to be derived from their expendi- tures. . . . HALE V. HALE. (Supreme Court of Appeals of Virginia, 1894, 90 Va. 728, -19 S. E. 739.) Lewis, P. . . . The equitable doctrine of part-performance is also invoked ; but as to this, we may say, as was said in a similar case 1 Eq.— 12 362 SPECIFIC PERFORMANCE OF CONTEACTS (Part 1 in Massachusetts, that " there has been n o p ai-t-p erfnnnanre which amoun ts to anythin g^ Gould v. Mansfield, 103 Mass., 408. In that case there was, as here, an alleged oral agreement between two sisters to make mutual or reciprocal wills, and each made a will accordingly. Afterwards one of the sisters made a different will, and died. The survivor then filed a bill for the specific execution of the agreement, but a demurrer to the bill was sustained, on the ground that the case was within the statute of frauds. Notwithstanding the criticism upon that case in the argument at the bar, we are of opinion that it was decided upon correct principles. Not only is it a cardinal feature of a will that it is ambulatory until the testator's death, but acts of part-performance by the party seeking specific execution, to lake a case out of the statute, must be of such an unequivocal nature as of themselves to be evidence of the existence of an agreement; as, for example, where, under a parol agreement to sell land, the purchaser is put into possesion, and proceeds to make improvements. 2 Min. Insts. (4th ed.), 853; 3 Pom. Eq., sec. 1409. In the language of Lord Hardwicke, the act of part-performance "must be such as could be done with no other view or design than to perform the agreement." Gunter v. Halsey, Amb., 586. " The principle of the cases," said Sir William Grant in Frame v. Dawson, 14 Ves., 387, "is that the act must be of such a nature that, if stated, it would of itself infer the existence of some agreement ; and then parol evidence is admitted to show what the agreement is." In Phillips V. Thompson, 1 Johns. Ch., 131, Chancellor Kent said: "It is well settled that if a party sets up part-performance to take a parol agreement out of the statute, he must show acts unequivocally referring to, and resulting from, that agreement ; such as the party would not have done, unless on account of that very agreement, and with a direct view to its performance ; and the agreement set up must appear to be the same with the one partly performed. There must be no equivocation or uncertainty in the case." To the same effect is Wright V. Puckett, 22 Graft., 370. This whole subject was very carefully considered, both upon prin- ciple and authority, in Maddison v. Alderson, a recent and instructive case in the House of Lords. (8 App. Gas., 467.) In that case the ap- pellant was induced to serve the intestate as his housekeeper without wages until his death by an oral promise on his part to leave her an in- Ch. 2) DEFENSES. ]63 terest in certain real estate ; and he made a will for that purpose, which he signed, but which failed for want of due attestation. Mr. Justice Stephen, before whom the case was tried in the first instance, held that there was a contract which had been partly performed ; but on appeal, first to the Court of Appeal, and afterwards to the House of Lords, this ruling was held to be erroneous ; and the principle was laid down that an act of part -performance, to take a case out of the statute, must be suf- ficient of itself, without any other information or evidence, to satisfy the court, from the circumstances it has created and the relations it has formed, that they are only consistent with the assumption of the existence of a contract the terms of which equity requires, if pos- sible, to be ascertained and enforced. This is so, because, as was said in the same case, the defendant in a suit founded on such part performance is really "charged" upon the equities resulting from the acts done in execution of the contract, and not (within the meaning of the statute) upon the contract itself. I Hence, until such acts are shown as of themselves imply the existence of some contract, parol evidence to show the terms of the contract relied on is inadmissible. Browne, Stat. Frauds, sec. 455; Dale v. Hamilton, 5 Hare, 381 ; Maddison v. Alderson, supra. Now the alleged acts of part performance in the present case, taken singly or collectively, do not bring the case within these principles. The making and preserving the wills, under the circumstances stated in the bill, while they are acts consistent with, are yet not demonstrative yoi, the existence of any contract between the parties, or, in other words, they do not unequivocally show that there was a contract. Non constat, the wills were not made from motives of love and af- fection, and independently of any contract or agreement; and this being so, parol evidence to establish the alleged contract would not be admissible.- . . . CATON V. CATON. (In Chancery, 1866, L. R., 1 Ch. App. 137.) Extract from finding of facts by Stuart, V. C: "What is proved in the present case is that the testator and his in- tended wife having proposed to make a settlement (the draft of which 164 SPECIFIC PERFORMANCE OF CONTRACTS (Part 1 was prepared in accordance with that memorandum which is in his own handwriting), changed their intention as to the machinery, and, instead of a settlement, it was proposed, and agreed to by both parties, that the testator, the intended husband, should by will do that which it was originally intended he should do by settlement." . . . Lord Cran worth, L,. C. . . . The same clause of the statute which forbids the bringing of an action on any parol contract made in consideration of marriage, also forbids the bringing of any action on any parol contract for the sale of land. But, though Courts of equity have held themselves bound by this last enactment, yet they have in many cases felt themselves at liberty to disregard it when to insist upon it would be to make it the means of effecting instead of preventing, fraud. This is the ground on which they require specific performance of a parol contract for the sale or purchase of land when that contract has been in part performed. The right to relief in such cases rests not merely on the contract, but on what has been done in pursuance of the contract. His Honour the Vice-Chancellor Stuart, according to the report of this case, appears to have thought that the decisions under this head of equity (and they' are very numerous) are applicable to the present case, but with all deference to the Vice- Chancellor, I cannot think that this is a correct view of the law. That marriage itself is no part performance within the rule of equity is certain. Marriage is necessary in order to bring a case within the statute, and to hold that it also takes the case out of the statute would be a palpable absurdity. It was not, however, on the mere fact of the marriage that the Vice- Chancellor rested his judgment. His Honour relied mainly on the circumstance which he considered to have been well proved, that, pre- viously to the marriage, the intended husband, in conformity with the verbal promise he had solemnly made to his wife, prepared a will whereby he gave to her all that he had agreed to give her ; and further, that he had executed this will in due form of law immediately after the solemnization of the marriage. I do not however think, even if all this had been clearly made out in proof that it amounts to any part performance so as to prevent the operation of the statute. The ground on which the Court holds that part performance takes a contract out of the purview of the Statute of Frauds is, that when one of two con- tracting parties has been induced, or allowed by the other, to alter his Cll. 2) DEFENSES. 165 position on the faith of the contract, as for instance by taking possession of land, and expending money in building or other like acts, there it would be a fraud in the other party to set up the legal invalidity of the contract on the faith of which he induced, or allowed, the person con- tracting with him to act, and expend his money. But such cases bear no resemblance to that now under consideration. The preparing and executing of the will caused no alteration in the position of the lady, and I presume it will not be argued that any consequence can be at- tached to acts of part performance by the party sought to be charged. If I agree with A. by parol, without writing, that I will build a house on my land, and then will sell it to him at a stipulated price, and in pursuance of that agreement I build a. house, this may afford me ground for compelling A to complete the purchase, but it certainly would af- ford no foundation for a claim by A to compel me to sell on the ground that I had partly performed the contract. The circumstance of the preparing and executing the will (supposing it satisfactorily proved) might afford strong evidence of the existence of the parol contract in- sisted on, if that were a matter into which we were at liberty to in- quire; but it can have no effect as giving validity to an otherwise in- valid contract. I must further observe that the nature of the alleged agreement was such as hardly to admit, even on the part of the party to be charged, of anything like part performance. As a will is neces- sarily until the last moment of life revocable, a contract to make any specified bequest, even when a will having that effect has been duly prepared and executed, is in truth a contract of a negative nature — a contract not to vary what has been so prepared and executed. I do not see how there can be part performance of such a contract. . . . SLINGERIvAND v. SLINGERLAND (Supreme Court of Minnesota, 1888, 39 Minn. 197, 39 N. W. 146.) GiLFiLLAN, C. J. The parties stand in the relation of father and son. The defendant, the father, owned a large farm in the county of Dodge. On the 5th day of March, 1866, there were pending in the district court in said county five several actions or proceedings, — one an action by plaintiff against this defendant to recover about $15,000, for services rendered between June, 1879, and January, 1886. 166 SPECIFIC PERFORMANCE OF CONTRACTS (Part 1 . . . These actions and proceedings were all defended, the con- troversy in each being really between this plaintiff and defendant. They were all on the calendar of the March term, 1886, of the court for trial, and the first was on trial, when on said 5th day of March, 1886, the defendant orally offered to plaintiff that if he would dismiss said actions brought by him, and turn over to defendant said money in the county treasury, he (defendant) would convey said farm to him, with the stock, machinery, and personal property, on the day when he should be married to a certain young lady, to whom he was then, and for some time had been engaged to be married as soon as his pecuniary circumstances would warrant his assuming the support of a family, which engagement, and the reasons for delay in it, were known to and approved of by defendant. Plaintiif thereupon orally accepted said offer, and forthwith dismissed said actions, and withdrew his claim to the money involved in said mandamus proceeding, and such money was thereupon paid over to defendant, and the proceeding dismissed. On the 31st of March, 1886, plaintiff and said young lady were married. From March 5th till some time after the marriage defendant intended to carry out his agreement, but on December 8th, following, on a formal demand by plaintiff for a conveyance, he refused to execute it, and denied any agreement or obligation to do so. . . . In this case no remedy is apparent that will restore plaintiff to the situation he was in, or put him in as good a situation as he was in, at the time of making the agreement. If the actions and proceedings then pending could be reinstated by vacating the dismissals still plaintiff irretrievably lost the opportunity to try them at the March term, 1886. An opportunity to try them a year or two after that time, when perhaps, plaintiff's ability to present his claims would not be the same, would not be an equivalent for the right to try them at that term. But they could not all be reinstated. The proceeding against the county auditor certainly could not be, nor could a new similar proceed- ing be instituted. If the bank, relying on the settlement between plain- tiff and defendant, and the dismissals of the actions against it, changed its position, so that restoring the actions would operate as a fraud upon it, those actions could not be reinstated ; and, for the same reason, new actions for the same causes could not be maintained against it. As to the action against defendant, plaintiff might succeed in having them reinstated, or, if he did not succeed, might bring new actions; Ch. 2) DEFENSES. 167 but, in the latter event, a part of the cause of action in one of them would, in the meantime, have become barred by the statute of Hmita- tions. The only other suggestion of a remedy to plaintiff is that he might have brought an action for damages for the loss sustained by his dis- missal of the former actions and proceedings. Such an action would be novel, though it might be maintained. The difficulties in the way of prosecuting it, so that the recovery would put him in as good position as he was in before, would be great. He would have to show to what extent he had lost his original claims, and the value of what was so lost. Take the cases against the bank. He would have to show that his rights as against it were gone, and thenshow his claims against it. And so with the other actions. The dismissals were not made on a money consideration, nor did the parties intend the value of the actions to be measured by a money standard. In no way could the loss of the advantage which the right to try the actions at the March term, 1886, gave him be estimated in damages, nor any recovery he had for it. Among all the cases we have cited, in no one was it clearer than an action for damages was not an adequate remedy than it is in this case. . . . GLADVILLE v. McDOLE. (Supreme Court of Illinois, 1910, 347 III. 34, 93 N. E. 86.) Mr. Justice Cartwright. . . . The contract was verbal, and in such a case it must be proved by competent evidence and be clear, definite and unequivocal in its terms. (Clark v. Clark, 122 111. 388.) The evidence fully satisfied that requirement. It was also proved, and not contradicted, that Eva Gladville fully performed the contract in iccordance with its terms, and the only question to be determined is whether she is entitled to a specific performance of it although it was within the Statute of Frauds and invalid at law. The invalidity con- sisted of the fact that it was not reduced to writing and signed, and 10 action at law will lie upon such a contract. The courts of equity, lowever, will not permit the Statute of Frauds, the only purpose of vhich is to prevent fraud, to be used where the effect will be to ac- 3^8 SPECIFIC PERFORMANCE OP CONTRACTS (Part 1 complish a fraud and where a verbal contract has been performed, either fully or in part, by the party seeking the remedy, and the facts are such that it would be a virtual fraud to permit the defendant to in- terpose the statute, a court of equity will not listen to that defense. If the defendant has knowingly permitted the complainant to do acts in performance of the verbal agreement and in reliance upon it, which change the relation of the parties and prevent a restoration to their former condition by a recovery at law of compensation for the acts performed, it would be a fraud on the complainant to permit the de- fense to be made, and the statute, which is intended to prevent fraud, would be made the means of fraud. In equity the rights and duties of the parties are the same as they would have been if the contract had been written and signed, and unless the one who has performed the contract in good faith can be made whole in damages he is left without any adequate remedy at law, and equity will compel the other party to |do the thing which was agreed to be done. (3 Pomeroy's Eq. Jur. sec. |ll409; 26 Am. & Eng. Ency. of Law,— 2d. ed.— 50.) Payment of (purchase money, alone, will not take the contract out of the statute, for the reason that it can be recovered back, with interest, in an action at law. (Temple v. Johnson, 71 111. 13.) The same is true of per- sonal services, which can be estimated in money, for which a recovery can be had in law, because the law would in that case afford a sufficient remedy; In this case there could be no recovery at law for the labor. sacrifices and deprivations of Eva Gladville during t en years _ of_sei:^ ^vic^ which were worth as much as the land was then worth, for the reason that any claim for them was outlawed by the Statute of Limi- tations long ago. The mere fact of possession, without other circum- stances, would not justify a decree for a specific performance, and in most cases the use of the land would be a full compensation . for all injuries sustained. The basis for relief in a court of equity is the equitable fraud resulting from setting up the Statute of Frauds as a defense, and there have been many cases in this court where equity has afforded a remedy by specific performance if the contract has been performed by one party in such a .way thaf the parties cannot beplaced in statu quo or damages awarded which would be full compensation. In contracts between parties for the conveyance of land there is usual- ly a provision for possession under the contract at some time, and naturally one of the most frequent acts of part performance is taking Ch. 2) DEFENSES. 169 possession and making improvements on the land. This court has en- forced specific performance of verbal contracts where such possession has been taken, coupled with payment of the purchase price, and es- pecially if lasting and valuable improvements have been made. (Ram- sey V. Iviston, 25 111. 114; Langston v. Bates, 84 id. 524 ; Smith v. West, 103 id. 332; McNamara v. Garrity, 106 id. 384; Irwin v. Dyke, 114 id. 302; Hall v. Peoria and Eastern Railway Co. 143 id. 163.) And a con- tract invaHd at law may be specifically enforced against the heirs of a party to such contract. Simonton v. Godsey 174 111. 28. Much of the argument against the right to a specific performance is devoted to the claim that Eva Gladville did not have possession of the land in the lifetime of John P. Jester or Phebe Jester, and that there can be no decree for specific performance without such posses- sion. "The keys were delivered to her by Phebe Jester a few days before the death of Phebe Jester, and she was put in such possession of the property as was consistent with existing conditions and circumstances. But if there was no actual possession and it was merely constructive, it cannot be that equity will deny a remedy upon that ground, alone, where the result would be to accomplish a fraud. The cases where possession has been regarded as of controlling importance are cases where the purchaser became entitled to posession under the terms of the contract, but in this case Eva Gladville was not entitled to posses- sion in the Hfetime of John P. Jester or Phebe Jester but by the very terms of the contract was to have such possession after they died, and she took and has held actual possession ever since the death of Phebe Jester. To say that possession in the lifetime of the other party by one claiming under a verbal contract is indispensable to any remedy in equity, would be to say that there can be no remedy where the com- plainant did not become entitled to possession until the death of the other party, although such a rule would operate as an unmitigated fraud. The ground for interference by a court of equity being that there have been such acts of performance on the part of one claiming the benefit of the contract as would compel him to suffer an injury amounting to a fraud if the statute is interposed as a defense, it would be as anomalous as it would be absurd to recognize nothing as perform- ance except taking possession of the land when a party could not lawfully take such possession. To permit the defendants to the bill of Eva Gladville to repudiate the contract because she did not have 170 SPECIFIC PEEFOEMANCE OF CONTEAOTS (Part 1 possession before she became entitled to it, when she has performed her contract and cannot be compensated except by an enforcement of it, would be to perpetrate a fraud equal to any other. . . . \J YOUNG V. OVERBAUGH. (New York Court of Appeals, 1895, 145 N. Y., 158, 39 N. E. 712.) Gray, J. The plaintiff brought ejectment to recover the posses- sion of land and a dwelling thereon, occupied by the defendant and. her husband. It was conceded that the legal title was in plain- tiff's testator, at the time of his death ; but the defendant claimed that she was the owner of the equitable title to the premises, by reason of promises made by the plaintiff's testator to her and of acts done by her in reliance upon those promises. ... In 1872, Thomas Cornell, the plaintiff's testator, was the owner of the premises in question. He was the half-brother of the de- fendant and upon his request she and her husband had settled in the city of Kingston. In the year mentioned, Mr. Cornell asked the defendant's husband to build a house for the defendant on a cer- tain piece of his property, at the cost of $4500, and to bring the bills to him for payment. The house was built at a cost which exceeded, by about $1,200, the sum named by Mr. Cornell, and the defend- ant subsequently, made valuable permanent improvements upon the property; such as building a barn, planting of fruit trees, putting in a heating apparatus, etc. : of all which Mr. Cornell had knowledge. Other facts found were that, after the defendant had contracted to erect a house upon the property, Mr. Cornell had stated that the house was built for the defendant and was hers; and so spoke of it to different persons at different times. ^ Upon one occasion, in the year 1876, upon the defendant's husband informing Mr. Cornell that he had found a business at Yonkers, which he thought it would be a good thing to go into, the latter replied, to the effect, that if they moved away from the property where they then resided the defendant should not have it and that they would lose it. There was this specific finding: "That such improvements, as well as the payment of $1,200, were made and expended on the faith of the promises Ch. 2) DEFENSES. 171 by Cornell, to give the property to Mrs. Overbaugh (this defendant), and all such moneys were expended, and improvements made, for and on behalf of the defendant and at her request, and under her promise to repay her husband thereafter." There was a finding that the total amount of money expended' by the defendant for per- manent improvements, repairs, taxes, insurance, etc., and including,- also, repairs and expenses, which are incidental to the ordinary care of a house, from the beginning of the erection of the house down to the date of the trial, was the sum of $4,734.26 and that the fair rental value of the property of the defendant during her occupancy, for a period of about twenty years, was $250 per year ; amounting in the aggregate to $5,000. ^ The learned trial justice conceded the existence of the exception to the general rule, that a parol gift of real estate is void, in a case where the donee enters into possession of and improves the prop- erty, upon the strength of the promise that it would be given to her; but he did not think that the present case fell within the exception. He was influenced in that view by a consideration of the nature of the acts done by the defendant, in reliance upon the promise of Mr. Cornell. Regarding the equitable rule to be founded in the idea of preventing an injustice being done to a promisee, if the promisor be permitted to avail himself of the statute, and that the application of the rule is in a case where financial injury will be, sustained; he, in the first place, considered that as the defendant's acts were only such as an ordinary householder would be expected to make and, in the second place, as the fair rental value of the premises during the twenty years of the defendant's occupation was worth to her, al- together, a sum which exceeded the aggregate of the sum found to have been expended by her, or at her request, during that time, that if the defendant was compelled to surrender possession of the prem- ises, she would not, in fact, be a loser as the result of the entire trans- action with Mr. Cornell, but the gainer. Hence he concluded that there was absent here that element of injustice to the donee; which is essential to exist, in order to entitle him to an enforcement of the doner's promise. We find ourselves unable to agree with the trial justice in his judgment upon this question and we prefer the view taken at the General Term; that where there has been a parol promise to convey, 172 SPECIFIC PERFORMANCE OF CONTRACTS (Part 1 a taking of possession under such promise and the making of per- manent improvements upon the property upon the faith thereof, the mere value of the occupation during the time is not to be set off against the expenditures made. I think it would not be within the spirit of the rule in equity that its application should be made to depend, not upon the fact of a consideration for the promise being shown to have existed and to have been performed, but upon the question whether, when specific performance by the donor is claimed, the use has not compensated the donee and relieved the donor's ob- ligation. . . . In such a case as this, to constitute a good consideration in equity, it is, of course, essential that it be substantial; in the sense that the promise shall rest upon a performance by the promisee, which evi- dences acceptance of and reliance upon the promise and consists in expending moneys in permanent improvements upon the land. In this case it may well have been, as found, that some of the ex- penditures made by the defendant upon the property were such as a householder would ordinarily make, or were trivial in their nature; but they do not influence the character of the others. We have the fact that the house was contracted for upon the promise of Mr. Cornell ; that its cost exceeded the sum, which he agreed to be re- sponsible for, by $1,200, and that there were the other improvements of a permanent character, to which I have adverted as being found. There was, in' fact, such a consideration for the promise of Mr. Cornell as to have made it obligatory upon him to perform it, in order that the defendant should not be defrauded and injured. It would be very inequitable to deprive the agreement of its obligatory character, merely because, during the time of the occupation of the defend- ant under the parol promise, the fair rental value of the premises would amount, in the aggregate, to a sum in excess of the amount altogether expended. If there was the promise to give the property, accompanied by the delivery of possession to the defendant and ex- penditures in permanent improvements made, in reliance upon the promise, injury will be presumed to follow by a failure to perform it. In enforcing such a promise, equity aims at preventing a fraud upon the donee and regards the case as taken out of the operation of the statute by the part performance. . . . Ch. 2) DEFEl/sES. \17.1''J \ GIRARD V. LEHIGH STONE CO. (Illinois Supreme Court 1917, 280 111. 479, 484, 117 N. E. 698.) Mr. Justice Duncan. . . . The agreement by which appellee claims an easement across appellants' land was a verbal agreement. It is well settled that an easement or other incorporeal hereditament in lands cannot be created by parol but only by grant, or by pre- scription, which presumes a grant. (Lake Erie and Western Rail- road Co. V. Whitham, 155 111. 514.) At law a parol license is revocable though a consideration has been paid or expenditures have been made on the faith of the agreement. (St. Louis Nat. Stock Yards V. Wiggins Ferry Co. 112 111. 384; Tanner v. Volentine, 75 id. 624.) Courts of equity, however, will interfere to restrain the exercise of a legal right to revoke a license on the ground of preventing fraud, and will construe the license as an agreement to give the right. (Jones on Easements, sec. 76; Hunt v. Sain, 181 111. 372; Kamphouse v. Gaffner, 73 id. 453.) Appellants went into the circuit court by bill in equity to enjoin the doing of the very thing they had agreed appellee should do, according to the finding of the circuit court. Appellee had expended large sums of money on the faith of their agreement, and it would amount to a fraud on appellee to permit appellants to thus undo their agreement. They are asking equity but at the same time are not offering to do anything to make appellee whole on its expenditures. . . . V JOHNSON V. HANSON. •/ (Supreme Court of Alabama, 1844, 6 Ala. 351.) Assumpsit by the plaintiff, against the defendant in error. The two first counts of the declaration, set out a sale of land by the plaintiff to the defendant, at the price of eight hundred dollars, to be paid, one half on the first of January, 1839, and the remainder on the 1st January, 1840— that the defendant went into peaceable possession of the premises, and has hitherto retained it, and that the defendant 174 SPECIFIC PEBFOEMANCE OF CONTEAOTS (Part 1 has paid three hundred dollars, part of the purchase money — that the plaintiff is able and willing, and ready to make title according to his contract, upon the payment by the defendant, of the purchase money, and concludes with the usual super se assumpsit. The defendant demurred to these counts of the declaration, and judgment being rendered on the demurrer, for the defendant, and the plaintiff declining to plead over, judgment was rendered against him. . . . OrmonDj J. It is not in general, necessary to allege in a declara- tion, a written promise, where the necessity for the promise being in writing, is created by statute, as it is matter of evidence to be proved at the trial, but in this case, it is expressly alleged that the contract ,for the sale of the land, which was the consideration of the promise laid in the declaration, was merely verbal, and the precise question is, whether an action can be maintained at law, to recover the pur- chase money of land, there being no note or memorandum thereof in writing, because the vendee retains the possession. A court of chancery acting on its own peculiar rules, will,' in cer- tain cases, for the prevention of fraud, enforce a specific perform- ance of a verbal contract for the sale of land; as where there has been a part performance of the contract, but we are not aware that such a power has ever been acknowledged to reside in a court of law. Doubtless some isolated cases may be found, in which it has been held that the equitable circumstances which would authorize a court of chancery to grant relief, might be considered in a court of law. Lord Redesdale remarks, "Mr. Justice Buller says, in one or two cases, that part performance will take a case out of the statute, as well at law as in equity. This opinion will be found wrong; and I recollect Mr. Justice Buller, on being pressed with the consequences of that opinion, in case of a demurrer to evidence, being obliged to abandon the position. The ground on which a court of equity goes in cases of part performance, is that sort of fraud which is cognizable in equity only." O'Herliky v. Hedges, 1 S. & L,. 130. . . . The recent decision of Cope v. Williams, 4 Ala. 364, has been pressed on the court, as tending to a contrary conclusion. In that case, the vendee in possession, brought an action to recover back the pur- chase money. This court held, that it was contrary to equity and good conscience, to permit him to assert the invalidity of a contract, Ch. 2) DEFENSES. 175 by virtue of which he retained the possession of the land ; the vendor being wiUing to execute the contract. The difference between that case and the present is, that here the vendee repudiates the contract, and if he retains the possession of the land, it is not by force of the contract, which at law can confer no rights on either party, but because the vendor chooses to acquiesce in it. Whatever may be the rights of these parties in a court of equity, it is certain no right can be derived by either in a court of law, from a contract declared void by statute. Let the judgment be affirmed. \ WOOD V. MIDGIvEY.-' (In Chancery, 1854, De G., M. & G., 41.) This was an appeal from the decision of Vice-Chancellor Stuart overruling the demurrer of the defendant to a bill for specific per- formance filed by vendors of leasehold property. The ground of the demurrer was that the bill alleged no sufficient agreement in writing within the Statute of Frauds. . . . Turner, Iv. J. ... As to the second point, it is said that a defense founded on the Statute of Frauds cannot be taken by way of demurrer, because the statute does not destroy a parol contract, but only prevents the enforcement of a contract unless it is evidenced by an agreement signed by the party to be charged; and a distinction was attempted to be drawn on this ground between the Statute of Frauds and the Statute of lyimitations. But I cannot see any dis- tinction between them for this purpose, because the Statute of lyim- itations does not destroy a debt any more than the Statute of Frauds destroys a contract. On the same principle it must rest on the plain- tiff to allege a state of facts, in each case, taking it out of the opera- tion of the statute. Both cases depend on the same principle, which is, that it is incumbent on the plaintiff to state facts entitling him to equitable relief. (See 1 Dan. Ch. Pr. [4th Am. ed.]365. In Foster V. Hodgson, 19 Ves. 180, 184, Lord Eldon said, "I was present, and I believe counsel in the cause of Beckford v. Close; and I am sure l'^ SPECIFIC PEEFOEMA]srcE OF conteaots (Part 1 that Ivord Kenyon, upon the doctrine he then held, thought that ad- vantage might be taken of a case of this sort by demurrer; asking, if a plaintiff states upon his bill a case, on which the defendant may insist that the remedy shall be taken away, why may he not do so by demurrer?" It seems to me, therefore, that a defense resting on the Statute of Frauds may be made by demurrer. Upon the merits the argument is threefold. First, it is said that the defendant has so acted as to avoid signing the agreement, hold- ing the other party bound by the agreement, and Maxwell v. Mounta- cute. Free, in Ch. 526, is referred to on this head. But the principle of that and similar cases is fraud. If a party has been guilty of fraud, beyond all doubt the Court will not let him take advantage of the Statute of Frauds. All the cases referred to, including Hammers- ley v. De Bid, 12 CI. & Fin. 45, Walker v. Walker, 2 Atk. 98 and Muckleston v. Brown, 6 Ves. 52, rest on this principle. Is there, then, a case alleged by this bill of this nature, that the defendant did by his fraudulent act prevent the agreement from being reduced to writing. I think that there is no allegation on the bill bringing forward a case of fraud. The case alleged is simply this, that there was an agree- ment for a sale by the plaintiffs to the defendant for £1,000, and that defendant said that he would not sign any agreement. The law has said that the defendant is not to be sued unless upon an agreement signed by him. Is it a fraud on that law for him to say, I have agreed, but I will not sign an agreement? . . . GREEN V. GREEN. (Kansas Supreme Court, 1886, 34 Kan. 740.) HoRTON, C. J. Harriet F. Wilcox, being the owner of certain real estate, and about to be married to Oliver Green, signed and executed leeds of all of her real estate to her children the day before her mar- •iage. The deeds were made without the knowledge or consent of ler intended husband, and for no other consideration than love and iffection. The grantees of Harriet F. Wilcox, now Harriet F. Green, ;xecuted deeds to the property to James H. Easterday, who at the ime had knowledge of all the circumstances attending the execution if the deeds to them. Oliver Green, the husband, attempts to set h. 2) DEFENSES. 177 side these deeds, alleging that the same are fraudulent as to him. 'he defendant, James H. Easterday, demurred to the petition of laintifif, on the ground that it did not state facts sufficient to constitute cause of action. . . . For the purpose of this case, all the allegations of the petition must e taken as true. Therefore we must assume there was a verbal nte-nuptial contract existing between Oliver Green and Harriet F. Vilcox at the time of their marriage ; that the marriage was con- ummated by Green on account of his reliance upon the ante-nuptial ontract; and that Harriet F. Wilcox, now Green, has been guilty •i misrepresentation, deception and actual fraud toward Oliver Green efore and after her marriage. The question is, whether, under all hese circumstances, the deeds delivered subsequent to the marriage an be set aside as fraudulent to the husband. We decided in Hafer •. Hafer, 33 Kans. 449, that— "The statutes of this state recognize the right of parties contem- )lating marriage to make settlements and contracts relating to and lased upon the consideration of marriage, and that an ante-nuptial ontract providing a different rule than the one prescribed by law or settling their property rights, entered into by persons competent o contract, and which, considering the circumstances of the parties it the time of making the same, is reasonable and just in its pro- visions, should be upheld and enforced." And we further decided that "Marriage is a good and sufHcient :onsideration to sustain an ante-nuptial contract." Sec. 6, of chapter 1-3, Comp. Laws of 1879, of the statute for the prevention of frauds md perjuries, provides : "No action shall be brought ... to charge any person upon my agreement made upon consideration of marriage, . . . unless he agreement upon which such action shall be brought, or .some aemorandum or note thereof shall be in writing and signed by the )arty to be charged therewith, or some other person thereunto by lim or her lawfully authorized." But for this statute, we suppose it would be conceded that the ,nte-nuptial contract might be enforced, or at least that the deeds )f Harriet F Green, late Wilcox, attempting to convey, without con- dderation, all of her real estate, so as to deprive herself of the 1 Eq.— 11 178 SPECIFIC PEEFOEMANCE OP conteacts (Part 1 power of carrying out her promises and contract, would be invalid as a fraud upon her husband. . . . In Glass v. Hulbert, 102 Mass. 24, it was said : "The marriage, although not regarded as a part performance of the agreement for marriage settlements, is such in irretrievable change of situation that if procured by artifice upon the faith that the set- tlement had been, or the assurance that it would be executed, the other parties are held to make good the agreement and not permitted to defeat it by pleading the statute." In Petty v. Petty, 4 B. Mon. 215, the wife, in her petition charged that her husband, being much the elder and in good circumstances, as an inducement to the contract of marriage and as a means of pro- viding for her support in the event of his death, before their mar- riage promised her that if she would marry him he would im- mediately after the marriage make a deed of settlement, etc. A few days after the marriage, her husband disclosed to her for the first time that he had been induced by certain persons to make over his property before he married. The court said, in passing upon the case, that "the wife has been fraudulently deprived of the right of dower by the deeds in question; to that extent at least of this in- terest, if no further, their execution was a fraud upon her and ought not to stand." . . . Upon the well-established doctrine that fraud takes any case out of the statute of frauds, and the principle declared in Busenbark v. Busenbark, we conclude that the deeds in controversy are in fraud of the rights of the plaintiff, and that he is entitled to have them set aside. . . . DUFFY V. KEIvLY. (New Jersey Court of Chancery, 1897, 55 N. J. Eq. 627, 37 Atl. 597.) The suit is in the nature of one for specific performance. The complainant, by his bill, sets out that he is the owner of a lot of land in Hoboken, known as No. 165 Newark street, and that on the 2nd of October, 1891, he demised the same unto one Adolph Horn, for the term of five years from that day, and the lease contained a clause )ll. 2) DEFENSES. 179 n these words : "And it is further agreed that the tenant shall have he option of extending this lease for the further period of five years :or the same rent, unless the landlord shall pay a fair price for the milding that is to be put on the premises by the tenant, provided hree months' notice in writing is given by either party before the ■ ;xpiration of this lease." . . . Pitney^ V. C. . . . The clause in question is, in effect, a con- ract on the part of the lessee to convey the building to the com- )lainant, lessor, at his option, at a fair price. This is a necessary im- )lication from the scope and purpose of the contract. If the build- ng was, in fact, so annexed to the land as to be incapable of removal LS a trade fixture, then the legal title was in the lessor and no actual :onveyance is necessary. If, on the other hand, the lessee has the right remove it, a formal release of that right is proper. The clause was ;vidently framed upon the idea that it was not removable, and the )rovision for compensation was manifestly introduced for the benefit )f the lessee by way of protecting him against the loss of the amount nvested in the building. It follows that the suit is, in effect, one for pecific performance. The circumstance that the interest here in question may be properly lassed as a chattel interest is no objection to the jurisdiction of the ourt. The power and propriety of the court, in proper cases, to deal vith specific performance of contracts for the sale of chattels is es- ablished by a series of authorities in New Jersey, the leader being glutting V. Dana, 10 C. E. Gr. 265, followed by Rothholz v. Schwartz, Dick. Ch. Rep. 477, and by the later case of Gannon v. Toole, 32 i.tl. Rep. 702. In the last case, the interest dealt with was much like hiat now before the court. But, in essence, the subject-matter here is real estate. It involves he right to the possession of the land itself, as well as of the building /hich has been erected upon it. Then I am unable to see how the complainant can have his remedy t law. By his notice given to Kelly, he bound himself to purchase he building at a fair price, and barred himself from declaring the erm ended except upon terms of paying for the building. In order maintain an action at law, it is necessary for him to make a tender if a fair price in advance of his action. And there are two difficulties ti the way of that — first, that he has no mode of ascertaining in ad- >0 SPECIFIC PERFORMANCE OF CONTRACTS (Parti ince what a jury will consider to be a fair price, and second, he ight not be quite safe in tendering it to either of the two — Kelly, le assignee of the lease, or to the Bavarian Brewing Company, as ortgagee. The real position of the complainant is that of a person holding a )ntract to purchase a right of possession of land upon paying a fair rice for a building situate upon it. In that respect the case is the mverse of Berry v. Van Winkle, 1 Gr. Ch. 269, where the aid of le court was asked by the lessee, who had a contract from the lessor ) pay him, at the end of the term, the value of improvements to be nt upon the premises. Viewed in the light of a suit for specific performance, the power tid duty of the court, where, as here, it is necessary, in order to do istice, to ascertain the fair value of the subject of the sale, must be Dnsidered as settled in this court. The subject was considered by hancellor Green in Van Doren v. Robinson, 1 C. E. Gr. 256 (at p. 50), where that learned judge collected the authorities and stated the 2sult thus : "But where the contract is that the land shall be recon- eyed, not at a price to be agreed upon by the parties, but at a fair rice, or at a fair valuation, the court would direct the valuation to e made by a master, and will enforce the execution of the con- ■act." It is manifest that, unless the court will undertake to ascertain le fair value of the building, the complainant will be in great danger f losing the benefit of the terms of his contract, and that consideration as influenced the courts in the direction of assuming that duty when- ver practicable. This abundantly appears from an examination of le later English authorities. Pom. Spec. Perf. § 151 ; Fry Spec. 'erf. (3rd Am. ed.) § 346; Hopcraft v. Hickman, 2 Sim. & Stu. 30; Gaskarth v. Lord Lowther, 12 Ves. 107; Jackson v. Jackson, 1 ;im. & G. 184; 22 E.J. Ch. (N. S.) 873; Milnes v. Gery, 14 Ves. 400. The latter was an action for specific performance of a contract to ell an estate at a price to be fixed by two indifferent persons, one to e named by one party and the other by the other party, and if the ersons so named should happen to disagree, then these two to choose third person, whose determination should be final. Two persons /ere chosen, but were unable to agree, and were unable to agree ipon a third person. Complainant filed a bill for specific performance, ^h. 2) DEFENSES. ISl asking the court to appoint a proper person to make the valuation, or that the valuation should be ascertained in such other manner as the court should direct. Sir William Grant, master of the rolls, held that the court had no power to fix the price in any other manner except in that mode fixed by the parties, but at page 407 he adds: "The case of an agreement to sell at a fair valuation is essentially different. In that case no particular means of ascertaining the value were pointed out. There is nothing, therefore, precluding the court from adopting any means adapted to that purpose." With regard to the value of the building here in question, I think a fair valuation will be arrived at by taking the actual cost of the building and water and sewer connection, which was $611, and make a moderate allowance for five years' wear and tear. This I fix at $61 and fix the valuation at $550. As the complainant made his offer too small and the defendant his demand too large, I think it right that each party should pay his own costs. The decree will be that, upon tender of that sum, the defendant must release all right, title and interest in the premises, without prejudice to the right of the complainant to recover for use and oc- cupation. \ BODWELIv V. BODWELL. (Supreme Court of Vermont, 1894, 66 Vt. 101, 38 Atl. 870.) Ross, C. J. This is a bill brought by the guardians of the minor children of E. B. Bodwell, deceased, praying to have Ida A. Bodwell, the widow of the deceased, compelled, specifically, to perform a postnuptial agreement entered into by her, while covert, with the de- ceased, in regard to Hving separate and apart from the deceased, and rehnquishing "all right, title, and interest in and to his property and estate." The orators, as the representatives of the minor chil- dren, stand upon the rights of E. B, Bodwell, as they existed at the time of his decease. Without attempting to determine whether the contract is such that equity would specifically enforce it under any circumstances, or whether it is fair and just in its provisions for the i82 SPECIFIC PERFORMANCE OF CONTRACTS (Part 1 defendant, or whether its proper construction would debar the de- fendant of homestead and dower, and other provisions of the stat- ute for her benefit, in his estate, it is elementary that "he who seeks /equity must do equity," or that a party to a contract, or those stand- ing on his rights, to entitle himself to a specific performance of the provisions of the contract which are to be performed for his bene- fit, must affirmatively establish that he has faithfully kept and per- formed, or is ready and wilHng to keep and perform, all the pro- visions of the contract resting upon him to perform, for the benefit of the other party. The deceased had not kept and performed one of the essential provisions of the contract which rested upon him to perform. By the contract, the defendant Ida A. Bodwell was given the care and custody of their minor son Burleigh W., so long as she should properly provide and care for him. The master has found hat she did properly provide and care for him, and that the deceased did not regard this provision of the contract, but, very soon after it was entered into, against her wish, stealthily took the son from her, and not only detained him from her so long as he lived, but in the meantime brought a bill of divorce against her, and therein prayed to be given the custody of the son. He put her to the trouble and expense of defending herself, not only from the charges in the libel, but also from the obtaining a decree for the custody of the son. Under these circumstances, E. B. Bodwell, at the time of his decease, did not stand in such relations to the contract that he could call upon a court of equity to enforce it specifically in his favor. Neither do the orators, who stand on his rights. Decree reversed, and cause re- manded, with a mandate to the court of chancery to dismiss the bill, with costs to the defendant in this court. t t BUCKLAND v. HALL. (In Chancery, 1803, 8 Ves. 92.) In May, 1798, the plaintiff being in possession as assignee of a house belonging to the defendant, in Duke Street, Lincoln's-Inn-Fields, at a rent of £30 per annum, to expire at Midsummer, 1799, a treaty was entered into and concluded for a renewal; and a minute of an Oh. 2) DEFENSES. 183 agreement was written by the defendant for a lease at the rent of £35. The defendant to make certain alterations : the plaintiff to do all substantial repairs by the 24th of June, 1801, and the painting etc., by the 24th of June, 1802; then to have a lease signed for seven, four- teen, or twenty one years, at his option, from midsummer 1800. . . The Lord Chancellor (Eldon). In a case of this kind the court must take care that, the tenant is not rashly turned out of possession. On the other hand it is too hard against the landlord, to introduce upon the record an averment, that the tenant has some way or other become solvent. With respect to the insolvency, the weight of that objection is more or less in different cases. There is a distinction certainly between a purchase and a lease. In the former instance the bill for specific performance tenders payment of the purchase-money ; the latter is very much otherwise ; and the court ought not to forget the habit of dealing among mankind with regard to the relation of landlord and tenant. Every man taking a tenant looks to the prob- ability of the rent being paid; and that attention is paid to that cir- cumstance through the whole currency of the lease, that introduces a provision not to assign or underlet without license; and that is often thought of so much consequence, that special care is taken at least as to the end of the lease, that there shall then be a responsible tenant ; though it may not have been thought necessary to provide for that in the anterior period. A difference of opinion has, I know, prevailed, whether that is a usual covenant, to be inserted as such, or not. But recollecting, that the lessee remains liable to the determination of the term, but an assignee only during his possession, it is of great importance to the lessor to take care that the lessee shall be a man of substance. Therefore insolvency admitted, and not cleared away, is a weighty objection to a specific performance of an agreement for I lease : the party here seeking an execution beyond the law. In- solvency would be of weight with a jury. Such a question appears never to have been determined; and is of too much consequence to be decided upon motion. I shall therefore only say, that at the hear- ing in general cases, it would have considerable weight witn me, in some cases more than in others. If the tenant undertakes for nothing but the payment of rent, it must be appreciated accordingly. If be- jrond that he undertakes for considerable expenditure upon the prem- ises, before he is to be placed in the relation of lessee, that is directly 184 SPECIFIC PERFORMANCE OP CONTRACTS (Part 1 connected as a most important circumstance with the fact of solvency or msolvency. Therefore, where very considerable repairs are to be done by the lessee, his solvency is to be looked to to that extent ; for, unless done, before the bill is filed, they are to be done after the de- cree; not immediately upon tender, as in the case of a purchase; un- less the bill can offer the amount of the utmost possible repairs to be paid into court. . . . THOMPSON V. WINTER. (Minnesota Supreme Court, 1889, 43 Minn. 121, 43 N. W. 796.) GiLFiLLAN, C. J. This is an action to compel specific performance of a contract in the nature of one to convey real estate. The de- fendant had purchased the land from the state, paying 15 per cent, of the purchase price, and receiving certificates of purchase. Feb- ruary 1, 1886, these parties entered into a contract in writing, where- by defendant agreed that, upon full performance on the part of the plaintiff, he would transfer by deed of assignment the said land cer- tificates. Plaintiff was to pay therefor $590, according to two prom- issory notes, — one for $190, due October 1, 1886, with interest at 10 per cent., and one for $400, due two years from February 1, 1886, with interest at 8 per cent., — and pay all taxes and assessments, and the unpaid purchase-money to the state. The plaintiff fully performed this contract on his part. In March, 1886, the parties made an oral agreement, by which defendant agreed to make cer- tain improvements for the plaintiff on the land, by breaking, erect- ing buildings, and digging a well, for which plaintiff agreed to pay him the cost thereof, with interest ; such payment not to be made before the expiration of five years from the time of making the improvements. Afterwards, pursuant to such agreement, defendant made such improvements to the amount of $500, no part of which has been paid. The plaintiff was insolvent. On these facts the court below denied specific performance. From the memorandum filed by the court below it appears that the specific performance was refused, in the exercise of what the court deemed as discretionary power, the reasons for so exercising Gh 2) DEFENSES. 185 ;hat power being stated that plaintiff has become insolvent; that ;he value of the improvements is equal to the purchasfe price; and ;hat plaintiff can be compensated in damages. The mere fact that a. person has a contract for the conveyance to him of real estate iocs not entitle him, as of right, to the interposition of a court of equity to enforce it. The matter of compelling specific performance s one of sound and reasonable discretion, — of judicial, not arbitrary md capricious, discretion. There must be some reason, founded in equity and good conscience, for refusing the relief. Such reason las been generally found, by the court refusing it, in some mistake or traud or unconscionableness in the contract, or in some laches on the part of the plaintiff changing the circumstances so as to make it nequitable to compel a conveyance, or where the claim is stale, or :here is reason to believe it was abandoned. But, whatever the ■eason may be, it must have some reference to, some connection with, ;he contract itself, or the duties of the parties in relation to it. We tiave never found a case where the court refused the relief as a neans of enforcing some independent claim of the defendant against :he plaintiff, nor because the defendant had some independent claim Arhich he might not be able to enforce against the plaintiff. If such ;ould be regarded as an equitable reason for denying relief, every iction of the kind might involve the investigation of all unclosed ransactions between the parties, whether relating to the contract or ;ubject-matter of the action, or entirely distinct from it. In this ;ase there is no reason to suppose the contract other than a fair )ne. The plaintiff has been prompt in performing on his part, and n seeking his remedy. The defendant has a claim against plain- iff, entirely independent of the contract to convey, which claim, by he terms of the agreement under which it arose, was not to become lue for more than three years after the time when he was to con- vey. The possibility that when it becomes due he may not be able o enforce it, by reason that plaintiff's insolvency may continue, loes not make it inequitable to enforce this contract already matured. That a purchaser may have an adequate remedy by action for dam- .ges, although a reason for not holding what he has done to be part- lerformance to take the case out of the operation of the statute of rauds, is of itself no reason for withholding the proper remedy, v^here the contract is valid under the statute. The order is re- J°0 SPECIFIC PEEFOEMANCE OP CONTEACTS (Part 1 versed, and the court below will enter judgment on the findings of fact in favor of plaintiff for the relief demanded in the complaint. PYATT V. LYONS (New Jersey Court of Chancery, 1893, 51 N. J. Eq. 308, 27 Atl. 934.) AbbBTT, J. The bill in this case was filed for specific perform- ance of a contract for the sale of lands. . . . In this case, if the contract is to be enforced, the complainant was entitled, in equity, to a conveyance of a lot on the corner of Nassau and Witherspoon streets, in Princeton, twenty-two feet six inches wide and one hundred and twenty-nine feet deep, and he was not entitled, in equity, to the "narrow strip" of three feet eleven inches, which was part of Witherspoon street. The learned vice-chancellor reached this conclusion, and determined correctly upon the evidence in this case, that this complainant never had any right, in equity, to have a conveyance of a lot of more than the twenty-two feet six inches in width. The defendants offered to convey such a lot, and twice, once in May and again in September, 1892, tendered the deed of March 28th, 1892, containing a proper description of a lot twenty-two feet six inches wide by one hundred and twenty-nine feet deep, on the corner of Nassau and Witherspoon streets. The complainant refused to take any deed unless it gave him a lot twenty-six feet five inches in width, and refused to pay the balance of the purchase money unless he got a good title to such a lot as would include the "narrow strip" of land in Witherspoon street. The relief invoked is not a matter ex dcbito jusitiac; the bill for specific performance is addressed to the extraordinary jurisdiction of a court of equity to be exercised according to its discretion, and he who seeks performance of a contract for the conveyance of land must show himself ready, desirous, prompt and eager to perform the contract on his part. Meidling v. Trefz, 3 Dick. Ch. Rep. 644; Page V. Martin, 1 Dick. Ch. Rep. 589; Blake v. Flatley, 17 Stew. Eq. 231. The complainant has not presented a case which brings him within the above rules, and no case has been shown where a court of equity ^ll 2) MJFfiNSES. 187 ecreed specific performance after such a refusal as complainant ad- lits in this case. He refused to perform the contract on his part, nless the defendants would do what in equity they were not bound to o. The complainant cannot, after such a refusal, and after the de- ;hdants have sold the premises to another, seek in a court of equity le relief prayed for in this suit. He must be left to his remedy at BISHOP V. NEWTON. (Illinois Supreme Court, 1858, 20 111. 175.) Walker, J. . . . Then has complainant a right to insist upon specific performance of the agreement? This breach of equity arisdiction is regulated, to a considerable extent, by a sound legal iscretion. The rule governing courts was stated by Chief Justice larshall to be, that when a bill is exhibited by a party who is him- ;lf in fault, the court will consider all the circumstances of the ise, and decree according to those circumstances ; and that a con- deration always entitled to great weight is, that the contract, though 3t fully executed, has been in part performed. 6 Wheat., 528. And, L a subsequent case, the same court lay down the rule that time may ; of the essence of the contract for the sale of property. It may be lade so by the express stipulation of the parties, or it may arise by iplication, from the very nature of the property, or the avowed ob- ;cts of the seller or the purchaser. And even when time is not thus ther expressly or impliedly of the essence of the contract, if the irty seeking a specific performance has been guilty of gross laches, ■ has been exceedingly negligent in performing the contract on s part, or if there has been, in the intermediate period, any material langes of circumstances affecting the rights, interests or obligation.s : the parties; in all such cases, a court of equity will refuse to jcree a specific performance, upon the plain ground that it would ; inequitable and unjust. But, except under circumstances of this iture, time is not treated by courts of equity as of the essence of le contract, and relief will be decreed to the party who seeks it, he has not been grossly negligent, and comes within a reasonable 188 SPECIFIC PEEFORMANCE OF CONTRACTS (Part 1 time, although he has not strictly complied with the terms of the contract. Taylor v. Longworth et al, 14 Pet., 172. The complainant has brought himself clearly within the principles of these rules. He, in part performance of the contract, paid, on the purchase, one thousand dollars. It is true, he did not pay or offer to pay the next installment on the day, but he did offer to pay twenty days afterwards. While this is not a strict compliance, it is not gross laches or unreasonable delay, when it is remembered that Newton was himself in default, and not in a position to require payment, and we are, therefore, of the opinion that his conduct was such as entitles him to the relief sought. . . . •POMEROY V. FULLERTON. (Supreme Court of Missouri, 1895, 131 Mo. 581, 33 S. W. 173.) MacParland, J. The suit is in equity, to enforce the specific performance of the following contract: . . . Some time previous to this transaction defendant had purchased a large tract of land in the suburbs of the city of St. Louis, of which that in question is a part, for which he agreed to pay the sum of $80,000. A part of the purchase price was about maturing and defendant was much in need of money to meet these obligations. The land in question was at the time worth more than under the contract plaintiff agreed to pay for it. Defendant agreed verbally with plaintiff to take $18.50 per front foot if paid in cash. We think there can be no doubt that Reveley was fully advised of defendant's pressing need of money. M. P. Reveley and W. F. Brink were real estate agents occupying the same office in St. Louis. Brink wished to purchase this property, having in view its immediate sale to a third party. He believed he could sell to this party for cash. With these objects in view, and influenced by these considerations, the contract was made, and the copy of the deed explanatory thereof was furnished. Brink was the real purchaser, though the contract was made in the name of Reveley. . . . At the time the contract was made the real estate market in St. Louis was much depressed and so continued until about 1888. From that time on the appreciation in value was very marked, and at the Ch 2) DEFENSES. 189 :rial of this case the land in question was worth four times what it was in 1883. Streets had been put through the property. These streets had been paved with asphaltum, sidewalks had been laid and sewers constructed. Defendant testified, and in that he was not :ontradicted, that he had expended at least $30,000 in improvements. It is true he testified that the street improvements were not com- menced until about 1890. It does not appear that plaintiff or his issignor paid taxes either general or special on the land, expended any money in its improvement, or did any act indicating claim or Dwnership from the date of the contract to the commencement of this 3uit. Under these circumstances, is plaintiff entitled to the equitable relief demanded? Courts of equity will refuse to decree specific performance of a :ontract when to do so would be plainly inequitable and unjust. In Lhe early case of Taylor v. Longworth, 14 Pet. 172, loc. cit. 174, it was said by Mr. Justice Story: "In the first place, there is no doubt :hat time may be of the essence of a contract for the sale of property. It may be made so by the express stipulations of the parties, or it may arise by implication from the very nature of the property, or :he avowed objects of the seller or the purchaser. And even when :ime is not thus either expressly or impliedly of the essence of the ;ontract, if the party seeking a specific performance has been guilty Df gross laches, or has been inexcusably negligent in performing the :ontract on his part, or if there has, in the intermediate period been 1 material change of circumstances affecting the rights, interests, Dr obligations of the parties, in all such cases courts of equity will refuse to decree any specific performance, upon the plain ground that it would be inequitable and unjust." In the case of Holgate v. Eaton, 116 U. S. 40, Mr. Justice Miller declares this language to have become a legal maxim in this class of cases. . . . We are well satisfied from the terms of the contract, which re- quired performance by the vendee "not later than May 25," and the circumstances under which it was made, that the vendor intended to make the time of performance an essential part of the contract. We are furthermore satisfied that the vendee expected to be prepared to carry out the contract by the time specified and would have been perfectly willing to make time an essence of the contract. He must have known defendant's urgent need for money, from the low price at which he offered the land and the large discount he was willing to 390 SPECIFIC PERFORMANCE OF CONTRACTS (Part 1 make for cash. A consideration of all these facts and circumstances convinces us that the parties intended to make the time of perform- ance not only a material, but an essential part of the contract. The delay in applying for relief may not be, of itself, sufficient grounds upon which to deny granting it, but that, coupled with all circumstances, makes a case in which it would be most inequitable and unjust to require defendant to specifically perform the contract. The relief was, therefore, properly denied by the learned circuit judge, and the judgment is affirmed. . . . WELLS V. SMITH. (New York Court of Chancery, 1837, 7 Paige 23.) The ChancEU,or. This bill is filed to compel a specific per- formance of a contract for the sale of a lot of land in New York, the complainant having failed to perform the contract on his part within the time stipulated. And the only questions are, whether upon an executory contract of sale, parties may make tiine an essential part of the contract, so that this court will not relieve against a non- compliance at the day ; and whether it was the intention of the parties in this case to make the payment of the money on or before the time stipulated an essential part of the agreement. There cannot be a doubt that it was the intention of the parties in this case to make the time specified an essential part of the con- tract. It is hardly possible to make language more explicit. The contract was, that if the complainant failed or neglected to perform all or any one of the covenants therein contained on his part, at the time or times therein before limited, then and in such case all the covenants and agreements on the part of the defendant should cease and be absolutely void; and all the complainant's right or interest in the premises either in law or equity should cease, etc. And one of the covenants on the part of the complainant was, to build and en- close a house upon the front of the lot on or before the first of August, or in lieu thereof, that he should on that day pay to the defendant one thousand dollars as the first payment towards the purchase money. The complainant had his election to do one or the other, as was most Ch 2) DEFENSES, 191 convenient for him; but if he did neither, it was unquestionably the intention of both parties that the defendant should be no longer bound by the contract. And although Mrs. Smith afterwards con- sented to modify the contract, so far as to permit him to pay the whole instead of a part only of the purchase money on the day — he not having attempted to build the house — she gave him fair notice that if he suffered the day to pass, without paying the amount stip- ulated in the contract, she should avail herself of the condition ex- pressed in the agreement and refuse him the deed. . . . As to the power of the vendor, or of the purchaser, to make the performance of a condition precedent essential to the vesting of a legal or equitable right in the adverse party to a specific performance, I have no doubt ; though this court may perhaps relieve against a forfeiture where it would be unconscientious to insist upon a strict and literal compHance. Thus if a vendor, after he has received the greater portion of the purchase money, should attempt to enforce a forfeiture of the money paid, under a stipulation that he might keep the whole amount thus received and the premises also if the last pay- ment was not made at the day, I am not prepared to say that this court would not interfere to compel him either to accept the last payment and convey the premises, or to restore the purchase money already paid; after deducting a reasonable allowance for the use of the premises in the, mean time. In this case, however, the interest of the money till the first of August, and the shop which the complainant agreed to leave on the premises if he did not perform his part of the contract at the day, are not probably more than the value of the use of the premises in the meantime and of the chance of gain to the purchaser by the prob- able increase in the value of the property. They may, therefore, very properly be considered as reasonable stipulated damages for the non-performance of the contract by the vendee at the time fixed upon by the parties, and are not properly a forfeiture. Although in theory the interest is supposed to be a fair equivalent for the non- payment of money at the time agreed upon, we all know that in point of fact, the person to whom it is due frequently sustains great losses in consequence of the disappointment, which the legal rate of interest can- not compensate. On the other hand, it frequently happens that the perfecting of the title and the delivery of the possession of the premises at the time contemplated by the purchaser is of essential 392 SPEGIPIO PERFOKMANCE OF CONTRACTS (Part 1 benefit, to him; which cannot be compensated by damages which are ascertainable by the ordinary rules of computing damages. It would therefore not only be unreasonable, but entirely unjust, for any court to hold that parties, in making executory contracts for the sale or purchase of real estate, should not be permitted to make the time of performance an essential and binding part of the contract in equity as well as at law, where, as in this case, the other party was fully apprised of the intention to insist upon a strict performance at the day. . . . HOYT V. TUXBURY. (Supreme Court of Illinois, 1873, 70 111. 331.) ScHOLFiELD, J. . . . The rule, time and again announced by this court, is, that a party can not call, as a matter of right, upon a court of equity to specifically enforce the performance of a con- tract ; that its exercise rests in the sound discretion of the court, in view of the terms of the contract of the parties, and surrounding circumstances. A party demanding its exercise, is bound to show he himself has always been ready, willing and eager to perform on his part. . . . In McKay v. Carrington, 1 McLean, 59, this principle is applied to a contract for the sale of real estate, the court saying: "When the property has not materially changed in value, and the circumstances of the parties in relation to it remain substantially as they were when the contract was made, or was made to have been performed, time is seldom considered material. But where a specific execution of the contract will give the purchaser property greatly deteriorated from the value it bore when he should have received it, it would be unjust to compel him to receive it. Chancery will never interpose its powers, under such circumstances, to carry the contract into eflfect." And this must obviously apply with equal force in cases, like the present, where the purchaser is seeking specific performance and the property has, pending the delay of the purchaser to determine whether he will take the title the veridor has, greatly increased in value. See, also, Schmidt v. Livingston, 3 Edwards (Chy), 213; Williams' Admrs. v. Stark, 2 B. Monroe, 196. nil 2) DEFENSES. 193 It appears, from the evidence, that appellant was a real estate iroker, and the contract made by him for the purchase of the prop- rty, in controversy, was for the purpose of speculation. The location if the property was deemed favorable for that purpose. Its prox- mity to a contemplated public park, and the prospective improve- nents incident thereto, afforded reasonable ground for the expecta- ion that it would materially and speedily appreciate in value. This, lowever, necessarily depended on a number of contingencies, and ime alone could fully determine to what extent the expectations vould be realized. There was a reasonable prospect of gain for the lurchase, at the contract price, but, at the same time, a possibility of OSS. By the terms of the contract, if the title was found to be not good, .ppellant was to have back the $1000 paid at the execution of the ontract. If he failed to comply with the contract, he was to forfeit he $1000 as liquidated damages. Appellant might elect to take the itle, notwithstanding his objections to it, but Tuxbury could not com- pel him to do so. . . . It is clear, upon the principles before quoted, that appellant was only ntitled to a reasonable time in which to determine whether he would ake the title Tuxbury had, or reject it, and that he could not keep the rade suspended indefinitely, so as to avail of a rise in the value of he property, or relieve himself from loss by rescinding the con- ract, in the event of its depreciation and the court below was justi- led in finding that Tuxbury was authorized to treat the contract as bandoned by appellant. WEBSTER V. FRENCH. (Supreme Court of Illinois, 1849, 11 111. 254.) This was a bill filed in the Sangamon Circuit Court, to enforce a onveyance of the Quincy House to the complainants. . . . Caton, J. . . . There is but one other question made in this ase, which we think it necessary to examine. It is objected that be complainants have not actually brought their tender into Court nth their bill, and deposited it with the clei-k. In this Court, this is in 1 Eq.— 13 194 SPECIFIC PEEFORMAFCE OP contuaots (Part \ fact a new question, as now presented', although in three different cases, in all of which the opinions were prepared by myself, it has been stated, that the tender should be kept good by bringing the money into Court; yet in none of these was the question distinctly pre- sented, or necessary to a decision, for in none of them had a sufficient tender ever been made, and, consequently, the question did not under- go that careful consideration which would have been given it, had the case turned upon that point. . . . The result of my examination of this subject clearly shows that the Court of Chancery is not bound down by any fixed rule on this subject, by which it will allow the substantial ends of justice to be perverted or defeated by the omission of an unimportant or useless act, which nothing but the merest technicality could require. The money may, at any time, be ordered to be brought into court, whenever the rights of the opposite parly may require it; but while he is insisting that the money is not his, and that he is not bound to accept it, it would seem to be a matter of no great consequence to him whether it is in the cus- tody of the Court or not. The Court possesses a liberal and enlarged discretion on this subject, by the proper exercise of which the rights of ■ all parties may be protected. In all the precedents which I have exam- ined in cases like this, I do not find a single instance in which the com- plainant, by his bill, professes to bring the consideration money into Court, although a tender is most generally averred. Even where a bill is filed by a mortgagor to redeem, he does not profess in his bill to bring the money into Court, nor is it usual for him to do so, but he only makes a present offer to pay the money. He might, probably, by tendering the amount due, and by bringing it into Court, stop the interest, but if he does not choose to do this, I do not think a precedent can be found far dismissing a bill for that reason. I can perceive no stronger reason for requiring the money to be brought into Court, in the first instance in this case, than in the case of a mortgage. In the case of a bill of interpleader, where the practice on this subject is much more strict than in any other case in chancery, the rule is not inflexible that the fund shall be deposited in Court, and I have been unable to find a single instance, where even such a bill has been dis- missed for the sole reason that the fund was not deposited at the time the bill was filed. Indeed, it has been expressly decided that such a bill is not demurrable, because the plaintiff does not offer to bring the Ch. 2) DEFENSES. 195 money into court. Meux v. Bell, 6 Sim., 175 ; 1 Smith's Ch. Pr., 2 Am. Ed. 476; 3 Daniel's Ch. Pr., 1 Am. Ed. 1760. Without pursuing this subject further, I am satisfied that the ex- pressions used by me in the cases referred to, were not warranted by the law, or at least that they should not be understood as laying down an inflexible rule, prescribing an indispensable condition, which must be complied with before the complainant is properly in Court, or even before the Court will proceed to determine the rights of the parties. It is time enough for the party to bring the purchase money into Court, when he is called upon to do so. . . . DAY V. COHN. (Supreme Court of California, 1884, 65 Cal. 508, 4 Pac. 511.) McKbb, J. . . . The action was to enforce the specific perform- ance of a parol agreement to convey the legal title to a town lot. The record of the case shows that the plaintiff proved the agreement as averred in his complaint ; that under the agreement, he entered into possession of the lot, by and with the consent of his vendor, and ex- pended several hundred dollars in building upon it a dwelling-house and out-houses, which were occupied by himself and his tenants ; and that, during his occupancy, he made occasional payments upon the purchase price of the lot, which were accepted by the vendor on ac- count, and the balance he tendered and demanded his deed ; and he still was ready and willing to pay what was due, but the defendant, to whom the lot had been conveyed by the vendor, refused to accept the money or to execute a deed. 1 Possession of a lot of land under a parol contract for the sale there- !f, the expenditure of money in the improvement thereof, and partial ayments of the price stipulated to be paid for it, constitute part per- ormance of the contract which takes it out of the statute of frauds (§ 1972, Code Civ. Proc), and entitles the vendee to specific per- formance of the contract itself, unless there are circumstances in the case which would render it inequitable for a court of equity to grant relief. There is nothing in the circumstances of the case which shows laches on the part of the plaintiff' in the performance of the agreement. No 196 SPECIFIC PERFORMANCE OP CONTRACTS (Part 1 definite time was named for the payment of the price to be paid. By the terms of the agreement the money was to be paid from time to time "as the plaintiff earned the same." Time, therefore, was not of the essence of the agreement, nor was it made so by notice or demand for the payment of the money at any particular time. The vendor was content to let it remain bearing interest, and he always accepted any payments which were made by the plaintiff in performance of the agreement. The last of such payments was made in 1881, two years before the commencement of the action in hand. There was, therefore, no repudiation or abandonment of the contract by the plaintiff ; and as he was all the time, until the conveyance to the defendant, in the actual possession of the lot under the contract, his equitable right to compel performance of it was not barred by the Statute of Limitations. (lyove V. Watkins, 40 Cal. 547 ; Willis v. Wozencraft, 22 Cal. 608 ; Millard v. Hathaway, 27 Cal. 119.) WEBB V. HUGHES. (In Equity, 1870, L. R. 10 Eq. 281.) ' Sir R. Malins, V. C. . . . This bill was filed for the specific performance of the contract for sale of The Cedars on the 26th of May, 1869. The case set up by the Defendant is that time, if not by the terms of the agreement, at all events by the circumstances of the case, was of the essence of the contract. One stipulation in the agree- ment was that the Plaintiff should have possession of the property on the 26th of February if his purchase-money was then paid. The circumstances were these : The Defendant came of age in the year 1868, and required a residence immediately for himself and his mother. It is said that the Plaintiff was aware of that fact, and the Defendant says he informed the Plaintiff that if he could not obtain possession of the property by the time stated in the agreement, it would be of no use to him. Now, the rules of this Court are plain. A purchaser may, by the terms of the agreement, make time the essence of the contract, but it requires a very strict stipulation to effect that object; or he may make time the essence of the contract, by a notice at any time during the Ch 2) DEFENSES. 197 progress of the negotiations. If, therefore, time was not an essential part of the contract, the Defendant might have made it so by giving :he Plaintiff notice to that effect. In my opinion the agreement in this :ase did not make time the essence of the contract, because the very :ondition shews that the execution of the contract might from some causes be postponed, and, in that case, interest was to be paid upon the purchase-money until the completion of the purchase ; but upon pay- ment of the money, the purchaser was to be entitled to possession of the property. It was, therefore, evidently contemplated that the time might extend beyondvttie day fixed for completion. But if time be made the essence of the contract, that may be waived by the conduct of the purchaser ; and if the time is once allowed to pass, and the parties go on negotiating for completion of the purchase, then time is no longer of the essence of the contract. But, on the other hand, it must be borne in mind that a purchaser is not bound to wait an in- definite time ; and if he finds, while the negotiations are going on, that a long time will elapse before the contract can be completed, he may in a reasonable manner give notice to the vendor, and fix a period at which the business is to be terminated. But, having once gone on negotiating beyond the time fixed, he is bound not to give immediate notice of abandonment, but must give a reasonable notice of his in- tention to give up his contract if title is not shewn. What, then, would have been a reasonable time? What was the Defendant's position on the 7th of April? The solicitors had been negotiating from the 26th of February for completion of the contract, and on the 7th of April the purchaser does not give the vendor even twenty-four hours' notice of his intention, but sends a notice of his immediate abandonment of the contract. If, instead of that, he had given notice that if the vendor did not perfect his title within a reasonable time, then he would aban- don his purchase and would require a return of his deposit, that would have been sufficient; but he had no right, under the circumstances, to give notice of immediate abandonment. . . . In McMurfy v. Spicer Law Rep. 5 Eq. 527, I had occasion fully to consider the question, and there I stated (p. 543) : "The purchaser is bound to give the vendor a reasonable time for completing his title. No absolute rule can be laid down as to what is a reasonable time. That must depend upon a variety of circumstances. . . . The notice here was a week, which I think was too short a time. He was '8 SPECIFIC PERFOEMANCE OF CONTKACTS (Part 1 pund to give him a reasonable time, and I think that a week, or even month, was too short ; and the notice was ineffectual for the purpose rescinding the contract, upon the ground of the time not being a asonable time." On this rule, therefore, it was not competent for e purchaser to give notice of immediate abandonment of his con- act. . . . MARSH V. BUCHAN. (New Jersey Court of Chancery, 1890, 46 N. J. Eq. 595, 22 Atl. 128.) On appeal from a decree advised by John R. Emery, one of the ad- sory masters, who filed the following conclusions : This is a bill by a purchaser against a vendor, for the specific per- rmance of a written agreement to convey lands. . . . The present case is one where the principal applies for a specific per- rmance of the contract procured, as I have found, by his agent's aud. This relief, being purely equitable, will be denied where the situa- )n of the parties requires perfect good faith and openness of dealing making the contract, and these have not been observed. In Hesse v. Briant, 6 De G., M. & G. 623, this rule was laid down applying to a case where a solicitor was acting as agent for both ndor and purchaser, and the court of errors and appeals, in Young Hughes, 5 Stew. Eq. 372, 385, approved of the rule of this case. the present case, it seems to me, that the defendant, before reposing iBleight the confidence of employing him as her agent, and before aking this contract, had not received that fair, open-disclosure of eight's relation to the vendors to which she was entitled, and that I this account also, the equitable relief of specific performance should denied. I cannot agree with complainant's counsel in his contention, that eight's duty to disclose to the defendant his agency for the purchas- s, did not arise until after the acceptance of his employment as her ent, and was, therefore, only a breach of his duty to her as her ent, for which she must look to him alone, and for which the com- linant should not be punished by refusal to decree the execution !h 2) DEPENSES. 199 f the contract. Sleight's duty, as I understand it, was to disclose his ilations with the purchasers before accepting the agency from de- mdant Per Curiam: — The decree affirmed, for the reason given by the ad- isory master. \ BROWN V. SMITH. (Supreme Court of Iowa, 1902, 89 N. W. 1097.) PER CURIAM. The plaintiff held a contract for a quarter section f land in Ottertail county, Minn., from the D. S. B. Johnston Land ompany, of the value, according to the evidence, of not exceeding 4- per acre, and claims to have entered into an agreement with de- jndant by the terms of which, in consideration of a deed to defendant f such land, on which was to be executed a mortgage of $500 to lid company by defendant, the latter undertook to convey to plain- ff his dwelling house and two lots, of the estimated value of from 1,600 to $2,000, subject to a mortgage to a building and loan associa- on of $750. The defendant admitted as a witness that he made the jntract, but insists that he was induced to do so, by the misrepresenta- ons of the plaintiff, and that he promptly repudiated it upon dis- jvery that the land was not as it had been represented. April 2, 1899, rown wrote of the land : "It is good soil, only about two and a half liles from Elkhart, on the G. N. Ry. ;" and again, on April 9th : "I ish you would read an article in today's St. Paul Dispatch about [inn. lands. It is better than anything I can say, and I have been udying it for three years." Defendant testified that plaintiff told Im that the land was good tillable land, which cost him $10 per acre, id was located 2)4 miles from the above station, and that in making le agreement he relied upon these statements. The plaintiff denies lis, and testified that he advised defendant that he knew nothing t the land, and that the latter must learn for himself. But, in view ■ plaintiff's letters, the court might well have accepted defendant's stimony as the more reliable. True, the defendant, who knew noth- g personally of Ottertail county, made inquiry concerning land, but, .rough probable mistake as to its location, was misinformed as to its ) SPECIFIC PERFORMANCE OP CONTRACTS (Part 1 .racter and value. If he was influenced by the mistaken advice, it ;s not follow that he did not rely on plaintiff's misrepresentations, so t but for them he would not have entered into the agreement. The d was, in fact, 6 miles instead of 2>^ from a railroad station, in- ding a pond or lake of about 25 acres, the north half hilly and idy, all save the lake, and 15 acres of slough, covered with stumps 1 brush, and only 80 acres, after being cleared that could be culti- ed. Certain it is that with correct information defendant would have considered a proposition of exchanging property in which interest was from $850 to $1,250 for a $140 interest in such land. the plaintiff was undertaking to obtain an unfair advantage over endant, and this, in so far as successful, was accomplished by deceit, have no notion of lending our aid to enable him to carry out his erprise of getting something for practically nothing. Afpirmrd HETFIELD V. WICIvEY. (Supreme Court of Illinois, 1883, 105 111. 286.) ^R. Chibf Justice Scott. . . . The bill is to enforce the cific performance of a written agreement between complainant i defendant, concerning a sale by the former to the latter of his in- 2st in the firm of Frank Field & Co., a firm then and previously jaged in manufacturing crackers and confectioneries. As respects terms of the agreement there can be no controversy, as it is signed the respective parties. It obligated defendant to pay complainant )00 for his interest in the firm of Frank Field & Co.,— $1000 of ich sum was to be paid on or before the 1st day of August next er the making of the contract, $2000 in one year and $2000 in two .rs, the latter payments to be evidenced by two promissory notes, .ring interest at the rate of eight per cent per annum, which said es were to be secured by a mortgage on lands of defendant describ- in the bill. On the hearing, the circuit court decreed a specific formance of the contract, and that decree was affirmed by the pellate Court for the First District. The correctness of the decision the latter court is called in question on this appeal of defendant. Ch 2) DEFENSES. 201 The defense made is, that the contract is not fair, — that defendant Iwas induced to enter into it under a misapprehension of the real facts, and that complainant contributed to that result by statements not entirely candid or accurate, upon which defendant confidently relied, and was thus overreached in the transaction. . . . It appears defendant performed the contract in part by making payment of most of the first installment agreed to be* paid, and then ceased to do more. Shall he now be compelled to go forward and complete his agreement? To do so would undoubtedly subject defend- ant to very serious loss. On the principle just stated, equity will hesitate to compel the execution of a contract the performance of which would be oppressive on the obligated party. Considering the whole evidence contained in the record, it is impossible to escape the conviction it would subject defendant to considerable loss to compel him to perform the contract under the circumstances. The assets of the firm were not near so valuable as defendant supposed them to be. The concern owned many more local bills than he had any reason to anticipate. It is said he should have examined the books to have ascertained more accurately the value of the firm assets. There are two answers to this suggestion: First, the books did not show to a casual observer the exact condition of the accounts due the firm, whether good or bad ; and, second, the books kept by the regular book- keeper did not show all the local bills owing by the firm. That class of bills only appeared on a private memorandum book kept by one member of the firm, who had charge of that branch of the business. This fact was known to complainant, and was not known to defendant at the time of the sale. When complainant referred defendant to the books for information, he did not advise him where the private memo- randum book containing an account of the city bills owing by the firm could be found. Had defendant examined the books as any prudent man would have done, it will be presumed he would have ex- amined only such as were kept by the book-keeper of the firm. It could hardly be expected he would have inquired whether the several partners kept private memoranda of matters pertaining to the firm business. It is proved there were several thousand dollars of city -t^S SPECIFIC PEE.FORMANCE OP CONTEACTS (Part 1 bills owing by the firm that did not appear on the book-keeper's book. The amount was certainly sufficient to very materially affect the value of the firm assets. Of these city bills defendant did not seem to have had any knowledge when he executed the written agreement it is sought by this bill to enforce by a decree in chancery. Complainant had full knowledge, and he ought to have communicated to defendant that informatioli. He must have known the amount of the city bills very materially affected the value of his interest in the firm he was selling to defendant. In this respect he does not stand so fair that he may invoke the aid of a court of equity. It will be remerhbered that the contract was made on the 6th day of July, 1880, and it was some time in October before defendant refused to perform it, and offered to rescind the agreement. That, it is said, was too late ; that he should have discovered sooner he had been over- reached, and offered to rescind the contract. That may be, and doubt- less is, true ; but defendant is not asking the aid of the court of equit}' to enable him to rescind the agreement. Nor is it a material inquiry now whether defendant could rescind the contract after the lapse of so great a period. A more serious question, and one with which the court has now to deal, is, whether complainant has shown a contract so fairly obtained, and so just, that he may invoke the aid of a court of chancery to compel a specific performance. In view of all the circumstances in evidence it can hardly be said that he has. His con- tract with defendant may be a legal one, and defendant may be re- quired to abide it or answer in damages. That question need not now be determined. Conceding that agreement is obligatory on both parties, under all the circumstances it seems most proper they should be re- ferred to the law courts to adjust the difficulties between them. What- ever claim complainant may have against the defendant, arising out of the agreement, may be compensated by damages recoverable in an action at law. It is no answer to this view of the law to say that complainant may have told defendant, in the office of the lawyer who prepared the papers, he did not know what his interest in the firm was worth, and that he wanted it understood he was selling his interest, whatever it might be, for the sum named in the contract. He may have told him all this, and yet if he obtained an unfair contract from de- fendant by failing to disclose material facts affecting the value of the interest he was selling, equity will not decree the execution of the Oh 2) DEFENSES. 203 igreement in his favor. It will leave him to his remedy at law, what- ever it may be. The judgment of the Appellate Court will be reversed and the cause remanded. \ ISAACS v. SKRAINKA. (Supreme Court of Missouri, 1888, 95 Mo. 517, 8 S. W. 437.) BivACK, J. This is a suit brought by Isaacs for the speci- ic performance of a written contract, dated February 17, 1882, and iigned by the parties therein named. The contract is in the following (vords: "WiUiam Skrainka and Claus Vieths agree to take all the property of J. L,. Isaacs now proceeded against on special tax bills n their favor and against said property, before Justice Taaffe and in he circuit court, city of St. Louis, at fourteen hundred dollars, and [. Iv. Isaacs agrees to convey to them said property by quit-claim deed :or said sum." . . . The substance of the defence is, that there were other outstanding ax bills against the property for other improvements, amounting o about one hundred and fifty dollars ; that Isaacs fraudulently con- :ealed the existence of these tax bills, and represented the property o be free from such liens. . . . The defendants in taking the property at fourteen hundred dollars ubject to their tax bills and taxes for 1882 were to pay the full value )f the property. They had information that led them to believe that vork had been done for which other tax bills could be issued. It is :onceded on all hands that the taxes for 1882 were considered, and it t reasonable to believe that other incumbrances were spoken of ; and he fact that Isaacs would not make a warranty deed makes it the more )robable that inquiry was made in respect of other incumbrances. Three witnesses say that Isaacs said the property was free from such iens. He denies that he made the representation, and two witnesses, vho were in a position to hear, say they heard no such representations, t is a familiar rule that where the witnesses are equally credible, the lositive evidence that a given thing was said is of more weight than hat of others who say they did not hear the alleged statement. Henze •. Railroad, 71 Mo. 639. l4 SPECIFIC PERFORMANCE OF CONTRACTS (Part 1 Giving to the finding of the court dtie consideration, still we can me to no other conclusion than this, that Mr. Isaacs did lead the de- ndants to believe the property was free from other liens, and that is led them to agree to take a quit-claim deed. While the representa- )ns may not be such as would support an action at law for fraud id deceit, still it must be remembered that this is an action for spe- Eic performance prosecuted by the vendor. Fry says : "In equity, )wever, it furnishes a good defence to a suit for specific performance at the plaintiff made a representation which was not true, though ithout knowledge of its untruth, and this even though the mistake : innocent." Fry on Spec. Perf., sec 432. This distinction is point- l out in Dunn v. White, 63 Mo. 182. It is held that it requires much ss strength of case on the part of a defendant to resist a bill to per- irm a contract than it does on the part of the plaintiff, to main- in a bill to enforce specific performance. Veth v. Gierth, 92 Mo. 97. defeat the specific performance of a contract it is enough that e representation was material, was actually untrue, was relied upon, id did mislead the other party. It need not have been made with 1 intent to deceive. Pom. Spec. Perf. sees, 217, 218. We do not think the fact that defendants were to take a quit-claim ;ed is of any controlling importance. Fry says : "The circumstance at the vendor sold 'with all faults,' though it may serve to put the^ irchaser on his guard, will not enable the vendor to say that the irchaser did not rely on his representation, or prevent the purchaser om avoiding the sale, if the representation was false." Fry on Spec, erf., sec. 455. Our conclusion is, that the plaintiff is not entitled I specific performance so long as the property remains incumbered J these tax bills, amounting to a hundred and fifty dollars or there- )outs. As the judgment must be reversed, the cause will be femand- 1; for while the title may not have been perfect when the suit was )mmenced, still specific performance may be decreed, if the title be jrfected before judgment or decree. Luckett v. Williamson, Z7 Mo. 59. Judgment reversed and cause remanded. All concur. Cll 2) DEFENSES. 205 DURRETT V. HOOK. (Supreme Court of Missouri, 1844, 8 Mo. 374.) Tompkins, J. On the eleventh day of June, in the year 1838, William Hook commenced this suit against Richard Durrett and Edmund McAlexander, in the Circuit Court of Saline county, on the chancery side thereof. In his bill he states, that on the 25th day of October, 1834, Richard Durrett made and executed to Edmund Mc- Alexander his writing obligatory, by which he bound himself to exe- cute and make to said McAlexander a good and lawful deed to a cer- tain tract of land in said county, containing one hundred and twenty acres; and that, for a good and valuable consideration paid by Elijah Hook and William Hook, the complainant, the said McAlexander as- signed to them the said writing obligatory ; and the said conveyance having to be made by the said Richard Durrett on demand, and Elijah Hook, one of the assignees thereof, having departed this life on the first day of July, 1835, the complainant, William, on the first day of January, 1838, demanded of the said Durrett a deed for the same, according to the terms of the said writing and the said Durrett refused to make the same, &c. The complainant further alleges, that he is sole devisee and executor of the said Elijah Hook. . . . The defendant in error contends, that as Benjamin L. Durrett, if he had brought an action against the complainant. Hook, or against McAlexander, on the agreement of pay $280 in time specified, i. e., two or three days, would, under the statute of set-off, be compelled to receive the notes by him made to Hook in pay, therefore, when Hook, by his bill in chancery, prays a specific performance of the contract to convey land, Durrett shall be compelled to take the con- sideration to be paid for the land in his own notes. I cannot perceive that the one is a consequence of the other. . . . But if we admit, for the present, that a court of equity could cor- rectly compel a defendant, who had promised to convey for a con- sideration in money, to receive his own notes in payment for the land, yet the court will always see that the person who prays its aid comes in with clean hands. In this case. Hook first introduces his complaint 206 SPECIFIC PEEFOEMANCE OF CONTKACTS (Part 1 with the most impertinent and irrelevant charge that the title to this land was held by Richard Durrett to deceive and defraud the creditors of Benjamin L. Durrett ; that he, B. L. Durrett, was largely indebted, and owed Hook a large sum of money. He next introduces this said McAlexander, whom he had released in order to render him compe- tent, to prove his own unworthiness. McAlexander, as above stated, declares that in the treaty for this land he had cautiously concealed from B. L,. Durrett that the first payment ($280) was to be made in his own (Durrett's) notes, and that he did not beheve that Durrett would have agreed to sell him the land if he had not expected to re- ceive the first payment in cash, and the statement of this witness is sufficient to induce any one to believe that it was intended by Durrett that the delivery of the deed and the payment of the sum of $280 should be simultaneous acts. But as it seems, he takes up the deed and goes off hastily, observing, that in two or three days he would pay the money to B. L. Durrett. He gave no written promise to pay the money. No man of business habits would have suffered the bond to be carried away under such circumstances, nor would any honest candid man have attempted such an act. Mr. Hook not only receives this obligation by assignment stained with the grossly improper con- duct of his assignor ; but his own witness, this said McAlexander, proves that he prompted the witness to the act. If the conduct of McAlexander had been otherwise honest, a delivery of the bond by Durrett would be presumed, but as the case now is in evidence, a jury would be very easy indeed to find a delivery of the bond. . . . CALDWELL v. DEPEW. (Supreme Court of Minnesota, 1889, 40 Minn. 538, 43 N. W. 479.) Mitchell, J. Action to compel specific performance of a contract of sale of real estate. The terms of the written agreement were that defendant sold and agreed to convey the property "for the sum of seven hundred fifty dollars, upon the following terms: Pur- chaser to pay the city assessments for grading Minnehaha street, ($205) such payment to constitute part of the above sum of $750, and also to assume the mortgage of $300 and accrued interest, ($12) now on record against said lot, as part of said $750 ; balance of said $750, after Ch 2) DEFENSES. 207 deducting said assessments and said mortgage, to be paid in cash, on delivery of deed." The defendant in his answer, alleged that the ac- tual agreement was that plaintiff was to pay for the property $750 in cash, and, in addition thereto, assume payment of the mortgage and assessments referred to ; that plaintiff undertook to reduce this agree- ment to writing, and drew up a contract which he presented to de-, fendant, stating and representing to him that it contained the precise terms of this agreement, and then pretended to read it and did read it to him as though it embodied such agreement ; that in ignorance of the truth, and misled by the statements of plaintiff, and supposing that plaintiff had correctly reduced the agreement to writing, he executed the contract without reading it. Then follows a somewhat equivocal allegation to the effect that if plaintiff really believed that defendant intended to sell his property for $750, the incumbrances to be deducted therefrom, he was acting under a mistake of fact, but, if he correctly understood the terms and conditions of said agreement, as defendant believes he did, then he committed a gross fraud. The relief prayed for is that the contract be cancelled and adjudged void on the ground of such fraud or mistake. . . . But we are clear he has made out no clear case for relief. There is no evidence that plaintiff was guilty of any fraud, concealment, or misrepresentations, or took any unfair advantage of defendant. The defendant is a man of mature years, some business experience, and of at least ordinary intelligence and education. The terms of the writing are explicit, unambiguous, and not subject to any doubtful or double construction. In fact they are so very clear and explicit that no man with his senses about him could misapprehend them. The defendant was capable of reading the contract, and had ample opportunity of doing so, and of examining it as fully as he desired, before executing it. It is undisputed that he either read it over himself with the plain- tiff or that the plaintiff read it over to him, before he signed it, and, if the latter, there is no evidence that plaintiff did not read it correctly to him. Defendant nowhere testifies that he understood, when he signed it, that it contained any different or other words or language from those that are actually in it. The most that can be claimed for his testimony is that he did not understand the meaning or legal effect of the language as written. No excuse is shown for any such misunderstanding, and the mistake, if any, must have been due solely to defendant's own 208 SPECIFIC PERFORMANCE OP CONTEACTS (Part 1 gross carelessness and inexcusable inattention. There is nothing un- conscionable or hard about the contract, unless it be the inadequacy of the price, and this is not so gross as to be evidence of fraud. Upon the trial plaintiff testified positively that the writing correctly embodied the exact terms of the actual agreement of the parties. The only direct evidence opposed to this was the oath of the defendant. We know of no rule of law that will permit a man to be relieved from his contract under such circumstances. If, on such a state of facts, a person can evade performance by merely saying that he did not know what he was doing, or did not understand the language of the instrument which he executed, written contracts would be of little value. There are many cases where equity will refuse to enforce the spe- cific performance of an agreement against a party who entered into it under a mistake, although the plaintiff was not guilty of any improp- er conduct, and the mistake was solely that of defendant. When and under what circumstances- such mistakes are relievable it would be impracticable, as well as unsafe, to attempt to enumerate. But one principle will, we think, be found to run through all the cases, viz., it must not be a mistake due solely to the negligence and want of reason- able care on the part of him who asks for relief. Where there has been no fraud or misrepresentation, and the terms of the contract were unambiguous, so that there was no reasonable ground or excuse for a mistake, it is not sufficient, in order to resist specific performance, [ for a party to say that he did not understand its meaning. Fry, Spec. Perf. § 733; Waterman, Spec. Perf. § 358; Kerr, Fraud & Mis- take, 407, 413. Judgment reversed \ ^ C, B. & Q. R. R. V. RENO. (Supreme Court of Illinois, 1885, 113 111. 39.) Craig, J. In 1858, one Abner Reeves owned lots 26 to 46, inclusive, in block 63, in school section addition to Chicago, bounded on the north by Forquer street, on the east by Beach street, on the south by Taylor street, and on the west by an alley. In the year 1858, the Pittsburg, Fort Wayne and Chicago Railway Company, under the authority of an ordinance of the city of Chicago, constructed its Ch 2) DEFENSES. 209 tracks on Beach street. The tracks so constructed were also used by the Chicago and Alton Railroad Company, and, as appears from the record, were the main tracks running to the passenger depot of the two companies. Soon after these tracks were laid, a switch was built on Beach street, which connected the tracks of the Fort Wayne com- pany with tracks owned by Reeves upon his lots, by means of which, cars passing over the Fort Wayne and Alton roads were switched upon Reeves' premises, which were used by him as a coal and lumber yard. In 1875 Reeves died, leaving Sarah A. Reno and Euginia M. lyittle, two of his heirs, who purchased the interest of the other heirs in said premises. After they acquired title their husbands, under the firm name of Reno & Little, occupied a portion of the lots as a coal yard. On the 28th day of July, 1880, Mrs. Reno and Little sold the Pittsburg, Fort Wayne and Chicago Railway Company lots 32 to 40, inclusive, in block 63, for the sum of $35,000, being one hundred feet each side of lots 26 to 46. The contract of sale was reduced to writ- ing and contained the following clause : "And it is further so agreed between the parties hereto, that said second party shall, on taking possession of the premises as hereinbefore described, restore all the switch connections now existing between said second party and said first party, or any of them, and continue to them the use of the same, hereafter as heretofore." . . The Fort Wayne and Alton com- panies, after taking possession of the premises conveyed to them, restored the switch connections, as provided in the contract of sale ; but the Burlington road, upon entering into possession of the premises conveyed to it by Layng, removed the switch connections and tracks which crossed the premises conveyed to it, and constructed upon said premises seven tracks, which it has used and operated ever since. After the Burhngton road had removed the tracks which formed the switch connections, the Alton and Fort Wayne roads were requested to restore the switch connections, as provided in the written contract of sale, but the railroad companies decHned to comply with this request, and Sarah A. Reno, and her husband, Charles A. Reno, Euginia M. Little and Jacob H. Little, her husband, filed a bill for a specific per- formance of that part of the contract of sale providing for a switch connection over the premises. . . . In Chicago and Alton Railroad Co. v. Schoeneman, 90 111. 258, which was a bill brought by certain parties to compel the railroad company 1 Eq. 14 SPECIFIC PERFOEMANCE OF CONTEACTS (Part 1 :qnstruct and maintain a certain swing drawbridge, in conformity ti an agreement in that regard, it was declared to be a settled prin- e that a specific performance of a contract is not to be decreed as a :ter of course because a legal contract is shown to exist, but it rests rely in the discretion of the court, upon a view of all the circum- ices of the case. In the same case it was also held : "Where the ct of the specific performance would be to impose upon the def end- 3 a large expenditure and heavy burden, and inconvenience to pub- interests, without any practical benefit to the other party, a court equity, in the exercise of its discretion, will refuse to decree it, leave such other party to whatever remedy he may have at law for reach of the contract." . . . ^he passenger and freight depots of the Burlington road are Lted three blocks north of the premises owned by appellees, and seven tracks constructed by the Burlington road on the premises veyed by Layng to it, are the only tracks owned by the company ire its freight and passenger trains can be made up. The Burling- road has invested in freight and passenger depots about $1,500,000. )mas L. Potter, general manager, whose evidence is not contradict- testified that the passenger tracks are used continually all times ;he day. Trains are arriving and departing all the time, and every n that comes in has to be made up on those tracks. He also testi- that two hundred freight trains a day pass over the tracks, in and . In answer to a question as to the effect of the construction of tches across the tracks would have upon the business of the road testified that it would ruin the tracks for business. Indeed, it ears from the evidence that it would be impracticable to operate proposed switches over the Burlington tracks, on account of the stant use that is made of these tracks by the Burlington road. ;eems plain from the evidence, that the construction of the pro- ed switches across the tracks of the Burlington road would seri- ly embarrass its operation at that point. The effect could not be erwise than to delay trains carrying both passengers and freight, endanger their safety. The carrying of the mails would be re- ied, and, indeed, the commercial business of the country would, to reat extent, be disturbed. These are matters in which the public, well as the Burlington road, have an interest, and we are satisfied, m the evidence, that if the decree should be sustained the public iness of the country would be seriously damaged. Ch 2) DEFENSES. 211 Under such circumstances, and where such results are to follow, would it be proper for a court of equity to decree a specific perform- ance of the contract? The decree would impose upon the Burling- ton road a large expenditure of money and a heavy burden, and would be a detriment to the public interest, and it is condemned under the ruling in the Schoeneman case, supra. The decree would also produce hardship and injustice to one of the parties, and can not be sustained under the ruling in Willard v. Taylor, supra. Nor will the denial of relief in equity operate detrimental to the rights of appellees. If they have been damaged by a breach of the contract they have an ample remedy at law, in an appropriate action. Nor will the denial of the relief prayed for in the bill destroy the business of appelles, or destroy the use Oif the property as a coal yard. The record shows that the Burlington road has laid tracks immediately adjoining appellees' prop- erty, which tracks are used by the company, and connect with its main line, and the main line connects with all the roads leading into the city. Section 5, article 13, of our constitution, requires that "all railroad companies shall permit connections to be made with their tracks, so that any such consignee, and any public warehouse, coal bank or coal yard, may be reached by the cars on said railroad." Under this provision, appellees' property, as a coal yard, may, if they so desire, have switch connection with the Burlington road, and being so con- nected, they will also have connection with all other roads in the city. Indeed, in the answer the Burlington road sets up that its tracks con- nect with the Fort Wayne and Alton roads, and all other lines in the city, and offers to connect its line of road with the premises of appel- lees. After a careful consideration of , all the evidence in the record, we are satisfied that the decree of the Superior Court is not right. The judgment of the Appellate Court will therefore be reversed, and the cause remanded. Judgment reversed. \ CODING V. BANGOR & AROOSTOOK R. R. (Supreme Court of Maine, 1901, 94 Me. 543, 48 Atl. 114.) Wis WELL, C. J. The defendant's railroad extends through the plaintiff's farm. The right of way therefor was obtained by a 212 SPECIFIC PERFORMANCE OP CONTRACTS (Part 1 deed from the plaintiff to the railroad company, for a consideration named therein of one hundred and fifty dollars. But the plaintiff claims that there was an additional consideration ; that the defendant's agent who procured the conveyance of the right of way and who agreed with the plaintiff in relation to the terms for such conveyance, promis- ed in behalf of the company, as a further consideration therefor, that the railroad company should build and maintain a farm crossing on the plaintiff's farm across the railroad track. In this bill in equity, the plaintiff seeks a decree for a specific performance of this alleged contract. The case comes to the law court upon report. The plaintiff's contention is denied by the defendant and there consequently arises an issue of fact about which there is considerable controversy between the parties. But we do not deem it necessary to determine this question. Assuming, without deciding, that the al- leged agreement was made as part of the consideration for the con- veyance, we do not think that specific performance should be decreed. The granting of a decree for specific performance is always dis- cretionary with the court. The contract relied upon in any case may be proved in the most satisfactory manner, and still there may be reasons why the court, in the exercise of its discretion, should not compel specific performance of that contract. We think that such reasons exist in this case, and that before a court should compel a railroad company to build and maintain a grade crossing over its track, except in cases where public convenience may require it, or per- haps where there might be very great individual inconvenience if it were not ordered, the court should be satisfied that the danger to pub- lic travel will not thereby be much increased, or that the additional burden placed upon the railroad, company would not be greatly dis- proportionate to the benefit that would be derived by the individual. Very much is required of railroads to meet the demands of the public for the rapid transportation of passengers and freight, to com- ply with which the utmost diligence must be exercised and everything that affords unnecessary opportunities for danger must be done away with. A grade crossing over a railroad track is a place of recognized danger, and every additional crossing necessarily increases, to some extent, that danger. The time has not yet arrived when such cross- ings can be dispensed with altogether, at least in sparsely settled communities, but they should not be unnecessarily increased for the Dh 2) DEFENSES. 213 nere convenience of an individual. At least, we think, the court should not compel the maintenance of such a crossing unless good and iufHcient reasons exist therefor. In this case, in the opinion of the court, the benefit to be derived jy the plaintiff, if a decree were granted, would be sHght in comparison ivith the additional burden placed upon the railroad company, and :he danger to travel upon the railroad would be considerably increased, [t appears that just north of the place of the proposed crossing there is a cut for a distance of eight hundred and seventy feet, through which the railroad track runs on a curve, so that a train coming south would enter this cut near the northerly limit of the plaintiff's land and continue on a curve all the way through this cut until it reached the place of the proposed farm crossing, which, because of the curve and cut, would be shut out from the view of the approaching train. It is argued, and it seems to us with much force, that upon this account the proposed crossing would be much more dangerous than under other conditions. South of the place of the proposed crossing, and only two hundred and thirty feet distant therefrom, there is already a highway fcrossing over the track, so that if this crossing were ordered, there would be two grade crossings within a distance of two hundred and thirty feet. And by reason of this highway crossing over the railroad track, the plaintiff can, with slight inconvenience use that crossing for his purpose. For these reasons we do not think that the relief asked for should be granted. We are, perhaps, more ready to come to this conclusion because of the fact that the plaintiff is not without ample remedy. If he is right in his contention, he may recover adequate pecuniary com- pensation for any and all damages that he has sustained by reason of the failure of the company to perform the contract made by its author- ized agent in this respect. As we have come to this conclusion, for the reason above stated, and not because of a decision adverse to the plaintiff upon the issue of facts, the bill should be dismissed without costs. \ CHUBB V. PECKHAM. (New Jersey Court of Chancery, 1860, 13 N. J. Eq. 207.) The Chancellor. On the 7th of April, 1855, William Chubb and Lydia, his wife, by deed of that date, conveyed to their 214 SPECIFIC PERFORMANCE OF CONTRACTS (Part 1 two children, William F. Chubb and Emma Peckham, a small farm, in the county of Somerset, containing about 46 acres of land. By an agreement of even date with the deed, under the hands and seals of their children, made between the children, of .the one part, and their parents, of the other, the children agreed, in consideration of the conveyance, to provide for the support and maintenance of their parents, and each of them, in a comfortable manner, to provide and furnish each of them with proper and suitable clothing, food, medicine and medical attendance, when sick, and to find a comfortable place to live in — all to be according to their age and situation in life — for and during their natural lives and the life of the survivor of them. The children further agreed to accept the title which the father had in the premises ; and in case of any adverse claim of title, to be at the ex- pense of defending the title which they thus acquired. This bill is filed by the father against the children, and charges a failure upon their part to perform the contract, and asks either that the contract be rescinded, and the lands re-conveyed to the complain- ant, or that a specific performance be decreed. A decree pro confesso is taken against the son. The daughter alone answers. She admits the contract, alleges that they took the title at her father's request, and solely for the purpose of aiding her aged parents ; that she has received nothing whatever from the farm; that its entire proceeds, together with considerable sums advanced by herself, have been appropriated to the support of her parents ; that at the time of the contract it was understood and agreed that the father should remain upon the farm, and assist in its cultivation, until a sale could be affect- ed; that the proceeds of the farm, and the limited means of the de- fendant, are utterly inadequate to support her parents elsewhere than on the farm, and with their assistance. She proffers herself ready and willing to reconvey the land, if the sums she has advanced under the contract are repaid to her. The evidence in the cause shows that the farm was conveyed to the defendants, not at their request, but at the solicitation of the com- plainant, and that the title was reluctantly accepted by Mrs. Peckham, the daughter ; that she has derived no benefit from it, but that the con- tract into which she entered upon taking the title has involved her in serious trouble and pecuniary loss. The evidence, moreover, tends to confirm the allegation of the answer, that she accepted the title. Ch 2) DEFENSES. 215 and entered into tbe contract for her parents' support upon the faith of a parol agreement, cotemporaneous with the written contract, that her father would remain upon the farm, and assist in its cultivation until it could be advantageously sold, and the proceeds applied to his support, and the support of his wife, at such place as they might choose to reside. This evidence, however, is inadmissable to relieve her from the obligation of the written contract. It is in direct con- flict with the express terms of her written engagement, by which it is stipulated that the parents, or either of them, should be at liberty to reside in the city of New York, or elsewhere. Evidence of a cotem- poraneous parol agreement is inadmissable to alter the terms of the written contract. However unfortunate or oppressive may be its terms, the parties must abide by their engagement as it is written. The contract cannot be rescinded, or a re-conveyance directed, even by the consent of the defendants. The wife of the complainant joined in the conveyance, and the contract of the grantees is for her main- tenance as well as that of her husband. Her rights are to be pro- tected. She is not a party to the suit. She does not ask, and the svidence warrants the belief that she does not desire a dissolution of the contract. She resides upon the farm with her son, and is sup- ported by her own labor and the assistance of her children. The hus- band and wife do not live together. The complainant contributes nothing to her support. His interest in the land has been sold, and :o order a re-conveyance might strip both parties of their means of support, and must of necessity be prejudicial to the rights and inter- est of the wife. This consideration is decisive against rescinding the ;ontract for her support, and ordering a re-conveyance of the land. There must be a decree for a specific performance. Courts of equity nay, in the exercise of a sound discretion, refuse to decree the specific serformance of a hard bargain. But this is not a case for the application of the doctrine, nor for the jxercise of such discretion. The father conveyed his entire estate :o his children, upon their stipulating to provide for their parents a ;omfortable support and maintenance suited to their condition, wherever they or either of them might choose to reside. It is no mswer to a prayer for a specific performance that the property con- veyed is of little value and totally inadequate to the support of the ■1" SPECIFIC PERFORMANCE OP CONTRACTS (Part 1 )arents in the city of New York, or elsewhere than in the country. That was a proper subject for consideration by the parties when the :ontract was entered into. But having been made voluntarily and in food faith, the parents are entitled to their support at the hands of he grantees so long as the avails of the property conveyed or the neans of the children will suffice for that purpose. There must be a decree for a specific performance and a reference o a master to ascertain and report what would be a suitable pro- asion, weekly or otherwise, for the comfortable support and mainte- lance of the complainant, and also of his wife, according to the terms md provisions of the contract. ULLSPERGER v. MEYER. (Supreme Court of Illinois, 1905, 217 111. 362, 75 N. E. 483.) Ricks, J. . . . It is urged that this contract lacks in the mate- ial element of mutuality. The particular ground upon which this :ontention is based is, that the contract is signed by appellee only. It s found in option contracts, and unilateral contracts generally, that he rule here contended for has no application ; that the mere verbal icceptance by the second party to the contract, or the vendee, or the )erson holding the option, with notice thereof to the vendor and an iffer to perform, renders the contract mutual and binding. But it is said that in the particular contract before us there was 10 future act or option contemplated, and that the contract had all its 'alidity at the time it was originally made, and that to entitle specific lerformance of such contract -there must be mutuality of obligation and emedy. It is difficult to understand upon what substantial ground the [ifiference in the rule applicable to the two sets of contracts contended or, if its exists, is based. We are unable to understand why the nere written option signed by the vendor shall bind him by the verbal cceptance of the vendee and his offer to perform be held to be a Qutual and binding contract within the Statute of Frauds, and the ontract of sale acknowledging the receipt of part payment, signed by he vendor, shall be held void for want of mutuality upon the alleged round that the vendee has not bound himself to perform by some writing. We are aware that there is a diversity of opTnion and a Jh 2) DEFENSES. 217 :ontrariety of holdings by the courts of last resort in the various states upon this subject, but a careful review of the authorities leads IS to conclude that a contract otherwise clear and explicit is sufficient o meet the requirements of the Statute of Frauds if signed by the vendor. In the second edition of the American and English Encyclo- pedia of Law (vol. 29,) the subject under consideration is extensively iiscussed and the authorities touching it reviewed, and the conclusion ;here announced is (p. 258) : "The weight of authority is, that the statute is satisfied if the memorandum be signed by the parties sought :o be charged, alone, — or, in other words, by the party defendant in an iction brought to enforce the contract, whether he be vendor or ven- lee. In the case of a contract for the sale of lands the vendor is usual- y the person to be charged, and a niemorandum signed by him alone s valid. The party not signing the memorandum is not bound unless, IS held by some authorities, he has accepted the same as a valid, sub- sisting contract. Want of mutuality .arising from the failure of both Darties to sign cannot be successfully pleaded as a defense by the party ivho did sign, at the act of filing a bill for specific performance binds ;he plaintiff and renders the contract mutual." . . . The case of Forthman v. Deters, 206 111. 159, is a very late case and Dn all-fours with the case at bar, and in which the question now be- fore us was fully considered, and the conclusion there reached and mnounced is, that where a party accepts and adopts a written con- Tact, even though it is not signed by him, he is deemed to have as- sented to its terms and conditions and is bound by them, and that where the contract purports to be a consummated contract, the mere acceptance and adoption of the writing establishes mutuality and makes :he contract binding on both parties. We deem that case conclusive Df the case at bar. We regard the rule as too well established to be open, that appellee, who is the vendor having signed the writing herein above set forth, ;annot defeat performance upon the ground of want of mutuality, Dased upon the fact, alone, that appellant, the vendee, did not sign the same. The appellant had paid part of the consideration and had offer- ed to pay the whole of it within a few days of the making of the con- tract, and unless appellee, by her answer, shall show that to enforce ;he same would be inequitable for some reason other than the mere want of the signature of appellant to the contract, we are of the Dpinion that she should be required to perform. . . . 218 SPECIFIC PERFOEMANCE OF CONTEACTS (Part 1 THURBER V. MEVES. (Supreme Court of California, 1897, 119 Cal., 35, 50 Pac. 1063.) Van Fleet, J. January 1, 1883, plaintiff made a contract in writing with Otto Meves, under which Meves entered into the im- mediate possession of a tract of about forty acres of land belonging to plaintiff, the whole of which available for the purpose Meves was to clear up and cultivate to such fruit trees, grape vines and small fruit plants as should be furnished for the purpose by plaintiff — a certain acreage to be cleared and set out each year during the period of four years; and under which contract. Meves was to erect certain fences and open up a certain private way or road, in consideration of which services plaintiff was to convey to Meves on January 1, 1888, the title to the north half of said premises. On March 10, 1884, Meves borrowed of plaintiff one hundred and fif- ty dollars, for which he gave his promissory note payable two years from date, with interest at one per cent per month, payable quarterly, and to secure payment of which he gave plaintiff a writing which re- ferred to the first mentioned contract, and provided that said contract should be held as security for payment of the note, and making the right to the conveyance therein provided for, "dependent upon the payment thereof at the time and in the manner mentioned in said promissory note, in addition to the other conditions precedent to said conveyance." August 14, 1889, Meves died, and March 10, 1890, plaintiff brought this action against defendants, the heirs of Meves, to quiet title to the north half of the land described in said first mentioned contract, then held and occupied by defendants, and to acquire possession thereof. In a cross-complaint the defendants set up the contracts between their ancestor and plaintiff above referred to, alleged a compliance with the terms of the first, except to a partial extent wherein com- pliance was prevented by certain acts of plaintiff, a tender of payment of said note and willingness and readiness to pay any amount found due thereon, and prayed that plaintiff be decreed to convey to them the portion of land stipulated in said contract. The court below found the facts in all material respects as alleged in the cross-complaint, ex- cept as to the alleged tender of payment of the note, and made a Ch 2) DEFENSES. 219 decree wherein plaintiff is required to convey the land to defendants upon payment by the latter, within sixty days, of the amount of said note and accrued interest. Plaintiff appeals from the judgment and from an order denying him a new trial. 1. It is first contended that inasmuch as the principal contract counted on by defendants was entered into by plaintiff solely in con- sideration of the personal services of Meves to be thereafter rendered, which services could not have been compelled by plaintiff, there was presented at the time the contract was entered into such a lack of mutuality as to take the contract out of the class which is susceptible of specific performance by either party. While it is a general and well- established rule that mutuality of remedy is essential to authorize the specific performance of a contract, this rule does not require that such mutuality shall exist in all cases at the inception of the transaction. Thus in the case of Hall v. Center, 40 Cal. 63, 67, speaking of this requirement, it is said by our predecessors : "The rule is one which is frequently adverted to, is well understood, and the reasons upon which it is rested are familiar. But the exceptions to^ its operation are numerous. Lord Redesdale, in Lawrenson v. Butler, 1 Shoales & L. 13, limits its application to a case 'where nothing has been done in pursuance of the agreement,' by which it is to be understood that though an agreement may, at the time it was entered into, lack the element of mutuality, and for thai reason may not be then such an agreement as equity would enforce, yet if the party seeking relief has subsequently, with the knowledge and the express or tacit consent of the other, placed himself in such a position that it would be a fraud for that other to refuse to perform, equity will re- lieve." The principles there announced are sustained in the later cases of Ballard v. Carr, 48 Cal. 74, and Howard v. Throckmorton, 48 Cal. 489. And, adverting to this element of mutuality and the question as to the time when it must exist, it is said by Mr. Waterman : "The rule as to the time is to be taken with this qualification, that notwith- standing the contract when it is entered into be incapable of specific performance by one of the parties, or, being enforced against him, yet if the obligation to perform be mutual and the obstacle to performance be subsequently overcome, a decree may then be rendered. If the ' SPECIFIC PERFORMANCE OF CONTRACT^ (Part 1 ntiff has performed his part of the agreement, specific perform- e may be decreed, although the contract, so far as concerned formance by the plaintiff, was originally beyond the jurisdiction of court;" Waterman on Specific Performance, sec. 199. The au- rities cited by appellant are not at variance with this qualification ;he rule. i.nd while an obligation to perform personal services is one of which cific enforcement may not be had (Civ. Code, sec 3390), this rule not the effect to defeat the right to have the specific benefit of an orceable obligation entered into in consideration of personal ser- is, where such services have been fully or substantially performed, illard V. Carr, supra ; Howard v. Throckmorton, supra ; King v. dersleeve, 79 Cal. 504, 510.) In Howard v. Throckmorton, supra, ^ch like Ballard v. Carr, supra, was an action to enforce an obliga- 1 to convey land in consideration of personal services as an attorney, ; said: "While it is true as a general proposition that a party who contracted to perform services of the character mentioned in the tract in this case cannot maintain an action for specific performance lie the contract remains unperformed on his part, he is as fully en- id to maintain such action as he would be if the agreement on his t had been for the payment of money." . . . \ WATTS V. KELLAR. (United States Circuit Court of Appeals, 1893, 56 Fed. 1.) 'aldwEll, D. J. . . . By the terms of this contract the defend- 5, in consideration that the plaintiff would pay $7,000 for the lot, eed to pay the plaintiff $7,700, therefor at the expiration of one r from the date of plaintiff's purchase, if the plaintiff should then ;t to sell the lot at that price. The consideration for this agreement xpressed in the contract, and is sufficient. An option to sell land .s valid as an option to buy. When one holding a buyer's option its his election to purchase, and tenders the money according to the ns of the contract, it is the duty of the seller to accept the price, execute a deed to the purchaser for the property ; and when one iing an option to sell elects to make the sale, and tenders a deed, ; the duty of the buyer to accept the deed, and pay the price. Such Jh 2) DEFENSES. 221 :ontracts are perfectly valid, and it is now well settled that a court of ;quity may decree a specific performance of them. A suit for that )urpose is, of course, subject to the general rule that the specific per- ormance of contracts for the purchase or sale of land is not a matter )f course, but rests in the discretion of the court, in view of all the cir- :umstances. But the rules by which the court will be guided, in a iUit like this, in decreeing or refusing a specific enforcement are the ame that they are in other suits for the specific enforcement of con- racts relating to land. Cases may be found which hold that such ontracts will not be specifically enforced, because the right to a spe- ific enforcement is not mutual. The want of mutuality of right to a pecific performance of a contract, which sometiemes precludes its nforcement in equity, has no application to an option contract of the haracter we are considering. The purchaser of an option to buy or ;ell land pays for the privilege of his election. It is that very privi- ege which the other party to the contract sells. In the absence of an igreement to the contrary, each party to a contract to buy or sell and may have its specifically enforced against the other (Raymond '. Land & Water Co., 4 C. C. A. 89, 10 U; S. App. 601, 53 Fed. Rep. )83) ; but the very purpose of an optional contract of this nature is to ;xtinguish this mutuality of right, and vest in one of the parties the irivilege of determining whether the contract shall be vitalized and ;nforced. An option to buy or sell land, more than any other form of ontract, contemplates a specific performance of its terms; and it is he right to have them specifically enforced that imparts to them their isefulness and value. An option to buy or sell a town lot may be aluable when the party can have the contract specifically enforced, lut, if he cannot do this, and must resort to an action at law for dam- ges, his option in most cases will be of little or no value. No man of ,ny experience in the law would esteem an option on a lawsuit for n uncertain measure of damage as of any value. The modern, and we hink the sound, doctrine is that when such contracts are free from raud, and are made upon a sufficient consideration, they impose upon he maker an obligation to perform them specifically, which equity irill enforce. Pom. Cont. § 167-169, and notes; Willard v. Tayloe, Wall. 557; Brown v. Slee, 103 U. S. 828. In the case last cited, he supreme court of the United States enforced, quite as a matter of ourse, the specific performance of a seller's option which was in these ;rms: 222 SPECIFIC PERFORMANCE OF CONTRACTS (Part 1 "It is further understood and agreed that, if said executors desire it, said Brown shall, at the expiration of five years stated in said con- tract of April 25, 1871, repurchase the 130 acres of land in the city of Des Moines at $25,000. . . ." The opinion of the court was delivered by Chief Justice Waite, and discussed at length the sufficiency of the executors' notice of their election to sell, and the question whether the tender of the deed was timely; but contains no intimation that the want of mutuality in the contract was any impediment to its specific enforcement. The want of mutuality was too obvious to be overlooked, and the fact that it was not adverted to shows that, in the judgment of that court, the right to enforce the specific performance of such a contract was too well settled to require or justify any observation. Viewed in any light, the bill presented a case of equitable cognizance, and it was error to dismiss it. . . . DRESSEL V. JORDAN. (Supreme Court of Massachusetts, 1870, 104 Mass. 407.) Wells, J. . . . This consideration leads to another objection \ urged by the defendant, namely, that there is a want of such mutuality las is requisite for an agreement entitled to specific enforcement. So far as this objection rests upon the ground that there was no legal and sufficient agreement on the part of the sellers, for any of the reasons already considered, no further discussion is necessary. Beyond that, the point of the objection is that the seller must have, at the time the agreement is made, such title and capacity to convey, or such means and right to acquire them, as will enable him to fulfill the contract on his part; otherwise the court will not hold the purchaser to a specific performance. But we do not so understand the rule. On the contrary, if the obligation of the contract be mutual, and the seller is able, in season to comply with its requirements on his part, to make good the title which he has undertaken to convey, we see no ground on which the purchaser ought to be permitted to excuse himself from its acceptance. . . 3h. 2) DEFENSES. 223 The equitable rule is established by numerous authorities, that where ime is not of the essence of the contract, and is not made material ly the offer to fulfill by the other party, and request for a convey- .nce, the seller will be allowed reasonable time and opportunity to )erfect his title, however defective it may have been at the time of he agreement. And in all cases it is sufficient for the seller, upon a :ontract made in good faith, if he is able to make the stipulated title it the time when, by the terms of his agreement or by the equities of he particular case, he is required to make the conveyance, in order o entitle himself to the consideration. . . . In the present case, although a fixed time was named in the con- ract for conveyance of the title, the defendant was himself at no :ime ready to receive it until after the plaintiffs had, by the sale to l^Iram, enabled themselves, by means of a quitclaim deed from Cram, o transfer the whole title. The plaintiffs were not therefore at any ime in default, in respect to the title to this third part of the es- ate. . . . LOGAN AND WIFE v. BULL. (Kentucky Court of Appeals, 1880, 78 Ky. 607.) Pryor, J. This action was instituted in the Louisville chancery ;ourt on the 1st of December, 1873, by the appellants, Logan and vife, against John Bull, for the specific execution of a contract :videncing the sale of a lot of ground and the improvements on the lortheast corner of Fifth and Market streets, in the city of Louis- ville. . . . It is further contended by the appellees that a specific execution )f the contract should be denied because the title to a part of the ot is in the feme covert, and as the chancellor has no power to com- )el her to convey, there is such a want of mutuality in the obligation Ls to render the contract .invalid. The general doctrine is, that a contract incapable of being enforced Lgainst one party, that party is equally incapable of enforcing it against he other. (Fry, on Specific Performance, page 198.) It has often been held under this rule, that a party at the time he nakes his contract, although not invested with such a title as he 224 SPECIFIC PERFORMANCE OF CONTRACTS (Part 1 I undertakes to convey, may compel a specific execution where time is not of the essence of the contract. Cases may be found, and language used by some of the elementary writers on the subject, conducing to the conclusion that, in the absence of such a title in the party at the time of making the contract as he contracts to convey, the vendee may rescind, and a specific execution will be denied; but the equi- table rule as now settled by nearly all the authorities on the subject is, that when the contract is required to be performed, if the party is able to convey, and tenders his deed, the contract will be enforced, although his title was defective at the date of the contract; and if not able to convey at the time of filing a bill of rescission, if time is not of the essence of the contract, the chancellor will permit the vendor, if he can do so within a reasonable time, to supply the defects in his title, so as to comply with his contract. (Dressel v. Jordan, 104 Massachusetts.) In this case the husband and wife, living at the time in the state of Missouri, authorized their agents in Louisville, by telegraph and by letter, to make the sale to the ancestor of the appellees on the iterms mentioned in the writing. The obligation to perform the con- tract was as binding on Logan as on Bull, and the fact that the title to a part of the lot was in the wife, who could not be compelled to convey, is immaterial. If in a reasonable time Logan was ready to make good the title, and particularly when he has not failed to make a title on the demand of the vendee, the purchaser should be com- pelled to accept it. The ancestor of the appellees knew when he made this purchase that the title to a part of the lot was in the wife, /and that the chancellor could not coerce a conveyance, and whether he possessed this knowledge or not, the obligation on the husband to convey was as binding on him as the obligation on the vendee to pay the money. The ancient practice in equity was to decree the husband to per- form his contract in such a case where, as Lord Eldon says, it was usually impossible for him to perform. The modern rule on the subject is to adjudge a specific performance, although the title may have been in the wife when the contract was made with the husband, if the latter is ready to comply by tendering such a conveyance as will pass the title. If the wife consents to convey, and does convey, the vendee has no right to complain. . . . Ch. 3) WASTE. 225 CHAPTER III. SPECIFIC REPARATION AND PREVENTION OF TORTS. SECTION I. WASTE. OHIO OIL CO. V. DAUGHETEE. (Supreme Court of Illinois, 1909, 240 111. 361, 88 N. E. 818.) Dunn, J. The appellee N. P. Daughetee is the owner in fee of 190 acres of land in Clark county. His sister, Sydney A. Stephenson, died in 1895, owning 60 acres adjoining it on the south, which by her will she devised as follows : "I give and devise and bequeath to Nathaniel P. Daughetee, trustee, in trust, and to his successors forever, all my estate, real, personal and mixed, of whatever kind or nature soever, of which I may die seized or possessed, to have and to hold, manage, rent, lease and con- trol, in trust, for the uses and purposes following: To pay the ex- penses of such trust and for necessary repairs and taxes, and to pay over the annual .proceeds therefrom to my nephew, Rhinehart C. Daughetee, for and during the natural life of him, the said Rhine- hart C. Daughetee, with remainder over to the heirs of the body of said Rhinehart C. Daughetee upon his death, provided he die leaving a child or children or descendants of child or children, equally, share and share alike, to them and their heirs forever. In the event of the death of said Rhinehart C. Daughetee without issue of his body then surviving, then and in that event I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, to my brother, Nathaniel P. Daughetee, and his heirs for- ever." On June 3, 190-1-, N. P. Daughetee entered into a written contract with a co-partnership doing business under the name of Hoblitzell 1 Eq.— 15. 226 E.EPAEATION AND PKEVENTION OF TOBTS. (Part 1 & Co., whereby he granted to them all the oil and gas in and under both his own 190 acres and the 60 acres held by him in trust, to- gether with the right to enter thereon at all times for the purpose of drilling and operating for gas and oil, and to erect and maintain all buildings and structures and lay all pipes necessary for the pro- duction and transportation of oil and gas, with a right of way over and across said premises to the place of operation, and the exclusive right to remove any machinery or fixtures placed on said premises, doing the least possible damage to said premises, and with the right reserved to the grantor to use the premises for tillage and for all other purposes not inconsistent with the object of the lease. The contract was for the term of five years and as much longer as gas or oil was found in paying quantities. . . . N. P. Daughetee had possession and control of the 60 acres under his sister's will as trustee. He had no present beneficial interest in the land. His only authority to contract in regard to its possession or use was derived from the will, which gave him the right to manage, rent, lease and control the land, but no authority to sell or mortgage it or any part of it. The power of control and management given him was, during Rhinehart C. Daughetee's lifetime, for the purpose of making necessary repairs, paying taxes and expenses and paying the net annual proceeds to him. The only management and con- trol contemplated was that which had to do with the annual pro- ceeds of the land. The authority of the trustee was to grant ordinary farming leases in accordance with the ordinary terms of the neighbor- hood, but not unusual leases or leases of unopened mines. 2 Perry on Trusts, sec. 528 ; Clegg v. Royland, L. R. 2 Eq. 160. Granting that the trustee held the title in fee, he held it for the benefit of the remainder-man as well as the life tenant, and had no right to waste the estate for the benefit of the life tenant at the expense of the remainder-man. It is a well established rule of law that the opening of new mines upon land by a life tenant amounts to waste. (Priddy v. Griffith, ISO 111. 560.) The same rule applies to oil wells. Oil is a mineral and part of the realty. Owing to its fugitive nature, a grant of oil under the ground is a grant, not of the oil in place in the earth, but of such oil as the grantee may find there and save. The right to go upon the land and remove all the oil, if of unlimited duration, is a freehold estate, (Watford Oil and Ch. 3) WASTE. ^27 Gas Co. V. Shipman, 233 111. 9; Bruner v. Hicks, 230 id. 536;) and a grant of such right is, therefore, in legal efifect, a sale of a portion of the land. Blakely v. Marshall, 174 Pa. 425; Stoughton's Appeal, 88 Pa. 198. There were no oil wells on the land at the time of the testatrix's death. A tenant for life, under such circumstances, would have had no right to operate for oil on the land. (Marshall v. Mellow, 179 Pa. 371.) Neither could the trustee operate for his benefit. The taking out of the oil would be waste, which a court of equity will enjoin. Williamson v. Jones, 43 W. Va. 562. Counsel for appellant insist that the remainder to Homer Daughetee is contingent ; that he has no estate in the land but a mere expectancy, which will not enable him to maintain the suit. On the other hand, it is contended in behalf of appellees that ihe remainder is vested and the court so found. It is not essential to a decision of the case to determine whether the interest of Homer Daughetee is vested or contingent. A contingent remainder-man has no certain estate in the land, and therefore no standing to maintain an action at law for past waste or a bill for an account therefor; but, though his claim depends upon a contingent event, he may maintain a bill against a life tenant to enjoin future waste, because otherwise no remedy exists for the protection of the interest in remainder but the life tenant without a semblance of right may despoil the inheritance Avith impunity. The bill, in such case, may be maintained for the protec- tion of the inheritance, which is certain though the person on wliora it may fall is uncertain. (Brashear v. Macey, 3 J. J. Marsh. 93 ; Cannon v. Berry, 59 Miss. 289; Coward v. Myers, 99 N. C. 198; lyewisburg University v. Tucker, 31 W. Va. 621.) The acts which the crossbill seeks to enjoin and which the appellant claims the right to commit, clearly amount to waste against the remainder-man. The trustee could not authorize them. The case is different from those of Fifer v. Allen, 228 111. 507, and Gannon v. Peterson, 193 id. ■ 372. The defendants sought to be enjoined in those cases were owners of the fee, determinable, it is true, but still having all the rights of tenats in fee simple until the determination of their estates. The acts sought to be enjoined were such as they might rightfully do as owners of the fee. The interests sought to be protected were mere expec- tancies, which might never have any existence. Here the interest 2?2L BEPAEATION AND PEEVENTION OF TORTS. (Part ]. sought to be protected is certain to accrue and the acts sought to be enjoined are without color of right of any kind. This case is within the requirements suggested in the cases just mentioned, the contin- gency being certain to happen and the waste threatened amounting to a wanton and unconscientious abuse of right. ... TAYLOR V. ADAMS. (Missouri Court of Appeals, 1902, 93 Mo. App. 377.) Ei-LISON, J. This action is for waste alleged to have been committed by defendant on the lands described in plaintiffs' petition. At the close of plaintiff's case the trial court sustained a demurrer to the evidence. The question involved arises out of the following deed: This deed conveyed an estate for life to Elenora Taylor, for though she had also the power of appointment over the remainder, that did not enlarge the estate especially limited. Evans v. Folks, 135 Mo. 397. Elenora is alive, and at the time of the trial was fifty years old. Her life estate was sold at sheriff's sale and defendant became the purchaser. He thereby became tenant for the life of Elenora, and as such he is charged by plaintiffs, who are Elenora's children, with waste of the estate, and damages are asked. The plaintiffs base their claim of right to sue on the idea that they are owners of the estate in remainder. Their right to sue depends on whether their estate in remainder is vested or contingent. If contingent, they have no standing in law for in such event it can not be known in advace of the happening of the contingency, that they have been damaged by the waste. If they should recover damages, and then the contingency upon which their estate depends not happen, they would be paid for what they had not lost. And so the law is that a contingent remainder- man has no action for waste (Sager v. Galloway, 113 Pa. St. 500; Hunt V. Hall, 37 Maine 363), though in equity they could perhaps have injunction to prevent future waste (Cannon v. Barry, 59 Miss. 289, 302; University v. Tucker, 31 West Va. 621.) The distinction of the contingent remainderman's right at law in damages and in equity to an injunction has good reason in its support. For while Ch. 3) WASTE. 220 he will not be allowed to recover damages for that which may. not be his, he should be allowed to prevent the destruction of that which may become his. MORRIS V. MORRIS. (In Chancery, 1853, 3 De G. & J. 323.) This was an appeal by the plaintiffs from an order of Vice-Chan- cellor Stuart dismissing the bill which was filed to obtain, among other things, compensation out of the estate of a deceased tenant for , life for equitable waste in pulling down a mansion-house called Clasemont, in Glamorganshire. In June 1819, Sir John Morris, the father, settled the barony of Sketty, in Glamorganshire, and other estates, on himself for life, with remainder to the use of trustees for 1,000 years, upon trusts for raising money to pay off certain charges, and subject thereto to the use of trustees during the life of Sir John Morris the son, without impeachment of waste (provided the same should be committed or suffered with the privity or assent of Sir J. Morris, the son), upon trust to preserve contingent remainders, and to permit Sir J. Morris, the son, to receive the rents during his life, with remainder to the use of Sir J. Armine Morris, for life, without impeachment of waste, with remainder to the use of the first and other sons of Sir J. A. Morris, successively in tail male, with ultimate reversion to the settlor in fee. The settlor died soon after the date of the settlement, and Sir J. Morris, the son, entered into possession. At this time there was upon the settled estates the mansion-house of Clasemont. This house had, for various reasons, become undesirable as a residence, and the settlor had, for some years before his death, shut it up, and had made some preparations for building another at Sketty, upon part of the settled estates. In 1820, at which time Sir J. A. Morris, the gt^and- son of the settlor, was about nine years old. Sir J. Morris, the son, 'pulled down the mansion at Clasemont, and soon afterwards com- pleted the new one at Sketty, which was much superior to the old one. It was proved in the cause, as satisfactorily as such a fact 230 EEPAHATIOU ANt* tEEVENTION OF TOETS. (Part L could be expected to be proved at such a distance of time, that the bulk of the materials of the old house had been employed in erecting the new one, and there was no evidence to show that any part of them had been sold. In 1847, Sir J. A. Morris obtained^an injunction to restrain Sir J. Morris, the son, from cutting down ornamental timber in the grounds at Clasemont, and the order granting this injunction was affirmed by L,ord Cottenham. Sir J. Morris, the son, died in 1855, leaving a will, by which he appointed his widow. Lady Morris, his executrix. The present bill was filed by Sir J. A. Morris and his eldest son against Lady Morris, asking, among other things, that it might be declared that the pulling down the mansion-house at Clasemont was an act of equitable waste, and that an account might be taken of the application of the materials, and of the profits received by Sir John Morris, the son, from them, and that the amount of compensation to which the plaintiffs might be entitled in respect of such waste might be paid into Court. Vice Chancellor Stuart dismissed the bill without costs, and the plaintiffs appealed. The bill also raised another question, but as the defendant, upon the hearing of the appeal, did not resist a decree upon that part of the case, and no argument took place upon the point, it is not thought necessary to notice it further. . . . The Lord Justice Knight Bruce. This is not a question of in junction, for the act of which complaint is made was done more than thirty years ago. It is a mere question of equitable debt, in consider- ing which we must look to the particular circumstances of the case. That it was a reasonable, a judicious, and a beneficial thing to pull down the house at Clasemont, and to use the materials, so far as they could be used, for building the mansion at Sketty, is perfectly clear; but I agree with Mr. Malins, that an act may be reasonable, may be judicious, may be beneficial to all the persons interested in a settled property, and yet it may be an act prohibited to a tenant for life, if a person interested in remainder chooses to interfere. I do not put the case, therefore, merely on the reasonableness, on the judiciousness, and on the beneficial nature of what was done, but they, are ingredients in it. The estate has been benefited by what has been done, and the plaintiffs are receiving that benefit. Still, if it had been shown, or were in any degree likely, that any part of the materials Ch. 3) WASTE. 231 of the house had been sold, probably, notwithstanding the much larger expenditure on the construction of the new mansion-house, the assets of the second baronet would have been held liable to account. Here however, there is no evidence that any part of the materials was sold, and the probability is, that no part or no substantial part of them was sold. There is evidence that most of the materials, probably all the materials that were of any value, were applied in building the present mansion-house in a proper position upon the estate. In my judgment it would be unjust, and would be stretching a rule beyond its reason, to make the tenant for life account for the materials of a mansion- house on the estate, wisely pulled down, when the materials have been so applied in rebuilding. I am of opinion, therefore, that in the cir- cumstances of the present case, there is no ground for directing an account of equitable waste, and the bill ought to remain dismissed, as far as it relates to the materials of the Clasemont house. . . . KING V. SMFTH. (In Chancery, 1843, 2 Hare 339.) Vice-Chancbllor. The cases decide that a mortgagee out of pos- session is not of course entitled to an injunction to restrain the mort- gagor from cutting timber on the mortgaged property. If the se- curity is sufficient, the court will not grant an injunction merely be- cause the mortgagor cuts, or threatens to cut, timber. There must be a special case made out before this court will interpose. The dif- ficulty I feel is in discovering what is meant by a "sufficient security." Suppose the mortgage debt, with all the expenses, to be £1,000, and the property to be worth £1,000 that is, in one sense, a sufficient se- curity; but no mortgagee, who is well advised, would lend his money, unless the mortgaged property was worth one-third more than the amount lent at the time of the mortgage. If the property consisted of houses, which are subject to many casualties to which land is not liable, the mortgagee would probably require more. It is rather a question of prudence than of actual value. I think the question which must be tried is whether the property the mortgagee takes as a security, is sufficient in this sense, — ^that the security is worth so -32 BEPAEATION AND PEEVENTION OF TORTS. (Part 1 much more than the money advanced, — that the act of cutting timber is not to be considered as substantially impairing the value, which was the basis of the contract between the parties at the time it was entered into. I have read the affidavit, and I cannot find that either the rental or income of the property appears; but it seems that the substantial part of it consists of houses, which might make it a more serious question, whether the court should permit the mortgagor to cut the timber. The supplemental bill, which states the circumstances with respect to the timber, and prays the injunction, contains no case with reference to the insufficiency of value, nor does the plaintiff, by his affidavit, make any such case. The bill and affidavit appear to pro- ceed on the supposition that the mortgagor has no right to cut the timber under any circumstances. In the valuation which is attempted to be shown, I am not told the quantity of the land, or the rental; nor can I discover of what class the houses are, or whether they are tenanted or not, or what is the nature of the property generally. It is stated, on the Defendant's affidavits, that he did not cut any of the trees with intention of injuring the estate but on the contrary, he did it in the due and propeii course of husbandry and management. What is meant by felling twenty-one large elm trees in due course of husbandry, I cannot comprehend. It is obvious, that the Defendant is using language, of which he does not know the effect. There being, however, no abstract right on the part of a mortgagee to say that the mortgagor shall not cut timber, I am satisfied that there must be clearer evidence of the value before me, or I cannot grant the injunction. Let the motion stand over, with liberty to apply. If the Defendant proceeds to cut more timber, the Plaintiff can renew his application, and bring before me a case upon which I can adjudicate, and then the costs of this motion will be disposed of. I should be very re- luctant to decide it without knowing what is the actual value of the security which has been accepted by the mortgagee, or whether he is really secured or not. MURRAY V. HAVERTY. (Supreme Court of Illinois, 1873, 70 111. 318.) ScoTT, J. It is not controverted defendants dug and removed large quantities of coal from the premises described in the declaration, Ch. 3) WASTE. 233 and hence the principal question is, whether they can justify under the license offered in evidence. The land upon which the alleged trespasses were committed was owned, at the time, by tenants in common. It was subsequently divided, and the east half set off to plaintiffs, for whose use this suit was brought. Prior to the entry of defendants upon the premises, they had entered into an agreement with Peter Howard, who was a tenant in common with plaintiffs' by which they obtained the privilege to enter and construct a drain across the premises, but below the vein of coal. It was to be for their own benefit, and for the privilege secured they were to pay $200. The construction of the drain would necessarily require the excava- tion and removal of large quantities of coal, for which they agreed to pay at the rate of two cents per bushel. It is insisted, this license is a bar to an action of trespass for any- thing done by defendants in the execution of the contract. . . . Counsel, however, maintain that defendants can defend against the alleged trespasses, under a license obtained from one of the tenants in common. Waiving any technical objection that might be urged against the form of the plea, under this view of the law, we do not think the proposition assumed can be sustained, either upon reason or authority. The common law doctrine is, tenants in common are seized of each and every part of the estate, but it is not in the power of one to con- vey the whole of the estate, or the whole of a distinct portion, or give a valid release for injuries dbne thereto. It has most generally been ruled that, as against the other co-tenants, such a deed is inoperative and void. Marshall v. Trumbull, 28 Conn. 183 ; Hutchinson v. Chorr, 39 Maine, 513; 4 Kent's Com. 368. No principle is better settled, than that one tenant in common can not lawfully commit waste or destroy the common property, or do any act that will work a permanent injury to the inheritance. Our statute has authorized one tenant to maintain trespass or trover against his co-tenant, who shall take away, destroy, lessen in value or other- wise injure the common property. Mining coal or excavating and removing earth, would tend to injure, destroy and lessen in value the estate. Notwithstanding the fact, in contemplation of law, tenants in common are all seized of each and every part of the estate, still, neither 34 EEPAEATION AND PREVENTION OF TORTS. (Part 1 tie is permitted with impunity to do acts deemed prejudical or de- Tuctive of the interests of the other co-tenants. If a tenant in common m not himself lawfully dig and remove the soil or coal or other aluable material beneath the surface, that would tend permanently to ;ssen the value of the estate, how can he grant that right to a stranger ? Fpon principle, the licensee can take no better title or higher authority lan the licensor himself possessed. The law would not permit Peter Toward to enter upon the common property and remove from thence le coal deposits, which must constitute the real value of the estate, fence it follows, his warrant or license to a stranger would afford o answer to an action of trespass brought by his co-tenant. . . . LIPPINCOTT v. BARTON. (New Jersey Court of Chancery, 1886, 42 N. J. Eq. 272, 10 Atl. 884.) Bird, V. C. This bill is filed by the executor of Ann H. 'ancoast, deceased, to recover the value of trees cut by her husband )avid C. Pancoast, who continued in possession as tenant by the curt- sy of her lands after her death. iThe defendant against whom the uit is instituted, are the executors of the tenant for life. It is claim- d that this suit may be maintained in this court for the waste com- lited, on the ground of equitable conversion, and upon the ground f injustice to Clement G. Lippincott, one of the grandsons of David \. Pancoast, by whose will he has but $100 bequeathed him, while by le will of Ann H. Pancoast he has an equal interest with the other ;gatees. Neither of these alleged grounds brings the case within the jurisdic- ion of this court. I have examined a number of authorities, and none f them goes so far as to sustain the complamant's insistment. In Ware v. Ware, 2 Hal. Ch. 117, the doctrine, which is expressed 1 all the other authorities, is that an account for waste done is only icidental to relief by injunction against further waste. 1 Lead. Cas. 1 Eq. 1024; Jesus College v. Bloome, 3 Atk. 262; Winship v. Pitts, Paige 259; Story's Eq. §§ 616, 518. From these and other cases it appears that this court only has juris- .iction to compel an account as incidental to the right of an injunction Ch. 3) WASTE. 235 to stay the commission of further waste, and that only in order to prevent a multiphcity of suits. Grierson v. Eyre, 9 Ves. 341, 346; Watson V. Hunter, 5 Johns. Ch. 169; 1 Addison on Torts 319. Nor can I conceive of any principle upon which this complainant can stand in this court for the recovery of these moneys. If he is en- titled to them he can recover them by an action at law for money had and received, or for the trespass in cutting, or trover in converting. Rev. p. 396, § 5. IvANSDOWNE V. LANSDOWNE. (In Chancery, 1815, 1 Maddock, 116.) The Vice-Chancei,if Bisbee and its marshal from enforcing the terms of an ordinance of said city requiring fire insurance agents to pay a quarterly license before transacting any business, and prescrib- ing penalties for its violation. The compl aint allegesthe invalidity of the ordinance, irrepara ble injury nqt susceptible of estimation, and a multiplicityj3i_£uits. The appellants dem_u Tred to~the complaint for msufficiencyin that it shows upon its face an adequ ate remedy at law. ' As^ general rule, the equity side of the court may not be invoked when the complainant has a plain, speedy, and adequate remedy at law. An examination of the complaint, with a view of ascertaining from its allegations whether it discloses that the appellees had an adequate remedy at law, is necessary. For a violation of the terms of the Ch. 4) PREVENTION OF CEIMES AND PEOOEEDINGS. 397 ordinance, the natural course, and the one provided by law, would be the arrest and trial of the transgressor in the municipal courts of the city of Bisbee. In that court and the superior court of Cochise county and the supreme court to which appeals may be had, the validity of the ordinance can be tested. The remedy ordinarily for such cases is in ihe criminal side of the courts, and we must presume the courts will declare the law, and, if the ordinance is found to be void, so adjudge it. Should it, however, be found invalid, the defendants would be in no worse position than if found innocent of violating a valid law. A party charged with crime has as much right to ask that equity pass upon the question of his innocence as to ask that equity pass upon the validity or invalidity of the statute or ordinance denouncing the crime. The inapplicability of the writ of injunction to cases of this kind can be very forcibly illustrated by this case. Had the trial court found the ordinance valid, it could pronounce no judgment of conviction. The matter would have to be relegated to the courts of proper jurisdiction and the issue there tried out. Had the court found the ordinance void, its judgment would become final, but no one will conted that equity should take cognizance to declare an ordinance void and not to declare it valid. Should the ordinance be found valid upon a prosecution for its violation, the appellees cannot complain, no matter how it may affect their business, if it is invalid, that becomes a matter of defense to be interposed in the criminal prosecution. "The legality or illegality of the ordinance is purely a question of law, which it is competent for a court at law to decide. We cannot assume that the courts in which the validity of the ordinance is pre- sented will not decide this question correctly. . . . The legal prg.- grirnjvHnn i "For value received I assign the within note to James Stafford. (Signed) H. J. Fetters." The action was brought at law upon this indorsement. The de- ' fendant pleaded an equitable defense, wherein he substantially alleged that by the agreement under which the note was transferred the plain- tiff was to take the note without recourse upon defendant, and that the parties adopted the form of transfer as expressing such agree- ment, and neither of them at the time intended that it should have any other effect than to express the agreement between them, and neither knew that it did have the effect which the law gives to such instruments. Defendant upon this answer, as in a cross-bill, prays that the indorse- ment be reformed so as to express the true agreement made and in- tended to be set out by the parties, and that other proper relief be grant- ed. A demurrer to this count of the answer was overruled, and the 4.ssues raised by this pleading were tried as an action in chancery. But there is another familiar rule of equity upon which plaintiff relies to defeat the application of these doctrines to this case, namely, relief „will not be granted,, to correct mistakes^ of law. The rule has no application to mistakes in the language of a contract, or in the choice of the form of an instrument whereby it has an effect different from the intention of the parties. If the parties intending to sell and pur- chase lands should in ignorance of its legal effect execute a lease, equity would reform the instrument, though it was a mistake of law which led them to adopt it. This mistake, it will be noticed, affects the very contract the parties intended. They intended a deed, but a lease was made. But where two are bound by a bond, and the obligee releases one, mistakingly believing that the other will remain bound, equity will not grant him relief, for the reason that the release is just what he intended it to be; his mistake related to the effect of the contract in matters not contemplated therein. The mistakes of law against which equity will not relieve are those which pertain to the subject of the contract, and were inducements thereto, or considerations therefor. In such cases the parties intended to make the very contracts which they executed, but were induced to make them by a mistake of law. Further illustrations taken from the books make our expression of the rule plainer. A tenant for life purchased a reversion under the mistake of law that such purchase would cut off the remainder in tail and vest the fee Ch. 6) REFORMATION OF INSTRUMENTS. 21 in him. It was held that he could not have relief. A power of attorney was taken from a debtor as a security ; but the debtor died before the power was executed. Equity would not grant relief. In each of these cases the very contracts entered into by the parties were embodied in the instruments. The mistakes were as to the results to be reached which were inducements to the contracts. In the first case the pur- chaser supposed that the acquisition of the reversion would vest in him the fee simple title. This was the inducement for the purchase. It was a mistake of law. In the second case it was the purpose of the parties to secure the payment of the debt. They mistakenly chose a power of attorney to effect their object. But their purpose was de- feated by the law which provides that the death of the grantor revokes a power of attorney. In these cases it will be observed the instruments were of the character intended by the parties. The mistakes pertained to the effect of the instruments upon the rights of the parties, not con- templated by the contracts or provided for therein. I But, on the other hand, when parties enter into an agreement which, through mistake of law or fact, they reduce to writing and the in- strument fails to express their true agreement, or omits stipulations agreed upon, or contains terms contrary to the intention of the parties, equity will reform the writing, making it conform to the agreement entered into by the parties. In the case before us the parties agreed that plaintifif should take the note without recourse on defendant. They mistakenly sup- posed that the form of assignment of the note would have that effect, being ignorant of the provisions of the law of commercial paper which makes the indorser liable in case of default of the maker of the note. This was a mistake of law, but it pertained to the instrument itself, and by reason of it the writing does not express the true agreement of the parties. Equity will reform it. PARK BROS. & CO., LIMITED, v. BLODGETT & CLAPP CO. (Supreme Court of Connecticut, 1894, 64 Conn. 38, 39 Atl. 133.) Torrance, J. . The finding of the court below is as follows : "The actual agreement between the defendant and the plaintiff was 22 EEFOB.MATION OF INSTRUMENTS. (Part 3 that the plaintiff should supply the defendant, prior to January 1st, 1890, with such an amount of tool steel, not exceeding fifteen tons, as the defendant's wants during that time might require, and of the kinds and upon the terms stated in said contract, and that the defendant would purchase the same of the plaintiff on said terms. But by the mutual mistake of said Church and said Clapp, acting for the plaintiff and defendant respectively, concerning the legal construction of the written contract of December 14th, 1888, that contract failed to express the actual agreement of the parties ; and that said Church and said Clapp both intended to have the said written contract express the actual agreement made by them, and at the time of its execution be- lieved that it did." No fraud is properly charged, and certainly none is found, and whatever claim to relief the defendant may have must rest wholly on the ground of mistake. The plaintiff claims that the mistake in question is one of law and is of such a nature that it cannot be corrected in a court of equity. That a court of equity under certain circumstances may reform a written instrument founded on a mistake of fact is not disputed; but the plaintiff strenuously insists that it cannot, or will not, reform an instrument founded upon a mistake like the one here in question which is alleged to be a mistake of law. The distinction between mistakes of law and mistakes of fact is certainly recognized in the text books and decisions, and to a certain extent is a valid distinction ; but it is not practically so important as it is often represented to be. Upon this point Mr. Markby, in his "Elements of Law," section 268 and 269, well says : "There is also a peculiar class of cases in which courts of equity have endeavored to undo what has been done under the in- fluence of error and to restore parties to their former positions. The courts deal with such cases in a very free manner, and I doubt whether it is possible to bring their action under any fixed rules. But here again, as far as I can judge by what I find in the text books, and in the cases referred to, the distinction between errors of law and errors of fact, though very emphatically announced, has had very little prac- tical effect upon the decisions of the courts. The distinction is not ig- nored, and it may have had some influence, but it is always mixed up with other considerations which not infrequently outweigh it. The dis- tinction between errors of law and errors of fact is therefore probably of much less importance than is commonly supposed. There is some Ch. 6) EEPORMATION OF INSTRUMENTS. 23 satisfaction in this because the grounds upon which the distinction is made have never been clearly stated." The distinction in question can therefore afford little or no aid in determining the question under consideration. Under certain cir- cumstances a court of equity will, and under others it will not, reform a writing founded on a mistake of fact; under certain circumstances it will, and under others it will not, reform an instrument founded up- on a mistake of law. It is no longer true, if it ever was, that a mis- take of law is no grotmd for relief in any case, as will be seen by the cases hereinafter cited. Whether, then, the mistake now in question be regarded as one of law or one of fact is not of much consequence ; the more important question is whether it is such a mistake as a court of equity will correct ; and this perhaps can only or at least can best be determined by seeing whether it falls within any of the well recog- nized classes of cases in which such relief is furnished. At the same time the fundamental equitable prirlciple which was specially applied in the case of Northrop v. Graves, 19 Conn., 548, may also, perhaps, afford some aid in coming to a right conclusion. Stated briefly and generally, and without any attempt at strict accuracy, that principle is, that in legal transactions no one shall be allowed to enrich himself un- justly at the expense of another, through or by reason of an innocent mistake of law or fact entertained without negligence by the loser, or by both. If we apply this principle to the present case, we see that by means of a mutual mistake in reducing the oral agreement to writing the plaintiff, without either party intending it, gained a decided ad- vantage over the defendant to which it is in no way justly entitled or at least ought not to be entitled in a court of equity. The written agreement certainly fails to express the real agreement of the parties in a material point ; it fails to do so by reason of a mutual mistake, made, as we must assume, innocently and without any such negligence on the part of the defendant as would debar him from the aid of a court of equity ; the rights of no third parties have intervened ; the instrument if corrected will place both parties just where they in- tended to place themselves in their relations to each other ; and if not corrected it gives the plaintiff an inequitable advantage over the de- fendant. It is said that if by mistake words are inserted in a written contract which the parties did not intend to insert, or omitted which they did not intend to omit, this is a mistake of fact which a court of 24 . EEFOBMATION OF INSTE,UMENTS, (Part 3 equity will correct in a proper case. Sibert v. McAvoy, 15 111.^ 106. If then the oral agreement in the case at bar had been for the sale and purchase of five tons of steel, and in reducing the contract to writing, the parties had by an unnoticed mistake inserted "fifteen tons" in- stead of "five tons," this would have been mistake of fact entitling the defendant to the aid of a court of equity. In the case at bar the parties actually agreed upon what may, for brevity, be called a conditional purchase and sale, and upon that only. In reducing the contract to writing they, by an innocent mistake, omitted words which would have expressed the true agreement and used words which express an agree- ment differing materially from the only one they made. There is perhaps a distinction between the supposed case and the actual case, but it is quite shadowy. They differ not at all in their unjust con- sequences. In both, by an innocent mistake mutually entertained, the vendor obtains an unconscionable advantage over the vendee, a result which was not intended by eithei'. There exists no good substantial reason as it seems to us why relief should be given in the one case and refused in the other, other things equal. Upon principle then we think a court of equity may correct a mistake of law in a case like the one at bar, and we also think the very great weight of modern authority is in favor of that conclusion. MACOMBER v. PECKHAM. (Supreme Court of Rhode Island, 1889, 16 R. I. 485, 17 Atl. 910.) In this case the oral testimony is offered to show that the defendant agreed by word of mouth to sell and the complainant to purchase a certain tract of land, and that, in consequence of a mutual mistake, the agreement as reduced to writing and signed did not include the whole of it ; and the question is whether the testimony is admissible to show this, in order that the contract may be reformed so as to include the land omitted, and be specifically enforced as reformed. We think it is not admissible for these purposes both on reason and the greater weight of authority. The court, if it were to receive the testimony and use it as proposed, would virtually substitute the original oral agree- ment for the written contract, and enforce it in spite of the statute, which declares that no action shall be brought to charge any person Ch. 6) EEFORMATION 01'' INSTEUMBNTS. 25 on any such agreement. V/hat right has the court to do this? It is argued that the statute was not intended to abridge the ordinary chan- cery jurisdiction in matters of mistake. But why not, if the language imports that it was? ' We have not found this question answered in any of the cases. The great names of Kent and Story are invoked in support of the jurisdiction. Kent and Story say there is no reason why oral testimony should not be received as readily when 'offered by the complainant to reform the written contract, and enforce it when reformed, as w;hen offered by the defendant to defeat its enforcement. This may be so when the written contract is not within the statute of frauds ; but when the contract is within the statute the difference be- tween receiving oral testimony, when offered for the purpose of vary- ing the contract and enforcing it as varied, and receiving it, when offered for the purpose of showing that the contract as written is not what was agreed to and defeating the enforcement, is the difference between doing what is forbidden by the statute and doing what is not forbidden, as was clearly explained in Clinan v. Cooke, supra, and as has been recognized by Story himself. 2 Story, Eq. Jur., sec. 770. The remarks of Kent and Story seem to have been directed against the doctrine of the English chancery . courts, which, as we have seen, is applied to all written contracts, whether within the statute or not, and it does not appear that in making them they gave thought to the dis- tinction enacted by the statute. It is said that it is hard for the complaining party not to have, on proof of the mistake, the same relief which he could have had if no mistake had occurred. Doubtless this is true, but it would also have been hard for him not to have had the original oral agreement specif- ically enforced, without any attempt to put it in writing, if relying on the honor of the person with whom he agreed, he had implicitly trusted that it would be carried out, and had been deceived. There would have been disappointment in both cases, but nothing more than disappoint- ment in either, unless, in consequence of his trust, he had changed his situation for the worse, and this he might have done in either case. Such disappointments are the natural effect of the statute. The purpose of the statute is to avoid the frauds and perjuries, the uncertain and erroneous recollections, and the misunderstandings, which are in- cident to unwritten contracts by making them incapable of enforce- ment; and therefore, when a court receives oral testimony for the 2G EEFOEMATION OF INSTRUMENTS. (Part 3 purpose of showing that, by reason of mutual mistake, the contract, as reduced to writing is not the contract agreed upon by word of mouth, and of having the latter enforced upon proof thereof, it, to that ex- tent, invites the evils which the statute was intended to suppress. The complainant contends that the testimony should be received because it will show that the contract can be reformed, as he desired to have it reformed, by striking out certain words in it as well as by adding (Others to it. We think, however that, if the effect of the change is to enlarge the scope of operation of the contract, it does not matter wheth- er the change is made by striking out words or adding them; for, in either case, the contract will not be the contract which the defendant signed, and will be more burdensome to him. Our conclusion is that the oral testimony is not admissible for the purpose for which it was offered. NOEL'S EX'R V. GILIv. (Supreme Court of Kentucky, 1886, 84 Ky. 241, S. W. 428.) JxJDGi; Bennett. . . The proof is also clear that appellant in- tended to, and did sell to said company, all of the lots on which its road-bed was constructed, in whole or in part, but no more. It is also clear that the deed made by appellant to said company does not embrace, by mistake in the draftsman, all of the lots sold. This mis- take evidently grew out of the fact that neither party knew the identity or quantity of the property sold. The lower court, upon these facts, attempted to reform the deed, so as to make it conform to the terms of the contract made between these parties, by decreeing that appellee, the Louisville & Nashville Railroad Company was entitled to the four lots, Nos. 6, 7, 8 and 9. Appellant has appealed from that judgment. The first question pre- sented is, had the court the power to reform the deed, and make it conform to the terms of the contract? That question being decided affirmatively, the second question is, did the lower court reform the deed on equitable principles to both parties? All mistakes occurring in agreements, executed or executory, relate either, first, to the terms of the contract, or, second, to the subject- matter of the contract. The terms of the contract may be stated ac- Cll. 6) BEFOEMATION OF INSTRXJMENTS. 27 cording to the intention of the parties, but there is an error of one or both in reference to the property to which the terms apply — such as a mistake in reference to its identity, situation, boundaries, title, quantity or value. Here the terms of the contract were, the sale to appellee's vendor of all the lots owned by appellant, on the north side of Main Cross street, over which the road-bed was constructed in whole or in part. The mistake occurred in reference to the identity, location and number of lots included in the terms of sale. The appellant's attorney suggests that, although the mistake may exist as to the subject-matter of the contract, yet as the statute of frauds requires the contract to be in writing, parol evidence can not be heard to correct the mistake, because that would be virtually making a con- tract by parol evidence that the statute of frauds required to be in writing. The courts of a few of the States have held that contracts required by the statute of frauds to be in writing could only be corrected in the single instance of a mistake in reference to the subject-matter of the contract, where the error consisted in including more, for instance, land, in the written contract, than the parties intended, in which case parol evidence might be used to show that the surplus should be omitted or eliminated from the contract as written, and confine the operation of the contract to the remaining subject-matter mentioned in it, and to which the parties intended the contract to apply. The reason assign- ed for thus limiting the reformation of a contract required by the statute of frauds to be in writting is, that parol evidence in that case does not conflict with the statute of frauds, since the relief does not make a parol contract required by the statute of frauds to be in writing, but simply narrows a written one already made. The courts of the States that have put the most stress on this doc- trine had no general equity jurisdiction, but only such limited equity jurisdiction as the statutes of the State conferred upon them. This view of the question, therefore, grew out of that fact, A few other States, however, with general equity jurisdiction, followed in the same line of thought. On the other hand, the courts of a large majority of the States have held that contracts required by the statute of frauds to be in writing may be reformed by courts of equity, so as to enlarge or restrict the 28 EEFORMATTON" OF INSTB^UMENTS. [ Part 3 terms or the subject-matter of the contract whenever it is clearly shown that the written contract, by fraud or mistake, does not embrace either the terms or the subject-matter of the contract, as it was intended and understood by the parties to it. The courts of equity go upon the ground that the statute of frauds is no real obstacle in the way of administering equitable relief, so as to promote justice and prevent wrong, They do not overrule the statute, but, to prevent fraud or mistake, confer remedial rights which are not within the statutory prohibition. In respect to such needful remedies, the statute as to them "is uplifted." It has also been said, that in case of a written conveyance of land, which does not convey as much land as was agreed, or different or more land than was intended by the parties, the court will fasten a personal obligation upon the party benefited by the mistake to correct it, upon the ground that he was holding the property as trustee. Whether the parol evidence offered to correct the writing on ac- count of fraud or mistake shows the verbal contract to be broader than the written instrument — covering more or a different subject-matter, or enlarging the terms — or is narrower than the written instrument, either in the terms or subject-matter of the contract, courts of equity ■ will grant relief by reforming the contract, so as to prevent fraud or mistake. The statute of frauds, in granting such relief, is not violated, but is "uplifted," that it may not perpetrate the fraud that the L,egis- lature designed it to prevent. . We think the court did right in reforming the deed to make it conform to the contract of the parties. SHERWOOD V. SHERWOOD. (Supreme Court of Wisconsin, 1878, 45 Wis. 367.) Eyon, J. . . 1. An extended examination of the cases and authorities bearing on the question, not only those cited by both of the learned counsel, but many others not cited, has satisfied us that it is not a proper exercise of the powers of a court of equity to reform a will by adding provisions thereto to make the will accord with the real intentions of the testator. Ch. 6) EEFOBMATION OF INSTRUMENTS. 29 We have seen but a single case in which a court has assumed to correct a mistake in a will. That is the case of Wood v. White, 32 Me., 340. The will contained this bequest: "I give to J. Wood, of Belfast, the whole amount, principal and interest, he may owe me at the time of my decease, which is secured to me by mortgage," etc. The facts were, that no person named J. Wood owed the testator, or ever had any dealings with him, or claimed the legacy. The complainant, George Wood, of Belfast, was married to the testator's niece, was his warm personal friend, and owed him a debt secured by mortgage. The exec- utors, who were the defendants in the action, answered admitting that the testator intended George instead of J. Wood, and did not con- test the action. Besides, it appeared that the testator, when abroad, had addressed letters to the complainant by the name of J. Wood. On these facts the courts decreed that the will be corrected. The opinion contains neither argument nor reference to authority, and the case cited to support the decree do not support it. The case was a proper one for construing the will as containing a legacy to George Wood; but the decision is of little value as authority for reforming wills. Judge Story says, in a general way, that courts of equity have juris- diction to correct wills ; but it is apparent from his discussion of the subject and the cases which he cites, that he does not mean that the court will reform and change the language of a will, but that it will carry out the intention of the testator in a proper case by giving con- struction to the words of the will in accordance with such intention. He says: "In regard to mistakes in wills, there is no doubt that courts of equity have jurisdiction to correct them when they are apparent on the face of the will, or may be made out by a due construction of its terms ; for in cases of wills the intention will prevail over the words. But then the mistake must be apparent on the face of the will, other- wise there can be no relief." . . The reason why courts of equity will not interfere in such cases seems to be, that an action to reform a written instrument is in the nature of an action for specific performance, and the making of a will being a voluntary act, there is no consideration, as in actions to reform deeds or contracts, to support the action. Hence it is said in a note by the editor of Wigram's treatise on extrinsic evidence in aid of wills, that "volunteers under wills have no equity whereon to found a suit for specific performance." O'Hara's 2d Am. ed. 47. 30 EEFOEMATION OF INSTRUMENTS. (Part 3 There is another reason why a court of equity should not reform a I will by correcting a mistake therein, after the will has been admitted to probate. Such probate is the judgment of the court that the instrument, just as it is written, is the last will and testament of the testator ; and on well settled principles that judgment cannot be attacked collaterally. While the judgment of the proper court admitting the will to probate remains in force, no court is authorized, in the absence of fraud, to adjudge that the instrument, or any of its provisions, is not the will of the testator. Neither can it add provisions not written in the will. It can only construe the instrument as it is written. POTTER V. POTTER. (Supreme Court of Ohio, 1875, 27 ©. St. 84.) Day, J. The original action was brought by the plaintiff against the defendant, to recover the balance due on a promissory note. The defendant answered that the note in suit was the only one remaining un- paid of several notes given by the defendant's testator to the plaintiff for a farm; and she avers that said notes were, by mistake, given for five hundred dollars too much, and asks to have the mistake corrected. The plaintiff replied, denying the mistake. This was the issue to be tried, and the case having been appealed to the District Court, was, by that court, decided in favor of the defendant, and a decree correcting the mistake was rendered accordingly. The plainitiff filed a motion for a new trial, on the ground that the finding of the court was against the law and the evidence. The motion was overruled, and a bill of exceptions embodying all the evidence was taken. . To reverse the judgment rendered by the District Court in favor of the defendant, the plaintiff took the case, by petition in error, to the Supreme Court. The question for our determination, then, is whether the District Court erred in finding upon the evidence that there was a mistake in the amount specified in the notes in controversy.- This question, under a well-settled rule, applicable to the review, of facts on error, can not be affirmatively answered, unless .the finding Ch. 6) EEFORMATION OF INSTEUMENTS. 31 was manifestly unwarranted by the evidence. But, in determining whether the finding is supported by the evidence, reference 'must be had to the character of the issue to be tried, and the degree of evidence required by law to warrant an affirmative finding. When the reformation of a written instrument is sought on the ground of mistake, the presumption is so strongly in favor of the in- strument, that the alleged mistake must be clearly made out by proofs entirely satisfactory, and nothing short of a clear and convincing state of fact, showing the mistake, will warrant the court to interfere with and reform the instrument. This principle rests upon the soundest reason and upon undisputed authority, and if not adhered to by the courts, or when plainly disregarded, is not enforced by reviewing courts, the security and safety reposed in deliberately written instruments will be frittered away, and they will be left to all the uncertainty in- cident to the imperfect and "slippery memory" of witnesses. The evidence produced by the parties was conflicting, and, viewed in the light of the corroborating circumstances, leaves the mind, to say the least, doubtful of the existence of the mistake alleged. It is quite inanifest that the mistake was not made out by the clear aand convinc- ing proof which the law requires to warrant the finding of a mistake in the instruments in controversy. This case is distinguishable from that of Clayton and wife v. Freet et al., 10 Ohio St. 544, where the evidence was such as to leave the mind impressed with the belief that the alleged mistake existed, and the doubt arose only as to whether it was proven with sufficient clear- ness. In such a case, the court held the judgment based on the finding of the mistake should not be reversed on error. But in this case, the doubt arises, not only as to whether the mistake was proven with suffi- cient clearness, but as to whether it should be regarded as proved at all, by a fair preponderance of the evidence. However this may be, wc think it is manifestly clear, from the evidence, that the court disre- garded the rule of law requiring clear proof, and its finding can be sustained only upon the supposition that it regarded the law as re- quiring npthing more than a mere preponderance of evidence to war- rant a finding in favor of the alleged mistake. We think, therefore, that the court erred in applying the law to the facts of the case, and for that reason should have granted the motion for a new trial. Judg- ment reversed and cause remanded. 32 EEFORMATION OF INSTRUMENTS. (Part PARISH V. CAMPLIN. (Supreme Court of Indiana, 1894, 139 Ind. 1, 37 N. E. 607.) McCabEj J. . . The principal controversy is over the first con- clusion of law stated, to the effect that the appellee Camplin is en- titled to a reformation of the deed. It is contended by appellants that because the names of Mary Goodwine and her husband were left out of the body of the deed, it was no deed at all as to her, and it could not be reformed, and they cite Cox v. Wells, 7 Blackf. 410, in support of that proposition. It was held in that case, and we think correctly, that a deed tendered under a contract to execute a deed with relinquishment of dower, which did not contain the name of the wife in the body of the deed was insufficient. But there was no claim of mistake in that case, and no attempt at reformation. The other cases cited by appellants have no application here. It is contended by appellants that the deed of a married woman can not be reformed on account of a mistake, except as to a matter' ^ of mere description of the premises intended to be conveyed, and they cite a large number of cases in this court to the effect that equity affords no relief against such a mistake. Hamar v. Medsker, 60 Ind. 413 ; Carper v. Hunger, 62 Ind. 481 ; McKay v. Wakefield, 63 Ind. 27 ; Wilson, Admr., v. Stewart, 63 Ind. 294 ; Baxter v. Bodkin, 25 Ind. 172; Shumaker v. Johnson, 35 Ind. 33; Behler v. Weyburn, 59 Ind. 143 ; Dunn v. Tousey, 80 Ind. 288 ; Travellers' Ins. Co. v. Noland, 97 Ind. 217. But none of these cases holds that a married woman's deed can not be reformed for other mistakes than those of description of the premises intended to be conveyed. If the deed of a married woman may be reformed on account of a mistake in the description of the premises or estate, or interest intend- ed to be conveyed, as is decided in the cases cited, no good reason is perceived why it may not be reformed as to other mistakes therein. This is not a case like Baxter v. Bodkin, 25 Ind. 172 ; Stevens v. Parish, 29 Ind. 260, and other cases referred to by appellants' counsel where the defect in the conveyance sought to be cured was the failure of the husband to join in the deed of his wife. Such a defect can not be cured either by equity or by the voluntary action of the husband Ch. 6) EEFOEMATION OF INSTKXJMENTS. 33 in the execution of another separate deed on his part to the same person for the same premises as those contained in the wife's deed. The reason of this is that the statute provides that the "wife shall have no power to encumber or convey such (her) lands except by deed in which her husband shall join." 3 Burns' R. S. 1894, section 6961 ; R. S. 1881, section 51-16. Those cases correctly hold that on account of that statute the separate deed of the wife is absolutely void. If the instrument is absolutely void, it is as if it never had been written, or signed. In that case to reform it would be to make a deed for her, by a court of equity, that she never made, and no part of which she ever made. Here the defect does not arise out of the fact that the attempted conveyance was one which a statute expressly forbids, and renders therefore absolutely void. The attempted conveyance was in all respects lawful had the contract been carried out without the inter- vention of a mistake. It has been held by this court that a mistake in a deed of a married woman may be reformed so as to make it conform to the intention of the parties thereto, and that such ref- ormation is not the making of a new contract by the court for her. which she herself has not made, as contended by the appellants. Styers V. Robbins, 76 Ind. 547; Comstock v. Coon, 135 Ind. 640. The cases on the subject of reformation as to the description of the estate or interest intended to be conveyed, already cited above, fully justify the conclusion of law that the deed ought to be reformed so as to make it a conveyance of the undivided four-fifths. And even though the parties may have known that the deed read three-fifths instead of four-fifths, those cases hold that it would constitute a mistake of facts, and not a mistake of law, if the parties really thought the deed sufficient to convey the four-fifths, and would entitle the appellee Camplin to a reformation in that respect. The finding is that they did all so believe. But it is contended, with much zeal and ability on behalf of appel- lants, that the omission of the names of Mary M. Goodwine and her husband from the body of the deed rendered it a mere nullity as to them, and hence the?re could be no reformation as to them ; and to re- form the deed in that respect would amount to the making of a con- tract or deed for Mrs. Goodwine and her husband which they never themselves made. 3 Eq— 3 34 EEFORMATION OF INSTRUMENTS. (Part o Many authorities are cited to the effect that the grantor's name must be in the body of the deed, or it will be void. We do not stop to determine whether that is the legal effect of leaving out of the body of the deed the name of the grantor or not; if it was competent and proper to reform the deed so that the names of the Goodwines would appear therein, as was done, that is sufficient to uphold the judgment of the trial court. That question has been settled by this court against appellants, in Collins v. Cornwell, 131 Ind. 20. In that case a married woman had undertaken to mortgage her real estate for money borrowed by herself. Her husband joined with her in the execution of the mort- gage, but his name nowhere appeared in the body thereof, and ap- peared only where he signed it with his wife and in the certificate of acknowledgment by the notary public, just as in the case at bar. The mortgage was reformed on the ground that the husband's name had been omitted by the mutual mistake of all the parties. See, also, Calton v. Lewis, 119 Ind. 181. SHROYER V. NICKELL. (Supreme Court of Missouri, 1874, 55 Mo. 364.) Sherwood, J. . . . The reformation of deeds and of contracts, whether sealed or otherwise, executed or merely executory, is one of the most familiar doctrines pertaining to equity jurisprudence. But it is to be observed of this power of reforming instruments, that it always has for its basis the fact that the parties thereto are capable of making a valid contract. This capability cannot be, in general, affirmed of a married woman. The only exception to this rule of incapacity, so far at least as it concerns her individual rights, is where a feme covert contracts with regard to her separate estate ; for in respect to that, she is held a feme sole by courts of equity. But beyond this, the original inability to make a binding contract still exists in all its ancient vigor, save where modified by statute. ' It was one of the fundamentals of common law, that the contract of a feme covert was absolutely void, except where she made a conveyance of her estate by deed duly acknowledged, or by some matter of record ; and this Ch. 6) EEFORMATION OF INSTRUMKNTS. 35 could only be done after private examination as to whether such con- veyance was voluntarily made; and our statutory mode, whereby the deed of a married woman is executed and acknowledged, is but substitutionary of the common law method in this regard. This is the only change that our statute has wrought. It follows as an inevitable sequence from these premises, that, aside from the exceptional case above noted, a feme covert is utterly incapable of binding herself by a contract to convey her land, either at law or in equity, except by compliance with the prescribed statu- tory forms. An attempted contract on her part is not such compliance, nor is her disappointed intention to convey clothed with those forms. MIIvLS V. LOCKWOOD. (Supreme Court of Illinois, 1866, 43 111. 111.) BrEESE, J. — This was a bill in chancery, exhibited in the Marshall Circuit Court by Ralph Lockwood against Elisha S. Mills and others, to reform a deed and to enjoin proceedings in an action of ejectment, brought by the defendants against complainant. . . . On the point of laches, in not resorting to this remedy at an earlier period, the answer is, the statute of limitations has not run against the complainant, and he has been, all the time since his purchase, in the peaceable possession of the lands. He was in no position to act ; he could only be quiet, awaiting the attack of those who supposed they had paramount title. In such case, the lapse of time is not material. So soon as the heirs at law of Cephas Mills brought their action of ejectment and recovered a verdict, then complainant filed this bill al- leging the mistake, and seeking to correct it. He had no motive to move before he was molested. If there be any laches, is it not rather im- putable to the heirs, who slumbered on their rights, if they had any, so many years? It is not understood that a statute of limitations, or rule of limitation in equity, runs against a possessor of real estate, but it runs against him who is out of possession. Barbour v. Whit- lock, 4 Monroe, 197. The case of Lindsay v. Davenport, 18 111., 381, is like this, only that the mistake was corrected in favor of the grantor after the lapse 36 EEFORMATION OF INSTK,UMENTS. (Part O of twenty-two years, he all the time having remained in possession of the tract he had by mistake included in his deed, and no rights of third parties had intervened. BREEN V. DONNELLY. (Supreme Court of California, 1887, 74 Cal. 301, 15 Pac. 845.) McFarland, J. This is an action to reform a deed. . . This case has been argued by counsel for appellants upon the theory that there should be applied to it the rule that where coterminous owners of land establish a boundary ling between them, and acquiesce in its correctness during the period of statutory limitation, such line can not afterward be disturbed. Such is certainly the general rule in actions of ejectment to quiet title, etc., although it is, perhaps, not definitely settled to be the rule, even in those cases, when there has been a mutual mistake. (See Shells v. Haley, 61 Cal. 157, and Smith v. Robarts, 8 West Coast Rep. 503.) But this is an action to reform a deed, — ^to correct a mistake in a written instrument and make it con- form to the real intent of the parties. That a court of equity has power to correct such a mistake, in a proper case, is, of course, be- yond doubt, and that the facts here make a proper case is equally clear. It is established beyond doubt that the two tenants in common intended to convey by deed to each other the half of a tract of land, and that by pure mistake the deed sought to be reformed failed to convey such half. There is no question here of innocent purchasers. Neither are there any equities by reason of defendants having put any ''mprovements on the land not included in the deed. They have had the benefit of the use of the land for pasturage since the date of the deed, and have not expended upon it any money whatever. In good con- science they ought to correct the mistake ; and their only defense is founded upon the naked plea of the statute of limitations. But we think that the action was commenced in time. Section 338 of the Code of Civil Procedure enumerates the kinds of actions which must be commenced within three years ; and subdivision 4 of said sec- tion is as follows : "An action for relief on the ground of fraud or mistake. The cause of action in such case not to be deemed to have accrued until Ch. 6) EEFORMATION OP INSTRUMENTS. 37 the discovery, by the aggrieved party, of the facts constituting the fraud or mistake." In the case at bar, the discovery of the mistake was not made until 1880, at which time the cause of action "is deemed to have accrued." The action was commenced in less than two years afterwards. It was therefore commenced in time, unless the circumstances were such that plaintiff ought to have known the mistake, and therefore should be held in law to have had knowledge of it before the time of its actual dis- covery. But we think that there were no circumstances from which he should be charged with such knowledge. After the 'partition line had been run by a surveyor believed to be competent and honest, and who had been specially employed for that purpose, there was nothing to excite the suspicion of either party that such line did not divide the rancho into two equal parts. Looking at, or walking or riding over, or using for grazing purpose, a tract of land containing over twenty-four thousand acres, would not indicate to any one that it was five hundred acres more or less than the half of another tract con- taining over forty-eight thousand acres. KINNEY V. ENSMENGER. (Supreme Court of Alabama, 1889, 87 Ala. 340, 680, 6 So. 73.) SoMERViLLi;, J. The bill is filed by the appellee, Ensmenger, to reform a land deed recently executed to the appellants, and also the notes given for the purchase money, so as to make the papers show on their face that a vendor's lien was retained in accordance with what is alleged to have been the mutual agreement between the contracting parties. An injunction was prayed and granted, staying the threatened sale of the land in the meanwhile ; it appearing that the purchase- money notes were not yet due, and that the defendants were insolvent. . . . If the facts alleged in the bill are true, the case is clearly brought within the jurisdiction of chancery under the equity head of reformation of written instruments on the ground of mistake or fraud, unless the failure of the complainant to inform himself as to the con- tents of the deed and notes be such culpable negligence as to bar him of his remedy in a court of conscience. The bill avers a distinct agreement between the parties that the deed and notes should show on '^8 EEFOEMATION OF INSTRUMENTS. (Part 3 their face a retention of a vendor's lien, and that the omission of this stipulation from these papers was through the fraudulent collusion of the defendants and one Harrison, who, as real-estate agent, negotiated the sale as attorney in fact of the complainant. . . . The complainant's illiteracy and inability to understand the English language, coupled with his probable confidence in his trusted agent, Harrison, who acted for him in negotiating the sale, are prima facie sufficient, under the facts of this case, to acquit him of such culpable negligence in failing to be informed as to the contents of the deed and notes as would prevent him from obtaining relief in a court of equity. The bill is not wanting in equity, and there was no error in refusing to dissolve the injunction on this ground. The demurrer to it also was correctly overruled. \ PALMER v. HARTFORD INS. CO. (Supreme Court of Connecticut, 1887, 54 Conn. 488, 9 Atl. 248.) Suit for the reformation of a policy of fire insurance and for the recovery of the amount due on the policy when reformed ; brought to the Superior Court in New London County. Pardee, J. The complaint in this case is in effect as follows: Prior to May 15th, 1884, the defendant had issued to the plaintiffs a policy of insurance against loss by fire upon merchandise ; on that day it expired ; on that day the defendant proposed to them to renew the insurance upon the terms and conditions of the expiring policy, the plaintiffs accepted the proposition ; the defendant wrote a policy, delivered it to, and received the premium from the plaintiffs; they, relying upon the fidelity of the defendant to its promise, and supposing the last written policy to contain the same stipulations and conditions as were in the first, omitted to read it. The merchandise was dam- aged by fire on August 17th, 1884; subsequently the plaintiffs for the first time discovered that the last policy contained this condition, which was not in the first. "Co-insurance clause. If the value of the property at the time of any fire shall be greater than the amount of the insurance thereon, the insurer shall be considered as co-insurer for such excess, and all losses shall be adjusted accordingly." In this respect the last Ch. 6) EEFORMATION OF INSTRUMENTS. 39 policy materially differs from the first. The plaintiffs would not have accepted the policy and paid the premium if they had known that it contained this clause; and if the defendant had notified them of its refusal to perform its agreement, they could and would have obtained elsewhere, at the same price, the desired insurance upon the stipulated terms. The defendant refuses either to correct the policy or perform the agreement. The plaintiffs ask that the policy may be reformed so as to express the agreement, and that the defendant be compelled to perform the agreement and pay the indemnity promised by it. The defendant answers by demurrer, assigning therefor the following reasons : "That upon the facts stated the plaintiffs- are not entitled to the relief sought; that the complainant does not aver that there was a mutual mistake between the parties as to the terms of the policy or as to the agreement for one; and that the plaintiffs were guilty of gross laches in not reading the policy, and in not notify- ing the defendant of their claim, so that it might have exercised its right of rescission before loss. . . . It is a matter of common knowledge that a policy of insurance against fire, at the present day, is a lengthy contract, which, after specifying the main things, namely, the subject, its location, the owner, the amount, the time and the price, embodies very many stipu- lations and conditions for the protection of the underwriter. If a person desiring indemnity against loss applied to the underwriter and states the main things above enumerated, and says no more, he has knowledge that he has asked for and will receive a contract which, in addition to those, will contain many limiting conditions in behalf of the party executing it; and when he receives the policy he cannot avoid seeing and knowing that there are many more stipulations in it than were covered by his verbal request. It may well be that a due regard for the rights of others requires him to examine those stipula- tions, and express a timely dissent, or be held to an acceptance thereof. Nothing which has previously transpired between him and the under- writer furnishes justification for omission to read them. The under- writer has not invited his confidence by any promise as to what the writing shall contain or omit. But if the underwriter solicits a person to purchase of him indem- nity against loss by fire, and if they unite in making a written draft of all the terms, conditions and stipulations which are to become a part of or in any way affect the contract, and if the underwriter promises -1-0 EEFOEMATION OF INSTRUMENTS. (Part iJ to make and sign a copy thereof, and deliver it as the evidence of the terms of his undertaking, and if a material and variant condition is by mistake inserted, and the variant contract is delivered, and the stipulated premium is received and retained, the court will not hear the claim that he is entitled to the benefit of the variant condition, where the other party had neither actual nor imputed knowledge of the change. In his promise to make and deliver an accurate copy, there is justification before the law for the omission of the other party to examine the paper delivered, and for his assumption that there is no designed variance. A man is not for his pecuniary advantage to impute it to another as gross negligence, that the other trusted to his fidelity to a promise of that character. The rule of law that no person shall be permitted to deliver himself from contract obligations by saying that he did not read what he signed or accepted, is subject to this limitation, namely, that it is not to be applied in behalf of any person who by word or act has inducted the omission to read. The defendant has brought to our notice a few of the many cases in which the rule has been plainly de- clared ; but we think that in few or none of these did the party seeking to enforce it subject himself to this limitation. There was in the first written draft agreed upon by the plaintiffs and defendant the contract between them ; in all its terms and con- ditions it became, and has hitherto continued to be operative. The draft of another and variant one has not annullel or affected it, because the last has not in the eye of the law been accepted by or become obli- gatory upon the plaintiffs. That contract the defendant had the right to rescind, — a right which it has possessed in its fullest measure be- cause it was not affected by the delivery of the variant one, not ac- cepted by the plaintiffs; and if, because of its own negligence in omit- ting to execute and deliver a true copy of the original agreement, it resulted that it was inducted to refrain from exercising its right of rescissioin, it must accept the consequences rather than cast the burden upon the plaintiffs. GILMORE V. THoilAS. (Supreme Court of Missouri, 1913, 252 Mo. 147, 158 S. W. 577.) Roy, C. — This is a proceeding to quiet the title to twenty acres, the west half of the southwest quarter of the northwest quarter of Ch. 6) EEFORMATION OF INSTRUMENTS. 41 section 28, township 30, range 23, in aid of which an injunction was issued to prevent defendant from cutting timber from the land pending the suit. . . . It is conceded that the land was misdescribed in the will. It was also misdescribed in the executor's deed to Sterling E. Gilmore. Re- gardless of the mistake in the will, the executor's ded did not, to say the least of it, convey the legal title to Sterling, for the simple reason that it did not describe the land, but instead described land six miles away. Whatever right either plaintiff or defendant may have under that deed is an equitable right and not a legal one. We will examine the claim of each to an equitable interest in the land under the execu- tor's deed. 1. The plaintiff claims that he furnished the money, sixty dollars, to pay for the land ; and that the deed was made to Sterling under an arrangement between them that Sterling was to convey it to the plain- tiff. In other words, the plaintiff asks that the conveyance 'to Sterling be upheld, but that Sterling's grantees be adjudged to hold the land in trust for the plaintiff. The trouble with the plaintiff is that, not having clean hands in that matter, he cannot get into a court of equity to have such a trust declared. He was executor of the will; and as such he had no lawful right to purchase the land of the estate directly or indirectly. The doctrine that he who comes into a court of equity must come with clean hands may be invoked by this court on its own motion. I (Creamer v. Bivert, 214 Mo. 1. c. 485.) We, therefore, decline to enforce any equity plaintiff may claim to hold under the sale to Ster- ling E. Gilmore. i STEINBACH v. RELIEF FIRE INS. CO. (Court of Appeals of New York, (1879) 77 N. Y. 498.) Earl, J. In October, 1865, the defendant, a New York corpora- tion issued to the plaintiff' at Baltimore, Maryland, a policy of in- surance against fire on his "stock of fancy goods, toys, and other ar- ticles in his line of business, contained in his store, occupied by him as a Gei^man jobber and importer." . . . 42 REFOEMATION OF INSTBUMENTS. (Part 3 In February, 1869, the plaintiff commenced an action against the defendant, to recover upon the policy for such loss, in the Superior Court of the city of Baltimore. The defendant appeared in that action and procured the removal thereof to the Circuit Court of the United States.- The action was subsequently tried in the latter court, the defense being that the keeping of fire-works was a breach of the policy. The court held that the terms of the policy prohibited the keeping of fire-works, and rejected proof offered by the plaintiff to show that fire-works constituted an article in the line of business of a "German jobber and importer," and judgment was given for the de- fendant. The plaintiff then took the case, by writ of error, to the Supreme Court of the United States, and there the judgment was affirmed. . . . Now the plaintiff has commenced this action to reform the policy by inserting therein permission to keep fire-works, on the ground that such permission was omitted from the policy by mistake, and to re- cover upon the policy as thus reformed. He has thus far been de- feated, on the ground that the judgment in the United States Court is a bar to the maintenance of this action, and whether it is or not is the sole question for our determination. Whatever was necessarily determined in that action concludes the parties, and can never again be brought into litigation between them, so long as the judgment therein remains in force. That is the univer- sal rule always applied, no matter how much injustice may be done in a particular case. Such a rule of law, which generally tends to justice, cannot be changed to meet the exigencies of a case where a different rule would work out juster results. In order to bring a case within the rule, the second suit must be founded substantially upon the same cause of action as the first ; and the test of that is that the same evidence will support both actions ; and the rule is the same, although the two actions are different in form: (Gregory v. Burrall, 2 Edw. Ch., 417; Rice v. King, 7 J. R., 20; Johnson v. Smith, 8 id., 383.) And it matters not that the former action was decided upon erroneous grounds: (Morgan v. Plumb, 9 Wend., 287.) Here there was but one contract of insurance, and the cause of action in the Baltimore suit, as in this, was founded on that. In that suit the plaintiff sought to recover by proving that he was permitted Ch. 6) REFORMATION OF INSTRUMENTS. 43 to keep fire-works. By the same proof he seeks to recover in this. There he sought to prove the permission by parol. Here he seeks preliminarily to have the writing reformed, so that he can prove it by the writing. If he could succeed here, he would in some form have to prove precisely what he offered to prove there, to wit, that he was permitted to keep fire-works. If the plaintiff could succeed in reforming this contract, it would not change its scope or effect. It would, according to the decisions in this State, be the same contract still. The only change would be that the plaintiff would have direct written proof of what, without such reformation, would rest upon con- struction and inference based upon other provisions in the contract, and upon parol evidence. The contract would then be, in its legal effect, the same as that the plaintiff sought to enforce in the former suit. It is admitted by the plaintiff that the judgment against him in the former action is a bar to any recovery in this, unless he can change the contract. Now, what was determined in that action? Clearly that the contract between the parties was such as was embraced in the policy declared on and proved in that action; and that the plaintiff had violated the policy, by keeping the fire-works. Now he seeks to establish, in this action, that that was not the contract, and to have it reformed; and that the real contract beween the parties was not violated. He sought, in that action, to recover for his loss, and gave all the proof he could to show that he was entitled to recover. Now without alleging that there was more than one contract of insurance, or more than one title or right, upon which to base a recovery, he seeks tO) recover for the same loss. This is a case, it seems to me, where the doctrine of res adjudic ata must apply, and bar a recovery, unless plain principles of law, which have always been regarded as important in the administration of justice, are disregarded. According to the case of Washburn v. Great Western Ins. Co. (114 Mass., 175) — in all its essential features Hke this — the plaintiff, having elected to sue upon the contract as it was, and been defeated, is bound by that election, and cannot now maintain this action to reform the contract. The judgment must be affirmed, with costs. 44 EBFORMATION OF INSTRUMENTS. (Part 3 SIBERT V. McAVOY. (Supreme Court of Illinois, 1853, 15 111. 106.) Caton, J. . . We think the complainant has come too late with his bill to correct a mistake in this contract. He brought an action upon that contract, which he prosecuted to final judgment, not only in the circuit court, but in this court also. He declared upon the con- tract as it was written, and in the agreed case admitted, that the work was done under that contract, as declared upon in that action. There was a dispute about the construction of the contract, but none about its terms. He contended then with his witness, that the written con- tract provided the same rule for the measurement of the work which he now insists was the actual agreement of the parties, but which he now says -was left out of the agreement by mistake in drawing it up. In the construction of that agreement the court disagreed with him, and rendered judgment against him upon the contract. The contract then was merged in the judgment, and as a contract, ceased to exist. The trial was upon the entire contract, and left no part of it open to future controversy or adjudication. There is, then, no contract left between the parties, to be reformed and corrected. If there was a mistake in drawing up the contract the party should have had it corrected be- fore he called upon, or, at least, before he finally submitted it to a court for its adjudication. He had no right, first, to go to the court bf law and there try the experiment to see whether he could not get such a construction adopted as would make it embrace all that he contended for, as constituting the agreement of the parties, and failing in that, go into equity to get that inserted in the contract which he insisted was in it before. DAVENPORT V. WIDOW AND HEIRS AT LAW OF SOVIL. (Supreme Court of Ohio, 1856, 6 O. St. 459.) BRiNKERHOFif, J. . . But in this case, the mistake not only occurs in the mortgage, but has been carried into the decree and sale of the premises described in the mistaken mortgage ; and it is contended that the mortgage is merged in the decree, and the decree, satisfied by Ch. 6) EEFOEMATION OF INSTRUMENTS. 45' the sale. And this presents the second question on which we are to pass. Here was a total mistake in the description of the land intended to be mortgaged. The mortgage was intended to embrace premises which the mortgagor did own, but by mutual mistake it described only a parcel of land which the mortgagor never did own, and to which he never had or pretended to have any claim. The demurrer to the petition admits this ; and if it were denied, and clearly and satisfactorily proved, the case would be the same. Let the mortgage be reformed, and made to conform to the intention of the parties ; how then stands the case? The reformed mortgage is not merged in any decree, for there is no decree for the sale of any premises described in the mortgage as corrected and reformed. The decree may be satisfied, at least pr o tant o, to the amount of the sale ; but the decree was based on the mistaken, and not on the true, mortgage ; the sale was of land not embraced in the true mortgage ; no money or other valuable thing was ever received by the plaintiff ; the whole proceeding is infected by the original mistake, and is therefore baseless, unsubstantial, and nugatory. In the conclusion at which we have arrived on the question, we are not without the support of highly respectable authority. The case of Blodgett et al. v. Hobart et al., 18 Vt. 414, presented a question exactly analogous to that now before us, except that there was a decree of absolute foreclosure, instead of a decree for sale of the mortgaged premises, as in this case ; and the misdescription went to a part, instead of the whole, of the mortgaged premises. It was there held that, "if the mistake was mutual, and be not discovered until after a decree of foreclosure has been obtained upon the mortgage, and the time fixed by the decree for the payment of the mortgage debt has expired, and the mortgage be then ordered to be reformed, the decree of fore- closure will be opened, so as to permit the mortgagor to redeem the entire premises by payment of the entire sum due upon the mortgage." And the cautious and carefully considered observations of Ranney, J., in Hollister v. Dillon, 4 Ohio St. 209, are of like tendency. We are of opinion, therefore, that the decree and sale under the mistaken mortgage constitute no just obstacle to the plaintifif's relief, especially as he will, by the record of this case, be forever estopped from claim- ing any title to premises purchased under the decree. 46 BEScissioN. (Part CHAPTER VII. RESCISSION BATES V. BETA VAN. (New York Court of Chancery, 1835, 5 Paige, 299.) The Chancellor. . . . The failure of the title as to an un- divided portion of the premises, by the successful assertion of a claim against which the defendant had agreed to indemnify the complainant, would have been sufficient to enable the latter to resist the making of a decree for a specific performance, upon a bill filed by the vendor. But it does not follow from this, that the complainant may rescind the whole contract, which has been in part consummated by the ex- ecution of the conveyance and the payment of a part of the purchase money. There are many cases in which the court will not lend its aid to compel a specific performance of an executory agreement, in which it would not feel itself authorized to interfere, by decreeing that an executed contract should be rescinded. . . . SECTION I. MISTAKE. KOWAIvKE V. MILWAUKEE ELEC. R'Y. & LIGHT CO. (Supreme Court of Wisconsin, 1899, 103 Wis. 472, 79 N. W. 762.) Plaintiff, a married woman, was injured by jumping from de- fendant's street car, in an emergency, and its liability for her injuries was probable. It appeared, among other things, that she was a woman of intelligence and experience, the mother of three children, and had passed by about a week the proper period of her menstruation. The defendant's surgeon, in company with her own family physician, visit- Ch. 7) MISTAKE. 47 ed her after the accident and learned she was having a sHght uterine hemorrhage. The question of her pregnancy was raised, and an examination to ascertain that fact proposed and peremptorily re- fused, she stating she was not in that condition. Thereafter defendant's surgeon negotiated a settlement, under circumstances showing an entire absence of fraud, and she thereupon joined with her husband in executing a full release of all claims and demands, for damages or otherwise which she then had or could have by reason of jumping from the car. About two weeks thereafter she suffered a miscar- riage. . . . DoDGE^ J. . . . To formulate an accurate and practically ap- plicable definition of the mistake of fact which will warrant rescission of a contract has been apparently well-nigh the despair of law writers. Indeed, no definition or general rule has been invented which is suf- ficient or accurate, except by immediately surrounding it with num- erous exceptions and quahfications more important than itself. This is not surprising, in view of the fact that the whole doctrine is an in- vasion or restriction upon that most fundamental rule of the law, that contracts which parties see fit to make shall be enforced, and in view of the further consideration that' one or both of the parties is often, if not usually, ignorant or forgetful of some facts, thoughtfulness of which might vary his conduct. . . . Another essential element of the definition is that the fact involved in the mistake must have been as to a material part of the contract, or, as better expressed by Mr. Beach (Mod. Eq. Jur., sees. 52, 53), an intrinsic fact ; that is, not merely material in the sense that it might have had weight if known, but that its existence or nonexistence was intrinsic to the transaction, — one of the things actually contracted about. As, in the familiar illustration of the sale of a horse, the ex- istence of the horse is an intrinsic fact. Another partial expression of this requisite, adopted by Mr. Pomeroy (Eq. Jur., sec. 856), is as fol- lows : "If a mistake is made as to some fact which, though connected with the transaction, is merely incidental, and not a part of the very subject-matter or essential to any of its terms, or if the complaining party fails to show that his conduct was in reality determined by il in either case the mistake will not be ground for relief, affirmative or defensive." The last part of this statement is adopted in Klauber v. Wright, 52 Wis. 303, 308 ; Grymes v. Sanders, 93 U. S. 55, 60. 48 EEscissiON. (Part 3 Some illustrative cases of this aspect of the subject may serve to elucidate. The damaged condition of a ship at sea, as to which both parties to her sale are ignorant, held merely a collateral circumstance, and not an intrinsic fact. Barr v. Gibson, 3 Mees. & W. 390. Financial condition of a debtor is not intrinsic to a compromise and release of his debt, so that mistake thereon will justify rescission. Dambmann v. Schulting, 75 N. Y. 55, 63. Ignorance of declaration of peace, greatly enhancing value of merchandise, will not justify rescission of sale. Laidlaw v. Organ, 2 Wheat. 178. Sufficiency of security for a debt purchased as part of firm assets, not intrinsic. Segur v. Tingley, 11 Conn. 134, 143. Certain United States bonds had been extended, and, as a result, were commanding premium in market. Held not "of the essence" of a sale at par, both parties being ignorant as to both extension and premium. Sankey's Ex'rs. v. First Natl. Bank, 78 Pa. St. 48, 55. One who had built a mill partly on land of another pur- chased of that other two lots, both parties supposing them to include the mill, which, however, was found to be on a third lot. Court re- fused to rectify, holding that the contract related to purchase and sale of the lots named, and that, though presence of mill on one of them might have been an important consideration, it was not the fact as to which they contracted, not intrinsic to the transaction. Webster v. Stark, 78 Tenn. 406. Fact that a specific tract of land contains less than supposed, not aflfecting identity of thing purchased, is not "of the very subject-matter of the sale." Thompson v. Jackson, 3 Rand. (Va.), 507. . . Applying the definitions and rules of law above set forth, with their qualifications, to the facts of this case, it is clearly apparent that if there was a mistake, in the sense in which that word is used in the law, the fact as to which such mistake existed was not an in- trinsic one, — it was not of the subject-matter of the contract. There was no mistake or misunderstanding as to the acts of the defendant, nor as to the injuries which the plaintiff had received. The effect of those injuries was, of course, problematical and conjectural. That very uncertainty entered into the compromise made, and was the consideration of a certain sum on one side, and the surrender of any larger sum on the other. The elements of the contract of settlement were : first, whether defendant was liable ; and, secondly, what amount, in view of all the contingencies, should be paid and received in satis- Ch. 7) MISTAKE. 49 faction of such liability, and the question of the plaintiff's condition, whether pregnant or not, was merely a collateral question. It was no part of the injury caused by defendant, nor anything for which damages should be paid. At most, it was but one of the surrounding conditions which might or might not increase the effect of the injuries. It is probably true, in the great majority of personal injury cases, that the effect which the injuries received may have, as to time of disability, quantum of suffering, and the like, may be modified by the physical or mental condition of the injured party. For example, a pre- disposition to rheumatism would be a condition likely to enhance the subsequent effects of an injury, — especially a dislocation or other in- jury to a joint. A disturbed condition of the system might prevent the reuniting of a broken bone, otherwise practically certain. A pre- disposition to nervous troubles might vastly multiply the effects of a .slight spinal injury. So that if the mere ignorance of such surround- ing conditions can suffice to render ineffective a settlement, because after events indicate that the amount paid is inadequate, few compro- mises of the damages from personal injury could be relied on. Com- promise is highly favored by the law, and any rule or doctrine by which the fair meeting of the minds of the parties to that end, in the great majority of cases which arise in human affairs, must fail to be per- manent or effectual to settle their rights, is contrary to the whole spirit of the law, and should not be adopted. The question in each such case is, did the minds of the parties meet upon the understanding of the payment and acceptance of something in full settlement of de- fendant's liability ? If they did, without fraud or unfair conduct on either side, the contract must stand, although subsequent events may show that either party made a bad bargain, because of a wrong estimate of the damage which would accrue. . . DAMBMANN v. SCHULTING. (Court of Appeals of New York, 1878, 75 N. Y. 55.) This action was brought to set aside a release under seal, and to recover a balance alleged to be due plaintiff for money loaned defend- ant by the firm of C. F. Dambmann & Co., of which firm plaintiff was a partner, and to whose rights he succeeded. 3 Eq- ■ 50 EEscissiON. (Part 3 Earl, J. Prior to 1866, the defendant had for many years been a merchant extensively engaged in business in the city of New York. In February of that year, he had become financially embarrassed, and contemplated an assignment for the benefit of his creditors. He was finally dissuaded from making an assignment by the promise of his creditors to loan him the sum of $100,000 to aid him in meeting his obligations. There was evidence tending to show that the sums thus to be loaned were to be repaid when he became able ; but he testified that it was to be optional for him to repay them, in case he paid the debts, which he then owed, in full. ,3)i*e court at Special Term found that the arrangement was that he was to repay these sums when he became a ble.j In pursuance of this arrangement, the firm to which plaintifif belonged, and to whose rights he had succeeded, loaned de- fendant. $10,000. On the seventh day of March, 1867, defendant had paid in full all the debts he owed when the money was loaned to him, and then, at his request, all the creditors who made the loans executed and delivered to him an instrument of which the following is a copy, towit: "We the undersigned agree, in consideration of one dollar paid to us, to discharge H. Schulting from the legal payment of the money loaned to him February first, 1866, said Schulting giving his moral obligation to refund the said money, in part or whole, as his means will allow in future." This was not a sealed instrument, and was executed upon the request of the defendant, upon the claim by him that he had done as he had agreed when the money was advanced to him. It was the clear intention of the parties, by this instrument, to discharge the defendant from all legal obligation to pay the money advanced, leaving an obligation simply binding upon his conscience, but not enforceable at law, to pay when he became able, in whole or in part. If this instrument had been under seal or based upon a sufficient consideration, no proceedings in law or equity could have been there- after taken to enforce payment against the defendant. But according to the finding of the Special Term, before the execu- tion of this instrument, the defendant was legally liable to pay when he became able, and this liability was not discharged by this instrument, for the simple reason that it was not based upon any consideration. It was not in the nature of a composition of a debtor with his creditors, and cannot be sustained upon the principles applicable to composition agreements. It does not even appear that each creditor signed it upon the consideration that other creditors would also sign it. It was a Ch. 7) MISTAKE. 51 mere agreement to discharge debts without payment, and such an agreement cannot be upheld. . . . The defendant knew as early as the eighth day of ' October, 1868, that goods to the amount of $400,000 had been sold, and that some yet remained to be sold. On the last-named day he went to the plaintiff and said to him that he understood that the previous paper signed by him — ^the discharge above set out — was not a legal release, because he had not paid anything on account of the $10,000, and he wanted to know if the plaintiff would sign a legal release, upon pay- ment of $5,000. The plaintiff said he would. Nothing more was said, and defendant paid him $5,000 ; and then the plaintiff executed to him, under seal, a full and absolute discharge from all liability. This action was brought to set aside this release and to recover the balance of the $10,000. . . . It is further claimed that the plaintiff ought to be entitled to relief on account of mistake. He testified that he would not have executed the release if he had known the defendant's financial con- dition. But as already shown, the defendant was in no way responsible for his ignorance, and was under no legal or equitable obligation to disclose the facts as to his pecuniary circumstances. The plaintiff could have learned the facts by inquiry of the defendant or his vendees. There was no mistake as to any fact intrinsic to the release. Plaintiff knew that the defendant had not been legally discharged from his liability, and that for the $5,000 he was to give him an absolute re- lease ; and he gave him just such a release as he intended to. There was no mistake of any intrinsic fact essential to the contract or involved therein. The defendant's financial condition was an extrinsic fact, which might have influenced the plaintiff's action if he had known it. But ignorance of or mistake as to such a fact is not ground for af- firmative equitable relief. The following illustrations of mistakes as to intrinsic facts essential to contracts, against which courts of equity will relieve, are found in the books. A. buys an estate of B. to which the latter is supposed to have an unquestionable title. It turns out, upon due investigation of the facts, that B. has no title; in such a case, equity will relieve the purchaser and rescind the contract : Bing- ham V. Bingham (1 Vesey, 126). If a horse should be purchased, which is by both parties believed to be alive, but is, at the time, in fact dead, the purchaser would, upon the same ground, be released by 52 EEScissiON. (Part 3 rescinding the contract: Allen v. Hammond (11 Peters, 71). If a person should execute a release to another party upon the supposition, founded on a mistake, that a certain debt or annuity had been discharged although both parties were innocent, the release would be set aside : Hore V. Becher (12 Simons, 465). If one should execute a release so broad in its terms as to release his rights in property, of which he was wholly ignorant, and which was not in contemplation of the parties at the time the bargain for the release was made, a court of equity might either cancel the release or restrain its application as intended: (Cholmondeley v. Clinton, 2 Meriv., 352; Dungey v. Angove, 2 Ves., 304). On the other hand, if the vendee is in possession of facts which will materially enhance the price of the commodity and of which he knows the vendor to be ignorant, he is not bound to communicate those facts to the vendor, and the contract will be held valid : Laidlaw v. Organ (2 Wheat., 178). In such a case the facts unknown to the vendor are extrinsic to the contract and are not of its substance; and hence there is no grouncj for the interference of a court of equity. It is clear from these, and other illustrations which might be given, that a court of equity will not give relief in all cases of mistake. There are many extrinsic facts surrounding every business transaction which have an important bearing and influence upon its results. Some of them are generally unknown to one or both of the parties, and if known might have prevented the transaction. In such cases, if a court of equity could intervene and grant relief, because a party was mistaken as to such a fact which would have prevented him from entering into the transaction if he had known the truth, there would be such un- certainty and instability in contracts as to lead to much embarrassment. As to all such facts, a party must rely upon his own circumspection, examination and inquiry ; and if not imposed upon or defrauded he must be held to his contracts. In such cases, equity will not stretch out its arm to protect those who suffer for the want of vigilance. GOULD V. EMERSON. (Supreme Court of Massachusetts, 1894, 160 Mass. 438, 35 N. E. 1065.) Bill in equity, filed in the Superior Court, for the correction of a mistake made in settling the accounts of a partnership between the parties, for the surrender and cancellation of a promissory note given Ch. 7) MISTAKE. 53 in pursuance of such settlement, and for the payment of the sum found due to the plaintiff upon the taking of an account. . . . Allen^ J. There was a plain mistake in the giving of the note for $10,000 to the defendant. It should have been for only $5,000. There was no fraud, but it was a case of mutual mistake as to the manner of carrying out what had been settled and agreed on. Upon dissolving the partnership between the plaintiff and the defendant, the plaintiff was to take the goods on hand and pay the defendant for his interest therein. The value of the goods was fixed at $16,000, and the plain- tiff gave to the defendant his note for $8,000, and this has been paid. There was no mistake as to this. But the plaintiff had with- drawn from the funds of the firm $10,000 more than the defendant had, and to make this right between the parties the plaintiff would have to restore the $10,000 to the firm, or pay the defendant for his share thereof, which would be $5,000. Instead of doing this, by sheer inadvertence or ignorance of what is plain when you come to look at it carefully, the plaintiff gave his note for $10,000 to the defendant. This gave to the defendant the whole of a sum which belonged to the firm, and which he was entitled to only one half of. The mistake, though gross, was mutual and innocent ; and the plaintiff at any time upon discovering it might had had a bill in equity for relief against it. Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290, 319, 320; Canedy v. Marcy, 13 Gray, 373; Wilcox v. Lucas, 121 Mass. 21; Goode V. Riley, 153. Mass. 585; Beauchamp v. Winn, L. R. 6 H. I,. 223; Daniel v. Sinclair, 6 App. Cas. 181, 190, 191; Paget v. Marshall, 28 Ch. D. 255. And though the contract has been executed, a court of equity may grant relief, and decree repayment of money so paid by mistake. Tarbell v. Bowman, 103 Mass. 341 ; Wilson v. Randall, 67 N. Y. 338 ; Paine v. Upton, 87 N. Y. 327. . . . GEE V. SPENCER. (In Chancery, 1681, 1 Vern. 32.) A man possessed of a lease for three lives of the rectory of Orpin^g- ton in Kent, devised the rectory by his last will ; but that being void, it came to his three daughters as coheirs knd special occupants. There 54 EEScissiosr. (Part 3 being a suit touching this rectory in Chancery, the husband of one of the daughters fearing to be in law, and being made to believe, that he should be forced to pay costs, releases the arrears that should be coming to him for his share in the rectory to the other sisters, who were to bear the charge of the suit ; his share of the arrears amounted to £1000. This release was set aside, and Luxford's case cited that a misappre- hension in the party shall avoid his release. BROUGHTON v. HUTT. (In Chancery, 1858, 3 DeG. & J. 501.) This was an appeal from a decree of Vice-Chancellor Stuart direct- ing a deed of indemnity to be delivered up to the cancelled, as having been executed under mistake of fact and law. The plaintiff was the heir-at-law of his father John Vickery Brough- ton, who had been a shareholder in the Western Australian Company. This was a company formed for the purpose of purchasing lands in. Western Australia. The deed of settlement of the company, dated the 1st of March, 1841, provided among other things as follows: "That every shareholder of the company, his executors or administrators, as between him and the other shareholders and their respective executors and administrators, shall be liable for or in respect of the calls, debts, losses, and damages of and upon the company in proportion to his joint or separate share and interest for the time being in the funds or property of the company, but not further or otherwise." The 103rd article provided as follows : "That all the property of the company shall be deemed personal estate and be transmissable as such, and shall not be deemed to be of the nature of real property." The plaintiff's father died in June, 1850, having made a will dated the 18th of April, 1850, which did not, however, mention the shares. He appointed his wife and his two daughters executrixes of his will, which was proved by the wife alone. Under an erroneous impression that the shares were in the nature of real estate, it was considered by the plaintiff and the executrix that the testator died intestate as to them, and that they belonged to the plaintiff as his heir-at-law. The defendants, who were trustees of the Ch. 7) MISTAKE. 55 company, knew of the death of the testator shortly after it took place, and before the date of the indenture next mentioned, and re- ceived from his executors in that character a payment on account of a call. The company having become involved in pecuniary difficulties, an indenture was executed by the defendants, by the plaintiiif and by several shareholders, and was dated the 30th of May, 1853. It recited that the several persons, parties thereto, of the first part, of whom the. plaintiff was one, were respectively .shareholders in the company. By the witnessing part each of the parties of the first part thereby for himself, his heirs, executors, or administrators, but not further or otherwise, or the one for the others or any other of them, covenant- ed with the parties of the second part, their executors, administrators, and assigns, and with each of them, his executors, administrators, or assigns separately, that in the event of certain loans being raised as in the deed mentioned, and in the events of the personal guarantees of the said persons, parties thereto, of the second part, or any of them, being given for the repayment thereof, and of any loss or damage what- soever being occasioned to the person or persons giving such guarantee, or any of them, or the heirs, executors, or administrators of them, or any of them, by reason of such guarantee, then and in such case and whensoever the same should happen, he, the said covenanting party, his heirs, executors, or administrators, would ratably, and in pro- portion to the number of shares set after his name, and within the limit thereinafter mentioned, indemnify and reimburse such persons or person incurring any such loss or damage, their or his heirs, execu- tors, administrators, or assigns, respectively, from, for, or against the same. The plaintiiif stated in his bill and affidavit, that when he executed this deed be believed that the three shares which had been purchased by his late father belonged to him as his fathers' heir-at-law, and exe- cuted the deed under that belief and in ignorance of the provisions and contents of the deed of settlement; that it was not until the month of November, 1857, that he became aware that the shares did not devolve upon him. That, in consequence of the company's solicitors applying for payment of the sum of £600, the plaintiff consulted his solicitors, and then, for the first time, was advised that he had no right to the shares, and that it was not until the actions about to be 56 BEScissioN. (Part 3 mentioned were commenced against him that the plaintiff became aware of the provisions oi the deed of settlement, or in particular of the articles above set out. . . . The Lord Justice Knight Bruce. Whether the plaintiff has a case for relief at law as well as in equity, I will give no opinion; but certainly he has a case for equitable relief, whether he has incurred any legal liability by executing the deed or not. It is unimportant for all the purposes of this suit whether the plaintiff is under legal liability or not. I doubt whether he is ; but, however that may be, it makes no difference to his claim to relief in equity. It is evident that he executed the deed under a mere mistake of law and fact. Were the defendants aware of the real circumstances of the case when they procured the execution of this deed by the plaintiff, with no knowledge on his part of its contents except such as might have been obtained from reading it for the first time in the room ? It is impossi- ble that the defendants can be heard to say that they were not them- selves aware of the circumstances. Probably, independently of the payment of the call by persons who are called in the books of the company "executors," I should have come to the same conclusion, but that fact is decisive. The defendants could not but have known that the plaintiff was not a shareholder, and they ought not to have al- lowed him to sign the deed, without apprising him of the fact. I am not convinced that any damage has accrued or will accrue to the de- fendants by reason of the plaintiff having executed the deed. But, assuming that some damage has accrued or may accrue to them, it is damage which, with the knowledge of the circumstances of the case, they have brought, or will bring, upon themselves. It seems to me a plain case for relief, and the appeal must therefore be dismissed with costs. CLOWES v. HIGGINSON. (In Chancery, 1813; 1 V. & B. 536.) The Vice Chancellor. I feel great difficulty in compelling the Defendants to convey upon the terms now proposed. I do not under- stand the bill, taken altogether, as meaning that the Plaintiff is ready Oh. 7) MISTAKE. 57 to perform the agreement according to any construction the Court may put upon it ; throwing the construction upon the Court. The Plain- tiff has uniformly contended, both at the Rolls and here, from the commencement of these suits to the last decree, that he never made, or intended, any agreement but to take the estate with the timber upon' it, with the exception of Lots 4 and 5 ; and as evidence of that he adduces this paper ; to make out his construction. This is not like the case, to which it has been compared ; a Plaintifif calling upon the Court to construe and execute a will according to the true construction ; sug- gesting that, which he conceives to be so ; but this Plaintiff merely submits to perform the agreement, as he intended it ; according to the true intention, as he represents it ; that is, to have the timber with the estate ; never meaning to pay for the timber separately. The De- fendants insist on the contrary construction, as that„ which was in- tended by them. Though there is but one paper referred to, contain- ing the particulars, conditions, and declarations, in truth there are two distinct and opposite agreements, one insisted on by each party, as evidenced by that paper ; the one including, the other excluding, the timber. In such a case of mutual mistake, the one not intending to sell what the other meant to buy, the Court, feeling the injustice of giving to either a performance upon terms to which the other never agreed, has come to the conclusion, that there is no contract between them ; that they did not rightly understand each other ; and therefore it is not possible without consent to compel either to take what the other has offered. This Plaintiff having uniformly up to the hearing insisted on his construction, as the only contract between them, not offering to take up the other construction, which the Defendant was at one time willing to have performed, it is perfectly different from calling upon the Court to declare the true construction, and submit- ting to perform according to that. The Court, having in both instances considered the transaction as too ambiguous to form the foundation of a contract, cannot now take this passage in the answer as the ground of a decree for specific performance against the will of the Defendants ; and compel them to accept terms which they once offered, but to which the other party would not then consent. The bill must therefore stand dismissed without costs. 58 EEscissiON. (Part 3 LYMAN V. UNITED INSURANCE COMPANY. (New York Court of Errors, 1819, 17 Johns. 373.) SpEncBR, Ch. J. The principles which must govern this case are, in my apprehension, very plain and simple. The appellants seek to have a policy of insurance amended, after a loss has happened, on the ground of a mistake in the policy in several particulars, but prin- cipally in this, that the brig insured by the respondents, is described in the policy as the "good American brig, called the Union," when, as it is alleged, it was the intention of the appellants, and must have been so understood by the respondents, that her national character should be Portuguese. . . . It is not enough, in cases of this kind, to show the sense and intention of one of the parties to the contract; it must be shown, incontrovertibly, that the sense and intention of the other party con- curred in it ; in other words, it must be proved, that they both under- stood the contract, as it is alleged it ought to have been, and as in fact it was, but for the mistake. It would be the height of injustice to alter a contract, on the ground of mistake, where the mistake arises from misconception by one of the parties, in consequence of his im- perfect explanation of his intentions. To make a contract, it is req- uisite that the minds of the contracting parties agree on the act to be done; if one party agrees to a contract under particular modifi- cations, and the other party agrees to it under different modifications, it is evident there is no contract between them. If it be clearly shown, that the intention of one of the parties is mistaken and misrepresented by the written contract, that cannot avail, unless it further be shown, that the other party agreed to it in the same way, and that the intention of both of them was, by mistake, misrepresented by the written con- tract. There may be cases in which the mistake is rendered so palp- able, that the denial of it by one party would not be entitled to credit. The question would be, how it ought to have been understood, and how the court believe it must have been understood. I confess, that I am strongly impressed with the belief, that when the appellants applied to the respondents for insurance, they intended, by the representation, that "the said brig will sail under a Portuguese |j[Ch. 7) MISTAKE. 59 royal passport," that her national character was to be Portuguese. But I am as strongly persuaded, that the respondents did not under- stand the representation in that way, but, on the contrary, that they believed she was to be documented as an American ship, carrying a Portuguese passport, as an innocent disguise of her real American character : and that, consequently, the appellants have failed in making out the fact, that there was a mutual mistake in the policy. . . . SWEDESBORO LOAN & BLDG. ASS'N. v. CANS (New Jersey Court of Chancery, 1903, 65 N. J. Eq. 132, 55 Atl. 83.) RSED^ V. C. This suit is brought to have a mortgage which has been cancelled upon the record re-established and foreclosed. The facts, as I gather them from the pleadings, from the meagre testimony and from the position taken by counsel, are as follows : One Charles Gans, of Gloucester county, made a mortgage, dated March 11th, 1892, to the Swedesboro Loan and Building Association to secure the sum of $1,100, payable in one year. Charles Gans, the mortgagor, died June 9th, 1894, intestate, leaving him surviving his widow, Kate P. Gans, and as his heirs, two brothers — James and John — and three sisters — ^Jennie, Phebe and Mary. On April 1st, 1895, the widow released to the complainants her right of dower in the mortgaged premises. The complainant accepted a deed from one Sebastian Gans, the father of Charles, the deceased mortgagor, under the belief that on the death of Charles the property descended to his father. After the execution of this deed, the loan and building association, believing that it held the legal title to the premises, on August 5th, 1895, cancelled its mortgage. The procura- tion of the deed from Sebastian Gans seems to have been accomplish- ed by one Benjamin McAllister, who was a scrivener and was at one time a director of the building association and did writing for them, and who seems also to have been mixed up in the settlement of the estate of Charles Gans. He apparently acted as intermediary between the building association and the Ganses, and got the deed which the complainant accepted upon his word as a conveyance of the equity of redemption in the mortgaged premises. Upon the execution of this deed the complainant went into possession, and has since received the 60 RESCISSION. (Part 3 rents and profits therefrom. There can be no doubt that the cancella- tion of the mortgage was induced by the belief that by force of the deed of Sebastian Gans the land association owned a complete title to the property. It is thus manifest that the equity of the situation is entirely with the complainant. The defendants, as heirs of Charles Gans, received the property subject to the lien of this mortgage. The cancellation of the mortgage was a pure gift to the defendants of the mortgagee's interest in the property. The heirs had not paid one cent to bring about this change in the respective position of mortgagee and heirs. Neither has any purchaser, bona fide or otherwise, come into ex- istence upon the faith of the cancellation of the mortgage. It is clear, therefore, that unless some inexorable rule compels otherwise, the complainant should be relieved from the predicament into which it was misled by its belief in its ownership of a complete title to the mortgaged property. The substantial ground upon which the heirs resist the granting of this relief is that while the cancellation was caused by a mistake of the complainant, it was a mistake of law and not of fact. The maxim juris ignorantia noii cxcusat is invoked by the defendants. This maxim is subject to so many exceptions that it is quite as often inap- plicable to supposed mistakes of law. That the present case, involving the release of private rights under a mistaken notion as to private ownership of property, is one in which the English courts of chancery would afford prompt relief cannot be doubted. The line of cases granting relief where a man purchased his own property through mistake (Bingham v. Bingham, 1 Ves. Sr. 127), or where a release was made so broad in its terms as to release rights of property of which the party was ignorant (Chalmondeley v. Clinton, 2 Mer. 171), or where a party, under the misapprehension that he had no title, surrendered to the supposed owner (Pusey v. Des- bouvrie, 3 P. Wms. 315), exhibit the degree in which courts of equity granted relief from such mistakes. In Livesey v. Livesey, 3 Russ. 287, an executrix, who under a mistaken construction of a will, had overpaid an annuity, was permitted to deduct the amount overpaid from subsequent payments. In McCarthy v. Decaix, 2 Russ. & M. 614, a person was relieved where he had renounced a claim of prop- erty made under a mistake respecting the validity of a marriage, the oil. 7) MISTAKE. 61 lord-chancellor saying: "What he has done was in ignorance of the law, possibly of fact; but in a case of this kind this would be one and the same thing." In Cooper v. Phibbs, L. R. 2 H. L. 149, 172; S. C, 22 Eng. Rul. Cas. 870, an agreement was cancelled because it had been entered into through a mistake as to the ownership of a fishery. In this case Lord Westbury expressed the much-discussed sentiment that the word "jus" in the maxim is used to denote a general law, and has no appli- cation to private rights. The result of this decision of the house of lords was that an act caused through a mistake as to ownership of prop- erty would be remedied in equity. In Beauchamp v. Winn, L. R. 6 H. L. 223, 264 ; S. C. 22 Eng. Rul. Cas. 889, a mutual mistake in an agreement as to the rights of the parties resulted in a correction of the agreement. The result of the English cases is summed up by Mr. Kerr in the remark "that if a man though misapprehension or mistake of the law parts with or gives up private rights to property, or assumes obliga- tions upon grounds upon which he would not have acted but for such misapprehension, a court of equity may grant relief, if under the gen- eral consideration of the case it is satisfied that the party benefited by the mistake cannot in conscience retain the benefit or advantage so acquired." Kerr, Fr. This statement of the equitable rule was cited with apparent approval by Chancellor Runyon in Macknet v. Macknet. 2 Stew. Eq. 54, 59, and in Martin v. New York, Susquehanna and Western Railroad Co., 9 Stew. Eq. 109, 112. The equity cases in this country, more particularly the earlier cases, exhibit a less liberal spirit in granting relief for mistakes in law. This resulted mainly, I think, from the great influence which the early reported cases decided by Chancellor Kent had in shaping the early equity jurisprudence of this country. The case of Lyon v. Richmond, 2 John. Ch. 60, was an application to set aside an agreement, because it was entered into under the in- fluence of a supposed condition of the law, and afterwards the couft of errors rendered a decision which changed the law as it was sup- posed to exist when the agreement was made. In deciding that the court could grant no relief, Chancellor Kent, having in mind, of course, the particvilar facts of that case, made some general remarks in respect to the impolicy of a court of equity attempting to relieve 62 EEScissioN. (Part 3 against mistakes of law. Tliese remarks appear again and again in the earlier cases, being used as a general authority against the granting of relief in all cases of mistakes of law. . . . Our later cases display a desire to discover ground to rectify an equitable result flowing from mistakes of all kinds. . . . The ability of courts of equity to rectify mistakes arising from ignorance of the law is everywhere acknowledged to exist in certain instances. The propriety of exercising this power must de- pend upon the circumstances which surround each case. It will de- pend upon whether a party who asks relief has been negligent ; whether he has been led into his belief by the other party; whether other in- nocent parties will be injured by a rectification of the mistake, or whether the mistake can be regarded as one of fact, although indirect- ly resulting from a mistaken notion of the law. All these and other features are to be considered in deciding whether it is equitable and politic to put the mistaken party in statu quo. . . . In my judgment the power should be exercised in the present case. The mistake was in respect to the ownership of the property upon which the cancelled mortgage was an encumbrance, and the English cases treat such a mistake as one of fact. Again, the annulment of the mortgage was without any consideration whatever. Nothing was received by the mortgagee and nothing was paid by the heirs. JORDAN V. STEVENS. (Supreme Court of Maine, 1863, 51 Me. 78.) Davis, J, . . But while the weight of authority is clearly against granting relief merely on account of a mistake of the law, it seems to be conceded in nearly all the cases, and expressly de- cided in many of them, that there are exceptions to this rule. Hunt V. Rousmanier, 1 Pet., 15; Bank of U. S. v. Daniel, 12 Pet., 32. Instead of saying that there are "exceptions" to the rule, it would probably be more correct to say that, while reHef will never be granted merely on account of the mistake of the law, there are cases where there are other elements, not in themselves sufficient to authorize the Court to interpose, but which, combined with such a mistake, will Ch. 7) MISTAKE. 63 entitle the party to relief. It is important therefore to inquire what it is that, with a mistake of the law, will justify the interposition of the Court, where there is no fraud, or accident, or mistake of fact. If a party, who himself knows the law, should, deceive another, by misrepresenting the law to him ; or, knowing him to be ignorant of it, should therein take advantage of him, relief would be granted on the ground of fraud. So that such a case is within neither the rule nor the exception. It has sometimes been said that, when money or other property has been obtained under a mistake of the law, which the defendant ought not in good conscience to retain, he should be compelled to restore it. Northrup v. Graves, 19 Conn., 548; Stedwell v. Anderson, 21 Conn., 139. This is just, as a principle, but entirely indefinite, as a rule. It proposes nothing but the opinion of the Court in each case, on a matter in regard to which there may be great differences of opinion. It overlooks the public interests involved in maintaining the obligation of contracts. Generally, as between the parties, a mistake of law has as equitable a claim to relief, as a mistake of fact. It is believed that in nearly all such cases, where relief has been granted, in addition to the intrinsic equity in favor of the plaintiff, two facts have been found; (1), that there has been a marked dis- parity in the position and intelligence of the parties, so that they have not been on equal terms; (2), and that the party obtaining the prop- erty persuaded or induced the other to part with it, so that there has been "umilJ£;jjjflugnce" on the one side, and "undue c onfi dence on the other. 1 Story's Eq., 120. When property has been obtained under such circumstances, and by such means, courts of equity have never hesitated to compel its restoration, though both the parties acted under a mistake of the law. And there would be still stronger reasons for granting relief in such a case, if the party from whom the property had been obtained, had been led into his mistake of the law by the other party. Sparks v. White, 7 Hump., (Tenn.,) 86; Fitzgerald v. Peck, 4Littell, (Ky.,) 127. Thus, in Pickering v. Pickering, 2 Beav., 31, Lord Langdale set aside certain agreements entered into under a mistake of the law, on the ground that "the parties were not on equal terms ;'' and that the plaintiff acted under the influence of the defendant. And the same thing was done in Wheeler v. Smith, 9 How. U. S., 55, because the 64 EEscissiow. (Part parties "did not stand on equal ground ;" and the plaintiff "did not act freely, and with a proper understanding of his rights." . . . The case at bar is one of this kind. The parties were not on equal terms. The plaintiff was ignorant, in business affairs, as well as m other respects. Having confidence in the defendants she relied upon what they told her. It does not appear that she doubted the validity of her father's lease to her, until such doubts were communicated to her from them. The proposition for her to release her interest in all the other property did not originate with her, but with them; and she was induced to accept it by the fear, which they had impressed upon her, that she otherwise would have to give up the homestead. She acted under their influence. They believed that there was a defect in the first lease, and they meant to take advantage of it. As was said by the Master of the Rolls, afterwards Lord Kenyon, in Evans v. Llewellyn, 1 Cox, 333, "though there was no fraud, there was some- thing like fraud; for an undue advantage was taken of her situation. The party was not competent to protect herself; and therefore this ^ Court is bound to afford her such protection." . . . GRYMES V. SANDERS. (United States Supreme Court, 1876, 93 U. S. 55.) SwAYNE, J. Peyton Grymes, the appellarit, owned two tracts of land in Orange County, Va., lying about twenty-five miles from Orange court-house. The larger tract was regarded as valuable on account of the gold supposed to be upon it. The two tracts were separated by intervening gold-bearing lands, which the appellant had sold to others. Catlett applied to him for authority to sell the two tracts, which the appellant still owned. It was given by parol ; and the appellant agreed to give, as Catlett's compensation, all he could get for the property above $20,000. Catlett offered to sell to Lan- agan. Lanagan was unable to spare the time to visit the property, but proposed to send Howel Fisher to examine it. This was assented to ; and Catlett thereupon wrote to Peyton Grymes, Jr., the son of the appellant, to have a conveyance ready for Fisher and himself at the court-house upon their arrival. The conveyance was pro- Cll. 7) MISTAKE. 65 vided accordingly, and Peyton Grymes, Jr., drove them to the lands. They arrived after dark, and stayed all night at a house on the gold-bearing tract. Fisher insisted that he must be back at the court- house in time to take a designated train east the ensuing day. This involved the necessity of an early start the next morning. It was arranged that Peyton Grymes, Jr., should have Peyton Hume, who lived near at hand, meet Fisher on the premises in the morning and show them to him, while Grymes got his team ready for their re- turn to the court-house. Hume met Fisher accordingly, and showed him a place where there had been washing for surface-gold, and then took him to an abandoned shaft, which he supposed was on the prem- ises. . . . When Fisher made the examination at the shaft, it had been aban- doned. This was prima facie proof that it was of no account. It does not appear that he thought of having an analysis made of any of the debris about it, nor that the debris indicated in any wise the presence of gold. He requested Hume to send him specimens from the shafts on the contiguous tracts, and it was done. No such re- quest was made touching the shaft in question, and none were sent. It is neither alleged nor proved that there was a purpose at any time, on the part of the appellees, to work the shaft. The quartz found was certainly not more encouraging than that taken from the last cut made by Bowman under the advice of Embry and Johnson. This cut he refused to deepen, and abandoned. When Lanagan and Rep- plier were told by Johnson that the shaft was not on the premises, they said nothing about abandoning the contract, and nothing which manifested that they attached any particular consequence to the mat- ter, and certainly nothing which indicated that they regarded the shaft as vital to the value of the property. They proceeded with their ex- amination of the premises as if the discovery had not been made. On his way to Philadelphia, after this visit, Lanagan saw and talked several times with Williams, who had prepared the deed. Williams says, "I cannot recollect all that was said in those conversations, but I do know that nothing was said about the shaft, and that he said nothing to produce the impression that he was dissatisfied or dis- appointed in any respect with the property after the examination that he had made of it." Lanagan's conversation with Houseworth was to the same effect. 3 Eq— 5 66 EEScissiON. (Part '6 The subsequent conduct of the appellees shows that the mistake had no effect upon their minds for a considerable period after its discovery, and then it seems to have been rather a pretext than a cause. Mistake, to be available in equity, must not have arisen from neg- ligence, where the means of knowledge were easily accessible. The party complaining must havp exercised at least the degree of dil- igence "which may be fairly expected from a reasonable person." Kerr on Fraud and Mistake, 407. Fisher, the agent of the appellees, who had the deed prepared, was within a few hours' travel of the land when the deed was executed. He knew the grantor had sold contiguous lands upon which veins of gold had been found, and that the course and direction of those veins were important to the premises in question. He could easily have taken measures to see and verify the boundary-lines on the ground. He did nothing of the kind. The appellees paid their money without even inquiring of any one professing to know where the lines were. The courses and distances specified in the deed show that a surveyor had been employed. Why was he not called upon? The appellants sat quietly in the dark, until the mistake was developed by the light of subsequent events. Full knowledge was within their reach all the time, from the beginning of the negotation until the trans- action was closed. It was their own fault that they did not avail themselves of it. In Manser v. Davis, 6 Ves. 678, the complainant, being desirous to become a freeholder in Essex, bought a house which he supposed to be in that county. It proved to be in Kent. He was com- pelled in equity to complete the purchase. The mistake there, as' here, was the result of the want of proper diligence. . . . A court of equity is always reluctant to rescind, unless the parties can be put back in statu quo.' If this cannot be done, it will give such relief only where the clearest and strongest equity imperatively de- mands it. Here the appellant received the money paid on the con- tract in entire good faith. He parted with it before he was aware of the claim of the appellees, and cannot conveniently restore it. The imperfect and abortive exploration made by Bowman has injured the credit of the property. Times have since changed. There is less demand for such property, and it has fallen largely in market value. Under the circumstances, the loss ought not to be borne by the ap- Ch. 7) FKAUDS. 67 pellant. Hunt v. Silk, 5 East. 452; Minturn v. Main, 3 Seld. 227; Okill V. Whittaker, 2 Phill. 340; Brisbane v. Davies, 5 Taunt. 144; Andrews v. Hancock, 1 Brod & B. 37 ; Skyring v. Greenwood, 4 Barn. & C. 289; Jennings v. Broughton, 5 De G., M. & G. 139. The parties, in dealing with the property in question, stood upon a footing of equality. They judged and acted respectively for them- selves. The contract was deliberately entered into on both sides. The appellant guaranteed the title, and nothing more. The appellees assumed the payment of the purchase-money. They assumed no other liabiHty. There was neither obligation nor liability on either side, beyond what was expressly stipulated. If the property had proved unexpectedly to be of inestimable value, the appellant could have no further or other claim! If entirely worthless, the appellees assumed the risk, and must take the consequences. Segur v. Tingley, 11 Conn. 142; Haywood v. Cope, 25 Beav. 140; Jennings v. Broughton, 17 id. 232; Atwood v. Small, 6 CI. & Fin. 497; Marvin v. Bennett, 8 Paige, 321 ; Thomas v. Bartow, 48 N. Y. 198 ; Hunter v. Goudy, 1 Ham. 451 ; Halls v. Thompson, 1 Sm. & M. 481. The bill, we have shown, cannot be maintained. . . . SECTION II. FRAUD JACK V. BLETTNER. (Illinois Appellate Court, 1909, 148 III. App. 451.) Defendant Fred S. Gray claimed to own a saloon and liquor store at No. 3865 Cottage Grove avenue, of which he was in possession, ,of the value of $5,000. On April 13, 1907, complainant was in the saloon of Gray, who then represented, for the purpose of inducing complainant to purchase a half interest therein, that the business con- ducted in said saloon was very profitable and that the gross receipts were free from liens and encumbrances ; that all of said representa- tions were false when made, and so known to be false by Gray when he made them; that in fact the receipts of said saloon were small 68 EEScissi02sr. (Part 3 and barely sufficient to pay running expenses; that the saloon and its contents were mortgaged for a large sum to the Berghoflf Brewing Company of Chicago; that Gray, in furtherance of carrying out his fraudulent scheme, and to deceive and prevent complainant from in- quiry into the true condition and situation of said saloon business, induced complainant to partake freely of intoxicating liquor, which he did to such an extent that he became drunk and intoxicated and totally unable to intelligently transact business; that while in such drunken state Gray induced complainant to pay him the sum of $100 in money, and to assign and deliver to him a promissory note made by defendant Bowyer, payable on September 15, 1907, to the order of his sister-in-law, the defendant Maud H. Jack, for the sum of $500, which note Maud H. Jack had endorsed and delivered to him; that he was induced to pay said money and deliver said note as' earnest money for a half interest in Gray's saloon and business, and pending the time during which complainant could examine into the title of Gray to the saloon property ; that complainant did not receive any receipt for said payments or any bill of sale or other conveyance of any interest in the saloon of Gray; that the intoxication of com- plainant was so profound that he became unconscious and in such unconscious condition was taken to his home, and as a result of such intoxication he became sick and remained confined to his home and his bed for several weeks thereafter ; that upon recovering from his sickness he learned that the Berghoflf Brewing Company had fore- closed its mortgage upon the saloon and its contents and ousted Gray from possession thereof ; that on maturity of the note defendant Blettner, claiming to be its legal owner, through his attorneys, the defendants Hebel and Haft, commenced suit thereon, in the Municipal Court of Chicago, against Gray, Maud H. Jack and complainant as endorsers, and Bowyer as maker of the note ; that defendant Blettner was the agent of the Berghoflf Brewing Company and was not an innocent purchaser for value, but was privy to the frauds practiced upon complainant, by which the transfer of the note was procured to Gray, and was present in Gray's saloon at the time of the trans- action and witnessed the artifices resorted to by Gray in procuring the note and the money from complainant ; that Blettner paid no consideration to Gray for said note; that no defendant other than Bowyer was summoned in the suit brought in the Municipal Court on the note. . . . Ch. 7) FRAUDS, 69 Mr. Justice Holdom. We think it quite plain that the aver- ments of complainant's bill being conceded to be true, the facts there alleged make it patent that his remedy, if any, is at law and not in equity. There is no averment of insolvency of Gray or Blett- ner, and an a ction for f raud and deceit again st them, jointly or sep- arately, would seem to furnish a complete and efifectual remedy to complainant for the wrongs he alleges he has suffered at their hands. While equity and law have concurrent jurisdiction to relieve against fraud, still when the remedy at law is, as here, adequate and com- plete and not surrounded with obstacles or unusual inconvenience, equity will not interfere, but leave the parties to obtain redress at law. In a case like the one before us, involving questions of fact, presumably in dispute, where the parties are entitled to a trial by a jury to determine such questions of fact, it is the policy of equity not to take jurisdiction, but to relegate the parties to that remedy at law where their constitutional right to have the facts in dispute submitted to a jury can be accorded them. This would be so even in a doubtful case, which the case at bar certainly is not. Shenehon v. 111. Life Ins. Co., 100 111. App. 281 ; Hacker v. Barton, 84 111. 313. Complainant's counsel cite Vol. 14, p. 172, Am. & Eng. Ency. of Law, and cases there cited, to sustain their contention that equity will take jurisdiction in cases of fraud of the character of the case dis- closed by the bill, and make the following quotation, viz: "Subject to a few exceptions, courts of equity exercise a general jurisdiction to grant relief in cases of fraud, concurrent with the jurisdiction of courts of law. It is a general rule, however, that a court of equity will not assume jurisdiction in a case where there is a plain, adequate and complete remedy at law, even though fraud is charged as a ground of relief. But to exclude jurisdiction, it is not enough merely to show that there is a remedy at law. The remedy must be plain, adequate and complete." We accord our approval of this statement of the law and, conceding its correctness, its application to the case at bar inhibits the right of complaint to any relief in equity. His remedy is complete, plain and adequate at law. There is no reason apparent from any averment of the bill, on the assumption that all of them are susceptible of proof, why a court of law cannot grant full an9 complete relief to complainant for the frauds alleged in his bill to have been practiced upon him. 70 KEscissiON. (Part 3 ADAMS V. GILLIG. (Court of Appeals of New York, 1910, 199 N. Y. 314, 93 N. E. 670.) The defendant sought to purchase a portion of the plaintiff's lot fronting on Elmwood avenue and stated that he desired to purchase the same for residence purposes. Chase, J. Any contract induced by fraud as to a matter material to the party defrauded is voidable. . . . The simple question in this case is, therefore, whether the alleged intention of the defendant to build a dwelling or dwellings upon the lot which he sought to purchase is such a statement of an existing material fact as authorizes the court to cancel the deed be- cause of the fraud. The distinction between a collateral agreement as a part of a con- tract to do or not to do a particular thing, and a statement and repre- sentation of a material existing fact made to induce the contract may be further profitably considered. A promise as such to be enforceable must be based upon a con- sideration, and it must be put in such form as to be available under the rules relating to contracts and the admission of evidence relating thereto. It may include a present intention, but as it also relates to the future it can only be enforced as a promise under the general rules relating to contracts. A mere statement of intention is a different thing. It is not the basis of an action on contract. It may in good faith be changed with- out affecting the obligations of the parties. A statement of intention does not relate to a fact that has a corporal and physical existence, but to a material and existing fact nevertheless not amounting to a promise but which as in the case under discussion affects and deter- mines important transactions. The question here under discussion is not affected by the rules relating to the admission of testimony. As it was not promissory and contractual in its nature there is nothing in the rules of evidence to prevent oral proof of the representations made by the defendant to the plaintiff. In an action brought ex- pressly upon a fraud, oral evidence of facts to show the fraud is admissible. Ch. 7) FRAUDS. 71 In civil actions relating to wrongs, the intent of the party charged with the wrong is frequently of controlling effect upon the conclusion to be reached in the action. The intent of a person is sometimes dif- ficult to prove, but it is nevertheless a fact and a material and existing fact that must be ascertained in many cases, and when ascertained determines the rights of the parties to controversies. The intent of Gillig was a material existing fact in this case, and the plaintiff's re- liance upon such fact induced her to enter into a contract that she would not otherwise have entered into. The effect of such false statement by the defendant of his intention cannot be cast aside as immaterial simply because it was possible for him in good faith to have changed his mind or to have sold the property to another, who might have a different purpose relating thereto. As the defendant's intention was subject to change in good faith at any time it was of uncertain value. It was, however, of some value. It was of sufficient value so that the plaintiff was willing to stand upon it and make the conveyance in reliance upon it. . . . Unless the court affirms this judgment, it must acknowledge that although a defendant deliberately and intentionally, by false state- ments, obtained from a plaintiff his property to his great damage it is wholly incapable of righting the wrong, notwithstanding the fact that by so doing it does in no way interfere with the rules that have grown up after years of experience to protect written contracts from collateral promises and conditions not inserted in the contract. We are of the opinion that the false statements made by the de- fendant of his intention should, under the circumstances of this case, be deemed to be a statement of. a material, existing fact of which the court will lay hold for the purpose of defeating the wrong that would otherwise be consummated thereby. HARLOW V. LA BRUN. (Supreme Court of New York, 1894, 82 Hun. 293, 31- N. Y. Supp. 487.) Mayham, p. J. The plaintiff brings this action for a dissolution of what he alleges to be a valid, existing copartnership between him and the defendant, and for an accounting as partners. The com- 72 EESCissiON. (Part 3 plaint sets out written articles of copartnership. The answer does not deny the making of the written articles of copartnership, but im- pliedly admits the same, and sets up in a defense that he was induced to enter into such copartnership by the fraudulent representations of the plaintiff that a stock of merchandise which he put into such co- partnership cost the sum of $1,890.05, an undivided half of which would belong to the defendant under such articles of copartnership, and against which defendant put in the sum of $850 in cash and his notes to the plaintiff of $1,150; and alleges that the merchandise in fact cost the plaintiff but the sum of $1,134, which fact the plain- tiff well knew at the time of making such representations, and of which defendant was wholly ignorant. . . . It is also urged by the learned counsel for the plaintiff that, as there was no proof that the stocks of goods. were in fact worth less than $1,890.05, therefore the defendant had not by the proof suffered any loss, and that he was not, therefore, entitled to any relief. The rep- resentation in this case was not a mere representation by the plain- tiff of the value of the property, which at most could but be an ex- pression of his opinion, and for which no action would ordinarily lie. Chrysler v. Canady, 90 N. Y. 272; Schumaker v. Mather, 133 N. Y. 590, 30 N. E. 755. In such cases the party purchasing, or to whom the representation is made, has access to the open market to determine the value, and may exercise his own judgment as to the value. We think the rules are different whre fraudulent representa- tion is made by the vendor as to the cost of a chattel. In Fairchild V. McMahon, 139 N. Y. 290, 34 N. E. 779, O'Brien, J., sharply recog- nizes the existence of such distinction, and in discussing this question of a distinction between an opinion by the vendor and false representa- tion as to its cost says : "But the question here is not one arising out of a representation as to value. The representation was with respect to a fact which might, in the ordinary course of business, influence the action and control the judgment of the purchaser, namely, the price paid for the property about to be sold by the vendor; . . . and so we think a false statement with respect to the price paid under such circum- stances which is intended to influence the purchaser, and does in- fluence him, constitutes a sufficient basis for the finding of fraud;" citing in support of that contention: Sandford v. Handy, 23 Wend. 260; Van Epps v. Harrison, 5 Hill, 63; Smith v. Countryman, 30 N. Ch. 7) FRAUDS. 73 Y. 655; Hammond v. Pennock, 61 N. Y. 151 ; Goldenberg v. Hoffman, 69 N. Y. 326. Nor can we agree with the contention of the learned counsel for the plaintiff that, as no pecuniary damage was proved by the defend- ant, he is not entitled to any relief in this action. The relation of partners is one implying the highest degree of mutual confidence. By such relation each becomes the custodian, not only of the prop- erty, but to a great degree of the character and business standing of the other. For the court, therefore, in an equitable action, to uphold a contract consummated by fraud, and thus, as between the deceiver and deceived, to bind the property and character of the latter, would seem to be not only inequitable, but oppressive. Nor should the re- lation be continued until the injured and deceived party has been sub- jected to actual loss, which he may prove, in dollars and cents. When he appeals to the court for relief, and establishes the fraud, he should be relieved from the hazard of a business combination into which he has been inveigled by fraud and misrepresentation. We think, there- fore, that the trial court was right in declaring this contract void and inoperative from its inception, and by the judgment of the court re- store as far as possible the status quo of these parties. We have carefully examined all the exceptions taken by the learned counsel for the plaintiff to the rulings, findings, refusals to find, and de- terminations of the trial judge, and find no error for which this judg- ment should be reversed. Judgment affirmed, with costs. All con- cur. VANDERBILT v. MITCHELL. (New Jersey Court of Chancery, 1907, 72 N. J. Eq. 910, 67 Atl. 97.) Dill J. ■ • • -^ court of equity is the only tribunal which can afford adequate relief to the complainant under the peculiar and some- what novel circumstances of this case, and that regardless of whether certiorari or mandamus would afford him relief in certain respects.' The complainant properly invokes the aid of a court of equity, on the ground of its inherent jurisdiction over frauds, to annul and cancel a fraudulent certificate, based upon the false statements of the wife as to the paternity of the child, filed by a public officer, 74 KEscissioN. (Part which certificate, by force of the statute, has such evidential char- acter that it is prima facie evidence of the facts therein contained, and which, unless attacked by competent evidence, becomes conclusive to prove the facts therein recorded. As we view the gravamen of the bill, the complainant does not seek a decree dissolving any existing valid status, thereby alteririg the actual relation of the parties, but a judicial determination of the matter of the alleged status of paternity prima facie created by this certificate, to determine that such alleged status does not exist and to give adequate relief. In other words, the theory upon which the equity of the bill rests is not to establish a status, or, on the other hand, to disestablish a status, except for the special object of determining whether the in- formation given to the physician by the wife was fraudulent, and whether thereupon the certificate itself, so far as it imputes to the complainant the paternity of the child, was fraudulent. The relief sought is a decree expunging from the public records of this state, on the ground of fraud, the certificate of birth, or so much thereof as relates to and charges upon the complainant the paternity of the child, with an injunction against all parties who might issue copies or use such copies or the original certificate as evidence of such paternity. The character of the recorded certificate, by whom prepared and filed, and its force and effect as evidence, are fixed by statute. P. L. 1888, p. 52. See, also, P. L. 1900 p.- 370 ch. 150 §§ 28, 29. The act of 1888, requiring the filing of certificates of birth, makes it the duty of the attending physician, within thirty days after a birth, to make, and cause to be transmitted to the superintendent of the bureau of vital statistics, a certificate thereof, which certificate shall set forth particularly, as far as the facts can be obtained by the physician, among other things, the date and place of birth, the name of each of the parents, the maiden name of the mother, the name of ■the child, and the name of the attending physician, and by section 13 of this act it is provided that : •'any such original certificate, or any copy thereof certified to be a true copy under the hand of said medical superintendent, shall be received in any court of this state to prove the facts therein contained." Ch. 7) FRAUDS. 75 It is important to note that the legislature evidently had not in mind the possibility that this statutory record might be made an in- strument to effectuate a fraud. Section 11 of the act of 1888 (P. h. 1888 p. 59) provides that any minister of the gospel, magistrate, physician, midwife, or other person, who shall knowingly make any false certificate of marriage, birth or death, shall be deemed guilty of a misdemeanor, but there is an absence of statutory provision for the correction, modification or annulment of the record in case either of fraud or mistake. As to the force and effect of the certificate, whether it is an ad- judication by the physician of the facts which it recites, or whether it is a mere statement by such physician of facts which have been recited to him, is unnecessary for us to determine. If it be an ad- judication, then, so far as the determination of the father of the child is concerned, it was obtained by a false representation made to the officer by the mother. If, on. the other hand, it is a mere recital by the physician of a statement made to him by the mother, then that false statement has, by force of the statute, become spread upon the record of the state as the truth. In either event, the complainant has been fraudulently recorded as the father of this child, and the recorded statement is evidential against him in all matters where the question of the paternity of the child is involved. In an action to compel him to support the child, or an action for necessaries furnished to the child, a certified copy of this record would be prima facie evidence that would tend to establish his hability, not only in this state, but in other juris- dictions as well. Speaking generally, this certificate is also evi- dence upon the question of who shall inherit an individual's estate, a question of vital importance to every man, having also a direct bearing upon the possible issue of a second marriage should he desire to contract one. But with this topic we deal later. Upon the question of equity jurisdiction it may be said that the jurisdiction of a court of equity to cancel, annul and set aside judgments on the ground of fraud, as well as certificates and determinations of pub- lic officers charged with judicial or executive functions, is set- tled. . . . Where a public record is pronounced fraudulent, the relief is not confined to an injunction forbidding its use, but the decree may direct 76 KEScissiON. (Part 3 a cancellation of the record upon the face thereof. Fenton v. Way, 44 Iowa, 428; Jones v. Porter, 59 Miss. 628; Randazzo v. Roppolo, post. An officer making or having in his possession the record may be made a party to a suit to set it aside, although he is not charged with any fraud and is faithfully performing his public duties, and may be enjoined by the decree. . . . Upon the whole case, we are of the opinion that the court of chan- cery has jurisdiction to afford the complainant ample and complete relief, as already indicated in this opinion; that, should the court of chancery refuse relief under the circumstances stated in the bill, it would cease to be a court of equity governed by principles of natural justice, especially where property rights may be said to be threatened and personal rights are clearly invaded. The decree sustaining the demurrer is reversed. LININGTON V. STRONG ET AL. (Supreme Court of Illinois, 1883, 107 111. 295.) Mr. Justice Dickey. . . . The doctrine is well settled, that, as a rule, a party guilty of fraudulent conduct shall not be allowed to cry "negligence," as against his own deliberate fraud. Even where parties are dealing at arms' length, if one of them makes to the other a positive statement, upon which the other acts (with the knowledge of the party making such statement) in confidence of its truth, and such statement is known to be false by the party making it, such con- duct is fraudulent, and from it the party guilty of fraud can take no benefit. While the law does require of all parties the exercise of reasonable prudence in the business of life, and does not permit one to rest indifferent in reliance upon the interested reprsentations of an adverse party, still, as before suggested, there is a certain limita- tion to this rule, and as between the original parties to the transaction, we consider that where it appears that one party has been guilty of an intentional and deliberate fraud, by which, to his knowledge, the other party has been misled, or influenced in his action, he cannot escape the legal consequences of his fraudulent conduct by saying Ch. 7) FEAUDS. 77 that the fraud might have been discovered had the party whom he deceived exercised reasonable diligence and care. . . . SANGER V. WOOD. (Court of Chancery of New York, 1818, 3 Johns. Ch. 416.) The Chancellor. The bill states that the plaintiffs sued at law under that last contract, and which was, of course, in affirmance of it ; and that, a few days before the trial at the Madison circuit, they discovered the fraud now set up as a ground to rescind that contract. And yet, notwithstanding that discovery, they go to trial in the suit on that contract, and take a verdict for the moneys due from the de- fendant under it, and, afterwards, judgment is entered up by them on that verdict; and, in April last, they even apply to this court for leave to take out execution at law on the judgment so recovered. The last motion was, indeed, made on the ground that it might not prejudice their rights in this suit ; but I am induced to think they had already waived those rights by their previous proceedings. The suit at law, and the action here, are inconsistent with each other, since the one affirms, and the other seeks to disaffirm, the contract in ques- tion. It is probable the amount of the judgment may have been already collected, and the plaintiffs could not, for a moment, be per- mitted to keep the moneys recovered under that contract, if they should succeed in their bill to have it annulled. In a case where the remedies sought are so absolutely repugnant to each other, the plaintiffs ought to have made their election at once, after they came to the knowledge of the facts. If they meant to have disannulled the contract of April, 1816, then it was vexatious, as well as useless, to have gone on to a trial, and judgment and execution. They had no right to try the experiment how much they could recover at law under the contract (for the bill admits the suit at law was brought upon that agreement), before they elected to waive it, and then, retaining their verdict and entering judgment at law, apply to this court to set the contract aside. This proceeding would be giving the plaintiffs a double advantage, and is unreasonable and inadmissible. Any decisive act of the party, with knowledge of his rights and of the fact, determines his election in the case of conflicting and in- 78 RESCISSION. (Part 3 consistent remedies. If he take out a commission of bankruptcy, he cannot sue the bankrupt at law, for that would be again superseding the commission. (Ex parte Ward, 1 Atk. 153 ; Ex parte Lewes, 1 Atk. 154). So, charging a party in an execution at law after a commission issued, is an election to take the remedy at law, and the party must abide by it. (Ex parte Warder, 3 Bro. 191 ; Ex parte Cator, 3 Bro. 216). So, again, if a party seeks relief in equity by bill waiving a forfeiture at law, though he fail in obtaining reHef, he cannot afterwards insist on the forfeiture at law. (1 Sch. & Lef. 441). There cannot be any doubt of the principle that equity will not relieve a party fully apprized of his rights, and deliberately confirm- ing a former act. The doctrine has been again and again declared. (3 P. Wms. 294, note E, &c. ; 1 Atk. 344; 1 Ball and Beatty, 340). And I consider the going to trial in the action at law, and especially the entry of judgment afterwards upon the verdict, as a decided con- firmation of the settlement in April, 1816. I shall, accordingly, dismiss this bill ; but from the opinion which I have formed upon the merits of the transaction, I am not willing to charge the plaintiffs with costs ; and I shall consequently dismiss the bill without costs. Order accordingly. HAMMOND V. PENNOCK. (New York Court of Appeals, 1874, 61 N. Y. 145.) DwiGHT, C. . . . The case has thus far been considered as though the fraud requisite as a basis for rescinding a contract in equity is the same in nature as that demanded in a court of law in an action for damages for deceit. In equity, the right to relief is derived from the suppression or misrepresentation of a material fact, though there be no intent to defraud. (Per Eord Romilly, in Peek v. Gurney, L. R. (13 Eq.), 79, 113; Wilcox v. Iowa University, 32 Iowa, 367). This view has been applied to innocent misrepresentations in a prospectus, providing that they were of the essence of the con- tract. (Smith V. Reese River Co., L. R. (2 Eq.), 264; Kennedy v. Panama Co., ly. R. (2 Q. B.), 580). This doctrine is, substantially. Ch. 7) FRAUDS. 79 grounded in fraud, since the misrepresentation operates as a surprise and imposition upon the opposite party to the contract. It is in- equitable and unconscientious for a party to insist on holding the benefit of a contract which he has obtained through misrepresentations, however innocently made. (1 Story on Eq. Jur., Sec. 193, and cases cited; Perry on Trusts, Sec. 171). There can be no doubt that, in this aspect of the case, the defend- ant obtained the property of the plaintiff through misrepresentations which are material, even though it be assumed that they were made without bad intent on his part. Assuming that there was evidence from which fraud could be found, the next inquiry is, whether the court, acting as a court of equity, should have rescinded the contract. It is objected on the part of the defendant that the plaintiff did not act promptly and restore, or offer to restore, what he received under the contract. It is, un- doubtedly, a general rule of law, that a party who would rescind a contract, upon the ground of fraud, must act promptly and restore, or offer to restore, to the other party what he received under it. But this rule only means that he must restore what he himself has re- ceived, and has, by force of the contract, under his own control. If the wrong-doer has, by his own act, compHcated the case, so that full restoration cannot be made, he has but himself to blame. No one, perhaps, has stated this qualification more satisfactorily than the late Judge Beardsley, in Masson v. Bovet (1 Denio, 69) ; he there said: "If a party defrauded would disaffirm the contract, he must do so at the earliest practicable moment after the discovery of the cheat. That is the time to make his election, and it must be done promptly and un- reservedly. He must not hesitate ; nor can he be allowed to deal with the subject-matter of the contract and afterward rescind it. The party who would disaffirm a fraudulent contract, must return whatever he has received upon it. This is on a plain and just principle. He cannot hold on to such part of the contract as may be desirable on his part and avoid the residue, but must rescind in toto, if at all. "It was urged on the argument, that a contract cannot be rescinded by one of the parties, alone, so as to authorize a recovery by him of what had been paid on it, unless the other party is thereby fully re- stored to the condition in which he stood before. This is certainly the general rule, but in cases of fraud it can only mean that the party de- so EEscissiON. (Part 3 frauded, if he would rescind the contract, must return, or offer to re- turn, everything he received in execution of it. To retain the whole, or a part only, of what was received upon the contract, is incompatible with its rescission. "This is not exacted on account of any feeling of partiality or re- gard for the fraudulent party. The law cares very little what his loss may be, and exacts nothing for his sake. If, therefore, he has so entangled himself in the meshes of his own knavish plot that the party defrauded cannot unloose him, the fault is his own, and the law only requires the injured party to restore what he has received, and, as far as he can, undo what had been done in the execution of the contract. This is all that the party defrauded can do, and all that honesty and fair dealing require of him. If this fail to extricate the wrong-doer from the position that he has assumed, it is in no sense the fault of his intended victim, and upon the principles of eternal justice whatever consequences may follow should rest on the head of the offender alone." . . . SUMMERS V. GRIFFITHS. (In Chancery, 1865, 35 Beav., 37.) By deed, dated the 18th of July, 1853, Mary Lloyd (since deceased), in consideration of 40 pounds conveyed a tithe rent-charge of 8 pounds per annum, issuing out of a farm called Colston, to the Defendant William Griffiths, "his heirs and assigns." Mary Lloyd, an old illiterate widow, was then in her eighty-ninth year, but in possession of all her faculties, and she kept a public-house in Fishguard. One witness represented her as being very correct in business, "and very much alive to her own interests in money matters. She was a very intelligent and clear-headed woman, and, having re- gard to her advanced age, sharp and active, both in mind and body." She had no professional advice on the occasion, and the deed was pre- pared by the Defendant's solicitors. The value of the fee-simple of this tithe rent-charge (if a good title were shewn to it) was admitted to be twenty-years' purchase or 160 pounds. . . . ThB Master of thu Roi^ls. . . . I am of opinion that the plain- tiff is entitled to a decree. Ch. 7) FBAUDS. 81 The state of the case, as put by the Defendant himself, is, that an old woman, of the age of eight-nine, in distress for money, and having a doubt about the title to the property, comes to him and asks him to buy it at one-fourth or one-fifth of its value, and that she, having no species of legal assistance of any sort, makes that oflfer to him. He assents, and buys it at that amount, having at the time in his hands the title to her property, and knowing or having the means of knowing exactly what her title was, and having told her, at first, that she could make no title to it, or that if she was entitled to it her husband prob- ably was not, he having the deed probably shewing how long the hus- band had had the property, and that she had then had thirty years un- interrupted possession of the rent-charge. Thereupon he buys the property for one-fourth its value. This is the most favorable mode of stating the case, and I am then asked to say, that if the matter were fresh, this is a transaction which can be supported, and the only reason urged why it can be supported is that the bill charges fraud. No per- son, I think, has been more. strict than I have in endeavouring to re- press the improper uses of the word "fraud" in regard to transactions which are neither of an improper nor an immoral character, — I mean immoral in the sense of taking advantage of a person who does not know what the value of his property is. I do not understand the dis- tinction on the subject taken in the case of Harrison v. Guest. There appears to me to be distinct fraud in this case, and on that ground I am of opinion that the Plaintiff is entitled to recover. It is true the Plaintiff has put forward another case on the bill, which is, that Mary Lloyd intended to sell her life interest only, and there is some ground for that suggestion on the evidence ; but here is this man, who knows everything about the title, and who admits (in the state of circumstances I have mentioned) that he allowed this old woman to sell the property to him for one-fourth its value, she be- lieving there was a defect of title. If that be not fraud I am at a loss to know what the meaning of the word "fraud" is, in the proper and legal sense of the word. If a person comes to me and offers to sell to me a property which I know to be of five times the value he offers it for, he being ignorant of his rights and in the belief that he cannot make out a title, while I know that he can, and I conceal that knowledge from him, is not that a suppressio veri, which is one of the elements which constitute a fraud? 3Eq.— 6 82 EEscissioN. (Part 3 ' I am of opinion that the Plaintiff in this case is entitled to a decree to set this deed aside, on payment to the Defendant of the principal sum and interest after deducting the tithes he has received. The Plain- tiff must pay the cost of the other Defendants, because, in my opinion, they ought all to have joined as co-plaintififs. There is this also to be observed with respect to the question of time, that ten years have elapsed, and this old lady took no steps in her life- time. She died in 1862, and neither the son nor his assignee took any steps until March, 1864, when the bill was filed. But, then, I observe that there are persons who are interested in remainder, some of whom are infants and cannot be bound by that lapse of time, though it is Jkbsolutely necessary that there should be some limit to these cases. It is true, as Mr. Jcssel says, that mere inadequacy of value is not a sufficient ground for setting aside a transaction. But how far is that to go, is there to be no such inadequacy of value as can amount to evidence of fraud ? Lord Thurlow said, that to set aside a conveyance, there must be an inequality, so strong, gross and manifest, that it must be impossible to state it to a man of common sense without producing ^an exclamation at the inequality of it. Tried by this test, I am satis- ified that most men of common sense would exclaim at the inequality, rwhen they found that an old woman of eighty-nine had sold property for one-fourth of its value because she was in distress, and that with- out any legal assistance and without any person letting her know that she could make out a good title and obtain four or five times that amount. SECTION III. DURESS AND UNDUE INFLUENCE UNITED STATES, LYON, ET AL v. HUCKABEE. (Supreme Court of the United States, 1872, 16 Wall. 414.) Mr. Justice CliPFokd. . . Duress, it must be admitted, is a good defence to a deed, or any other written obligation, if it be proved that the instrument was procured by such means ; nor is it necessary Oh. 7.) DITEESS AND UNDUE INFLUENCE. 8'd to show, in order to establish such a defence, that actual violence was used, because consent is the very essence of a contract, and if there be complusion there is no binding consent, and it is well settled that moral compulsion, such as that produced by threats to take life or to inflict great bodily harm, as well as that produced by imprisonment, is sufifi- cient in legal contemplation to destroy free agency, without which there can be no contract, because in that state of the case there is no consent. Unlawful duress is a good defense to a contract if it includes such de- gree of constraint or danger, either actually inflicted or threatened and impending, as is sufficient in severity or apprehension to overcome the mind and will of a person of ordinary firmness. Decided cases may be found which deny that contracts procured by menace of a mere bat- tery to the person, or of trespass to lands, or loss of goods, can be avoid- ed on that account, as such threats it is said are not of a nature to over- come the will of a firm and prudent man ; but many other decisions of high authority adopt a more liberal rule, and hold that contracts procured by threats of battery to the person, or of destruction of prop- erty, may be avoided by proof of such facts, because, in such a case, there is nothing but the form of a contract without the subsance. Posi- tive menace of battery to the person, or of trespass to lands, or of de- struction of goods, may undoubtedly be, in many cases, sufficient to overcome the mind and will of a person entirely competent, in all other respects, to contract, and it is clear that a contract made under such circumstances, is as utterly without the voluntary consent of the party menaced, as if he were induced to sign it by actual violence ; nor is the reason assigned for the more stringent rule, that he should rely upon the law for redress, satisfactory, as the law may not afford him any- thing like a sufficient and a In Mitchell v. N. W. M. &c. Co., 26 111. App. 295, the complainant, before he filed his bill of interpleader, had so answered a garnishee summons that he thereby incurred a legal liability to one of the de- fendants to which he was bound to respond at all events. Therefore his bill was dismissed. Appellants are commission merchants, engaged in business at the Union Stock Yards, Chicago. The relation between them and Hardin & Smith, who shipped the cattle, is that of bailor and bailee. No other personal obligation rests upon them except that which grows out of the receipt of and the sale of the cattle. Lord Cottenham, in Crawshay v. Thornton, supra, held that in case of a simple bailment "there is no personal undertaking and no liability or right of action beyond that which arises from the legal consequences of the bailment." A commission merchant to whom goods have been consigned for sale, and who claims no interest in the proceeds after deducting his costs and charges, may file a bill of interpleader based upon the adverse claims of the receiver of the consignor's property and of an attaching creditor of such consignor. Pope v. Ames, 20 Oregon, 199. An agent who receives the money of his principal will hold the same in trust, and will be held to account for the same as trustee ; but the debt due from a factor or commission man for the proceeds of goods sold for his principal is not a fiduciary debt. Svanoe v. Jurgens, 144 111. 514. This distinction is noted in Cooper v. De Tastel, 1 Taunt. 177, where it is held that where goods were deposited with a warehouse- man, not as warehouseman, but as a private agent, he could not main- tain a bill of interpleader. It seems that the mere fact that a contract relation existed be- tween appellants and Hardin & Smith, by the terms of which the former were bound to pay the proceeds of the sale to the latter, does not necessarily deprive appellants of the right to file a bill of inter- pleader. Bechtel v. Shaefer, 117 Penn. St. 555. In many of the text books, and also in some of the cases, it is stated that the bailee cannot file a bill of interpleader against the bailor and a third person claiming title ; yet in every case to which we have been referred, or which we have found, wherein that statement is made, it is either dictum, or the facts show a personal obligation upon the Ch. 9.) BILLS OF INTEEPLEADER. 14:o part of the complainant to one or more of the defendants outside of that which arises solely from the legal consequences of the bail- ment. In Platte Valley Bank v. Nat'l Bank, 155 111. 250, Halsey deposited with the National Live Stock Bank the sum of $5,963.18, to be credited to the Platte Valley Bank, and to be paid to the latter bank upon a draft to be drawn by it. The former bank notified the latter bank of the deposit. Before the Platte Valley Bank had drawn this money an Omaha bank notified the National Live Stock Bank that it claimed the fund as the proceeds of certain cattle owned by Halsey, by him mortgaged to the Omaha bank, and then by him wrongfully converted without its knowledge or consent, and that the Platte Valley Bank had notice of such wrongful conversion. It was held that a bill of in- terpleader filed by the National Live Stock Bank, makjng the contesting banks and Halsey defendants, could be maintained. The facts in that case are quite similar to those in the one at bar. But it is not necessary to a decision of this case that we should hold that a com- mission merchant who has taken upon himself no other obligation than that which arises from the receipt of the goods consigned to him, may file a bill of interpleader when the title to such goods or the title to their proceeds is claimed by a third party. . . . RAUCH V. FT. DEARBORN NAT. BK. (Supreme Court of Illinois, 1906, 333 III. 507, 79 N. E. 273.) Mr. Chie)!' Justice Scott. . . . The first requisite of a bill of interpleader is, that it must show that the defendants are claiming the same debt, duty or thing from the complainant. (Cogswell v. Armstrong, 77 111. 139; Platte Valley Bank v. National Live Stock Bank, 155 id. 250; Morrill v. Manhattan Life Ins. Co. 183 id. 260.) Appellants contend that the bill in this case is fatally defective be- cause it does not show that they are claiming the same debt or duty that is claimed by Rein or the drawee banks. It is therefore necessary to determine what is claimed by the respective defendants to the bill. Under Rein's contention that the endorsements on the checks were authorized or ratified by Rauch & Co. appellee occupies the position 1-^-i BILLS OF INTEEPLEADEB. (Part 3 of debtor towards Rein, (\\'oodhou.se v. Crandall, 197 111. 104,) and Rein is claiming a debt from appellee which was created by depositing the checks and receiving credit therefor upon his deposit account. Under appellants' contention that the endorsements were forged, the drawee banks stand in the relation of debtors to appellants, (Munn v. Burch, 25 111. 35; Gage Hotel Co. v. Union Nat'l Bank, 171 id. 531 ;) and appellants are claiming debts from the drawee banks which were created by a demand for the payment of checks drawn by depositors of those banks, payable to the order of appellants. The defendant banks are not claiming any debt from appellee, but a duty to defend the suits brought against them by appellants and a liability on the part of appellee to reimburse the defendant banks for such sums as they may be required to pay in satisfaction of judgments rendered in those suits on> account of the eight checks in question. The bill does not allege that appellants are asserting any claim whatever against appellee for any debt, duty or other thing. So far as appellants are concerned, appellee is a perfect stranger to the trans- action through which appellants claim the debts against the drawee banks, and the fact that the drawee banks, relying upon the endorse- ments of appellee's name on the checks, have paid over to the appellee the money called for by those checks and are preparing to enforce the liability against appellee upon those endorsements in case recovery is had upon the checks in the suits brought against them does not change the nature of the appellant's demand against the drawee banks, nor substitute the liability of appellee for that of the drawee banks upon the debts claimed by appellants. First Nat'l Bank v. Pease, 168 111. 40. It is therefore apparent that appellants are not claiming the same debt, duty or other thing that is claimed by Rein or by the drawee banks, and the bill is in this respect fatally defective as a bill of inter- pleader. Appellee urges, however, that the bill can be maintained upon the theory that the appellants have a cause of action against it if the endorsements of the firm name on the checks were forged. Any right of action that appellants may have against appellee arises from the fact, if it be a fact, that they never transferred the title to the checks to any one, and when appellee surrendered the checks to the drawee banks and received the proceeds thereof the transaction was an unlaw- Ch. 9.) BILLS OF INTE^RPLEADEE^ 145 ful conversion of appellants' property, for which they might main- tain an action of trover against the appellee, or might waive the tort and bring suit in assumpsit for money had and received for their use. Talbot v. Bank of Rochester, 1 Hill, (N. Y.) 295; Robinson v. Chemi- cal Nat'l Bank, 86 N. Y. 404. Manifestly, when one person is claiming a debt arising out of con- tract and another damages arising out of a tort, both are not claiming the same debt, duty or thing. Thus, in Willard's Equity Jurisprudence, 318, it is said: "Suppose the vendee of goods should be sued by the vendor for the price and by a third person claiming a right paramount to that of the vendor. Here it is obvious that a bill of interpleader will not lie, because one of the claimants merely seeks to enforce a con- tract and the other claims as for an unlawful conversion. (Slaney v. Sidway, 14 Mees. & Welsh. 800.) . . . On the same principle, where a party having purchased a rick of hay from an executor de son tort was threatened with a suit from the rightful administrator of the same estate, and payment de- manded, he was held not to be entitled to maintain a bill of inter- pleader or to have relief under the Interpleader act. As actual purchaser he was liable on his express contract unless he could defend the action. To the rightful administrator he was Hable only in tort for the conversion. Though the property claimed was the same, the duty or obHgation was different. — James v. Pritchard, 7 Mees. & Welsh. 216; Glyne v. Duesbury, 11 Sim. 139." Moreover, the authorities seem to be uniform upon the proposition that a bill of interpleader cannot be sustained where the complainant is obliged to admit, or where it appears, that as to either of the de- fendants he is a tort feasor. 11 Ency. of PI. & Pr. 457; Willard's Eq. Jur. 320 ; Beach on Modern Eq. Pr. sec. 143 ; 2 Daniell's Ch. Pr. (5th ed.) 1566; Maclennan on Interpleader, 60; Conley v. Insurance Co. 67 Ala. 472; Mount Holly, etc. Co. v. Feree, 17 N. J. Eq. 117. As hereinbefore stated, appellants are not making any claim against appellee. They have instituted suits against the drawee banks upon the checks, and seek to recover from them in actions ex contractu on the theory that the endorsements of their firm name upon the checks were forged or unauthorized. We are of the opinion that where a person has a cause of action against one upon a contract and against another for a tort, and the satisfaction of a judgment 3 Eq— 10 146 BILLS OP INTERPLEADER. (Part 3 against either upon the cause of action against him would be a bar to the enforcement of the cause of action against the other, a court of equity is without power to compel such person to relinquish his claim and abandon his suit against the one liable upon the contract and require him to proceed against the one liable for the tort. This, in effect, is what appellee is attempting to accomplish in this suit. It is asking that appellants may be enjoined from prosecuting their suits against the drawee banks upon contracts and be compelled to liti- gate their right to recover against appellee for a tort. In our judgment a bill of interpleader, for the reasons stated, cannot be maintained against appellants under the facts disclosed by the bill, and the demurrer should therefore have been sustain- ed. .. . COOK V. EARL OF ROSSLYN. (In Chancery, 1859, 1 Giff. 167.) The Vice ChancBllor: By the general rule of the Court, which is so convenient that it should be strictly observed, a tenant is not entitled to maintain a bill of interpleader against his landlord. Lord Rosslyn, in the case of Dungey v. Angrove (2 Ves. 303^), laid down the rule in these terms : "The only case in which a tenant can come into this court by an interpleader bill is, where the lessor has done some act himself that embarrasses the tenant, which is the case of a mortgage ;" that means, by a mortgage granted after the lease. And at page 307, he says, "While the tenant is bound by contract to pay to Angove" (that is, the lessor), "Hernal (the mortgagee) may eject him, and may bring an action for use and occupation, but he never can for the rent. This is a different demand. The parties inter- pleading must each in supposition have a right to the same demand.'' Such is the rule as stated by Lord Rosslyn. Lord Eldon, in deciding the case of Cowtan v. Williams (9 Ves. jun. 107), had to consider the right of a tenant to file a bill of inter- pleader against his landlord. The Attorney-General, for the defendant, insisted that the tenant could not file a bill of interpleader against his landlord. Mr. Romilly, for the plaintiff, distinguished this as a case Cll. 9.) BILLS OF INTERPLEADER. 147 of exception, where the question arises from the act of the landlord, subsequent to the lease. L,ord Eldon concurred in that distinction, and mentioned "Lord Thomond's case, in which a bill of interpleader was filed by tenants against their landlord and persons claiming an- nuities granted subsequently to the lease.; and the bill was supported by Sir Thomas Sewell, the tenant being by the act of the lessor en- tangled in a question which he could never settle." In the present case, the legal estate is in mortgagees, who con- curred in the demise executed by Mr. Walrond, in exercise of a power. The title of the plaintiff is derived under the mortgagees and under Mr. Walrond, but with a covenant upon the part of the plaintiff to pay the rent to Mr. Walrond, unless it shall be demanded by the mortgagees. It is said, however, that notwithstanding this stipulation. Lord Rosslyn was a trustee ; that the plaintiff's having notice of Lord Rosslyn's title, whether it be a mere equitable title or not, yet, having notice of it when he is applied to by Lord Rosslyn as well as by Mr. Walrond to pay his rent, he is entitled to file a bill of interpleader, and to call upon this Court to determine which of these two defendants are entitled. But the rule is plain, that no tenant has a right to file a bill of in- terpleader in any such case. The principle of the rule seems to be, that if one party by a deliberate covenant with another engage to pay a sum of money, and that other person has not by any dealing of his own entangled his right to recover that money so secured, it is not competent to the covenantor, on the ground that a claim is made by some person asserting a paramount title, to file a bill of interpleader in this court. Here, knowing the state of the title, the tenant chose to take possession from those who had the legal estate by an arrange- ment between the trustees and Mr. Walrond, who is the donee of the power, that the rent should be paid under his covenant to Mr. Walrond, until the other parties, of whom Lord Rosslyn was not one, should think fit to give any other direction. . . . LUND V. SEAMEN'S BANK FOR SAVINGS. (Supreme Court of New York, 1862, 37 Barb. 129.) The plaintiff alleged in the complaint that the defendant was and is a corporation duly created under the laws of the state of New I'^S BILLS OF INTEEPLEADER. (Part O York. That on or about the seventeenth day of March, 1860, Anders Larsson deposited with the defendant the sum of twenty-two hundred dollars, which sum the defendant promised and agreed to repay to said Larsson personally, or on his order in writing, and upon the pro- duction of the book delivered by the defendant to said Larsson at the time such deposit was made, numbered 81,342, and in which the amount of such deposit was entered to the credit of said Lars- son. . . . By the Court, Leonard^ J. . . .The demurrer to the second defense presents an entirely different question. The plaintiff is the assignee of a depositor in the defendant's bank. The defendant alleges that the deposit is the proceeds of sundry securities belonging to Pehr Erik Larsson and others, which the depositor obtained and fraudulently converted into money, and that Pehr Erik Larsson &c. have notified the defendant of these facts, and that they claim the deposit as their property. It must be conceded on authority, as insisted by the defendant, that the claim of the depositor is a chose in action and not a bailment. (Chapman v. White, 2 Seld. 412, 417. Downes v. The Phoenix Bank, 6 Hill, 279.) The rule which forbids a bailee to deny the title of his bailor is not applicable. No principle of law can however be found which permits a debtor for goods sold, or for money lent or deposited, to set up, as a defense against the claim of his creditor, that his title to the goods sold, or money lent or deposited, is defective or wrong- ful. That question is of no concern to the purchaser or borrower, unless the third party who claims to have been despoiled of his goods or money will proceed, by process of law to enforce his rights. It can never be permitted that a debtor may volunteer, by plea or answer, the protection of the claims of those with whom he has had no deal- ings, to defeat his liability for the performance of his contracts. The law forbids the defendant to interplead, because these third parties are not in privity with the depositor, but were claiming by a hostile and superior title. Fletcher v. Troy Saving Bank, 14 How. Pr. R. 383; Shaw v. Coster, 8 Paige, 343; Marvin v. Elwood, 11 id. 365.) It would be a mere evasion to permit the defendant to interpose such rights of third parties as a defence, which they are prohibited from alleging as grounds for an interpleader. The pretended claimants Ch. 9.) BILLS OF INTERPLEADER. 149 have shown no wish to enforce their claims against the depositor, if any they have. . . . WELLS FARGO & CO. v. MINER. (United States Circuit Court, 1885, 25 Fed. 533.) Sawyer, J. This is an appHcation for a prehminary injunction, in a suit on the equity side of the court, brought by the banking-house of Wells, Fargo & Co. against Richard S. Miner, Frank Silva, and the Southern Development Company of Nevada, to compel them to interplead with one another respecting a certain certificate of deposit, for $7,500, which was issued by complainant to defendant Silva. From the papers used on the hearing, it appears that Silva sold a mining claim to the Southern Development Company for an agreed price of $10,000, and received in payment a check for that amount on the Bank of California. Silva deposited the check with the banking house of Wells, Fargo & Co., who thereupon paid him $2,500 in coin, and issued to him a certificate of deposit for $7,500, "payable to Frank Silva, or order, on return of this certificate properly in- dorsed." By mesne assignments, before maturity, the certificate came into the possession of the defendant Miner, who now claims to be the owner and holder thereof ; but he is alleged by the Southern Develop- ment Company not to be a holder in good faith. The Southern Development Company claims that in the sale of the mine Silva made certain false and fraudulent representations as to its character and value, upon which it relied, and by reason thereof it is entitled to re- scind the sale, and recover back everything of value which it paid to Silva. Accordingly, before any presentation of said certificate for payment, the Southern Development Company notified Wells, Fargo & Co. that the check on the Bank of California had been obtained by Silva by means of fraud, misrepresentation, and deceit, and that it claimed the certificate in question, and warned them not to pay it to Silva. The Southern Development Company then caused Silva to be arrested and prosecuted on the criminal charge of obtaining money under false pretenses; but the jury disagreed on the trial, and there- upon the district attorney dismissed the information, and the prisoner 150 BILLS OP INTEEPLEADEE. (Part 3 was discharged. The Southern Development Company then brought a civil action against Silva, which is now pending in this court, to re- cover $15,000 damages, alleged to have been suffered by reason of the fraudulent misrepresentations aforesaid, of which suit it notified complainant. It also brought suit against Wells, Fargo & Co., in which neither Silva nor Miner was made a party, to enjoin the payment of the certificate until the determination of the aforesaid action against Silva for $15,000 damages. In this suit, Wells, Fargo & Co. suffered a default, and judgment was rendered against them according to the prayer of the complainant. At this point. Miner presented the cer- tificate to Wells, Fargo & Co. for payment, which was refused on the • ground that they had been enjoined, and thereupon Miner instituted an action at law on the certificate against Wells, Fargo & Co., in this court. They appeared in that action, and made a motion, under section 386 of the Code of Civil Procedure of California, that the Southern Developrnent Company be substituted in their place and stead as defendant. This motion was argued elaborately, and denied by the district judge of Nevada, holding the circuit court, on the ground that an equitable cause of suit could not be thus injected into an action at law in the United States courts. Thereupon, Wells, Fargo & Co. instituted the present suit in equity, to compel the de- fendants to interplead, and they now move for a preliminary injunc- tion, restraining the prosecution of the actions against them respecting the certificate until the determination of the rights of the parties upon an interpleader. They offer to pay the money into court for the benefit of the party who shall be adjudged entitled to it. . . . This is a motion for an injunction to restrain the prosecution of those suits until the determination of the rights of the parties on the bill for interpleader. The defendants do not deny that the com- plainants are entitled to the injunction, provided the case is a proper one for a bill of interpleader. They .'-.ay it is not within the class of cases in which courts of equity, under the chancery practice as it heretofore existed, and under the law of England, have interfered. Conceding defendants to be right on this proposition, it is still, in my judgment, within one of the provisions of the Code of Civil Pro- cedure of the state of California, provided that provision is applicable. Section 386, among other things, provides as follows : "And when- ever conflicting claims are or may be made upon a person for, or Ch. 9.) BILLS OF INTEEPLBADEE. 151 relating to personal property, or the performance of an obligation, or any portion thereof, such person may bring an action against the conflicting claimants to compel them to interplead, ' and litigate their several claims among themselves. The order of substitution may be made, and the action of interpleader may be maintained, and the appHcant, or plaintiff, be discharged from liability to all or any of the conflicting claimants, although their titles or claims have not a com- mon origin, or are not identical, hut are adverse to and independent of one another." The contention here is that these claims have not a common origin, are not identical, that there is an independent claim, and therefore that they are not within the original chancery jurisdiction. If this clause be applicable, and can be acted upon in this court, it abolishes the dis- tinction resting upon these elements. It is insisted, on the part of the defendant here, that the statute cited is not applicable to the United States courts of equity, as the Code of Procedure does not apply on the equity side of the courts. If it were merely a provision regulating procedure, undoubtedly it would be so ; but I think it is more than that. It gives a right to a party in equity. It enlarges his equitable rights; it enlarges the scope of his remedy. It is not a question of enlarging the jurisdiction of the court; it gives a new remedy, — a new right in the form of a remedy. . . . The statute gives a new right, and if this case does not come within the rule before estabhshed by courts of chancery in regard to the points made, I think, under the statute, the remedy is so enlarged as to cover the case ; and, as it now stands, the right can be enforced in a court of equity of the United States. The statute gives a new right, — an enlargement of the scope of the remedy; and, it being a case peculiarly of equitable cognizance, it can be enforced on the equity side of the court. . . . The defendants are liable on that certificate either to the develop- ment company or to Miner. They are not liable to both. They do not know which. That is the very thing to be ascertained. The doctrine relied on to deny an interpleader is that announced in Craw- shay V. Thornton, 2 Mylne & C. 1, an English case, decided before the present system of practice in England went into effect. It is very doubtful in my mind whether that doctrine would be sustained at this time even in England. The observations of a number of English J 52 BILLS OF INTEEPLEADEE, (Part 3 judges made subsequently to the decision of that case, and to the change of the law by statute, indicate that they repudiate the doctrine there announced, ,and regard the grounds on which the distinction is rested as being very narrow. The act of 1860, in England, like the provisions of the California Code of Procedure which I have just read, has abolished the distinction taken in that case. The provision is similar to our statute. I presume our statute was adopted from the EngHsh act of 1860. I should be very much disposed to hold the case to be a proper one for interpleader, even if it stood on the ordinary principles of equity jurisprudence alone, without the aid of this act enlarging the equitable rights of parties in such cases. At all events, I am satisfied that by this act a new right was created, broad enough to reach the case, which can be enforced in this court. I am satisfied, therefore, that it is a proper case for a bill of inter- pleader, and that the injunction should be granted. The motion is granted, on giving security in the sum of $10,000. QUINN v. PATTON. (Supreme Court of North Carolina, 1841, 37 N. C. (3 Ired.) 48.) RuFFiN^ C. J. . . As to the principal point, the case falls directly within the decision made a year ago in the suit of the present plaintiff against Green and others, 1 Ired. Eq. Rep., 229. The dif- ficulties of the plaintiff arise merely on his official duty as sheriff and on the legal priorities between the several defendants. Questions of that kind are more conveniently raised and decided at law than in this Court. If every adverse pretention to preference in the application of an insolvent's property among his creditors, claiming by executions or attachments, would authorize the sheriff to call upon the creditors to interplead, a judgment would seldom be satisfied but at the end of a suit in -equity. It would change the whole jurisdiction, and the courts of law would in but few cases be able to compel the sheriff to do his duty upon the process issued to him. . . . Ch. 9.) BILLS OF INTEEPLEADEE. 153 QUINN V. GREEN. (Supreme Court of North Carolina, 1840, 1 Ired. 229.) RuPFiN, Chief Justice. The plaintiff, being sheriff of Lincoln county, received a writ of fieri facias for $2,498.23, with interest and costs, recovered by the defendant Green against the defendant John- son, as administrator of Timothy Chandler, deceased. The plaintiff placed the execution in the hands of one Maury, one of his deputies, who seized under it two slaves, which were found in the possession of the defendant Morris ; and also six other slaves, and some cattle and household furniture, which were found in possession of the defendant Elizabeth Chandler. The seizure was made by the direction of the creditor Green, who pointed out the slaves and other articles to the deputy sheriff, as property belonging to the estate of Timothy Chandler, derived from Elizabeth Chandler by their intermarriage and his sub- sequent possession. Morris, alleging the two slaves, that were taken out of his possession, to belong to him under an appointment by Elizabeth Chandler under a power in the will of one Arthur Graham, a former husband of the said Elizabeth, instituted an action of detin •- for those slaves against Maury and Green. James Graham, as ad- ministrator of one William Graham, deceased, (who was a son of the said Arthur Graham, deceased,) also claimed the other six slaves, under a provision in the will of the father, Arthur ; and brought an action of detinue for them against the same persons. A third action, namely, trespass, was brought against the same parties, Maury and Green, by Elizabeth Chandler, who claimed property in part of the slaves and other articles and the right of possession of the whole, and denied that any part was of the estate of her last husband, Tim- othy Chandler. The deputy sheriff delivered all the effects seized to his principal, the present plaintiff ; and he was required by the creditor, Green, to proceed to a sale, and also by Johnson, the administrator of Timothy Chandler, who insisted that the slaves and other things did belong to the estate of his intestate. The sheriff then filed this bill, as a bill of interpleader, against Green, Johnson, administrator of T. Chandler, and against the plaintiffs in the three actions at law, that 354 BILLS OF INTEEPLEADEE. (Part 3 is to say, Morris, James Graham, administrator of William Graham, and Elizabeth Chandler; in which he acknowledges the possession in him- self of all the property seized by his deputy, and submits to deliver to either or any of the defendants, or otherwise to dispose of it as of right he ought ; and, in the meanwhile, prays for an injunction against further proceedings in the suits already brought at law, and also to restrain the creditor. Green, from taking any steps at law to compel him to sell, or amerce, or otherwise punish him for not selling. To this bill the defendants Green and Johnson, administrator, de- murred; and the other defendants put in answers, setting forth the nature of their respective claims, and submitting to interplead with the other parties. But when the cause came on to be argued on the demurrer, between the plaintiff and the two defendants, who had put it in, the Judge of the Court of Equity was of opinion, that the case was not a fit one for a bill of interpleader, and therefore sustained the demurrer and dismissed the bill against those two parties. From that decree the plaintiff appealed to this Court. In support of the bill, the counsel for the plaintiff has been unable to adduce the authority of any adjudication. His only reliance is a dictum of Lord Mansfield, in Cooper v. Sheriff of London, 1 Bur. 37; in which he mentions a bill filed in Chancery by the sheriff, in a case of disputed property, as one of the modes in which a sheriff may be relieved from danger or indemnified from loss. That, however, could not be a question in that cause; and, indeed, the doctrine belonged to another jurisdiction, and, therefore, although laid down by an eminent Judge, is not authority. We are saved the necessity of discussing the question on elementary principles, by having a case in equity deciding it in opposition to that opinion of Lord Mansfield. Slingsby v. Boul- ton, 1 Ves. & Bea. 334, was a bill of interpleader by a sheriff, similar to the present ; and, on the motion for an injunction. Lord Eldon en- quired for an instance of such a bill by a sheriff, and, none being cited, he declared the sheriff to be concluded from stating a case of inter- pleader, because in such a bill the plaintiff always admits a title against himself in all the defendants. He said, a person cannot file such a bill who is obhged to state, that as to some of the defendants the plaintiff is a wrong doer. If, in this case, the property was in the plaintiffs in the actions that have been brought at law, the sheriff was a trespasser in seizing ^- 9.) BILLS OF INTERPLEADER. 155 it, and he did it upon the responsibihty of answering for the act as a trespass. Against that risk he should have provided, by taking a bond of indemnity from the execution creditor. He cannot escape from responsibihty by turning over the owners of the property on the creditor. On the other hand, if the property was really subject to the debt, it was properly seized, and the creditor is entitled to have it sold, notwithstanding unfounded actions or claims by third persons. The sheriff having thus made himself liable to one or other of the parties, by misfeasance or nonfeasance, is not a mere stake-holder, but his interest is directly involved in any decision that can be made on the claims of the other parties. ' The decree must therefore stand affirmed and with costs in both Courts. Pbr Curiam. Decree accordingly. GURLEY v. GRUENSTEIN. (Supreme Court of New York, 1904, 44 N. Y. Misc., 370, 89 N. Y. Supp. 886.) Action of interpleader by the city of New York against James A. Cody and others. Prayer of plaintiff to be allowed to pay money into court, and the defendant interplead among themselves for the same. Judgment for plaintiff, with costs. Gaynor^ J. The essential facts are these : The plaintiff owed the defendants Cody Brothers $9,962.53. They assigned the debt to George Fruh, and he assigned it to the defendant Cahen. They afterward also assigned it to Teresa Cody, and she assigned it to the defendant Elizabeth Cody. After notice of these assignments had been filed with the comptroller of the plaintiff, the defendants Fleer and others, as judgment creditors of Cody Brothers, brought suits against them and this plaintiff (the city of New York) and the said Teresa and Elizabeth Cody to set aside the said assignment to the said Teresa Cody, and to reach the fund and have it applied on their judgments; and they prevailed in their suits. Instead of paying over the money under the said judgments, the city now brings this interpleader suit, making the said Cahen a defendant, 156 BILLS OF INTEEPLEADEE. (Part 3 as she claims the fund under the said prior assignment to Fruh. Cahen was not a defendant in the said judgment creditor suits, nor did the city in its answer therein set up her claim. It answered by a general denial only. As the said judgment creditors knew of the assignment under which Cahen claimed the fund (they produced it and put it in evidence on the trial of their suits), but nevertheless omitted to make Cahen a defendant, their claim now that the city should be defeated here for laches in not pleading the claim of Cahen in the said suits is untenable. They were in no way misled by the city, and hence there is no foun- dation for their claim of laches against the city. The neglect of Cahen not being a party was primarily theirs. If the city alone had knowl- edge of the Cahen claim, or if it was under a duty to cause it to be litigated in the said suits and the plaintiiTs therein were unable to cause it to be so litigated, the case here would be different. Baker v. Brown, 64 Hun, 627, 19 N. Y. Supp. 258. Judgment for the plaintiff without costs. KOPPINGER v. O'DONNELL. (Supreme Court of Rhode Island, 1889, 16 R. I. 417.) Bill in equity in the nature of interpleader, and for an account and to redeem. On demurrer to the bill. January 26, 1889. DurPEK, C. J. The case set forth in the bill is as follows : The complainant, being seized on March 22, A. D. 1876, of a lot of land in. Cranston, mortgaged it to Willam Hartly to secure a note for $300, given by her husband to said Hartly. June 26, 1878, Hartly sold the mortgage and note to the defendant, Hugh O'Donnell, for a valuable consideration paid by said Hugh, but transferred the mortgage to the defendant, Catherine O'Donnell, wife of said Hugh. On December 7, 1876, the complainant mortgaged said lot to secure a note for $200 given by her husband to said Hugh for money lent to him by said Hugh, but the mortgage was made to said Catherine. The complainant always understood that her liability was to Hugh, and paid the interest accruing on the notes to him, and Catherine never demanded the interest thereon until within a year. The bill avers Ch- 9-) BILLS OF INTEEPLEADER. 157 on information and belief that the mortgages and notes were de- livered to Hugh, and have always been held by him as his own ; but Catherine now claims to be the legal owner and to be entitled to pay- ment, and has advertised the mortgaged lot for sale under the power contained in the second mortgage. The complainant avers that she is ready to pay the notes and mortgages, but Catherine not having them cannot surrender them when paid, and that Hugh who has them demands payment to himself. The prayer is, that an account may be taken to ascertain the amount due on the notes, and that the com- plainant may be permitted to pay the amount when ascertained into court; that the respondents may thereupon be decreed to interplead, and to cancel said notes and mortgages, and surrender them to the complainant ; and for an injunction meanwhile staying sale under the mortgages, or either of them, and for general relief. Catherine has demurred, and the case is before us on her demurrer. The defendant, Catherine, contends in support of the demurrer, that the bill does not make a case for interpleader, because, if the allegations of the bill are true, the complainant can exonerate herself from liability by paying the notes to Hugh, since the notes, if the allegations are true, clearly belong to him. Doubtless it is incumbent on the complainant in a strict bill of intei'pleader to show by the bill not only that there are conflicting claims, but also that it is doubtful which of them is right. It is not clear that the bill here does not answer this requirement. It shows that the two defendants both claim to be entitled to payment, and that, while the husband paid the money for the notes and mortgages, the mortgages were taken in the name of the wife, which affords a presumption that they were intended as gifts to her. The fact that the husband has kept them in his posses- sion, and has collected the interest on the notes, is not necessarily inconsistent with such an intent, he being her husband. The bill, how- ever, is not a strict bill of interpleader, for in such a bill. the com- plainant only asks for liberty to pay the money to whichever party is entitled to it, and thereafter be protected against the claims of both ; whereas the complainant here seeks relief for herself as well, and prays for an ad interim injunction, and that an account may be taken to ascertain the amount due on the mortgages, and upon payment thereof to have the mortgages cancelled and the mortgages and mort- gage notes surrendered to her. Such a bill is denominated a bill in 158 BILLS OF INTERPLEADER. (Part the nature of a bill of interpleader, and has been held to be the proper remedy where, as here, the complainant is a mortgagor seeking to redeem, and there are conflicting claims to the mortgage money. Bedell V. Hoffman, 2 Paige, 199 ; 2 Story Eq. Juris, sec. 824. We think the first ground of demurrer is untenable. . . . We do not think that an affidavit negativing collusion was necessary inasmuch as, the complainant seeking affirmative relief, the bill is not strictly a bill of interpleader. 2 Daniell, Chan. Plead. & Practice, 1563; Vyvyan v. Vyvyan, 30 Beav. 65, 70. Demurrer overruled. Ch. 10.) BILLS OF PEACE 159 CHAPTER X. BIIvIvS OF PEACE CADIGAN V. BROWN. (Supreme Court of Massachusetts, 1876, 120 Mass. 493.) Morton, J. This is a bill in equity alleging that each of the plain- tiffs is the owner of a lot of land abutting on a passageway five feet wide, and, as appurtenant thereto, has a right of way over said passage- way in common with others; that the defendants have commenced to build a house at one end of the passageway, so as to narrow the width of the entrance to about four feet, and have raised the grade and filled up a part of the passageway so as to injure the access to the lots of the plaintiffs. The prayer is that the defendants be restrained from building the house, that the said obstructions may be removed, and for general relief. The defendants demur, upon the grounds that the plaintiffs are improperly joined, and that they do not state a case which entitles them to relief in equity, having a plain, adequate and complete remedy at law. . . . 2. The other ground of demurrer is that the plaintiffs are improp- erly joined. The bill shows that each of the plaintiffs owns a lot abuttirig on the passageway, by a separate and independent title. They derive their titles from different grantors. Undoubtedly, in a suit at law for the nuisance, they could not properly join. But the rule in equity as to the joinder of parties is more elastic. Generally, when several persons have a common interest in the subject matter of the bill, and a right to ask for the same remedy against the defendant, they may properly be joined as plaintiffs. Thus in Parker v. Nightin- gale, 6 Allen 341, the plaintiffs, being several owners of lots in Hay- ward Place, each lot being held subject to the restriction that no build- ings should be erected thereon except for dwelling-houses, joined in a suit to restrain the defendants from violating the restriction. So in Ballou V. Hopkinton, 4 Gray, 324, several owners of mills upon a 160 BILLS OF PEACE. (Part. O stream joined as plaintiffs in a bill in equity to restrain the defendant from diverting and wasting the water of a reservoir, and to equal- ize the flow of water in the stream. Indeed, in the latter case the- court assigns, as one of the reasons for holding jurisdiction in equity, that at law each owner must bring a separate action to obtain a remedy for his particular injury, and thus the remedy in equity prevents a multiplicity of suits. In the case at bar, the plaintiffs, though they hold their rights under separate titles, have a common interest in the subject of the bill. They are affected in the same way by the acts of the defendants, and seek the same remedy against them. There is no danger of confusion in the trial, or of injustice to the defendants, from the joinder of the plaintiffs; but the rights of all parties can be adjusted in one decree, and a multiplicity of suits is prevented. We are therefore of opinion that this ground of demurrer cannot be sustained. . . . POWElvL AND OTHERS v. THE EARE OF POWIS AND OTHERS. (In the Exchequer, 1836, 1 Y. & J., 159.) / The bill stated, that the plaintiffs were seized in fee of several ancient freehold messuages or tenements, with the appurtenances, situate within, and holden of, the honor of lordship of Clun, in the county of Salop; and then were, and for several years had been, in the occupation of such messuages or tenements ; and that they, and those whose estate they respectively had, as such tenants as afore- said, had from time whereof, &c. had, and of right ought to have, common of pasture for all their commonable cattle levant and couchant, common of turbary, and also common of estovers, in, upon, and throughout a certain forest or waste, parcel of the said honor or lord- ship Clun, called the forest of Clun ; that the several other tenants of the honor or lordship were entitled to the same rights. That the Earl of Powis was, and had been for many years, seised of the honor or lordship, and had lately taken upon himself to inclose, or to permit to be inclosed, certain large portions or tracts of the forest, to the detri- ment of the plaintiffs and the other persons entitled to commonable Ch. 10.) BILLS OF PEACE 101 rights ; and that the Earl of Powis had granted the parts so inclosed to the other defendants, except the defendant Edye, who were in possession of them. That the right of the several tenants of the honor or lordship to common of pasture without stint, and to common of estovers upon the said forest or waste, was established by a decree of this Court, Hil. T. 24 Eliz. her said Majesty being then seised in right of the Crown of the said honor or lordship. That the plaintiffs, a short time before the filing of the bill, had broken down parts of the fences of the parts so inclosed, for the purpose of exercising their commonable rights. The bill charged, that the several defendants, ex- cept the Earl of Powis, had, at the instigation of the Earl, or with his concurrence, and on some understanding that he would defray the ex- pense, commenced actions of trespass against the plaintiffs. The bill also charged, that the defendant Edye was steward of the lordship, and, as such steward, had in his custody the books and muniments relating to the customs of the lordship and the rights of the tenants, but that he colluded with the other defendants and refused to produce them. The bill further charged that Earl Powis and Edye had divers books, writ- ings, &c. from which the facts stated in the bill would appear. The bill prayed, that the rights of common of the plaintiffs and the other freehold tenants might be established ; and that the plaintiffs and the other tenants might be quieted in such rights ; that the Earl of Powis might be restrained from inclosing any part of the forest, to the prej- udice of the plaintiffs and the other tenants, and from obstructing or molesting them in their commonable rights ; and for an injunction against the actions of trespass brought by the other defendants. To this bill the defendants put in a general demurrer. . . . Simpkinson, in support of the hill. . . . The law is clearly laid down in Lord Tenham v. Herbert (2 Atk. 483). There the Lord Chancellor said, "where a man sets up a general exclusive right, and where the persons who controvert it with him are very numerous, and he cannot by one or two actions at law quiet that right, he may come into a Court of Equity first which is called a bill of peace, and the Court will direct an issue to determine the right, as in disputes be- tween lords of manors and their tenants, and between tenants of one manor and another ; for in these cases there would be no end of bring- ing actions of trespass, since such action would determine only the par- ticular right in question between the plaintiff and defendant." . . . 3 Eq— 11 162 BILLS OF PEACE. (Part. 3 IvORD ChiE:P Baron. This is a demurrer to a bill, commonly called a Bill of Peace. The cases establish that a bill may be brought by a lord against his tenants, and by tenants against the lord, in respect to rights of common. It is a bill of peace, and to prevent multiplicity of actions. The dicta and cases shew, that it is no objection to this bill, that the defendants may each have a right to make a separate defence, provided there be only one general question to be settled, which pervades the whole. — It would be against all the cases to allow this demurrer ; it would put the bill out of Court. It is not to be inferred from this that the Court will assume jurisdiction to decide any legal question without referring it to law. But until the defendant has answered, the Court cannot know what the question may be. In all probability there may be one general question, as between the lord and all the tenants. It may certainly be a question whether the lord will approve at all. It may also be a question if he does, whether he has left sufficient common for the commoners. In the case of Weekes v. Slake, issues were directed. We are therefore of opinion that the Court must hear more of the case before it can ascertain what course ought to be taken. This cannot be known until the answer comes in. This pledges the Court to nothing. Demurrer overruled. KEYES V. LITTLE YORK GOLD WASHING & WATER CO. (Supreme Court of California, 1879, 53 Cal. 724.) By The Court. The complaint sets forth that the plaintiff is the owner of certain described premises known as bottom land, situate in the valley, upon the banks of Bear River, about ten miles from where that stream debouches into the Sacramento Valley, and midway between that point and the mouth of the river; that the defendants are miners severally engaged in hydraulic mining at points high up on Bear River and its tributaries — the several mining properties of the defendants lying within a radius of seven miles upon the hill-tops adjacent to the river, and being severally wrought and carried on by the respective defendants, and that the several dumps used by the defendants respectively in their mining pursuits are some of them in Ch. 10.) BILLS OP PEACE 163 the bed of the river, others in the beds of steep ravines and gulches immediately contiguous to and leading into the bed of the river and its tributaries ; that the tailings of the several mining claims deposited on these dumps are swept down the river by the force of the current until they reach the lands of the plaintiff below, upon which they are deposited, and which they cover so as to destroy the value of the said lands. The prayer is that an injunction issue enjoining the de- fendants from depositing the tailings and debris of their several mining claims so that they reach the channels of the river, etc. The defendants appeared to the action, and filed a demurrer to the complaint upon several grounds — and, among others, upon the ground that there is a misjoinder of parties defendant, in that it did not appear by the complaint that the defendants jointly committed any of the acts complained of, or are acting therein in concert or by collusion with each other, but that, on the contrary, it did appear by the com- plaint that the defendants had no interest in common in the subject- matter of the suit, but were acting severally and without any joinder or co-operation on the part of the defendants, or any of them. The demurrer was overruled by the Court below, and the propriety of its action in that respect is brought in question by this appeal. . . Several cases were cited by counsel for respondent which it was claimed would sustain the joinder of the defendants in this action, but an examination will clearly distinguish them from the present. Mayor of York V. Pilkington, 1 Atk. 282, was a bill of peace to prevent a multiplicity of suits. In a certain sense, all bills of peace are intended to prevent multiplicity of suits, but it is a non sequitur to assert that wherever the result of assumed jurisdiction by a Court of Equity will relieve the plaintiff of the inconvenience of bringing several separate actions at law or suits in equity, the complainant is to be termed a bill of peace. In Mayor v. Pilkington, a bill was brought to quiet the plaintiffs in a right of fishery in the River Ouse, of which they claimed the sole fishery "of a large tract" against the defendants, who, it was suggested by the bill, claimed several rights, either as lords of manors of occupiers of adjacent lands. The main question was whether, in view of the fact that there was no privity between '^he defendants, the bill could be maintained. Holding the affirmative on this proposition, the Court of Chancery was authorized to retain the cause for other purposes. But the gravamen of the bill was not that 164 BILLS OF PEACE. (Part. 3 the defendants were several and separate trespassers, (the view upon which the demurrer was sustained at the first argument) but was that the plaintiff had an exclusive right against which defendants were asserting adverse rights. Th6 proceeding was analogous to our action to quiet title. The present case more resembles Dilley v. Doig, 2 Vesey Jr. 486, in which the proprietor of a copyright sought to restrain in the same suit several and independent infringements of his right by dif- ferent persons. In that case there was no allegation in the bill of a claim of right on the part of the defendants to sell copies of the spurious edition of the book, and, from the nature of the circumstances detailed, there could have been no such allegation. The defendants were alleged to be severally wrong-doers without any combination. The Lord Chancellor said: "The right against the different book- sellers is not joint, but perfectly distinct ; there is no privity." The subject-matter of the bill was a wrong done by each of the booksellers ; its object was not to obtain a final determination that the plaintiff had the exclusive right, and that the defendants had no right, (for it was not asserted that they claimed any) but, as in the present case, simply to enjoin wrongs threatened by the defendants severally, and not jointly. . . . We have no doubt that the objections to the complaint above con- sidered could properly be presented by a demurrer on the ground of misjoinder of parties defendant. . . . SOUTHERN STEEL CO. v. HOPKINS. (Supreme Court of Alabama, 1911, 174 Ala. 465, 57 So. 11.) MayfiEld^ J. This is a suit in equity to enjoin the prosecution of 110 separate actions at law. The sole ground of equity jurisdiction up- on which the suit is based is to prevent a multiplicity of suits. The sepa- rate actions at law were brought by the administrators of 110 unfortu- nate workmen, who lost their lives by an explosion in a coal mine. Each of these 110 actions was brought, under the employer's liability act, to recover damages for the wrongful death of the respective in- testate ; was brought against the same defendant, the complainant in this suit; and sought to recover on account of negligence in causing Ch. 10.) BILLS OF PEACE 165 or allowing the explosion which killed the unfortunate workmen. The prayer for rehef is as follows: ".Your orator further prays that your honor will grant unto your orator a preliminary writ of in- junction,, enjoining and restraining each and all of said parties defend- ant and their attorneys and successors from all further proceedings in said actions at law, or prosecuting the same in any manner, until the further orders of this court, and that your honor will proceed to hear and determine the question of the liability vel non of said Ala- bama Steel & Wire Company, in the premises, and, if there should prove to be any such liability', that your honor will further determine the extent thereof, and the manner and mode in which the same shall be prorated or paid." This appeal, for the second time, brings up for our decision the equity of this bill, a full statement of the facts of which, and a dis- cussion of the law involved, may be found in the reports of the case in 157 Ala. 175, 47 South. 274, 20 h. R. A. (N. S.) 848, 131 Am. St. Rep. 20. The question of law involved in this suit is this : Has a court of equity jurisdiction to enjoin numerous tort actions, brought by dif- ferent plaintiffs against the same defendant when there is merely a community of interest in the questions of law and of fact involved, and no common title, no community of interest or of right, in the subject- matter? This question was decided in the affirmative by this court on the former appeal. After the cause was remanded, the complainant amended the bill, and other defendants demurred, and again raised the equity of the bill as last amended. The Chancellor again- sus- tained the demurrer, and from that decree the complaint again appeals to this court. We regret the necessity of overruling our former decision, and recognize and appreciate the wisdom in the maxim, that "it is as im- portant that the law be certa^in as that it be right ; "yet it is not only our prerogative, but our duty, to overrule a former decision, when we are convinced that it is fundamental wrong, both in theory and in prac- tice." There is a sharp and distinct conflict in the decisions of the various courts upon this question ; but, after a careful examination and review of many of them, and of the text-books upon the subject, we are con- strained to recede from the holding, on the former appeal, and to fol- 166 BILLS OF PEACE. (Part. 3 low that line of decisions and those text-books which deny equity- jurisdiction to prevent a multiplicity of suits at law, in the absence of a common title, or of some' community of right or interest, in the subject-matter among the several parties. To state the proposition dif- ferently, we now hold that a community of interest among the several parties in the questions of law and of fact involved is not sufficient to confer jurisdiction upon a court of equity to enjoin the several tort actions at law, though brought against the same defendant, and though each may depend upon the same state of facts. . . . The evil consequences of maintaining the equity of a bill like this is illustrated clearly by the record in this case. The explosion which killed the 110 workmen in question, and whichis the subject of this controversy, occurred February 20, 1905, and because of this proceed- ing a trial of those 110 damage suits has been delayed for more than six years. Suppose the equity of the bill should be sustained and the parties proceed to trial, and the complainant fail, then the parties plaintiff, after a delay of many years, will have to be remitted to courts of law to try each of these cases separately. Or, if the com- plainant succeeded, still there must be 110 trials in the court of chancery, not only as to the liability vel non, as to each of the persons killed, but as to the amount of damages recoverable in each case. If the complainant is liable under the employer's liability act, the amount for which it is hable would be different in each of the 110 cases, de- pending upon the earning capacity of each decedent, which in its turn, depends upon age, character, habits, etc. It would be difficult to select a case that would more clearly demon- strate the impracticability of the rule than the one under consideration. Contemplate 110 separate answers, and as many pleas and demurrers in one suit, and the innumerable issues of law and of fact that would be raised thereby, and the defense being conducted by 110 different attorneys, or the parties deprived of the, right to have the counsel of their choice — a worse confusion could scarcely be imagined. It could be likened unto the confusion of tongues at the building of the Tower of Babel. To reach a final decree in this case that would approach justice for all, by a trial of all these issues, and a trial in accordance with our statutes and the rules of law and chancery provided for such cases, would be wholly impracticable, if not impossible. No stronger or more Cll. 10.) BIL.LS OF PEACE 167 conclusive argument could be produced to show that the rule an- nounced on the former appeal is wrong than would be an attempted trial of this case upon its merits, in a chancery court, under the prayer of the bill quoted above. No error appearing in the record, the decree of the chancellor is affirmed. BALLOU & OTHERS v. INHABITANTS OF HOPKINTON. (Supreme Court of Massachusetts, 1855, 70 Mass. (4 Gray) 324.) Bill in equity, filed on the 7th of June 1853, to restrain the de- fendants from letting off and wasting the water in a reservoir on Mill River, situated in the towns of Hopkinton, Milford and Up- ton. . . . Shaw, C. J. The only questions in the present case are, whether this court have jurisdiction in equity, to restrain and prohibit the de- fendants from drawing off water from the plaintifif's reservoir, estab- hshed for the purpose of supplying the several mills of the plaintififs, on one and the same stream ; and whether it is a fit case for the court to exercise that jurisdiction, rather than leave the plaintififs to their actions at law, to recover damages for the injuries done them respec- tively in diminishing the water at their respective mills. The case comes before us on a general demurrer, and therefore we are to take the facts set forth by the plaintiffs to be true, for the purpose of the present inquiry. The case set forth in the bill is alleged to consist in an injury done by the defendants to the incorporeal hereditaments of the several plaintififs, in wasting the water which would flow to their mills when it would be useful and beneficial to them, and thereby impairing and diminishing their water power. This is technically a private nuisance, the appropriate remedy for which, at law, would be an action on the case for a disturbance. In such action at law, the remedy would be a verdict for nominal damages for the disturbance of the plaintiff's right; but if actual damage were proved to have been sustained, as the natural consequence of such in- terruption, then for such sum as would be a compensation therefor . up to the time of the verdict, or of the action brought. Being by the -im BILLS OF PEACE. (Part. 3 rules of law a nuisance, we have no doubt that it is within the Rev. Sts. c. 81, sec. 8, cl. 8, giving this court jurisdiction in equity, "in all suits concerning waste and nuisance." Boston Water Power Co. v. Boston & Worcester Railroad, 16 Pick. 512. The other question is, whether, taking the subject of the complaint as the plaintiffs have stated it, the bill shows that the plaintiffs have such a plain, adequate and complete remedy at law, that, according to the precedents and rules of equity, a bill ought not to be sustained, so that the demurrer is well taken to it on that ground. Upon this question, the court are of opinion that the case shows no such adequate and complete remedy at law as to deprive them of the right of proceeding in equity, and that the demurrer ought not to be sustained. Some of the more prominent reasons for this deter- mination are these : Although the plaintiffs are several owners of separate and distinct mills, injured by the alleged stoppage, diversion and waste of the water of Mill River, and to recover damages for which each owner must bring his several action at law to obtain a remedy for his particular injury, yet they have a joint and common right in the natural flow of the stream, and in the reservoir by which its power is increased, and a joint interest in the remedy, which equity alone can afford, in main- taining a regular flow of the water of the receiver at suitable and proper times, so as best to subserve the equal rights of them all. The remedy in equity therefore would, by one decree in one suit, prevent a multiplicity of actions. . . . In regulating the rights of mill owners and all others in the use of a stream, wherein numbers of persons are interested, equity is able, by one decree, to regulate their respective rights, to fix the time and manner in which water may be drawn, and within what limits it shall or shall not be drawn by all parties respectively; and thus it is peculiarly adapted to the relief sought against such alleged nuisance and disturbance, and affords a more complete and adequate remedy than can be afforded by one or many suits at law. Bemis v. Upham, 13 Pick. 169; Bardwell v. Ames, 22 Pick. 333. Demurrer overruled. ^ll- 10.) BILLS OF PEACE 169 CITY OF CHICAGO v. CHICAGO CITY RY. CO. (Supreme Court of Illinois, 1906, 233 111. 560, 78 N. E. 890.) CarTwright, J. . . . The ordinance in this case, [regulating the heating and ventilating of street cars and providing against over- crowding], is within the powers conferred upon the defendant, and it has for its object the laudable purpose of protecting the traveling public against discomfort, annoyance and danger. It is designed to promote the public comfort, safety and health by preventing the overcrowding of cars, and it should be sustained if it is legally possible to do so. To grant an injunction and prevent the prosecution of offenses against the ordinance during the progress of a chancery cause would be to render the municipal authorities helpless in the dis- charge of their public duties. and suspend their legimate functions, contrary to public policy and public interest. At the end of such a suit the court would have no right to determine whether the com- plainants have been guilty of any infractions of the ordinance or to impose any penalty upon them. If the city should be found to be in the right and the ordinance valid, all that the court could do would be to dismiss the bill and send the parties back to a court of law. In such a case a court of equity would not be warranted in interfering unless it is clearly necessary to the protection of some right recogniz- ed only by courts of equitable jurisdiction. . . . There are cases in which a court of equity will interfere to enjoin the enforcement of an ordinance for the reason that a multiplicity of suits will be prevented thereby, and it is argued that this is such a case. The bill is filed by two complainants, who say that they also ask relief for all others similarly situated. The facts stated, how- ever, do not show that any other persons or corporations are similarly situated. It appears from the bill that the complainants serve prac- tically the whole city of Chicago ; that the population served by them is upward of 2,000,000, and that with the exception of twelve other lines operating in outlying districts and not owning down-town termi- nals, they are the only persons or corporations furnishing street railway transportation. It does not appear that the few other persons or cor- 170 BILLS OF PEACE. (Part. ?> porations operating in outlying and sparsely settled districts do not furnish a sufficient number of cars, or that there is any necessity in such districts for overcrowding, or that overcrowding cars is per- mitted, or that any prosecution has been begun or threatened against any other person or corporation, or that any other person or corpora- tion has suffered or will suffer any hardship or makes any complaint whatever of the ordinance or its provisions. The case is not at all like one where a license is required for carrying on an occupation or business, where the inference is that those engaged in the occupa- tion or business will be required to procure the license and pay the fee therefor. The bill sets up conditions respecting these complainants and their business which could have no application to any other party, and it is clear that the controversy is between the two complainants and the defendant. There is nothing in the bill to justify the assertion that they represent a class, and the bill shows that the supposed class is not numerous. Under the rule that equity will sometimes intervene to prevent a multiplicity of suits, it was held in City of Chicago v. Collins, 175 111. 445, that 373 complainants, suing in behalf of themselves and be- tween 200,000 and 300,000 other similarly situated, could maintain a bill to enjoin the enforcement of an ordinance requiring an annual license fee. That was a case where a license was required and a fee exacted from the complainants and all others who made use of means of travel in the city of Chicago. They were all similarly situated. The case of Wilkie v. City of Chicago, 188 111. 444, was a similar one. In that case 78 complainants filed a bill in behalf of themselves and 900 or more others from whom the city of Chicago exacted a license fee for pursuing their occupation. Another case where it was held that a court of equity might properly interfere was Spiegler v. City of Chicago, 216 111. 114, where complainants, on behalf of themselves and 3000 or 4000 other persons engaged in the same business as them- selves, joined in a bill to prevent the enforcement of an ordinance licensing and regulating that business. In all of those cases there was actual application of the ordinance to numerous persons, all of whom were in like situations. In the case of German Alliance Ins. Co. V. VanCleave, 191 111. 410, 42 corporations, who were complainants, filed a bill to enjoin the defendant from paying over to the State Treasurer moneys collected from them as a tax. It would have re- Cll. 10.) BILLS OP PEACE 171 quired at least forty-two suits to accomplish the purpose of the bill and the facts and law in each case would have been exactly the same. It was held that the case was a proper one for the exercise of equitable powers. In the case of North American Ins. Co. v. Yates, 214 111. 272, a bill was filed by the insurance superintendent against twenty companies and thirty-three individuals to enjoin them from transacting the business of fire insurance without complying with the law. It was held that in such a case equity might interfere. Plainly, there is no similarity between those cases and this case in which two complainants, operating in different parts of the city and furnishing practically all the street railway service for the city of Chicago, claim the right to maintain a suit in equity to settle the question of the validity of this ordinance for the reason that there are other persons and corporations operating lines of street railway in outlying districts, where perhaps the difficulty is not so much to prevent overcrowding cars as to fill them with passengers. So far as appears from the bill, the only real dispute is between the two complainants and the defendant, and the rights and interests of numerous parties are not involved. The decree of the circuit court is reversed and the bill dismissed. Bill dismissed. WILKIE V. CITY OF CHICAGO. (Supreme Court of Illinois, 1900, 188 111. 444, 58 N. E. 1004.) CarTwright, J. . . . The first question raised is whether the circuit court had jurisdiction, as a court of equity, over the subject matter of the bill. That jurisdiction was invoked upon the following facts averred in the bill and admitted by the demurrer. The seventy- nine complainants are master plumbers in the city of Chicago, and sue on behalf of themselves and all others similarly situated. There are in the city of Chicago nine hundred or more master plumbers, whose interests in the questions involved are identical and each of whom is Hable to prosecution under the provisions which are alleged to be void. The city has made demands upon complainants to take out hcenses under said section, and threatened them with arrest if 372 BILLS OF PEACE. (Part. 3 such licenses are not procured. If they continue to engage in their avocation the city will put its threat into execution and they will be arrested for violation of the ordinance. Each prosecution would in- volve the same right claimed by the city against each of them. The city would not be civilly liable nor held responsible for damages to complainants. The authorities of the city making arrests are not financially responsible or able to respond in damages. If the master plumbers should pay the license fee and bring suits to recover it, there would be required nine hundred or more suits to recover money il- legally obtained. Complainants are threatened with arrest as often as they enter any premises for the purpose of plying their trade, and their business would thereby be practically destroyed. The mere allegation that an ordinance is illegal will not confer jurisdiction upon a court of equity to restrain its enforcement, but the averments of the bill bring this case within the rule recognized in City of Chicago v. Collins, 175 111. 445. The complainants are entitled to join in a suit in equity for the purpose of avoiding a multiplicity of suits and having the controversy settled in one hearing. GERMAN ALLIANCE INSURANCE CO. v. VAN CLEAVE. (Supreme Court of Illinois, 1901, 191 111. 410, 61 N. E. 94.) Cartwright, T- Appellants, forty-two corporations organized under the laws of other States and countries, doing fire insurance business in this State, filed their bill in this case in the circuit court of Sangamon county against appellees, the insurance superintendent and treasurer of this State, to compel said insurance superintendent to refund a tax of two per cent paid by complainants, under protest, upon unearned and returned premiums for the year 1900, and to en- join him from paying over to the State Treasurer the tax so collected and from collecting the same in the future, and to enjoin the State Treasurer from receiving said tax. A temporary injunction was granted, which was dissolved upon a motion, treated as a demurrer, for want of equity upon the face of the bill. Complainants elected to abide by their bill, and the court dismissed it at their costs. The matter in controversy is the proper construction of the act approved April 19, 1899, entitled "An act providing for a tax on Cll„ 10.) BILLS OF PEACE 173 gross premium receipts of insurance companies and associations other than hfe." (Kurd's Stat. 1899, p. 1042.) That act provides that every insurance company of the class to which complainants belong "shall at the time of malting the annual statements as required by law, pay to the insurance superintendent as taxes, two per cent of the gross amount of premiums received by it for business done in this State, including all insurance upon property situated in this State, during the preceding calendar year," and payment of said taxes is made a condition precedent to doing business in this State. There is a proviso for a deduction of so much of the tax as shall be paid to cities and villages having an organized fire department, but the proviso neither increases nor diminishes the tax and does not affect the question in- volved. The annual statement referred to is a statement required by law of the condition of the company on the last day of the preceding calendar year, showing its capital stock, assets and liabilities, as well as income and expenditures of the preceding year. The facts alleged in the bill and admitted for the purpose of the motion are as follows : The complainants severally made their annual statements for the year 1899 to the insurance superintendent on or about February 1, 1900, and stated therein the gross amount of pre- miums received for business done in this State during the year 1899, according to their understanding of the law. In stating such amt)unt they omitted the premiums returned by them to parties insured, upon cancellation of insurance policies, in compliance with the terms of such policies. They paid over to the insurance superintendent as taxes two per cent of the amounts so reported and received their annual certificates of authority to transact business in this State. Each policy of insurance which was cancelled and the unearned pre- mium returned, provided, when issued, that it might be cancelled at any time, at the request of the insured or the option of the insurer, on five days' notice, and the pohcy should become void and the risk ended on the day of cancellation and the unearned premium be returned. This was the usual course of business of all fire insurance companies in the State. The amount returned was fixed by the policy and was based upon the amount of premium earned up to the time of cancellation. The money returned was the unearned premium for the period after the policy was cancelled and ceased to be in force. The insurance superintendent made demands on complainants to pay a tax of two t74 BiiiLs OF PEACE. (Part. 3 per cent of said unearned premiums which had been returned upon the cancellation of policies, and threatened to enforce the penalties provided by the statute and to revoke the authority of the companies to do business in the State unless his demands were complied with. The complainants then paid, under protest, the several amounts so demanded, which are severally stated in the bill, and amount in the aggregate to $15,984.87. Under the constitution the State can never be made a defendant in any court of law or equity, and it is argued in support of the decree that the bill cannot be maintained because the insurance superintend- ent is an officer of the State, and therefore the suit is against the State. It is not denied that the State may specify any terms or con- ditions it pleases on which corporations of other States and foreign countries shall be permitted to transact business in this State. The ■legislature have fixed one of the conditions in this statute, and the only question involved in the suit is, what is the proper construction of the act? The State is not a defendant by name, and the suit does not relate to property owned by the State or which has ever reached its treasury. There is no attempt to recover money from the State, and the question involved is whether the State has authorized, by law, the insurance superintendent to exact the tax. A suit against hira is not different, in any respect, from a suit against any other col- lector of taxes, and a party is not precluded from questioning the unauthorized act of a tax collector or other officer merely because the money collected will eventually reach the State. It is next insisted that the decree is right because each of the com- plainants has an adequate remedy at law, by suit against the insurance superintendent to recover the amount wrongfully collected from it. At least forty-two suits would be necessary to accomplish the purpose and to give to each complainant its legal remedy, and the question in- volved in each case would be exactly the same. While the demand is separate in each case, the rights of the parties depend upon the same facts. Complete relief may be furnished by a decree determining the single question applicable to all and in which all are interested. The case is a proper one for an application of equitable powers. . . . Ch. 10.) BILLS OF PEACE 175 COOK V. CARPENTER (No. 1) EIPPER'S APPEAL. (Supreme Court of Pennsylvania, 1905, 213 Pa. 165, 61 Atl. 799.) Mitchell, C. J. The preliminary question is the jurisdiction in equity. Appellants insist that there is a plain, full and adequate remedy at law, by suits against the several stockholders defendant, where each can defend upon his own case untrammeled by differences of fact in the others. That there is a remedy at law by separate actions against the respondents is undeniable, but is it a full and adequate remedy in the sense that it bars the jurisdiction of equity? It is earnestly argued by appellants that in all the cases where a bill has been sustained, an accounting was part of the relief sought, and that equitable jurisdiction attached on this ground, while in the present case no accounting is asked, as the bill avers that -the whole unpaid subscription will be insufficient to pay the debts. It is true that the necessity for an account is a large and influential element in equitable relief, but we do not find it said in any of the cases, that its presence or absence is the conclusive jurisdictional fact. In the present case the bill sets up facts that avoid the necessity for an accounting and an assessment. But suppose the answer had denied the averments and thus made the necessity of an accounting and as- sessment an issue. That would at once have made the case one cognizable in equity. Citizens' Bank v. Gillespie, 115 Pa. 564, was an action at law in which such necessity was part of the issue, and the case had to be sent to a new trial for the reception of in- competent evidence on that point. Whether all the unpaid capital is required for payment of debts, or only part, and if so how much, are matters of judgment on the evidence, and different juries are likely to differ in their conclusions. The result would be that in numerous suits by the assignees some stockholders defendant might have to pay their subscriptions in full while some paid only part and others perhaps nothing at all. This would be incurring certain incon- venience and quite probably injustice, where the relief should not only be certain but uniform. As was well said by the learned judge below "there are more than forty defendants. Most of them live within the jurisdiction, some do not, and it is quite conceivable that there might be 1^76 BILLS OF PEACE. (Part. 3 hundreds living without the jurisdiction not reachable by our process at law. The question involved in all the cases is substantially the same namely, ought the corporation to collect in its unpaid capital ? It is a pure question of law, and may be decided once for all in one suit as well as in a thousand. If the balance should not be collected from all. then it ought not to be collected from any. If, on the other hand, it should be collected, then none should escape." In the absence of chancery powers in our courts, equitable relief was afforded wherever practicable, in common-law forms. When later the legislature granted equitable powers it was held that if the sub- ject of a bill was one within the proper and established jurisdiction of chancery the invention of a new remedy in common-law form, or the extension of an old one, would not necessarily oust the equitable juris- diction : Wesley Church v. Moore, 10 Pa. 273. The question in such cases turns on the completeness, adequacy and convenience of the remedy at law, and our decisions have been liberal in the consideration of all these elements: Kirkpatrick v. McDonald, 11 Pa. 387; Bier- bower's Appeal, 107 Pa. 14; Brush Electric Co.'s Appeal, 114 Pa. 574; Johnston v. Price, 172 Pa. 427; Gray v. Citizens' Gas Co., 206 Pa. 303. In the last case it was said by our Brother Dean, "The question raised in this case is not alone whether plaintiff has a remedy at law, for that remedy it clearly has, but whether in view of the facts it is an adequate one. It may be conceded that the time is not very remote in our judicial history when a wronged party sought the intervention of equity and he could be truthfully met by the reply, you have i. remedy at law in an action for damages, such reply would have been the end of his bill; he would have. been turned out of court for want of jurisdiction. But this answer is no longer conclusive as to the jurisdiction; courts now go further and inquire whether under the facts the remedy at law is not vexatiously inconvenient, and whether it is so proximately certain as to be adequate to right the wrong complained of." Testing by this standard the numerous actions that would be re- quired at law, and comparing that remedy with the superior certainty, uniformity and convenience of the present bill, we have no hesitation in holding that it is a proper case for equitable jurisdiction. . . . Oh. 10.) BILLS OF PEACE 177 WASHINGTON COUNTY v. WIIvLIAMS. (United States Circuit Court of Appeals, 1901, 111 Fed. 801.) Thayer, J. . . . The third question above mentioned concerns the rights of the complainants in the equity case to sue in equity, and with respect to that question it is to be first observed that the causes of action sued upon are clearly of legal cognizance. The actions are founded upon a promise by the county to pay a certain sum annually out of a fund to be raised by the levy of a tax of one mill on the dol- lar on all property situated within the county which is subject to taxation. This promise, however, does not run to the holders of the obligations jointly, so as to compel them to unite in a suit to enforce it ; for by issuing 149 obligations, each payable to bearer, and by re- citing therein, in substance, that the sum raised annually would be ap- portioned pro rata among all the obligations, the county, in effect, promised to' pay to each holder such a portion of the fund as he was entitled to receive. No reason is perceived why each holder of one or more of the obligations in suit may not sue at law, as one of them has already done, and obtain a judgment for the sum due to himself, by proving at the trial what sum would have been raised, and what part thereof would have been payable to him, had the tax been levied. Nor do we perceive that the remedy in equity is any more efficacious than at law. All that a court of equity can do is to determine the validity of the obligations, and render a money decree for the amount of the annual installments then due and unpaid. As much can be done by a court of law, and with equal facility. More- over, after the validity of the obligations has been established, and a judgment obtained, resort must then be had to a legal remedy, to wit, a writ of mandamus, to compel the levy of a tax to pay the judg- ment, whether it be recovered at law or in equity, since it is a well- settled doctrine in the federal courts that a court of equity cannot command the levy of a tax; that being a duty which the legislature must impose; the sole function of the courts being to enforce its performance by mandamus when it has been imposed. Heine v. Levee Com'rs, 86 U. S. 655, 22 L,. Ed. 223 ; Rees v. City of Water- 3 Eq— 12' 178 BILLS OF PEACE. (Part. 3 town, 86 U. S. 107, 22 h. Ed. 72; Stryker v. Board, 23 C. D. A. 286, 292, 77 Fed. 567. The argument in support of the right of the bond- holders to unite and sue in equity on all of the obligations, in its last analysis, results in this proposition: That whenever several persons have distinct or several demands against the same person or corpora- tion, growing out of contract, they may, for the purpose of avoiding multiplicity of suits, unite and sue in equity to enforce the payment thereof, provided their several demands were incurred by the defend- ant at the same time and in the same manner, and provided that the defendant interposes or threatens to interpose the same defense there- to. This proposition, in our judgmnt, is not sustained by any well- considered decision. . . . It is obvious that, if the proposition contended for by the com- plainants in the equity case is tenable, then the holders of municipal bonds may always unite and sue in equity if the municipality repudiates its obligations, on the pretense that by so doing a multiplicity of suits will be avoided. Such a practice, however, has never obtained or been attempted, although actions upon such bonds have been very numerous, except in the instance above above cited, where the jurisdiction in equity was emphatically denied. As bearing incidentally on the point now under consideration, it may be further observed that in several cases before the supreme court where the question of jurisdiction, in view of the amount in controversy was involved, that court has inf eren- tially recognized the right of several persons having distinct interests to unite in an appeal on grounds of convenience, provided their rights or liabilities grow out of the same transaction and give rise to the same questions. But in such cases litigants have never been permitted to aggregate their claims for the purpose of making up the amount necessary to confer jurisdiction unless they were able to show a common and undivided interest in the subject-matter of the litigation. . . . Persons holding distinct claims arising out of contract, which may be reduced to judgment at law without difficulty, should not be al- lowed to aggregate them and sue in equity, even if they do grow out of the same transaction and involve the same questions, and even though a multiplicity of actions would thereby be avoided. If such a practice was tolerated, the boundaries of the jurisdiction of courts of law and equity would soon become confused or obliterated. Cll. 10.) BILLS OF PEACE 179 The result is that the bill in the equity case was properly dismissed for want of jurisdiction in equity, but such dismissal should have been without prejudice to the complainants' right to sue at law. . . . VIRGINIA-CAROLINA CHEMICAL CO. v. HOME INS. CO. OF NEW YORK. (United States Circuit Court of Appeals, 1902, 113 Fed. 1.) Jackson, District Judge. ... A bill was filed by the Home In- surance Company of New York and the German-American Insurance Company of New York against the Virginia-Carolina Chemical Com- pany and 14 insurance companies, who were made defendants to the bill. The defendant the Virginia-Carolina Chemical Company had prior to the filing of this bill instituted actions at law in the court of common pleas of Charleston county, S. C, against each and all of its codefendants. Motions were made in each case before that court to transfer the several cases to the circuit court of the United States for the district of South Carolina, which were overruled, and the court retained the cases. . . . The object and purpose of this bill is to restrain the defendant in- surance companies from the prosecution of these suits on the law side of the United States court, as well as elsewhere, to avoid a mul- tiplicity of suits, and to have the cases all heard before the federal tribunal. The validity of these various policies of insurance is assailed for the reason that they were procured by fraud, misrepresentation, and concealment of the true value of the property insured; that the representations of the insured as to the value of the property were largely in excess of its value; that the various insurance companies, relying upon the good faith of the Virginia-Carolina Chemical Com- pany, issued the policies upon the representation made by the defend- ant company. .' . . The main object and purpose of this bill is to prevent a multiplicity of suits, all involving the same legal questions, founded upon similar issues of fact; and for this reason in its nature it is ancillary to the actions at law. All the suits brought by the Virginia-Carolina Chem- ical Company against the various defendants seek to litigate the same ISO BILLS OF PEACE. (Part. 3 legal right, and the legal liability of the defendant companies, if any there be, is the same ; the only difiference being the amounts involved in the various policies. The plaintiff, the Virginia-Carolina Chemical Company, in the actions at law sets up a common demand against all the defendants. The object and purpose of this bill is to determine the liability of the different defendants in a court of conscience, and, if the court should reach the conclusion that there is a liability on each of the policies mentioned, then the question would be, what is the extent of the liability? It is apparent from the policies in this case that, if there is any liability at all, then under the condition of the various policies the same must be apportioned, and in order to do that a reference should be made to a master to ascertain the amount of liability upon each policy. But, if the court should reach the con- clusion that these policies were issued upon a false state of facts as to the value of the property insured, and that the insured could not recover upon them, then, under the terms and conditions of the policies, a court of equity, in the exercise of its powers, would enjoin the plaintiff on the law side of the court from the further prosecution of its demands. . . . The question presented by the demurrer in this case is whether or not all the defendants can be joined in one suit. This bill upon its face alleges that the defendants have a common interest in the ques- tions involved, though their liability may be different. If it appeared from the face of the bill that there was not a common interest in the subject of litigation, and that there was no connection the one with the other, then the exception taken to the bill should be sustained. But, as we have seen, all the defendant insurance companies have a common interest in defeating the claims of one party, 'the plaintiff in the actions at law. On one side is the Virginia-Carolina Chemical Company, the plaintiff in the actions at law, while on the other side are the 14 insurance companies, who deny their liability to the Vir- ginia-Carolina Chemical Company upon their policies of insurance. . . HOLLAND V. CHALLEN. (United States Supreme Court, 1883, 110 U. S. 15.) Field, J. This is a suit in equity to quiet the title of the plaintiff to certain real property in Nebraska as against the claim of the de- Cll. 10.) BILLS OP PEACE 181 fendant to an adverse estate in the premises. It is founded upon a statute of that State which provides : "That an action may be brought and prosecuted to final decree, judgment, or order by any person or persons, whether in actual possession or not, claiming title to real estate, against any person or persons who claim an adverse estate or interest therein, for the purpose of determining such estate or in- terest and quieting the title to such real estate." The bill alleges that the plaintiff is the owner in fee simple and entitled to the possession of the real property described. It then sets forth the origin of his title, particularly specifying the deeds by which it was obtained, and alleges that the defendant claims an ad- verse estate or interest in the premises ; that the claim so affects his title as to render a sale or other disposition of the property im- possible, and that it disturbs him in his right of possession. . . . A bill of peace against an individual reiterating an unsuccessful claim to real property would formerly lie only where the plaintiff was in possession and his right had been successfully maintained. The equity of the plaintiff in such cases arose from the protracted litiga- tion for the possession of the property which the action or ejectment at common law permitted. That action being founded upon a fic- titious demise, between fictitious parties, a recovery in one action con- stituted no bar to another similar -action or to any number of such actions. A change in the date of the alleged demise was sufficient to support a new action. Thus the party in possession, though success- ful in every instance, might be harassed and vexed, if not ruined, by a litigation constantly renewed. To put an end to such litigation and give repose to the successful party, courts of equity interfered and closed the controversy. To entitle the plaintiff to relief in such cases, the concurrence of three particulars was essential: He must have been in possession of the property, he must have been dis- turbed in its possession by repeated actions at law, and he must have established his right by successive judgments in his favor. Upon these facts appearing, the court would interpose and grant a perpetual in- junction to quiet the possession of the plaintiff against any further litigation from the same source. It was only in this way that adequate relief couldbe afforded against vexatious litigation and the irreparable mischief which it entailed. Adams on Ii,quity, 202 ; Pomeroy's Equity Jurisprudence, Sec. 248 ; Stark v. Starrs, 6 Wall. 402 ; Curtis v. Sutter, 182 Bin^ OF PEACE. (Part. 3 IS Cal. 259; Shepley v. Rangeley, 2 Ware, 242; Devonsher v. Newen- ham, 2 Schoales & Lef. 199. In most of the States in this countr)-, and Nebraska among them, the action of ejectment to recover the possession of real property as existing at common law has been abolished with all its fictions. Actions for the possession of such property are now not essentially different in form from actions for other property. It is no longer necessary to allege what is not true in fact and not essential to be proved. The names of the real contestants must appear as parties to the action, and it is generally sufficient for the plaintiff to allege the possession or seizin by him of the premises in controversy, or of some estate therein, on some designated day, the subsequent entry of the defendant, and his withholding of the premises from the plaintiff ; and although the plain- tiff may in such cases recover, when a present right of possession i.« established, though the ownership be in another, yet such right may involve, and generally does involve, a consideration of the actual own- ership of the property; and in such cases the judgment is as much a bar to future litigation between the parties with respect to the title as a judgment in other actions is a bar to future litigation upon the subjects determined. Where this new form of action is adopted, and this rule as to the effect of a judgment therein obtains, there can be no necessity of repeated adjudications at law upon the right of the plaintiff as a preliminary to his invoking the jurisdiction of a court of equity to quiet his possession against an asserted claim to the property. A bill quia timet, or to remove a cloud upon the title of real estate, differed from a bill of peace in that it did not seek so much to put an end to vexatious litigation respecting the property, as to prevent future litigation by removing existing causes of controversy as to its title. It was brought in view of anticipated wrongs or mischiefs, and the juris- diction of the court was invoked because the party feared future in- jury to his rights and interests. Story's Equity, Sec. 826. To main- tain a suit of this character it was generally necessary that the plaintiff should be in possession of the property, and, except where the/ defend- ants were numerous, that his title should have been established at law or be founded on undisputed evidence or long continued possession. Alexander v. Pendelton, 8 Cranch, 462; Peirsoll v. Elliott, 6 Pet. 95; Orton V. Smith, 18 How. 263. The statute of Nebraska authorizes a suit in either of these classes of cases without reference to any previous judicial determination of (Jh. 10.) BILLS OF PEACE 18;! the validity of the plaintiff's right, and without reference to his posses- sion. Any person claiming title to real estate, whether in or out of possession, may maintain the suit against one who claims an adverse estate or interest in it, for the purpose of determining such estate and quieting the title. It is certainly for the interest of the State that this jurisdiction of the court should be maintained, and that causes of apprehended liti- gation respecting real property, necessarily affecting its use and en- joyment, should be removed; for so long as they remain they will prevent improvement and consequent benefit to the public. It is a matter of every-day observation that many lots of land in our cities remain unimproved because of conflicting claims to them. The rightful owner of a parcel in this condition hesitates to place valuable improve- ments upon it, and others are unwilling to purchase it, much less to erect buildings upon it, with the certainty of litigation and possible loss of the whole. And what is true of lots in cities, the ownership of which is in dispute, is equally true of large tracts of land in the country. The property in this case, to quiet the title to which the present suit is brought, is described in the bill as unoccupied, wild, and unculti- vated land. Few persons would be willing to take possession of such land, enclose, cultivate and improve it, in the face of a disputed claim to its ownership. The cost of such improvements would probably ex- ceed the value of the property. An action for ejectment for it would not lie, as it has no occupant; and if, as contended by the defendant, no relief can be had in equity because the party claiming ownersip is not in possession, the land must continue in its unimproved condition. It is manifestly for the interest of the community that conflicting claims to property thus situated should be settled, so that it may be subjected to use and improvement. To meet cases of this character, statutes like the one of Nebraska, have been passed by several States, and they accomplish a most useful purpose. And there is no good reason why the right to relief against an admitted obstruction to the cultivation, use, and impi^ovement of lands thus situated in the States should not be enforced by the federal courts, when the controversy to which it may give rise is between citizens of different States. . . . 184 BILLS OF pi^ACE. (Part, 'd WOODWARD V. SEELY. (Supreme Court of Illinois, 1849, 11 111., 157.) Trumbull, J. This bill was filed to restrain the defendants from prosecuting certain actions which they had commenced, and perpetually to enjoin them from instituting others, to recover damages for the overflow of their lands ; the complainants alleging that said overflow was by the license and permission of the defendants and occasioned by the erection of a mill-dam upon their own land, which they had been at great expense in constructing. None of the actions at law had been disposed of, when the bill was filed, though several were then pending, and the defendants were continuing to commence them at intervals of every few days. Can this bill be maintained? We think not. There is no instance in which a bill of peace, where the parties were not numerous, has been sustained, to prevent multiplicity of actions at law, before the rights of the parties have been settled in a Court of law. The principle that a party cannot come into equity to enforce his rights, when he has a full and complete remedy at law, is too familiar to require the citing of authorities to support it. The license in this case, if valid and effectual, constitutes a complete defense at law ; and until that defense has been established, and the defendants continue afterwards to harass the com- plainants by vexatious suits, chancery has no jurisdiction in the matter. Eldridge V. Hill, 2 John. Ch., 281 ; West v. Mayor, &c.. New York, 10 Paige 539. . . . SYLVESTER COAL CO. v. CITY OF ST. LOUIS. (Supreme Court of Missouri, 1895, 130 Mo. 323, 32 S. W. 649.) Brace, P. J. This is an appeal from a judgment of the circuit court of the city of St. Louis, sustaining a demurrer to plaintiff's petition. The material allegations of the petition are, that the plain- tiffs, the Sylvester Coal Company, The Berry-Horn Coal Company, The St. Louis Fuel Company and the Lebanon Machine Association, Ch. 10.) BILLS OF PEACE 185 are, respectively, corporations created under the laws of the state of Missouri and engaged in the business of selling and delivering coal by the wagon load, to be used as fuel in the city of St. Louis ; that they are licensed merchants and have paid their tax as such; that each of the plaintiffs maintained in its business a private scale, on which all coal sold and delivered is weighed, the weigher of which has been approved by the mayor, taken an oath before the city register, and filed bond as required as weigher at public scales; that fifty other persons or corporations are engaged in the same business in like manner; that the city has adopted and there are now ordinances in force in said city as follows : . . • . That said sections 1594 and 1608, aforesaid, are invalid and of no force or effect, because the system established by them constitutes a tax on sales and deliveries of coal in St. Louis for fuel, and exacts three cents for each load so sold and delivered, which sum is paid into the treasury of the city of St. Louis ; because said system is an unlawful interference with and burden on the sale and delivery of coal as fuel in St. Louis ; because said system is unauthorized by the charter of St. Louis and the law of the land ; because said system and said ordinance regulations are unreasonable and oppressive ; because said regulation requiring a green ticket to be delivered with each load of coal adds no security to the purchaser as to the weight of the coal delivered, nor does it operate or constitute any check on the seller of the coal as to such weight ; that the expense to each of these plaintiffs for green tickets so to be used by it respectively and purchased of the city of St. Louis, exceeds $150 annually; that the said defendants the city of St. Louis and the mayor thereof, nothwithstanding the manifest illegality of said ordinance have thereafterwards published and declared that they will enforce the observance of the provisions thereof. Wherefore they pray that they and their servants be restrained from so doing. 1. The demurrer is general, and the only question to be considered is whether the facts stated are sufficient to entitle the plaintiffs to the relief sought. It is contended' that, though it be conceded that the ordinances are invalid, the plaintiffs are not entitled to injunctive relief on the facts stated, for the reason that they have an adequate remedy at law. But is the remedy at law adequate ? It must be remembered that the injury complained of here is continuous. The ordinances are continuous, and plaintiffs' business is continuous, and, under the ordinances, for 186 BILLS OP PEACE. (Part. 3 each wagon load of coal sold and delivered in violation of the restric- tive provisions thereof the plaintiffs each become subject to an action in the municipal courts of the city for such violation. The fact that in each of such suits the plaintiffs might plead successfully the in- validity of the ordinances as a defense thereto, does not give them an vexation and annoyance of such a multiplicity of suits in consequence adequate remedy. They are entitled to be protected from the expense, of their continuance of a legitimate business except upon compliance, with the condition of ordinances which it is alleged are and may be utterly void. Mayor, etc., v. Radecke, 49 Md. 217; Davis v. Fasig, 128 Ind. 271; Rushville v. Rushville Natural Gas Co., 132 Ind. 575; Third Ave. R. R. Co. v. Mayor, etc., 54 N. Y. 159. "The prevention of vexatious litigation and of a multiplicity of suits constitutes a favorite ground for the exercise of the jurisdiction of equity by way of injunction." High, Injunctions (3 Ed.), p. 12. This has been frequently recognized as a ground for the exercise of such jurisdiction in this state. Swope v. Weller, 119 Mo. 556; Michael V. St. Louis, 112 Mo. 610; Carroll v. Campbell, 108 Mo. 558. And is an independent ground of equity jurisdiction upon which such courts may interfere to prevent municipal authorities from transcending their powers. 2 Dillon, Mun. Corp; (4 Ed.), sees. 906 and 908; and cases cited above. While under the former system of jurisprudence, in which relief in equity was administered by a different tribunal and by a different procedure from those that gave relief at law, courts of equity have sometimes refused to interfere before the right was established at law (West V. Mayor, etc., 10 Paige, 539), there seems no good reason, under the present system in code states where both are blended, why such relief should not be granted in the first instance by injunction; and so it was ruled in the analogous cases of Mayor, etc., v. Radecke ; Davis V. Fasig, and Rushville v. Rushville Nat. Gas. Co., above cited, which are on all fours with the case in hand. And so it would seem it must be ruled here, where 'we have in addition a special and liberal statutory provision in regard to injunction. R. S. 1889, sec. 5510. The doctrine that criminal statutes can not be tested or their en- forcement restrained in the civil courts has no application to the case. Municipal ordinances, though penal, are not criminal statutes. City of Kansas v. Clark, 68 Mo. 588; Ex Parte Hollwedell, 74 Mo. 395; Ch. 10.) BILLS OF PEACE 187 St. Louis V. Marchell, 99 Mo. 475. They are quasi criminal in form, but not so regarded in procedure. We think the petition presents a case in which the validity of thr ordinances may be inquired into by a court of equity, and if found tc be invahd, the relief prayed for may be granted. . . . GALVESTON, H. & S. A. RY. CO. v. DOWE. (Supreme Court of Texas, 1888, 70 Tex. 5, 7 S. W. 368.) Gaines, J. This suit was brought in the court below by appellant against appellee for the purpose of enjoining the latter from collecting a certain judgment rendered in the county court of Maverick county, and from bringing separate suits on certain claims against the appellant. The question of the power of the district court to enjoin the judgment of the county court is settled by the opinion in the case between the same parties delivered by the commissioners and adopted by this court at the present term. See Railway Co. v. Dowe, 6 S. W. Rep. 790. In regard to the claims upon which suits are sought to be enjoined, the petition alleges in substance that in the year 1882 certain contractors on the company's road issued to their laborers a large number of written obligations, known as "Contractors' Time-Checks,'' which had been indorsed by the payees in blank and assigned by them ; and that defendant, Dowe, was the holder of about 30 of these, for amounts ranging from $5 to $30, and aggregating about the sum of $1,000. It is also alleged, that these claims were assigned solely by the contractors, and that the plaintiff was not a party to them in any sense, and was not liable for their payment, and further that they were barred by the statute of limitations, but that defendant had instituted suits upon sim- ilar demands against plaintiff alone in the justice court, and had ob- tained judgment on them, and had threatened to bring in the same court, one suit for each month upon one of the claims until all were sued on. The averments of the petition show a perfect defense to the claims ; that this defense was set up in each of the suits brought in the justice court ; and that appellant moved to consolidate the actions ; but that the court refused the motion, and notwithstanding its defenses gave judgment in every instance against it. It also appeared from the 188 BILLS OF PEACE. (Part, 'j petition that in each case, except one, the amount in controversy was less than $20, and hence there was no appeal. In the one case the amount was less than $100, and therefore the judgment of the county court in that suit was final. An exception to appellant's petition was sustained, and its suit dismissed ; and this it assigns as error. It is said that the prevention of a multiplicity of suits is a favorite ground for the interposition of a court of equity ; but it appears from an examination of the authorities that the application and limits of the doctrine are not well defined. It had its beginning in the bill of peace, a remedy rendered necessary by the principle of the common law that a judgment in an action of ejectment in favor of the defend- ant was not conclusive and did not estop the plaintiff from bringing successive suits upon the same cause of action. In order to relieve a defendant from vexatious litigation, after a judgment at law in his favor, the court of chancery permitted him to file his bill, and by its decree to preclude the plaintiff from vexing him with any further suit. The principle has been extended to cases where a great number of parties, having a common cause of action against one, growing out of the same injury and depending upon the same questions of law and fact; and they have been permitted to join in the same action in order to prevent a multiplicity of suits. This rule was applied in this court in Blessing v. City of Galveston, 42 Tex. 641, and in George v. Dean, 47 Tex. 73. Also, where numerous persons have claims of the same character growing out of the same alleged wrong against one, a bill will be in his favor against all the claimants to settle all the demands in the same suit. Water-Works v, Yeamans, L. R. 2 Ch. 8. It is also laid dqwn that where one party holds several claims against another, growing out of the same or similar transactions, and depending for their determination upon the same question of law and fact, equity will enjoin separate suits upon the demands, provided one suit has been tried and determined in favor of the complainant in the bill. 1 High, Inj. sec. 63 et seq. ; 1 Pom. Eq. Jur. sec. 254 et seq. In West v. Mayor, 10 Paige, 539, a multiplicity of suits were sought to be enjoined, and the bill showed that in a suit upon one of the demands, the judgment had been against the complainant in the justice court, and he had ap- pealed. The chancellor dissolved the injunction and said: "It is true that they complain that in those cases the court decided the law against them, and did not submit the legality of the ordinances to the jury to be decided as a matter of fact, and that they intend to carry the ques- <."1j. 10.) BILLS OP PEACE 189 tion as to such legality before a higher tribunal for a decision. But neither of those circumstances can give jurisdiction to this court to interfere before the right of the complainants is established by such higher tribunal. If they are successful there, it is not probable that the interference of this court will be necessary." In the very similar case of Railroad Co. v. Mayor, 54 N. Y. 159, an injunction was sus- tained as to all suits but one, until the rights of the parties could be determined in the action which was permitted to be brought. In Tarbox v. Hartenstein, 4 Baxt. 78, the defendant had been an employe of the plaintiff, under a yearly contract, his wages being payable weekly, and had been discharged before the contract expired, on the ground that he failed to perform the stipulations on his part. He was paid wages accruing thereafter and recovered judgment, which was paid, up to the time of his discharge. He brought suit for his first week's wages accruing thereafter and recovered judgment, which was paid He sued again for the next week's wages, and recovered a judgment, from which an appeal was taken. He brought also a third suit, and an- nounced his purpose to bring a suit for each week's wages as it accured, as long as by the terms of the contract it was to have continued in force. The court held that it was an entire contract for the year, though the wages were payable by the week, and that the judgment in the first suit was conclusive of his rights, and precluded any further recovery, and perpetually enjoined him from prosecuting the actions already brought, and from bringing any other. It is to be remarked, that although the judgment in the second action (which was the first in which res ad judicata could have been pleaded) had gone against the complainants, and although they had a complete remedy at law against such successive actions, yet the court of chancery assumed jurisdiction in order to prevent vexations litigation, and restrained the defendant from prosecuting any further suits. The decree of the chancellor was affirmed in the supreme court. In the present case the suits already brought have resulted adversely to appellant ; and if we apply the rule that it must first have a decision in its favor, the judgment now appealed from must be affirmed. But we doubt if this rule should ever be applied in cases of this particular character. The courts which have adopted it have as we think followed the analogy of the original bill of peace, without sufficient reason. In the case of a bill of peace the court of chancery interfered, because there had been a trial at law which was not conclusive, and its inter- 190 BILLS OF PEACE. (Part. 3 position was necessary in order to prevent vexatious litigation. That court had no power to try title to land, and hence could not entertain a bill of peace until the title had been decided at law in favor of the complainant. The object of the bill was to prevent vexatious litigation, but a judgment at law establishing the title of the complainant was the necessary foundation of the procedure. But the case is different where a party claiming a just defense to a multitude of demands held by one person against him, and all of the same character, and involving precisely the same questions, seeks relief against the vexation, expense, and trouble of defending as many separate actions. When separate suits are brought and threatened, why await the determination of one? It seems to us that the unnecessary expense and vexation necessarily resulting from such a multiplicity of suits should be'^ deemed a sufficient ground for the interposition of the district court under our system, — that being a court of blended jurisdiction. But we need not go so far. We are not called upon to deny the doctrine applied in West v. Mayor, supra. The opinion in that case shows that from the judgment of the justice of the peace the complainants had an appeal to a court whose decision would establish a legal precedent. If it be said that a court of equity will only act after a decision favorable to the complainant in a court of law in which the judges are required to be lawyers, we can see the reason of it. But we do not think this rule should be applied to judgments of the county and justice courts under our system, when the amount in controversy is not such as to permit appeals to "the appellate court." The officers who preside in these tribunals are not required to be learned in the law. Their judgments, not appealed from, are conclusive between the parties as to the subject-matter of the particular suit in which they are rendered ; but they cannot be said to aflfect in any manner any general right. Had it appeared from the plaintiff's petition that one of the suits against it had been brought in the district court, and had there been decided against it, or that from a judgment in the county court it had appealed to the court of appeals, and that court had affirmed the judgment upon the merits, then the presumption would have been great that it had no just defense to the other actions. Acting upon this presumption, a court of equity might well decline to interfere. But no such presumption arises from a judg- ment of the justice or county court in this state, when by reason of the amount in controversy there can be no appeal. Therefore, when a ^h. 10.) BlhlS OP PEACE 19.1 case for the interposition of a court of equity, in order to prevent a multiplicity of suits, is presented, the action of the court should not be affected by such judgments, whether it be favorable or unfavorable to the complainants. In the case of the Water-Works v. Yeamans, supra, the English court of chancery awarded an injunction against a large number of defendants, who each held a separate claim against the company, growing out of the same alleged injury, though no right had been established by any suit at law ; and we see no reason why the relief should have been refused, -if all the claims as in this case had become the property of a single holder. The rule is, that if in the tribunal, which has jurisdiction of the demands, there can be a con- solidation, then it is the duty of the party to resort to this remedy, and equity will not interfere. In such a case there is an adequate remedy at law. But in this, though the demands separately are within the jurisdiction of the justice court, the aggregate amount exceeds that jurisdiction. Hence they cannot be consolidated. Besides, in order, it would seem, to prevent even a partial consolidation and to increase the expense, the defendant had determined to bring a separate suit to each successive term of the court. According to the allegations of ■^he petition (which the demurrer admits to be true) it is a clear case in which the appellee is about to avail himself of his right to bring separate suits in the justice court, in order to vex and harass the appellant by a multiplicity of actions ; and in which the appellant has no means of protecting itself against the attempted wrong except by a resort to the writ of injunction. This remedy is a relief to appellant, and works no hardship to appellee, who can set up his demands in the action, and thus have the litigation determined in one proceeding. Our system of procedure is essentially equitable in its nature, and was designed to prevent more than one suit growing out of, the same subject-matter of litigation; and our decisions from the first have steadily fostered this policy. Chevalier v. Rusk, Dall. Dig. 611; Binge v. Smith, Id. 616; Clegg v. Varnell, 18 Tex. 294. We conclude, therefore, that the exceptions to so much of the petition as sought to enjoin the collection of the judgment of the county court should have been sustained, and that the exceptions should have been overruled to so much thereof as sought to enjoin appellee from bringing separate suits upon his demands ; and that the court erred in sustaining the entire exceptions and in dissolving in whole 192 BILLS OF PEACE. (Part. 3 the injunction and dismissing the bill. For the error pointed out, the judgment is reversed, and the cause remanded. SKINKLE V. CITY OF COVINGTON. (Kentucky Court of Appeals, 1885, 83 Ky. 420.) Pryor, J. The city council of Covington having as a legislative body the complete control of the streets, lanes, alleys, wharves, land- ings, etc., within the corporate limits, with the right to pass such or- dinances and by-laws as may be necessary for the better government of the city and to legislate on all subjects that the good govern- ment of the city may require, and affix penalties for the violation of its ordinances not exceeding fifty dollars, on the eighth of February, 1883, enacted an ordinance declaring "it unlawful for any person, un- less by ordinance, resolution, or written authority of the council, or under the laws of Kentucky, to hold the exclusive possession of any of the streets, lanes, alleys, commons, spaces, squares, wharves, or landings belonging to the city of Covington, or any part thereof." The penalty for a violation of the ordinance is the imposition of a fine in the mayor's court of fifteen dollars for each twenty-four hours the person charged njay be found guilty of a violation of the ordinance, and the costs of proceeding, etc. In a few days after the passage of this ordinance a warrant was issued in the name of the city against the appellant, charging him with violating its provisions. The case was heard in the mayor's court, and a fine imposed on the appellant of fifteen dollars, from which an appeal was taken to the quarterly court and dismissed for want of jurisdiction. Another warrant was then issued for a further violation of the or- dinance by the appellant, and soon after as many as twelve or fifteen complainants entered against him by the city, involving his disregard of the ordinance, and asking for a summons against him. . . The facts stated entitled the appellant to an injunction restraining the city from proceeding under its warrants until the controversy as to the use and possession of the property in question could be deter- mined. Here was a controversy between the city and the appellant as to the use of the river bank as a harbor for his coal-boats in common Ch. 10.) BILLS OF PEACE 19;} with others. There was no wharf or city landing at this point — no street or any way belonging to the city obstructed, but the use in com- mon with those who had coal and flat-boats on the river by using the shore as a place of fastening their boats, and of loading and unloading them when they saw proper. No right of the city had been invaded by the appellant ; but, on the contrary, the latter had used this part of the river bank as a matter of right. The judgment against the city in January, 1871, gave to the heirs of McNickle the possession and use of the premises for twenty- five years, and the appellant entered under the claim of McNickle's heirs in 1874. The facts alleged in the petition are all admitted by the demurrer, and present a case where the city must adopt a civil remedy for relief if the facts alleged are not true, or litigate the right of the appellant to the use of the property in the present action. Fines and penalties can not be imposed against one who is right- fully in possession under the ordinance in question. It is intended to punish the trespasser, or those who, without right, are appropriating the property of the city tQ their own use, but can not be enforced against one who has the right to the use. The decision upon the war- rant in the mayor's court does not determine this right ; but if the facts alleged are true, the appellant is being punished by fine for exercising a right of which he can not be deprived without due process of law, and which he was exercising at the time the ordinance was passed. His ordinary remedy against the city for the wrong complained of would not stay proceedings upon the multiplied warrants against him, and in such a state of case we see no reason why a court of equity should not entertain jurisdiction, and stay all proceedings on the war- rants until the matters alleged in the petition are heard and determined. The aid of a court of equity cannot be invoked so as to interfere with proceedings of subordinate tribunals, unless to prevent irreparable injury or a multiplicity of suits. (Ewing v. City of St. Louis, 5 Wal- lace, 413; The Mayor of Brooklyn v. Meserole, 26 Wend., 132.) The ordinance passed by the city is not void, but in accordance with law, and without any discrimination in its provisions as between the citizens of Covington, and the real ground for going into a court of equity is the illegal use made of this ordinance against a party who is without remed}' at law, and who must be compelled to surrender 3 Eq— 13 J 94 BILLS OF PEACE. (Part. 3 his right to the use, title and possession of property in order to avoid the imposition of penalties upon him that, when enforced, must work irreparable injury. It can not well be said that the city or its authorized agents are trespassers when the proceeding against the appellant is by warrant for a violation of the ordinance, and the judgment rendered by a court having jurisdiction over the subject-matter and the parties. In the case of the Trustees of Louisville v. Gray, reported in 1 Ivittell, 147, Gray attempted to build a warehouse upon ground to which he claimed title, and the city authorities, claiming that the wall of the building was on a street of the city, proceeded to enforce the penalty of four dollars and costs against Gray for the obstruction. Gray obtained an injunction, that was perpetuated, upon the ground that he and not the city was vested with the title, and this court affirmed the judgment, holding that a court of equity could entertain the juris- diction for the purpose of quieting the title. In this case no action at law can be maintained for an entry on appellant's possession, for none has been made. He has no appeal from the judgment of the municipal court enforcing the ordinance, and is met with a warrant, in the name of the city, under which he is fined fifteen dollars for each twenty-four hours that he uses the -river bank, or permits his boats to remain there. By this mode of proceeding the civil remedy by the city is ignored, and the appellant compelled to abandon the possession in order to avoid the penalties. The injury is irreparable, and a court of equity should not hesitate to grant the relief. The judgment is therefore reversed, and the cause remanded, with directions to overrule the demurrer and award the injunction, etc. Ch. 11.) MISCELLANEOUS. 195 CHAPTER XI. MISCELLANEOUS. LENT V. HOWARD. (Court of Appeals of New York, 1883, 89 N. Y. 169.) Andrews, Ch. J. We are of opinion, that the executors were properly held to account for the rents and profits of the real estate received- by them, and for the proceeds of sales of real estate made under the power conferred by the will. ... We think there was by the ninth section of the will in question, a conversion of the testator's real estate (except the homestead farm,) into personalty as of the time of his death, and a gift of the converted fund, together with the intermediate income, to the testator's wife and daughter, with cross remainders. It is true that the power of sale is not in terms imperative. The words are those conferring authority, and not words of command or absolute direction. But it is clear that a conversion was necessary to accompHsh the purpose and intention of the testator in the disposition of the proceeds, and when the general scheme of the will requires a conversion, the power of sale operates as a conversion, although not in terms imperative. (Dodge v. Pond, 23 N. Y. 69.) The conversion also will be deemed to be immediate, although the donee of the power is vested,, for the benefit of the estate, with a discretion as to the time of sale. (Stagg v. Jackson, supra; Robinson v. Robinson, 19 Beav. 494.) We are therefore of opinion, that the rents and profits of the real estate received by the executors, and the proceeds of sales, were properly brought into the account- ing. . . . BEELER V. BARRINGER. (Supreme Court of Illinois, 1911, 253 111. 288, 96 N. E. 874.) Farmer, J. This is a writ of error sued out to review a decree of the circuit court of Montgomery county for the re-conversion of per- sonal property into real estate. . . . 196 MISCELLANEOUS. (Part. 3 There is no controversy upon the proposition that under the will the defendants in error took no title to the land; that where land is devised and by the terms of the will is directed to be converted into money and the money distributed to the devisees and legatees, it is a devise of money and not of land. Neither is there any controversy that under such a devise, if the devisees are under no disability and all agree to do so, they may elect to take the land instead of the money. Plaintiff in error also concedes that a "court of equity may, if it appears to be to the advantage of an infant, direct a re-conversion in his behalf, if at the time of such re-conversion the infant is presently en- titled to the fund." It is contended, however, that the right to elect a re-conversion only exists where the beneficiary, whether adult or minor, is entitled to the present enjoyment of the fund or property. By the will of their father defendants in error would become en- titled to the possession and use of the gift upon their respectively at- taining the age of twenty-one years. But one of them had arrived at that age when the bill in this case was filed and the decree entered thereon, and the youngest was but ten years old. We do not think the right of a devisee to elect a conversion or re-conversion of money into land or land into money is dependent upon his right to the present en- joyment of the gift at the time the election is made. We are of opinion there vi'as no error in decreeing a re-conversion and enjoining the sale of the land, but that part of the decree direct- ing the trustee and executor to release and turn the land over to the minors at once was erroneous. The duty was imposed by the will upon the trustee of managing and controlling the property of the minors until they respectively, arrived at the age of twenty-one years. Until the land was sold he was to manage and control the land, and when it was sold the proceeds were to be invested by him in safe securities at the best rate of interest obtainable, and kept so invested by him until the time fixed for distribution arrived. Re-conversion defeats the distribution of the testator's property in money, but the right of re-conversion does not carry with it the right to defeat the will of the testator that the possession and enjoyment of the property should be postponed until the beneficiaries, respectively, became twenty-one years old. Under the evidence the chancellor was justified in con- cluding that it was for the best interests of the minor defendants in error that they take the land instead of the proceeds of its sale, Cll. 11.) MISCELLANEOUS. 197 but the election to so do did not authorize a disregard of the will fixing the time at which the beneficiaries should come into its enjoy- ment. The control and management of the property of the minor defendants in error should be left in the trustee until the time fixed by the will for distribution. . . . CURTEIS V. WORMALD. (In Chancery, 1878, 10 Ch. D. 172.) JessEl^ M. R. The point which I have to consider and to decide is this : A testator directed his trustees — for although the same persons may have been appointed executors they are for this purpose trustees, and trustees only — to lay out his residuary personal estate in the purchase of real estate, freeholds and copyholds, to be settled to certain uses, comprising a long series of limitations. The residue was ascertained, that is, the testator's debts and legacies and funeral and testamentary expenses were all paid, and then the residue was at different times laid out by the trustees, pursuant to the will, in the purchase of freehold and copyhold estates, which were conveyed so as to vest the legal estate in the trustees. That being so, the limitations took effect to a certain extent, and then, by reason of failure of issue of the tenants for hfe, the ultimate Hmitations failed, and there became a trust for somebody. Now, for whom? According to the doctrine of the Court of Equity, settled, if I may say so, by the well-known case of Ackroyd v. Smithson (1 Bro. C. C. 503, ) — for it has always been the law of this Court since — this kind of conversion is a conversion for the purposes of the will, and does not affect the rights of the persons who take by law independent of the will. If, therefore, there is a trust to sell real estate for the purposes of the will, and the trust takes effect, and there is an ultimate beneficial interest undisposed of, that undisposed of interest goes to the heir. If, on the other hand, it is a conversion of personal estate into real estate, and there is an ultimate limitation which fails of taking effect, the interest which fails results for the benefit of the persons entitled to the personal estate, that is, the persons who take under the 198 MISCELLANEOUS. (Part. 3 Statutes of Distribution as next of kin. Their right to the residue of the personal estate is a statutory right independent of the will. The result is that in the case I put there is a trust for the next of kin. How any one could imagine it was a trust for anybody else it is difficult to understand; and had I not been referred to the judg- ment of a very eminent Judge on this subject I should have said it was impossible to understand it. There certainly is authority for saying — a single authority, and an authority standing alone — ^that the ultimate trust is not for the next of kin, but for the executors. Why? The executors have ceased to have anything whatever to do with the matter. They have paid over the legacy to the legatee, who happens to be a legatee-trustee, and who holds it by law, under the Statutes of Distribution, as trustee for the next of kin, and no one else. By what process of reasoning any other result can be arrived at I have been unable to discover. The decision to which I have referred is one which, to my mind, is utterly opposed to the whole law upon the subject. Then the next question which arises is, how does the heir-at-law in the first case, or the next of kin in the second, take the undisposed- of interest? The answer is, he takes it as he finds it. If the heir-at- law becomes entitled to it in the shape of personal estate, and dies, there is no equitable reconversion as between his real and personal representative, and consequently his executor takes it as part of his personal estate. On the other hand, if the next of kin, having become entitled to a freehold estate, dies, there is no equity to change the freehold estate into anything else on his death ; it will go to the devisee of real estate or to his heir-at-law if he has not devised it, and will pass as real estate. . . . WETHERILL v. HOUGH. (New Jersey Court of Chancery, 1894, 52 N. J. Eq. 683, 39 Atl. 593.) Bird, V. C. William Wetherill was the owner of certain lands and died seized thereof, leaving him surviving several children, one of whom was named Sarah M., who married John S. Hough. Sarah ^^1- 11-) MISCELLANEOUS. 199 M. died January 10th, 1875, leaving her surviving the said John S. Hough and Frances Eleanor A. E. Hough, their only child. The title of the said lands which descended to Sarah Hough at her death passed to her daughter, the said Frances Eleanor A. E., subject to the estate by the curtesy of her father. The complainants were the brothers and sisters of the said Sarah, and consequently the uncles and aunts of the said Frances Eleanor, and they claim that the fee of the said lands would have descended to them (had it not been disposed of as hereinafter will appear) as the heirs-at-law of the said Frances Eleanor. During the lifetime of Frances, by an order of this court, a por- tion of the said lands, of the value of $200, was conveyed to the gas company of the city of Atlantic City, and $80 paid for a right of way over a lot of land in Atlantic City. And $1,320.64 was paid for land taken by the Chelsea Branch Railroad Company, under the exercise of the right of eminent domain. . . . The court is asked to declare that these moneys are to be treated as real estate, and consequently pass, by the statute of descent, to the complainants, who are the uncles and aunts of the said Frances Eleanor, subject only to the tenancy by the curtesy of the said John S. as the husband of the said Sarah. As to the $200, it is insisted upon the part of the defendant, John S. Hough, that since the lands of the infant of that value were con- verted into money by the order and direction of the court, it must be presumed to have been in the interest, or for the benefit of the in- fant, and that it was consequently such a conversion as would have resulted if Frances Eleanor had been of age and performed the same act in person. It is claimed that this was a voluntary, as distinguished from a compulsory, conversion, such as characterizes the sale of lands under the statute by executors and administrators for the pay- ment of debts of decedents, when the question arises as to whether any surplus remaining must be treated as real estate or as personality. The $200 must be treated as real estate. The case most nearly like this which has been considered by our own courts, is that of Snowhill v. Snowhill, 2 Gr. Ch. 20, which was before the chancellor on demurrer, and before the court of errors and appeals, as appears in the opinion of Chancellor Pennington, in 1 Gr. Ch. 30. The de- cision of the court of errors and appeals in that case has not been re- ported, but it appears from the case of Oberle v. Lerch, 3 C. E. Gr. 200 MISCELLANEOUS. (Part. 3 350, that the correctness of the decision was very seriously questioned by the counsel and an effort made to have it overruled, but after full consideration and a review of a number of authorities, the chancellor, without qualification, approved the decision of the court of errors and appeals, in the case of Snowhill v. Snowhill. The case of Oberle V. Lerch was taken up on appeal (3 C. E. Gr. 575) and the decree of the chancellor affirmed. Now, in the Snowhill Case, the legislature by special enactment authorized the guardian of an infant to sell certain real estate belonging to the infant. After such sale the in- fant died, and the question presented for the determination of the court was whether the proceeds of such sale should be treated as real or personal estate. The chancellor, on demurrer, decided that it should be treated as personalty which passed to the representative of the infant, while the court of errors and appeals decided that it should be treated as real estate and that it descended to the heir-at- law of the infant. The rule to be extracted from this case is that where there is a compulsory conversion of the real estate of an infant, the proceeds during the minority of the owner retain the character of real estate for the purposes of devolution and transmission. . . . The cases show that where the conversion is compulsory, i. e., against the will or without the consent of the owner, the fund will be treated as real estate until the owner, being sui juris or of dis- posable capacity, manifests a willingness to accept it as personal. The $80 must be controlled by a different rule. The parties claim- ing it were, at the time of the sale, sui juris, and undertook to convey to and secure the entire fee (including that of the infant) in the grantee. The $80, which represented the supposed interest of the in- fant was paid to her guardian. The complainants have not the shadow of a right to claim the proceeds of that transaction, which represented the interest of the infant as real estate. I will advise a decree in ac- cordance with these views. MAKEPEACE V. ROGERS. (In Chancery, 1865, 4 DeG., J. & S., 649.) ■ The bill in its 2d paragraph alleged, that in 1859 the respondent had appointed the appellant to be the agent and manager of the Cll. 11.) MISCELLANEOUS. 201 respondent's real estate at Bracknell, in Berkshire, and at Bromley, in Kent, and of certain houses in London belonging to the respondent, with authority to receive the respondent's rents of the said estate and houses ; and that the respondent had given the appellant a power of attorney to receive the dividends and interest of certain bank- stock and other stocks, funds, shares, and securities belonging to the respondent ; that the appellant had acted as such agent and manager of the respondent's aforesaid estates and houses, and from time to time received the rents thereof, and from time to time received the dividends and interest oE certain bank-stock and other stocks, funds, shares, and securities, or of such of the said estate, houses, and other property aforesaid as from time to time remained unsold, down to the determination of the appellant's employment by the respondent at the end of 1863-. The bill then charging in effect that the appellant had had almost uncontrolled authority in the management of the respondent's estates, houses, and other property aforesaid, and had by his directions sold certain timber on the estates and also divers parts of the estates, houses, and other property themselves, and received the proceeds of sale, but had rendered none but meagre and unsatisfactory accounts of his receipts generally, and refused or omitted to give any better accounts or any vouchers for his expenditure, and alleging (in its 16th paragraph) that the appellant had in his possession or custody or under his control divers deeds, probates of wills, books, maps, plans, and other documents and muniments of title belonging to the respond- ent which he ought to deliver up to the respondent, prayed (1) an account of the appellant's receipts for or on account or on behalf of the respondent, or which might have been received by the appellant but for his willful default or neglect; (2) an account of the appellant's payments to the respondent or to his use or on his behalf ; (3) payment of the balance to be found due ; (4) delivery by the appellant to the respondent of all deeds, probates of wills, books, maps, plans, muni- ments of titles, paper, and documents belonging to the respondent or relating to his estate; (S) payment by the appellant of the costs of the suit; and (6) general relief. . . . The Lord Justice Knight Bruce said that this was one of the clearest cases that had ever come under his Lordship's notice, and that he was surprised at the demurrer, and surprised at the appeal. The bill was filed by a land-owner against a person whom he had for 202 MISCELLANEOUS. (Part. 3 some years employed as the agent and manager of his estates, and the allegations of its 2d paragraph were these: (His Lordship read the passage in question and proce'eded.) Had there been nothing else in the case than this the plaintiff would have been entitled to a decree. His Lordship did not think that the Lord Justice, when as\ Vice-Chancellor he had disposed of Phillips v. Phillips, (9 Hare, 471), had intended to say that a bill in equity for an account would not lie unless there had been receipts and payments on both sides. (See Porter v. Spencer, 2 John. Ch. 171 ; 1 Story Eq. Jur. sec. 458; Adams Eq. 5th Am. ed., 222, note 1.) The existence of a fiduciary relation between the parties, as, for example (as was the case here), that of principal and agent, was sufficient to confer jurisdiction on this Court, and allegations of fraud or special circumstances were unnecessary. No doubt if there had been between the parties a stated and settled account, or an executed release, it might be necessary for the plain- tiff to show a special case to induce this Court to grant the relief sought. But no such case arose here. Beyond which, the claim set up by the present plaintiff against the defendant his steward in the 16th paragraph of the bill, and in respect of which relief was sought by the 4th paragraph of the prayer, extending, as that claim did, not to discovery only, but to delivery up to the plaintiff of the muniments in question, was alone sufficient to entitle him to relief in this Court. The demurrer and the appeal were alike to be reprobated. The Lord Justice Turner said that this was clearly not a case in which their Lordships could, in justice to the Vice-Chancellor, to them- selves, or to the principles of the Court, call upon the counsel for the plaintiff. The claim and prayer in the bill as to the documents were alone sufficient to support it, any provisions of the Common Law Procedure Act, 1854, or legal rights enforceably by action notwith- standing. But it was not necessary to decide the case upon these grounds, for upon the demand for an account it was equally clear. Although it might be that in a simple case a more convenient course would be to apply for relief to a Court of Common Law, still as between principal and agent, there existed that fiduciary relation which gave jurisdiction to this Court to interfere on behalf of the principal suing his agent as such; and the existence of fraud was not, although the contrary had been contended at the bar, a necessary element to give jurisdiction to this Court to interfere in such a case. Mackenzie v. Johnston, 4 Madd. 373, was in point to the contrary. Ch. 11.) MISCELLANEOUS. 200 Phillips V. Phillips, 9 Hare, 474, in which his Lordship had commented on that case, went upon the footing of the account there in question being a current account between the parties; and the bill made no case of general agency, alleging only an isolated agency transaction connected with the sale by the defendant of some railway shares be- longing to the plaintifif. That case had no reference to a case of general account between principal and agent ; and if his Lordship's language in giving judgment in that case had been in fact such as to give rise to misapprehension, such misapprehension ought to have been dispelled by what he had said in the subsequent case of Padwick V. Stanley, 9 Hare, 628, when adverting to the want of correlation be- tween the rights of a principal and an agent to sue in this Court. In the present case the Vice-Chancellor's conclusion was perfectly cor- rect, and the appeal must be dismissed, with costs. FLUKER V. TAYLOR. (In Chancery, 1855, 3 Drewry 183.) The Vicu-Chancellor. . . .It is difficult to lay down any fixed rule which goes to mark out the Hne between those cases when an account must be taken in equity, and when it need not. An attempt has been made to lay down such a rule, by saying the accounts must be mutual, that there must be receipts and payments on both sides. Now, even if that were the rule, this case does not contain any allega- tion of any receipts by the Plaintiff. But it really appears to me that it would be dangerous to lay down the rule in any such terms. For, take the common case of any gentleman of fortune keeping a mere money account, not a business account, with his banker; he pays money to the banker, and the banker pays his cheques ; that is mutual receipt and payment; the banker receives money from the customer, and pays cheques to the customer ; and the customer pays money into the banker's, and draws money out. If the rule were as stated, such a case would fall within it, while it is clear in such a case no bill would lie. It is therefore dangerous to say the equity depends on mutual receipts and payments ; the equity must depend, in each case, on the nature of the account ; it depends on this, whether the account is in its 204 MISCELLANEOUS. (Part. 3 own nature, not merely from number of items, but from its nature, so complicated that this Court will say, such an account cannot be taken in a Court of Law. That is not this case ; the main if not the only question, is the claim of £1,175 for remuneration, and that is not a question of account so complicated that it can be said that a Court of Law cannot deal with it. The motion must therefore be refused with costs. MUSGRAVE V. DICKSON. (Supreme Court of Pennsylvania, 1896, 172 Pa. 639, 33 Atl. 705.) Fell, J. This proceeding is founded upon a petition by Samuel Musgrave, one of the sureties on a replevin bond, for subrogation to the rights of the plaintiff in the judgment. An answer was filed by the appellant, the plaintiff, in which he averred that the judgment had not been fully paid, and in which he stated other supposed equi- table grounds in denial of the right claimed. A separate answer was filed by the defendants, in which they alleged that they had trans- ferred their property and business to the co-surety, J. C. Dicken, to secure him and Samuel Musgrave from any loss they might sustain by reason of the bond, and that from the management of their business an amount had been realized by Dicken more than sufficient to cover the payment made by Musgrave. It was agreed by both sureties that the amount due the defendants from the management of the business should be credited by Musgrave on account of the money which he had paid. . . . Subrogation rests upon purely equitable grounds, and it will not be enforced against superior equities. Unless the surety pays the debt in full he is not entitled to subrogation, and until this is done the creditor will be left in full possession and control of the debt and the remedies for its enforcement. . . The settlement of the account between the sureties and the defendant fixed the amount of the liability of the latter and the extent of the right to indemnity, but it did not affect the right of surogation, which will never be allowed to the prej- udice and injury of the creditor. . . . Cll. 11.) MISCELIANEOUS. 205 PEIRCE V. GARRETT. (Appellate Courts of Illinois, 1896, 65 111. App. 682.) HARK:eRj J. This is an appeal from an order of the Circuit Court sustaining a demurrer to a bill in equity presented by appellants and dismissing it for want of equity at their costs. The bill shows that on the 20th of July, 1893, John M. Bdyer, being indebted to the Third National Bank of Bloomington, Illinois, with S. S. Porter, G. A. Griggs, John Niccolls and E. A. Vencill, as sureties for the Home Nursery Company in the sum of $8,400, as evidenced by a promissory note executed by them, June 12, 1893, executed and delivered to the bank a mortgage upon 185 acres of land in Whiteside county for the purpose of securing its payment; that the mortgage was given subject to a prior one for $2,000 to the Anthony Loan and Trust Company ; that Griggs, Niccolls and Vencill are insolvent; that on January 22, 1894, judgment was entered upon the note, for $9,110.66; that Porter paid the judgment in full; that Porter assigned his right to subrogation as co-surety to complainants and procured the bank to assign the judgment and mortgages to complainants for a consideration of $2,000, and that Boyer, on the 9th of June, 1894, and long after the mortgage to the bank was placed upon record, conveyed the land to J. S. Garrett. The bill asks for a decree in favor of complainants to the extent of the right of Porter and the bank, ^or an accounting to ascertain what is due com- plainants and for an order of sale of the mortgaged premises, all subject to the rights of the Anthony Loan and Trust Company. The demurrer is by Garrett and wife. We entertain no doubt upon the proposition that Porter was subro- gated to all the security of the bank against Boyer. The doctrine is well established that a surety who pays the debt of his principal will be subrogated to all the securities and equities held by the creditors against the principal. 1 Story's Equity Jurisprudence, sec. 499 ; 2 Brandt, on Suretyship, 479 ; Phares v. Barbour, 49 111. 370 ; Rice et al. v. Rice et al., 108 111. 199; Lochenmeyer v. Forgarty, 112 111. 572. So firmly committed is our Supreme Court to that doctrine that it has been held the creditor can not release the security which it holds. 206 MISCELLANEOUS. (Part. 3 to the prejudice of the surety. City National Bank of Ottawa et al. V. Dudgeon et al; 65 111. 11. Upon the same principle a surety who pays the debt for which he. and a co-surety are liable will be subrogated to the rights of the creditor against the co-surety upon securities given by him to the extent of his right to compel contribution from the co-surety. The fact that the debt was charged to a judgment before it was paid does not affect Porter's right of subrogation. Where a mort- gage is given to secure a debt, and a debt becomes merged in a judg- ment, the mortgage stands as security for the judgment. Wayman et ux. V. Cochrane, 35 111. 151 ; Dacit v. Bates et al., 95 111. 493. Satis- faction of the judgment by a surety paying it would undoubtedly en- title such surety to an action on the mortgage. The most serious question in the case is whether Porter's right of subrogation is assignable. Whether the collateral security to which a surety becomes subrogated by reason of paying the debts can be as- signed so as to enable the assignee to maintain a suit, is a question which has never been presented to the courts of last resort in this State, so far as we are advised. It has been so held in Indiana. Num- ford V. Frith, 68 Ind. 83; Frank v. Taylor, 130 Ind., 145. In Harris on Subrogation, Sec. 199 the author, after stating that the surety is entitled to subrogation in a court of equity whether there has been an actual assignment of the collateral to him or not, says : "Not only is this true, but the surety so paying the debt of his prin- cipal, and thus acquiring the right of subrogation, may assign over to any one his demand and equitable claim against the principal, and his assigns will be subrogated to the rights of the creditor, and may take his place, with all the securities, rights, remedies, privileges and prior- ities." To us it seems consonant with reason that if the satisfaction of the judgment by Porter left the mortgage still alive, with the right in him to foreclose to the extent of his right to compel Boyer to then con- tribute, Porter could assign to appellants for a valuable consideration, and they would thereby be subrogated to all the rights of the Third National Bank and Porter in the mortgage. . . . Ch. 11.) MISCELLANEOUS. 207 DA VIES V. HUMPHREYS. (In the Exchequer, 1840, 6 M. & W. 153.) ParkB, B. In these cases actions were brought by the plaintiff, one of the makers of a joint and several promissory note, dated the 27th of December, 1827, for the sum of £300, with . interest, to re- cover from the two other makers, Evan Humphreys, and John Humphreys, a part of the money paid by him to the payee, he having paid the whole. In the action against Evan Humphreys, the plain- tiff claimed the whole, alleging that the defendant was the principal debtor. Against the defendant John Humphreys, he claimed a moiety of what he had paid, alleging that the defendant was a co- surety. There were two pleas, — non assumpsit, and the Statute of lyimitations ; and on the trial at the Spring Assizes, before my Brother Coleridge, it appeared that the plaintiff had paid the whole of the debt and interest, of which the sum of i30 pounds only was paid within six years before the commencement of the suit, the residue having been discharged before. For this sum the plaintiff recovered against Evan Humphreys, leave being reserved by the learned Judge to move to increase the amount to the whole sum paid ; against John Humphreys, the plaintiff recovered a moiety of £30, and permission was also given to move to increase that verdict. . . . On the other hand, the rule for increasing the amount of the verdict against Evan Humphreys, the principal, must also be discharged; for it is clear that each sum the plaintiff, the surety, paid, was paid in ease of the principal, and ought to have been paid in the first in- stance by him, and that the plaintiff had a right of action against him the instant he paid it, for so much money paid to his use. How- ever convenient it might be to limit the number of actions in respect of one suretyship, there is no rule of law which requires the surety to pay the whole debt before he can call for reimbursement. The consequence is, that the plaintiff's right of action against the prin- cipal must be limited to the full amount of all the payments within six years, and this being the amount for which the verdict was taken, the rule to enter a verdict for a larger sum must be discharged. Against the co-surety the case is different — the Court will give it further con- sideration. 208 MISCELLANEOUS. (Part. 3 And now, in this Term, the judgment of the Court, on the remaining point in the action against John Humphreys, the surety, was delivered by Parke, B. This was an action by the plaintiff against the defendant, his co-surety on a promissory note, dated the 27th of October, 1827, for the sum of £300, with interest, to recover a moiety of the whole amount which he had paid to the payee. A rule granted in this case, as well as one which was granted in another action on the same note against the principal, was argued in the Sittings after Trinity Term. In the course of the last Term, the Court. . . . reserved for furth- er consideration the question, at what time the right of one co-surety to sue the other for contribution arises. This right is founded not originally upon contract, but upon prin- ciple of equity, though it is now established to be the foundation of an action, as appears by the cases of Cowell v. Edwards (2 B. & P. 269,) and Craythorne v. Swinburne (14 Ves. 164) ; though Lord Eldon has, and not without reason, intimated some regret that the Courts of law have assumed a jurisdiction on this subject, on account of the difficulties in doing full justice between the parties. What then is the nature of the equity upon which the right of action depends? Is it that when one surety has paid any part of the debt, he shall have a right to call on his co-surety or co-sureties to bear a proportion of the burthen, or that, when he has paid more than his share, he shall have a right to be reimbursed whatever he has paid beyond it ? or must the whole of the debt be paid by him or some one liable, before he has a right to sue for contribution at all? We are not without authority on this subject, ^nd it is in favor of the second of these propositions. Lord Eldon, in the case of Ex parte Gifford (6 Ves. 805), states, that sureties stand with regard to each other in a relation which gives rise to this right amongst others, that if one pays more than his proportion, there shall be a contribution for a proportion of the excess beyond the proportion which, in all events, he js to pay; and he expressly says, "that unless one surety should pay more than his moiety, he would not pay enough to bring an assumpsit against the other." And this appears to us to be very reasonable ; for, if a surety pays a part of the debt only, and less than his moiety, he cannot be entitled to call on his co-surety, who might himself subsequently pay an equal or greater portion of the debt ; in the former of which cases, such co- surety would have no contribution to pay, and in the latter he would Ch. 11.) MISCELLANEOUS. 20.9 have one to receive. In truth, therefore, until the one has paid more than his proportion, either of the whole debt, or of that part of the debt which remains unpaid by the principal, it is not clear that he ever will be entitled to demand anything from the other; and before that, he has no equity to receive a contribution, and consequently no right of action, which is founded on the equity to receive it. Thus, if the surety, more than six years before the action, has paid a por- tion of the debt, and the principal has paid the residue Within six years, the Statute of Limitations will not run from the payment by the surety, but from the payment of the residue by the principal, for until the latter date it does not appear that the surety has paid more than his share. The practical advantage of the rule above stated is consid- erable, as it would tend to multiplicity of suits, and to a great in- convenience, if each surety might sue all the others for a ratable pro- portion of what he had paid, the instant he had paid any part of the debt. But, whenever it appears that one has paid more than his pro- portion of what the sureties can ever be called upon to pay, then, and not till then, it is also clear that such part ought to be repaid by the others, and the action will lie for it. It might, indeed, be more convenient to require that the whole amount should be settled before the sureties should be permitted to call upon each other, in order to prevent multiplicity of suits ; indeed, convenience seems to require that Courts of equity alone should deal with the subject; but the right of action having been once established, it seems clear that when a surety has paid more than his share, every such payment ought to be reimbursed by those who have not paid theirs, in order to place him on the same footing. If we adopt this rule, the result will be, that here, the whole of what the plaintiff has paid within six years will be recoverable against the defendant, as the plaintiff had paid more than his moiety in the year 1831 ; and consequently the rule must be absolute to increase the amount of the verdict from £15 to £30. ACHESON V. MILLER. (Supreme Court of Ohio, 1853, 2 O. St. 203.) CaldwBlIv, J. This suit in the court below was one for contribu- tion. The plaintiff in the action and the defendant, with four other 3 Eq— 14 210 MISCELLANEOUS. (Part. 3 were the sureties for Garry Lewis on a draft for $5,000. Lewis be- came insolvent, and judgment was rendered against all the indorsers, and also a judgment against Lewis, the principal. Execution was issued, and four of the indorsers, of whom Reuel Miller was one, having indemnified the sheriff, directed him to levy on a store of goods recently the property and in the possession of Garry Lewis, the principal debtor, but which goods were assigned about that time to Daniel Gilbert. Gilbert brought suit against the sheriff and the four maorsers that airected him to levy, and recovered a judgment for the sum of $5,3S4.6L the value of the goods; which judgment was paid off by these four indorsers. Miller paid the one-fourth of it. The goods were sold by the sheriff and applied on the judgment, and paid on it $3,135.73. Acheson not having anything to do with the levy on the goods, has paid nothing, and this suit was brought by Miller against Acheson to require him to contribute his share of the $3,135.73 paid on the judgment by the sale of the goods. On the trial in the court of common pleas, after the plaintiff had given in his evidence and rested, the defendant moved for a non-suit, which the court refused and gave judgment for the plaintiff. The defendant presented a bill of exceptions setting forth the evidence, which was signed and made a part of the record. The question presented on this record is, whether contribution can be had in such a case. It is said, on the part of the plaintiff in error, that Miller and those who acted with him were wrong-doers — that they committed a trespass in having the goods levied on, and that therefore he is not entitled to contribution for the payment made by the proceeds of such goods. The rule that no contribution lies between trespassers, we ap- prehend is one not of universal application. We suppose it only ap- plies to cases where the persons have engaged together in doing wan- tonly or knowingly a wrong. The case may happen, that persons may join in performing an act, which to them appears to be right and lawful, but which may turn out to be an injury to the rights of some third party, who may have a right to an action of tort against them. In such case, if one of the parties who have done the act has been com- pelled to pay the amount of the damage, is it not reasonable that those who were engaged with him in doing the injury, should pay their proportion? The common understanding and justice of humanity Ch. 11.) MISCELLANEOUS. 211 would say that it would be just and right that each of the parties to the transaction should pay his proportion of the damage done by their joint act ; and we see no reason why the moral sense of a court should be shocked by such a result. And we think this view of the case is fully sustained by the cases cited by counsel for the defendant in error. In the case of Adamson v. Jarvis, 4 Bing. 66, in speaking on this subject, Best, C. J., says: "From the concluding part of Lord Kenyon's judgment in Merrywether v. Nixon, and from reason, justice, and sound policy, the rule that wrong-doers can not have redress or contribution against each other, is confined to cases where the person seeking redress must be presumed to have known that he was doing a wrong." The same doctrine is distinctly laid down in the case of Betts v. Gibbons, 2 Ad. & El. 57. From these and other cases referred to, we think the reasonable and common-sense rule and the legal one are the same, viz : that when parties think they are doing a legal and proper act contribution, will be had ; but when the parties are conscious of doing a wrong, courts will not interfere. . . . McCONNELL v. SCOTT. (Supreme Court of Ohio, 1846, 15 O. 401.) This is a case in chancery, reserved in the county of Morgan. The bill is filed by the complainant, as a surety of the principal debtor, against him and others, in whose hands the principal debtor has credits. The bill states, that judgment at law has been rendered against both principal and surety ; that the principal debtor is insolvent, and seeks the appropriation of the credits of the principal, in the hands of the debtors, to the satisfaction of the judgment against both him and the complainant, who is his surety. . . . Wood, C. J. The question raised by counsel is, whether a court of equity will entertain jurisdiction in a case like this? It is insisted, in argument, that the complainant is without remedy in any form, until the actual advance of the money due from his principal. At law, the position is doubtless correct. An action to recover for money paid for another does not lie, unless payment is made and proved on the 212 MISCELLANEOUS. (Part. 3 trial; nor can the principal debtor be made liable at law for sub- jecting his surety to the peril of paying his debt, until the injury actually accrues by payment. This is all very true ; but there is, never- theless, a great variety of circumstances, where equity steps in, for the reason that the law affords no adequate redress, and prevents impend- ing or threatened injury. The surety, however, occupies ground peculiar to his own relation, and is favored in both legal and equitable tribunals. Numerous cases are cited by counsel, where principles analogous to those sought to be applied here have been recognized in equity; and we think the com- plainant is within the authority of such adjudication. Indeed, in 1 Ohio, 533, the precise question now raised received the sanction of this court, and, in our view, the authority of that case should not be shaken. What are the obligations of the principal debtor to his surety? Certainly to save him harmless from every injury which may result from such relation ; and a promise is implied to this effect, as valid as if made in express terms, between the parties. 5 Cow. 596. There is no adequate remedy at law, when the principal debtor is insolvent, by which his effects and credits in the hands of others can be made to be applied for the benefit of the surety. Certainly not, as we have already said, without the surety first pays the debt. And such pay- ment may be attended with great inconvenience and severe sacrifice of property — burdens which surely ought not to be imposed if they can, with propriety and justice, be avoided. In 6 Ves. 734, it is said "that equity will compel the principal to pay the debt, after due, at the instance of the surety." In 4 Def. 47, "that it would be hard on sureties, if they were compelled to wait till judgment against them, or they had paid the debt, before they could have recourse to their principal, who might waste his effects before their eyes." Other cases might be cited to the same import. If, then, the principal debtor may be forced to pay the debt at the instance of the surety, it would seem to follow that the property, credits, or effects of such principal may be followed into the hands of others. It must not be understood that the judgment creditor can be delayed in his remedy against the surety. He has his judgment, and may take out his execution at pleasure ; but if he has not collected his money of the surety, and the surety has made it out of the property or credits ^^^- 11-) MISCELLANEOUS. 21.- of the principal, equity will decree its application in discharge of the creditor's judgment against the surety. Decree for complainant. BROWN V. COZARD. (Supreme Court of Illinois, 1873, 68 111. 178.) Sheldon, J. The owner of a certain quarter section of land, in the south-west quarter of which he had a homestead right, having given a mortgage on the quarter section, in which he had released his homestead right, and there being a judgment against him which was a lien upon the quarter section, the judgment creditor brought this bill in equity against the mortgagee and the common debtor, to compel the former to resort first for the satisfaction of his mortgage to the south-west quarter of the quarter section, so that the judgment, with ' the residue of the mortgage debt, if any, might be satisfied out of the remaining portion of the land. A demurrer to the bill in the court below was sustained, and the bill dismissed. This is assigned for error. In support of the bill, that principle of equity is invoked, that if one party has a lien on or interest in two funds for a debt, and another party h^s a lien on or interest in one only of the funds, for another debt, the latter party has a right in equity to compel the former to resort to the other fund, in the first instance, for satisfaction, if that course is necessary for the satisfaction of the claims of both parties, whenever it will not operate to the prejudice of the party entitled to the double fund. The question is, whether this is a case for the ap- plication of the principle. The mortgagee has an undoubted right to sell the homestead for the satisfaction of the mortgage ; the judg- ment creditor has not that right, as respects the judgment. It will produce no injury to the mortgagee, to be compelled to resort first to the tract in which the homestead right exists, as respects the judgment, but has been released as respects the mortgage. So far, the principle may apply ; but the doctrine is attended with this qualification: that no injustice be done to the common debtor. 1 Story, Eq. Jur., sec. 642. The statute provides, that no release or waiver of the homestead exemption shall be valid, unless the same shall be in writing, subscribed by the householder and his wife, if he have one, and be acknowledged, etc. 214 MISCELLANEOUS. (Part. 'J The object sought by this suit is to make the release of the home- stead exemption, which has been made to the mortgagee, operative for the benefit of a judgment creditor, to whom there has been no release of the homestead right in writing. If the end sought should be attained, the judgment creditor will ha.ve derived the benefit of the release of the homestead exemption, not by virtue of a release of it, in writing, to himself, but by an order of the court. The waiver of the homestead exemption was in favor of the mortgagee, and might have been made in the personal confidence that he would first exhaust all the residue of the quarter section of land before resorting to the particular tract in which the homestead right existed, and in the behef that such residue would be sufficient to satis- fy the mortgage, so. that the homestead would remain untouched. The mortgagee himself, of his own accord, may first resort, for the satisfaction of his mortgage, to the tract in which the homestead right exists as against the judgment ; of this the mortgagor would have no cause to complain, because it would be in the exercise of a power' which he himself had voluntarily bestowed upon the mortgagee. But when the mortgagee, not by his own voluntary action, and for his own ' benefit, but at the instance and for the benefit of a judgment creditor, for the purpose of having his judgment satisfied, is compelled to resort first for the satisfaction of his mortgage to the tract subject to the homestead exemption as respects the judgment, the mortgagor then would seem to have just cause of complaint, that his homestead had been taken from him in a mode and for the benefit of a creditor, not contemplated by the statute, and whereto he had never given his assent. This would be in violation of the intent of the statute, that the homestead right should not be injuriously affected for debt, without the express assent, in writing, of the debtor. The purpose of the statute is a benign one ; to secure to the debtor and his family a home, sacred from sale for debt, save by the freely given assent of himself and his wife, in writing. And we think a court of equity should act in the exercise of the power which is invoked in the present instance, so far as may be, in such a way as to advance and not to thwart the policy of the statute. Being of opinion that the relief sought would be in contravention of the spirit and policy of the homestead act, and to the injury of the Cll. 11.) MISCELLANEOUS. 215 common debtor, we think the demurrer was properly sustained and the bill rightly dismissed. The decree is affirmed. WADSWORTH v. SCHISSELBAUER. (Supreme Court of Minnesota, 1884, 33 Minn. 84.) MiTCHBLL, J. There are two classes of cases, both commonly called creditors' suits, which, although closely allied, are clearly dis- tinguishable. The first, a creditor's suit strictly so-called, is where the creditor seeks to satisfy his judgment out of the equitable assets of the debtor, which could not be reached on execution. The general rule is that such an action cannot be brought until the creditor has exhausted his remedy at law by the issue of an execution and its re- turn unsatisfied. This was required because equity would not aid the creditor to collect his debt until the legal assets were exhausted, for, until this was done, he might have an adequate remedy at law. The execution had to be issued to the county where the debtor resided, if a resident of the state. Its issue to another county would not suffice. Reed v. Wheaton, 7 Paige, 663. The second class of cases is where property legally liable to execution has been fraudulently conveyed or incumbered by the debtor, and the creditor brings the action to set aside the conveyance or incumbrance as an obstruction to the enforce- ment of his lien ; for, though the property might be sold on execution notwithstanding the fraudulent conveyance, the creditor will not be required to sell a doubtful or obstructed title. In the latter class of cases, the prevailing doctrine is that it is not necessary to allege that an execution has been returned unsatisfied, or that the debtor has no other property out of which the judgment can be satisfied; for that is not the ground upon which the court of equity assumes to grant relief in such cases, but upon the theory that the fraudulent conveyance is an obstruction which prevents the creditor's Hen from being efficient- ly enforced upon the property. As to him the conveyance is void, and he has a right to have himself placed in the same position as if it had never been made. The fact that other property has been retained by the debtor may be evidence that the conveyance is not fraudulent ; but if 216 MISCELLANEOUS. (Part. O the grantee's title be tainted with fraud, he has no right to say that all other means to satisfy the debt shall be exhausted before he shall be disturbed. Botsford v. Beers, 11 Conn. 369; Weightman v. Hatch, 17 111. 281 ; Vasser v. Henderson, 40 Miss. 519. There is much conflict of authority as to how far the creditor must first proceed at law. It has been held in some cases that if an exe- cution has not been returned unsatisfied, an execution must be issued and the action brought in aid of an execution then outstanding. Such seems to be the latest view of the courts of New York, after much vacillation and conflict of decision. Adsit v. Butler, 87 N. Y. 585. But the prevailing and, as we think, on principle, the better rule is that the creditor need only proceed at law far enough to acquire a lien upon the property sought to be reached before filing his bill to set aside a fraudulent conveyance. The extent to which he must proceed to do this will depend on the nature of the property. If it be personal, there must be a levy, for until this is made he has no lien. If it be real estate, it is enough to obtain judgment, and docket it in the county where the lands are situated. I Am. Lead. Cas. 54, 55 ; 2 Barb. Ch. Pr. 160 ; Bump on Fraudulent Conveyances, 523 ; Weightman v. Hatch, supra ; Newman v. Willetts, 52 111. 98 ; Vasser v. Henderson, supra; Dodge v. Griswold, 8 N. H. 425; Tappan v. Evans, 11 N. H. 311; Cornell v. Radway, 22 Wis. 260; Clarkson v. De Peyster, 3 Paige, 320; Dunham v. Cox, 10 N. J. Eq.. 437-466. The Hen on the land, and the right to sell it in satisfaction of the debt, is the basis of the right to have the deed set aside. This was a suit to set aside a fraudulent conveyance of real estate executed by the judgment debtor, and hence falls within the second class. It follows from what has been said that it was not necessary to issue an execution at all before commencing the present action. Hence it is wholly immaterial that it does not appear that it was directed to the county where the debtor resided. In our view the complainant is good. Order reversed. McCEURG V. PHIEEIPS. (Supreme Court of Missouri, 1873, 49 Mo. 315.) Bliss, J. The plaintiff filed his petition to foreclose a mortgage, but the instrument not having been sealed, he sets out that the parties Cll. 11.) MISCELLANEOUS. 217 intended that it should have been sealed, and that the omission to do so was a mistake; and he asks to have it reformed, and then that the land be sold for the payment of the debt. Defendant Phillips was the mortgagee and fails to appear. Defendant Paul, who is charged as purchaser with notice, demurs to the petition because the facts stated do not constitute a cause of action. The demurrer was sustained, and plaintiff appeals. . . . But it was not necessary to seek the reformation of the instrument. If the mortgagee desired its correction merely, without seeking to enforce it, in order to make it a perfect mortgage conveying the legal title, or if he desired to put it in a condition for a proceeding under the statute, then it would be necessary to prove the mistake and obtain an order to correct it. But without any such correction it is a good equitable mortgage, and can be enforced by an action analogous to a chancery proceedings. Before the adoption of the code, a proceeding under the statute was held to be an action at law, and was not govern- ed by rules in chancery. (Carr v. Holbrook, 1 Mo. 240; Thayer v. Campbell, 9 Mo. 277 ; Riley's Adm'r v. McDook's Adm'r, 24 Mo. 265 ; Fithian v. Monks, 43 Mo. 502.) The last two cases arose since the adoption of the code, and the same distinction is taken between a statutory foreclosure and a proceeding under the general power of courts of equity in mortgages and liens. To enable one to foreclose under this statute and obtain a general judgment and execution for any balance that may remain due after sale of the mortgaged premises, the mortgage must be regular ; but if it be irregular, as by the omission of any requisite to a complete instrument still it is held to create a lien — a trust for the benefit of the creditor — which can be enforced in equity. . . ATKINS V. CHILSON. (Supreme Court of Massachusetts, 1846, 53 Mass. 112.) Wilde, J. This was a writ of entry to recover possession of a lot of land, formerly leased by the demandant to the tenant for a term of years not yet expired. The action is founded on an alleged breach of a condition in the lease, by the non-payment of rent, and a clause of entry thereupon reserved by the demandant in the lease. The tenant, protesting that 218 MISCELLANEOUS. (Part. 3 no forfeiture had accrued, moved the court, at the trial, to stay all further procedings in the case, on his paying the rent and costs. This motion was sustained by the chief justice, who presided at the trial, and the questions now are, whether a court of common law has power to grant the relief prayed for, and if so, whether it ought to be granted on the facts reported. . . . That a court of equity would grant relief in a case like this is not questioned, and cannot be denied. The true foundation of equitable relief, in cases of penalties and forfeitures, is limited to such cases as admit of compensation according to the original intent of the parties. And in all cases where the penalty of forfeiture is desired to secure the payment of a certain sum of money, a court of equity will grant relief, on payment of the money secured, with interest ; as in case of penalties or forfeitures for the non-payment of rent, and other similar cases. 2 Story on Eq. sees. 1315, 1320; Sanders v. Pope, 12 Ves. 282 ; Baxter v. Lansing, 7 Paige, 350. It is, however, denied that courts of common law have any such power. But the authorities cited by the counsel for the tenant abundantly show that in many cases, and for a long period of time, the courts of common law in England have exercised such a power, by granting relief in support of equitable defences, "for the easier, speedier and better advancement of justice," without turning the party over to a court of equity. A fortiori ought this to be done in cases where courts of equity have no jurisdiction, by reason of the limitation of their powers. The ancient common law, as known and administered before the days of Bracton, has been much improved and enriched by the introduction of many principles of the civil law, and by rules of practice founded on justice and equity, and by the labors and investigations of learned judges and jurists, who have laid down the just rules and principles by which the courts of common law are to be governed, at the present day, in the administra- tion of justice. At the present time, and long before our separation from the gov- ernment of England, courts of common law and courts of equity have and had concurrent jurisdiction in many cases; such as cases of fraud, nuisance, waste, and many other cases ; although the theory is, that courts of equity will not interpose and sustain a bill for relief, where there is an adequate remedy at law — courts of equity having been originally established for the purpose of supplying the defects, and correcting the rigors or injustice of the common law, so that Ch. 11.) MISCELLANEOUS. 219 justice may be distributed and enforced in the most perfect manner, secundum aequum et bonum. Courts of law, therefore, are bound to administer justice, where they may consistently with the principles and rules of the common law, and not to compel parties to resort to courts of equity to obtain relief. They will' stay proceedings, when thereby full justice may be done, and in cases where a court of equity would enjoin the plaintifif not to prosecute his action at law. Thus unnecessary expense and delay are avoided, and no injustice is done. On this ground courts of common law interpose in support of an equitable defence. . . . AVe have no doubt, therefore, of the power of this court to stay proceedings in support of an equitable defence. And if we have such power, that it ought to be exercised in this case, no one, we think, can doubt. We cannot imagine a more unjust and oppressive claim, than that which the demandant attempts to enforce. By mistake, the tenant, as it was said on the argument and not denied, tendered a quarter's rent a day or two before it was due ; but this was no prejudice to the demandant. And it is quite certain that the rent would not have been received, if it had been tendered on the day when it was payable ; for the demandant, as his counsel admits, (and as we know judicially,) had then an action pending for the supposed breach of another con- dition of the lease, for which he claimed the forfeiture. See Atkins V. Chilson, 9 Met. 52. The demandant, therefore, could not have accepted rent without defeating his action, as such an acceptance would amount to a waiver of the forfeiture. We are therefore of opinion that the rule adopted at the trial should be made absolute, with some enlargement, however, of the terms. We think the tenant is bound to pay all the rent now in arrear, with interest; for although the demandant has no legal right to interest, (it being admitted that all the rent, except for one quarter, has been duly tendered to him,) yet he has an equitable claim, as the tenant, no doubt, has had the use of the money. For he must have known that the money would not be demanded of him ; and the presumption is that it was used by him. The sum due to the demandant being ascertained according to this modification of the rule, the further proceedings in the case are to be stayed, on payment of the sum due, with costs, or by bringing the same into court for the demandant's acceptance. (See St. 1847, c. 267, sec. 1.) 220 MISCELLANEOUS. (Part. Z WIERICH V. DE ZOYA. (Supreme Court of Illinois, 1845, 7 111. 385.) Caton, J. The bill shows, that the complainant was served with a garnishee process in an attachment suit, in which the present de- fendants were plaintiffs and one McCormick was defendant, in which a judgment was perfected against the present complainant as a debtor of McCormick, to whom in fact he was not indebted, and that he might have successfully defended himself against the said proceedings, had he attended and made defence. The reason assigned in the bill for not attending to the suit is, that after the issuing of the sci. fa., which was sued out on the conditional judgment, and before the re- turn day of the sci. fa., Wierich was directed by Byers, one of the plaintiffs in the attachment, to pay the demand which they were pur- suing by their attachment to one Sherrill, to whom he was satisfied it was due instead of McCormick, and that he would dismiss the garnishee proceedings against them and pay the costs. Relying upon this assurance of Byers, the garnishee paid no further attention to the matter, but that in violation of that arrangement, the plaintiffs in the attachment suit fraudulently proceeded and perfected their judg- ment against the garnishee, and threaten to collect the same ; that ac- cording to the direction of Byers, the complainant had paid the demand to Sherrill. The bill prays a perpetual injunction. A demurrer was sustained to the bill, and the bill dismissed. The only question to be determined is, whether the bill shows suf- ficient upon its face to entitle the party to the injunction. We are clearly of the opinion that it does. The demurrer admits the truth of the statements in the bill, and they present a clear case of fraud. The defendants have taken advantage of their own wrong in obtain- ing the judgment at law. I hardly know where we are to look for a stronger case. After the proceeding had been commenced against the complainant, Byers, one of the plaintiffs in that suit, investigated the title to the note, the amount of which they were seeking to recover, and being convinced that it belonged to Sherrill, advised Wierich to pay it to him, which was accordingly done. At the same time, also, he as- sured him that he would dismiss the garnishee proceedings against him, and pay the costs. If this were not sufficient to justify Wierich in pay- ing no further attention to that proceeding, it is not for the party, who. Cl^- 11.) MISCELLANEOUS. 221 by fair promises, induced him to attend no further to the proceeding by assurances that it should be dismissed, to accuse him of negHgence. If the complainant was too confiding, it is not for the party who has betrayed that confidence to reproach him with, or take advantage of it. He lulled the present party into security, by assurances that he would do what it was but just that he should have done, and then, in his ab- sence, and in violation of his agreement, took a judgment to which he knew he was not entitled ; and then, when called upon to release it, said that he had made over his interest to his co-plaintiff in that suit, and hence he could do nothing about it. De Zoya, when called upon for the same purpose, excuses himself for insisting upon payment of the judgment, by saying he knows nothing about it. If he did not participate in the original fraud, by insisting upon its fruits he be- comes a party to it. He cannot excuse himself as being a bona fide purchaser of the interest of his co-plaintiff, who actually committed the fraud. It having been committed by one of the parties to the judgment, it is as much tainted as if all the parties had participated in the fraudulent practices and design. Where a judgment is obtained by fraud or accident, without any fault or negligence on the part of defendant, a Court of Equity will afford relief, either by opening the case, and allowing the party an opportunity of another trial, or by a perpetual injunction. (Buck- master V. Grundy, 3 Gil. R. 631 ; Owens v. Ranstead, 22 111. R. 168.) In case a new trial is awarded, whether it should be sent back to the Court of Law to be tried again, as seems to be the practice in Ken- tucky, or whether the Court of Chancery will proceed, having thus obtained jurisdiction of it, and make such a disposition as the real rights of the parties require, we do not now propose to determine. In this case that question does not arise, for here is a clear case presented in the bill, requiring a perpetual injunction. . . . HAMILTON V. McLEAN. (Supreme Court of Missouri, 1897, 139 Mo. 678, 41 S. W. 224.) Burgess, J. This is a proceeding in equity by which plaintiff seeks to set aside a decree of partition, rendered by the circuit court of Buchanan county in pursuance of mandate of the Supreme Court. 222 MISCELLANEOUS. (Part. 3 The petition, leaving off the formal parts, is as follows : . . . Whatever the rule may be elsewhere, it is well settled in this State in order that a judgment may be made set aside for fraud in a direct proceeding for that purpose it must be made to appear that fraud was practiced in the very act of obtaining the judgment. Lewis v. Wil- liams, Adm'r. of Henry, 54 Mo. 200. Payne v. O'Shea, 84 Mo. 129, was a bill in equity to enjoin and restrain the enforcement of a judgment obtained before a justice of the peace and asking for a settlement and accounting between the parties, and it was held that while a judgment may be set aside in equity for fraud, the fraud must be in the procurement of the judgment, and not merely fraud in the cause of action on which the judgment is founded, and which could have been interposed as a defense, unless its interposition as a defense was prevented by the fraud of the adverse party. That case was followed and approved in Murphy v. DeFrance, 101 Mo. 151, in which is quoted with approval the following from Freeman on Judg. (3 Ed.), sec. 489: "The fraud for which a judgment may be vacated or enjoined in equity must be in the pro- curement of the judgment. If the cause of action be vitiated by fraud, this is a defense which must be interposed, and unless its interposition be prevented by fraud, it cannot be asserted against the judgment." The court also said "courts of equity do not grant such relief for the purpose of giving a defeated party a second opportunity to be heard on the merits of his defense; and the relief is confined to those cases where the judgment is procured by fraud or through excusable mis- take or unavoidable accident." See, also. Murphy v. DeFrance, 105 Mo. 53; Oxley Stave Co. v. Butler Co., 121 Mo. 614. The same question was before the Supreme Court again in Nichols V. Stevens, 123 Mo. 96, and it was held that in order that a judgment may be set aside upon the ground of its having been obtained by fraud it must appear that the judgment was "concocted in fraud ; that fraud was practiced in the very act of obtaining the judgment. The fraud in such case must be actual fraud as contradistinguished from a judg- ment obtained on false evidence or a forged instrument on the trial." See, also. Moody v. Peyton, 135 Mo. 482; 1 Bigelow on Fraud, pp. 86, 87; Ward v. Southfield, 102 N. Y. 287. "The docrtine is equally well settled that the court will not set aside a judgment because it was founded on a fraudulent instrument, or perjured evidence, or for any matter which was actually presented Ch. 11.) MISCELLANEOUS. 223 and considered in the judgment assailed." . . . That the mischief of re-trying every case in which the judgment or decree rendered on false testimony, given by perjured witness, or on contracts or docu- ments whose genuiness or vahdity was in issue, and which are after- ward ascertained to be forged was in issue, and which are after- ward ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases." United States v. Throckmorton, 98 U. S. 61. In that case there is also quoted with approval the following from Wells on Res Adjudicata, sec. 499. "Fraud vitiates everything, and a judgment equally with a contract, that is, a judgment obtained directly by fraud, and not merely a judg- ment founded on a fraudulent instrument ; for, in general, the court will not go again into the merits of an action for the purpose of detect- ing and annulling the fraud. . . . Likewise, there are few ex- ceptions to the rule that equity will not go behind the judgment to in- terpose in the cause itself, but only when there was some hindrance beside the negligence of the defendant, in preventing the defense in the legal action. While the petition shows that the deed in question was assailed by plaintiff in the partition suit on the ground of its having been obtained by Mrs. McLean and Mrs. Bates by fraud and that that question was decided adversely to him, he now undertakes by this action to escape the legal consequence flowing from the result of that adjudication, by averring that the deed was a forgery, which defendants knew, and which he did not learn until the determination of that suit when his suspicions were aroused by the statements made by Mrs. Bates whose deposition was being taken in another suit. It thus appears that plain- tiff was afforded an opportunity of showing that the deed was a forgery upon the trial of the partititon suit, and having failed to do so without interposition on the part of the defendants herein, he is not entitled to have the judgment in that case set aside merely to give him a second opportunity to show that the deed was a forgery. . . . 224 MISCELLANEOUS. (Part. ?> COWLS V. COWLS. (Supreme Court of Illinois, 1846, 8 111. 435.) Caton, J. This bill was filed by Ann Cowls against her late hus- band for the purpose of obtaining the custody of their children, and a reasonable allowance for their support. In a former suit between the same parties, Mrs. Cowls had obtained a divorce from the present plaintifif, but in that decree lio provision was made in relation to the children. There were two children living at the time the decreu was entered, Mary Jane, aged six and Thomas, aged four years. Tin; reasons assigned in the bill why they should not longer be allowed to remain with their father, and which are not denied by him, but arie admitted by his demurrer, are, that since the time when the divorce was granted, he had lived in a state of fornication with a woman, until within a few weeks of the time when this bill was filed, when he married her. That she was a woman of notoriously bad character, and not in any way qualified for the care and education of the children. That they are now left entirely under her care, and the influence of her bad example. That he neglects them and is addicted to excessive and frequent intoxication. That he is in the habit of quarreling with his present wife, in the presence of the children and driving her from the house. That he is in the habitual use of profane, indecent, immoral and vulgar language, as well in the presence of the children as elsewhere. For these reasons the court decreed that the children should be taken from the father, and placed in the custody of the mother, and the court also allowed for their support thirty dollars per annum each, for the period of five years, to be paid, by the de- fendant. The power of the court of Chancery to interfere with and control, not only the estates but the persons and custody of all minors within the limits of its jurisdiction, is of very ancient origin, and cannot now be questioned. This is a power which must necessarily exist some- where, in every well regulated Society, and more especially in a re- publican government, where each man should be reared and educated under such influences that he may be qualified to exercise the rights of a freeman and take part in the government of the country. It is a duty, then, which the country owes as well to itself, as to the infant, to see that he is not abused, defrauded or neglected, and the infant has Ch. 11.) MISCELLANEOUS. 225 a right to this protection. While a father so conducts himself as not to violate this right, the court will not ordinarily interfere with his parental control. If, however, by his neglect or his abuse, he shows himself devoid of that affection, which is supposed to qualify him better than any other to take charge of his own offspring, the court may interfere, and take the infant under its own charge, and remove it from the control of the parent, and place it in the custody of a proper person to act as guardian, who may be a stranger. . . . Infants thus taken under the charge of the court of Chancery for the protection of their persons and property, are called wards of the court, and the guardian, or person appointed by the court to act as guardian, is an officer of the court and is entirely under its direction and control, and entitled to its aid in enforcing a proper obedience and submission on the part of the ward, and to prevent the improper interference of third persons. A jurisdiction thus extensive, and liable as we have seen, to' enter into the domestic relations of every family in the community, is necessarily of a very delicate, and often of a very embarrassing nature; and yet its exercise is indispensable in every well governed society. It is indispensably necessary to protect the persons and preserve the property of those who are unable to protect and take care of themselves. It becomes clear, then, that our Legislature, by providing that "when a divorce shall be decreed, it shall and may be lawful' for the court to make such order touching the alimony and maintenance of the wife, the care, custody and support of the children, or any of them, as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just," has conferred no new authority or jurisdiction upon the court. It was by its original jurisdiction clothed with the same powers before. The cases provided for in this statute are necessarily embraced hi that broad and comprehensive jurisdiction with which the Court of Chancery is vested, over the persons and estates of infants and their parents who are bound for their maintenance. To apply these prin- ciples to the case before us. What are its circumstances? After a divorce had been decreed between the parties, without making any provision as to the care, custody, or maintenance of the children, the mother files a bill, and asks that the custody of the children shall be taken from the father for the reasons, that he has for some time been living with a prostitute, whom he has finally married, and that 226 MISCELLANEOUS. (Part. 3 the children, who are of tender age, are left principally under her control, and pernicious example and influence ; that he is very in- temperate in his habits, profane, and is in the habit of using vulgar and obscene language in the presence of his family and these children. Here we have grouped together into one disgusting and revolting picture, those features of a father's character who has become un- worthy of the charge of his own offspring, and any one of which, as we have seen it laid down by Mr. Justice Story, will authorize the court in its discretion, to interfere and remove the child without the influence of such a polluted atmosphere. Under such circumstances, if these children are allowed to remain with their father, it is im- possible to expect that they will be properly reared and educated. It would be too much to hope that they will not be affected and pol- luted by the pernicious examples constantly before them. We can- not doubt but a due regard for the well being of these children re- quires the court to take them under its own care and control. . . . GORMAN V. MUIvIvINS. (Supreme Court of Illinois, 1898, 172 111. 349, 50 N. E. 322.) CraiGj J. The only question involved in this case is, did the Su- perior Court, under the evidence, have power to authorize a sale of the real estate described in the bill of complaint, held in trust for the minors, Robert Gorman and Mary Mullins, and the re-investment of the proceeds? The prevailing doctrine in England appears to be, that courts of equity have no power, by virtue of their general jurisdiction over minors, to order the sale of a minor's real estate for the purpose of education, maintenance or investment ; but many of the courts of this country have refused to follow the English rule, and have held "that where it is for the benefit of the minor, courts of equity have the power, by virtue of their general jurisdiction over the estates of minors and others under disabiHty, to authorize a change from real to personal and from personal to real." (Huger v. Huger, 3 Dessaus. 18; In re Salsbury, 3 Johns. Ch. 347) . In Snowhill v. Snowhill, 3 N. J. Eq. 20, the court said: "Courts of equity may, and not infrequently do, change the character of property. They will permit trustees or guar- CI]. 11.) MISCELLANEOUS. 227 dians to do it when it is manifestly for the advantage of the infant. They will convert the property of a lunatic from real into personal for his interest, — and this has frequently been done without reference to the contingent interests of real or personal representatives." In Smith v. Sackett, 5 Gilm. 534, this court said (p. 545) : "The juris- diction of the court of chancery to order the sale of the whole or a portion of the estate of an infant, or to order it to be encumbered by mortgage, whenever the interest of the infant demands it, will not be denied, whether that interest be of a legal or an equitable nature." The authorities on this question were thoroughly reviewed in the case of Hale v. Hale, 146 111. 227, which involved large property in- terests. It was there said (p. 253) : "We need therefore only add, that the power of courts of chancery, by virtue of their'general jurisdiction over the estates of infants, to authorize the conversion of their real estate into personal, where it is clearly for their interest that such con- rent of authority in this country, but is so thoroughly settled by the former decisions of this court as to be no longer an open question version should be made, is not only supported by the general cur- in this State." . . . The decree finds, from the evidence, that the land is improved with several dwelling houses, which, at the time of the death of the tes- tator, Dennis S. Mullins, were of the rental value of $250 per month, but which are now of no rental value whatever ; that the part of the city of Chicago in which said land is situated has changed, since the death of the testator from a iirst-class residence district into a very poor residence district ; that the value of said land has decreased great- ly since testator's death, and is liable to decrease still more before said minors arrive at their majority ; that said land is now of the fair cash value of $15,000, and that it is for the interest of all parties to the suit that said land be sold and its proceeds invested in interest -bearing securities; that under the terms of the will the title to said lands is vested in complainants, as trustees, in fee; that the only persons now interested in said trust are the respective complainants and defendants and that it is for the best interest of all the parties thereto that said lands be sold and the proceeds derived from such sale be held in place of said lands and invested by the complainants, subject to the same trust upon which the lands are now held by them. The decree carefully protects the rights of the minors by requiring a bond, and the court reserves to itself the power to give further directions at am' 228 MISCELLANEOUS. (Part. 3 time, for the proper accounting for such proceeds by said trustees. From the evidence recited in the decree it is apparent that the holding of the property will be disastrous to the minors, as it has decreased in value since the testator's death and is still decreasing in value, while it has no rental value whatever. After a careful examination of the evidence as recited in the decree we are satisfied that it is manifestly for the interest of the minors that the conversion of the property should be made, and that the Superior Court, in the exercise of its chancery jurisdiction, properly authorized the change to be made. . . CARMICHAEL v. LATHROP. (Supreme Court of Michigan, 1896, 108 Mich. 473, 66 N. W. 350.) HookBe, J. . . . The complainant files the bill in this cause, alleging that the lands conveyed by the testator to her two sisters should be treated as ademptions of their respective legacies, and that they should be required to account to her for her share thereof. She alleges that her father so intended, and that they recognized the justice thereof, and promised to see that she received the same, and relying upon such promises, she consented to the settlement of the estate, ex- pecting that her sisters would pay her an amount equal to her share of said parcels so received by them. . . . The case is one where it is claimed that a gift of personal property by will may be satisfied by a conveyance of land, when such is the clear intention of the testator. If a person should bequeath to another a sum of money, and previous to his (the testator's) death, should pay to such person the same amount, upon the express understanding that it was to discharge the bequest, the legacy would be thereby adeemed. But, in the absence of an apparent or expressed intention, that would not ordinarily be the effect of the payment of a sum of money to a legatee under an existing will. Generally, such payment would not aflfect the legacy. To this rule there is an exception, where the testator is a parent of or stands to the legatee in loco parentis. In such case the payment would be presumed to be an ademption of the legacy. At first blush this im- presses one as an unreasonable rule, as it puts the stranger legatee upon a better footing than the testator's own son, and judges and law- Cll- 11.) MISCELLANEOUS. 22^) writers have severely condemned the rule. See 2 Story, Eq. Jur. sees. 1110-1113. It has been said that "this rule has excited the regret and censure of more than one eminent modern judge, though it has met with approbation from other high authorities." '2 Williams, Ex'rs (7th Am. Ed.) *1194. Story's condemnation of it is strong, but he adds, "We must be content to declare, 'Ita lex scripta est.' It is es- tablished, although it may not be entirely approved." And Worden, J., in Weston v. Johnson, 48 Ind. 5, says, "Whatever may be thought of the doctrine, it is thoroughly established in English and American jurisprudence." '. . . There are cogent reasons in support of the rule stated, — i. e., that payment to a son adeems the legacy, — which is based on the theory that such legacy is to be considered as a portion, and that the father's natural inclination to treat his children alike renders it more probable that his payment was in the nature of an advancement than a dis- crimination in favor of one, oftentimes the least worthy. Double portions were considered inequitable, and upon this the doctrine rests. Suisse v. Eowther, 2 Hare, 424, 433. While the authorities are a unit that a legacy by one in loco parentis will be adeemed by payment, in the absence of an apparent or ex- pressed intent to the contrary, the' doctrine was early restricted. Among other limitations was the rule that the presumption could not be applied to a residuary bequest, because the court would not pre- sume that a legacy of a residue, or other indefinite amount, had been satisfied by an advancement, as the testator might be ignorant whether the benefit that he was conferring equaled that which he had already willed. Freemantle v. Bankes, 5 Ves. 85; Clendening v. Clymer, 17 Ind. 155; 2 Story, Eq. Jur. sec. 1115. This exception fell with the discarding of the rule that satisfaction must be in full. Pym v. Eock- yer, 5 Mylne & C. 29 ; Montefiore v. Guedalla, 1 De Gex, F. & J. 93. Again it was held that it could not be applied unless the advancement was ejusdem generis with the legacy. See 2 Story Eq. Jur. sec. 1109. There can be no doubt that a testator's conveyance of real prop- erty may constitute an ademption, if he so intends it, e. g., where he expresses the intent in the conveyance, and possibly in other ways. If so, the only significance of the doctrine ejusdem generis is its effect upon the presumption. The doctrine that the- property conveyed must be ejusdem generis appears to be the only ground upon which 230 MiscELiANEOTJs. (Part. 3 it can be said that the conveyance in this case should not be treated as satisfaction pro tanto. It has been said in early cases that "when the gift by will and the portion are not ejusdem generis, the presump- tion will be repelled. Thus, land will not be presumed to be intended as a satisfaction for money, nor money for land." Bellasis v. Uthwatt, 1 Atk. 428 ; Goodf ellow v. Burchett, 2 Vern. 298 ; Ray v. Stanhope, 2 Ch. R. 159; Saville v. Saville, 2 Atk. 458; Grave v. Earl of Salisbury, 1 Brown, Ch. 425. But see Bengough v. Walker, 15 Ves. 507. The courts have not accepted without protest the proposition that the application of the presumption arising from the relation of parent and child should depend upon the similarity of the property willed and donated, and it has been asked "why, if a gift of a thousand dollars will satisfy a legacy of that amount, it should not equally be satisfied by a donation of lands of equal value." And see Pym v. lyOckyer, 5 Mylne & C. 44. But all agree that ademption is a matter of intent. In Jones v. Mason 5 Rand. (Va.) 577, the court said, "This whole class of cases depends upon the intention;" citing Hoskins v. Hos- kins, Prec. Ch. 263, and Chapman v. Salt, 2 Vern. 646. Again, it was said : "It is laid down generally that a residuary legacy will not adeem a portion due under a settlement, because it is entirely uncertain what that legacy may be. But this rule, like the rest, yields to inten- tion ;" citing Rickman v. Morgan, 1 Brown, Ch. 63, 2 Brown, Ch. 394. In Bengough v. Walker, 15 Ves. 507, it was held that a bequest of a share in powder works, charged with an annuity, was a satisfaction of a portion of 2,000 pounds, when it was so intended. See, also. Gill's Estate, Pars. Eq. Cas. 139. It is forcefully argued that these cases make obsolete the doctrine of ejusdem generis. Whether they do or not, they certainly show that it must yield to the testator's in- tent. We cannot, therefore, accede to the proposition of counsel for the defendants "that conveyance of real estate will not be held a satisfaction of any legacy, in whole or in part, even though the intent of the testator is clear." . . . STRONG V. WILLIAMS. (Supreme Court of Massachusetts, 1815, 13 Mass. 391.) The plaintiff declared in debt upon a bond made to her by Wood- bridge Little, Esquire, the defendant's testator, dated the 18th of Cll. 11.) MISCELLANEOUS. 231 August, 1800, conditioned to pay her $200 within one month after her marriage, if such event should take place in the lifetime of the obligor, or that his heirs, executors, or administrators should pay her $333.33 within six months after his decease. . . . On the 20th of March, 1813, the said testator made his last will, which was approved after his decease, and of which the defendant is executor; and, on the 21st of June following, the testator died, leaving neither wife nor issue. In the said will, the said testator, in considera- tion of the long, faithful, friendly, and meritorious services of the plaintiff, both to himself and his then late beloved wife, bequeathed to her his household furniture, with sundry other valuable chattels, $300 in cash, and also the use of his homestead for six months, or half the rents thereof for the first twelve months after his decease, at her elec- tion. The specific articles so bequeathed were of the value of $745.84, and the rent of the said homestead for six months was equal to $50; all of which the plaintiff had received, together with the said cash legacy. The amount of the testator's estate and credits was $3346.66, and of the legacies, payable in money, $2200. All the residue of his estate, after payment of debts (which were of trifling amount), and legacies, he devised to the corporation of Williams College, under whose direction the defendant contended that the bond had been sat- isfied by the payment of the said legacies to the plaintiff. If, in the opinion of the Court, the plaintiff was entitled to recover the sum due by the bond, in addition to the said legacies, judgment was to be rendered in her favor upon the default of the defendant otherwise, the plaintiff was to become nonsuit. . . . Putnam^ J. The general rule anciently established in chancery was, that, when a testator, being indebted, gave to his creditor a legacy equal to, or exceeding, the amount of his debt, the legacy should be considered as a satisfaction for the debt. The rule has been ac- knowledged in later cases, bat with marks of disapprobation, and a disposition to restrain its operation in all cases where, from circum- stances to be collected from the will, it might be inferred that the testator had a different intention. (Haynes v. Mico, 1 Bro. Cha. Ca. 131.) Thus, where a testator left a sufficient estate, it was determined that he was to be presumed to have been kind as well as just. So, if the legacy was of a less sum than the debt, or of a different nature, or upon conditions, or not equally beneficial in some one particular, al- though more so in another. 232 MiscsBLiiANEOtrs. (Part. 3 All the cases agree that the intention of the testator ought to pre- vail ; and that, prima facie at least, whatever is given in a will is to be intended as a bounty. But, by later cases, the courts have not been disposed to understand the testator as meaning to pay a debt, when he declares that he makes a gift; unless the circumstances of the case should lead to a dififerent conclusion. . . . But cases of this nature must depend upon the circumstances ; and there must be a strong presumption, to induce a belief that the tes- tator intended the legacy as a payment, and not as a bounty. (2 Fonbl. 332). Thus, where the testatrix had given her servant a bond for 20 pounds free of taxes for her Hf e, and afterwards made her will and gave the servant 20 pounds per annum, payable half yearly, but said nothing about the taxes, the court held that both should be paid. (At- kinson V. Webb, 2 Vern. 478.) Here the legacy, being not quite so beneficial as the debt, did not raise a presumption that it was intended as a payment. So, where the testator, having sufficient assets, and having manifest- ed great kindness for the legatee, gave a legacy of a greater amount than he owed, it was holden by Lord Chancellor Cowper, that the testator might be presumed to be kind as well as just ; and he decreed the payment of the legacy as well as the debt. (Cuthbert v. Peacock, 1 Salk. 153.) It has been holden, that a legacy for a less sum than the debt shall never be taken as satisfaction; (1 Salk. 508.) and that specific things devised are never to be considered as satisfaction of a debt, unless so expressed. (2 Eq. C. Abr., title. Devises, pi. 21, cited Bac. Abr., Legacies, D.) ... In the case at bar, the consideration for the legacy appears from the will to have been for the services of the legatee. A presumption that the legacy was intended to be a satisfaction of the bond, also, must rest on the fact, that the bond was given for the same services ; of which fact there is no evidence before us. It may have been for a different cause. We can only presume that it was for a lawful one. It appears, also, from the will, that the testator intended his debts and legacies should be paid, before his residuary legatees should take any thing. The pecuniary legacy to the plaintiff, also, is not so much as the debt; and, therefore, cannot be considered as a payment of it. Neither is there any declaration of the testator, that the specific articles given should be considered as a satisfaction of the debt. It appears, also, that there are sufficient assets. Ch. 11.) MISCELLANEOTJS. 233 From a consideration of the principles and decisions applicable to this case, we are, therefore, all of opinion that the plaintiff ought to recover. Defendant defaulted. WINSTON V. WESTFELDT. (Supreme Court of Alabama, 1853, 23 Ala. 760.) GoivDTHWAiTE, J. The note sued on, at the time of the purchase by Westfeldt, was the subject of controversy in the Chancery Court ; and the first question is, whether these proceedings operated as notice to him; or, in other words, does the doctrine of lis pendens apply to negotiable paper? This is entirely a new question with us; and, so far as we can learn, has never been directly decided by any court. The doctrine, as it prevails at this time, seems to have had its origin in the common law rule which obtained in real actions, where, if the defendant aliened during the pendency of the suit, the judgment in the real action overreached the alienation, and the chancery ordinance of Lord Bacon, which provided "that no decree bindeth any that cometh in bona fide by conveyance from the defendant, before the bill is exhibited, and is made no party by bill or order; but when he comes in pendente lite, and while the suit is in full prosecution, and without any color of allowance; or privity of court, there regularly the decree bindeth. But if there were any interm.issions of suit, or the court made acquainted with the conveyance, the court is to give order upon the special matter according to justice." — Lord Bacon's Works 2 vol. 479. From the use of the term "conveyance," we think that the framer of this ordinance had in view its application to real property only, and that it was intended simply to operate as an adoption in the Court of Chancery of the common law rule which we have referred to ; and this idea is supported by Mr. Powell, who, in his work on Mortgages (2 vol. 618) says: "There is no case in which equity has determined the property in goods to be affected by reason of a lis pendens, where possession is the principal evidence of ownership, as of personal chat- tels." Chancellor Kent also, while he admits that the rule is well established, and applies it without hesitation to a sale of bonds and mortgages, as being outside of the ordinary course of traffic, and al- ways understood to be subject to certain equities (Murray v. Lylburn, 234 MisoEu-ifNEOus. (Part. 3 2. Johns. Ch. 441, 444), expresses a serious doubt whether it applies to money or commercial paper not due, and some question as to its application to moveable personal property^ — such as horses, cattle, grain etc. The Vice-Chancellor, in Scudder v. Van Amburgh, 4 Ed. Ch. 29, while he "incHnes" to the opinion that the rule applied to per- sonal property, admits that the question is not decided. In our own court, in the case of Boiling v. Carter, 9 Ala. 921, the rule was ap- plied to slaves ; but the weight of that case as authority is somewhat diminished, by the fact, that the point was not made, and not alluded to by the court. It is, to say the least, highly improbable that a ques- tion of this novel and important character should have passed "sub silentio," had the attention of the court been directed to it. The question though, here, is not whether the rule applies to personal property, but whether it holds as to negotiable paper transferred be- fore maturity. Lord Eldon evidently doubted it in Jervis v. White, 7 Ves. 413, 414; and from the cautious manner in which he expresses himself, in the last paragraph of Hood v. Aston, 1 Russ. 412, more than twenty years afterwards, we do not think he had fully resolved this doubt. The leaning of Chancellor Kent was against it, on the ground that the safety of commercial dealing required a limitation of the rule ; and it must be acknowledged that there is great force in the reason. Negotiable paper, representing, as it does in almost all civilized nations, a very large proportion of the commercial opera- tions, and serving, to a great extent, as the representative of money, is justly a favorite of the law, and enjoys immunities and privileges which are extended to no other species of contracts. The tendency of the courts has been to uphold this description of paper, in the hands of the bona fide holder, against every species of defense which might exist as between the original parties. The credit and confidence due to it must be impaired, if the buyer was required to examine the courts of every county in the State before he could be sure of his purchase; and such would necessarily be the case, if the doctrine of lis pendens applied to it. There are no adjudications to force us to this extremity; the strongest considerations of public policy seem to forbid the extension of the rule to money or bank bills ; and we think that commercial paper, as the representative of m^ney, should stand on the same footing in this respect. . . .