f I ClflrnfU 21am Btl^nnl ICihtatg Cornell University Library The original of tiiis bool< 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/cu31924018822431 A TREATISE ON THE AS IT IS ENFORCED BY COURTS OF EQUITABLE JURISDICTION, IN THE IJlSflTED STATES OF AMERICA. Bt JOHN NORTON POMEROY, LL. D., PEOEESSOE OF MUNICIPAI. LAW IN THE HASTINGS' LAW DEPARTMENT OF THE UNITEESnT OF CALIFORNIA; AUTHOR OF ARCHBOU>'S CRIMINAL PRACTICE! AND PLEADING. NEW YORK : BANKS & BEOTHEES, LAW PUBLISHEES, No. 144 NASSAU STREET. ALBANY: 473 & 475 BROADWAl. Entered according to Act orCongress, in tlie year one tlionsand eiglit hnudred and seventy-nine, Br BANKS & BEOTHEBS, In the office of tbe Librarian of Congress, at Wasliington. OHARLBS TAN BBNTH1TTSBN & SOITS, Printers, !Stereoin>ei's, Paper Makers and Binders, ALBANY, N. T. TO T ff B HOK S. CLINTON HASTINGS, OP THE SAlf rEANOISCO BAH, BY WHOSE WISE AND LAKGE LIBEEALtTY THE LAW DEPAKTMEKT OP THE UHIVERSITV OF CALIFORNIA HAS BEEN ESTAB- LISHED UPON A BBOAD AND SECURE FOUNDATION, IS EBSPECTPULLT DEDICA'CKD BT THE AUTHOR. PREFACE. This volume contains a large amount of matter derived from both English and American decisions. The object of the work is correctly described by its title. Its discussions are confined to those equitable doctrines which relate directly to the specific performance of con- tracts ; the specific enforcement of trusts, either express or implied, does not come within^ the purpose and scope of the book. The author has endeavored to prepare a treatise suited to the needs of the American lawyer, and representing the equitable doctrines con- cerning specific performance as they have been established, and are administered by the American courts, partly from the simplicity of our real estate law, and partly from the habits, customs, and modes of dealing of our landed proprietors, there has grown up in this country a system of doctrines and rules relating to the specific enforcement of contracts quite different in many important respects from that which exists in England, and which is recognized by the English courts and text-writers. A treatise which should present and illustrate this American system, and which should describe all those features which distinguish it from the English, seemed to be needed; and such a book the author has endeavored to write. "While no claim is made that all the cases in the reports have been cited, it is believed that cases of authority are cited bearing upon, and sustain- ing, every principle, doctrine, and rule which belongs to the general subject of specific performance, and which has received a judicial sanc- tion. Every particular instance, in which a contract has been specific- ally enforced may not have been mentioned, but the principles are stated and explained to which every instance may be referred, and by which it must be determined. Much labor and care have been given to the preparation of the notes, which contain a very full com- mentary on an illustration of the text, and furnish numerous statements of decided cases and quotations from judicial opinions, which the author trusts will be found convenient to those members of the profes- sion who do not have ready access to extensive libraries. JOHN NORTON POMEROY. TABLE OF CONTEISTTS. INTRODUCTORY CHAPTER. Sections. General nature of specific pei-formance 1-5 CHAPTER I. GEITERAI. NATURE, EXTENT AND LIMITATIONS OP THE RIGHT TO A SPECIFIC PERFORMANCE OP CONTRACTS. SECTION I. Is an ancillary and supplementary equitable remedy. Equitable theory and grounds of the remedy 6-8 "l^rst ground : Inadequacy of damages 9-27 Contracts concerning land 9 Contracts concerning personal property 10 Contracts concerning chattels 11-16 Contracts concerning special chattels 12 Contracts concerning delivery of deeds, etc 13 Contracta concerning chattels where there is a trust 14 Contracts concerning miscellaneous subjects 15, 16 Contracts concerning things in action 17-21 Contracts concerning stocks 17-19 Contracts for assignment of debts, etc 20 Awards 21 Contracts for personal acts 22 Contracts for building, constmction, etc 23 Contracts enforced by injunction 24, 25 Nature and extent of " inadequacy of damages " 26, 27 i Second grownd: Impracticability of a legal remedy 28-34 Contracts which plaintiff fails or is unable to perfoi-m strictly 29 Contracts not enforceable at law by reason of a statute 30 Contracts not enforceable at the common-law 31 Proceedings under statute for taking land by railway companies 32 Contracts so incomplete that an action at law cannot be maintained 33 Contracts in which there is no basis for ascertaining damages 34 Vlil TABLE OF COATEyjS. SECTION II. The discretionary character of the remedy. sections "Doctiine as ordinarily stated, with abstract of decisions in note 3S ••Analysis of this doctrine ; the discretion is an application of the principle "he who seeks equity must do equity ; " when the equitable conditions are fulfilled, the equitable remedial i-ight is absolute .— ,• t 36-4( SECTION III. Will not be granted when the legal remedy is sufficient. 'General doctrine; money contracts 47, 4' Contracts for sale of ships, etc 4S Contracts with liquidated damages or penalties 5( CHAPTER II. THE NATURE, ELEMENTS, FEATURES AND INCIDENTS WHICH MUST BELONG TO CONTRACTS IN ORDER THAT THEY MAT BE SPECIFICALLY ENFORCED. These features and iocidenta of contracts classified and described 51, 55 First Group. Those features which pertain to the external fffrm, of the agreement, ana the manner of expressing its various terms, and which, in analogy to thi comm,on-law requisites, relate to the very existence of a binding contract: SECTION I. The parties must have the capacity to contract. Capacity in general 53, 54 Capacity of married women under recent statutes 5E Capacity of corporations ; doctrine of ultra mres 5t SECTION II. The contract must be upon a valuable consideration. Consideration always necessary ; effect of a seal inequity 5' SECTION III. A contract must be actually concluded between the parties with the requisit formalities ; there must be an " aggregatio mentium " upon the sam^ matters. General rale; how contracts are concluded 51 1. Offer and acceptance 59-G' 2. Promise to do something on demand 6^ 3. Representations and acts done on their faith G' TAJiLE OF CONTJiM'JS. ix SECTION IV. The written ineniwandum required by the statute of frauds. Sections. Abstract of American statutes (in note) 70 Object of the statute 71 I. How memorandum must be executed 73-80 II. External form of memorandum 81-84 III. Contents of memorandum 85-95 Part-pe/rfarmance of verbal contracts. General doctrine 96 Not adopted in certain States 97 'First. Kinds and classes of contracts to which the doctrine of part-performance may be applied 99-101 ■Second. Equitable basis and principles of the doctrine 102-109 I. Fraud, the foundation 103-106 n. Natui-e of the acts of part-jrerformance ; must be in pursuance of the contract and to cany it into execution 107-109 Tliird. The pai-ticular acts which are or are not part-perfomiance 110-135 1. Acts prior to the contract 110 2. Acts ancillary to it 110 3. Mai-riage Ill 4. Payment 112-114 5. Possession 115-125 G. Improvements 126-132 Improvements by a donee in possesfion 130-132 7. Marriage with other acts 133 8. Miscellaneous cases ; exchange of lands; labor and sei-vices; acts by a third pei-son 134, 135 FonrtJi. Nature of the evidence by which the conti'act must be proved.... 136-139 Verbal contract when admitted by defendant's answer, effect of, 140, 141 When compliance with the statute is pi-evented by actual fraud, 142, 143 Trusts, ex maleficio, when enforced 144 SECTION V. The contract must be complete. General doctrine -V ^^^' ^^" I. Parties ► ^^'^ n. Price i- 148-151 III. Subject-matter \ 152, 153 IV. Other material terms ; implied terms .Ll54^157 Time to which the completeness must be referred .V^- 158 SECTION VI. The contract must be certain. G^--eral doctrine; inr.iances of uncertainty; parol evidence, when admis- sible • 15»-l<;i x table of contents. Second Group. Those incidents and qualities which do not xyrimarily involve the validity of the contr-act, but which directly affect the right to the equitable remedy, upon the principle that he who seeks equity must do equity. SECTION VII. The contract must be mutual. Sections. • Mutuality of obligatiou and of remedy ; general rule as to both and examples 162-165 •Time when the mutuality must exist, 166 ■Limitations on the doctrine 167-174 Unilateral contracts, options, etc 168, 169 Memorandum under statute of frauds , 170 Cases where objection to a want of mutuaUty is waived... 171-174 SECTION VIII. The contract must be fair, equal and just in its terms. General doctrine * 175, 176 •First. Fairness in the contract itself. 177-182 I. Time when the unfairness, etc., must exist 177, 178 II. Incidents which aid in determining the fairness 179 III. Contracts which are unfair 180-182 Second. Extrinsic cu-cumstances rendering the conti-act unfair 183, 184 SECTION IX. The remedy of specific performance must not be harsh or oppressive. General doctrine 185 Time to which the hardship must be referred 186, 187 • What are hardships; examples 188-191 SECTION X. Inadequacy of the consideration. Inadequacy described 192 Inadequacy alone, when ground for a rescission 193 Inadequacy alone, when it will prevent a specific performance 194 Inadequacy alone, time of. 195 Inadequacy coupled with other facts 196 , Inadequacy in contract between parent and child, etc 197 SECTION XI. The title must be free from reasonable doubt. General doctrine 198 Former rale; modem rule 199^ 200 TABLE OF CONTENTS. xi Sections, I. Cases of title too doubtful 201-203 - , Marketable title 201 Where there is a difference of opinion between courts or judges, 202 "Where the doubt must be settled by future litig-ation 203 II. Nature and extent of the doubt 204-208 Must be reasonable 204 Where title is based upon presumptions 205 Particular instances of doubt 206-208 Third Gsodp. Incidents arid features of the contract connected with or growing out of the conduct — generally preliminary — of the parties which involve the validity of the contract and may render it voidable, and which, therefore, as a matter of strict right, affect the equitable remedy. SECTION XII, The contract must be free from, misrepresentation. General doctrine ; effects of misrepresentation in law and in equity ; elements of a misrepresentation 209-211 ~ I. Its form 212 ~ II. Purpose for which it is made 213 - III. Ita falsity 214 "> IV. Knowledge or belief of party making- it 215-217 - Different rule in law and in - equity ; no scienter necessary to prevent a specific performance 216, 217 V. Its effect on the party to whom made 218-226 He must be justified in relying on it 219-221 Must disaffirm at once on discovering the untruth 222 His actual knowledge of the real facts, effect of. 223, 224 Effect of a, positive misrepi-esentation not obviated by any general expressions of caution ; sale "with all its defects" .... 225 When the contract has been assigned 226 — VL Its materiality 227 Partial misrepresentations ; waiver 228 SECTION XIII. The contract must be free from mistakes. Definitiop of mistake ^^" General doctrine as to effect of mistake; how proved; kinds of. 230. 231 Mrst. What species of mistake are available as the occasion of equitable relief, either defensive or affirmative 232, 242 I. Must be of fact and not merely of law 232 Mistake of law, effect of. 233-238 n. Unexpected result of compromises, etc 239 Xll TABLE OF CONTENTS. Sections. III. Mistake must be material , : 240 IV. Intentional omission or act is not a mistake 241 V. Subsequent parol change of a written contract ; 242 Second. Mistake, when set up by a defendant to defeat a specific perfoi-mance; and herein incidentally of rescission or reformation of the con- tract : 243-258 I. Where the mistake is made by the defendant alone 243-245 1. Where defendant's mistake is induced by acts of the plaintiff. 244 2. Where the mistake is solely due to the defendant 245 II. Where defendant seeks to modify the terms of a written con- tract on account of a mistake by one or both of the parties, 246-258 1. Where the written agreement fails to express the real con- tract , 247-249 Refoi-ming the wiitten instrument in such case 248, 249 2. Mutual mistake as to subject-matter 250 3. Mutual misunderstanding of the conti-act 251 4. Mistake by the defendant alone • 252 Election by plaintiff to have a specific perfomiance according to defendant's version ; defendant's right to such a specific performance 252, 253 i Recapitulation; parol evidence, when, admissible 254-258 Third. Where mistake is alleged by the plaintiff as a gi^ound for reforming his agreement, and enforcing its specific performance when thus corrected 259-266 English rule 2.59, 260 American doctrine 261, 262 Modification of this doctrine 263-266 SECTION XIV. The contract -must be free fmn fraud. General doctrine 267 Concealments 263-271 Puffers at auction 272-276 Combinations among bidders at auction 277 Fraud by agents 278 Waiver of fraud 279 SECTION XV. The contract must he free from illegality. General doctrine 280 Kinds and classes of illegal contracts 281-285 Defense of illegality, grounds of; proof of illegality 286 Valid lights and interests may arise froih illegal contracts 287 TABLE OF CONTENTS. Xlil Fourth Group. Those incidents which relate to or are connected with the actual enforcement of a decree, and which require that a specific performance should be practicable. SECTION XVI. The contract must be such that its specific performance would not be nugatory. Sections. General doctrine; revocable contracts 280 Partnei-sMp agreement 290 Agi-eement to submit to arbitration ; agreement for a lease already forfeited by lessee's breach of a condition, etc 291 SECTION XVII. Incapacity of defendant to perform. Nature of tbis incapacity 292 Mrst. Where defendant's incapacity is total 293-297 /Second. Where it is pai-tial ; alternative contracts 298-302 SECTION XVIII. Incapacity of the court to enforce a performance. Nature of this incapacity 303 ►■I. Where the court is unable to i-ender a decree 304-306 n. Where the court is unable to enforce its decree 307-312 CHAPTER III. ACTS OR OMISSIONS OP THE PARTIES, AND OTHER PACTS, DONE OR OCCUR- RING SUBSEQUENTLY TO THE CONCLUSION OP THE CONTRACT, WHICH APPECT THE RIGHT TO A SPECIPIC PERPORMANCE. Equitable estates and interests of thg parties to a contract 313-315 SECTION I. Events without the agency of the parties; failure of the subject-matter or of the consideration. When the estates and interests of the parties vest ; when the contract is con- cluded 316-319 Destruction of the subject-matter, etc., before or after the vesting of the estates 320-322 XIV TABLE OF CONTMNTS. SECTION II. Performance by the plainUff a condition precedent to his en forcing perform- ance upon the defendant. Sections. Greneral doctrine 323 First, Plaiatiflf's duty to comply with the provisiona on his part 324-364 I. The general doctrine applicable to either party when plaintiff 324-338 Substantial performance generally rerLuisite 324-326 Impossibility of performance 327 Exception in case of marriage contracts 328, 329 Performance of future tenns 330-332 Performance of representations 333 Performance of conditions in conditional contracts 334-338 H. Plaintiff's inability, when vendoi", to g^ve a good title or to convey the subject-matter as specified in the contract 339-353 Gteneral rule that plaintiff must make a good title, etc 339-342 Different estate from that contracted for 343-346 Defect of vendor's title 347-351 Deficiency in the quantity of land 352, 353 . m. Afiii'mative acts of plaintiff in violation of the contract 354-359 IV. Tendei', when necessaiy 360-363 Kind of deed and title which plaintiff must give 364 Second. Some rules for interpreting usual provisions in contracts 365-369 SECTION III. Timie as crff'ecting the right to a performance; when, and when not, of the ' essence of the contract. Grrounds of the equitable doctrine as to timo 370-372 I. Time not ordinarily essential 373-381 Explanation of this doctrine ; instances 373-377 Effect of daose in a contract declaring it forfeited or void if not per- formed by a specified time 378-381 n. Time when essential 382-398 1. Where originally essential fi-om the nature of the subject-matter, or from the object of the contract 383-388 2. Where made essential by express stipulation 889-394 3. Where made essential by a subsequent notice given by one of the parties..... 395-398 III. "Eme, when material 399-426 Three modes of viewing time, viz., as immaterial, as essential and as material; each defined 400-402 1. Where the delay is caused solely by the acts or omissions of either party 403-120 2. Where the delay is caused by a defect in the vendor's title, or by a difficulty in pei-fecting the title 421-426 TABLE OF CONTENTS XV 3. Bights ol the parties to interest, or to the rents and profits when there has been a delay in the performance 427-433 SECTION IV. — Partml speciflo performance and compensation. Various classes of cases in which the doctrine is applied 434-437 I. Where the vendee is plaintiff, demanding a partial specific performance or performance with compensation 438-448 U. Where the vendor is plaintiff, demanding a partial specific perfoiinance or performance with compensation 449-456 III. Enforcement of contract against husband or husband and wife, where the wife has an interest in the land 457-463 1. Where the husband's interest is partial and the wife owns the fee 457-459 2. Where the wife of vendor has an inchoate dower right in the land 460-463 IV. Enforcement by the vendee when the vendor has, subsequently to the contract, sold or conveyed the land to a third person 464-468 SECTION V. Da/mages, when given in place of, or in addition to, a specific performance. Interpretation of Lord Cairns' act in England 469-473 Jurisdiction of equity to award damages... 474 Eqviity rules as to damages in suits for a specific performance 475-479 Modificaljons made by the refoiined procedure 480, 481 CHAPTER IV. PROCEDURE IN THE SUIT FOR A SPECIFIC PERFORMANCE. SECTION I. The parties. General rule of equity *S2, 483 First. Parties plaintiff. 484-490 I. When the suit is on behalf of the vendee 484^88 n. When the suit is on behalf of the vendor 489, 490 Secmvd. Parties defendant 491-496 I. When the suit is against the vendor 491, 494 II. When the suit is against the vendee 495, 496 SECTION 11. Special statutory provisions. Special provisions against heirs or administrators of a deceased vendor... 497, 498 TABLE OF CASES CITED. A. PAGE. Abbott V. Draper, 4 Denio, 52 139 V. Sworder, 4 De G. & Sm. 448 273, 301 Abbot's Ex'r v. Reeves, 13 Wright, 494 19 Abeel v. Radcliife, 13 Johns. 300, 120, 130, 214 Abendroth v. Greenwich, 29 Conn. 356 437 Abevaman Ii"on Works v. Wickens, L. R. 4 Ch. 101. 293, 295, 300, 481, 545 Acker v. Phoenix, 4 Paige, 305 244 Ackerman v. Ackerman, 24 N. J. Eq. 315 192, 504 V. Fisher, 57 Pa. St. 457. 166, 182 Acton V. Acton, Prec. in Ch. 237.... 42 Adair V. Winchester, 7 Gill & Johns. 114 66 Adams v. Blackwall R'y Co., 2 McN. &G. 118 43 V. Broke, 1 Y. & C. C. C. 627. 221 V. Fullam, 43 Vt. 592 167 V.Green, 34 Barb. 176 389 V. Lambert, 2 Jm-. 1078 440 V. Lindsell, 1 B. & A. 681. 95 V. McMillan, 7 Port. (Ala.) 73 120, 123 V. Robei-tson, 37 111. 45 317 V. Rockwell, 16 Wend. 285. 179 V. Townsend, 1 Met. 483... 139 V. Weare, 1 Bro. C. C. 567... 265 Aday v. Echols, 18 Ala. 353 226, 541 Adderly v. Dixon, 1 S. & S. 607. 6, 7, 8, 9, 11, 13,21,25,66, 232 B PAGE. Addington v. Allen, 11 Wend. 375. 299 V. McDonneU, 63 N. C. 389 479 Agar V. Macklew, 2 S. & S. 418 213 Ag-ai-d V. Valencia, 39 Cal. 292. 223, 546, 552 Agate V. Lowenbein, 4 Daly, 62 .... 33 Aihslie V. Medlycott, 9 Ves.21...97, 296 Aitkin v. Young, 12 Pa. St. 15. 173, 174, 177 Akhurst v. Jackson, 1 Sw. 85 397 Akin V. Blanchard, 32 Barb. 527... 76 Albea v. Griffin, 2 Dev. & Bat. Eq. 9 138, 183 Albei-t V. Ware, 2 Md. Ch. 169 199 V. Winn, 5 Md. 66 136 Aldborongh, Earl of, v. Trye, 7 CI. &Fin. 436 269 Aldridge v. Eshleman, 10 Wright, 420 228 Alexander v. Mills, L. R. 6 Ch. 124. 278, 282, 284 V. Newton, 2 Gratt. 266. 317, 332 V. Wellington, Dk. of, 2 R. & My. 35 42 Allan V. Bower, 3 Bro. C. C. 149. 153, 194 Allegheny City v. McClurkan, 14 Pa. St. 81 76 Allen V. Atkinson, 21 Mich. 351. 218, 219, 278, 281, 400, 474 V. Bennett, 3 Taunt. 169. 109, 119 V. Booker, 2 Stew. (Ala.) 21. 139 V Burke, 3 Md. Ch. 534 340 xvm TABLE OF CASES CITED. ta.se. Allen V. Cerro Gordo Co., 40 Iowa, 349 232, 234, 237, 359 V. Chambei-s, 4 Ii-ed. Eq. 125. 138 V. Thomas, 3 Mete. (Ky.) 198. 548 V. "Webb, 64 111. 342 192, 223 Allen's Estate, 1 Watts & Serg-. 383. 136, 139, 145, 150, 155, 159, 164, 171, 172 Allerton v. Johnson, 3 Sandf. Ch. 73 449, 489 Alley V. Deschamps, 13 Ves. 225. 400, 447, 474, 478 Allison V. ShilUng, 27 Tex. 450. 528, 546, 549, 553 Alsopp V. Patten, 1 Vern. 472 159 Alt V. Alt, 4 Giff. 84 98 Alvanley v. Kinnaird, 2 McN. & G. 7 328, 335 Ambrouse v. Keller, 22 Gratt. 769 12,398, 479 Anderson v. Bacon, 1 A. K. Marsh. 48 314 V. Chick, 1 Bailey Ch. 118.... 117,145,154, 156, 359, 173 V. Frye, 18 111. 94... 474, 475 V. Harold, 10 Ohio, 399. 109 V. Simpson, 21 Iowa, 399. 164, 174 Andrews v. Andrews, 28 Ala. 432. 45, 370 V. Bell, 6 P. F. Smith, 343 397, 479 V. Brown, 3 Cush. 130.... 540 V. Essex, etc., Ins. Co., 3 Mason, 6 346 V. Jones, 10 Ala., 400 136 V. Scotton, 2 Bland. 629. 393 Annan v. Men-itt, 13 Conn. 478. 40, 136 Ann Berta Lodge v. Leverton, 42 Tex. 18 182, 183 Anonymous, 2 Freem. Ch. 106 427 5 Vin. Abr. 522.... 195, 343 2 Ves. Sen. 629 369 1 Salk, 170 177 Anshutz's Appeal, 34 Pa. St. 375. 546, 556 Anson v. Towgood, 1 J. & W. 637. 393 Anthony v. Leftwich, 3 Rand. 255. 137, 139, 145, 154, 155, 156, 174, 183, 193, 261, 304, 312, 480 PAGE. Ai-chhold V. Howth, Lord, 1 I. R. C. L. 608 174 Archer v. Baynes, 5 Wels. H. & G. 625 124 V. Preston, 1 Eq. Cas. Abr. 133 10 Argenbright v. Campbell, 3 Hen. &M. 144 136, 199 Ai-miger V. Clarke, Bunb. Ill 231 Armitage v. Wadsworth, 1 Mass. 192 18 Ai-mstrong v. Ai-mstrong, 21 Beav. 78 68 V. Courtney, 15 Ir. Ch. 138 384 V. Kattenhom, 11 Ohio, 265 140, 174 V. Pierson, 5 Iowa, 317. 467 V. Wyandotte Bridge Co.,McCahon.l66. 410 Arnold v. Araold, 2 Dev. Eq. 467.. . 330 V. Cord, 16 Ind. 177,.. 203, 208 V. Nichols, 64 N. Y. 117.. . 549 Arthur v. Arthur, 10 Barb. 9.. 321 Artz V. Grove, 21 Md. 456 199 Arundel (Lady) v. Phipps, 10 Ves. 139.... 14, 15 Ash V. Daggy, 6 Ind. 259... 53, 168, 182, 201 Ashe V. Johnson, 2 Jones Eq. 149. 13, 21, 24, 66 Ashmore v. Evans, 3 Stockt. 151... 488 Ashton V. Corrigan, L. R. 13 Eq. 76 10, 67 Aston V. Robinson, 49 Miss. 348.... 53, 55, 57 V. Wood, 3 Sm. & Gif. 436 423, 523 Athol, Earl of, v. Derby, Earl, 1 Ch. Cas. 221 10 Atkinson v. Jackson, 8 Ind. 30 185 V. Ritchie, 10 East, 530... 360 Atlanta, etc., R. R. v. Speer, 32 Geo. 550 385 Att'y-Gen. v. Christ Church, Vi Sim. 214 495 V. Day, 1 Ves. 221. 145,173,198, 200, 419, 505, 519 V. Deei-field River Br., 105 Mass. 1 540 TABLE OF CASES CITED. XIX PAGB. Att'y-Gen. v. Mid. Kent. R'y Co., L. R. 3Ch. 100.. 29 V. Pui-mort, 5 Paig^e, 620 466 V. Sitwell, 1 Y. & C. Ex. 583 198, 343 Atwood V. Cobb, 10 Pick. 230.. .130, 133, 135, 211 V. Small, 6 CI. & Fin. 447. 299, 359, 514 Aubiu V. Holt, 2 K. & J 66 . ..365, 380 All Gres Boom Co. v. Whitney, 26 Mich. 42 12 Austin V. Gillespie, 1 Jones Eq. 261 24, 66 V. Tawney, L. R. 2 Ch. 143 459 Auter V. Miller, 18 Iowa, 405 55 Avei-ill V. Hedge, 12 Conn. 424 95 Avery v. Griffin, L. R. 6 Eq. 606 373, 526 Ayei"sv. Baumg-arten, 15 111. 444... 274 Ayles V. Cox, 16 Beav 23 418, 519 Aylesford's (Earl), Case, 2 Stra. 783 ; 164, 168 Aylett V. Ashton, 1 My. & Cr. 105.. 516 B. B -v.Walford,4Russ. 372. 545, 547 Backhouse v. Crosby, 2 Eq. Cas. Abr. 32 109, 238 V. Mohun, 3 Sw. 434ra 109, 238, 325 Bacon v. Bronson, 7 Johns. Ch. 194, 298 Bacot V. "Wetmore, 2 C. E. Green, 250 545 Baden v. Pemb]-oke, 2 Vera, 212... 551 Bagley v. Peddie, 16 N. Y. 469 69 Bagshawv. Eastern Union R'y. Co., 7Har. 114 75 Bailey v. Bailey, 8 Humph. 230.... 345 V. Collett, 18 Beav. 179. 496, 497 V. James, 11 Gratt. 468 529 V. Leroy, 2 Edw. Ch. 514... 117 V. Strong. 8 Conn. 278 66 V. Sweeting, 30 L. J. C. P. 150 124 Bainbridge v. Kinnaird, 32 Beav. 346 516 Baker v. Carson, 1 Dev. & Bat. Eq. 381 183 PAGE. Baker v. Glass, 6 Munif. 212. 213, 218, 226 V. Hathaway, 5 Allen, 103... 526 V. HoUobongh, 15 Ark. 322. 199 V. Paine, 1 Ves. Sen. 456.... 332 V. Scott, 2T. &C. 606 189 V. Thompson, 16 Ohio, 504.. "93 V. White, 2Vern. 215 362 Baldwin v. Commonwealth, 11 Bush. 417 24 V. Salter, 8 Paige, 473.-.. 392 V. Soc. for D. of U. K., 9 Sim. 393 233 V. Van Vorst, 2 Stockt. Ch. 577 4i;3 Ball V. Coggs, 1 Bro. P. C. 140 20 V. Stone, 1 S. & S. 210... 328, 333 Ballard v. Walker, 3 Johns. Cas. 60 109, 448 Ballet V. Halfpenny, 2 Vera. 373... 204 Ballingall v. Bradley, 16 111. 373... 124 Balmanno v. Lumley, 1 V. & B. 22.'i 516 Baltimore, etc. R. R. v. Nesbit, 10 How. (U. S.) 395 44 Bk. of Alexandria v. Lynn, 1 Petere . 370 261, 479 Augusta V. Earl 13 Peten;, 587 70 Columbia v. Hagner, 1 Pe';. 455 390 U. S. V. Daniels, 12 Peters, 32 317 Bannerman v. Clarke, 26 L. J. (N. S.) Ch. 77 498 Barbadoes ToU Co. v. Vreeland, 3 , Green's Ch. 157 448 Barbour v. Craig, Litt. 213 116 Bariekman v. Kuykendall, 6 Blackf . 21 122, 135, 139 Barker v. Bradley, 42 N. Y. 316.... 548 V. Cox, L. R. 4Ch. D. 464.. 525 v. Hodgson, 3 M. & S. 267.. 360 V. May, 3 J. J. Marsh. 430. 244 Barkley v. Barkley, 14 Rich. Eq. 12. 20 Bai-kworth v. Young, 4 Drew, 1. 100, 122, 13(;, 377 Barlow v. Meyers, 6 T. & C. 183... 549 Barnard v. Cave, 26 Beav. 253 331 V. Lee, 97 Mass. 92. 109, 235, 236, 240, 400, 4(;j, 406 XX TABLE OF CASES CITED. PAGE. Barnard V. Macy, 11 Ind. 536 554 Barnes v. Barnes, 65 N. C. 261. 10, 11, 33 V. Brown, 71 N. C. 507 138 V. Teague, 1 Jones Eq. 277. 138, 201 V. "Wood. L. R. Eq. 424. 505, 508, 525 Bamet v. Dougherty, 32 Pa. St. 372 ,. 207 V. Wheeler, 7 M. & W. 364. 221 Baraett v. Mendenhall, 42 Iowa, 296 374, 526 V. Spratt, 4 Ired. Eq. 171. 258 Barney v. Patterson, 6 Har. & Johns. 182 123 BaraweU v. Han-is, 1 Taunt. 430... 286 Barraud v. Ai-cher, 2 Sim. 433 520 BaiTet V. Blagi-ave, 5 Ves. 555 32 Barrett v. King, 2 Sm. & Gif. 43. 253, 504 Barrington v. Horn, 5 Vin. Abr. 547 374 Bany v. Coombe, 1 Pet 640. 106, 122, 124, 228 Barstow V. Gray, 3 Greenl. 409 109 Bartlett v. Judd, 21 N. Y. 200 347 V. Watson, 5 Sneed, 288.... 559 V. Wheeler, 44 Barb. 162. 141 Barton v. Downes, Lord, 1 Flan. & K. 505 418, 419, 519, 520 Bashore v. Whisler, 3 Watts, 494... 393 Baskcomb v. Beckwith, L. R. 8 Eq. 100 61, 326, 852, 425, 520 Bass V. Gilliland, 5 Ala. 761 504 Basset V. Basset, 1 Mod. 265 37J Bassler v. Niesly, 2 Serg. & R. 352 % 164 Batemanv. Porter, 9 Allen, 234.... 21 Bates v.Delavan, 5 Paige, 299. 219, 278 Battersbee v. Farrington, 1 Sw. 106 136 Battersby v. Smyth, 3 Madd, 110... 68 Batturs v. Sellei-s, 6 Har. & Johns. 249 197 Batty V. Lloyd, 1 Vera. 141 275 Baum V. Dubois, 10 Wright, 537.... 448 Bauman v. James, L. R. 3 Ch. 508. 120, 194, 216, 217, 224 Bawdesv. Amhnrst, Prec. Ch. 404. 204 Bawdry v. Bawdry, 7 Barr, 157.... 169 PAGE. Baxendale v. Seale, 19 Beav. 601. 248, 249, 328, 335 Baxter v. ConnoUy, IJ. & W. 576. 380 Baynham v. Guy's Hospital, 3 Ves. 2k 463 Bean v. Valle, 2 Mo. 103 135, 273 Beai-d v. Linthicum, 1 Md. Ch. 345 152, 192, 229, 345 V. NutthaU, 1 Vera. 427.... 80 Beardmer v. London & N. W. Ry. Co., 1 McN. & G. 112 409 ■Beardon v. Wood, 1 A. K. Marsh. 450 435 Beai-dsley v. Knight, 10 Vt. 185. 317, 344 Scythe Co. v. Foster, 36 N. y. 561 547 Beatsou v. Nicholson, 6 Jur. 620. 90, 236, 413 Beaumont v. Dukes, Jac. 422 408 Beckv. Allison, 56 N. Y. 367 385 Becker v. Ten Eyck, 6 Paige, 68... 362 Beckett v. WHte, 26 Ohio St. 405... 114 Beckham v. Drake, 9 M. & W. 79. 129 Beckley v. Newland, 2 P. Wms. 182 42 Beckwith v. Cheever, 1 Fost. 41. 93, 95 Bedford, Dk. of, v.' Ti-ustees, etc., 2My. & Ke. 552 262 Beebe v. Dowd, 22 Barb. 255. 189, 449, 489 V. Young, 14 Mich. 136. 333, 345 Beech V. Ford, 7 Ha. 208 46 Beecber v. Com-adt, 13 N. Y. 108... 432 Beer v. London, etc. Hotel Co. L. R. 20Eq. 412 117, 129 Beestou v. Stufcely, 6 W. R. 206. 373, 514 Beioley v. Carter, L. R. 4 Ch. 230. 278, 283 Bell V. Bemen, 3 Murph. 273 66 V. Bmen, 1 How. (U. S.) 169. 223 V. Holtby, L. R. 15 Eq. 178. 283 V. Howai-d, 9 Mod. 302... 236, 250, 325 T. Thompson, 34 Ala. 633. 435, 504 V. Warren, 39 Tex. 106.... 12, 215 Bellamy v. Ragsdale, 14 B. Monr. 293 413, 453 TABLE OF CASES CITED. XXI Bellas V. Hays, 5 S. & R. 427... 474, 479 Bellengei- v. Ketts, 6 Bai'b. 273. 436, 460 BeUous V. Stone, 14 N. H. 175. 332, 340, 344 Bellringer v. Blagrave, 1 De G. & Sra. 63 252 BeU's Appeal, 21 P. F. Smith, 465. 449 Benedict v. Lynch, 1 Johns. Ch. 370. 112, 229, 462 V. Smith, 10 Paige, 126 ... 116 Bennett v. Abrams, 41 Bai-b. 619... 20 V. Fowler, 2 Beav. 302 219 v.'Welch,25Ind.l40.. 448, 474 Benson V. Lamb, 9 Beav. 502 469 Bentley v. Whittemore, 3 C. E. Green, 366 317 Benton v. Pratt, 2 Wend. 385 296 V. Shreeve, 4 Ind. 66 276 Beresford (Lady) v. Driver, 14 Beav. 387 18 Berger v. Armstrong, 41 Iowa, 447. 33 Be'.'mingham v. Sheridan, 33 Beav. 660 23 Beraai-d v. Flinn, 8 Ired. 204.. 19C, 203 V. Meara, 12 Jr. Ch. 389... 384 Berry v. Van Winkle, 1 Green Ch. 269 540 v. Young, 2 Esp. 640 484 Best V. Stow, 2 Sandf. Ch. 298. 290, 300, 315, 331, 332, 349, 523 Bettesworth v. Dean, etc., St. Paul's, Sal. Cas. in Ch. 66 45, 360, 375 Beverly v. Petei-s, 10 Peter.s, 532... 389 Beyer v. Marks, 2 Buslj. 160 504 BidweU v. Astor Ins. Co. IG N. Y. 263 346 Bigg V. Strong, W. R. (1857-8) 173. 116 Bilhngslea v. Ward, 33 Md. 48 154 Binham v. Bradford, L.R. 5 Ch. 519, 215 Binks V. Rokeby, Lord, 2 Sw. 222. 497, 499, 520, 524 Binney V. Annan, 107 Mass. 94 25 Bii-ch V. Joy, 3 H. L. Cas. 565 497 Birchett v. Boiling, 5 Munf. 442.... 31 Bii'd v. Boultej-, 4 B. & Ad. 443 118 V. Hall, 30 Mich. 374 372, 531 Bishop of Winchester v. Mid. Hants Ry. Co., L. R. 5 Eq. 17 545 BisseU V. Farmei-s and Mech. Bk., 5 McLean, 495 24 PAGE. Bissell V. Mich. So., etc., R. R., 22 N. Y. 262 76,77, 78 V. Terry, 69 111. 1S4 114 Blacky. Black, 15 Geo. 445 159 V. Cord, 2 Har. & G. 100 273 Blackett v. Bates, L. R. 1 Ch. 117. 2G, 231, 384 Blacklow V. Lans, 2 Hare, 40. ..288, 491 Blackmer v. Phillips, 67 N. C. 340. 400 Blackwilder v. Loveless, 21 Ala. 374... 53, 55, 57, 02, 251, 255, 267, 276 Blagden v. Bradbear, 12 Ves. 4GG. 123, 135, 201, 210, 218, 227 Blair v. McDonnell, 1 Halst. Eq. 327 332 V. Smith, 1 Bennett, 273 171 V. Snodgrass, 1 Sneed, 1 120 Blake v. Holley, 14 Ind. 383 76 Blakely v. Brady, 2 Dr. & Wal. 311 80 Blakeney v. Ferguson, 3 Eng. 272. 179 Blakeslee v. Blakeslee, 10 Harris, 237 170, 349 Blanchard v. Detroit, etc., R. R., 31 Mich. 44. 10, 11, 192; 230 v. Moore, 4 J. J. Mai-sh. 471 314 Blatchford v. Kirkpatrick, 6 Beav. 232 ■. 169 Bleakley v. Smith, 11 Sim. 150 106 Bleakley's Appeal, 66 Pa. St. 187... 12 Bleeker v. Pi'anklin, 2 E. D. Smith, 93 109, 117 Blodgett V. Hildreth, 103 Mass. 484 204 V. Hobart, 18 Vt. 414 348 Blore V. Sutton, 3 Mer. 2S7. 113, 151, 217 Blosse V. ClanmoiTis, Lord, 3 Bli. 62 279 Blount V. Blount, 1 Hawks, 365 10, 497, 500 Blow V. Maynard, 2 Leigh. 29 136 Bluck V. Gompertz, 7 Exch. 862.... 107 BlundeU v. Brettargh, 17 Ves. 232. 215 Blunt V. Tomlin, 27 111. 93 174 Boardman v. Mostyn, 6 Ves. 467. ^ 164, 192, 194, 429, 431 V. Spooner, 13 Allen, 353 108, 120 xxu TABLE OF CASES CITED. PAGE. Bobo V. Grrimke, 1 McMullan's Eq. 304 17 Bodine v. Glading, 21 Pa. St. 50. 229, 233, 237 Boehm v. Wood, IJ. & "W. 419. 462, 468 Began V. Camp, 30 Ala. 276... 546, 549 Began V. DaughdriU, 51 Ala. 312. 10, 11, 52, 57, 65, 422 Bold V. Hutchinson, 20 Beav. 250. 97 Bolingbroke's (Lord) Case, 1 Sch. & Lef. 19 504 Bonder v. Caldwell, Harring. Ch. 67 179, 444 Bond V. Hopkins, 1 Sch. & Lef. 433 136, 145 Bonebright v. Pease, 3 Mich. 318... 66 Bonnett V. Sadler, 14 Ves. 526 352 Boone v. Mo. Iron Co., 17 How. 340 400 Booten v. Schaffer, 21 Gi-att. 474. 261, 265, 273, 275, 398, 458, 474 Eooth V. Pollard, 4 Y. & C. Ex. 61 28, 384 Borders v. Mui-phy, 78 lU. 81 531 Borell V. Dann, 2 Hare, 453... 269, 273 Borritt v. Gomesen-a, Bunb. 94 192 Borst V. Cory, 16 Barb. 136 136 Boston & Me. R. R. v. Bartlett, 3 Cush. 224 84,235, 479 Bostwick V. Williams, 36 111. 65 437 Boswell V. Mendham, 6 Mad. 373... 288 Botsford V. Burr, 2 Johns. 416 325 V. Wilson, 75 lU. 132 422 Boucher v. Van Buslurk, 2 A. K. Marsh. 345 110, 237 Bouck V. Wilbur, 4 Jphns. Ch. 405. 20 Bourland v. Co. of Peoria, 16 lU. 538 122 BoutweU V. O'Keefe, 32 Barb. 434. 139 Bower V. Blessing, 8 S. & R. 243... 83 V. Bright, 13 Price, 698. 421, 520, 523 V. Cooper, 2 Hare, 408. 218, 273 Cowers v. Cator, 4 Ves. 91 164 Bowes V. Heaps, 3 V. & B. 117 364 V. Law, L. R. 9 Eq. 636 32 Bowie V. Berry, 3 Md. Ch. 359 391 Bowles V. Round, 5 Ves. 508 305 V. Waller, 1 Hayes, 441. 420, 520 PAGE. Bowman v. Bates, 2 Bibb. 47 354 V. Cunningham, 78 111. 48. 55, 223, 244 Bowman v. Bittenbender, 4 Watts, 290 344 Bowser v. Cravener, 6 P. F. Smith, 132 325 Boyd V. Graves, 4 Wheat. 513 171 V. Schlesinger, 59 N. Y. 301. 220, 474 Boydell v. Di-ummond, 11 East, 142, 120 Boynton v. Hazelboom, 14 Allen, 107 290, 291, 300, 311 V. Hubbard, 7 Mass. 112.. 362 Boys V. Ayerst, 6 Mad. 316. • 91, 94, 110, 112, 239 Boze V.Davis, 14 Tex. 331. 137, 185, 186 Bozenv. Farlow, 1 Mer. 459 300 Brace v. Wehnert, 25 Beav. 384 28 Bracegirdle v. Heald, 1 B. & Aid. 727 141 Bradbui-y v. White, 4 Greenl. 391. 315, 330 Bradford v. Un. Bk. of Tenn. 13 How. 57. 330, 332, 333, 340, 341, 342 Brady v. Parker, 4 Ired. Eq. 430.. 345 Brady's Appeal, 66 Pa. St. 277. 351 431 Bramley v. Alt, 3 Ves. 620 356 Brashier v. Gratz, 6 Wheat. 528. 416, 446, 455, 466, 469, 478, 490 Brassell v. McLemore, 50 Ala. 476. 447, 449, 486, 488 Brawdy v. Brawdy, 7 Barr. 157.... 167 Braybroke (Lord) v. Inslup, 8 Ves. 428 2S0 Brealcy V. Collins, Younge, 317. 290, 300 Breckenridge v. Chickinbeard, 2 Littell, 13? 400, 404, 474, 518 Brennan v. Bolton, 2 Dru. & Wal. 349 153, l.'Se, 176 Brent v. Green, 6 Leigh, 16 123 Brett v. East India, &c. Co. 12 Vf. R. 596 :... 67, 383 Brettel v. Williams, 4 Wila. H. & G. 623 121 Brewer V. Brewer, 19 Ala. 4^1 1C6 V. Connecticut, il Ohio, 189. 462 V. Herbert, 30 Md. 301. 388, 398, 417, 479 V. Wall, 23 Tex. 585 628 Wilson, 2 C. E. Green, 180. V:)Z TABLE OF CASES CITED. XXlll PAOE. Brewster V. Clarke, 2 Mer. 75 08 Brick V. Whelly, 1 Mad. 7, n 373 Bridger v. Rice, IJ. & W. 74 252 Briggs V. Partridge, Gi N. Y. 357.. 129 Bright V. Bright, 41 111. 101 185 Bringham v. Bringham, 1 Ves. 126. 320 Brink v. Steadman, 70 111. 241. 223, 478 Brinkley v. Hann, Drury, 175 251 Brisband v. Boyd, 4 Paige, 17 95 Bristow V. Wood, 1 Coll. C. C. 480. 279 BroadweU v. Broadwell, 1 Gilman, 599 321, 327 V. Gctman, 2 Denio, 87.. 141 Brock V. Cook, 3 Port. 464 179 V. Hidy, 13 Ohio St. 307. 433, 435, 444 Brockleband v. Whitehaven, Junct. KyCo. 15 Sim. 632 43 Brodie v. St. Paul, 1 Ves. 326 120 Bromley v. Jeffreys, 2 Yarn. 415. 135, 210, 229 Bronson v. Cahill, 4 McLean, 19. 229, 230, 237 Brooke v. Berry, 2 Gill. 83 '. 276 V. Gavrod, 3 K.. & J.' 608. 459, 482 V. Hewett, 3 Yes. 253. 407, 563 (Lord) V. Koundthwaite, 5 Hare, 298. 290, 300, 301, 515 Brooks V. Wheelock, 11 Pick, 439. 138, 196 Brough V. Oddy, 1 R. & My. 55. ... 67 Broughton v. Coffer, 18 Gratt. 184. 324 Brown v, Bellows, 4 Pick. 189. 135, 211 V. Bonner, 8 Leigh. 1 332 V. Brown, 1 Dick. 62 18 V. Coppinger, 4 Ir. Ch. Rep. 72 259 V. CoveUand, 6 Cal. 566. 437, 474 V. Crane, 47 Geo. 483 12 V. Desmond, 100 Mass. 269. 10 V. Eaton, 21 Minn. 409 433 V. Finney, 3 P. P. Smith, 373 192 V. Gammen, 14 Me. 276 437 V. GiUiland, 3 Dessau, 539. 13, 24, 66 V. Haff, 5 Paige, 235.... 8, 449, 489 V. Hayes, 33 Geo. 136 400 PACK. Brown v. Jones, 46 Barb. 400 174 V. Lynch, 1 Paigo, 147 20j V. Montgomery, 20 N. Y. 287 353 V. Rittcr, 26 N. J. Eq. 456. 551 Browne v. Warner, 14 Ves. 412 371 Browne's Estate, 5 Ir. J. Ch. (N. S.)185 427, 522 Brown's Appeal, 62 Pa. St, 17 32 Bruce v. Tilson, 25 N. Y. 194 436 Bruck V. Tucker, 42 Cal. 346... 52, 56, 57, 62 Brumfield v. Palmer, 7 Blackf. 227. 448 Brumfit v. Morton, 3 Jur. (N. S.) 1198 440 Bryan v. Read, 1 Dev. & Bat. Ch. 78 400, 421, 518 V. Robert, 1 Strobh. 3c5 17 V. Wolley, 1 Bro. P. C. 184... 373 Bryant v. Booze, 55 Geo. 438. 372, 531, 553 V. Busk, 4 Russ. 1 219, 408 Bubier V. Bubier. 24 Me. 42.... 13, 26, (56, 138 Buchanan v. Atwell, 8 Humph, 51B. 400, 421, 518 V. Lorm.an, 3 Gill. 77 400 Buck V. Buck, 11 Paige, 170 550 V. Dowley, 16 Gray, 555. 138, 340, 341 V. Pickwell, 1 Will. (Vt.) 167. 133, 135 V. Smith, 29 Mich. 166 369 Buckland v. Hall, 8 Ves. 92 407 V. Papillon, L.R. 2 Ch. 67. 10 Buckle V. Mitchell, 18 Ves. 100. 241, 287 Buckmaster v. Harrop, 7 Ves. 346.... 40, 117, 123, 145, 149,153, 155, 156, 159, 163, 171, 172, 173, 200, 550 Buckmaster v. Thomi)SOn, 36 N. Y. 558 223, 226, 238 Buel V. Miller, 4 N. E. 196 325 Buffet V. Troy & B. R. R., 40 N. Y. 168 76, 78 Bull V. Hutchens, 32 Beav. 615 278 Bullock V. Adams, 5 C. E. Green, *. 367....; 444, 454, 462, 465, 474 Bumbui'ger v. Clippinger, 5 W. & S. 311 417 XXXV TABLE OF CASES CITED. PAGE. Bunch V. Hurst, 3 Dessau. Eq. 273. 276 Bunn V. Winthrop, 1 Johns. Ch. 329 80 Curges V. Wheate, 1 Edw. 186 389 Burke v. Seeley, 46 Mo. 334.... 65, 371 V. Serril, 80 Pa. St. 413. 373, 527 V. Smyth, 3 Jon. & Lat. 193 10, 474, 480 Burke's Appeal, 75 Pa. St. 141. 373, 526 Burling V. King, 66 Barb. 633.. 79, 400 EurueU v. Brown, 1 J. & W. 168. 419, 519, 520 Bums V. Sutherland, 7 BaiT. 108. 185, 192, 194 Burr V. Beers, 24 N. Y. 178 549 Burrows v. Lock, 10 Ves. 470. 273, 298 Burt V. Wilson, 28 Cal. 132 199 Burtch V. Hogg-e, Han-ing. Ch. 31. 273 Burwell v. Jackson, 9 N. Y. 535.... 437 Cusevi V. Serra, 41 Ves. 313 406 Busey V. Hardin, 3 B. Mon. 407.... 394 Butcher v. Stapely, 1 Vern. 363.... 164 Butler V. Haskell, 4 Dessau. Eq. 651 271 V. Hicks, 11 Sm. & Mar. 79. 17 V. Mulehille, 1 BU. 137 257 V. O'Hear, 1 Dessau. Eq. 382 278, 284, 417 V. Powis, 2 Coll. C. C. 156. ' 69, 235 Butterfield v. Heath, 15 Beav. 408. 287 Butterworth V. "Walker, 13 W. R, 168 329 Butman v. Porter, 100 Mass. 337. 79, 229, 270, 396 Buxton V. Lister, 3 Atk. 384 7, 13, 19, 20, 21, 28, 44, 207 Buysv. Eberhardt, 3 Mich. 524 26 Byers v. Surget, 19 How. 309. 274, 276 Byrdv. Odem, 9 Ala. 756 166, 179 Byrne v. Acton, 1 Bro. P. C. 186... 252 V. Romaine, 2 Edw. Ch. 445 155, 156, 180 Caballero v. Henty, L. R. 9 Ch. 447 420,424, 509, 520 Cabeeu v. Gordon, 1 Hill Ch. 51. 229, 237, 276 Cabot V. Haskins, 3 Pick. 83 108 PAGE. Cadmanv.Homer,18Ve8. 10. 291, 311 Cadwalader's Appeal, 7 P. E. Smith, 158 474, 479 Cagger v. Lansing, 43 N. Y. 550... 167 Calcraft v. Roebuck, 1 Ves. 221. 419, 497, 519 Caldwell v. Carrijigton, 9 Pet. 86. 189 CaldweU v. Myers, Hardin, 551. 13, 17, 66 V. Taggert, 4 Pet. 190. 546, 553 Calhoun v. Hayes, 8 Watts & S. 127 171 Calkins V. Falk, 39 Barb. 620 109 Callaghan v. Callaghan, 8 CI. & Fin. 374 225, 277 Callen v. Ferguson, 5 Casey, 247. 480 Callihan v. HaU, 4 W. Va. 531 550 Calloway v. Withei-spoon, 5 Ired. Eq. 128 257 Calverly v. Williams, 1 Ves. 210. 331, 334 Calvert v. Gordon, 1 Man. & Ry. 494 235 Camden, etc., R. R. v. Stewart, 3 C. E.Green, 489 193, 223 Cameron v. Ward, 8 Geo. 245 206 Campbell v. Campbell, 2 Jones • Eq. 364 207 V. Hay, 2 Moll. 102 516 V. Hicks, 19 Ohio St. 433 474, 479 V. Ingilby, 21 Beav. 567. 405, 548 V. Ketcham, 1 Bibb. 406 257 V. Leach, Ambl. 749 231 V. Lon. & Br. Ry. Co. 5 Hare, 519 457 V. McClenachan, 6 S. & R. 171 324 V. Medbuiy, 5 Biss. 33. 422, 486 V. Shrum, 3 Watts, 60... 449 V. Spencer, 2 Binney, 133 265, 266, 277 Candler V. Candler, Jac. 231 380 Canedy v. Marcy, 13 Gray, 373 319 Cann v. Cann, 3 Sim. 447 517, 524 Cannaday v. Shepard, 2 Jones Eq. 224 258 TABLE OF CASES CITED. PAGE. Cannel v. Buckle, 2 P. Wms. 242. 42, 45 Canterbury Aqueduct Co. v. Ens- worth, 22 Conn. 608 315 Canton Co. v. North, etc. R. R., 21 Md. 383 121 Cappun V. Harris, Bumb. 135... 22, 66 Carey v. Stafford, 3 Sw. 427 375 Cai-lisle v. Fleming', 1 Harr. 421. 145, 180, 193 Carmack v. Masterton, 3 Stew. & Port. 411 130 Carae v. Mitchell, 15 L. J. Ch. 287. 371 Carolau v. Brabazon, 3 Jon. & Lat. 200 375 Cajpenter v. Brown, 6 Barb. 147. 432 V. The M. Ins. Co. 4 Sandf.Ch.408...21, 24 Can- V. Duval, 14 Pet. 77 82, 90, 224, 227 V. Passaic Land Co. 7 C. E. Green, 85 215, 223 Carrier v. Howard, 14 Gray, 511. 553 Caii'ington v. Anderson, 5 Mumf. 32 123 Carrodus v. Sharp, 20 Beav. 56. 497, 499 CarroU V. Wilson, 22 Ark. 32 540 CaiTollsv. Cox,15Iowa, 455... 168, 174 Carter V. Carter, Forrest, 271 396 V. Dean of Ely, 7 Sim. 211. 455, 458 V. Thompson, 41 Ala... 375. 435 V. U. S. Ins. Co. 1 Johns. Ch. 463 66 V. Williams, L. R. 9 Eq. 678 32 Carver v. Richards, 6 Jur. (N. S.) 667 421, 520 Casamajor v. Strode, 2 My. & K. 96 419, 425, 426, 519 Casler v. Thompson, 3 Green. Ch. 59 179 Cass v. Rudele, 2 Vem. 280 396 Castle v. Wilkinson, L. R. 5 Ch. 534, 373, 508, 525 Caswell v. Gibbs, 33 Mich. 331. 33, 381 V. West, 3 T. & C. 383... 346 Cathcartv. Robinson, 5 Pet. 263. 258, 273, 276, 321 PAOE. Catlett V. Bacon, 33 Miss. 269 164 Caton V. Caton, L. R. 2 H. L. 127. 100, 106, 145, 147, 149, 158 Catt V. Toui-le, L. R. 4 Ch. 654. 31, 32, 224 Cattell V. CoiTaU, 4 Y. C. Ex. 237. 286, 288 Causton v. Macldew, 2 Sim. 242.... 2S6 Cavalh v. Allen, 57 N. Y. 508 347 Cavendish v. Cavendish, L. R. 10 Ch. 319 424 Chadwick v. Maden, 9 Hare, 188. 259, 545 Chamberlain v Agar, 2 V. & B. 262. 205 v. Bagley, 11 N. H. 234 69 V. Blue, 6 Blackf. 491. 14, 21 V.Lee, 10 Sim. 444. 489, 491 V.Thompson, 10 Conn. 243 332, 344, 348 Chamberlaine v. Chamberlaine, 2 Freem. 34 205 Chamberlin v. Robertson, 31 Iowa, 408 232 Chambers v. Le Compte, 9 Mo. 569. 145, 150, 191 V. Livermore, 15 Mich. 381 315,331, 431 Chamblissv. Smith, 30 Ala. 366. 166, 207 Chamness v. Crutchfield, 2 Ired. Eq. 148. 314 Champernowne v. Brooke, 3 CI. & Fin. 4 , 500 Champion v. Brown, 6 Johns. Ch. 403 388, 5.55 V. Plummer, 1 B. & P. (N. R.)252 126, 209 Champlin v. Laytin, 18 Wend. 409. ' 317, 321 V. Parish, 11 Paige, 405. 108, 109 Chapman V.Allen, Kirby, 399 332 V. Mad River R. R., 6 Ohio St. 119 532 V. West, 17 N. Y., 125... 552 V. Wilbur, 4 Oieg. 362. 12 Charleston, etc. Tumpe. Co. v. Wil- ley, 16Ind. 34 76 XXVI TABLE OF CASES CITED. PAGE. Chamley v. Hansbury, 1 Harris, 16. 192 Chartier v. MarshaU. 51 N. H. 400. 12, 540 Cl^ase V. Lowell, 7 Gray, 33 123 Chastain V. Smith, 30 Geo. 96 162 Chatou V. Gower, Finch, 164 267 Chautauqua Co. Bk. v. Risley, 19 N. Y. 369 76 Cheale v. Kinward, 3 DeG. & J. 27 22, 23 Cherry v. Heming, 4 Wels. H. & Gord. 631 141 Chesapeake, etc.. Can. Co. v. Young, 3 Md. 480. 152, 153, 156, 192 Chess's Appeal, 4 Pa. St. 52 435 Chester v. Urevick, 23 Beav. 407... 205 Chesterfield v. Janssen, 2 Ves. 124. 362 Chesterman v. Mann, 9 Hare. 206. 236 Chestnut Hill Res. Co. v. Chase, 14 Conn. 123 321 Chettwood y. Brittain, 1 Green. Ch. 430 199 Chew V. Gillespie, 6 P. P. Smith, 308 332 Chicago, etc., R. R. v. Nichols, 57 111. 464 12 Chichester v. Mclntyre, 4 Bli. (N.S.) 79 210 Chidester v. Springfield, etc. R. R., 59 Hi. 87 215 Child V. Abingdon, Lord, 1 Ves. 94. COO V. Comber, 3 Sw. 423, n. 109, 122, 159, 238, 239 V. Godolphin, 1 Dick. 39 198 Childers v. Childers, 1 De G. & J. 482 203 Chiles V. Nelson, 7 Dana, 281 95 Chilliner v. Chilliner, 2 Ves. Sen. 528 69 Chinnock v. Marchioness of Ely, 4 De G. J. & S. 638. 81, 85, 89, 91, 113, 125 V. Sainsbury, 30 L. J. (N. S.) Ch. 409. 67, 383, 535 Chipman v. Thompson, "Walk. Ch. 405 410 Chippendale, ex parte, 4 De G. M. &G. 19 78 Chissum v. Dewes, 5 Russ. 29 380 Chrisman v. Miller, 21 111. 236...... 467 PAGE Christ V. Diflfenbach, 1 S. & R. 464. 344 Christian v. Cabell, 22 Gratt. 82. 398, 415, 416, 417, 450, 479, 489, 490, 520 V. Ransome, 46 Geo. 138. 351 Christie V. Simpson, 1 Rich. 407.... 123 Christy v. Barnhart, 14 Pa. St. 260. 173, 174, 176, 192 Church V. Sterling, 16 Conn. 402.... 153 Church of Advent v. Farrow, 7 Rich. Eq. 378. 130, 137, 145, 159, 193 Cincinnati, etc., R. R. v. Wash- burn, 25 Ind. 259 385 City Bank of Bait. v. Smith, 3 Gill. & Johns. 26.5 69 etc., Ins. Co. v. Olmsted, 33 Conn. 478 10 of London v. Metford, 14 Ves. 58 457 V. Nash, 3 Atk. 512. 28, 48, 246, 262, 263, 381, 502 Natchez v. Vandervelde, 31 Miss. 706 171 Providence v. St. John's Lodge, 2 R. L 46 214, 237 Claflin V. Ostrom, 54 N. Y. 581 548 Clapham v. Shillito, 7 Beav. 146.... 301 Claringbould v. Curtis, 21 L. J. Ch. 541 67 Clark V. Burnham, 2 Story, 1 123 V. Clark, 49 Cal. 586 12, 218 V. Dales, 20 Barb. 42 95 V. Fhnt, 22 Pick. 231 14, 19 V. Lyons, 25 111. 105. 411,437, 451 V. Moore, 1 Jon. & Lat. 723... 337 V. Partridge, 2 Ban-, 13... 324, 344 V. Redman, 1 Blackf. 380 437 V. Reins, 12 Gratt. 98. , 373, 419, 504, 505, 519, 529 V. Riemsdyck, 9 Cranch, 153. 116 V. Rivers, L. R. 5 Eq. 91..... 67 V. Sierer, 7 Watts, 107. 420, 526, 529 Clarke v. Batters, 1 K. & J. 242.... 68 V. Grant, 14 Ves. 525. 203, 314, 337, 341; 342 V.Price, 2 J. Wils. 157 383 V. Reilly, 2L R. C. L.422... 174 V. Rochester, etc. R. R., 18 Barb. 350 258 TABLE OF CASES CITED. xxvn PAGE. Clarkson v. Edge, 12 "W. R. (M. U.) 518 32 V, Han way, 2 P. 'Wms. 203 250 Clason V. Bailey, 14 Johns. 484. 109, 112, 237 Clay V. Ruffold, 5 DeG. & Sm. 784. 490 V. Tm-ner, 3 Bibb. 52 2(33 Clayton v. Frazier, 33 Tex. 91. 167, S^G V. Fleet, 10 Ohio St. 544 319 V. Eling-worth, 10 Ha. -i.'jl.. 67 V Newcastle, Dk. of, 2 Cas. inCh. 112 371 Claary V. Babcock, 41 111. 271 332 Cleaton V. Gower, Finch, 1G4 502 Cleaves v. Foss, 4 Greenl. 1 123 Cleavland V. Bm-ton, 11 Vt. 138 333 Clegg V. Edmondson, 26 L. J. Ch. 673 457, 478 Clements v. Ried, 9 Sm. & Mar. 535. 273 V. Welles, L. R. 1 Eq. 200. 32 Clerk V. Wright, 1 Atk. 12. 121, 135, 157, 210 Clermont (Lord) v. Tasburgh, 1 J. &W. 112 291, 311,~514, 523 aiflford V. TurreU, 1 Y. & C. C. C. 138 7,25,195, 232, 343 Clifton V. Davis, 1 Pars. Eq. Cas. 31. 258 CKnan v. Cooke, 1 Sch. & Lot 22. 89, 115, 119, 120, 129, 130, 132, 136, 145, 146, 150, 159, 161, 101, 164, 192, 193, 216, 217, 314, 343 Clitherali v. Ogilvie, 1 Dessau. Ch. 257 244,272, 276 Clive V. Beaumont, 1 DeG. & Sm. 397 92 Clopton V. Martin, 11 Ala. 1S7. 318, 332, 345 Clowes V. Higginson, 1 V. & B. 524. 336, 341 Clute V. Robinson, 2 Johns. 395 437 Coale V. Barney, 1 GiU & Johns. 324 39 Coatesv Gorlach, 8 Wright, 43 531 Cochrane v Willis, 34 Beav. 359.... 79 Cock V. Evans, 9 Yerg. 287 555 CockeUv. Taylor, 15 Beav. 103 276 CockereU v. Cholmeley, 1 R. & My. 418 316 Coddington v. Paleologo, L. R. 2 Ex. 193 389 PAGE. Coffin V. Cooper, 14 Ves. 205.. 371, 490 Coffing V Taylor, 16111.457... 333, 336 Cogei-st V. Gibson 33 Beav. 557. 6, 7, 25, 232 Coger's Ex'ors v. McGee, 2 Bibb. 321 321,324 Colby V. Gadsden, 34 Beav. 416. 301, 823, 482, 493 Colcock V. Butler, 1 Dessau. 307. 456, 479 Colo V. Cole, 41 Md. 301. 105, 136, 372, 531 V. Gibbons, 3 P. Wms 293. 364, 514 V. Gibson, 1 Ves. 503 362 V. Potts, 2 Stockt. 67. 153, 155, 159, 174 V, White, 1 Bi-o. C. C. 409. 157, 168, 173 Coleman v. Easton Ct. Ry Co., 10 Beav. 1 '. 75 V. Upcot, 5 Vin. Abr. 527. C4, 109, 238 Colerick v. Hooper, 3 Ind. 316. 547, 549 Coles V. Bristowe, L. R. 4 Ch. 3 23 V. Browne, 10 Paige, 526. 108, 109, 122, 196, 336, 344, 348 V. Pilkiilgton, L. R. 19 Eq. 174 1C4, 179 V. Sims. 5 DeG. M. & G. 1.... 69 V. Trecothick, 9 Ves. 234. 107, 115, 118, 120, 123, 155, 159, 227, 273, 325, 398 Colgate V. Colgate, 23 N. J. Eq. 372. 12 Collard v. Sampson, 16 Beav. 543. 278 CoUettv. Hover, 1 Coll. 227 545 Collier v. Brown, 1 Cox, 423 273 v. Jenkins, Younge, 2;i5. 419, 519 V. Lanier, 1 Kelly, 238 332 V. McBean, L. R. 1 Ch. 81. 278, 283, 284 Collington V. Fletcher, 2 Atk. 155. 198 Collins V. Collins, 26 Beav. 30C. 213, 382 V. Plumb, 16 Ves. 454. 224, 381 V. Plummer, 1 P. Wms. 104. 231 V. Smith, 1 Head, 251 504 V. Stubly, 7 W. R. 710 535 V. Vanderveer, 1 Iowa, 573. 435 Collinson v. Patrick, 2 Keen, 123. 80 Colson V. Thompson, 2 Wheat. 336. 193, 224, 227, 400 lABLM OF Cases cited. PAGE. Colt V. NetterviUe, 2 P. Wms. 304. 22 Colton V. Wilson, 3 P. Wma. 190. 289 Columbia Water, etc, Co. v. Colum- bia, 5 S. C, 235 385 Columbine v. Chichester, 2 Phil. 27 371, 373 Columbus, etc. R. R. v. Watson, 2G Ind. 50 385 Colyeai- v. Countess of Mulgrave, 2 Keen, 81 80, 547 Colyei- V. Clay, 7 Beav. 188... 203, 508 Combs V. Little, t Green. Ch. 310. 206 Commins v. Scott, L. R. 20 Kq. 11. 12^; Com. V. Erie, etc. R. R., 3 Casey, 352 76 V.Ray, 3 Gray 108 of Wash. Park, In re, 56 N. Y. 144 44 Cone V. Niagara Ins. Co., 60 N. Y. 619 346 Conner v. Drake, 1 Ohio St. 116. 369 Conolly V. Parsons, 3 Ves. 625 356 Conover v. Wordell, 5 C. E. Green, 266 314 Conrad v. Blumrich, 14 Mich. 109. 413, 446, 449, 453, 467 Conway v. Kinsworthy, 21 Ark. 9. 475, 479 Cook V. Clayworth, 18 Ves. 12. 257, 258 V. Dawson, 3 DeG. F. & J. 127 278, 284 V. Grant, 16 S & R. 198... 8, 232 V. Husbands, 11 Md. 492 319 V. Preston, 2 Root, 78.... 332, 344 V. Vick, 2 How. 882 26 V. Waugh, 2 3iff. 201.... 290, 300 Cooke V. Oxiey, 3 T. R. 653 84 V. Tombs, 3 Aurst. 420 157 Cookes V. Mascall, 2 Vern. 34.. 98, 204 Cooley V. Howe Mac. Co., 53 N. Y. 620 548 Coombes v. Mansfield, 24 L. J. Ch. 513 68 Cooper V. Brown, 2 McLean, 495. 415, 450, 478 V. Denne, 4 Bro. C. C. 80. 279 V. Farmers Ins. Co., 14 Wright, 299 332 V. Pena, 21 Cal. 403. 52, 234, 237, 383, 397, 479 V. Smith, 15 East, 103. 121, 124 Cooper V. Waa-rnold, 7 W. R. 402. 158 V. Wells, Saxton, 10 540 Coote V. Coote, 1 Sauss. & Scin. 393 259 Cooth V. Jackson, 6 Ves. 12... 135, 153, 157, 195, 198, 201, 211, 248, 363 Cope V. Parry, 2 J. & W. 538.. 545, 547 Copper Mining Co. v. Beach, 13 Beav. 478 406 Oorber v. Morgan, 18 Ves. 344 545 Corbin v. Jackson, 14 Wend. 619... 171 V. Tracy, 34 Conn. 325 25 Corbus V. Teed, 69 lU. 205. 435, 549, 555 Cordingley v. Cheesebrough, 3 GiflF. 496 428, 512 Cork, etc. Ry. Co., In re L. R. 4 Ch.748 78 Coi-nfoot V. Fowke, 6 M. & W. 358. 295, 359 Cornwall V. Hawkins, 41 L. J. (N. S.)435 32 Corporation of Hythe v. East, L. R. 1 Eq. 620 535 Corsbie v. Free, Cr. & Ph. 64 406 Coraon V. Mulvany, 13 Wright, 88. 235,-236, 265 Cory V. Thames, etc., 11 W. R. 589. 536 Coslake v. Till, 1 Russ. 376.... 380. 456, 458, 465 Cosser v. ColHnge, 3 My. &K. 283.. 220 Cossett V. Hobbs, 56 HI. 231 130 Coster V. Mayor, etc., 43 N. Y. 399. 548 V. Tm-nor, 1 Russ. & My. 311. 491 Costig-an v. Hastier, 2 Sch. & Lef. 160 259, 262 Cotheal v. Talmadge, 9 N. Y. 551.. 69 Cotton V. Ward, 3 Mour. 313... 449, 489 Counter v. Macpherson, 5 Moo. P. C. 83 384, 394, 404, 488 Courcier v. Graham, 2 Ohio, 341.^.. 529 Cousine v. Wall, 3 Jones Eq. 43 206 Coutt V. Craig, 2 Hen. & Mumf. C18. 345 Couturier v. Hastie, 9 Ex. 102 395 Cowgill V. Oxmanton, 3 Y. & C. Ex. 377 490 Cowie V. Remfry, 10 Jur. 789 108 Cowles V. Gale, L. R. 7 Ch. 12 458 V. Whitman, 10 Conn. 121. 18, 18, 19, 24, 66 Cowley V. Watts, 17 Jur. 172 89, 221 Cox V. Boyd, 38 Ala. 42 431 TABLE OF CASES CITED. XXIX PAOB. Cox V. Coventon, 31 Beav. 378. 420, 520 V. Cox, 26 Gvatt. 305 268 V. Cox, 2 Casey, 375. 139, 153, 156, 166, 173, 192, 193 V. Middleton, 2 Drew. 209. 217, 290, 300, 307 Coylev. Davis, 20 Wise. 593 206 Cozine v. Gi-aham, 2 Paige, 178 199 Crabti-ee v. Levings, 53 111. 526. 433, 444, 449, 477 Gragg V. Holme, 18 Ves. 14 257 Craig V. Johnson, 3 J. J. Marah. 572 554 V. Kettredge, 3 Foster, 231. 344, 348 V. Leslie, 3 Wteat 563 388 V. Martin, 3 J. J. Mai-sh. 50.. 488 Craige v. Craige, 6 Ired. Eq. 191... 340 Crampton v. Varaa Ry. Co., L. R. 7Cli. 562 67 Crane v. Conklin, Saxton, 346 257 V. De Camp, 21 N. J. Eq. 414. 55, 244, 400 V. Gough, 3 Md. Ch. 119. 145, 150 Crary v. Goodman, 12 N. Y. 266.... 347 V. Smith, 2 N. Y. 60 433 Crawford v. Bertholf, Saxton, 4C0... 389 V. Wick, 18 Ohio St. 190.. 174 Crawshay v. Maule, 1 Sw. 513 369 Crayston v. Banes, 1 Eq. Cas. Abr. 19 198 Cribbins v. Markwood, 13 Gratt. 495 271 Crippav. Jee,4Bro. C. C. 472 323 Ci-ittenden v. Druiy, 4 Wise. 205... 444 Crocker v. Higgins, 7 Conn. 342. 156, 190, 191, 203 V. Young, Rice Eq. 30 273 Croftou V. Ormsby, 2 Sch. & Lef. 602 406, 458,476, 553 Crompton v. Melbourne, 5 Sim. 353 524 Ci-onk V. Trmnble, 66 111. 428. 159, 162, 190 Crook V. Corp. of Leaford, L. R. 6 Ch. 551 117, 143, 149, 179 Croome v. Lediard, 2 My. & K. 251 316 Crosbie v. Tooke, 1 My. & K. 431 •. 407, 549 Crosby v. Davis, 9 Iowa, 93... 546, 552 Ci-osier v. Acer, 7 Paige, 143 317 Cross v. Sprigg, 6 Ha. 552 99 V. Truesdale, 28 Ind. 44 548 Crossley v. May cock, L. R. 18 Eq. 180 86, 122 Crostwaight v. Hutchinson, 2 Bibb. 407 42 Crow V. Rogers, 1 Str. 592 547 Crowder v. Austin, 3 Bing. 368 356 Cruse V. Nowell, 25 L. J. Ch. 709. 440 v. Paine, L. R. 4 Ch. 441 23 Cruttwell V. Lye, 17 Ves. 335... 32, 380 Cubitt V. Smith, 10 Jur. (N. S.) 1123 28 Cud V. Rutter, 1 P. Wms. 570. 9, 13, 22, 66 Cuddon V. Cartwi-ight, 4 Y. & C. Ex. 25 252 V. Tite, 1 Giff. 395 500 Cuffv. Dorland, 55 Barb. 81.... 55, 244 Cummings v. Gill, 6 Ala. 562 179 V. Nut, Wright, 713. 171, 179 Cunningham v. Shai-p, 11 Humph. IIG 400, 421, 425, 518, 521 Cupper V. Hari'is, Biimb. 135 13 Cuppy V. Hixon, 29 Ind. 522 159 Curlin v. Hendricks, 35 Tex. 225. 79, 273 Curling V. Plight, 6 Hare, 41 219 CuiTan V. Holyokc Water Co., 116 Mass. 90 254, 528, 546 Currier v. Howard, 14 Gray, 571... 549 Curtis v. Leavitt, 15 JST. Y. 157 76 V. Sage, 35 Bl. 22 141 Custard v. Custard, 25 Tex. 49 322 Cutting v. Dana, 25 N. J. Eq. 265. 25 Cutts v. Thodey, 13 Sim. 2C0. 488, 492, 545, 547 D. Da Costa v. Davis, 1 B. & P. 242... 376 Dagenham Dock Co., In re L. R. 8 Ch. 1022 405 Dahoney v. Hall, 20 Ind. 264 552 Dadley v. Litchfield, 10 Mich. 29. 69, 551, 553, 555 Daking v. Whimper, 26 Beav. 568. 545 Dalby V. Pullen, 3 Sim. 29. 419, 491, 519 XXX TABLE OF CASES CITED. PAGE. Dale V. Hamilton, 5 Hare, 369. 143, 152, 155 V. Lister, 16 Ves. 7 506 V. Madison, 5 Leigh. 410 361 V. Roosevelt, 5 Johns. Ch. 174 335 DalzeU v. Crawford, 2 Pa. L. J 17. 13, 14, 66, 232, 416 Dana v. Bank of St. Paul, 4 Minn. 385 76 Danforth v. Laney, 28 Ala 274. 164, 174 Daniel v. Adams, Arab. 495... 114, 374 V. Frazer, 40 Miss. 507 53 • V. Leitch, 13 Gratt. 195 449 Daniels v. Davison, 16 Ves. 256. 215, 418, 424, 510, 519 Darbey v. "Whitaker, 4 Drew. 134. 211, 213, 380, 422, 520 Darby v. Darby, 3 Drew. 495 143 Darlington v. Hamilton, Kay, 558. 418, 519 Daraley (Lord) v. London, etc. Ry Co., 3 DoG. J. & S. 24... 213, 382, 400 D'Ai-ras v. Keyser, 2 Casey, 249. 236, 445, 460, 466 Dartmouth Coll. v. Woodward, 4 Wheat. 636 76 Davar v. Cardwell,27 Ind. 478 437 Davenport v. Bishop, 2 Y. & C. C. C. 451 80, 548 V. Mason, 15 Mass. 92... 181 Davidson v. Little, 10 Harris, 245... 271 Davies v. Cooper, 5 My. & Cr. 270. 355 V. Fitton, 2 Dr. & M. 225 343 V. Otty, 35 Beav. 208 203 Davis V. Abraham, 5 W. R. 465 355 V. Havard, 15 S. & R. 165.... 26 V. Henry, 4 W. Va. 571 553 V. Hone, 2 Sch. &Lef. 341. 39, 49, 263, 337, 375, 401 V. Marlborough, Dk. of, 2 Sw. 154 269 V. Moore, 9 Rich. 215. 139, 154, 156, 170 V. Parker, 14 Allen, 94... 10, 528 V. Shepherd, L. R. 1 Ch. 410. 334 V. Shields, 26 Wend. 341 108, 109, 110, 112, 133, 239 V. Stevens, 3 Iowa, 158. 462, 465 V. Symonds, 1 Cox, 406 244,245, 290 PAGK. Davis V. Townsend, 10 Barb. 347. 166, 171 Davison v. Ass. of Jersey Co., 6 Hun. 470 474 V. Davison, 2 Beasley, 246. 162 V. Pemne, 7 C. E. Green, 87 373,422, 520 Davey v. Barber, 2 Atk. 489. 399, 496, 497, 500 Day V. Fynn, Owen, 133 427, 522 v. Luhke, L. R. 5 Eq. 336 458 V. Newman, 2 Cox, 77 272 V. Patterson, 18 Ind. 114 548 Dean V. Corastock, 32 111. 173 420 V. Dean, 1 Stock. Ch. 425 199 V. Rastron,l Aust. 64. 256,276, 355 of Ely V. Stewart, 2 Atk. 44... 267 Deane v. Izard, 1 Vera. 159 181 De Beerski v. Paige, 36 N. Y. 537... 109 De Biel v. Thompson, 3 Beav. 469. 98, 118, 143 De Brassac v. Martin, 11 W. R. 1020. 536 De Camp v. Crane, 4 C. E. Green, 166 488 V. Feay, 5 S. & R. 323. 411, 443, 446, 451, 453, 466 Dech's Appeal, 57 Pa. St. 437 431 De Cordova v. Smith, 9 Tex. 129... 474 De Costar v. Jones, Coop. 729 361 Defon-est v. Bates, 1 Edw. Ch. 394. 410 Deggett V. Hart, 5 Flor. 215 66 DeGrofF v. American, etc. Co., 21 N. Y. 124 76 DeHoughton v. Money, L. R. 2 Ch. 164 361, 545 DeKylnv. Watkins, 3 Sandf. Ch. 185 10 Delafield v. Anderson, 7 Smed & Mar. 630 271 Delavan v. Duncan, 49 N. Y. 485. 433, 437, 448, 474, 488 DeMattos v. Gibson, 4 DeG. & J. 276 33,67, 384 DeMedina v. Norman, 9 M & W. 820 374 Demond v. Ins. Co., 5 R. I. 180 322 Denne v. Light, 26 L. J. Ch. 459.... 269 Denny v. Hancock, L. R. 6 Ch. 1. 291, 297, 326, 352, 425, 428, 520 Denton v. McKenzie, 1 Dessau. Ch. 289 122 TABLE OF CASES CITED. XXXI Denton v. Stewai't, 1 Cox, 258. 371, 372, 540 De Pierrea V. Thom, 4 Bosw. 26(5... 10 De Peyster v. Hasbrouck, 11 N. Y. 587 321, 332, 33G, 348 De Pol V. Sohlke, 7 Roberts, 280... 32 DeRivatinoli V. Corsetti, 4 Pai'je, 270 ; 32, 383 De Rutte v. Muldrow, 16 CsA. 505. 236. Despain v. Carter, 21 Mo. 331. 137, 145, 166, 179 Devenish v. Baines, Prec. Ch. 3. 20a V. Brown, 26 L. J. Ch. 23. 371, 490 Devisme v. De^-isme, 1 Hall & Tw. 418 496, 498 Devol V. Mcintosh, 23 Ind. 539 548 De Wolf V. Pratt, 42 111. 198 434 Dhegetoft v. London Ass. Co. Mosely, 83 66 Dick V. Donald, 1 Bli. (N. S.) 655. 440 Diclcinson v. Any, 25 Ala. 424 531 V. Dodds, L. R. 2 Ch. D. 403 83,84, 95 Dictriclisen v. Cabburn, 2 Ph. 52. 384 Dike V. Greene, 4 R. I. 285... 213, 214 Dillv. Shahan, 25 Ala. 702 317 Dilly V. Barnard, 8 Gill. & Johns. 170 410 Diman v. Providence R. R. 5 R. I. 130 333, 336 Dimmock v. Hallett, L. R. 2 Ch. 21. 428 Dinham v. Bradford, L. R. 5 Ch. 519, 382 Dixon V. Olmins, 1 Cox, 414 205 Doan V. Manzey, 33 111. 227... 531, 537 Doar Y. Gibbes, 1 Bailey Ch. 371. 456, 462 Dobbs V. Norcross, 24 N. J. Eq. 327 279, 234, 421 DobeU V. Hutchinson, 3 A. & E. 355. 120, 121, 124 V. Stevens, 3 B. & C. 623.... 309 Dobson V. Litton, 5 Coldw. 616 223 Dock V. Hart, 7 W. & S. 172... 172, 189, 196 Dodd V. Wakeman, 11 C. E. Green, 484 206 Dodge V. Wellman, 1 Abb. App. Dec. 512 12 Dodson V. Swan, 2 W. Va. 511 360 PAGE. Doe V. Doe, 37 N. H. 268 340, 341 Doe d. Gray v. Stanion, 1 M. & W. 695 219 Leyster v. Goldwin, 2 Q. B. 143 221 Mann V. Waltei-s, 10 B. & C. 62o 221 Doggett V. Eraei-son, 3 Story, 700. 327 Doherty v. "Waterford, etc. Ry. Co., 13 Ir. Eq. R. 538 43 Dolman v. Nokes, 22 Beav. 402 354 Doloret v. Rothschild, 1 S. & S. 590. 22, 34, 44, 455, 457 Donellau v. Read, 3 B. & Ad. 899. 141 Donelson v. Posey, 13 Ala. 752.... 258 Doo v. London, etc. Ry. Co., 1 Railw. Cas. 257 43 Doogood V. Rose, 9 C. B. 130 403 Dooleyv. Watson, 1 Gray, 414... 69, 237 DooUn V. Ward, 6 Johns. 112... 358, 362 Dorin V. Harvey, 15 Sim. 49... 400, 474, 482 Dougan v. Blocker, 12 Han-is, 28. 157, 164, 167, 176, 178 Douglass V. London & N. W. Ry. Co., 3 K. & J. 173 ... 43 v. Spears, 2 Nott. & McC. 237 109 Doungsworth v. Blaii-, 1 Keen, 795 80 Dow V. Carter, 1 Sjjeer. Ej. 414 317 DoweU V. Dew, 1 Y. & C. C. C. 345. 174, 175, 553 Dowling V. Bitjemann, 2 J. & H. 544 17 Dov«rner V. Church, 44 N. Y. 647.... 507 Downey v. Hotchkiss, 2 Day, 225... 138 Downing v. Mt. Wash. Rd. Co., 40 JSr. H. 230 76 V. Risley, 2 McCarter, 94. 389, 560, 553 Downs v. Collins, 6 Hare, 418. 218, 369 Dowson v. Solomon, 1 Dr. & Sm. 1. 284 Drake v. Barton, 18 Minn. 462 496 V. ColUns, 5 How. 253 3.54 Draper v. Pattina, 2 Speers, 292.... 108 Dresel v. Jordan, 104 Mass. 407. 219, 240, 416, 444, 489, 490 Drew V. Clarke, Cooke, 374 327 V. Corp, 9 Ves. 368 418, 519 Drewe v. Hanson, 6 Ves. 675 518 xxxn TABLE OF CASES CITED. PAGE. Drummond v. Bolton, Dk. of, Say. 243 377 Dnu'y V. Conner, 6 HaiT. & J. 288. 166 V. Hook, 1 Vera. 412 362 Drysdale v. Mace, 2 Sm. & Gif. 225. 306, 352, 439 Dubois V. Bavim, 10 Wright, 537. 474, 476, 479 Duchman v. Duchmaa, 49 Mo. 107. 433, 435 Duddell V. Simpson, L. R. 2 Ch. 102 513 Dudley v. Little, 2 Ham. 505 358 V. Mallery, 4 Geo. 52 17 Duff V. Fisher, 15 Cal. 375... 9, 11, 434 Duffell V. "Wilson, 1 Camp. 401 414 Duffy V. O'Donovan, 46 N. Y; 223. 434, 466 Dugan V. Colville, 8 Tex. 126.. 137, 167, 179 V. Gittings, 3 Gill. 138. 143, 163, 166 Duke V: Andrews, 2 Exch. 290. 90, 91 V. Mayor of Exon, 2 Freem. 183 549 Duncan v. Topham, 8 C. B. 225 95 V. Wickliffe, 4 Scam. 452... 554 Duncombe v. Mayer, 8 Ves. 320 18 Duncuft V. Albrecht, 12 Sim. 189... 22 Dundas v. Dutens, 1 Ves. 196. 136, 158, 204 Dunlop V. Higgins, 1 H. L. Cas. 381 95 Dunn V. Moore, 3 Ired. Eq. 364. 138, 183 Dupree v. McDonald, 4 Dessau. 209 322 V. Thompson, 4 Barb. 279. 317, 321 Durant v. Bacot, 2 McCarter, 411. 333, 345 Durell V. Pritchard, L. R. 1 Ch. 244, 535 Durham, Earl of, v. Legard, 34 L. J. (N. S.)Ch. 589 511 Dustin V. Newcomer, 8 Ohio, 49 532 Dutch Ch. V. Mott, 7 Paige, 77. 449, 489 Dutton V. Pool, 1 Ventr. 318 548 Duval V. Getting, 3 Gill. 138 187 V. Myers, 2 Md. Ch. 401. 110, 153, 155, 156, 229, 233, 237 Dwlght V. Pomeroy, 17 Mass. 303. 137, 196, 334 Dyas V. Cruise, 2 Jon. & Lat. 460. 115, 243 Dyer v. Hargrave, 10 Ves. 505. 297, 300, 305, 306, 420, 485, 508 V. Martin, 4 Scam. 146 199 Dykers v. Townsend, 24 N. Y. 57. 129 Dykes v. Blake, 4 Bing. N. C. 463. 439, 520 Dyson v. Hornby, 4 DeG. & Sm. 481 497 Eads V. Williams, 4 DeG. M. & G. 674 214, 457, 469, 475, 488 Earl V. Haley, 1 McCarter, 332. 400, 474, 518 Early v. Garrett, 9 B. & C. 928. 295, 309 East Anglian Ry. Co. v. Eastern Co. Ry. Co., 11 C. B. 775 75 East India Co. v. Nuthumbadoo Veeraisawney Moodelly, 7 Moo. P. C. C. 482 158, 194 Eastern Co. R'y Co. v. Hawkes, 5 H. L. Cas. 348 75, 78 Eastman v. Plumer, 46 N. H. 464. 55, 431 Eaton V. Lyon, 3 Ves. 690 458 V. Whitaker, 18 Conn. 222. 136, 139, 150, 159, 164 Eaton's Case, Moore, 357 377 Eckert V. Eckert, 3 Penn. 332. 140, 153, 157, 166, 167, 177, 181, 182, 183, 186 V. Mace, 3 Penn. 364, n. 183, 185 Edgar v. Boies, 11 S. & R. 445 390 Edgerton v. Peckham, 11 Paige, 352. 411, 413, 444, 451, 453 Edingburgh, etc. R'y Co. v. Philip, 2 McQueen, 514 411 Edwards v. Burt, 2 DeG. M. & G. 55 269 V. EsteUe, 48 Cal. 194 162 V. Fry, 9 Kans. 417. 173, 174 V. Gr. Junction R'y Co., 1 My. &C. 674 265 V. McLeay, Coop. 308 256, 290, 363 TABLE OF CASES CITED. XXXIH PAGE. Edwai-ds v. Wax-wick (Countess), 2 P. Wms. 176 80, 5:8 Edwaviis-Wood \ . Marjoiibanks, 1 Giff. 384 510, 522 Egans' Estate, U Ir. Jur. (N. S.) 90. 427, 523 Egei-ton V. Matthews, 6 East, 307. 109 Elfe V. Gadsden, 2 Rich. 373. 123, 133 Ellard v. Llandaff' (Lord), 1 Ball& B. 241 256, 355 Ellicott V. Turner, 4 Md. 476 141 Ellis V. Colman, 4 Jur. (N. S.) 350. 371, 373 V. Commander, 1 Strobh. Eq. 188 17 V. Deadman, 4 Bibb. 467. 122, 123, 133, 135, 227 V. Ellis, 1 Dev. Eci. 345 138 Elmore v. Austin, 2 Root, 415 344 V. Kingscote, 5 B. & C. 583. 210 Else V. Else, L. R. 13 Eq. 196 521 Elworthy v. Bird, 2 S. & S. 372 27 Ely V. Beaumont, 5 S. & R. 124 445 V. McKay, 12 Allen, 323. 25, 474, 476, 479 Emery V. Grrocock, 6 Mad. 34 280 V. Smith, 46 N. H. 151 141 V. Wase, 8 Ves. 505 373, 508, 525 Emmei-son v. Heelis, 2 Taiint. 38. 117 Emmereon's Case, L. R. 1 Ch. 433. 23 Emmett v. Dewhui-st, 3 McN. & G. 587 343 Endicott v. Penny, 14 Sm. & M. 157. 123 Eng:land v. Curling, 8 Beav. 129... 369 V. Downs, 2 Beav. 522 362 V. Jackson, 3 Humph. 584. 325 V. Rogei-s, 41 Cal. 420 434 Ennis V. Waller, 3 Blackf. 472 123 Enraght v. Fitzgerald, 2 Ir. Eq. ,Rep. 87 497 Episcopal Ch. of Macon v WUey, 2 HiUCh. 584 117 Eppinger v. McGreal, 31 Tex. 147. 410, 448, 474, 475, 479 EiTington v. Aynesley, 2 Bro. C. C. 341 28, 375, 384 Erwin v. Myers, 10 Wright, 96. 419, 504, 505, 519 Esdaile v. Stephenson, 1 S. & S. 122 420, 498, 520 C PAGE. Esmay v. Gorton, 18 111. 4Q3. Ill, 199, 200 Espositev. Bowden,4 El. &B1. 963. 300 Espy V. Anderson, 2 Hariis, 308. 196, 196 Estes V. Furlong, 53 111. 298. 12, 109, ':53 Evans v. Battle, 19 Ala. 398. 185, 186, 541 v. Edmonds, 13 C. B. 777... 295 v. Gordon, C9 N. H. 444 549 v. Kingsbeny, 2 Rand. 120. 504, 529, 549 v. Prothero, 13 Eng. Law & Eq. 103 122 V. Richardson, 3 Meriv. 469. 305 v. Walshe, 2 Sch. & Lef. 519 200 V. Wood, L. R. 5 Eq. 9 23 Evants v. Strode, 11 Ohio, 480 317 Ewing V. Beauchamp, 6 B. Mon. 422 397 V. Crouse, 6 Ind. 312 444 V. Gordon, 49 N. H. 444. 12, 09, 110, 235, 230. 237 Eyre v. Eyre, 4 C. E. Green, lOJ. 136, 145, 192, 474, 479 V. Potter, 15 How. 42 271 Eyston v. Simonds, 1 Y. & C. C. C. 008 489 Eyton V. Dicker, 4 Pri. 303 287 F. Pagan v. Bames, 14Flor. 53 545 Faine v. Brown, 2 Ves. Sen. 300. 48, 240, 265 Fairbanks v. Dow, 6 N. H. 200 432 Fairbrother v. Shaw, 4 Iowa, 570... Faike v. Gray, 4 Drew. 651. 14, 15, 61, 254, 257 Palkner v. Equitable, etc. Soc, 4 Drew. 352 278 Fall V. Hazehigg, 45 Ind. 576. 137, 167, 434, 436 Fallon V. R. R. Co., 1 Dill. 121. 24, 23, 385 Falls V. Carpenter, 1 Dev. & B;i;. Eq. 237 479 V. Gaither, 9 Port. 005 95 Fane v. Spencer, 2 Mer. 430 219 Fanning v. Dunham, 5 Johns. C'.i. 122 361 XXXIV TABLE OF CASES CITED. PACE. Farebrother v. Gibson, 1 DeG-. & J. 602.. 200, 300 Pai'ley v. Fai-loy, 1 McCord. Ch. COG 17 V. Palmer, 20 Ohio St. 223. 526, 551 v. Stokes, 1 Sel. Eq. Cas. (Pa.) 422 179, 180 V. Vaughn, 11 Cal. 227 452 Farm. L. & T. Co. v. Clowes, S N. Y. 470 7G T, Peny, 3 Sandf. Ch. 339-. 70 Farnham v. Clements, 51 Me. 42G... 207 Fai-rall v. Davenport, 3 Giff. 363. 145, 156, 173 Fairer v. Nighting-al, 2 Esp. 639... 414 V. Patton, 20 Mo. 81.... 137, 145 Farris v. Bennett, 26 Tex. 568 488 FarweU v. Lowther, 18 lU. 252. Ill, 120, 12G, 135, 226 V. Mather, 10 Allen, 322. 130, 217 Fechter v. Montg-omery, 33 Beav. 22 31 Feilden v. Slater, L. R. 7 Eq. 523... '^2 Fellows V. Gwydyr (Lord), 1 Sim. 63 310, 549 Fells V. Read, 3 Ves. 70 14, 15 Fenly V. Stewart, 5 Sandf. 101 109 FenneUy v. Anderson, 1 Ir. Ch. R. 706 230 Fenton v. Browne, 14 Ves 144, 300 Fenwick v. Bulman, L. R. 9 Eq. 165 545 V. Floyd, 1 HaiT. & GiU. 172 123 Feoffees of Heriot's Hosp. v. Gib- son, 2 Dow. 301 409 Ferguson v. PaschaU, 11 Mo. 207... 19 V. Staver, 33 Pa. St. 411. 130 V. Tadman, 1 Sim. 530. 497, 499 V. "Wilson, L. R. 2 Ch. 77. 372, 535 FeiTia v. Irving, 28 Cal. 645 .'.. 223 FeiTy V. Stephens, 66 N. Y. 321.... 79 Ferussac v. Thorn, 1 Barb. 44 330 Fessler's Apiieal, 25 P. F. Smith, 483 459 Feusier v. Sneath, 3 Nev. 120. 137, 145 Fewster v. Turner, 11 L. J. Ch. IGl. 410 Fife V. Clayton, 3 Ves. 546 330, 342 Fildes V. Hooker, 2 Meriv. 424. 219, 516 Filmerv. Gatt, 2 Ves. 401 325 Finch v. Finch, 10 Ohio St. 501 158 V. Parker, 49 N. Y. 1 474 Finucane v. Keai-ney, 1 Freem. Ch. 65 159, 166, 179, 196, 203 Fireman's Ins. Co. v. Sturges, 2 Cow. 664 76 Fii-mstone v. DeCamp, 2 C. E. Gi-een, 317 332 First Baptist Ch. etc. v. Bigelow, 16 Wend. 23 109, 133 Firth V. Greenwood, 1 Jur. (N. S.) 866 , 478 V. MidUmd R'y Co., L. R. 20 Eq. 100 30 Fish V. Hubbard, 21 Wend. 652.... 228 V. Leser, 69 III. 394.... 50, 57, 61,250, 251, 254,256,257, 267, 276 V. Lightncr, 44 Mo. 268 60 Fisher v. Bowser, 41 Tex. 222 116 V. Kay, 2 Bibb. 434 540 V. Shaw, 42 Me. 32 69 V. WorraU, 5 "W. & S. 483. 295, 300 Fishmongers Co. v. Robertson, 5 M. & G. 131 112 Pitch V. Boyd, 55 111. 307 114, 244, 407, 474, 475 Fitzgerald V. Peck, 4 Litt. 125 321 Fitshugh V. Jones, 6 Mumf, 83 92 Fitzhugh V. Smith, 62 lU. 48G 549 Fitzmaurice v. Bayley, 38 Eng. L. &Eq. 130 124,130, 217 Fitzpatrick v. Boatty, 1 Gilm. 454. 224 V. Featherstone, 3 Ala. 40 278 Fitzsimmons v. Allen, 39 111. 440... 166 Flagg V. Mann, 2 Sumner, 487 531 Flagler v. Pleiss, 3 Rawle, 345 243 Flanagan v. Gt. West. R'y Co., L. R. 7Eq. 116 360, 364, 403 Fletcher v. Fletcher, 2 Cox, 99 27 4 Ha. 67 80 Flight V. Barton, 3 My. & K. 282. 220, 808 ' V. BoUand, 4 Rubs. 208. C7, irS), 230 TABLE OF CASES CITED. x::xv PAGE. FligM V. Booth, 1 Bing. (N. C.) 377 513 FUnt v. Branton, 8 Ves. 159... 28, 384 V. Woodiu, 9 Haj-e, 618. 310, 356, 514 Flood V. Finlay, 3 Ball. & B. 9 341 Floyd V. Buoldand, 2 Fi-eem. 268. 179, 185 Fludyerv. Cocker, 12 Ves. 25 497 Foley V. Crow, 37 Md. 51 373, 421, 425, 449, 486, 517, 520, 521, 540 V. McKeown, 4 Leigh, 627. 426, 522 Folhnerv. Dale, 9 Ban-, 83 1C6 Foot V. Webb, 59 Barb. 38 223, 226 Force v. Butcher, 3 C. E. Green, 401 130, 192 Ford V. Finney, 35 Geo. 258... 137, 145 V. Herron, 4 Mumf. 316 263 V Jerome, 6 Phila. 6 383 V. Peering, 1 Ves 72 18 V. Stuai-t, 15 Beav 493 384 V WilUams, 21 How. 287 129 Fordyce v. Ford, 4 Bro. C C, 494. 419, 485, 519 Forman V. Stickney, 77 HI. 575 554 FoiTest V. Eleves, 4 Ves. 492 457 Forsyth v. Clark, 3 Wend. 637 340 Foi-teblow V. Shirley, 2 Sw. 223 497 Forward v. Armstead, 12 Ala. 124. 185 Foss V. Haynes, 31 Me. 86 531 Foster v. Deacon, 3 Madd. 394. 499, 524 V. Hale, 3 Ves. 696...120, 121, 139, 192 Fothergiu v. Rowland, L. R. 17 Eq. 132 384 Fowie V. Freeman, 9 Ves. 351...89, 109, 239 Fowler v. Fowler, 4 DeG. & J. 265. 333, 346 V. Redican, 52 HI. 405.. 215, 216, 226 Fox V. Mackreth, 2 Dick. 689.. .271, 353 Foxcraft v. Lester, 2 Vem. 456. 145, 146 Frame v. Dawson, 14 Ves. 386. 140, 152, 153, 157, 159, 161, 172, 176 Fi-ance v. France, 4 Halst. Ch. 650. 185 Frank v. Basnet, 2 My. & K. 618. 524 V. Brunneman, 8 W. Va. 462. 33 PAGE. Frank v. Frank, 1 Gas. in Ch. 84. 245, 248 Fi-anklin v. Brownlow (Lord), 14 Ves. 550 407 V. Tuton, 5 Madd. 469.... 29 Fi-anks v. Martin, 1 Ed. 309... .207, 224 Franz v. Orton, 75 HI. 100 508, 509, 531 Fi-arey v. Wheeler, 4 Oreg. 190. 374, 526, 529 Frary V. Sterling, 99 Mass. 4G1 141 Fraser v. Child, 4 E. D. Smith, 153. 206 V. McClenaghan, 2 Rich. Eq. 79 17 V. Wood, 8 Beav. 339 491 Frazor v. McPherson, 3 Dessau. 393. 114 Frederick v Coxwell, 3 Y. & J. 514. 371, 373, 375, 525 Freeland v. Peai-son, L. R. 7 Eq. 246 417 Freelove v. Cole, 41 Barb. 318 3G0 Freeman V. Baker, 5 B. &Ad. 79'. 295 V. Cook, 2 Exch. 054 97 V. Faii'lie, 3 Mer. 30 18 V. Freeman, 43 N. Y. 3;. lOG, li;7, 16: , 185 Freer V. Hesse, 4 De G. M. .i G. 490. 27.;, 287 Freetley v. Barahart, 1 P. F. Smith, 265 , 5::, 281 Freme v. Wright, 4 M:vcL 304 221 French v. Macale, 2 Dr. & Wai-. 239 69 Frey v. Boylan, 23 N. J. Eq. 90.... 12 Freize v. Glenn, 2 Md. Ch. 3G1 159 Fripp V. Fripp, Rice Eq. 84... 27i;, 277 PVisby V. Pai-ldiui-st, 29 Md. 58 268 Frith V. Greenwood, 1 Jur. (N. S.) 806 113 V. Lawi'ence, 1 Paige, 434. 8 229, 325, 369 Mechanic's Bk. v. Seton, 1 Pet. 299. 14, 19 Meek v. Kettlewell, 1 Ph. 342....79, 80 Mohl V. Von der Wulbcke, 2 Lans. 267 223 Melius V. Devonshire, Dk. of, 16 Beav. 253 323 Mellish V. Robertson, 25 Vt. 608.... 317 Memphis, etc. R. R. v. Scruggs, 50 Miss. 234 26 Merchants' Ti'ading Co. v. Banner, L. R. 12 Eq. 18 34, 231, 384 Mereier v. Mercier, 50 Geo. 546 268 Meredith v. Naish, 4 Stew. & Port. 59 139 Merrill v. Bickford, 65 Mo. 118 526 V. Green, 55 N. Y. 270 549 Merritt v. Brown, 21 N. J. Eq. 401. 55, 20G, 244, 398, 400, 474, 478, 479 V. Clason, 12 Johns. 102.... 108 Merry v. Nickalls, 20 W. R. 029.... 23 Messageries Imperiales Co. v. Baines, 11 W.. R. 322 33 Mestaer v. Gillespie, 11 Ves. G27. 202, 205 TABLE OF CASES CITED. PAGE Metcalf V. Putnam, 9 Allen, 97. 138, 344 Mews V. Cans 26 L. J. Ex. 39 118 Meynell v. Surteis, 3 Sm. & Gif. 101... 66, 83, 90, 92, 145, 153, 156, 173, 214 Mhoon V. WUkerson, 47 Miss. 633. 434, 435 Mialhi V. Lassabe, 4 Ala. 712 159 Micholls V. Coi'bett, 3 DeG. J. & S. 18 521 Middleton v. Greenwood, 2 DeG. J. &S. 142 29, 536 Middlesex, etc. Ass. v. Davis, 3 Met. 133 79 MUdway v. Hangerford, 2 Vem. 243 316 MUes V. MUes, 8 W. & S. 136 189 Milkman v. Oi-dway, 106 Mass. 232. 537, 538, 539 MiUard v. Harvey, 34 Beav. 237. 168 V. Mei-win, 23 N. J. Eq. 417 12 V. Ramsdell, Harring. Ch. 373 224 Miller v. BaU, 64 N. Y. 286... 172, 192 V. Beai-, 3 Paige, 466 477 V. CampbeU, 52Ind. 125. 215, 223 v. Chetwood, 1 Green's Ch. 199 523 V. Gotten, 5 Geo. 341.... 193, 201 V. Florer, 15 Ohio St. 148.... 548 V. Henderson, 10 S. & R. 290. 324 V. Henlan, 1 P. F. Smith, 265 53,479, 480 V. Hower, 2 Rawle, 53 164 V. Miller, 68 Pa. St. 486 351 V. MiUer, 25 N. J. Eq. 354... 454 V. Tobie, 41 N. H. 84 179 V. Whittier, 32 Me. 203, 547, 549 Milligan v. Cook, 16 Ves. 1... 505, 506, 516 Mills V. Lockwood, 42 111. Ill 332 Milner v. Field, 5 Ex. 829 213 Milnes v. Gery, 14 Ves. 403 42, 312, 214, 382 Milward v. Thanet (Earl), 5 Ves. 720 475, 492 Mims V. Lockett, 33 Geo. 9.... 166, 167, 179, 182, 183 PAGE. Minehin v. Nance, 4 Beav. 332, 497, 499 Miners' Ditch Co. v. Zellerbach, 37 Cal. 543 76, 77 Minton v. Kirwood, L. R. 3 Ch. 604. 425 Mintum v. BayHs, 33 Cal. 129. 193, 223, 226 V. Seymour, 4 Johns. Ch. 497 79, 244 Minus V. Morse, 15 Ohio, 568 199 Mississippi, etc. R. R. v. Cromwell, lotto, 643 55 Mitchell v. Reynolds, 1 P. Wms. 181 362 V. Rome, R. R. 17 Geo. 574 76 V. SheE, 49 Miss. 118 551 Mitford V. Mitford, Ves. 87 400 Mix V. Baldue, 78 lU. 215 474 V. Beach, 46 lU. 311... 436; 477, 488 Moale V. Buchanan, 11 Gill. & Johns. 314 120, 153, 166, 348 Modisett v. Johnson, 2 Blaekf. 431. 276 Moens v. Heyworth, 10 M. & W. 147 295 Mole v. Smith, Jac. 490 545 Moliere v. Penn. Ins. Co., 5 Rawle, 347 ; 344 Moncrief V. Goldsborough, 4 Har. &McH. 281 353 Money v. Jordan, 2 DeG. M. & G. 332 97, 99 Monro v. Taylor, 8 Hare, 51... 217, 222, 480, 496, 499 Montacute v. Maxwell, Stra. 236. 120, 130, 136, 157, 158, 197, 202, 203, 204 Montague v. Flockton, L. R. 16 Eq. 189 31 Montefiori v. Montefiori, 1 Wm. Black. 363 97 Montgomery v. McEwen, 7 Minn. 351 340 V. Norris, 1 How. 499. 225 V. Reilly, 1 BU. (N. S.) 364 98 Moore v. Blake, 1 Ball & B. 62 475 V. Burrows, 34 Barb. 173.... 389 V. Edwards, 4 Ves. 23 201 v. Fitz Randolph, 6 Leigh, 175 229, 237 lii TABLE OF CASES CITED. PAOE. Moore v. Greg, 12 Jur. 052 23 V. Hai-t, 1 Vera. 110 98 V. Higbee, 45 Ind. 437. 168, 173 V. Mun-ah, 10 Ala. 573 354 V. Small, 19 Pa. St. 461. 136, 139, 145, 153, 156, 167, 168, 169, 170, 185, 192, 193 V. Tisdale, 5 B. Men. 352.... 206 Moorehouse v. Coh-in, 15 Beav. 341. 99, 269 Moote V. Scriven, 33 Mich. 500. 105, 173, 447, 474, 482 More V. Morecomb, Cro. EHz. 864. 377 V. Smedburgh, 8 Paige, 600. 115, 240 Morehead v. Hunt, 1 Dev. Eq.. 35, 358 Moreland V. Lemasters, 4 Blackf. 383 166, 179 Morgan v. Bergen, 3 Neb. 209. 129, 137, 143, 154, 444, 462, 474 v.' Bimie, 9 Bing. G72 213 V. Gkirley, 1 Ir. Ch. 483.... 469 V. Herrick, 21 lU. 481 46G V. Holford, 1 Sm. & Gif. 101 233 V. MUman, 3 DeG. M. & G. 36 „ 43, 6G, 151, 213 V. Morgan, 2 Wheat. 290. 278, 417, 545, 554 V. Rhodes, 1 My. &K. 435. 549 V. Scott, 2 Casey, 51. 261, 448, 449 V. Stearns, 40 Cal. 434 434 Morganthan v. White, 1 Sweeny, 395 55,256, 315 Moriu V. Martz, 13 Minn. 191. 109, 179 Moi-ison V. Tumoua-, 18 Vea. 175.... 106 Morley V. Cook, 2 Hare, 111... 441, 514 Morphett V. Jones, 1 Sw. 181... 145 153, 155, 156, 164, 165, 173, 174, 176 Morriil v. Aden, 19 Vt. 505 396 Morris v. Debenham, L. R. 2 Ch. D. 540 424 V. Han-is, 9 GiU, 19 164 y. Hoyt, 11 Mich. 9... 435, 467, 488, 546, 553 V. Remington, 1 Pars. Eq. 387 10 V. Stephenson, 7 Yes. 474. 374, 525 PAGE. Morris & Essex R. R. v. Sussex R. R., 5 C. E. Green, 542... 76 Morrison v. Ai-nold, 19 Yes. 670.... 289 V. Barrow, 1 DeG. V. & J. 633 223, 384 V. Lods, 39 Cal. 381. 290, 310 V. McLeod, 2 Dev. & Bat. Eq. 221 257 V. Peay, 21 Ai-k. 110 174 V. Wm-tz, 7 Watts, 437.... 303 Morrow v. Lawrence, 7 Wise. 574. 553 Morsev. Merest, 6 Mad. 26. 212, 458, 477 Morss V. Eknendorf, 11 Paige, 277. 502, 504, 529, 537, 538, 640 Mortimer v. Bell, L. R. 1 Ch. 10. 61, 356 V. Capper, 1 Bro. C. C. 156 -. 275, 396 V. Comwell, 1 Hoff. Ch. 351 115 V. Orchard, 2 Yes. 243. 179, 192, 193, 193 V. Pritchard, 1 Bailey Eq. 505, 329 V. ShortaU, 2 Dr. & W. 363, 333 Morllock V. BuUer, 10 Yes. 335. 39, 115, 242, 252, 253, 255, 414, 504, 505, 508, 517, 525 Morton v. Dean, 13 Met. 383.. 120, 123, 133 Mosby V. WaU, 23 Miss. 81 )... 332 Mosely v. Boush, 4 Rand. 392 66 V. Yh-gin, 3 Yes. 184.... 23, 384 Moser v. Libenguth, 2 Rawle. 423.. 319 Moss V. Atkinson, 44 Cal. 3 131 v. Bainbriggo, 18 Beav. 473... 547 V. Bai-ton, L. R. 7 Eq. 474. 10, 236, 445, 477 V. Culver, 46 Pa. St. 414 167 Moxey v. Bigwood, 12 W. R. 811... 329 Moxhay v. Indei-wick, 1 DeG. & Sim. 708 ,. .. 266 Moyer v. Hinman, 13 N. Y. 180 389- Moyses v. Little, 2 Yera. 194 549 MuEmgs v. Triuder, L. R. 10 Eq. 449 278, 283 Mullins v. Hussey, 12 Jur. (N. S.) 636 373 Mundoi'frv. Howard, 4 Md. 459. 154, 156, 178 TABLE OF CASES CITED. liii PAGE. Mundy v. Jolliife, 5 My. & Cr. 177. , 40, 146, 146, 1G6, 172, 175, 179, 194, 195, 432 Munit) V. 'Wivenhoe, etc. R'y Co., 4 DeG. J. &S. 739 384 Munsell v. Loree, 21 Mich. 491. 228, 226 Mui-phy V. Clao-k, 1 Sm. & Mareh, ^ 221 17 V. Hubert, 4 Han4s, 50 203 V. Lockwood, 21 111. 611.... 467 V. Mai-laud, 8 Cush. 575.... 237 V. Rooney, 45 Cal. 78... 79, 331, 345, 348 Murray v. Ballou, 1 Johns. Ch. 566. 389^ V. Dake, 46 Cal. 644... 324, 345, 349 V. Jayne, 8 Barb. 612 164 V. Parker, 19 Beav. 805. 331, 334 Murrell v. Goodyear, 1 DeG. F. & J. 482 240,423, 490 Musselman's Appeal, 15 P. F. Smith, 480 440 Myer v. Lowell, 44 Mo. 328 543 Myera v. Byerly, 45 Pa. St. 368 177 V. Forbes, 24 Md. 598.... 10, 223 V. Watson, 1 Sim. (N. S.) 523 403 Myres v. De Mier, 4 Daly, 343 10 N. Nacev. Boyer, 6 Casey, 99 258 Nagle V. Baylor, 3 Dr. & W. 60 257 V. Newton, 22 Gratt. 814. 504, 518 Napier v. Darlington, 20 P. F. Smith, 64... 236, 419, 504, 505, 519 National, etc. Building' Soc, In reli, R. 5Ch. 309 78 Exchange Co. v. Drew, 2 McQueen, 103 293, 296, 358, 359 Naylor v. Winch, 1 Sim. & Stu. 555. 320, 321 Neale V. Mackenzie, 1 Ke. 474. 243, 252, 407, 506 T. Neales, 9 WaU. 1 143, 167, 171, 184, 185, 186, 187, 189 Nelsop V. Bridges, 2 Beav. 239 524 PAGB. Nelson v. Hagerstown Bk., 27 Mil. 51 474, 479 V. "Worrall, 20 Iowa, 469 206 Nelthoi-pe v. Holgate, 1 Coll. 203. 419, 504, 505, 513, 519, 545, 546 Nene Valley, etc. Com. v. Dunldey, L. R. 4 Ch. D. 1 132, 216, 408 Nesbitt V. Meyer, 1 Sw. 226... 369, 399 Nesham v. Selby, L. R. 7 Ch. 406 121, 217 Neufville v. Stuai-t, 1 Hill Ch. 159. 223 Neville v. Merchants' Ins. Co., 19 Ohio, 452 10, 21 V. Wilkinson, 1 Bro. C. C. 543 97 Nevitt V. GiUespie, 1 How. (Miss.) 108 11 Nevins v. Dunlap, 33 N.Y. 676. 332, 345 New Brunswick, etc. Co. v. Mug- geridge, 4 Drew. 686 23 Newben-y v. James, 2 Mer, 446. 32, 379 Newcastle, Duchess of, v. Pelham, 3 Bro. P. C. 460 18 Newell v. Newell, 13 Vt. 24 139 v. Radford, L. R. 3 C. P. 52 127, 129 Newman v. Meek, 1 Preem. Ch. 441 271 V. Rogera, 4 Bro. C. C. 391 455 Newnham v. Graves, 1 Madd. 399. 68 Newsome v. BufFerlow, 1 Dev. Eq. 383 345 Newton v. Swazey, 8 N. H. 9. 136, 166, 179, 192, 199, 200, 554 N. Y. F'mn's Ins. Co. v. Ely, 2 Cow. 699. 76 v. Sturgess, 2 Cow. 675. 76 N. T. Ice Co. V. N. W. Ins. Co., 23 N. Y. 357 346 Nichol V. Ridley, 5 Yerg. 63 123 Nicholl V. Jones, L. R. 3 Eq. 696. 373, 526 Nichols V. Johnson, 10 Conn. 198. 120, 126, 130 V. Williams, 7 C. E. Green, 63 218,223, 226 Nickels v. Hancock, 7 DeG. M. & G, 300 26, 261 liv TABLE OF VASES CITED. PAGE. Nickelson v. Wilson, 60 N. Y. 362 361, 302 NicoUv. Chamber, H C. B. 906... 512 V. N. Y. & Erie R. R., 12 N. Y. 121 414 Nokes V. Kilmorey (Lord), 1 DeG. &S. 444 462,469, 470 Noonan v. Oi-ton, 21 Wise. 283. 347, 430 Noi-fleet V. SouthaU, 3 Murph. 189. 213 Norfolk (Dk of) v. Worthy, 1 Camp. Ca. 337 427, 522, 523 Norris V. Jackson, 1 J. & H. 319. 28, 179, 536 V. Knox, 1 Pittsb. 56... 474, 478, 479, 480 North V. AnseU, 2 P. Wms. 618 405 V. Forest, 15 Conn. 400 153 North Brit. R'y Co. v. Tod, 12 CI. &Ein. 722 409 Noi-thrup V. Boone, 66 111. 368. 137, 167 Norton v. Maacall, 2 Vem. 24 26 V. Preston, 15 Me. 14.... 139 V. Serle, Pinch. 149 67 V. Wood, 1 R. & Myl. 178. 99 Notson V. BaiTett, 1 Greenl. 302 462 Nott V. Riccard, 22 Beav. 307....... 469 Nunn V. Fabian, L. R. 1 Ch. 35 174 V. Truscott, 3 DeG. & Sm. 304 429 Nurse v. Seymour (Lord), 13 Beav. 254 409 Nutbrown v. Thornton, 10 Ves. 161 13,14,15, 22 Oakden v. Pike, 34 L. J. Ch. (N. S.) 620 462 Odell V. Morin, 5 Oreg. 96 223 O'Donnell v. Leman, 43 Me.l58. .120, 132 O'FaUon v. Kennerly, 45 Mo. 124. 462, 465, 478, 479 Ogden V. Fossick, 4 DeG. P. & J. 426 402 Ogilvie V. Poljambe, 3 Mer. 53. 106, 124, 215, 221 O'Herlihy v. Hedges, 1 Sch. & Lef. 123 138, 159, 160 Ohio V. Baum, 6 Ham. 883 258 O'Kane v. Kiser, 25 Ind. 168.... 390, 400, 474, 518 Okell V. Whittaker, 1 DeG.& Sm. 83. 323 PAGE. Old Colony R. R. Co. v. Evans, 6 Gray, 25 6, 7, 11, 109, 111, 112, 232, 237, 416, 489, 49,0 Oldfield V. Roand, 5 Ves. 508... 420, 508 Oldham v. Litchfield, 2 Vera. 506... 205 OUver V. CrosweU, 42 111. 41 532 V. OUver, 4 Rawle, 141 324 O'Meara v. W. Am. Ins. Co., 2 Nev. 112 540 Omei'od v. Hardman, 5 Ves. 737.... 485 Onslow v. Loudseborough (Ld.), 10 Hare, 67 406 Onson V. Cown, 22 Wise. 329 347 Ordv. Johnston, 1 Jur. (N. S.) 1063. 3, 8, 66, 79, 231 V. Noel, 5 Mad. 438 252 O'Reilly v. Thompson, 2 Cox, 271. 139, 153, 158, 161, 191 Oriental Inl. Steam Co. v. Briggs, 2 J. & H. 625 23 Ormond (Ld.) v. Anderson, 2 Ball & B. 363 109,218, 238 Osbaldiston v. Askew, 2 Jui-. & W. 539 518, 520 Oaboru v. Bremar, 1 Dessau. 486. 426, 475, 521 V. Harvey, 7 Jur, 229 440 V. Phelps, 19 Conn. 74... 153, 349 Osgood V. Franklin, 2 Johns. Ch. 23 244, 271, 276 Ottinhouse v. Burleson, 11 Tex. 87. 167, 179 Otway V. Braithwaite, Finch, 405... 235 Overly v. Thrasher, 47 Geo. 10 26 Owen V. Davies, 1 Ves. Sen. 82. 159, 496, 497 V. Prink, 24 Cal. 171.... 546, 549 V. Owen, 5 Humph. 352 394 • V. Thomas, 3 My. & K. 353. 121, 217, 222 Owings V. Baldwin, 8 Gill. 337. 154, 164, 192, 278, 437 Oxford V. Provaud, L. R. 2 P. C. 135 194, 259, 402 Iron Co. V. Spradley, 46 Ala. 98 76 P. Packer v. Parmelee, 20 Johns. 130. 437 Page V. Adam, 4 Beav. 269 513 v. Broom. 3 Beav. 36 406 TABLE OF CASES CITED. Iv PAGE. Page V. Greeley, 75 El. 400.... 218, 219, 422, 449, 487 Co. V. American, etc. Co. 41 Iowa, 115 12 Pain V. Coombs, 1 DcG. & J. 34. 164, 169, 17-1, 370, 430, 431 Paine v. Hutchinson, L. R. 3 Ch. 388. 23 V. MiUer 6 Yes. 349 393, 396, 398, 484, 487, 492 Painter V. Newby, 11 Hare, 26..507, 513 Pakner v. Graham, 1 Pai-s. Eq. 476. 45 V. Scott, 1 R. & My. 391. 94, 109, 235, 383 V. Temple, 9 A. & E. 508... 390 Pahnerston(Ld.) V. Tumer,33Beav. 524 498 Palo Alto, The, Da\-ies, 344 96 Panker v. McAllister, 14 Ind. 12.... 437 PapiUon v. Voice, 2 P. Wms. 478... 18 Papin V. Massey, 27 Mo. 445 391 Pai-amore v. Greenslade, 1 Sm. & Gif. 541 394 Parham y. Parham, 6 Humph. 287. 317, 332 Park V.Johnson, 4 Allen, 259... 329, 435 Pai-is Choc. Co. v. Crystal Pal. Co., 3Sm. &Gif. 119 214, 220 Paiish V. Koonz, 1 Pars. Eq. Cas., 79 109, 113, 226, 340 Parke v. Leewright, 20 Mo. 85 159 Parken v. Whitby, T. & R. 366 365 Parker V. Bodley, 4 Bibb. 102 135 V. Frith, 1 S. & S. 199 457 V. Garrison, 01 lU. 250 33 V. Pahuer, 1 Cas. in Ch. 42. 248 V. Perkins, 8 Cush. 318 237 V. Serjeant, Pinch, 146 94 v. Smith, 1 Coll. C. C. 024. 153, 157, 158, 163, 177, 190, 191 V. Taswell, 4 Jur. (N. S.) 183 225 V. "Wells, 6 Whart. 153 159 Parkhurst v. Van Courtland, 1 Johns. Ch. 273 120, 121, 122, 136, 139, 140, 145, 146, 150, 153, 166, 179, 183, 192, 194, 196, 226, 227, 237, 540 Parkin v. Thorold, 16 Beav. 67. 284, 402, 444, 462, 466, 468, 469, 482, 487, 492 PAOE. Parrill Y. McKinley, 9 Gratt. 1 189 Pany v. Tobacco Ins. Co., 1 Cinn. Sup. Ct. 251 ; 238 Parteriche v. Powlet, 2 Atk. 383.... 325 PaschaU v. Passmore, 3 Harris, 295. 412, 453 Pasley v. Martin, 5 Rich. Eq. 351. 17 Paton V. Brebner, 1 Bligh. 66 516 V. Stewart, 78 111. 481 360 Patterson v. Cunningham, 2 Pairf. 512 138 V. Horn, 1 Grant, 301.... 237 V. Long, 5 Beav. 186. 545, 546 V. Martz, 8 Watts, 374. 261, 479 V. Ware, 10 Ala. 445. 199, 201 Patton V. McClure, Mart. Terg. 333 138 Paxton V. Newton, 2 Sm. & Giff. 437 20,375, 384 Payne v. Banner, 15 L. J. Ch. 227. 458 V. Mortimer, 1 Giff. 118 98 Paysonv. West, 1 WaUi. 515 139 Peabody v. Tai-bell, 2 Cash. 226.... 540 Peacock v. Monlc, 1 Ves. Sen. Voi... 80 V. Penson, 11 Beav. 355. 260, 4C9, 507, 545 Peak, ex parte, 1 Mad. 346 248 Pearce v. Watts, L. R. 20 Eq. 492. 223 Pearis v. CoviUand, 6 Cal. 617 474 Peame V. Lesle, Amb. 77 14, 15 Peck V. Brighton, 69 111. 200. 452, 462, 474 Peckham v. Barker, 8 R. I. 17. 136, 153, 156, 167, 173, 174, 182 Peele, exparte, 6 Ves. 602 547 Peeler v. Levy, 26 N. J. Eq. 330. 373, 508, 528, 529 Peers v. Lambert, 7 Beav. 54G. 422, 518, 520 V. Sneyd, 17 Beav. 151 491 Pegg V. Wisden, 16 Beav. 239. 409, 487 Pegler V. White, 33 Beav. 403 284 Peifer v. Landis, 1 Watts, 392 166 Pember v. Mathers, 1 Bro. C. C. 52 203, 343 Pembroke v. Thorpe, 3 Sw. 437. 140, 157, 263 Pendleton v. Dalton, PhiU. Eq. 119.. 315 Ivi TABLE OF CASES CIThD. FAQB. Pengall (Lord) v. Ross, 2 Eq. Cas. Abr. 46 159,160, 183 Perm v. Baltimore (Lord), 1 Ves. Sen. 444 10, 80 V. Hajrward, 14 Ohio St. 302 10 Penniman v. Hartshorn, 13 Mass. 87 106 Penny v. Martin, 4 Johns. Ch. 566. 323 People V. Utica Ins. Co., 15 Johns. 358 76 Perkins v. Dickinson, 3 Gratt. 335. 332 V. Ede, 16 Beav. 193. 422, 518, 520 V. HadseU, 50 III. 217. 109, 235, 236, 460, 549 V. Thornton, Ambl. 502.... 405 Perry V. Peai-son, 1 Huniph. 431... 314 Peru Iron Co., ex 'parte, 7 Cow. 540. 76, 93 Peter V. Nicholls, L. R. 11 Eq. 391. 423 Peters v. Delaplaine, 49 N. Y. 362. 474, 478, 479, 480, 481 V. Jones, 35 Iowa, 512... 550, 556 Petersburg v. Metzker, 21 lU. 205. 76 Petei-son v. Grover, 20 Me. 363 314 Peto V. Bnghton, etc. R'y Co., 1 H. &M. 468 384 Petre v. Buncombe, 7 Hare, 24 545 Petrick v. Ashcroft, 4 Green Ch. 339 192 Pettes V. Bk. of Whitehall, 17 Vt. 434 317 Petty V. MaUer, l5 B. Mon. 604 347 Phelps V. lU. Cent. R. R., 63 HI. 468. 434, 452, 462, 467, 468, 479 Phillips V. Berger, 8 Barb. 528... 6, 11, 13, 21, 229, 239 V. Edwards, 33 Beav. 440. 139, 157 r. Everard, 5 Sim. 102 406 V. Gorham, 17 N. Y. 270... 346 V. Gt. West. R'y Co., L. R. 7Ch. 409 33 V. Hoffister, 2 Coldw. 269. 321 V. Homfray, L. R 6 Ch. 770 61, 354, 514 V. Hooker, Phil. Eq. 193... 130 V. Mining Co., 7 Phila. 619. 238 V. Soule, 9 Gray, 233 28 V. Sylvester, L. R. 8 Ch. 173 389,496, 499 PAGE, Phillips V. Stanch, 20 Mich. 369. 55, 371, 526, 528 V. Thompson, 1 Johns. Ch. 131... 40, 44, 149, 152, 153, 154, 156, 192, 340, 540 T. Van Schaick, 37 Iowa, 229 549 Phiffipsonv. Gibbon, L. R. 6 Ch. 426 425,483, 491 Philpott v. Elliott, 4 Md. Cli. 273. 196, 383, 345, 348 Phippen v. Stickney, 3 Mete. 384... 358 Phyfe V. WardeU, 2 Edw. Ch. 47. 11, 1C6, 348 Physldan's Case, 1 Ventr. 6 548 Piattv.OHver,lMcLane,295... 358, 362 Pickering v. Bishop of Ely, 2 Y. & C. C. C. 249 67, 231, 383 V. Pickering, 2 Beav. 56. 245, 247 Kerce v. Catron, 23 Gratt. 483. 137, 148, 154, 223 v. Puller, 8 Mass. 223 362 V. Nichols, 1 Paige, 244 392 V. Paine's Estate, 28 Vt. 34. 141 PiersoU v Neill, 63 Pa. St. 420 431 Pigg V. Corder, 12 Leigh, 69 479 Pike V. Morey, 32 Vt. 37 139 Pilling V. Armitage, 12 Ves. 78. 192, 341 Pillow V. Pillow, 3 Humph. 644. 455, 479 Pinckard v. Pinckard, 23 Ala. 640. 1C7, 184. 185 Pincke V. Curteis, 4 Bro. C. C. 329. 444, 484, 487, 492 Pinckney v. Hagadom, 1 Duer, 90. 444 Pingree v. Coffin, 12 Gray, 288. 10, 360, 504, 540 Pinner v. Sharp, 23 N. J. Eq. 274. 12 Pipkin V. James, 1 Humph. 325. 130, 415, 489 Pitcalm V. Ogboume, 2 Ves. Sen. 375 323,333, 343 Pitenger v. Pitenger, 2 Green Ch. 156 2.58 Pitkin V. Pitkin, 7 Conn. 315 66 Pitts V. Beckett, 13 M. & W. 743.... 108 Playford v. Playford, 4 Hare, 546. 268, 276 TABLE OF CASES CITEJ). Ivii FAOE. Plummer v. Keplei-, 26 N. J. Eq. 481 55 V. Owen, 1 Busbee Eq. 254 138 Plunkett V. Meth. Epis. Soc, 3 Cush. 561 287 Poag V. Sandifer, 5 Eich. Eq. 170. 165, 173 Podmore v. Gunning, 7 Sim. 644... 205 Poland V. O'Conner, 1 Neb. 50 167 Polhill V. Walter, 3 B. & Ad. 114. 292, 310 Pollard V. Clayton, 1 K. & J. 462. 20, 28, 384, 458 V. Rogers, 4 Cal. 439 353 Pollexfen v. Moore, 3 Atk. 273 388 Poole V. Hill, 6 M. & W. 835 403 V. Middeton, 29 Beav. 646.... 22 V. Shei-gold, 2 Bro. C. C. 118, 425, 499, 521 Pooley V. Budd, 14 Beav. 34 19 Poorman v. Kilgore, 2 Casey, 365. 139, 166, 173 Pope V. Garland, 4 Y. & C. Ex. 394 305, 308, 508 V. Harris, Lofft, 791 259 V. Henry, 24 Vt. 560 186 V. Roots, 1 Bro. P. C. 370 399 V. Simpson, 5 Ves. 145 480 Popham V. Eyi-e, Lofft, 786.... 157, 458 Port Clinton R. R. v. Cleveland, etc. R. R., 13 Ohio St. 544... 28, 54, 55, 57, 65, 884 Porter V. Allen, 54 Geo. 623 12 V. Dougherty, 1 Casey, 405. 261, 479, 480 V. Noyes, 2 Greenl. 23 437 Portland, etc. R. R. v. Grand Trunk R. R., 63 Me. 99 402 Portlarington v. Soulby, 3 Myl. , & K. 104 10 Portman v. Mill, 1 Russ. & Myl. 696 420, 427, 428, 520, 522 Portmore (Ld) v. Morris, 2 Bro. C. C. 209 323 Post V. Leet, 8 Paige, 337 329 Potter V. Duffield, L. R. 18 Eq. 4. 118, 122, 125 V. Effice, 48 N. Y. 321 554 V. Jacobs, 111 Mass. 32. 138, 167 V. Potter, 1 Ves. Sen. 437. ... 200 PAGE. Potter V. Sandei-s, 6 Ha. 1... 95, 531, 553 V. Tuttle, 22 Conn. 512. 413, 449, 453 Potts V. Whitehead, 5 C. E. Green, 55 88, 210, 218, 223, 459 Powell V. Central Plank Road Co., 24 Ala. 441 66 V. Conant, 33 Mich. 396. 278 281 V. Dillon, 2 BaU & B. 416.... 120 V. Elliott, L. R. 10 Ch. 424. 296, 312, 522, 523 V. Knowler, 2 Atk. 224. 361, 366 V. Lloyd, 2 Y. & J. 372 407 V. Lovegrove, 39 Eng. L. & Eq. 427 135, 210 v. Martyr, 8 Ves. 146 497 v. Smith, L. R. 14 Eq. 85.. 317 V. Sh. Wales R'y Co.-, 1 Jur. (N. S.) 773 516 V. Young, 45 Md. 414... 553 Duflryn Steam Coal Co. v. Taff Vale R'y Co., L. R. 9Ch. 331 384 Power's Appeal, 63 Pa. St. 443 268 Powera V. Hale, 5 Frost. 145 276 Prater v. MiUer, 3 Hawkes, 628. 224 Pratt V. Adams, 7 Paige, 615 360 V. Carroll, 8 Cranch, 471. 304, 312, 446, 481 V. Ely, 67 Pa. St. 396.... 278, 281, 283 V. Hubbell, 3 Ohio St. 243 171 V. Law, 9 Cranch, 456 446 V. TaKaferro, 3 Leigh, 419.... 388 Prebble v. Boghm-st, 1 Sw. 309. 69, 264 Prendergast v. Eyi-e, 2 Hogan, 81. 418, 420, 425, 457, 520 Prentice v. Achom, 2 Paige, 30. 257, 258 Preston v. Merceau, 2 W. Bl. 1249. 135, 210 V. Whitcomb, 17 Vt; 183. 333 Price V. Asheton, 1 Y. & C. Ex. 441. 99, 219, 407 V. Corp. of Penzance, 4 Ha. 506 30 V. Dyer, 17 Ves. 356 196, 316, 325, 336 Iviii TABLE OF CASES CIT&D. PAGE. Price V. Griffith, 1 DeG. M. & G. 80. 216 V. Ley, 4 Giff. 235 331 V. Macaulay, 2 DeG. M. & G. 339. ..290, 297, 298, 300, 306, 307, 418, 441, 513, 519, 523 V. North, 2 Y. & C. Ex. 620. 428, 522 V. Salusbury, 32 Beav. 446 223 V. Strange, 6 Mad. 159 ...282, 284 V. Wiffiams, 6 Ves. 818 369 V. Winston, 4 Mumf. 63 42 Prince V. Griffin, 27 Iowa, 514.. .444, 454 V. Prince, 12 Jur. (N. S.) 221. 121 Prindergast v. Eyre, 2 Hogan, 81. 519, 521 Printup V. Mitchell, 17 Geo. 558 193 Pritchard v. Ovey, IJ. & W. 396... 222 V. Todd. 38 Conn. 413. 446, 478, 488 Prole V. Soady, 2 Giff. 1 99 Propert v. Parker, 1 K. & Myl. 625. 106 Prosser v. "Watts, 6 Mad. 59 286 Prothero v. Phelps, 25 L. J. Ch. 105. 502, 524 Prothro v. Smith, 6 Kich. Eq. 324. 470 Provost V. Rebman, 21 Iowa, 419... 348 Pugh V. Chesseldine, 11 Ohio, 109. 332 V. Good, 3 Watts & S 56 164, 168, 169, 171, 172 Pullen V. Reaay, 2 Atk. 587 316 Pulteney v. Darlington, 1 Bro. C. C. 237 389 Pulvertoft V. Pulvei-toft, 18 Ves. 84. 548 Purcell V. McCleary, 10 Gratt 246 240 V. Minor, 4 WaU 513...159'', 1G8, 193, 197 Puriton V. Northern lU.R R.,46IU. 297 215 Pusey V. Pusey, 1 Vern. 273.. 14 Pyke V. Pyke, 1 Ves. Sen. 376 405 V. Williams, 2 Vern. 455 ..164, 168 Pyne v. Blackburn, 3 Ves. 34 327 Pyrke v. Waddingham, 10 Hare, 1. 278, 279, 280, 281, 282 Q. Quinn v. Roath, 37 Conn. 16 51, 55, 57, 815, 824, 331, 345, 444, 454, 462, 466 R. PAGE. RadcHffe v. Wan-ington, 12 Ves. 332 47, 444, 485 Radford v. Willis, L. R. 7 Ch. 7 278, 283 Railroad v. Suley, 45 Mo. 220 76 Raines v. Callaway, 27 Tex. 678.... 333 Rake v. Pope, 7 Ala. IGl 141 Ramsbottom v. Gosdon, 1 V. & B. 165 337, 341 Ramsden V. Hii-st, 4 Jur. (N. S.) 200. 415 V. Hylton, 2 Ves. Sen. 306. 246, 405 Randall v. Hall, 4 DeG. & Sm. 343. 409 V. Latham, 36 Conn. 48. 383, 3S4 Randall v. Morgan, 12 Ves. 76. 98, 136 Ranelagh (Lord) v. Melton, 2 Dr. & Sm. 278 459 Ranger v. Gt. West. R'y Co., 5 H. L. C. 73 69, 358 Rankin v. Huskisson, 4 Sim. 13 32 V. Lay, 2 DeG. P. & J. 65 370, 430 V. MaxwoU, 2 A. K. Marsh. 483 540 V. Mortimer, 7 Watts, 372. 317 V. Simpson, 7 Hai-ria, 471. 159, 178, 192 Raphael v. Thames Valley R'y Co., L. R. 2 Ch 147 30 Rathbun v Rathbun, 6 Barb. 99. 145, 149, 153 Rawden v. Shadwell, Amb. 2B9 861 Rawdon v. Blatchford, 1 Sandf. 344. 353 Rawlens v. Shropshire, 45 Geo. 182. 12 V. Wickham, 1 Giff. 355. 290, 300 Raymond v. Pritchard, 24 Ind. 318. 526 Rayner v. Stone, 2 Edw. 128... 28, 380 Reade v. Livingston, 3 Johns. Ch. 481 136 Rearich v. Swinehart, 1 Jones, 233. 324 Reavis V. Rea^'is, 50 Ala. 60 531 Rector v. Price, 1 Mo. 373 486 Redding v. Wilkes, 3 Bro. C. C. 400 157, 1.58 Rede v. Oakes, 4 DeG. J. & S. 505. 278, 285, 424 Redmond v. Dickerson, 1 Stockt. 507 66 TABLE OF CASES CITED. lix PAGE. Redsliaw v. Bedford Level, 1 Ed. 345 244 Reece v. Trye, 1 DeG. & Sm. 273... 18 Reech v. Kennegal, 1 Ves. Sen. 123. 205 Reed v. Breeden, 11 P. P. Smith, 460 462, 469 V. Noe, 9 Yerg. 283. 400,421, 518 V. Reed, 12 Pa. St. 117. 164, 168 V. Vidal, 5 Rich; Eq. 289 369 Reed's Heirs v. Hornbaok, 4 J. J. Marah. 377 227 Rees V. Parish, 1 McCord Ch. 59... 66 V. Smith, 1 Ohio, 124 540 Reese v. Hohnes, 5 Rich. Eq. 531... 17 V. Lee Co., 49 Miss. 639. 12, 547 V. Reese, 41 Md. 554.... 140, 154, 192, 223, 229, 244 V. Union Pac. R. R., 1 Wool. 26 28 Reeves v. Dickey, 10 Gratt. 138 240 V. KimbaU, 40 N. Y. 299.... 400 V. Pye, 1 Cranch C. C. 219. 158 V. Reeves, 9 Mod. 128 18 Reg v. Birmingham, etc. R'y Co., 15 Q. B. 634 43 Regents Canal Co. v. Ware, 23 Beav. 575 43, 410, 497 ReiUy v. Smith, 25 N. J. Eq. 158. 373, 528 Remington v. Irwin, 2 Hairis, 143. 411, 444, 453, 466 Rennie v. Morris, L. R. 13 Eq. 203. 23 Renshawv. Gans, 7 Barr. 119 324 Rerick v. Kern, 14 S. & R. 267 186 Reuss V. Picksley, L. R. 1 Ex. 342. Ill Revel V. Hussey, 2 BaU & B. 288. 244, 260 ReyneU v. Sprye, 8 Hare, 222. 290, 295, 309 Reynolds v. Hewett, 27 Pa. St. 176 177, 189 v. Johnston, 13 Tex. 214. 164 V. Nelson, 6 Mad. 18. 469, 470 V. O'Neil, 26 N. J. Eq. 223 12 V. Pitt, 19 Ves. 134. 412, 453 Waller, 1 Wash. 164 257 Waring, You. 346... 192, 193 Rhine v. Robertson, 27 Pa. St. 30... 171 Rhoades v. Castner, 12 Allen, 130. 123 PAGE. Rhodes v. Prick, 6 Watts, 317. 164, 171 V. Ibbei-tson, 4 DeG. M. & G. 787 439 V. Rhodes, 3 Sandf. 279. 150, 161, 102, 166, 190, 194 Ricard v. Sanderson, 41 N. Y. 179. 548 Rice v. Savery, 22 Iowa, 470 548 Rick V. Jackson, 4 Bro. C. C. 519. 325, 343 Richards v. Green, 8 C. E. Green, 32 230 V. Poi-ter, 6 B. & C. 437. 121, 124 Richardson v. Linney, 7 B. Mon. , 571 400 V. Peacock, 26 N. J. Eq. 40 33 V. Smith, L. R. 5 Ch. 648 213, 215, 382, 422, 520 Richmond v. Dubuque, etc. R. R., 33 Iowa, 422... 10, 11, 35, 38, 66, 383, 531 V. Foote, 3 Lans. 244. 167, 173 V. Grey, 3 Allen, 25. 240, 416, 417, 455, 479, 489 V. Robinson, 12 Mich. 193 488, 528, 552 Richter v. SeUn, 8 S. & R. 425. 389, 391, 392, 397 Ricketts v. BeU, 1 DeG. & Sm. 335. 220, 231, 337 Riddle v. Cameron, 50 Ala. 263 12 Rider v. Gray, 10 Md. 282 415, 450, 490, 541 V. PoweU, 28 N. Y. 310. 321, 322, 327, 332, 336, 345 Ridgway v. Gray, 1 HaU & T. 195. 516 V. Sneyd, Kay, 627 323 V. Whai-ton, 6. H. L. Cas. 238 87, 89, 113, 115, 116, 119, 199, 217 Ridley v. McNairy, 2 Hump. 174. 138, 185 Riesz's Appeal, 73 Pa. St. 485. 373, 526, 529 Rigby V. Gt. West. R'y Co., 2 Ph. 44 33 Right V. CutheU, 5 East, 491 221 be TABLE OF CASES CITED. PAG£. Riley v. Famsworth, 116 Mass. 223 131, 218 Ritson V. Dodge, 33 Mich. 463 474 Rooch V. Dickinson, 9 Gratt. 156... 390 Roake v. Kidd,'5 Ves. 647 279 Robb V. Mann, 1 Jones, 300... 389, 391, 392, 393, 397 Roberts v. Bassett, 10.5 Mass. 409... 219 V. Bei-ry, 3 DeG. M. & G. 284 391,402, 466 V. Marchant, 1 Hare, 547... 551 V. Massey, 13 Ves. 561 497 V. Tucker, 3 Wels. H. & G. 632 124 Robertson v. Gt. West. R'y Co., 10 Sim. 314 545 V. Hogsheads, 3 Leigh, 667 502 ' V. Robertson, 9 Watts, 32 153, 156, 170, 193 V. Skelton, 12 Beav. 260. 394, 500 Robeson v. Hombaker, 2 Green's Ch. 60 216, 228 Robinson v. Bland, 2 Burr. 1077.... 361 V. Garth, 6 Ala. 204 123 V. Ketteltas, 4 Edw. Ch. 67 10 V. Page, 3 Russ. 119. 325, 338, 343 V. The Chartered Bank, L. R. 1 Eq. 32 23 V. WaU,10Beav. 61. 356, 357 Roby V. Cossitt, 78 111. 638 114, 474, 478, 479, 552 Rodman v. Zilley, Saxton, 320. 258, 273 Roffey V. Shallows, 4 Madd. 227. 419, 519 Rogers v. Atkinson, 1 Kelly, 12. 332, 345 V. ChaUis, 27 Beav. 175. 67, 535 V. Gosnell, 58 Mo. 589 548 V. Saunders, 16 Me. 92. 54, 55, 57, 65, 109, 229, 237, 315, 469, 474, 479 V. Taylor, 40 Iowa, 193. 400, 435 V. Waterhoiise, 4 Drew. 329 278, 284 PAGE. Rogers V. WiUiams, 8 Phila. 123... 12 Roget D. Merritt, 2 Cai. 117 109 Rolfe V. Peterson, 2 Bro. P. C. 436 69 Rondeau v. Wyatt, 2 H. Bl. 68. 198, 199 Roper V. Bartholomew, 12 Pri. 797. 69 Rosev. Bates, 12 Mo. 30 206 V. Calland, 5 Ves. 186 282 V. Clark, 1 Y. & C. 534 66 V. Cunynghame, 11 Ves. 550. 121, 388 V. Swann, 56 111.37 479 Rosenthal v. Freeburger, 26 Md. 75. 174, 175 Rosevelt V. Fulton, 2 Cow. 129 344 Rosav.Baker, 72Pa. St. 187... 130, 215 V. Union Pac. R. R., 1 Woolw. 26 24, 385 V. Wilson, 7 Sm. & Mar. 753... 332 Rostetter v. Grant, 18 Ohio St. 126. 374, 526, 531 Roundtree v. McLain, 1 Humph. 245 13, 66 Rourke v. McLaughlin, 38 Cal. 196 10 Routledge v. Grant, 4 Bing. 653. 84, 90 Rowe V. Teed, 15 Ves. 375 201 V. Young, 3 Y. & C. Ex. 199. 493 Rowley v. Adams, 12 Beav. 476 498 Rowton V. Rowton, 1 Hin. & Mun. 92 179, 193 Ruifiier v. McConnell, 17 lU. 212.... 317 Rummens v. Robbins, 3 DeG. J. & S. 88 83, 218 Rvmrmington v. Kelley, 7 Ohio, 432. 461, 469, 474 Runkerv. Abell, 8 B. Mon. 506 185 Runnels v. Jackson, 1 How. 358.... 466 RusseE V. Nicoll, 3 Wend. 112 390 Russell's Appeal, 3 Hariis, 319 391 Rutenberg v. Main, 47 Cal, 213. 110, 116 Rutherford v. Haven, 11 Iowa, 507. 436 Ryan, Thomas, In re, 3 I. R. Eq. 238 140, 509 Ryan v. Daniels, 1 Y. & C. C. C. 60. 259 V. Dox, 34 N. Y. 307 206 Ryno V. Darby, 5 C. E. Green, 231. 215, 325, 331, 340, 341 TABLE OF CASES CIIED. Ixi s. Sackett v. Spencer, 65 Pa. St. 80.... 107 Saco V. Henry, 39 Ind. 414 185 SalTord v. "Wykoff, 4 HiU, 442 76 Sag« V. McGuire, 4 Watts & S. 228. 168, 178, 192 Sailors v. Gambidl, 1 Sm. (Ind.) 82 139 St. John V. Benedict, 6 Johns. Ch. 23 244 Paul, etc. V. Brown, 11 Minn. 356 10, 55, 57, 435, 531 Sale V. Lambert, L. R. 18 Eq. 1 126 Salmon Falls M'fg Co. v. Goddard, 14 How. 446... 108, 127, 128, 133, 185 Salisbm-y v. Hatcher, 2 Y. & C. C C. 54 240, 489 Sams V. Fripp, 10 Rich. Eq. 447... 109 Samuda v. Lawford, 8 Jur. (N. S.) 739 536 Sanborn v. Flag-ler, 9 Allen, 474. Ill, 112 V. Woodman, 5 Cosh. 36. 411, 453 Sanders v. Classon, 13 Minn. 379... 548 v.Rodway,22L.J. Ch.230. 27 Sanderson v. Cockermouth, etc. R'y Co.-UBeav. 497 28, 225 Sanford v. Washburn, 2 Root, 499 .. 344 Sanfoss v. Jones, 25 Cal. 481... 206, 360 Sanquirico v. Bennedette, 1 Barb. 315 32, 383 Sansome v. Rhodes, 6 Bing'. N. C. 261 390 Sarlv. Bourdillon, 1 C. B. (N. S.) 188 135 Barter v. Gordon, 2 HiU Ch. 121. 17, 226, 273, 448 Satterthwaite v. Emley, 3 Green Ch. 489, 136 Saunders v. Cramer, 3 Dr. & W. 87. 98, 553 V. Simpson, 2 Har. & Johns. 81 42 Saunderson v. Jackson, 2 B. & P. 239 107,108,120, 124 Savage v. Broclcsopp, 18 Ves. 335... 244 V. CaiToU, 1 Ball. & B. 265. 153, 174, 175, 179, 192, 194 Savery v. Speuce, 13 Ala. 561... 13, 17, 66 PAGE. Savile v. Savile, 1 P. Wms. 745. 272, 275, 406 SaviU V. Tancred, 1 Ves. Sen. 101. 14, 15 Sawyer v. Hovey, 3 Allen, 331. 333, 336 V. Sledge, 55 Geo. 152. 422, 486 Saxon V. Blake, 29 Beav. 438 259 Say v.Bai-wick, 1 V. & B. 195 257 Scarborough v. Arrant, 25 Tex. 129. 531 Scarlett v. Stein, 40 Md. 512 444 Schmidt v. Gatewood, 2 Rich. Eq. 162 203, 206 V. Labatut, 1 Speer Eq. 421.. 317 V. Livingstone, 3 Edw. Ch. 213 476 Schneider v. Heath, 3 Camp. 506.... 309 V. Norris, 2 M- & S. 286. 108 School District v. Macboon, 4 Wise. 79 137, 179 Schotsmans v. Lancashire, etc. R. R. Co., L. R. 2 Ch. 332 21 Schroeder v. Germeinder, 10 Nev. 355 232, 236 Schroeppel v. Hopper, 40 Barb. 425 7, 11, 389, 478 Scoones v. MoiTell, 1 Beay. 251 491 Scott V BUlgerry, 40 Miss. 119. 13, 66, 531 V. Fields, 7 Ohio, 424 462, 465 V. Frink, 53 Barb. 533 322 V. Gill, 19 Iowa, 187 548 V. Hanson, 1 Sim. 13. 300,517, 520 V. Rayment, L. R. 7 Eq. 112. 369, 535 v. Scott, 1 Cox, 366 97 V. Tyler, 2. Dick. 719 362 Scottish N. E. R'y Co v. Stewart, 3 Macg.382 75 Seager v. Bums, 4 Minn. 141.. 526, 546, 552, 553 Seagood v. Meale, Prec. in Ch. 560. 122^ 159, 160, 164, 174 Seaman v. Van Rensselaer, 10 Barb. 81 55, 388 V. Vawdrey, 16 Ves. 393. 286, 419, 507, 520 Seaton v. Mapp, 2 Coll. C. C. 556. 439, 457, 458 Seaward V. Willak, 5 East, 202 403 Seawell v. Webster, 7 W. R. 691.'.... 33 Mi TABLE OF CASES CITED. PAGE. Secomlbe V. Steele, 20 How. 94 552 Seorest V. McKenna, 1 Strob. Ecj. 356 400 Seeley v. Howard, 13 Wise. 336 435 Seichi-ist's Appeal, 66 Pa. St. 237... 12 Seitzinger v. Ridgway, 4 W. & S. 472 226 Selby V. Geinez, 12 lU. 69 345 V. Hutchinson, 4 Gilm. 319.... 396 V. Selby, 3 Mer. 2 108 Sellack v. Hams, 5 Vin. Abr. 521... 205 Semnes v. Worthington, 38 Md. 298. 136, 148, 154, 192 Setonv. Slade, 7 Ves. 265 109, 238, 239, 442, 446, 461, 462, 468, 484, 487, 492 Seymonr v. Davis, 2 Sandf . 245 139 V. De Lancey, 6 Johns. Ch. 222... 54, 55, 56, 57, 62, 258, 272, 273, 278, 392, 449, 489 Shackle v. Baker, 14 Ves. 468.. 32, 380 Shackleton v. SutcHffe, 1 DeG & Sm. 609 305,422, 520 Shafter V. Niver, 9 Mich. 253 444 Shannon v. Bradstreet, 1 Sch . & Lef.72 151, 231 Shannon v. Taylor, 16 Tex. 413 551 Shapland v. Smith, 1 Bro. C. C. 75. 279 Sharp V. Adcock, 4 Russ. 374 284 V. Milligan, 22 Beav. 606. 114, 474 V. Trimmer, 9 C. E. Green, 422... 413, 444, 446, 447, 453, 489 V. Wright, 28 Beav. 150 400, 474 Sharp's Rifle Man. Co. v. Rowan, 35 Conn. 127 55 Shattuck v. Cassidy, 3 Edw. Ch. 152 10 Shaw V. Fisher, .f> DeG. M. & G. 596. 22 V. Livermore, 2 Greene, 338, 39 V. Nudd, 8 Hck. 9 115 V. Thackray, 1 Sm. & G. 537. 25/, 258, 553 Vincent, 64 N. C. 690... 422, 518, 520 Shawmut Bk. v. P. & M. R. R., 31 Vt. 491 76 Sheaphead v. Walker, L. R. 20 Eq. 659 175,444,448, 476 Sheffield v. CoUier, 3 Kelly, 82 186 Sheffield v. Mulgrave (Ld.), 2 Ves. 52J 279, 280 Sheffield Gas, etc. Co. v. Han-ison, 17 Beav. '294 23, 369 Sheid V. Stamps, 2 Sneed. 172. 126, 135, 226 Shelbume v. Inchiquin, 1 Bro. C. C. 341 333 Shelby v. Smith, 2 A. K. Marsh. 504 345 Shelly V. Nash, 3 Mad. 232 268 Shelson v. Franklin, G Munf. 210... 353 Shepard v. Doolan, 3 Dr. & War. 1. 278, 283 Shepherd v. Bevin, 9GiU. 32... 154, 179, 192, 277 V. Gillespie, L. R. 5 Eq. 293 23 v. Shepherd, 1 Md. Ch. 244 79, 154, 164, 192 Sherburne v. Shaw, 1 N. H. 157.... 126 Sherman v. Wright, 49 N. Y. 227... 55 Sherwin v. Shakespear, 5 DeG. M. & J. 517 497, 498, 499 Shields v. Trammell, 19 Ark. 51. 201, 204 Schifferv. Pi-uden, 64 N. Y. 47 419 ShiUibur v. Jarvis, 8 DeG. M. & G. 79 164 Shipp V. Swann, 2 Bibb. 82 345 Shii-ley V. Davis, 6 Ves. 678 421 V. Shirley, 7 Blackf. 452 109 V. Spencer, 4 Gilm. 583. 166, 193 V. Stratton, 1 Bro. C. C. 440 256, 352, 355 Shively v. Welch, 2 Oreg. 288 332 Shortall v. Mitchell, 57 111. 161. 446, 479 Shortwell v. Murray, 1 Johns. Ch. 512 317 Shovel V. Began, 2 Eq. Cas. Abr. 688 427, 522 Showman v. Miller, 6 Md. 479 317 Shreek v. Piera, 8 Iowa, 350 437 Shrewsbury, etc. R'y Co. v. London, etc. R'y Co., 22L. J. Ch. 682. 75, 253 Shrewsbury, etc. R'y Co. v. N. W, R'y Co., 6 H. L. Cas. 113. 76, 259, 265 Shrewsbury, etc. R'y Co. v. Stour Valley R'y Co., 2 DeG. M. & G. 882 263 TABLE OF CASES CITED. Ixlii PAGE. Siive-wsbury (Lord) v. M. Stafford- shii-a R'y Co , L. R. 1 Eq. 593.... 77 Sickel V. Mosenthal, 39 Bca\-. 371. 67 Sidebotham v. Barriny-t'.r.i, 3 Beav. 524 : 489 Simmonds v. Swaine, 1 Taunt. 549. 37G Simmons v. Hill, 4 Han-is & McH. 252 16G, 173 V. Spruill, 3 Junes Eq. (N. C.) 9 130 Simondson V. Tweed, Gilb. 85 198 Simpson v. Bi-eckenridge, 8 Casey, 287 113 Sims V. Bond, 5 B. & Ad. 389 128 V. McEwen, 23 Ala. 184. 340, 531 Singer's Manuf. Co. v. Union But- tonhole, etc. Co., 6 Fish, Pat. Cas. 480 33 Singstack v. Harding, 4 Har. & Johns. 186 123 Siter's Appeal, 2 Casey, 178... 389, 391 Sites V. KeUai-, 6 Hamm. 207. 137, 145, 159 Skett V. "Whitmore, Freem. Ch. 281. 159 Skidmore v. Bradford, L. R. 8 Eq. 134 98 Skinner v. Dayton, 2 John. Ch. 526. 69 V. McDouall, 1 BeG. &Sm. 265 89, 92, 199, 216 Skipwith V. Strother, 3 Rand. 214. 361 Slater V. Smith, 117 Mass. 96 110 Slaughter v. Tindle, 1 Litt. 358. 304, 312, 540 Slice V. Derrick, 2 Rich. 7 171 Sloman v. Walter, 1 Bro. C. C. 418. 69 Sloper V. Fish, 2 V. & B. 149 279 SmaU V. Atwood, 6 CI. & Fin. 232 303 Smiley v. Bell, Marb. & Yerg. 378. 66 Smith V. Allen, Saxton, 43 344 V. Ankrim, 13S. &R. 39 225 V. Armstrong, 24 Wise. 446. 526 V. Arnold, 5 Mason, 417. 123. 135 V. Brown, 5 Gilm. 309 462 V. Bruning, 2 Vem. 392 362 V. Bumam, 2 Anstr. 527. 484, 487, 492 V. Capron, 7 Hare, 185 220 V. Clark, 12 Ves. 477.... 310, 356 V. CrandaU, 20 Md. 482 420 V. Death, 5 Mad. 371 .' 279 PAGE. Smith V. Dobnan, 6 Bro. P. C. 291. 492, 496 V. Fleek's Appeal, 69 Pa. St. 474 110, 237 V. Garland, 2 Meriv. 123. 241, 254, 287 V. Greeley, 14 N H. 378. 344, 348 V. Greenlee, 2 Dev. 126 358 V. Greer, 3 Humph. 118 136 V. Hai-rison, 26 L. J. Ch. 412. 249, 257 V. Johnson, 37 Ala. 633 360 V. Jones, 7 Lei^h, 165.. 117, 118, 123, 133 V. Jordan, 13 Minn. 264. 319, 333 V. KeUey, 56 Me. 64. 372,531, 537 V. Lawrence, 15 Mich. 499. 469, 479 V. McVeigh, 3 Stockt. 239.... 154 V. Neale, 2 C. B. (N. S.) 67. 94, 111, 141 V. Peters, L. R. 20 Eq. 511. 215, 382 V. Robinson, 11 Ala. 840 432 V. Sheldon, 65 lU. 219... 547, 552 V. Smith, 1 Rich. Eq. 130. 154, 158, 159, 164, 173, 174 V. Surman, 9 B & C. 561 124 V. Toleher, 4 Russ. 302 500 V. Turner, Prec. in Ch. 561. 174, 422 V. Underdunk, 1 Sandf. Ch. 579 166, 171, 172 Smoot V. Rea, 19 Md. 398... 55, 57, 420, 435, 444, 460, 531 Smout V. nbery, 10 M. & W. 10 295 Smell V. Jones, 1 Watts. & Serg. 128 358 Sneedv. Bradley, 4Sneed, 301. 199, 201 Sneesby v. Thorne, 7 DeG. M. & G. 399 114, 252 SneU V. Mitchell, 65 Me. 48. 53, 57, 65 Snider v. Lehnhen-, 5 Oreg. 385. 452, 462 Snowman v. Harford, 57 Me. 397. 372, 478, 488, 531, 532 Snyder v. May, 7 Harris, 235. 320, 322, 345 V. Spaulding, 57 lU. 480. 12, 411, 413, 417, 444, 449, 451, 453, 520 Ixit TABLE OF OASES CITED. PAGE. Soames V. Edge, Johns. 669.... 30, 536 Sohier v. Williams, 1 Curtis C. C. 479 285,417, 547 Soles V. Hickman, 20 Pa. St. 180. 133, 135, 223, 226 Somerby v. Buntin, 118 Mass. 279. 10,' 11, 25, 105 Somerset (Dk. of) v. Cookson, 3 P. Wms. 398 14, 15 Somerset (Dk. of) v. Gom-lay, 1 V. &B. 73 429 Somerville v. Truman, 4 Har. & McH. 43 26 Souffrain v. McDonald, 27 Ind. 269. 236 Souter V. Drake, 5 B. & Ad. 992... 219 So. East. R'y Co. v. Knott, 10 Hare, 122 233, 478 So. "Wales R'y Co. v. Wythes, 1 K. & J. 186 28, 30, 66, 161, 217, 225, 884 So, Yorkshire, etc. Co. v. Gt. North. R'y Co., 9 Exch. 55 75 Southby V. Hutt, 2 My. & Cr. 207. 440 Southcourt V. Bish. of Exeter, 6 Hare, 213 400,474,475, 482, 486, 487 Spalding v. Alejcander, 6 Bush. 160. 440, 478, 488, 504 Spanglerv. Danforth, 65 HI. 152. 131, 211 Sparks v. Liverpool W. W. Co., 13 Ves. 428 457 Speakman v. *Forepaugh, 8 Wright, 363 417 Spear V. Otendoi-f, 23 Md. 37 174 Speir V. Robinson, 9 How. Pr. 315, 550 Spence v. Hogg, 1 Coll. 225... 545, 553 Spencer v. Tophara, 22 Beav. 573. 286 Spicer v. Cooper, 1 Gale & Dav. 52. 135 V. Hoop, 51 Ind. 365 33 Springle V. Shields, 17 Ala. 295, 507, 529 Springs v. Hai'ven, 3 Jones Eq. 96. 319 V. Sanders, Phill. Eq. 67... 7 Springwell v. Allen, 2 East, 448, n. 309 Sprinlde v. Hayworth, 26 Gratt. 384. 268 Spunner v. Walsh, 11 Ir. Eq. Rep. 597 415, 518 Spurrier v, Hancock, 4 Ves. 667. 455, 475, 480, 482 PAGE. Spurriur v. Fitzgerald, 6 Ves. 548. 198, 201, 342 Squire v. Campbell, 1 My. & Cr. 480 343, 409 V. Whitton, 1 H. L. Cas. 333. 209 Stacey v. Vt. Cent. R. R. 27 Vt. 39. 44 Staokpole v. Beaumont, 3 Ves. 96. 362 Staley v. Murphy, 47 lU. 244 467 Stanley v. Chester R'y Co., 9 Sim. 264 375 V. Robinson, 1 R. & My. 527 250, 251 Stantonv. MiUer, 58N. Y. 192. 209, 223 V. Percival, 5 H . L. Cas. 257. 19 V. TattershaU, 1 Sm. & Gif. ' 529 323 StapUton V. Stapilton, 1 Atk. 2... 80, 189, 247 Stapylton v. Scott, 13 Ves, 425. 340, 518 Starens v. Newsome, 1 Tenn. Ch. 239 21, 380, 385 Stark V. Wilder, 36 Vt. 752 20 Steams v. Hubbai-d, 8 Greenl. 320. 138, 201 Stedwell v. Anderson, 21 Conn. 139. 319 Steele V. Biggs, 22 lU. 643 462 V. Branch, 40 Cal. 3 444, 452, 474 Steevens' Hosp. v. Dyas, 15 Ir. Ch. Itep. 405 143, 149 Steinburg v. Ismay, 35 N. Y. Supr. Ct. 35 219 Stent V. Bayhs, 2 P. Wms. 217 399 Stephens v. Hotham, 1 K. & J. 5'i'l. 273, 406 V. Olive, 2 Bro. C. C. 90. 27 V. Ti-uman, 1 Ves. Sen. 73. 548 Stemberger v. McGovem, 56 N. Y. 12 537, 542 Stevens v. Bagwell, 15 Ves. 139 362 V. Cooper, 1 Johns. Ch. 425 196, 324 v. Parish, 29 Ind. 260 526 Stevenson v. Buxton, 37 Barb. 13... 540 V. Maxwell, 2 N. Y. 498. 436 Steward V. Wintera, 4 Sandf. Ch. 587 21, 33 Stewart v. Alliston, 1 Mer. 26. 39, 215, 290, 300, 421, 441, 520, 523 V. Brand, 23 Iowa, 477.... 333 TABLE OF CASES CITED. Ixv PAOB. Stewart v. Conyngham (Lord), 1 Ii-. Ch. Rep. 534. 421, 520 V. MetcaJf, 68 lU. 109. 402, 422 V. Raymond R. R., 7 S. & M. 568 400, 403 V. Smith, 6 Hare, 222, n... 470 V. Stewai-t, 3 Watts, 253, 164, 167, 184 StilweU V. WUkins, Jac. 280... 271, 273 Stine V. Sherk, 1 W. & S. 195 345 Stocken v. Collin, 7 M. & W. 515... 95 Stocker v. Brocklebank, 3 Mac. & a. 250 67, 383 V. Partridge, 2 Rob. Sup. Ct. 193 120 V. Wedderburn, 3 K. & J. 393 231, 369, 384, 402 Stockham Iron Co. v. Hudson Iron Co., 102 Mass. 45 138 Stockley v. Stockley, 1 V. &B. 23. 171, 179, 189, 316 Stockton V. Union Oil Co., 4 W. Va. 273 427, 504 Stoddart v. Smith, 5 Binney, 355. 421, 425, 426, 521 V. Tack, 4 Md. Ch. 475. 154, 156, 173, 193, 226 Stoeverv. Rice, 3 Whart. 25 393 Stokeav. Moore, 1 Cox, 219... 108, 157 Stone V. Buckner, 12 Sm. & Mar. 73 546, 553 V. Commercial R'y Co., 4 My. &Cr. 122 43 V. Hackett, 12 Gi-ay, 227 80 V. Hale, 17 Ala. 557 318, 332 V.Pratt, 25 111. 25.... 50,57, 62, 246, 247, 255, 258, 267 Storer v. Gt. West. R'y Co., 2 Y. & C. C. C, 48 28, 30, 263 Story V. Conger, 36 N. Y. 673 437 V. Norwich, etc. R. R., 24 Conn. 94 26 V. Windsor (Lord), 2 Atk. 631. 389 Stourton v. Meers, 1 P. Wms. 146. 490 Stowv. RusseU, 36 111. 18 462 V. Stevens, 7 Vt. 27 437 Strasbourg R. R- Co. v. Eehtemact, 21 Pa. St. 220 24, 66 Stratford v. Bosworth, 2 V. & B. 341 82,88, 124, 207 E PAQii:. Street V. Bigby, 6 Ves.815 369 Strehl V. D'Evers, 66 lU. 77 105 Stretch v. Schenck, 23 Ind. 77 476 Strickland v. Albridge, 7 Ves. 519. 205 v. Turner, 7 Ex. 208 395 Stropshire v. Brown, 45 Geo. 175... 193 Stuai't (Lord) v. London, etc. R'y Co., 1 DeG. M. & G. 721 66, 224, 283, 265, 411, 475 Stubblefield v. Patterson, 3 Heyw. 128 271 Studholme v. Mandell, 1 Ld. Raym. 279 377 Sturge V. Midland R'y Co., W. R. (1857-8) 233 66, 225, 370 Sturtevant v. Jaques, 14 AUen, 523. 279, 417 Stuyvesant v. Davis, 9 Paige, 427... 410 v. Mayor, etc., 11 Paige, 414 11, 31 Suckett V. YTiUiamson, 37 Mo. 388. 149 Suggett v. Cason, 26 Mo. 221 141 Sullingsv. SuUings, 9 Allen, 234. 230, 400, 474, 518 SuUivan v. Tuck, 1 Md. Ch. 59. 21, 24, 66 Sumners v. Bean, 13 Gratt. 404. 14, 17 Supervisors v. Decker, 30 Wise. 624 347 v. HennebeiTy, 41 lU. 179 431 Surcome v. Pinniger, 3 DeG. M. & G. 575 136, 143, 179, 185, 187 Susquehanna Ins. Co. v. Perine, 7 W. &S. 348 344 Sutherland v. Briggs, 1 Hare, 34. 109, 153, 172, 175, 179, 195 Sutphen v. Fowler, 9 Paige, 280. 10, 554 Sutter's Heirs v. Ling, 1 Casey, 466. 396 Sutton, Exparte, 2 Rose, 86 407 v. Hayden, 62 Mo. 101 268 V. Sutton, 13 Vt. 79 166 Swain V. Fidehty Ins. Co., 54 Pa. St. 455 281 Swaisland v. Dearsley, 29 Beav. 430. 223, 326, 333 Swartout v. Burr, 1 Pa. St. 495 555 Swartz V. Swartz, 4 Ban-, 353 180 Swayne v. Lyon, 17 P. F. Smith, 436 417 Ixvi TABLE OF CASES CITED. PAGE. Sweeny v. MUler, 34 Me. 388 171 Sweet V. Jacocka, 6 Paige, 355 204 V. Lee, 3 Man & G. 4G2.. 109, 141 Swepsonv.Rouse,65N.C. 34... 52G, 555 gwiiiimv.Bush,23Mich.99.... 290, 297, 300, 354 Switzerv. SldleS, 3 Gfilm. 529 199 Syers v. Syers, L. R. 1 App. Cas. 174 369 Syler V. Eckliai-t, 1 Binney, 378. 179, 185 Symondson v. Tweed, Prec. in Ch. 324 - 192 Symons.v. Jaites, 1 Y. & C. C. C. 487 440, 441 T. Taft V. Kessel, 16 Wise. 273 437 Talbprt v. Singleton, 42 Cal. 390.... 347 Talbot V. Ford, 13 Sim. 173.... 259, 267 Tallmauv. Fi-aaklin, 14 N. Y. 584. 120, 121, 130, 223, 226 TaJmadge v. N. A. Coal Co., 3 Head. 337 76 V. Ren. & S. R. R., 13 Barb. 493 141 Tanner v. Smith, 10 Sim. 410 514 TarbiU v. Taj-bill, 9 Allen, 278 21 Tartleton v. Vietas, 1 Gilm. 470 199 TaiTV. Scott, 4 Brews. 49 232 Tasker v. Small, 3 My. & Cr. 63.... 545 Tate V. Conner, 2 Dev. Eq. 224.... 448 Tatham y. Piatt, 9 Hare, 660 225 Tatiimv.Bropker,51Mo.l48... 164, 167 Tanner v. Wise, 3 P. Wms. 296 18 Tawney V. Crowther, 3 Bro. C. C. 161 89,119,124, 207 Taylor v. Ashton, 11 M. & W. 401. 295 V. Beech, 1 Ves. Sen. 297. 136, 158, 187 V. Benham, 5 How. 234 388 V. Brown, 2 Beav. 180 469 V. Chichester, etc. R'y Co., L. R. 2 Exch. 356... 76, 77 V. Davis, 3 Beav. 388 32 V. Fleet, 1 Barb. 471... 290, 293, 299, 322 , V. Gilbertson, 2 Drew. 391. 225 V. Gilman, 25 Vt. 411 324 v.Luther,2Suam.a29... 197, 204 VASZ. Taylor v. Merchants', etc. Ins. Co., 9 How. 390..... 21 T. MeiTiU, 55 El. 52.... 114, 244, 474 V. Neville, 3 Aik. 384... 20, 21 V. Patrick, 1 Bibb. 168 257 V. Porter, 1 Dana,422...415, 450 V. Portington, 7 DeG, M. & G. 328 223, 225 V. Stibbert, 2 Ves. 437 553 V. Williams, 45 Mo. 80...55, 226, 278, 281, 422 Telfair V. Telfair, 2 Dessau. Ch. 271. 237 Ten Broeck v. Livingston, 1 Johns. Ch. 357 520 Tenney v. St. Bank, 20 Wise. 152. 532, 540 Tesson v. Atlantic Ins. Co., 40 Mo. 33 333, 336, 345 Thames Plate Glass Co. v. Land, etc. Tel. Co., L. R. 11 Eq. 248 232 Thayer v. Middlesex Mut. Ins. Co., 10 Pick. 326 95 V. Torrey, 37 N. J. Law, 339 218 Thomas v. Blackman, 1 Coll. C. C. 301 86, 121, 475 V. Bui-ne, 1 Dr. & Walsh, 657 260 V. Dering, 1 Keen, 7'M...89, 243, 254, 513, 514 V. Dickinson, 14 Barb. 90. 139 V. McCoi-mack, 9 Dana, 108. 324 V. Sheppai-d, 2 McCord, Eq. 36 258 Thompson v. Blaclistone, 6 Beav. 470 252 v.Bmen, 46 111. 125.467, 479 V. Carpenter, 4 Baa-r, 132. 417 V. Davies, 13 Johns. 112. 358, 367 V. Dulles, 5 Rich. Eq. 370 489 V. Gould, 20 Pick. 138. 139, 159 V. Guyon, 5 Sim. 65 429 V. Leake, 1 Madd. 39.... 68 V. Mauley, 16 Geo. 440. 66 V. Myrick, 20 Minn. 205. 416 V. Scott, 1 McCord, 32. 150, 165, 168, 169, 193 TAliLK OF CASES CITED. Ixvi Thompson v. Smith, 63 N. Y. 301. 389, 551, 554 V. Tod. Pet. C. C. 380. 159, 291, 311 Thomson v. Thomson, 7 Ves. 473. 360 Thom V. Com. of Pub. Wks., 32 Beav. 490 21 Thornbury v. BeviU, 1 Y. & C. C. C. 554 83, 86 Thoi-ne v. Thome, 18 Ind. 462 185 Thomett v. Haines, 15 M. & W. 372 356, 357 Thornton v. Hemy, 2 Scam. 218. 179, 199 Thorp V. Keokuk Coal Co., 48 N. Y. 253 549 Thorpe v. Hosford, 20 W. R. 922. 67 V. Pettit, 1 C. E. Green, 488 400,431,474, 518 Thumell v. Balbimie, 2 M. & W. 786 213 Thynn v. Thynn, 1 Vern. 296 205 Thynne v. GlengaU (Lord), 2 H. L. Gas. 158 140, 157 Tibbs V. Barker, 1 Blackf. 58...166, 179 V. Monis, 44 Barb. 138 479 Tieman v. Gibney, 24 "Wise. 190. 218, 223 V. Roland, 3 Harris, 429. 415, 416, 417, 449, 450, 469, 489, 490 TSdesley v. Clarkson, 30 Beav. 419. 257 'Kllett V. Charing- Cross Bridge Co., 26 Beav. 419 223 TiUey v. Thomas, L. R. 3 Ch. 61. 391, 444, 445, 470 TiUy V. Peers, 10 Ves. 301 272 THton V. Tilton, 9 N. H. 385...136, 145, 150. 164, 192, 196, 199, 344, 348 Tinney v. Ashley, 15 Hck. 546...432, 437 'Kson V. Smith, 8 Tex. 147 240 Tobey v. County of Bristol, 3 Story, 800 258, 369 V. Poi-eman, 79 111. 489...434, 479 Todd V. Gee, 17 Ves. 278 502 V. Taft, 7 Allen, 371 34 Toller V. Carteret, 2 Vern. 495 10 Tolson V. Sheard, L. R. 5 Ch. D. 19. 424 V. Tolson, 10 Mo. 736 325 Tomkinson v. Straight, 17 C. B. 697. 153 Tooke V. Atkins, 1 Vern. 451 362 PAGE. Toole V. Medlicott, 1 Ball &B. 393. 153, 179, 192 Toorv Toor, 20 Ind. 118 215 Ton-ance v. Bolton, L. R. 8 Ch. 118. 61, 293, 295 Towner V. Lucas, 13 Gratt. 705 324 Townley V. BedweU, 14 Ves. 591.... 445' Townsend v. Chapernowne, 9 Price, 130 550, 555 V. Hawkins, 45 Mo. 286. 192 V. Hubbard, 4 Hill, 351. 109 V. Houston, 1 Han-, 532. 145, 159, 160 V. Lewis, 11 Casey, 125. 449 Townshend (Lord) v. Stangroom, 6 Ves. 323... 314, 319, 323, 331, 333, 343, 427, 522 Tracy v. Talmidge,, 14 N. Y. 162... 367 Traphagen v. Traphagen, 40 Barb. 537. 554 Trapnall V. Brown, 19 Ark. 39. 201, 204 Treasurer v. Commercial, etc. Co., 23Cal. 390 24 Treeson v. Bissell, 63 N. Y. 168 436 Trefusis v. CUntou (Lord), 2 Sim. 359 500 Trelawney v. Booth, 2 Atk. 307 388 Tremain v. Lining, Wright, 644... 437 Ti-evor v. Wood, 36 N. Y. 307 108 Ti-igg v. Reade, 5 Humph. 529 323 Trimmer V. Bayne, 9 Ves. 209 389 Triplett V. GiU, 7 J. J. Marsh. 432 333 Tripp V. Bishop, 56 Penn. St. 428. ■ 109, 113 Tritton V. Foote, 2 Bro. Ch. 636 10 Troughton v. Johnston, 2 Hayw. 328 358 Troutman v. Gowing, 16 Iowa, 415. 507, 529 Trower v. Kewcome, 3 Meriv. 704. 300 Troyford v. Wai-eup, Rep. Temp. Finch, 310 427, 522 Trustees v. Peaslee, 15 N. H. 330... 76 Tucker v. Wood, 12 John. 190 83 Tufts V. Plymouth Gold Min. Co., 14AUen, 407 123 Tumbull V. Trout, 1 Hall. 336 115 Turk V. Ridge, 41 N. Y. 201 549 Turner v. Harvey, Jac. 169... 253, 354 V. Letts, 20 Beav. 191 18 Ixviii TABLE OF CASES CITED. PAGE. Turnpike Co. v. Chnrcliill, 6 Monr. 427 410 Turpin v. Banton, Hardin, 313 26 V. Chambers, 29 Beav. 104. 513 Twining- v. Moniee, 2 Bro. C. C. 326 244, 255, 314, 418, 519 Twiss V. George, 33 Mich. 253. 190, 192 Twistleton v. Griffith, 1 P. Wms. 310 364 Tyler v. McCardle, 9 S. & M. 230. 400, 403 TyrreU v. Hope, 2 Atk. 562 80 Tyson v. Passmore, 2 BaiT. 122. 107, 295, 321, 348 V. Watts, 1 Md. Ch. 13. 229, 230, 237 Underbill v. Allen, 18 Ark. 466. 155, 159 V. Horwood, 10 Yes. 209. 273 V. Saratoga, etc. U. R., 20 Barb. 455 414 V. Williams, 7 Blackf. 125. 137, 145, 170 Undei-wood v. Hitchcox, 1 Ves. Sen. 279 48, 80, 207 V. Newport Lyceum, 5 B. Mon. 129 7G Ungley v. Unglcy, L. R. 4 Ch. D. 73 185, 187 Union Coal Min. Co. v. McAdam, 38 Iowa, G63 254 U. S. V. Munroe, 5 Mason, 572 333 Upperton v. Nicholson, L. R. 6 Ch. 436. 296, 419, 428, 463, 485, 488, 492, 520 Vail V. Nelson, 4 Rand. 478 400 Valserv. Valser, 23 Miss. 378 79 Van V. Coi-pe, 3 My. & K. 269 308 Van Campen v. Knight, 63 Barb. 205. 400, 433, 444, 449, 474, 477 Vancouver V Bliss, 11 Ves. 458 419 VandaU v. S. F. Dock Co., 40 Cal. 83 76 Vandenbm-gh V. Spooner, L. R. 1 Ex. 316 127 Vandenankerv. Desbrough, 2 Vem. i'G 549 PAGE., Van Doren v. Robinson, 1 C. E. Green, 256 214,223,479, 480 Van Duyne v. Vreeland, 1 Beas. 142 162, 201, 269, 548 Van Epps v. Schenectady, 12 Johns. 436 437 Van Ness v. City of Washington, 4 Pet. 232 314 Van Ormand v. Merrill, 27 Iowa, 476 402 Van Schaick v. Third Av. R. R., 38 N. Y. 346 548 Vansittart v. Yansittart, 4 K;. & J. 62 27, 231 VauZandtv. New Yoi-k, 8 Bosw. 375 474, 479 Vardeman v. Lawson, 17 Tex. 10... 437 Vassar v. Camp, 11 N. Y. 441... 90, 95 Vassault v. Edwards, 43 Cal. 458. 110, 131, 237 Vaupell V. Woodward, 2 Sandf.Ch. 143 199 Verlauder v. Codd, Tum. & Riiss. 352 121 Yemou V. Keys, 12 East, 632 354 V. Stephens, 2 P. Wms. 66. 411, 443, 451 V. Vernon, 2 P. Wms. 594... 548 Very V. Levy, 13 How. 345 21 Vesey v. Elwood, 3 Dr. & War. 74. 393 Vickers v. Hand, 26 Beav. 630 488 V. Vickers, L. R. 4 Eq. 529. 213, 382 Viele V. Osgood, 8 Barb. 130.. 108, 109 v. Troy & B. R. R.,21 Barb. 3S1 26,273, 444, 466 Vigers v. Pike, 8 CI. & Fin. 562..243, 303 Vignolles v. Bowen, 12 Ir. Eq. Rep. 194 414, 517 Voorhees v. DeMeyer, 2 Barb. 37. 39, 304, 312, 504 Vouillon V. States, 2 Jur. (N. S.) 845 331, 333 Vreeland v. Blauvelt, 23 N. J. Eq. 483 278, 281, 283, 286, 421 Vyse V. Foster, L. R. 7 H. L. 318. 444 W. Wackv. Berber, 2 Wliai't. 387. 181, 182, 183. 186 TABLE OF CASES CITED. Ixix PAGE. Wadsworth v. Manning, 4 Md. 59. 368 Waldron v. Letson, 2 McCai-ter, 126. 332 Walfbrd v. Gray, 13 W. R. 335 98 "Walker v. Barnes, 3 Mad. 247 372 V. Douglass, 70 111. 445. 434, 479 V. East. Co. R'y, 6 Hare, 534 7, 43, 91, 222, 232 V. HiU, 21 N. J. Eq. 191. 55, 197; 206, 244, 400 V. Jeffreys, !■ Hare, 352. 400, 431, 457, 469, 474, 482, 492 V. Locke, 5 Cush. 90 204 V. Portland (Dk. of), 3 Ves. 444 362 V. Preswick, 2 Ves. 632 389 V. Sedgn-ick, 8 Cal. 398 346 V. Walker, 2 Atk. 100. 145, 173, 2C3, 343 V. Wheatley, 2 Humph. 119, 325 V. "Wheeler, 2 Conn. 299 410 "Wallv. Stubbs, 1 Mad. 80 296, 300 "Wallace v. Brown, 2 Stockt. Ch. 308 139,192, 341 V. McLaughlin, 57 111. 53. 413, 417, 449, 453, 520 "WaUer v. Hendon, 5 "Vin. Abr. 524. 115 "Wallis V. Sarel, 5 DeG. & Sm. 429. 500 "Wahnesley v. Booth, 2 Atk. 27 364 "Walpole (Lord) v. Oxford (Lord), 8 Ves. 402 99, 140, 207 "Walsh V. Barton, 24 Ohio St. 28. 117, 129, 417, 422 V. Hall, 66 N. C. 233 278 "Walter v. "Walter, 1 "Whart. 292 139 "Walters v. North Coal, etc. Co., 5 DeG. M. & G. 629 399 "Walton V. Coulson, 1 McLean, 120. 224, 233 V. "Wilson, 30 Miss. 576 444 "Walwyn v. Lee, 9 Ves. 33 » 14 "Wankford v. Fotherly, 2 Vem. 322. 98 "Ward V. Buckingham (Dk. of), 3 Atk. 385 20 "Ward V. JeflFrey, 4 Price, 294.. 435, 492 "Wardele v. Cai-ter, 7 Sim. 490 269 Warden v. Jones, 23 Beav. 497. 158, 188, 204 Ware V. Cowles, 24 Ala. 446 324 V. Grand Junct. etc., 2 R. & My. 470 32 PAGE. "Waring V. Ayres, 40 N. Y. 357. 215, 216, 226 V. Manchester, etc. R'y Co., 7 Hare, 492 335 "Warner V. Daniels, 1 W. & M. 90... 290 V. "White, T. Jon. 95 377 V. "Wellington, 3 Drew. 531. 83, 84, 86, 94, 111, 121, 209 "Warrall V. Dunn, 5 N. Y. 229 115 "Warren v. Daniels, 72 111. 272 12 V. Ewing, 34 Iowa, 1G3 12 V. Richmond, C3ni. 52. .372, C31 "Wason V. Colbum, 99 Mas2. 342 80 "Waterhouse v. Stansfield, 9 Hare, 234 10 "Waterman v. Meigo, 4 Gush. 497.... 126 "Waters v. Brown, 7 J. J. Marsh, 123 224 V. Howard, 1 Md. Ch. 112. 13, 24, 66 V. Travis, 9 Johns. 450. 448, 477, 504, 505 "Watkins v. Maule, 2 J. & "W. 242... 20 V. Stocket, 6 Har. & J. 445 317 "Watson V. Mahan, 20 Ind. 223 174 V. Mai-ston, 4 DcG. M. & G. 230 259, 267 V. Reid, 1 Russ. & My. 236. 469, 482, -iSO, 492 "Watt V. Evans, 4 Y. & C. Ex. 57r ... IGO "Watts V. Ainsworth, 6 L. T. (N. S.) 252 120 V. Kinney, 3 Leigh, 293 529 V. "Waddle, 1 IIcLean, 200. 219, 233, 278, 400, 415, 450 "Waul V. Kirkman, 5 Cush. S23 120 WeatheraU v. Geering, 12 Yes. 513. 407 "Webb, Estate of, 49 Cal. 543... 12, 80, 134 V. Direct London, etc. R'y Co., IDeG. M.&G. 521... GO, . 24G, 259, 2C0, 265, 411 V. Hughes, L. R. 10 Eq. 281. 444, 458, 438, 469, 470 V. Noak, 1 Edw. Ch. 604 362 "Weber v. Marshall, 19 Cal. 447 474 "Webster v. Cecil, 30 Beav. 62. 327, 329, 331, 336 V. Dillon, 3 Jur. (N. S.) 432 384 Ixx TABLE OF CASES CITKD, PAGE. ^7ebste^ v. Ela, 5 N. H. 540 126 V. Hams, 16 Ohio, 490. 332, 345 V. Tibbitts, 19 Wise. 438. 550 V. "Webster, 27 L. J. Cb. 115 188 Weddall v. Nixon, 17 Beav. 160. 289 Wedg:wood v. Adams, 6 Beav. 600. 259, 266 Weed V. Terry, 2 Doug. 344... 171, 189 Weems v. Brewer, 3 Har. & Gill. 390 423 Weir V. Mundell, 3 Brev/s. 594 20 Weise's Appeal, 72 Pa. St. 351... 53, 55, 258 Welch V. Moffat, 1 Thomp. & C. 575. 390 Welfoi-d V. Beazely, 3 Atk. 503.. 107, 122 WeUer v. Weyland, 2 Grant Cas. 103, 527 Wellesv. Yates, 44 N.Y. 525... 333, 345 Wellesley v. Wellesley, 4 My. & Cr. 554 20, 27 Wells V. Cruger, 5 Paige, 164 330 V. Maxwell, 37 Beav. 408. 458, 468, 469 V. Millett, 23 Wise. 64... 290, 292, 311 V. Smith, 2 Edw. Ch. 78...410, 411, 412, 434, 436, 453, 462, 463 V. Wells, 3 Ired. Eq. 596 466 Welsh V. Bayaud, 6 C. E. Green, 186 136, 167,173,223,373 Wemple v. Stewart, 22 Barb. 154. 332 Wentworth v. Biihler, 3 E. D. Smith, 305 130 Wesley v. Thomas, 6 Har. & Johns. 24 344 West v. Flannagan, 4 Md. 36. 155, 165, 174, 186 V. Wayne, 3 Mo. 16 44 Westmeath (Lord) v. Westmeatti (Ld.), Jac. 126 27 West Midland R'y Co. v. Nixon, 1 H. & M. 176 545 Westall v. Austin, 5 Ired. Eq. 1. 240, 423 Westbrook v. Harbeson, 2 McCord Eq. 112 : 324, 349 Westerman v. Means, 2 Jones, 97. 398, 459. 479 PAGE. Western v. Russell, 3 V. & B. 187. 108, 109, 120, 121, 239, 505 R. R. V. Babeock, 6 Met. 346 237, 273, 329 Westervelt v. Matheson, 1 HofF. Ch. 37 123, 273 Weston V. Bird, 2 W. R. 145 326 V. CoUins, 11 Jur. (N. S.) 190 459 Wethered v. Wethered, 2 Sim. 183. 42 Wetherford v. James, 2 Ala. 170... 504 Wethwold v. Walbank, 2 Ves. 276. 363 Wetmore v. White, 2 Caine's Cas. 87 159, 166, 179 Whaley v. Bagnel, 1 Bro. P. C. 345. 158 Wheatley V. Slade, 4 Sim. 126 506 v. Westminister, ete. Co., L. R. 9 Eq. 538 387 Wheaton v. Wheaton, 9 Conn. 96. 317, 322 Wheeler v. Clinton Canal Bk., Har. Ch. 449 44 . V. CoUier, 1 Mood. & Walk. 123 356 V. D'Esterre, 2 Dow, £59. 179, 218 V. Trotter, 3 Sw. 174 n.... 370 Wheeler v. Reynolds, 66 N. Y. 227. 207 Whelan v. SulUvan, 102 Mass. 204. 130, 223 V. Whelan, 3 Cow. 537 277 Whitaker v. Bond, 63 N. C. 290. 261, 275, 360 Whitbread v. Brockhurst, 1 Bro. C. C. 417. 145, 151, 156, 157, 173, 182 Whitchureh v. Bevis, 2 Bro. G. C. 409 157, 158, 191, 196, 198, 203 White Inre, 3 Sw. 108, n 259 V. Buteher, 6 Jones Eq. 231. 467 , v. Cox, 3 Hayw. 82 257, 353 V. Crew, 16 Geo. 416 168 V. Cudden, 8 CI. & Pin. 766. 114, 252 V. Damon, 7 Ves. 30 273 V. Dobson, 17 Gratt. 262. 426, 433, 460, 521 v. Flora, 2 Overton, 426. 271, 353 V. Herman, 51 111. 243... 130 215, 223, 224 v. Proctor, 4 Taunt. 209 117 TABLE OF CASES CITED. Ixxi PAGE. White V. Thompson, 1 Dev. & Bat. Eq. 493 273, 277 V. Watkins, 23 Mo. 423. 145, 150, 154, 15(3, 1G4, 169, 546, 552 V. "Wmiams, 48 Barb. 222.... 315 V. Wilson, 6 Blackf. 449 333 Wible V. Wible, 1 Grant (Pa.), 406. 166 Wicks V. Hunt, Johns. 372 534 Wiggins V. McDonald, 18 Cal. 126. 548 Wiggleswoi-th v. Steers, 1 Hen. & Mumf. 70 257 Wightman v. Reside, 2 Dessau. 578 448 Wighley v. Blackwal, Cro. Eliz. 780 376 Wilbur V. Howe, 8 Johns. 444. 358, 362 WUde V. Fox, IRand. 165 174, 175 V. Gibson, 1 H. L. Cas. 605. 290, 292, 353, 359 Wildey v. Bonney, 31 Miss. 634 171 WUkinsou v. Clements, L. R. 8 Ch. 96 402 V. Hartley, 15 Beav. 183. 491 V. Torldngton, 2 Y. & C. Ex. 726 399 Wilks V. Davis, 3 Meriv. 507...213, 369, 382 V. Smith, 10 M. & W. 360 390 Willan V. WiUan, 16 Ves. 83... 243, 314, 320, 333 Willard v. Taylor, 8 WaU. 557. 10, 11, 48, 55, 57, 60, 236,. 245, 249, 258, 261, 267, 397, 545,. 550 WiUcox V. BeHaei-s, T. & R. 491 279 Willey V. Robert, 27 Mo. 388 120 WilUam v. Bacon, 2 Gray, 387 124 Williams v. Champion, 6 Ham. 169. 504 V. Dakin, 22, Wend. 201... 69 T. Edwards, 2 Sim. 78. 462, 506, 513 Y. Evans, L. R. 19 Eo. 547 169, 175, 179 V. Glenton, L. R. 1 Ch. 200 498 V. Hart, 116 Mass. 513. 474, 479 • V. Howard, 3 Murphy, 74. 17 V. Landman, 8 Watts & S. 56 169, 17;') V. Lewis, 5 Leigh, 686 477 V. McGuire, 60 Mo. 254... 12 PAGE. Williamsv. Pope, Wright, 406 166 V. Staake, 2 B. Mon. 196. 476 V. Williams, 2 Sw. 253. 32, 45 V. Williams, 17 Beav. 213. 93 V. WilUams, 3 Mer. 157... 379 WiUiamison v. Codrington, 1 Ves. Sen. 514 80 V. Gihon, 2 Sch. & Lef. 355 362 v. Woolton, 3 Drew. 210 225, 259 Willingham v. Joyce, 3 Ves. 168.... 407 WiUink v. Vanderveer, 1 Barb. 599. 201 Willis V. Evans, 2 Ball & B. 228 198 V. Forney, 1 Busbee Eq. 236. 226, 462 V. Henderson, 4 Scam. 13. 332, 345 Williston V. WUUston, 41 Barb. 635. 185, 237, 478, 488 Wills V. Stradling, 3 Ves. 378. 145, 153. 155, 164, 165, 173, 174, 175, 179 Wilmer v. Farris, 40 Iowa, 309 173 Wihnot V. Wilkinson, 6 B. & C. 506. 403 Wilson V. Baptist Education Soc, 10 Barb. 308 81 V. Campbell, 5 Gilm. 383... 369 V. Chicago, etc. R. R., 41 Iowa, 443 105 V. Clark, 1 W. & S. 554 112 V. Clements, 3 Mass. 1 93 V. Cox, 50 Miss. 133 504 V. Fumess R'y Co., L. R. 9 Eq. 28 29, 30 V. Keating, 7 W. R. 484 22 V. Northampton, etc. R'y Co., L. R. 9 Ch. 279. 3, 29, 225 V. Short, 6 Hare, 366. 306, 309 V. Tappan, 6 Ham. 172..449, 489 V. Watts, 9 Md. 436 197 V. West Hartepool R'y Co., 2 DeG. J. & S. 475. 29, 116, 143, 149, 179, 194 V. Williams, 3 Jur. (N. S.) 810 504, 516, 523 V. Wilson, 1 H. L. Cas. 538. 27 Wilton V. Harwood, 23 Me. 131. 137, 179 Ixxii TABLE OF CASES CITED. PAGE. WineberlejT v. Bryan, 55 Geo. 198. 167 Winch V. Winchester, 1 V. &B. 375. 331, 343, 427, 428, 522 Wingate v. Bail, 2 Hai-r. & J. 76.... 192 V. Hamilton, 7 Ired. 73. 507, 529 Winn V. Albert, 2 Md. Ch. 169 136 Winne v. Reynolds, 6 Paige, 407. 449, 489, 520 Winnipisseogfee, etc. Co. v Perley, 46N. H. 83 333 Winter v. Blades, 2 S. & S. 393 497 Wintermute v. Snyder, 2 Green's Ch. 489 271, 317 Winton v. Sherman, 20 Iowa, 295. 436 Wise V. Ray, 3 Green, 430 107 Wiseman v. Roper, 1 Rep. in Ch. 154 42, 80 Wistar's Appeal, 80 Pa. St. 484 12 Wiswall V. McGowan, 1 Hoff. Ch. 126 226, 469, 502, 504, 531, 537, 540 Wiswell V. Tefft, 5 Kans. 263. 167, 223 Withy V. Cottle, 1 S. & S. 174. 6, 7, 25, 232, 456 Witman Min. Co. v. Baker, 3 Nev. 386 76 Witter V. Briscoe, 13 Ark. 422 437 Wolfe V. Frost, 4 Sandf. Ch. 72. 154, 156, 165, 181 V. Leeyster, 1 Hall. 146 358 Wolford V. HeiTington, 24 P. P. Smith, 311 196, 203 Wood V. Abrey, 3 Mad. 417 269 V. Bernal, 19 Ves. 220... 487, 492, 516 V. Cone, 7 Paige, 472 388 V. Farmare, 10 Watts, 195. 164, 166, 167, 193 V. Griffith, 1 Sw. 54. 26, 365, 505 V. Jones, 35 Tex. 64 1.59 V. Keyes, 8 Paige, 419 388 V. Machu, 5 Hare, 158 492 V. Midgley, 5 DeG. M. & G. 41 121, 124, 207 V. Patterson, 4 Md. Ch. 335... 322 V. PeiTy, 1 Barb. 114... 400, 546 V. Price, 46 111. 439 317 V. Richardson, 4 Beav. 174... 252 V. RowcUffe, 3 Hare, 304. 14, 19 V. Savage, 2 Doug. 316 136 PAGE. Wood V. Scarth, 2 K. & J. 33... 120, 331, 338 V. Shepherd, 2 Pat. & Heath, 442 26 V. Thomby,58I11.464... 173, 180 V. White, 4 My. & Cr. 460.... 545 Woodbury V. Ludy, 14 Allen, 1 528 Sav. Bank v. Ins. Co., 31 Conn. 517... 333, 336 Woodcock V. Bennett, 1 Cow. 711. 304, 312, 372, 538, 540 Wooden v. Haviland, 18 Conn. 101, 332, 344 Woodhonsev. Shipley, 2 Atk. 535... 362 Woodroffe v. Fai-nhain, 2 Vei-n. 291. 361 Woods V. DiUe, 11 Ohio, 455 199 V. HaU, 1 Dev. Eq 415 356 Woodson V. Barrett, 2 Hen. & Mun. 80 361 V. Scott, 1 Dana, 470..„... 436 Woodward v. AspinwaU, 3 Sandf. 272 25, 109, 237 V. Gyles, 2 Vern. 119.... 69 V. Harris, 2 Barb. 439. 229, 237, 502, 540 V. Miller, 2 Coll. C. C. 279 356 Woollamv. Hearn, 7 Ves. 211 343 Workman v. Guthi-ie, 5 Casey, 495. 155, 170, 174, 325, 348 Worley V. Frampton, 5 Hare, 560... 406 V. Tuggle, 4 Bush. 168. 138, 319, 345, 348 Wormley v. Wormley, 8 Wheat. 421 253 Worrall v. Munn, 5 N. Y. 229. 109, 338 Worth V. Case, 42 N. Y. 362 271 Worthington v. Warrington, 5 C. B. 635 219 Wright V. Bell, 5 Price, 328 8, 25, 44, 66 V. Bigg, 15 Beav. 592 96 V. Cobb, 5 Sneed, 143 135 V. Howard, 1 S. & S. 190. 418, 457, 519 V. King, Han-ing Ch. 12 109 V. Pucket, 22 Gratt. 370. 12, 147, 151 V. Thompson, 14 Tex. 558... 391 V. Tinsley, 30 Mo. 389 268 V. Weeks, 3 Bosw. 372 133 TABLE OF CASKS CITED. Ixxili P.VGK. "Wright V. 'Wilson, 2 Yerg. 294 271 V. Wright, 1 Ves. Sen. 409. 42 V. Wright, 31 Mich. 380. 192, 223 V. Young, 6 Wise. 127 504 Wrigley V. Sykes, 21 Beav. 337 283 Wuesthoff V. Seymoui', 7 C. E. Green, 66 310 Wurizburger v. Meric, 20 La. An. 415 332 Wyche v. Greene, 16 Geo. 49 332 Wycherley v. Wycherley, 2 Eden. 177 80 Wycombe R'y Co. v, Downington Hosp., L. R. 1 Ch. 268 61, 335 Wynu V. Garland, 19 Ark. 23 186 V. Morgan, 7 Ves. 202 489 V. Smith, 40 Geo. 457 12 Wynne v. Price, 3 DeG. & Sm. 310 22 Wyville v. Bishop of Exeter, 1 Price, 292 393, 398 Yates V. Compton, 2 P. Wms. 308. 388 V. De Bogert, 56 N. Y. 526... 76 PAGE, Yeaby V. Grigsby, 9 Leigh, 387..106, 11") Yoakum v. Yoakum, 77 111. 85 VI Yost V. Devault, 9 Iowa, 60 528 Youell V. Allen, 18 Mich. 108 372 Young V. Burton, 1 MoMullan Eq. 256 17 V. Clarke, Prec in Ch. 538. 276, 352 V. Coleman, 43 Mo. 179 333 V. Covitt, 8 Johns. 23 296 V. Daniels, 2 Iowa, 126. 433, 435, 446, 467 V. Glendenning, 6 Watts, 509 185, 186 V. MiUer, 10 Ohio, 85 319 V. Paul, 2 Stock. Ch. 401. 109, 373, 507, 529 V. Rathbone, 1 C. E. Gi-een, 224 279, 465 Yulee V. Canova, 11 Flor. 9 13 Zebley v. Sears, 38 Iowa, 507. 374, 504, 507, 529 Zimmerman v. Wangert, 31 Pa. St. 401 170 SPECIFIC PEEFORMANCE OF CONTRACTS. INTEODUCTOEY CHAPTER Section 1. The Specific Performance of Contracts is purely a remedy administered by courts having equitable jurisdiction, and the right to it, held and enforced by a contracting party, is purely a remedial right. All the private rights and duties comprised in the municipal law — except in that very small portion which simply defines the status of persons — are separated, from their intrinsic nature, into two generic classes, primary and remedial — or, to use the somewhat fanciful nomenclature of Bentham and his school, substan- tive and adjective. Primary rights and duties flow from the com- mands or rules which constitute the great body of Ihs private law ; they are the objects and ends for which the law itself is established ; they apply to and regulate all the normal relations of the individual with his fellows ; they do not result from any delicts or violations of the law, but exist prior to and wholly independent of all such wrongful acts or omissions. If obedience to the law were absolutely perfect, these primary rights and duties are the only ones with which juris- prudence would be practically concerned. Disobedience, however, is possible and constant ; primary rights are violated and primary duties unperformed. Hence there arises the second grand division of remedial rights and duties, which spring immediately and exclusively from those acts and omissions which are violations of primary rights and duties, that is, from delicts, wrongs, or offenses. A remedial right is, therefore, a right to obtain some remedy, conferred by the law upon the holder of a primary right which has been broken, and a remedial duty is the corresponding duty to grant or permit such remedy, devolving upon the wrong-doer, as the consequence of his delict. (1) In the English system of administering justice, which (1) See Austen, Lect. on Jurisp. yol, 2, pp. 450-453 (Eng. ed. of 1863) ; Pomeroy pn Reroedies, §§ 1, 3. 2 SPECIFIC PERFOHMANCE OF CONTRACTS. prevails throughout the United States, all civil remedies and the corresponding remedial rights, except a very few special kinds, are separated into two divisions, respectively denominated the legal and the equitable, because during the integrity of the system, while its peculiar methods were kept unaltered, and before the sweeping reforms introduced by modern legislation, the one class were adminis- tered by the courts of law alone, and the other by the courts of equity. The change recently made in the very principles of the old procedure, which has consolidated the two courts into one tribunal, and which permits legal and equitable remedial rights to be enforced and legal and equitable remedies to be obtained in the same action, will doubtless tend to obliterate the line which has hitherto dis- tinguished the two classes in our legal nomenclature, although all the individual remedies themselves will remain unaffected by the statu- tory modifications which relate solely to the means of obtaining them through judicial action. Sec. 2. In every contract, however simple or however complicated, the primary right of the party who is to receive the benefit, is always a right to have the very thing done or omitted which the other party has promised to do or to omit — a right to the specific acts or forbear- ances for which the agreement stipulates ; and the corresponding primary duty of the party on whom the obligation rests, is to do or to omit exactly what he has undertaken to do or to omit. In other words, the terms of the contract itself in every instance dfefine the nature and extent of the primary rights and duties — varying beyond the possibility of description or enumeration — which result from it. If the contract is merely for the payment of a certain sum of money, the right is to receive such payment; if it is for the conveyance of a tract of land, the right is to obtain such conveyance ; if it is for the erection of a house in a specified manner, the right is to have the house erected in that manner ; if it is for prescribed personal services to be rendered by the other party, the right is to those very services as stipulated; and so on through the numberless forms iil which persons may bind themselves by their agreements. When, however, the contract is broken, by the party upon whom the obligation of it rests, and the primary right, whatever it may be, of the other party is invaded, a remedial right at once accrues to him, and a remedial duty is imposed upon the former,, both of which the law will enforce by means of a judicial proceeding. From the dual nature of the English law courts, from the highly technical and arbitrary forms of its actions and pleadings, and no doubt from a certain narrovifness and INTRODUCTOlir CHAPTER. 3 rigidity which per/aded the entire system itself, the common law gave and still gives but one kiiid of remedy, one species of remedial right and duty for the breach of all contracts. This single remedy is a sum of money paid by the wrong-doer; this single remedial right is the right to compel such payment ; this single remedial duty is the duty to make such payment. If the contract consists, on the one side, simply of a promise or obligation to pay a definite sum of money — in other words, if it creates a debt — the remedial right of the creditor is identical with his primary right ; and the remedy is in reality a specific performance. In all other possible contracts, the remedy is in the nature of damages given purely as a compensation, and the remedial right is plainly a substitute, or rather an equivalent, for the primary right which has been violated. (1) This legal remedial right is universal and absolute. "Whenever a contract, valid and binding at law, has been broken, the right to recover either the debt or the compensatory damages in some amount, although perhaps only nominal, invariably arises, and will constitute a sufficient ground of action in a court of law. Sec. 3. In the innumerable variety of relations incident to modern society, contracts will necessarily be made for whose breach this mere pecuniary payment would be an utterly inadequate and often imprac- ticable relief ; and a system of municipal law, which provided no other kind, would fail in maintaining and dispensing the justice which is the great object of all enlightened jurisprudence. As the law courts were either unable or unwilling to deviate from the methods which they had originally adopted, the court of chancery was compelled to supply the deficiency, and to administer the only remedy which is just and adequate and even practicable in many classes of violated agreements. Hence there arose at an early day the jurisdiction of chancery to enforce the equitable remedy of specific performance, as applied to contracts. (2) It consists in the contracting party's exact (1) See langTiage of V. C. Stuart, in Oi-d -y. Johnston, 1 Jur. N. S. 1063, 1064. (2) The nature and oVjject of this equitable remedy was summed up in one sentence by Ld. Chan. Selboknb, in the I'eeent case of Wilson v. Northampton, etc. R'y Co., L, R. 9 Ch. 279, 284 : "The principle which is material to be con- sidered is, that the court gives specific performance instead of damages, only when it can by that means do more perfect and complete justice.'' The founda- tion and measure of the jurisdiction is the desire to do justice, which the legal • remedy would fail to give. This justice is primarily due to the plaintiff, but not .exclusively, for the equities of the defendant are also taken into consideration and pi'otected. Specific pei'formance is therefore a conscious attempt on the part of the court to do complete justice to both the parties with respect to all the juridical relations growing out of the contract between them. 4 SPECIFIC PERFORMANCE OF CONTRACTS. fulfillment of the obligation which he has assumed— in his doing or omitting the very acts which he has undertaken to do or omit. The remedial right and duty are thus made identical with the primary right and duty, and the party is thereby deprived of the option, which the law practically gives him, to disregard the actual obliga- tion by which he is bound, and to pay a sum of money in place thereof. While law and equity remained in their original condition, as two distinct and partially independent systems, the remedy of Bpeciflc performance could only be obtained by means of a suit brought for that purpose in a court possessing the equity jurisdiction. Under the reformed procedure it may still be obtained by a party plaintiff in a similar manner; but it will also be granted to the defendant in a legal action who sets forth a proper case for the affirm- ative equitable relief in his answer or counterclaim. Sec. 4. The right to this equitable remedy, however, is neither universal nor absolute. Specific performance has not supplanted the legal relief of compensation, nor has it been extended to all kinds of contracts. It is strictly an ancillary and supplementary remedy, and is confined to those classes of agreements for whose breach the mere payment of pecuniary damages is acknowledged to be either imprac- ticable or inadequate. The reasons which first led the court of chancery to interfere and specifically enforce the terms of any con- tract, have been steadily kept in view by the tribunals of equitable jurisdiction in all their subsequent applications of the doctrine to new relations and under new circumstances, and have constantly guided and restrained them in the administration of this particular branch of their judicial functions. Furthermore, the right to the remedy of specific performance is not absolute, even within the species of con- tracts to which it has been confined. In the common but somewhat misleading language of the decided cases, it is said to be " discretion- ary." The exact meaning of this term, or rather the conditions and limitations which it is intended to express, will be fully discussed and explained in the subsequent chapters ; it is enough now to say that courts may be prevented or deterred from decreeing the specific performance of a valid and binding contract by circumstances and contingencies connected with its subject-matter, its terms, or the relations of its parties with each other, or with third persons, which would not constitute the slightest obstacle or objection to the recovery of a judgment for damages in courts of law. In the absence, however,' of any of these circumstances or contingencies, it may be said to be S.S much a matter of course for courts of equity to specifically enforce iNTRODUCrORY CHAPTER. 5 certain varieties of agreements — especially those for the sale of lands — as for these courts to grant any other relief within the range of their jurisdiction. The two propositions which have been thus stated in a general manner, that specific performance is not universal, but is an equitable remedy ancillary and supplementary to the legal relief of damages, and that it is not legally absolute but discretionary to the extent of being c'ontrolled by equitable considerations, are funda- mental ; from them are derived, more or less directly, nearly all the subordinate rules which make up the head of equity jurisdiction, to be discussed in the present work. Sec. 5. The discussion of the principles and doctrines which I have thus briefly indicated, will be pursued in the following order : I. The nature, extent, and limitations of the remedial right to a specific performance of contracts. II. The nature, elements, and incidents of contracts, in order that they may be specifically enforced. III. Acts or omissions of the parties, and other facts, done or occurring subsequently to the conclusion of the contract, which affect the right to a specific performance. IV. Rules of procedure, which are peculiar to the suit for a specific performance, and special statutory provisions of the various states, either regulating the general jurisdiction or prescribing summary proceedings in certain cases. SPMCIFIO PERFOhUANCS OF CONTRACTS. CHAPTER I. GENERA.L NATURE, EXTENT AND LIMITATIONS OF THE RIGHT TO A SPECIFIC PERFORMANCE OP CONTRACTS. SECTION I. Is an ancillary and supplementary equitable remedy. Sec. 6. All contracts may be reduced to three forms. First. Where there is simply a promise to pay money on one side in consideration of a similar payment or promise to pay on the other. Second. Where there is a promise to do or to omit some act or acts on one side, in consideration simply of a promise to pay or a payment of money on the other ; and Third. Where there is a promise tb do or to omit some act or acts on one side, in consideration of the doing or the undertak- ing to do certain acts, which may, perhaps, include a money payment on the other. It is very plain that in all contracts falling within the first class, which only call for a pecuniary payment from either party, the legal remedy of a money judgment will always be possible and sufficient, and there will be no occasion for invoking the interposition of equity. Specific performance is confined to agreements of the two other classes. In those which form the second division, it might be supposed from the general principles heretofore stated, that only the party who is to receive the benefit of the acts or omissions promised by the other, could resort to equity and enforce their specific per- formance according to the terms of the undertaking, while the party who is to receive the benefit of the money payment would be left to his legal remedy — the recovery of a money judgment in a common- law action. This supposition, however logical it may appear, is pre- vented by a well established doctrine of equity, that the right to a specific performance, if it exists at all, is, and necessarily must be, mutual ; — in other words, it is and must be held, and be capable of being enjoyed alike by both parties in every agreement to which the jurisdiction extends.(l) As a familiar example, in the simplest form (1) This doctrine of mutuality will be fully discussed in subsequent sections. It is sufficient now to cite a few cases in which it is reeog-flized and enforced. Adderley i). Dixon, -1 S. & S. 607 ; Withy v. Cottle, 1 S. & S. 174 ; Kenney v. Wexham, 6 Mad. 3S5, 357; Cog-ent v. Gibson, 33 Beav. ,'557 ; Old Colony R. R. u Evans, 6 Gi'ay, 23 ; Cook v. Grant, 16 S. & R. 198, 209 ; Brown v. Haff, 5 Paige, 235 ; Phillips v. Berger, 8 Barb. 528 ; Hamblin v. Dinneford, 2 Edw. Ch. 531. EXTENT AND LJJIITATIONS. 7 of contract for the sale of land, when the vendor agrees to convey, and the purchaser merely promises to pay a certain sum as the price, since the latter may, by a suit at equity, compel the execution and delivery of the deed, the former may also, by a similar suit, enforce the undertaking of the vendee, although the substantial part of his relief is the. recovery of money. (1) On the same principle a person who has agreed to sell certain claims against a debtor,(2) or an aimuity,(3) or a patent right,(4) may enforce the purchaser's promise to pay the price in equity, becauce the purchaser on his part can, by the same means, compel an assignment of the things in action agreed to be sold. It should be observed, however, that in these suits by the vendor, there is generally some other act to be done by the purchaser besides the simple payment of money, the performance of which may be enforced by the decree, and even in those cases when no such act has been undertaken by him in the contract, he may be compelled to accept the deed, or assignment or other subject-matter as well as to pay the price, so that the decree is not purely one for the recovery of money. In all the contracts composing the third class, there can be no doubt or difficulty ; a specific performance is plainly possible in favor of either party against the other. The simplest illustration is an agreement to exchange certain lands made by the two proprietors. Sec. 7. Different reasons for the exercise of the equitable jurisdic- tion have been given, in former times, by able judges. Thus, Lord Harbwicke is reported to have said :(5) " In general this court will not entertain a bill for a specific performance of contracts of stock, corn, hops, etc. ; for as these are contracts which relate to merchan- dise, which va7'i/ according to different times and circumstances, if a court of equity should admit such bills, it might drive on the parties to the execution of a contract to the ruin of one side, when upon an action (at law) that party might not have paid, perhaps, above a shilling dam- ages. * * * As to the cases of contracts for the purchase of lands (1) Old Colony R. R. v. Evans, 6 Gray, 25 ; Hopper v. Hopper, 1 C. E. Gi-een, 147 ; Schroeppel v. Hopper, 40 BarT). 425 ; Springs v. Sanders, Phill. Eq. (N. C.) 67 ; Clifford V. Turrell, 1 Y.*& C. C. C. 138, 150 ; Walker v. Eastern Counties R'y Co., 6 Ha. 594. But the contrary is held in Massachusetts under the statutoi-y limitations upon the equity jurisdiction in that state. A vendor who has agreed to sell his land for a specified sum of money, cannot maintain a suit in equity for a specific performance, because, as it is said, he can recover the price in an action at law. Jones v. Newhall, 115 Mass. 244. (2) Adderley v. Dixon, 1 S. & S. 607 . . (3) Withy V. Cottle, 1 S. & S. 174 ; Kenney u. Wexham, 6 Mad. 855, 357. (4) Cogent v. Gibson, 33 I5c!i,v. 557. (.)) Button V. Lister, 3 Atk. 384. 8 SPECIFIC PERFORMANCE OF CONTRACTS. or things that relate to realties, those are of a permanent nature ; and if a person agrees to purchase them, it is on a particular liking to the land, and is quite a different thing from matters in the way of trade." If, as Lord Hardwicke here says, the fluctuating value of certain commodities is the reason why contracts concerning them are not to be specifically enforced, it is plain that the same objection must also apply to contracts for the sale of land, in those cases" jjfhere its market value is not permanent, or at least confined in its variation between any narrow limits. (1) The grounds of the jurisdiction have been more accurately and comprehensively stated by Sir John Leach,(2) as follows: "Courts of Equity decree the specific performance of con- tracts, not upon any distinction between reality and personalty, but because damages at law may not, in the particular case, afford a com- plete remedy. Thus a court of equity decrees performance of a contract for land, not because of the real nature of the land, but because damages at law, which must be calculated upon the general money value of the land, may not be a complete remedy to the purchaser, to whom the land may have a peculiar and special value. So a coiu't of equity will not generally decree performance of a con- tract for the sale of stock or goods, not because of their personal nature, but because damages at law, calculated upon the market price of the stock or goods, are as complete a remedy to the purchaser as the delivery 'of the stock or goods contracted for ; inasmuch as with the damages he may purchase the same quantity of the like stock or goods."(3) Sec. 8. The foregoing language of Sir John Leach is a very clear and correct statement of the doctrine in its most general terms, but is not exhaustive ; it gives no rules by which we may finally determine for all cases, where the legal relief of damages will be considered (1) See remarks of Richards, C.B., in Wright v. Bell, 5 Price, 328, 329. In this country, where the price of land is extremely fluctuating', the reasons of Lord Hardwicke, would, if logically carried out, defeat the specific performance of most land contracts. (2) Adderly v. Dixon, 1 S. & S. 610. * (3) See Ord v. Johnston, 1 Jui'. N. S. 1068, 10G4, per V. C. Stuart. "The juris- diction of specitic performance is one which is always said to be discretionary in the court. It is a jurisdiction assumed by this court for the more perfect administration of justice, for giving to persons having a light under an agree- ment, the very specific thing according to the provisions of the agreement, and is intended to give more effectual relief in the case to which it applies — because according to proceedings of courts of law upon the breach of an agreement, what a court of law does is to give compensation in money which shall amoiftit to an equivalent to that which the agreement had stipulated should be pei-formed." EXTENT AND LIMITATIONS. -Q incufScient, so that a resort may be had to the equitable remedy. From a comparison of the authorities, aucieiit and modern, the cases of insufficiency of damages, which admit a recourse to equity for a specific enforcement of the contract, are reducible to two distinct classes — or, in other words, the insufficiency of damages as a remedy may be referred to two distinct grounds connected with the contract. 1. The first is where the subject-matter of the contract is of such a special nature, or of such a peculiar value, that the damages, when ascertained according to legal rules, would not be a just and reason- able substitute for or representation of that subject-matter in the hands of the party who is entitled to its benefit — or, in brief, where the damages are inadequate. 2. The second is where from some special and practical features or incidents of the contract inhering either in its subject-matter, in its terms, or in the relations of the parties, it is impossible to arrive at a legal measure of damages at all, or at least with any sufficient degree of certainty, so that no real compensation can be obtained by means of an action at law — or, in brief, where damages are impracticable. All the particular instances in which a specific performance is decreed may be referred to one or the other of these two causes, and it will not unfrequently happen that both are involved in the facts of one and the same case. I shall now proceed to illustrate these two propositions, and in this manner exhibit more clearly the ancillary and supplementary character of the remedy. Sec. 9. First. Inadequacy of the damages. Contracts concerning land. The law in estimating the damages for the breach of any contract, bases them upon the general value of the subject-matter, its value to persons generally, and makes no account of any special value which it may have for the contracting party, or of any relations which may exist between it and him. If, therefore, he enters into the. agree- ment from some motives of personal gratification, or with the design of making some particular use of the subject-matter, or for some special object which cannot be represented by money, it is plain that with respect to these features and incidents of the contract, the law does not assume to give him a remedy. His interests can only be satisfied by an actual fulfillment of the stipulations which have been made for his benefit ; for example, by an actual conveyance of the land or chattel which he has purchased.(l) If money were in all (1) Harnitt v. Yielding, 2 Sch. & Lef. 549, ."iSS, 554; Adderley v. Dixon, 1 S. & S. 607 ; Cud v. Rulter, 1 P. Wms. 570, 571 ; HoUis v. Edwards, 1 Vern. 159 ; Duff V. Fisher, 15 Cal. 375 ; McGarvey v. Hall, 23 Cal. 140 ; Kirksey v. Fike, 27 Ala. 10 SPECIFIC PEKFOEMANCE OF CONTRACTS. cases a measure of the injury done by the non-fulfillment of a con- tract, it is evident that an exact equivalent for the wrong might always be rendered by means of damages. But money is an exact equivalent only where by money the loss sustained through the breach can be fully restored. As in a contract for the purchase of merchan- dise, where there is nothing to impress a peculiar value upon the identical articles, the purchaser can, with the damages which he has recovered, go into the market and buy other goods of exactly the same quality, kind and amount, and so his loss is fully compensated. In many cases, however, the ability of money to purchase an exact equiva- lent does not exist. One landed estate, though of precisely the same market value as another, may be entirely different in every other circumstance that makes it an object of desire. The vendee in a land contract may recover back the purchase money which he has paid, and with the damages which he thus receives he may purchase another 3S3 ; Neville v. Merchants Ins. Co., 19 Ohio, 452 ; Barnes v. Barnes, 65 N. C. 261 ; Willard v. Tayloe, 8 Wall. 557 ; Richmond v. Dubuque, etc. R. R., 33 Iowa, 422 ; Soinevby ti. Buntin, 118 Mass. 279 ; Bogan v. Daughdrill, 51 Ala. 312; Blanchard V. Detroit, etc. R. R., 31 Mich. 44. Among- the contracts concerning' land which are constantly enforced in equity by a decree of specific performance, are agree- ments to give or to renew a lease. Fui'nival v. Crew, 3 Atk. 83, 87 ; Ti-itton t). Foote, 2 Bi-o. Ch. 636 ; 2 Cox, 174; Burke v. Smyth, 3 Jon. & Lat. 193 ; Moss v. Barton, L. R. 1 Eq. 474 ; Buckland v. Papillon, L. R. 2 Ch. 67. But the agi'ee- ment must be certain and complete. Robinson v. Kettletas. 4 Edw. Ch. 67 ; "Whit- lock V. Duffield, 1 Hoft'. Ch. 110. For cases where the specific enforcement of such agreements has been refused for different reasons, see Myers v. Forbes, 24 Md. 598 ; Gelston v. Sigmund, 27 Md. 334 ; McKibbin v. Brown, 1 McCarter, 13 ; Hopkins v. Gilman, 22 Wise. 476. In relation to the enforcement of contracts for mortgages, see DePierres v. Thorn, 4 Bosw. 266 ; City, etc., Ins. Co. v. Olmsted, 33 Conn. 476 ; St. Paul Division v. Brown, 11 Minn. 356 ; McClintock v. Laing, 22 Mich. 212 ; Ashton v. Corrigan, L. R. 13 Eq. 76 ; Hermann v- Hodges, L. R. 16 Eq. 18. If the party defendant is within the jurisdiction, so as to be reached by process, a court of equity will decree the specific performance of a contract con- cerning land situated in another country or state, since the decree is- ire personam and not in rem. Earl of Athol v. Earl Derby, 1 Ch. Cas. 221 ; Toller v. Carteret, 2 Vern. 495 ; Penn v. Lord Baltimore, 1 Ves. Sen. 444 ; Portlarlington v. Soulby, 3 Myl. & K. 104 ; Archer v. Preston, 1 Eq. Cas. Abr. 133 ; 1 Vern. 77 ; Massie v. Watts, 6 Cranch, 148, 158 ; Sutphen v. Fowler, 9 Paige, 280 ; Myres v. DeMier, 4 Daly, 343 ; DeKyln v. Watkins, 3 Sandf. Ch. 185 ; Shattuck v. "Cassidy, 3 Edw. Ch. 152 ; Mead v. Merritt, 2 Paige, 402 ; Pingree v. Coffin, 12 Gray, 288 ; Brown V. Desmond, 100 Mass. 269 ; Davis v. Parker, 14 Allen, 94 ; Guen-ant v. Fowler, 1 Hen. & Munf 4. For certain limitations upon this doctrine, see Moms v. Rem- ington, 1 Parsons Eq. 387 ; Blount v. Blount, 1 Hawks, 365 ; Penn v. Hayward, 14 Ohio St. 302 ; Waterhouse t). Stansfield, 9 Hare, 234. Specific perfoi'mance may be decreed and title vested where the land is within the state, although the vendor is out of the j ui-isdiction. Rourke v. McLaughlin, 88 Cal. 196 ; Matteson V. Scotield, 27 Wise. 671. EXTENT AND LUHTATIONS. H e^t^'te of equal market value, but then there may be numerous features and incidents connected with the former tract which induced him to purchase, which made it to him peculiarly desirable, but which were not taken into account in tlie estimate of his damages, and which cannot be found in any other land which he may buy with the money. It is evident that in this and similar cases there would be a failure of justice unless some other jurisdiction supplemented that of the common law, by compelling the defaulting party to do that which in conscience he is bound to do, namely, actually and specifically to perform his agreement. (1) Sec. 10. The ancillary and supplementary nature of the remedy is well illustrated by the rules which have been established in relation to the specific enforcement of contracts concerning real and personal property, especially those which provide for the sale, assignment, or transfer of property. It is well settled, as appears by citations already made, (2) that the different modes of treating the two kinds of contracts does not result from any different qualities inherent in the very nature of land and chattels, which make it possible to enforce the one and not the other, but from matters which are entirely inci- dental and collateral to th'e subject-matter. When, therefore, these incidental circumstances are found in connection with a contract relat- ing to chattels, it would be specifically enforced by equity, as though it related to land. Where land, or any estate therein, is the subject- matter of the agreement, the equitable jurisdiction is firmly. estab- lished. Whenever a contract concerning real property is in its nature and incidents entirely unobjectionable — that is, when it possesses none of those features which, as Ave shall see, appeal to the discretion of the court — it is as much a matter of course for a court of equity to decree a specific performance of it, as it is for a court of law to give damages for the breach of it. (3) The reasons which have led the (1) The foundation of the jui'isdiction to decree the specific perfoi-mance of con- tracts, is simply this, that an award of damages at law will not give a party the compensation to which he is entitled ; that is, will not put him in a situation as beneficial to him as if the agreement were specifically performed. Harnett v. Yeilding, 2 Sch. & Lef. 553 ; Phillips v. Berger, 2 Barb. 608 ; 8 id. 527 ; Phyfe t). Warden, 2 Eilw. Ch. 47; Stuyvesant v. Mayor, etc., 11 Paige, 414; Nevitt v. Gillespie, 1 How. Miss. 108 ; Barnes v. Barnes, 65 N. C. 261 ; ■Willardt). Tayloe, 8 Wall. 557; Richmond v. Dubuque, etc. R. R., 33 Iowa, 422 ; Somerby v. Buntin, 118 Mass. 279; Bogan v. Daughdrill, 51 Ala. 312; Blanchard v. Detroit, et>c. R. R.. 31 Mich. 44 ; Duff «. Fisher, 15 Cal. 375 ; McGarvey v. Hall, 23 Cal. 141 ; Schi'oeppel v. Hnpper, 40 Barb. 425. (2) See Adderley v. Dixon, 1 S. & S. 610, per Sir Jons Leach, V. C. (3) Hall V. Warren, 9 Ves. 608 ; Old Colony R. R. v. Evans, 6 Gray, 36 ; Story's Eq. Jur. § 751. What agreement creates a charge upon one's land in favor of 12 SPECIFIC PERFORMANCE OF CONTRACTS. courts to hold that damages are an inadequate compensation for the breach of contracts concerning land have already been stated. Undoubtedly there are cases where the reasons have no actual appli- cation and force. Land is often, especially in this country, bought and held simply as merchandise, for mere purposes of pecuniary profit, possessing no interest in the eyes of the purchaser and owner other than its market value. The jurisdiction, however, extends to these cases. The rule having been once established, is now universal. The actual motives and design of the purchaser are never enquired into, for it is assumed in every instance that damages are an inade- quate relief for the breach of a land contract. Sec. 11. Contracts concerning chattels. The doctrine is equally well settled that, in general, a court of equitable jurisdiction will not decree the specific performance of contracts relating to chattels, because there is not any specific quality in the individual articles which gives them a special value to the contracting party, and their money value recovered as damages will enable him to purchase others in the market of like kind and quality. To this may be added the fact that the law itself gives a remedy by which the possession of a specific another, which will be enforced by a specific performance, see Johnson v. Johnson, 40 Md. 189. A county may enforce a dedication of land made to it, by a suit and decree of specific performance. Reese v. Lee Co., 49 Miss. .639. The following- are instances of various agreements concerning land which have been specifically enforced. Bleakley's Appeal, 66 Pa. St. 187 ; Seichrist's Appeal, ib. 237 ; Wynn V. Smith, 40 Geo. 457 ; Porter v. Allen, 54 Geo. 623 ; Yoakum v. Yoakum, 77 111. 85 ; Page Co. v. American, etc. Co., 41 Iowa, 115 ; Riddle v. Cameron, 50 Ala. 263 ; Rawlins v. Shropshire, 45 Geo. 182 ; Brown v. Crane, 47 Geo. 483 ; Chicago, etc. R. R. V. Nichols, 57 111. 464 ; Snyder v. Spaulding, ib. 480 ; Law v. Henry, 39 Ind. 414 ; Warren v. Ewing, 34 Iowa, 168 ; McNamee v. Withers, 37 Md. 171 ; Hayes v. Harmony Grove Cemetery, 108 Mass. 400; Chartier v. Marshall, 51 N. H. 400; Green v. Richards, 23 N. J. Eq. 32, 536 ; McDavit v. Pierrepoint, ib. 42 ; Prey v. Boylan, ib. 90 ; Pinner v. Shai-p, ib. 274 ; Colgate v. Colgate, ib. 372 ; Millard v. Mei-win, ib. 419 ; McClaskey v. Mayor, etc., 64 Barb. 310 ; Grier v. Rhyne, 69 N. Q 347; Rogers v. Williams, 8 Phila. 123; Wright v. Pucket, 22 Gratt. 370; Ambrouse v. Keller, 22 Gratt. 769 ; Estes v. Furlong, 59 111. 298 ; Hamilton v. Rook, 62 111. 139 ; Au Gres Boom Co. v. Whitney, 26 Mich. 42 ; Warren v. Daniels, 72 111. 272 ; Kuhn v. Freeman, 15 Kans. 423 ; Reynolds v. O'Neil, 26 N. J. Eq. 223 ; Williams v. McGuire, 60 Mo. 254. An agreement to give a lease will be enforced in behalf of the intended lessee. See Clark v. Clark, 49 Cal. 586. And in Texas an agreemet to convey a " locative interest " will be enfoi-ced in favor of the heirs of the "locator." Bell v. Warren, 39 Tex. 106. For instances of the specific enforcement of family settlements, see Wistar's Appeal, 80 Pa. St. 484 ; Henry v. Henry, 27 Ohio St. 121 ; and of trusts, see Chapman ■B.Wilbur, 4 Oreg. 362 ; Dodge v. Wellman, 1 Abb. App. Dec. 512 ; Estate of Webb, 49 Cal. 542. A bond to con- vey land will be specifically enforced against the obligor. See Ewins v. Gordon 49 N. H. 444. EXTENT AND LIMITATIONS. 13 chattel may, under ordinary circumstances, be recovered by the pro- prietor.(l) It should be borne in mind, however, that no distinction (1) Cud V. Rutter, 1 P. Wms. 570 ; 2 Eq. Cos. Abr. 18 pi. 8 ; Nutbrown v. Thornton, 10 Ves. 161, per Lord Eldon ; Adderley v. Dixon, 1 S. & S. 610, per Sir JoHif Leach ; Buxton v. Lister, 3 Atk. 384, per Lord Hakdwicke ; Cappur v. Harris, Bumb. 135, per Gilbert, B. j Caldwell v. Myers, Hardin, 551 ; Madison V. Chinn, 3 J. J. Marsh. 230 ; Dalzell v. Crawford, 2 Pa. L. J. 17, 19 ; Ins. Co. of N. A. V. Union Canal Co., 2 Pa. L. J. 65, 67 ; Savery v. Spence, 13 Ala. £61 ; Bubier v. Bubier, 24 Me. 42 ; The Justices v. Croft, 18 Geo. 473 ; Roundtree v. MeLain, 1 Hemp. 245 ; Waters v. Howard, 1 Md. Ch. 112 ; Hoy v. Hansborough, 1 Freem. Ch. 533, 543 ; Cowles v. Whitman, 10 Conn. 121, 124 ; Bi-own v. GiUiland, 3 Dessau. 539, 541 ; Gram v. Stebbins, 6 Paige, 124 ; Austin v. Gillaspie, 1 Jones Eq. 261 ; Ashe v. Johnson, 2 Jones Eq. 149 ; Ferguson v. P.tschall, 11 Mo. 267 ; Phillips V. Berber, 2 Barb. 609 ; 8 id. 527 ; Scott v. Billgerry, 40 Miss. 119 ; McLaughlin v. Piatti. 27 Cal. 451 ; but, see Yulee v. Canova, 11 Flor. 9. In Phillips 11. Berger, 2 Barb. 609, the docti-ine, as stated in the text, was admitted but was shai-ply criticised as founded upon reasons which had ceased to be of any real force, per Edmunds, J. The jurisdiction of this court in compelling a specific pei'formance of contracts relating to lands, is pretty well settled ; but not so in i-egard to pei-sonal contracts — that is, contracts for personal acts, or for the pale and delivery of pei'sonal property. The reason for the distinction between the two classes of contracts has long since passed away. Yet the distinction still in a great measure remains. Judge Story, with great propriety, in his Com- mentaiies on Equity Jurisprudence, remarks, that thei-e is no reasonable objec- tion to allowing the party who is injured by the breach to have an election eiyier to take damages at law, or to have a specific pei-formance in equity. The courts have not yet gone that length ; but when they do they will relieve the subject of specific performance of many of its embarrassments, and remove from this branch of equity jurisprudence many of the artificial distinctions to which the courts have been compelled to have recourse, in order to justify their advance towards such a sound, general rule. The rule in regard to pei'sonal contracts yet falls short of that, and is extended only to cases where the party wants the thing in specie and he cannot otherwise be compensated ; that is, where an award of damages would not put him in a situation as beneficial as if the agreement was specifically performed ; or when the compensation in damages would fall short of the i-edi-ess which his situation might require. The general rule is, not to enter- tain jurisdiction to decree a specific performance respecting goods, chattels, stocks, clioses in action, and other things of a meie personal nature ; but the rule is qualified, and is limited to cases where a compensation in damages would furnish a complete and satisfactory remedy. In Cowles v. Whitman, 10 Conn. 121, 124, Daggett, C. J., said : " It is contended that a. bill will not lie for the specific execution of a contract relating to personal chattels merely, because there is an adequate remedy at law, and for this jiosition several cases are cited and many more might be cited. As a general rule it is true. As contracts for the delivery of coi-n, flour, stock in banks, or in the funds, and the like, may be com- pensated in damages, courts of equity will leave the parties to their remedy at law. Thei-e can be no difference between these few shares of bank stock and any other like number." In Hoy v. Hansborough, 1 Freem. Ch. 533, 543, it was said : " It is a general rule that a court of equity will not decree a specific performance of a mere personal covenant sounding in damages, nor of a. contract relating to personalty, wherg compensation may be had at law." 14 SPBOIFIC PERFORMANCB OF CONTRACTS.. inheres in the different nature of land and chattels. The funda- mental principles which guide the court are the same whether the contract relates to realjty or to personalty. In applying these prin- ciples, taking into account the discretionary nature of the jurisdiction, an agreement for the conveyance of land is prima facie, presumed to come within their operation, so as to be subject to a specific perform- ance, but a contrary presumption exists in regard to agreements concerning chattels.(]) I shall now describe, in brief terms, for the purpose of further illustrating the ancillary nature of the remedy, the general classes of cases in which the equitable principle is applied to chattels in the same manner as to lands, and in which, therefore, the contracts relating to personal property will be specifically enforced. Sec. 12. It is well settled that where chattels have some special peculiar value to their owner over and above any market value which could be placed upon them in accordance with strict legal rules, an interest which has happily been termed preiium affedionis, such as an heir-loom ; and where the chattels are not individually of a common class, but are unique of their kind, and cannot be readily reproduced, so that others of a similar nature and equal value could not be pro- cured by means of damages assessed according to legal rules, such as a painting, or other works of art ; and where chattels are articles of unusual beauty, rarity and distinction, contracts concerning them will be specifically enforced in equity, and a delivery of them will be decreed, although they might be recovered in the common-law actions of detinue or replevin. The reasons of this rule are the utter inade- quacy of any mere pecuniary compensation, and the incompleteness of the relief afforded by the legal actions in which the defendant might easily evade an actual delivery of the chattel itself. (2) It will (1) See Dalzell v. Ci-awford, 1 Pars. Eq. 37, 42 ; Mechanics' Bank v. Seton, 1 Peters, 299 ; Kii-ksey v. Fike, 27 Ala. 383 ; Summei-s v. Bean, 13 Gi-att. 404, 411. (2) Pusey v. Pusey, 1 Vera. 273 ; Duke of Somerset v. Cookson, 3 P. Wms. 389 ; 2 Eq. Cas. Abr. 164, pi. 28 ; Fells v. Read, 3 Ves. 70 ; Loyd v. Loaring, 6 Ves. 773 ; Nuthrown v. Thovnton, 10 Ves. 163, per Ld. Eldon ; Savill v. Tancred, 1 Ves. Sen. 101 ; 3 Sw. 141, n. ; Walwyn v. Lee, 9 Ves. 33 ; Wood u Rowclift'e, 3 H.are, 304 ; 2 Ph. 382 ; Lingen v. Simpson, 1 S. & S. 600 ; Lady Arundel v. Phipps, 10 Ves. 139 ; Lowther v. Lord Lowther, 13 Ves. 95 ; Peai-ne v. Lisle, Amb. 77 ; Falke v. Gray, 4 Drew. 651 ; Earl of Macclesfield v. Davis, 3 V. & B. 16 ; Clark V. Flint. 22 Pick. 231 ; Ohambei-lain v. Blue, 6 Blackf. 491 ; McGowan v. Reming- ton, 12 Pa. St. (2 Jones) 56. It may be instructive to follow the action of the courts through this line of cases and to notice the facts and grounds of their deci- sions. In Pusey 71. Pusey, 1 Vera. 273, which is the leaciing case, the bill was that a horn, which time out of mind had gone along with the jilaintilT's estate, and was delivered to his ancestors in ancient time to hold the land by, might be deliv- ered to him. A demurrer to the bill was overruled by Lord Keeper Guilford. It EXTENT AND LIMITATIONS. 15 be seen from many of the cases cited in the foot note, that the equitable jurisdiction has not been confined to contracts ; it is freely exercised to enforce the surrender and delivery of chattels in specie will be noticed that in this and in several of the succeeding cases there was no eon- ti-act, but the possession of the defendant seems to have been tortious. In Dake of Somerset v. Cookson, 3 P. Wms. 389, the plaintiff was entitled to an old silver patera bearing a Greek inscription and dedication to Hercules, which had been dug upon his estate. It had come into defendant's possession, and the duke brought a bill in equity to compel its delivery in specie undefaced. The defend- ant demurred on the gi-ound that the remedy was at law. but the demurrer wiis overruled by Ld. Ch. Talbot. Fells v. Reed, 3 Ves. 70, 71, was brought to recover a tobacco box of a remarkable kind, which had belonged to a club. In this case Ld. Ch. Loughborough stated the reason of the equitable remedy as follows: "The Pusey horn, the patera of the Duke of Somerset, were things of that sort of value that a jury might not give two-pence beyond the weight. It was not to be cast to the estimation of people who had not those feelings. In all cases where the object of the suit is not liable to a compensation by damages, it would be strange if the law of this country did not afford any remedy. It would be great injustice if an individual cannot have his property without being liable to the estimate of people who have not liis feelings upon it." Lord Eldon in Nut- brown u. Thornton, 10 Ves. 163, speaking of the Pusey horn case said: "It turned upon the pretium affectionis, independent of the circumstance as to tenure, which could not be estimated in damages." In Pearne v. Lisle, Amb. 77, a finely carved cherry stone was recovered ; and in Lloyd v. Loaring, 6 Ves. 773, certain masonic dresses and regalia. In Savill v. Tancred, 1 Ves. Sen. 101, the subject ordered to be delivered up was a strong box containing jewels ; in Lady Ariui- dell V. Phipps, 10 Ves. 139, ancient family pictures ; in Lowther v. Lord Lowther, 13 Ves. 95, title deeds and valuable paintings ; and in Earl of Macclesfield v. Davis, 3 V. & B. 16, an iron chest containing heir-looms. Kindersley, V. C, in Falcke v. Gray, 4 Drew. 651, decided that a contract for the purchase of articles of unusual beauty, i-arity and distinction, such as objects of vertti, will be enforced, since damages could not be an adequate compensation f(U' non-performance. The opinion of Bell, J., in McGowan v. Remington, VI Pa. St. (2 Jones) 56, is so able, clear, and full a discussion of the doctrine and of its I'easons, that I shall quote from it at some length. The suit was in ecjuity to compel the I'estitution of maps, plans and surveys prepared and used by the complainant in his business as a surveyoi-, together with his instruments, and office furniture, all of whicl^had been left in the possession and custody of the defendant, his clerk, while he was absent on business, under an arrangement for their surrendei' when the com- plainant should retui'n and resume his business. The defendant refused to deliver them under an unfounded claim that they had been sold or given to him. It should be noticed that these facts present a point which will be described, in a subsequent section, viz. : the effect of a ti'ust or fiduciary relation imposed upon the defendant concerning the chattels. A portion of the opinion is devoted to the consideration of that topic, but all its material passages will be quoted now to prevent n repetition. After disposing of the defendant's claim that they had been a gift or sale, the judge proceeds: "The contest is reduced to two ques- tions : First. Whether the bill pi-esents sufficient gi'ounds to warrant the inter- ference of a court of equity ? Secondly. Whether that portion of the decree which povers the surveying instruments and furniture can be sustained 1 As to the 16 SfEClFlC PERFORMAXUE OF CONTRACTS. which have been tortiously obtained, or are wrongfully detained; but the precise ground of the equitable relief in such cases is the same as that upon which the specific performance of agreements is enforced, first point the defendant insists that the only remedy is at law. Though the action of replevin is with us a broader remedy than in England, lying in all cases where one man improperly detains the goods of another, it is in no instance eifee- tive to enforce a specific I'eturn of chattels, since a claim of property and bond given is always sufficient to defeat reclamation, no matter what may be the final issue of the contest. As, therefore, our common-law tribunals are as powerless for such a purpose as the similar English courts, the propriety of exerting the equitable jurisdiction now invoked,must depend with us upon the same reasons that are deemed sufficient to call it into action there. Here as there, the enquiry must be, whether the law affords adequate redress by a compensation in damages, when the complainfSs of the detention of pei-sonal chattels. If not, the aid of a court of chancery will always be extended to remedy the injury, by decreeing a return of the thing itself. The precise ground of this jurisdiction is said to be the same as that upon which the specific performance of an agi-eement is enforced, namely, the fruition of the thing, the subject-matter of the agreement, is the object, the failure of which would be but ill supplied by an award of damages. Lowther v. Lowther, 13 Ves. 95. In the application of this rule some difficulty has been experienced. The examples aftorded by the English books are usually those cases where, from the nature of the thing sought after, its antiquity, or because of some peculiarity connected with it, it cannot easily or at all be i-eplaced." He here I'efers to several of the cases heretofore cited in the note, anil proceeds : " Such articles as these are commonly esteemed not altogether, or perhaps at all, for their intrinsic value, but as being objects of attachment or curiosity, and there- fore not to be measured in damages by a jury who cannot enter into the feelings of the owner ; so, too, the impossibility, or even great difficulty of supplying their loss, may put damages out of the question as a medium of I'edress. But these are not the exclusi\e reasons why chancery interfei-es, for there may be cases where the thing sought to be recovered is susceptible of i-eproduction or substi- tution, and yet where damages could not be so estimated as to cover present loss or compensate its future consequent inconvenience. And I take it this is always so where, from the nature of the subject-matter or the immediate object of the parties, no convenient measure of damages can be ascertained ; or, where noth- ing could answer the justice of the case but the performance of a contract in spec^.'' The judge here quotes a series of English cases — which will be noticed in the text of a subsequent section — and describes the various contracts which were enforced therein, and adds : " By what standard would you measure the injuiy the plaintiff may sustain in future from being deprived, even for a brief period, of the use oi papers essential to the prosecution of his business? Their intiinsic value might, pei'haps, be ascertained by an estimate of the labor neces- sary to their reprodnction, admitting the means to be at hand, and within the power of the plaintiff. But how could a tribunal ascertain the probable loss which in the meantime might be sustained 1 The present pecuniary inj ury might be little or nothing, and so possibly of the future ; or it might be very great, depending upon the unascertainable events of coming time, as these may be infiuenced by the miscondnct of the defendant. These considerations show, I think, the case is not one for damages. Besides, as jpany of the maps, plans, surveys, and cal- culatipns fire pppigs pf private papers, we are by no means satisfied they could EXl'EAT AND LIMITATIONS. 17 SO that the decisions based upon both conditions of fact are authori- ties for the common doctrine.(l) Equity, however, will not interfere to specifically enforce a contract concerning even such a special and unique chattel, or to* compel its delivery, when its pecuniary value has already been fixed by the parties or can be readily ascertained, so that an adequate compensation in the form of debt or damages can be recovered in a legal action. (2) be replaced at all, certainly not without permission of the owner — a risk to which the plaintiff ought not unnecessarily to be exposed. If to these reflections we add the fact that some of the documents are the original work of the plaintiff, of value as being predicated upon data possibly no longer accessible, a wrong is perpetrated which a chancellor ought not to hesitate in relieving. It is enough for this purpose that a perfect relief at law is not apparent. The thing to be guarded against is not the invasion of the defendant's rights, for he stands here abvSolutely without any, except the common interest every citizen has in preserv- ing the proper line of distinction that divides the jurisdiction and limits of the several courts. What is to be avoided is an unnecessary trespass upon the province of the common-law tribunals, and this is to be tested by the simple query whether they offer a full remedy for the wrong complained of. But thei-e is another gi-ound upon which this proceeding may be sustained. In Falls v. Reid the snuff box was deposited with the defendant, as a member of the society, upon certain terms, to be redelivered upon the happening of certain events. Lord B.OSSLYN held that, under these facts, the defendant was a depositai-y, on an expi-ess ti-ust which, upon a common ground of equity, gave the plaintiff title to sue in that court ; and in this he was supported by Loi-d Eldon in the subsequent case of Nutbrown v. Thornton. According to the pi-oof in our case, the papers and documents claimed were left with defendant under the express understand- ing that they were to be redelivered whenever the plaintiff should see fit to resume the business of his then profession in this city. It is then the case of direct confidence violated — a spell sufficiently potent to call into vigorous activity the authority involved." The court then held that it should decide the whole con- troversy in one suit, and include the furniture and instruments in the same decree with the maps, plans and surveys. See, also, the following cases, based upon contracts concerning the sale or delivery of slaves, in which the doctrine as to the specific performance of agree- ments relating to personalty, was fully discussed : Farley v. Farley, 1 McCord. Ch. 506, 516 ; Sarter ii. Gordon, 2 Hill Ch. 121 ; Horry v. Glover, 2 Hill Ch. 515, 525 ; Young v. Burton, 1 McMullan Eq. 256 ; Bobo ii. Grimke, 1 McMuUan Eq. 304, 310; Eraser v. McClenaghan, 2 Richardson Eq. 79, 84 ; Ellis t). Commander, 1 Strobh. Eq. 188, 190 ; Bryan v. Robert, 1 Strobh. 335, 841 ; Savery v. Spence, 13 Ala. 561, 564 ; Murphy v. Clark, 1 Sm. & Marsh. 221, 232 ; Butler v. Hicks, 11 Sm. & Mar. 79, 85 ; Dudley v. Mallery, 4 Geo. 52, 65 ; Williams v. Howard, 3 Murphy, 74 ; Pasley v. Martin, 5 Richardson Eq. 351 ; Reese v. Holmes, 5 Rich. Eq. 531 ; Leftin v. Erspy, 4 Yerg. 84, 92 ; Henderson v. Vauex, 10 Yerg. 30, 37 j Summers v. Bean, 13 Gratt. 404 ; Caldwell -u, Myers, Hardin, 551. (1) See Lowther v. Ld. Lowther, li Ves. 95, (2) Dowling V. Bitjemann, 2 J. & H. 544 ; 8 Jur. /N. S.) 538, In this case, which was a suit by an artist seeking to obtain possession of a picture, it was con- ceded that a court of equity has undoubted jurisdiction to jorder the delivery up 2 ' ' J8 SPECIFIC PERFORMANCE OF CONTRACTS. Sec. 13. Applying the same principle, courts of equity will, at the suit of the persons legally entitled to them, decree the delivery up of deeds and other instruments in writing, since damages are inadequate and the legal actions for the recovery of possession are imperfect in their operations. (1) This equity suit to compel the specific delivery of chattels, deeds and the like, possesses another great and incidental advantage over the legal remedy, &ii.ce the plaintiff is not compelled, as in trover, to prove a conversion of the article, or a refusal to sur- render possession of it when demanded. In equity the court looks at the case made by the defendant. It is not necessary to apply to a defendant before a suit is instituted ; if the defendant says, " if you had applied to me I should not have contested your claim," and makes no resistance, then, undoubtedly, he gets the costs of it ; but if it appears that an application would have been useless, and that the defendant resists at the hearing, the court looks at the case exactly in the same point of view as if that right had been insisted upon before the bill had been filed. (2) Sec. 14. The jurisdiction which I am describing is greatly enlarged where a trust or fiduciary relation exists in relation to chattels. If an express trust has been created by the terms of the contract, or if a constructive trust has arisen from the acts or omissions of the parties, of a painting' when it has a special value, and the legal remedy is therefore inad- equate, but since his agreement and the averments of his pleadings showed that the plaintiff had himself put a fixed price upon the picture, it was held that dam- ages would, under the circumstances, be an adequate remedy, and that there was no necessity for any interference by an equitable tribunal. The proposition of the text practically amounts to this, that a party may by h's own acts put a certain value upon a unique chattel, which can be recovered at law, and which, being his own estimate, will be taken as a sufficient compensation. (1) Brown ii. Brown, 1 Dick. 62 ; Armitage v. Wadsworth, 1 Mass. 192 ; Reeves V. Reeves, 9 Mod. 128 ; Tanner v. Wise, 3 P. Wms. 296 ; Harrison v. Southcote, 1 Atk. 528 ; Jackson v. Butler, 2 Atk. 306 ; Ford v. Peering, 1 Ves. 72 ; Papillon v. Voice, 2 P. Wms. 478 ; Duncombe v. Mayer, 8 Ves. 320 ; Knye v. Moore, 1 S. & S. 61 ; Freeman v. Fairlie, 3 Mer. 30 ; Gray ■«. Cockeril, 2 Atk. 114 ; Dutchess of Newcastle v. Pelham, 3 Bro. P. C. 460 (Tom. ed.) ; Reece v. Trye, 1 D. G. & Sm. 273 ; Lady Beresford v. Driver, 14 Beav. 387 ; 16 Beav. 134 ; Tudor's Lead. Cas. on Real Prop. p. 75 dd ed.) and cases cited. The delivery of a certificate of registry of a ship may be decreed against a person unlawfully detaining it. Gibson v. Ingo, 6 Ha. 112. Mortgage deeds having been wrongfully procured by an agent of the owner. Lord Hardwicke decreed that they should be surrendered up by the pledgee, and said : " That the plaintiff might have had an action of trover, but then he could only have damages for the detaining but not the deeds themselves, and therefore he was right in bringing a suit in equity for the recovery of his deeds " ; and see Cowles ij. Whitman, 10 Conn. 121 ; Hill v. Rockingham Bank, 44 N. H. 567. (2) Turner v. Letts, 20 Beav. 191, per Lord Romilly, M. R. EXTENT AND LIMITATIONS. 19 equity will decree a specific performance of the contract and compel a specific delivery of the chattels, whatever be their nature, special or common ; and the same equitable relief will be granted to enforce a fiduciary duty or confidence reposed, which is not in the strict sense of the term a trust, as in the case of an agency. The court will, if necessary, interfere by injunction to restrain any improper dispo- sition of or dealing with the chattels by the person upon whom the trust or fiduciary obligation rests.(l) (1) Wood V. Rowcliffe, 3 Ila. 304 ; 2 Phil. 382 ; Lingen v. Simpson, 1 S. & S. 600 ; Pooley 11. Budd, 14 Beav. 34 ; Clark v. Flint, 22 Pick. 231 ; Cowles v. Whitman, 10 Conn. 121 ; Stanton v. Peicival, 5 H. L. Cas. 257, 268 ; Perg-uson v. Paschall, 11 Mo. 267 ; McGowin v. Remington, 12 Pa. St. (2 Jones) 56 ; Abbott's Ex'r v. Reeves, 13 Wiigrht, 494 ; Mechanics' Bank v. Seton, 1 Peters, 303 ; Hill v. Rock- ingham Bank, 44 N. H. 567 ; Peer v. Kean, 14 Mich. 354. In Pooley v. Budd, 14 Beav. 34, 43, 44. Lord Romilly, M. R., said: "For instance, if a man about to contract marriage, and possessed of a large and valuable quantity of iron, lead, or copper ore, assigned that ore to the trustees of the settlement in trust to sell and invest the pi-oceeds, and hold the proceeds when invested upon the trusts of the settlement, there can be no question but that this court would, before the sale, compel the possessor of the ore and the trustees of the settlement to fulfill every part of the trust which one had undertaken to constitute and the other had ' undertaken to execute." In Stanton v. Percival, 5 H. L. Cas. 257, 268, whei'e a pereon had by contract made himself trustee of stock for another person, with whose money it had been purchased, a transfer of the stock to the beneficial owner was compelled. For a similar case, see Cowles v. Whitman, 10 Conn. 121. In Clark V. Flint, 22 Pick. 231, 239, the owner of a brig had contracted in writing for a valuable consideration, to hold her in trust for the plaintiff and subject to his order and disposition, and had then sold her to a third person who had notice of the former contract. The original contractor being insolvent, it was held that a specific performance should be decreed On this point Wilde, J. said: "It is objected that the court ought not to exercise jurisdiction in equity foi- a specific performance of agreements relating to personal property. And, generally, that rale has been observed in the English courts, but has been subject to numerous exceptions, and has been uniformly limiteil to cases where a compensation in damages fui'nishes a clear and adequate remedy. If the party complaining has no such remedy, it is quite immatei'ial whether the contract lelates to real or personal estate. The exercise of equity jurisdiction does not proceed upon any distinction between real estate and personal estate, but because damages at law may not in the particular case affoi-d a complete remedy. The reasons given for a distinction between real estate and personal estate are not very satisfactory. All, as it seems to me, that can fairly be inferred from the cases on this point is, that in contracts i-especting personal estate a compensation in damages is much oftener a complete and satisfactory i-emedy, than it is in those which relate to real estate. But in all cases if a party has not such a remedy, a court of equity will entertain junsdiction, and grant relief as justice may j'equii'e." In the derision of the case some reliance was placed upon the contractor's insolvency as rendei'ing (iaraages inadequate. This fact, however, at the pi'OSBnt day, and with courts accustomed to the exercise of full equity powei-s, would be regarded as wholly immaterial under similar circumstances of trust and confidence. For the opinion in McGowin v, Remington, 12 V^,, St, (2 Jones} 56, see (inte, ^ 12, note (1). 20 SPECIFIC FBRFORMATiCE OF CONTRACTS. Sec. 15. There are numerous other instances, which cannot easily be referred to any general class, in which contracts have been specifi- cally enforced on the ground that damages -would be. inadequate. The following are examples. 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 on« else can, could be specifically enforced. This case falls directly within the reasons of the doctrine, for the plaintiff could not, with any amount of damages in his hand, go into the market and purchase other articles of the same kind and value. (1) It would not, however, be extended beyond those reasons, and applied when a sufficient supply of materials could be reasonably obtained elsewhere. Again, contracts for the delivery of goods will be specifically enforced, when by their terms the deliveries are to be made and the purchase price paid in installments running through a considerable number of years. Such contracts " diff"er from those that are immediately to be executed." Their profits depending upon future events, cannot be estimated in present damages, which must, of necessity, be almost wholly conjectural. To compel a party to accept damages under such circumstances is to compel him to sell his possible profits at a price depending upon a mere guess. (2) (1) Buxton v. Lister, 3 Atk. 383, per Lord I-Iardwicke, -who puts the case of an owner of timber contracting- to sell it to a ship builder, who was under a contract to complete a ship within a given time, for which the timber purchased was necessary, and from no other person could a supply be pi'ocui'ed. See Ward V. Duke of Buckingham, cited in 3 Atk. 38.T ; 10 Ves. IGl. Agreement to pay off or discharge a mortgage. Barkley v. Barkley, 14 Rich. Eq. 12 ; Bennett v. Abrams, 41 Barb. 619 ; Weir v. Mundell, 3 Brews. 594. See, also. Hovel i). Miller, 2 Dur. 103; Howe v. Nickerson, 14 Allen, 400 ; Watkins v. Maule, 2 J. & W. 242 ; Lyde v. Mynn, 4 Sim. 505 ; 1 Myl. & K. 683 ; Wellesley v. Wellesley, 4 My. & Cr. 554, 559 ; Stark v. Wilder, 36 Vt. 752, 559. (2) Taylor v. Neville, cited in Buxton v. Lister, 3 Atk. 384 ; Ball v. Coggs, 1 Bro. P. C. 140 (Toml. ed.). In Taylor v. Neville, Lord Haedwicke decreed specific perfoi-mance of a contract for the sale of 800 tons of iron to be delivered and paid for by installments, in a certain number of years. In Ball v. Coggs, the contract was to pay the plaintiff a certain annual sum for his life and also a certain other sum for every hundred weight of brass wire manufactured by defendant during the life of the plaintiff. A specific performance -was decreed by the H. of L. on the ground that damages would be conjectui'al and inadequate, find to compel plaintiff to take damages would be to compel him to sell the aimiial provision during his life secured by the contract, at a mere conjectural price. See the remarks of Sir W. Page Wood, V. C, in Pollard v. Clayton, 1 K. & J. 402, 474, criticising Taylor v. Neville. It seems plain, however, that the decision by Lord Hardwicke falls directly within the decision and the i-easons therefoi' in Ball V. Coggs. The V. C.'s objections are too naiTow. A contract to purchape the arch stone, span-drill stone, and Bi'ameley Fall stone contained in the old 'Wegtiuinster Bridge, was specifically enforced by Lord Romilly, M. R., in Thorn BXTJENT AND LIJIITATIONS. 21 Sec. 16. The following are additional instances of special agree- ments which have been specifically enforced because the remedy of damages would afford no just and adequate compensation : A con- tract to insure ;(1) ante-nuptial agreements containing stipulations concerning personal property ;(2) a general covenant to indemnify ;(3) an agreement to compromise a judgment debt, by accepting a prom- issory note made by a third person for a portion of the amount ;(4) an agreement which had been partly carried out by a creditor to accept and receive such goods of the debtor as he might select in pay- ment of his claim, the court decreed that a master should select and deliver the residue of the goods, in case the creditor refused to make the selection himself ;(5) an award dividing the vats and hides, assets of a firm, equally among the partners ;(6) an agreement between A. & B. that A. should furnish a large number of peach trees, and that B. should plant them on his farm, market the fruit, and account for the profits ; A. having furnished the trees the contract was specifically enforced for the benefit of A. and his assigns. (7) Sec. 17. Contracts concerning things in action. The ancillary and supplementary nature of the equitable remedy is exhibited in the clearest light by the course of decisions upon contracts concerning the various species of stocks. It is a settled rule that agreements to V. Commrs. of Public Works, 32 Beav. 490. See Schotsmans v. Lancashire, etc. R. R. Co., L. R. 2 Ch. 332. (1) Carpenter v. The M. Ins. Co. 4 Sandf. Ch. 408 ; Neville c. Merchants', etc. Ins. Co., 19 Ohio, 452 ; Taylor v. Merchants', etc., Ins. Co., 9 How. U. S. 390. (2) Tarbill v. Tarbill, 9 Allen, 278 ; an agreement that the wife should relin- quish her dower, in consideration of the transfer of certain shares of stock ; Bate- man V. Porter, 9 Allen, 231, agreement that real and personal property should be settled to the wife's use, in consideration of her consent to give up all interest in her husband's estate ; Gough v. Crane, 3 Md. Ch. 119 ; 4 Md. 316, where a verbal ante-nuptial agreement concerning the wife's chattels and things in action, void by the statute of frauds, had been part performed. (3) Chamberlain v. Blue, 6 Blackf. 491, 492. In an able opinion discussing the general principles the court cited approvingly Taylor v. Neville, Buxton v. Lester, and Adderly v. Dixon, and concluded : " Courts of equity will also in many cases decree the specific execution of pei-sonal contracts, where injury is apprehended, but not yet sustained." Per contra, see Hoy v. Handshorough, 1 Freem. Ch. 533. . (4) Phillips V. Berger, 2 Barb. 609 ; S. C. on app., 8 id. 527. (5) Very v. Levy, 13 How. 345. See in connection, infra, cases concerning con- tracts where valua,tion is to be made by valuers. (6) Kirksey v. Fike, 27 Ala. 383. (7) McKnight v. Robbins, 1 Halsted Ch. 229, 642 ; and see Ashe v. Johnson. 2 Jones Eq. 149 ; SuUii^an v. Tuck, 1 Md. Ch. 59 ; Furman v. Clark, 3 Stockt. 303 ; Steward v. Winters, 4 Sandf. Ch. 587 ; Hall v. Joiner, 1 Rich. (N. S.) 186 ; Starnea V. Newsome, 1 Tenn. Ch. 239. 22 SPECIFIC PERFORMANCE OF CONTRACTS. purchase and sell, or deliver shares of government or other public stocks, will not be specifically performed in equity, because such securities are always for sale, their price is known, and the damages awarded at law will enable the injured party to make himself whole by purchasing in the market.(l) On the other hand, it is now equally well established in England that contracts for the purchase, sale, or delivery of railway and other similar shares, will be specifically enforced, at the suit either of the purchaser or the vendor. The reasons of the distinction, as given by the court in a leading case, are as follows : " The only question is whether there has been any deci- sion from whence you can extract a conclusion that the cpurt will not decree a specific performance of an agreement for the sale of such shares. Nov\r I agree that it has been long since decided, that you cannot have a bill for the specific performance of an agreement to transfer a certain quantity of stock. But, i.i my opinion, there is not any sort of analogy between a quantity of 3Z. per cents., or any other stock of that description (which is always to be had by any person who chooses to apply for it in the market), and a certain num- ber of railway shares of a particular description, which railway shares are limited in number, and which, as has been observed, are not always to be had in the market."(2) A contract for the sale of shares in a joint-stock association has been specifically enforced, although there was a provision in the deed of settlement " that no shareholder shall be at liberty to transfer his shares, except in such a manner as the board of directors should approve. "(3) (1) Cud V. Rutter, 1 P. Wms. 570 ; Cappun v. Han-is, Bunnb. 135 ; Nutbrown tj. Thornton, 10 Ves. 1€1, per Ld. Eldon ; Doloret v. Rothschild, 1 S. & S. 590 ; Shaw V. Fisher, 5 D. G. M. & G. 596. (2) Dimcuft V. Albi-echt, 12 Sim. 189, per Sir L. Shadwell, V. C, afterwards affirmed by the L. C. ; Shaw v. Fisher. 2 De.G. & Sm. II ; 5 DeG. M. & G. 596 ; Wynne r. Piice, 3 DeG. & Sm. 310 ; Wilson v. Keating, 7 W. R. (M. R.) 484 ; Cheale v. Kenward, 3 DeG. & J. 27. (3) Poole II. Middleton, 29 Beav. 646, per Ld. Romilly, M. R. In Doloret v. Rothschilci, 1 S. & S. 500, Sir John Leach held that a contract for the purchase of Napolitan stock should be specifically enforced, when the bill pi'ayed for the delivery of thf! certificates which would constitute the plaintiff proprietor of a cei'tain quantity of the stock, for the reasons, as he said, that " a court of law could not g-ive the pi'operty, but could only give a remedy in damages, the beneficial effect of which must depend upon the personal responsibility of the party. I con- sider, also, that the plaintiff, not being the original holder of the scrip, but merely the bearer, may not be able to maintain any action at law upon the contract, and that if he has any title, it must be in equity." See, also, Colt v. Netterville, 2 P.Wms. 304. A specific performance of contracts for sale and purchase or delivery of such shares is now a matter of every -day occurrence in England, complicated. HXTEA'T AND LIMITATIONS. 23 Sec. 18. These reasons, which have led the English courts to draw so sharp a distinction between government and other public stocks and shares in companies, do not apply with all their force in this country. The English companies are not, in general, corporations, but are joint-stock associations, or modified partnerships. Although organ- ized under statute, their powers are largely derived from, and regu- lated by, the articles of association or deed of settlement entered into by the members of each company by itself. Although their shares are bought and sold in the market, yet the modes of the transfer are always cumbrous, and often very much restricted by the regulations of the settlement deed. lu this country, the companies issuing stock are, with very few exceptions, corporations, their charters either being special acts of the legislature, or formed in pursuance of general statutes. By the universal customs of the stock market and of busi- ness men, certificates of stock are transferred by delivery, and this method is recognized by the law as conferring a complete beneficial title upon the assignee. In short, the shares of stock corporations in this country are regulated, bought, sold, and transferred with as much ease and publicity as the national or state governmental securities, or the public debt of England. The same is true of the coupon bonds issued by our great biisiness and municipal corporations, which are transferred by delivery, like negotiable notes payable to bearer, and which are constantly bought and sold in all the financial markets of the country to an enormous extent. These facts make it very clear that the reasons upon which the English judges have based their recent decisions, above cited, concerning contracts for the sale or delivery of shares, have little or no force when applied to similar agreements in the United States, and the American courts might well refuse to adopt those reasons and follow those decisions, without however, by the varying and often minute provisions respecting the mode of trans- fer found in the articles of dift'erent companies, and by the customs of the Lon- don Stock Exchange. The following are recent cases on the subject : Berming- ham V. Sheridan, 33 Beav. 660, 665 ; Robinson v. The Chartered Bank, Law Rep. 1 Eq. 32 ; Cheale v. Kenward, 3 DeG. & Jo. 27 ; Jackson v. Cocker, 4 Beav. 59 ; New Brunswick, etc., Co. v. Muggeridge, 4 Drew. 68J ; Oriental Inland Steam Co. V. Briggs, 2 J. & H. 625; Sheffield Gas, etc., Co. v. Hariison, 17 Beav. 294; Har- ris c. North Devon Railway Co. 20 Beav. 384 ; Hawkins v. Maltby, L. R. 3 Ch. 188 ; L. R. 4 Ch. 200 ; L. R. 6 Eq. 50n ; Emmerson's Case, L. R. 1 Ch. 433 ; Coles V. Bi-istowe, L. R. 4 Ch. 3 ; L. R. 6 Eq. 149 ; Cruse v. Paine, L. R. 4 Ch. 441 ; L. R. 6 Eq. 641 ; Merry v. Nickalls, 20 W. R. (L. J.) 929 ; 27 L. T. (N. S.) 12; 20 W. R. 531 ; 26 L. T. (N. S.) 496 ; Rennie v. Mon-is, L. R. 13 Eq. 203 ; Paine v. Hutchinson, L. R. 3 Ch. 388 ; L. R. 3 Eq. 257 ; Hodgkinson v. Kelly, L. R. 6 Eq. 49G : Evans v. Wood, L. R. 5 Eq. 9 ; Shepherd v. Gillespie, L. R. 5 Eq. 293. 24 SPECIFIC PERFORMANCE OF COX'IRACTS. infringing, in the slightest degree, upon the equitable doctrines relat- ing to specific performance, which the tribunals of both nations equally recognize and administer by their judgments. Sec. 19. The decisions by the courts of this country are, as might bo expected, conflicting. In some cases it has been held, following the English doctrine implicitly, that shares in a railroad or other similar company, differ from government securities, that they do not have a specific value, and aro not always to be found in the market, and that contracts for their purchase, sale, or delivery will be specifi- cally enforced. (1) Other cases simply hold that the specific perform- ance of a contract for the transfer or delivery of stocks may be decreed where there is no adequate legal remedy. (2) The weight of Ameri- can authority, however, seems to be in favor of the rule that stocks of business corporations, at all events when they are commonly sold in the market, stand upon the same footing as public, governmental securities, and that the legal remedy of damages for the breach of a contract is as adequate a remedy in the one case as in the other. Certainly, there can be no valid distinction, in this respect, between shares of stock in banks, insurance companies, railway companies, manufacturing corporations, and the like, if they are all customarily for sale in the public market, and many of the decisions do not insist on or even allude to this limitation as necessary. (3) Sec. 20. Analogous to the case of shares, under the English rule, is that of things in action. Contracts for the purchase, sale, or assign- ment of things in action, will often be enforced at the suit of the pur- chaser, by compelling the vendor to transfer and deliver, where the legal damages might be too uncertain and conjectural to constitute an adequate compensation. And, as the remedy must be mutual, the vendor may also maintain his action for a specific performance, and (1) Ashe V. Johnson, 2 Jones Eq. 149. See Baldwin v. Commonwealth, 11 Bush. 417, in respect to a sale of turnpike stock made by state commissioners. (2) Todd V. Taft, 7 Allen, 371 ; Leach v. Fobes, 11 Gray, 50G ; Treasurer «. Commercial, etc. , Co. 23 Cal. 300. (3) Cowles V. Whitman, 10 Conn. 121, 124 ; Brown v. Gilliland, 3 Dessau. 539, 541 ; Bissell v. Farm. & Mech. Bank of Mich. 5 McLean, 495 ; Ferguson v. Paschall, 11 Mo. 267 ; Austin v. Gillespie, 1 Jones Eq. 2G1 ; Strasbourg R. R. Co. V. Echternact, 21 Pa. St. 220 ; Gram v. Stebbins, 6 Paige, 124. Cowles v. Whitman, supra, related to bank stock. A contract to deliver government bonds or marketable railway shares will not be specifically enforced, per Dillon, J., in Fallon V. R. R. Co. 1 Dill. 121 ; Ross v. Union Pac. R. R.' 1 Woolw. 26, 36 ; Car- penter D. Ins. Co, 4 Sandf. Ch. 408 ; Lowry v. Muldrow, 8 Rich. Eq. 241 ; McGowin V. Remington, 12 Pa. St. 56 ; Sullivan v. Tuck, 1 Md. Ch. 59 : Waters V. Howard, 1 Md. Ch. 112. EXTENT AND LIMITATIONS. 25 compel payment of the purchase-money. The following are illustra- tions : An agreement, by the assignee of certain debts, which had been proved, under a commission of bankruptcy, against the debtor, agreed to sell them to a third person for 2s. 6d. on the pound. A specific performance was decreed in a suit brought by the vendor.(l) An agreement for the purchase of an annuity, payable out of certain funds standing in the court of chancery, has also been enforced at suit of Ihe vendor,(2) and also an agreement for the purchase of a life annuity ;(3) and a contract to purchase a debt. (4) On the same prin- ciple, because its value is uncertain and conjectural, and there is no accurate measure of damages, a contract for the sale of a patent right will be specifically enforced against the vendor, by compelling-him tb execute and deliver an assignment ; and consequently the vendor may, by a suit of the same sort, compel the purchaser to' accept the transfer and pay the purchase price.(5) (1) Adderley v. Dixon, 1 S. & S. 607, per Sir JoHx Leech : " The present case being a contract for the sale of the uncertain dividends, w.hich may become pay- able from the estate of a bankrupt, it appears to me that, upon the principles established by the cases of Ball v. Cogg-s, and Tayloi v. Neville, a court of equity will decree specific performance, because damages at law cannot accurately represent the value of future dividends ; and to compel this purchaser to take such damages would be to compel him to sell those dividends at a conjectural price It is true that the present bill is not tiled by the purchase)', but by the vendor, who seeks not the uncertain dividends, but the certain sum to be paid for them. It has, however, been settled by repeated decisions, that the remedy in equity must be mutual, and that where a bill will lie for the purchaser, it will also lie for the vendor." And see Cutting v. Dana, 25 N. J. Eq. 20.5. (2) Withy V. Cottle, 1 S. & S. 174, per Sir John Leach, "Thui-e can be no doubt that the defendant, who is the purchaser of this annuity, might have filed a bill for the specific performance of the agreement for sale to him, because a court of law could not give him the subject of his contract, and the remedy here must be mutual for purchaser and vendor." See Clifford v. Turrell, 1 Y. & C. C. C. 138 ; 9 Jur. 633. (3) Kenney v. "Wexham, 6 Mad. 355, 357. (4) Wright V. Bell, 5 Price, 325. In Cutting v. Dana, 25 N. J. Eq. 265, it was held that a contract for the sale of a debt would be specifically enforced in equity, where there was no adequate remedy at law, or where some other equitable fea- ture was present ; for example, where the creditors of an insolvent firm agreed to sell their claims against it to one of their number, at twenty-five cents on the dollar. A contract to deliver a paid-up life insurance policy, for a, certain sum, has been specifically enforced against the insurance company. Hughes v. Pied- mont, etc.. Life Ins, Co. 55 Geo. Ill ; and also a contract, by the holder of notes, to deliver them up to the maker to be canceled. Tuttle v. Mom-e, 16 Minn. 123 ; an agreement to assign a contract between defendant and a third peraon. Wood- ward V. Aspinwall, 3 Sandf. 272. ' (5) Cogent v. Gibson, 33 Beav. 557 ; Corbin v. Tracy, 34 Conn. 325 ; Somerby xi. Buntin, 118 Mass. 279 ; Binney i). Annan, 107 Mass. 94 ; Ely v. McKay, 12 Allen, 323. 26 SPECIFIC PERFORMANCE OF CONTRACTS. Sec. 21. Awards. — ^The specific enforcement of awards is governed by exactly the same principles which regulate the equitable jurisdic- tion in its application to contracts. If the provisions of the award are of such a nature that, had they constituted an agreement between the parties, it would have been enforced by a court of equity, then a specific performance of the award itself will be decreed ; otherwise it will not be decreed. Considered in respect to its capability of being specifically enforced, an award is not looked upon as a decision ema- nating from the arbitrators, but rather as a continuation and consum- mation of the contract by which the parties submitted their matters in controversy to arbitration, and, impliedly at least, undertook to abide by the result. (1) In pursuance of these principles, an award, like a contract; which directs the doing of anything in specie, within the power of the court to enforce — as, for example, the conveyance of land, or the assignment of things in action, may be specifically per- formed ;(2) or where it directs the delivery of certain specific chattels,- and no adequate remedy could be had by a recovery of damages. (3) But an award, which simply orders a payment of money, will not, it seems, be specifically enforced in equity.(4) 8ec. 22. Contracts for Personal Acts. — In all the species of contracts to which reference has, thus far, been made, the subject-matter has (1) Blackett ti. Bates, L. R. 1 Ch. 117, reversing S. C, 2 H. & M. 270, per Ld. Ch. Ckanworth ; "Theiights of the parties, in respect of specific performance, are the same as if the award had been simply an agreement between them. Had it been an agreement, would there have been a case for specific performance % I think not, and for this short and simple reason, that the court does not gi'ant specific performance unless it can give full relief to both parties." In Wood v. Griffith,! Sw. 54, Ld. Eldon said, the court exercises jurisdiction, "because the award supposes an agreement between the parties, and contains no more than the terms of that agreement ascertained by a third person." See Nickels v. Han- cock, 7 DeG. M. & G. 300. (2) Norton •». Mascall, 2 Vern. 24 ; Hall v. Hardy, 3 P. Wms. 187 ; and see Mc- Neil V. Magee, 5 Mas. 245 ; Jones v. Boston Mill Corpn., 4 Peck, 507 ; Davis v. Havard, 15 S. & R. 165, 171 ; Somerville D. Tiuman, 4 Har. & McH. 43 ; Wood v. Shepherd, 2 Patton & Heatli, 442 (Va.) ; Cook •». Vick, 2 How (Miss.) 882. Equity ■will specifically enforce an award concerning land, or an agreement for the pur- chase or sale of land, although the enforcement of an award for the payment of money is also involved in the relief. Memphis, etc., R. R. v. Scruggs, 50 Miss. 284. See, also, Overby v. Thrasher, 47 Geo. 10. (3) Story v. Norwich, etc., R. R., 24 Conn. 94 ; Kirksey v. Fike, 27 Ala. 383. (4) Hall V. Hardy, 3 P. Wms. 187 ; and see Story v. Norwich, etc., R. R. 24 Conn. 94 ; Bubier v. Bubiei-, 24 Me. 42 ; Turpin v. Banton, Hardin, 312. As to the enforcement, in equity, of awards legally invalid, see Viele v. Troy & Bost. R. R., 21 Barb. 381 ; Bouck v. Wilber, 4 Johns. Ch. 405; Buys v. Eberhardt, 3 Mich. 524 ; Cook v. Vick, 2 How. (Miss.) 882. EXTENT AND LIMITATIONS. 27 been things — land, chattels, or things in action. The particular rules which have been established in reference to the specific execution of agreements stipulating merely for personal acts or omissions, also exhibit, in the most striking manner, the ancillary and supplement- ary nature of the remedy. As a general proposition, contracts which provide for the personal affirmative acts, or personal services of the parties, are not specifically enforced in equity, not because the legal remedy of damages is always sufficiently certain and adequate, but because the courts do not possess the means and ability of enforcing their decrees, which would necessarily be very special, and of com- pelling the performance which constitutes the equitable remedy. Wherever, from the nature of the agreement, the difficulty in the way of granting relief does not exist, or can be obviated, the principles and rules of specific performance apply to contracts which stipulate for personal acts or omissions, as well as to those whose subject-matter is real or personal property. A few examples of such application will suffice as illustrations. Agreements for a separation between husband and wife, if valid in form, made upon a sufficient consideration, and executed by parties legally able to contract, will be specifically enforced, by decreeing the execution and delivery of the proper deed, and by restraining the husband, if necessary, from personally inter- fering with, and molesting his wife, in violation of his covenant. (1) Such contracts, in order to be enforced, must be based upon a valuable 'consideration, accruing to the benefit of the husband ;(2) and in Eng- land, a third person, other than the wife, must intervene as the con- tracting party on her behalf, although she generally executes the agreement, in order to show her assent.(3) It is plain that, for the breach of these agreements, damages would be wholly inadequate, and it would seem that no legal measure of damages is possible — i. e., any thing but a mere conjecture. (1) Wilson V. "Wilson, 1 H. L. Cas. 538 ; 5 H. L. Cas. 40 ; 14 Sim. 405 ; Fletcher V. Fletcher, 2 Cox, 99 ; Sanders v. Rodway, 22 L. J. Ch. (N. S.) 230 ; McCrocklin V. McCrocklin, 2 B. Mon. 370 ; Gibbs v. Harding, L. R. 5 Ch. 336 ; S. C, L. R. 8 Eq. 490. (2) Wilson V. Wilson, supra ; Wellesley v. Wellesley, 10 Sim. 256 ; Stephens v. Olive, 2 Bro. C. C. 90 ; Earl of Westmeath v. Countess of Westmeath, Jac. 126, 141 ; Elwoi'thy V. Bii-d, 2 S. & S. 372 ; Hobbs v Hull, 1 Cox, 445. (3) Hope V. Hope, 26 L. J. Ch. 417; Wilkes v. Wilkes, 2 Dick. 791 ; corapai-e Vansittart v. Vansittart, 4 K. & J. 62. Query. Whether such third person would be necessary in those states of this country, which have so g-reatly enlai-ged the wife's power to contract, especially if the agreement related, in any way, to her own separate jiroperty. 28 SPECIFIC FEBFORMANCE OF CONTRACTS. Sec. 23. Contracts for building and construction. The general rule is now well settled that, on account of the great difficulty and often impossibility attending a judicial superintendence and execution of the performance, contracts for the erection or repair of buildings, the construction of works, and the conduct of operations requiring time, special knowledge, skill, and personal oversight, will not be specifi- cally enforced. (I) Notwithstanding this general rule and the cogent reason which supports it, there are certain exceptions ; and contracts for building or for the construction of works, and the like, falling within them, may be specifically enforced. 1. It has been said that if an agreement for erecting a building is in its nature defined, there is no difficulty in entertaining a suit for its specific performance. (2) But a contract to build a house of a certain value merely, does not come within this description of an agreement sufficiently defined, and will not be enforced. (3) 2. Whether or not the opinion of Ld. Ross- LYN is to be regarded as a correct statement of the law, it is settled by the recent English decisions, that where the defendant has contracted to construct some work which is defined on his own land, and where the plaintiff has a material interest in the execution thereof, which is not susceptible of adequate compensation in damages, a specific per- formance of the undertaking will -fee compelled. (4) 3. Where the (1) Paxton •!). Newton, 2 Sm. & Giff. 437 ; Errington v. Aynesley, 2 Bro. C. C. 341 ; 2 Dick. 692 ; Lucas v. Commei-foi-d, 3 Bro. C. C. 166 ; Mosely v. Virgin, 3 Yes. 184 ; e. g., to make good a gravel pit, Flint v. Bi^anton, 8 Ves. 159 ; tliB con- Bti-uction of a branch railway, So. Wales R'y Co. ■ii. Wythes, 1 K. & J. 18u ; 5 DeG. M. & G. 880 ; an agreement between two railroad companies, by which one agreed to consti'uct the i-oad and the other i-un it. Port Clinton R. R. v. Cleveland & Toledo R. R. 13 Ohio St. 544 ; and see Fallon v. R. R. Co. 1 Dillon, 121 ; Reese 1). Union Pacific R. R. 1 Woolworth, 26 ; to work quarries, Booth v. Pollard, 4 Y. & C. Ex. 61 ; to work a quarry and deliver marble in certain kinds and quanti- ties, Marble Co. v. Ripley, 10 Wall. 339 ; to work coal mines. Pollard v. Clayton, 1 K. & J. 462. There were early decisions or opinions contra, see Buxton v. Lister, 3 Atk. 385, per Lord Haedwickb ; City of London v. Nash, 3 Atk. 512 ; 1 Ves. Sen. 12. It is settled that a covenant to repair will not be specifically enforced, Rayner v. Stone, 2 Eden. 128, 130 (n.) ; Hill v. Barclay, 16 Ves. 402,405. (2) Mosely v. Virgin, 3 Ves. 185, per Ld. Rosslyn ; Cubitt v. Smith, 10 Jur. (N. S.) 1123 J Flint v. Brandon, 8 Ves. 159, 164; Phillips v. Soule, 9 Gray, 233 ; Moore d. Greg, 12 Jur. 952. (3) Brace v. Wehnert, 25 Beav. 348. The operative part of the contract was to build a house, worth 1400Z. at least, and no plan was adopted. See, also, Norris v. Jack-son, IJ. & H. 319. (4) Storeri). Great Western R'y Co. 2 Y. & C, C. C. 48 ; Sanderson v. Cocker- mouth, etc., R'y Co. 11 Beav. 497. In these cases the railway companies were directed to fultill theii- agreements by making and maintaining arch-ways under their tracks, so that plaintiff might have access with teams from one part of his EXTENT AND LIMITATIONS. 29 defendant has undertaken to construct certain works upon land acquired by conveyance from the plaintiff, so that the plaintiff, hav- ing parted with his land, cannot erect the stipulated structures thereon at his own cost, and thus ascertain the amount which he should be entitled to recover from defendant as damages for the breach of the land to another, which were separated by the road. Greene v. West Cheshire R'y Co., L. R. 13 Eq. 44 ; Wilson v. Furness R'y Co., L. R. 9 Eq. 28 ; Attorney- General 1). Mid. Kent R'y Co. and So. Eastern R'y Co., L. R. 3 Ch. 100 ; Lytton v. Great Northern R'y Co. 2 K. & J. 394. In Fianklin v. Tuton, 5 Madd. 469, Sir JoHK Leach compelled the defendant to alter the elevation of the house, which he had built on land leased fi'om the plaintiff, pursuant to his covenant to erect the house of a certain height, which he had not done. In Lane v. Newdig-ate, 10 Ves. 192, Ld. Eldon, by a mandatory injunction, compelled the defendant to repair a canal, in pui-suance of his covenant, for plaintiff's benefit. In Middleton v. Green- wood, 2 DeG. J. & S. 142, defendant agi-eed to grant the plaintiff a lease of a public house, " and to make and form a spirit vault, and put in plate-glass win- dows, and do everything therewith necessary at his own expense, and paint new the outside of all the woodwoA, as well as put the slates, chimneypots, and roofing in thorough repair." Held, that a specific performance of the agreement to give a lease should be decreed, and they having jurisdiction, the court would, under Sir HuoH Cairks act (21 & 22 Vict., Ch. 27, § 2), direct aw inquiry as to the damages for non-performance of the rest of the contract to be paid by the defendant. " These matters are mere incidents of the agreement, not affecting the substance," p. 145, per L. J. Tuenbe. Wilson 1). West Hartlepool R'y Co. 2 DeG. J. & S. 475. The company agreed to sell to plaintiff a piece of land. Contract provided that the company should lay down a branch railway to the land, and that plaintiff, who was to erect iron works on the land, should use the company's railway in preference to any others — use it whenever reasonably practicable, and for the longest distance it was rea- sonably capable of use ; company made the branch ; plaintiff took possession of the land, and his machinery was brought and deposited there. The defendant then refused to complete. Held, affirming decision of the M. R., that the pro- vision as to plaintiff's use of defendant's road did not prevent a specific perform- ance. The whole contract would be specifically performed ; that clause of it by inserting a proper covenant in the deed binding plaintiff to use the road ; see per L. J. TuEiTER, pp. 494, 495. In Lillie ■». Legh, 3 DeG. & J. 204, defendant had agreed to lease a farm to plaintiff, and to furnish or pay for materials wherewith plaintiff was to repair and alter the farm buildings. Court decreed a specific performance of the agreement to give the lease, and held, that though the claim for materials was a mere money demand, yet the court had jurisdiction to award damages as an incident to the general relief, p. 20S, per L. J. Knight-Bruce ; p. 210, per L. J. Turnee. Wilson v. Northampton & Banbury Junction R'y Co., L. R. 9 Ch. 279. Defendant having bought of plaintiff, agreed to erect, construct, and fit up a station thereon. There was no further description of the station, nor even any stipulations as to its use. A specific performance of this agreement was refused, on the sole ground that it was too indefinite. Bacou, V. C, said that it never had been expressly held that a contract to erect a building will never be specifically enforced. " I should require very distinct authority before I said that the court had no jurisdiction to compel the erection of buildings." p. 281. 30 SPECIFIC PERFORMANCE OF CONTRACTS. contract, a court of equity will, if possible, decree a specific perform- ance by the defendant of his agreement. The relation of the parties and the situation of the subject-matter would render the damages, in such a case, almost wholly conjectural. (1) 4. Finally, wh^e there has been a part performance of such a contract, so that the defendant has received and is enjoying the benetits of it in specie, the court may compel its specific execution, when, without such part performance, it might not have interfered, but left the plaintifi' to his legal remedy.(2) It has been recently held in England that where a private individual is entitled to the specific performance of a contract to make certain works, by a railway company, which would require a reconstruction of its track, the temporary interruption of its business, and consequent inconvenience to the public, are not such obstacles as will prevent the court from grantmg the relief. (3) The cases on this subject in the (1) So. Wales R'y Co. v. Wythes, 1 K. & J. 200, per Pagb Wood, V. C. ; Storer V. Great Western R'y Co. 2 Y. & C., C. C. 48 ; Price v. Corporation of Penzance, 4 Ha. 506 ; Soames v. Edge, Johns. 639 ; Wilson v. Furness R'y Co., L. R. 9 Eq. 28; Hood «. North Eastern R'y Co., L. R. 5 Ch. 525; 8 Eq. 666. In 1838, the company purchased land from plaintiff, and agreed that a part of it should be forever used as "a first-class station," no other desci-iption being- given in the conti-act. A. station was erected in 1842, and has since been used. Plaintiff filed this bill to compel the company to build a larger station, alleging that this one was not "first-class." Held, that as the present station was not objected to when built, and had remained as it is so many years, the coni't would not compel the company to make a lai'ger one ; also, that the terms of the contract were so indefinite that the coui-t could not enforce it. Firth v. Midland R'y Co., L. R. 20 Eq. 100. The company .bought land from the owner and agreed to pay a cer- tain price therefor, and to erect certain bridges thereon for his convenience. It took possession, made its line, but did not construct the stipulated works in any manner. Three or four years after the parties madfe a substituted agreement, which became nugatory by the death of the person who was appointed by it to award damages, which wei'e to be accepted by the plaintiff. Held, the original contract was revived, and it was enforced against the company. Green v. West Cheshire R'y Co., L. R. 13 Eq. 44. The company had taken land, and, for a val- uable consideration, had agreed to construct; and forevei- maintain, a " side track " of a specified length, on certain lands of the vendor alongside of the main track, for the vendor's accommodation. Held, that the contract could be specifically enforced, and the court would not refuse that relief, although the plaintift' might have a concurrent remedy of damages, or may have entered into a negotiation for a money compensation, which had failed. (2) Price v. Corpn. of Penzance, 4 Ha. 506, 509. Plaintiff conveyed land to defendants, they covenanting to forthwith make a road and erect a market house. They took possession and made (he road, but neglected to erect the market. Wig- bam, V. C, said that the defendants having had the benefit of the contract in .fpecie, the court wouhl go to any length that it could to compel them to specifically per- foi'm the contract on their part. (3) Raphael v. Thames Valley R'y Co., L. R. 2 Ch. 147, reversing L. R. 2 Eq. 37. E.XTKAT AND LmiTATIOXS. 31 American courts are few, and do not show that they have as yet adopted all of the foregoing distinctions established by the modern English judges.(l) Sec. 34. Enfm-cement by injunction. — Another class of contracts stipulating for personal acts are now enforced in England by means of an inj unction. "Where one person agrees to render personal services to another, which require and presuppose a special knowledge, skill, and ability in the employe, so that, in case of a default, the same services could not easily be obtained from others, although the affirm- ative specific performance of the contract is beyond the power of the court, its performance will be negatively enforced by enjoining its breach. This doctrine applies especially to contracts made by actors, public singers, artists and others possessing a special skill and ability. It is plain that the principle on which it rests is the same with that which applies to agreements for the purchase of land or of chattels having a unique character and value. The damages for the breach of such contracts cannot be estimated with any certainty, and the employer cannot, by means of any damages, purchase the same services in the labor market. In the leading case, which first established this doctrine, an artist agreed to sing at the plaintiff"s theatre, and not to sing at any other during the term of the engage- ment. The court, conceding that it could not enforce the affirmative stipulation, granted an injunction restraining the defendant from singing elsewhere than at the plaintifi"'s opera house. (2) The rule has since been extended to cases in which the contract contained no negative stipulation, and it is now settled that such a negative clause is not a necessary prerequisite to the exercise of the jurisdiction. (3) (1) While the j urisdiction to compel performance of such contracts has been exercised, it has not been systematized and reduced to definite rules, as in Eng- land. In Stuyvesant v. Mayoi' of N. Y. 11 Paig-e, 414, an agreement to open a drain thi'ough defendant's land was enforced ; Birchett v. Boiling, 5 Munf. 442, a conti-act to build a tavern, at the joint risk and expense, and for the joint benefit of the parties, was enforced at the suit of the plaintiff, who furnished the land on which it was i-o be erected, and had performed his part, the defendants objecting on the gi-ound that a change in the circumstances had made the scheme unadvisable. In Whitney v. New Haven, 23 Conn. 624, New Haven had agreed to buy from the plaintiff certain land, and water of Mill river sufficient to supply the city with pure water, and agreed to pay IfrO.OOO, and to erect a dam and canal to conduct sui-plus wafer for plaintiff's use. Specific performance was refused, on the ground that plaintiff had not parted with the land and possession, and consequently had means of complete redi'ess at law. (2) Lumley v. Wagnei-, 1 De G., M. & G. 604, per Lord St. Lbonahds. See Fechter v. Montgomery, 33 Beav. 22 ; Catt v. Tonrle, L. R. 4 Ch. 654. (3) Webster v. Dillon, 3 Jur. (N. S ) 432 ; Montague v. Flockton, L. R. 16 Eq. 189. 32 SPECIFIC PERFORMANCF! OF CONTRACTS. The American courts, which exhibit a strange disinclination to apply the preventive remedy of injunction to any enlarged uses, have not hitherto followed these modern English authorities, and refuse to enforce the performance of such personal contracts, either negatively or affirmatively. (1) Sec. 25. The doctrine of specifically enforcing negative contracts by injunction is well established in England, and has been partially adopted by the courts of this country. An agreement that the party will not do certain specified acts — especially if these prohibited acts relate to, or interfere with, property rights or business interests of the obligee — will be specifically enforced in a negative manner by enjoin- ing a commission of the acts, whenever damages would be inadequate, or the basis for their computation would be wholly speculative, con- jectural, or uncertain. The rule has been applied in the following instances, among others, in which the parties have been restrained from doing the acts described contrary to their stipulations. An agreement not to ring a bell; (2) an agreement not to carry on a trade ;(:5) or, not to carry on a certain trade in a place or district specified ;(4) an agreement not to erect buildings ;(5) or, not to erect buildings above a certain height ;(6) an agreement not to make application to Parliament for or against some private bill; (7) an agreement by a railway company not to run any- of its (1) Sanquirico v. Bennedetti, 1 Barb. 315 ; Harablin v. Dinneford, 2 Edw. Ch. 529 ; De Rivafinoli v. Corsetti, 4 Paige, 270 ; De Pol v. Sohlke, 7 Roberts, 280. But see Hayes v. Willio, 11 Abb. Pr. (N. S.) 167 ; McClurg's Appeal, 58 Pa. St. 51 ; Brown's Appeal, 62 Pa. St. 17 ; Machette v. Hodges, 6 Phila. 296 ; Gillis v. Hall. 2 Brews. 342. (2) Martin v. Nutkin, 2 P. Wms. 266. (3) Barret v. Blagrave, 5 Ves. 555 ; 6 Ves. 104 ; 'Williams v, Williams, 2 Sw. 253; 3 Mer. 157 ; Shackle v. Baker, 14 Ves. 468; Cruttwell v. Lye, 17 Ves. 335; Newberi-y v. James, 2 Mer. 446 ; Harrison v. Gardner, 2 Madd. 198. (4) Clements v. Welles, L. R. 1 Eq. 200; Clarkson «. Edge, 12 W. R. (M. R.) 518 ; Feilden v. Slater, L. R. 7 Eq. 523 ; Jones v. Bone, L. R. 9 Eq. 674 ; Carter «. Williams, L. R. 9 Eq. 678. Even when the party was an infant, if he had repi-esented himself as adult. Cornwall v. Hawkins, 41 L. J. (N. S.) 435 , Jones «!. Heavens, L. R. 4 Ch. D. 636 ; Catt v. Tourle, L. R. 4 Ch. 654. Covenant by purchaser that vendor, a brewer, his heirs and assigns, should have the exclu- sive right of supplying beer to any public house erected or opened on the land, enforced. (5) Rankin v. Huskisson, 4 Sim. 13. (6) Lloyd V London, Chatham & D. R'y Co., 2 DeG., J. & S. 568; Bowes v. Law, L. R. 9 Eq. 636. (7) Ware v. Grand Junction Waterworks Co., 2 R. & My 470, 483 ; Heathcote V. North Staffordshire R'y Co., 2 Mac. & G. 100 ; Lancaster, etc. R'y Co. i). Norlh Western B'y Cg., g K- & J. 293; ^nd see Taylor v. Davis, 3 Beav. 388, note. EXTKNT AKD LIMITATIOXS. 33 ordinary or fast trains— other than mail, express, or special trains — ^past a certain station without stopping for passengers to get on or to alight ;(1) an agreement in a separation deed between hus- band and wife that the children should attend such schools as their father should choose, and should spend their holidays where the trustees should direct, the trustees directing that they should spend one-half of the holidays with their father and the rest with their mother; (2) and to restrain an infringement of a charter-party. (3) (1) Hood V. North Eastern R'y Co., L. R. 8 Eq. 666 ; 5 Ch. 525 ; Ri^by i). Great Western R'y Co., 2 Ph. 44 ; 15 L. J. (N. S.) 266 ; Phillips v. Great Western R'y Co., L. R. 7 Ch. 409 ; 20 W. R. 562. (2) Hamilton v. Hector, L. R. 6 Ch. 701. The husband refusing to allow the children to visit the mother, and taking them to hia own house entirely, he was restrained from interfering with their passing such time with the mother as the trustees should dii-ect. While the father could not, by agi-eement, deprive himself of all control over his children, this bargain was reasonable and should be enforced. The following are some recent American cases upon the doctrine dis- cussed in the text. The contract has been enforced by injunction in Gillis v. Hall, 2 Brews. (Pa.) 342 (a negative covenant) ; Manhattan Manuf., etc., Co. v. New Jei-sey Stock, etc. Co., 23 N. J. Eq. IGl ; Manhattan, etc. Co. v. Van Keuren, ib. 251 J Haskell v. Wright, ib. 389 ; Parker v. Garrison, 61 111. 250 (a contract to sell pereonal property, enforced by injunction under special circumstances) ; Berger V. Armstrong, 41 Iowa, 447, and Spicer v. Hoop, 51 Ind. 365 (both of these cases were of conti-acts not to engage in a trade) ; Richardson v. Peacock, 26 N. J. Eq. 40, and see Harkinson's Appeal, 78 Pa. St. 196 (contracts not to engage in trade) ; Frank v. Brunneman, 8 W. Va. 462 (a lessee restrained from breaking covenants of his lease) ; and see Agate v. lowenbein, 4 Daly, 62 ; Singer's Manuf. Co. v. Union Buttonhole, etc. Co., 6 Fisher's Pat. Cas 480. In M(;Arthur v. Ashmeatl, 2 Brews 533, the vendee in a land contract was enjoined in aid of the vendor's right to a specific pei-formance ; Barnes v. Barnes, 65 N. C. 201 ; Steward v. Winter, 4 Sandf. Ch. 587. In the following cases an injunction was refused; the refusal, however, being based upon the nature of the contract as not being one which equity could enforce at all, or upon the cii-cumstances of the case, and not upon the absence of power to enforce by injunction. In Caswell v. Gibbs, 33 Mich. 331, an agj-eement " never to tow vessels in competition with " plaintiff, was vei-y propei'ly held not to be enforceable by injunction (1), because it was too uncertain and indefinite, and (2), because every case of alleged breach would require aseparate investigation of fact, in order to ascertain whether there had been an actual violation. In Hahn v. Concordia Soc, 42 Md. 460, a contract was secured by what the court decided to be a stipulation for liquidated damages, and not a penalty. Held, therefore, that the court would not enforce by injunc- tion, but would leave the plaintiff to his action for the damages. Hile ti. Davison 20 N. J. Eq. 228. Held, that, under the facts, the vendor in a land contract should not bu enjoined from collecting the securities given hinri for the price. See, also, Giegg r. Lanilis, 21 N. J. Eq. 494. (.'!) DeM:it,tos v. Gibson, 4 DeG. & J. 276 s Seawell v. Webster, 7 W. R. 691 \ Messageries Imperiales Co, v. Baines, 11 W. R. 322; Jervinu, Desh*ndes, Jj, R. 3 Cb, 457, 3 34 SPECJFIC FERF0R3IANCE OF CONTRACTS. But the court will not interfere to restrain the breach of such a stipu- lation where it is merely ancillary to a more general contract, which cannot be specifically enforced in its entirety. (1) Sec. 26. Inadequacy of damages, Nature of. — The foregoing exam- ples, selected from various classes of contracts, although by no means exhaustive, sufiiciently illustrate the nature and use of the equitable remedy of specific performance considered as a means of supplement- ing the inadequate legal relief of damages. Before proceeding to consider the second basis of the jurisdiction, I shall attempt to ascer- tain and state the exact import of this inadequacy, and the conditions under which it exists, so that the equitable remedy becomes admis- sible. Sir John Leach once, in decreeing a specific performance, gave the reasons for his decision in the following language : " Because a court of law could not give the property, but could only give a ■ remedy in damages, the beneficial effect of which must depend upon the personal responsibility of the party." (2) If this dictum were a correct statement of the principles upon which the courts of equity proceed, it is plain not only that the remedy would at times be extended to every species of contract, but also that it would never be extended to all contracts i)f any particular class ; in other words, its use would depend not upon the nature and terms of the contract sought to be enforced, but upon the pecuniary condition of the party, his ability to pay the judgment of damages which might be recovered against him. There are expressions scattered through the judicial opinions — such as " the right to obtain a specific performance is not absolute, . but depends upon the circumstances of each particular case" which must be carefully restricted to their exact connections and meaning, or else they will be very misleading. These general expressions describing the eff"ect of circumstances, etc., have no relation whatever to the adequacy of damages as a compensation, but refer exclusively to those surrounding facts and incidents which influence and guide the judicial discretion to decree or not the specific performance of a (1) Merchants' Trading Co. v. Banner, L. R. 12 Eq. 18, per Lord Romillt, M. R., who said : '■ The real principle is, that where the stipulation sought to be enforced is really a part of the contract itself, this court cannot specifically perform the contract piece-meal, but it must be performed in its entirety, if performed at all j and when the court cannot perform it in its entirety, neither can it perform any particular portion of it." (2) In Doloret v. Rothschild, 1 S. & S. 590. In a few early American cases, also, the insolvency of the defendant is stated as a partial reason ; at least, as a make-weight for granting the relief. EXTENT AND LIMITATIONS. 35 contract which it is assumed might, under the proper conditions, be BO conferred.(l) (1) Certain observations of Beck, C. J., in the recent case of Richmond ■». Dubuque, etc., R. R., 33 Iowa, 423, 4S0, mig-ht seem, on a superficial readings, to be diametrically opposed to these statements of the text. As the case is an inter- esting one, and received very careful consideration from the counsel and the court, I shall quote from it at some length. The contract was very special. It contained, in substance, the following provisions : 1. The defendants — the rail- road company — leased certain land to plaintiffs for fifteen years, with the option of extending the term fifteen yeai-s more. 2. Plaintiffs agreed to erect and main- tain on said land an elevator of sufficient capacity to handle all the grain received by defendants' i-oad, and to inci-ease the capacity if necessary. 3. Defendants agreed not to ei-ect any similar structure, nor to lease any other land at the place for that purpose. 4. Defendants agreed that plaintiffs shall have the handling of all throngh grain transported on their road, and to pay a specified compensation per buLhel for handling and storing the grain delivered by them at said elevator. 5. Defendants agreed at the expiration of the term to pay to the plaintiffs the appraised price of the building. Defendants broke the agreement by refusing to deliver the '* through grain '' at the plaintiffs' elevator, which had been erected, etc., and, of course, refusing to pay any compensation. The plaintiffs brought this action, praying that defendants' agi'eement might be specifically enforced, or that damages might We awarded for its breach. The court held, that the actual damages sustained by the plaintiffs could be ascertained with sufficient exactness and certainty, and that such damages constituted an adequate compensation, and that, therefore, a specific performance would not be decreed. No allusion is made in the opinion to the impossibility of specifically enforcing the contract, even if damages are conceded to be inadequate, although that question was exhaustively discussed by the counsel. In the introductory part of the opinion by Buck, Ch. J., the following passage occurs, which contains the language referred to at the commencement of this note (p. 480) : " It is impossible to state a general I'ule as to the power of equity to enforce a specific performance of contracts I'especting peraonal property, choses in action and personal services. It is often said that in such cases equity will not entertain jurisdiction. But this doctrine is subject to an exception, or is, i-ather, limited in its application to cases where compensation in damages does not furnish a complete and satisfactoi-y remedy. The rule is stated, in other words, viz., when the contracting party is entitled to the subject- matter of the contract, and cannot be fully compensated therefor, equity will afford relief. And it is often expressed, in another form, as follows : Equity will not interfere when the injured party has an adequate remedy at law. Now, in the application of the rule, as it is variously announced, the important inquiry always is : What constitutes a complete and adequate remedy, and when would this be afforded by the allowance of damages ? It is sometimes said that equity will not interfere because the law will award damages ; and in other cases that equity will interfere in cases when the law will give damages, on the ground that the party is not fully compensated thereby. The fact that a court of law will award damages in a given case does not deprive equity of jurisdiction. To deprive the party of an equitable i-emedy, the damages recoverable at law must be a full compensation and constitute adequate relief. Equity determines this question. We must apply its doctrines, in ordei- to pronounce the relief adequate or inade- quate. But here we find no fixed rule to guide us other than this one, which is general in its language and applic^tipji ; the remedy sought must be indispen§r 36 SPECIFTC PERFOHMANCE OF CONTRACTS. Sec. 27. In fact, the adequacy or inadequacy of damages, as a remedy, is not determined by the relations of the parties and terms of able to justice. But natural justice is not meant, for upon its principles it would appear that all men should be required to speeitically perform their contracts. The conclusion is reached that the rules are so general in their nature that but little aid ia derived therefrom in determining- whether the relief affoi-ded by the law in a given case will be deemed by equity adequate. Each case is deter- mined upon its own facts and the application of ejuitahle principles." Although there is much in this quotation which is admirable — especially the proposition that thp question of the adequacy or inadequacy of legal relief, in every case, must be determined upon equitable principles, applied by the equity tribunal exercising the remedial jurisdiction — yet, there are several' obvious criti- cisms which must be made upon some of its positions, upon its general reasoning, and upon its conclusion. 1. In the first place, the passage is entirely obiter, not necessarily involved in the matters at issue, and not entering into the ratio deci- dendi of the case. The contract itself is plainly one which could not be specifi- cally enforced. It was clearly impossible for the court to compel the plaintiff to maintain his elevator through a period of fifteen, or perhaps, thirty yeara, so as to handle all the grain the defendants might transport, and, upon the principle of mutuality, it could not, therefore, be enforced against the defendants. The ques- tion of specific performance was, therefore, out of the case at the very beginning. Again, it is plain, and so the court holds, that damages were not only an adequate remedy, but that they could be easily computed. In fact, all the plaintiff sought to obtain was compensation for handling the grain — tliey asked a specific performance, by defendants, only that they might earn that compensation, and this compensation would be ascertained at law in exactly the same manner, and upon the same proofs, as in equity. If the measure of damages was the jirice per bushel, as stipulated in the contract, the number of bushels transported by defendants, within the time, would, at once, furnish the desired sum. If additional profits were allowed, they would be computed upon the same basis, and the same evidence, in both courts. It is obvious, therefore, that the case was, as the court treated it, and expressly declared, a, simple action at law, to recover damages, which the parties had improperly brought on the equity side, and all that wai said, concerning the equitable jurisdiction to decree a specific performance, was irrelevant and immaterial. 2. In the second place, the conclusion, that the ques- tion of adequacy or inadequacy of the legal remedy of damages, in " each case, must be determined upon its own facts," does not follow, as a legitimate nor just inference, from the premise, that " it is impossible to state a general rule as to the power of equity to enforce a specific performance of contracts respecting personal property, cho.ses in action, and personal services," nor fi-om the very genei-al nature of the definitions cited by the learned judge. It has never been supposed, that the doctrine of specific performance, as applied to all conti-acts, except those relating to real estate, could be expressed by one single, general foi-mula, which should furnish any aid in the decision of actual cases. The inherent differences in the nature of contracts concerning personal property, choses in action, and per- sonal services, prevent such a comprehensive stateipent irj a practical foi-m, and no judge or text writer has ever been foolish enough to attanipt it. But this fact is not inconsistent with the establishment and recognition of several definite rules, which determine the question of the adequacy or inadequacy of damages in many subordinate classes of contracts, and which, therefore, furnish the prin- ciples which regulate th^ courts in administering the equitable remedy to thqse EXTEiXT AXD LIMITATIONS. 37 their contract, considered as an individual separated from others of the same class, but by those relations and terms in the contracts gen- erally of the class to which the individual belongs. In other words, a particular contract, the subject of judicial action, is not treated as a single isolated case, and the inquiry is not whether from its special provisions, or from the peculiar situation of its parties, the remedy of damages would be adequate or inadequate ; it is rather treated as one of a class, and the inquiry is whether, in agreements generally of that kind, the terms or the relations of the parties are such that the legal remedy of damages is adequate or . inadequate. For example, in a contract for the sale of land, where the vendor had received the price and had refused to convey, it might possibly be proved, with absolute - certainty, that, from the peculiar condition of the land in question, or of the real estate market, or of the purchaser himself, the value of the property in money would be altogether more advantageous to him than the Iract in specie, for which he had bargained. No matter how clear the proof in this individual case, the court would not hesitate classes. It is a mistake to say, that, in deciding upon the adequacy of the legal remedy for all contracts, except those concerning lands, "there is no fixed rule to guide us, other than this one — that the remedy must be indispensable to justice." It has been shown, in the preceding sections, that the doctrine of specific per- formance recognizes no dififerences inhering in their subject-matter, between contracts relating to real estate and those relating to personal estate, or personal services, but the same general principle is applied to all alike. It has, also, been shown — and the fact will be further illustrated in subsequent portions of this vol- ume — that with respect to many, and I may truly say most, classes and species of pei-sonal contracts, the i-ules which determine the adequacy or inadequacy of the legal remedy, »nd the consequent applicability of the equitable remedy, are as well settled, as certain, and as precise, as those which determine the same mattei-s with respect to contracts concerning-lands. 3. Finally, waiving the fore- going criticisms, the language of Mr. Ch. J Beck, although somewhat loose, is not, when correctly interpreted, and read under the limitations fui-nished by the facts of the case — which must always be put upon the general expressions found in a judicial opinion — inconsistent with the positions of the text. He does not claim that the question, as to the sufficiency of the legal remedy, must be decided upon the facts and circumstances of each pai'ticular case of contract, treated as an individual instance, and without reference to the dais, kind, or species of agree- ments to which it belongs. He does not mean, for example, that an ordinary con- ti-act for the sale of merchandize should be specifically enforced against the seller, because, it appears, that he is insolvent, and cannot pay the damages, or that, from the peculiar situation of the purchaser, the goods, in specie, would be more advantageous to him than their value in money. The leai-ned judge admits that each case must be decided "by the application of equitable principles," and that the "justice " to be promoted is the somewhat artificial justice dispensed and for-, mulated by the decisions of equity ti-ibunals. These expi-essions, although loose, really admit the operation of all the special rules which have been settled by the courts, and described in the text. 38 SPECIFIC PERFORMANCE OF CONTRACTS. for a moment, on such grounds, to decree a specific performance if demanded, because the doctrine is settled that in contracts for the pur- chase and sale of land, as a class, damages are inadequate, and this general rule would not yield to the special circumstances of a particu- lar case. (5n the other hand, in a contract for the sale of ordinary merchandise, the purchaser might show his peculiar situation which rendered the goods greatly more advantageous to him than their value in money, — as, for example, his personal need of the articles and his distance from a market which would enhance the cost of procuring others of the same kind, and yet he could not, by paying or tendering the price, compel a specific performance and a delivery of the goods, , because the rule is settled that in contracts for the sale of ordinary merchandise and other similar chattels, the legal damages are adequate. These supposed cases sufficiently explain my meaning. In administering the equitable remedy of specific performance, and so far as it depends upon the adequacy or inadequacy of legal dam- ages, the courts are guided by considerations which have respect to classes of contracts having the same or similar qualities and incidents connected with their subject-matter, terms, or parties, and rules are established with greater or less certainty, precision, and comprehen- siveness for each class separately. It should be observed, in conclud- ring this discussion, that the adequacy or inadequacy of the legal remedy, in all cases, must be determined upon equitable principles. As equity alone can administer the relief of specific performance, equity alone can decide whether the conditions for its exercise exist in any contl-act; and, in making the decisions, must, apply the prin- ciples and doctrines which are recognized as the basis of its own juris- diction, and not those which control the action of another forum.(l) Sec. 28. Second. The impractieahility of a legal remedy. This second ground of the equitable jurisdiction includes two cases, (1) where, from the lack of some legal formality or condition in the contract, no action at law can be maintained ; and (2) where, from some peculiar feature of the contract, inhering either in its subject-matter, in its terms, or in the relations of its parties, it is impossible to arrive at a legal measure of damages at all ; or at least with any sufficient degree of certainty, so that no real compensation can be obtained by means of an action at law. Both these cases may be combined under the single designation — the impradicahility of damages as a rem.edy. Several species of contracts, referable to the first ground as well as to this, (1) See per Beck, C. J., in Richmond v. Dubuque, etc., Railroad., 33 Iowa, 480, 481. EXTENT AND LIMITATIONS. 39 have already been discussed in preceding sections, and need, there- fore, only to be mentioned in the present connection without any extended description. I shall proceed to enumerate, and, as far as necessary, describe the various kinds of agreements which are specifi- cally executed, because a legal remedy of damages is inipracticable. Sec. 29. The first general class embraces those contracts in which the plaintiff, by reason either of some extrinsic circumstance, or of his own default, has not performed, or even cannot perform, all the conditions on his part neces&aiy to be performed, in order that an action at law may be maintained thereon ; but which, nevertheless, a court of equity regards as binding and will enforce. The law holds parties strictly to the very terms of their engagements, and demands from the plaintiff an exact performance of all the stipulations on his part which are essential to a recovery, or else no legal right of action accrues t.o him. Equity distinguishes between those terms and stipu- lations which are of the essence of the contract, and those which are not of the essence, and does not permit the defendant to set up a breach of the latter as complete bar to all relief, or as a sufficient reason for wholly refusing to execute the agreement. In these cases no action at law can be maintained ; but equity, if the contract is otherwise a proper one, will decree a specific performance with such compensations or allowances as may be found just to the parties. - The principle was thus stated by Lord Eldon : " Lord Thurlow used to refer the doctrine of specific .performance to this — that it is scarcely possible that there may not be some small mistake or inaccu- racy — as, that a lease held in trust represented to be for twenty-one years may be for twenty years and nine months — some of these little circumstances that could defeat an action at law, and yet lie so clearly in compensation that they ought not to prevent the execution of the contract."(l) Even when the partial failure or inability to perform, and the consequent loss of a legal remedy, result directly from the default of the plaintiff himself, the contract will be specifically enforced, if the relief is demanded by equitable principles ; as, for example, when the plaintiff has performed substantially, but not with such exactness in respect to all the terms that he could maintain an action at law.(2) In this general class are included all the cases (1) Mortlock V. BuDer, 10 Ves. 305, 306 ; and see Stewart v. AUiston, 1 Mer. 26, 32. (2) Davis V. Hone, 2 Sch. & Lef. 341, 347; Voorhees «. DeMeyer, 2 Barb. 37; McCorckle v. Brown, 9 Sm. & Marsh. 167 ; CoaJe «. Barney* 1 Gill & 3ohxi. 324 j Shaw V. Livermore, 2 Greene Iowa), 338. 40 SPECIFIC PERFORMANCE OF CONTRACTS. where, from a partial failure by the plaintiff, a specific execution is decreed with compensation on abatement. Sec. 30. The second general class embraces contracts which are not valid iu law — that is, which the law does not treat as contracts at all ; but which#quity regards as binding in conscience, and enforces by its remedy of specific performance. The legal invalidity may result from the non-observance of some statutory requirements concerning the mode of making the agreement, or from certain doctrines of the common law, irrespective of statute, affecting its terms or its subject- matter. By far the most numerous and important species of contracts contained in this class are those which, being void at law under the statute of frauds, have been part performed by the plaintiff, and will, therefore, be wholly executed in specie, at his suit and for his benefit, by courts of equity. The theory upon which equity proceeds in administering its specific remedy in such cases is, that the defendant having permitted the plaintiff to treat the agreement as binding, and to do positive acts based upon such assumption, it would be a fraud in him to repudiate his undertaking, and to set up the statute as an obstacle in the way of its completion. The doctrine is most frequently applied to contracts for the sale of land which have been part per- formed by the purchaser, but is not confined to them ; it is extended to those contracts concerning things personal or things in action which the statute of frauds requires to be in writing, but which, when verbal, are in their nature susceptible of a part performance ; as, for example, verbal ante-nuptial agreements for the settlement of personal estate. (1) In order that the court may exercise its jurisdiction and specifically enforce a verbal contract void by the statute, which has been part performed, the agreement must be of such a nature, in respect to its (1) Gough V. Crane, 3 Md. Ch. 119 ; 4 Md. 316. Contracts for the sale of chat- tels, or things in action, do not fall within this principle, because the veiy acts ■which would amount to the part performance of the verbal stipulation, render it valid at law by the express provisions of the statute itself, and thei-e is no iieces- sity of any equitable interposition— such as a part payment in whole or in jiart of the price, and receipt and acceptance in whole or in part of the chattels. The jurisdiction where contracts void by the statute of frauds have been part performed, will be fully examined in the sequel, anil I now cite a few cases only to illustrate the propositions of the text. Buckmaster v. Harrop, 7 Yes. 346, jier Sir WiLLiiM GitANT ; Mundy v. JolUffe, 5 My. & Ci'. 177, per Lord Cottexham ; London, etc., R'y Co. v. Winter, Cr. & Ph. 57 ; Earl of Lindsey v. Great Northern R'y Co., 10 Ila. C64, 700 ; Kii'k v. Bromley Union, 2 Phil. 640 ; Phillips v. Thomp- son, 1 John. Ch. 131 ; Loi-d v. Uiiderdunk, 1 Sandf. Ch. 46 ; Jervis v. Smith, 1 Hoff. Ch. 470; Annan v. Merritti 13 Conn. 478. EXTENT AND LIMITATIONS. JM. terms and its subject-matter, that the court could decree its specific execution if it were in writiiig.(l) Sec. 31. There are argreementa which the common law, 'by virtue of its own doctrines, irrespective of statutory regulation, treats as invalid, as not contracts, and for which it furnishes no remedy ; but which equity, in the application of its conscientious principles, considers as binding, and enforces by awarding its relief of a specific perform- ance. The following are some examples: An agreement respecting the disposition of a possibility or hope of succession is not valid at the common law, so that if an heir, during the life-time of his ances- tor, should assign his expectancy, or agree to convey the property, the contract wo>ild be legally void, although he should afterwards inherit or succeed to the estate.(2) Equity, however, will hold such (1) Kirk V. Bromley Union, 2 Phil. 640. Mr. Fry states this doctrine much broader, as follows : '• The agreement must be of such a nature that the court would have had jurisdiction in respect of it, in case it had been in writing. When the court has jurisdiction in the original subject-mattei', viz : the contract, the want of writing, will not deprive the court of it where there is a part pei'foi'm- ance. But the want of wi-iting cannot itself be made the ^ -ound of j urisdiction ; for then, all parol contracts, which the statute of frauds requii'es to be in writing, might be enforced io equity when there was a part performance." Fry Sp. Perfm. p 178 (marg. page), § 392. The case cited does not, on its facts, involve such a broad conclusion ; it only insists that a verbal contract do work and labor, building, etc., part performed, could not be specifically enforced, because it could not be if it was written. I think the proposition is too bi'oad, and is based upon a mistaken notion of the foundation of the rule. It seems to me equity docs acquire jurisdiction for the very reason that there is no remedy at law, and applying other equitable principles, it iS inequitable for the party to set up and rely upon the legal invalidity. Why, then, does not the equitable I'emedy extend to all contracts void by the statute of frauds which have been part performed 1 It should be remembered, that the statute only embraces a few classes of contracts, viz : those containing land ; those for sale of chattels and choses in action, over $50 ; those not to be performed within a year ; those in contemplation of mar- riage, and those of guaranty. I have already explained why the second class do not fall within the equity remedy, viz : because the only possible acts of part performance inake them, valid at law under the statute. In i-egard to other con- tracts it is to be observed, (1), that, with respect to many of them, it is impossible that there should be any acts of part performance which can satisfy the require- ments of the equitable doctrines on the subject, viz : acts done by the plaintiff by virtue of the contract, treating it as a subsisting agreement, and of such an inti-insic character that he cannot be restored to his former position, so that it would be" a virtual fi-aud upon him to assert the invalidity of the agi'cement ; (2), that all other verbal contracts, which may be part performed, and which, never- theless, equity will not si)ecifically enfoj-ce, are of such a nature that a Fpecific performance would be impossible at all events, even if in writing. It is abund- antly settled that verbal contracts concerning personal property, part performed, Ttiaij be specifically enforced, if of such a nature that an enforcement is pi'acticable. (2) Jones v. Roe, 3 T. R. 88, 93. 4B SPECIFIC Performance of contracts. contracts to be binding, and decree their specific execution, if they are free from fraud, over-reaching, and other objections which would generally prevent all equitable relief.(l) Another case is that of agreements to assign things in action, which are enforced in equity, although at the common law choses in action are not assignable, and the assignee acquires thereby no title which he can assert in a legal action. (2) Still another case is that of executory agreements made between a man and woman who afterwards marry, and which, for that reason, become void at the common law, but which equity may specifically execute against the husband or wife, as the case may be, at the suit of the other.(3) The last example which I shall mention is the case of contracts made by an owner to convey his land at some future day named, and he dies before the time for completion arrives. At the common law the contract is thus rendered impossible, and no action can be maintained upon it. The administrator cannot convey, because he acquires no interest in the land, and no legal obli- gation devolves upon the heir. Equity, however, enforces a specific performance upon the heir.(4) Legislation, in many of the states of this country, has .modified the legal dogmas upon which some of the foregoing cases of equitable relief were originally based, and have wholly or partially removed the invalidity which existed at the com- mon law. In nearly all the states all things in action, except claims to damages for personal torts, and a small class of contracts of a specially personal nature, are assignable, so far, at least, that the assignee can sue at law upon them in his own name. Contracts made between men and women, in contemplation of marriage, are declared to remain in full force and effect between the parties after their mar- riage in New York.(5) In many states the heirs of a vendor, adult (1) Wiseman v. Roper, 1 Rep. in Ch. 154 ; Beckley v. Newland, 2 P. Wms. 182 ; Hobson V. Trevor, 2 P. Wms. 191 ; WHght v. Wright, 1 Ves. Sen. 409 ; Wethered V. Wethered, 2 Sim. 183 ; Hyde v. White, 5 Sim. 524 ; Lyde v. Mynn, 1 My. & K. 693; Alexander v. Duke of Wellington, 2 R. & My. 35; Houghton v. Lees, 1 Jur. (N. S.) 862 ; Lewis v. Madisona, 1 Munf. 303 ; Pj-ice v. Winston, 4 Munf. 63. In some of these cases the succession was by descent ; in others by will. (2) See cases cited ante, § 20. (3) Cannel v. Buckle, 2 P. Wms. 242 ; Acton v. Acton, Prec. in Chan. 237 ; Gould V. Womack, 2 Ala. 83 ; Crostwaight v. Hutchinson, 2 Bibb. 407. (4) Milnes v. Gery, 14 Ves. 403, in arguments of counsel ; Glaze v. Drayton, 1 Dessau. 109 ; Wilkinson v. Wilkinson, 1 Dessau. 201 ; Saunders v. Simpson, 2 Har. & John. 81, where a contract to convey was enforced against devisees of the vendor ; Newton v. Swazy, 8 N, H. 9. (5) Laws of N. Y. 1849, ch. 375, § 3. EXTENT AND LIMITATIONS. §& or infant, are made liable to fulfill his contracts to convey, i^fiiey have inherited the lands ; and sometimes a special summary jj^ceed- ing, for cgmpelling a specific performance against the heirs, has been given by statute in addition to the more formal suit in equity.(l) Sec. 32. To the same general class may be refei-red, I think, a peculiar case, which has arisen in England, under the statutes giving railway and other companies compulsory power to take the land of private owners for their own public uses — " the Lands Clauses Con- solidation Act." When a notice to treat for certain land, as pre- scribed by the statute, has been served on the owner by the com- pany — at all events, when, in pursuance of such notice, the price to be paid for the land has been fixed by the arbitrator — a relation, having all the effect of a contract in equity, at once arises between the p irties. No acceptance by the owner is necessary, since he has no power to refuse, and, by virtue of the statute, he and the company acquire the rights and obligations of vendor and purchaser. Although there is clearly no contract in this transaction, since there is no mutual assent, yet equity treats it as a contract, and will enforce a specific performance against either of the parties at the suit of the other.(2) Under the analogous statutory means for acquiring land by the right of eminent domain in the United States, it is settled that no such ' relation between the owner and -the corporation arises from the com- mencement or prosecution of the proceedings. The owner acquires no rights against the corporation to compel it to proceed, its acts are tentative, and it can entirely abandon the proceedings at any time prior to the order of the court confirming the report of the commis- sioners, or of the jury, and directing the payment of the amount awarded for compensation and damages, and' perhaps at any time (1) See the subsequent section on this subject. Ordinarily an heir is not com- pelled to bind himself by personal covenants when executing- the contract to con- vey made by his ancestor. See Hill v. Ressegieu, 17 Barb 1G2. (2) Walker v. Eastern Counties Ry. Co., 6 Ha. E91 ; Doo v. London and Cory- don Ry. Co., 1 Railw. Cas. 2.57 ; Stone v. Commercial Ry. Co., 4 My. & Cr. 122 ; Reg-. V. Bii-mingham, etc., Ry. Co., 15 Q. B. 634, ovei-ruling Brocklebank v. Whitehaven Junction Ry. Co., 15 Sim. 632 ; Harding v. Metropolitan Ry. Co., L. R. 7 Ch. 154 ; Harding v. Metropolitan Ry. Co., 20 W. R. 321 ; Doherty v. Waterford, etc. Ry. Co., 13 Ir. Eq. R. 538, per Ld. Chan. Brady. And see on this subject' Adams -u. Blackwall Ry. Co., 2 McN. & G. 118 ; Morgan v. Milman, 3 De G., M. & G. 33, pel- Knight BnncE, L. J. ; Leominster Canal Co. v. Shrewsbury, etc.,Ry. Co., 3 K. & J. C54 ; 3 Jur. (N. S.) 930 ; Inge v. Birmingham, etc., Ry. Co., 3 De G., M. & G. 6.-18 ; 1 Sm. & G. 347 ; Regent's Canal Co. v. Ware, 23 Beav. 575 ; Doug- lass V. London & N. W. Ry. Co., 3 K. & J. 173. 44 , SPECIFIC PERFORMANOB OF CONTRACTS. before the actual payment or taking possession of the ]and.(l) Even when the rights of the parties, the one to the land and the other to the money awarded, have been fixed by means of the statutory proceedings, they are not enforced in ecpiity by a suit ,for a specific performance. "When, however, the corporation has taken possession of the land without payment of the damages awarded, the owner has, in some states, a vendor's lien, which he may enforce, in the usual manner, by an equitable action. If, instead of resort- ing to the special statutory proceedings for acquiring title, the corpo- ration enters into an ordinary contract with the owner for the sale and purchase of the land, a court of equity could decree a specific per- formance against either party, as in the case of all similar agreements. Sec 33. A third class, or, more correctly, group, consists of contracts concerning a subject-matter which would admit a sufficient remedy in damages, but which are so connected with circumstances and inci- dents, or are so incomplete in their terms, that a common-law action upon them cannot, perhaps, be maintained, and which, nevertheless, equity considers as binding, and enforces by its own remedy of spe- cific performance.. As the interposition of equity here depends upon the form and incidents, and not upon the subject-matter, these agree- ments may be of various kinds. The following are instances : An agreement for the purchase of timber was not the final contract, in form, between the parties, but was to be made complete by subse- quent writings. The remedy for its breach, by an action at law, being doubtful, on account of this incompleteness, the court of chan- cery decreed its specfic execution. (2) Contracts for the purchase of a debt or other thing in action, when the plaintiff does not acquire the legal title so as to enable him to sue at law, are, on the ground above stated, among others, enforced in equity. (3) At an early day, it was held that equity would never interfere to specifically execute a con- tract, for the breach of which an action at law for damages could not (1) This is the settled doctrine under the foi-ms of statutes ordiiiarijy existing. SeeStacey v. Vt. Cent. R. R., 27 Vt. 39, and cases cited; Baltimore, etc., R. R. V. Nesbit. 10 How. U. S. 395 ; In re Commissioners of Wash. Park, 56 N. Y. 144 ; 1 Redfleld on Railways, 256, J 3 (5th ed). (2) Buxton V. Lister, 3 Atk. 383, per Lord Haedwiokb. This doctrine does not extend to all incomplete contracts, but only to those so technically incomplete as to render an action at law doubtful, but not so incomplete as to prevent their enfoi'cement in equity. (3) Wright V. Bell, 5 Pri. 325 ; Doloret v. Rothschild, 1 S. & S. 590. See West v. Wayne, 3 Mo. 16 ; Wheeler v. Clinton Canal Bk., Harring. Ch. 449 ; Philips v. Thompson, 1 Johns. Ch. 132. JSX-IE.XT A.\D LIMITATIOKS. 4'5 be sustained.(l) This restriction no longer prevails ; and, in many- cases, where no action could be maintained at law for damages, the agreement will be specifically enforced in equity.(2) Sec. 34. The impracticability of the legal remedy, in the three foregoing classes, consists in the fact, that no action at law can be maintained upon the agreements, which, being binding in conscience, are, nevertheless, enforced by courts of equity. There are other cases, in which an action at law may be brought, but can give no practical relief, because there is no basis upon which damages can be ascer- tained with certainty ; in other words, there can be no legal measure of damages, but they must, of necessity, be a matter wholly of conjec- ture and assumption.(3) This lack of any certain basis upon which to calculate the damages according to legal rules, may inhere in the subject-matter of the agreement, or in the special nature of its terms. (1) Bettesworth v. Dean and Chapter of St. Paul's, Sel. Cas. in Ch. 66, 69. (2) Lennon v. Napper, 2 Sch. & Lef. 682 ; Cannel v. Buckle, 2 P. Wrns. 242 ; Getchell v. Jewett, 4 Greenl. 350 ; Andrews v. Andrews, 28 Ala. 432 ; Story Eq. Jur. § 741. (3) In Palmer v. Graham, 1 Pars. Eq. 476, 479, per King, P. J., this doctrine was clearly and forcibly stated : "That plaintiff could have maintained an action at law for this breach, cannot be doubted. But, has he not also the more effective remedy, in this court, of compelling- the specific execution of the contract, and of restraining defendant, by injunction, from any further violation of iti It is true, that, as a general I'ule, equity will not' entertain jurisdiction for the specific exe- cution of agreements i-especting things merely personal in their nature. Yet, this rule is limited to cases where a compensation in damages furnit^hes a complete and satisfactory remedy. But in cases where there exists an utter uncertainty in^ any calculation of the damages arising from the breach of a contract personal in its nature, where the measure of damages is purely conjectural, eiuity mil intervene, bscause, though there tnay exist a remedy at law, yet that remed,y is inadequate and insufficient. The nearest analogies to a case like the present are to be found in bills brought to prevent a vendor from setting up a trade in the vicinityof a place where he had formerly cari-ied on that trade, the good-will of which he had sold, under an agi-eement not to establish a similar trade within certain defined limits. In such cases, equity has enforced the specific execution of the contract, by enjoining the vendor against setting up the trade within the prescribed limits, on the ground of the inadequacy of an action at law to give the party aggrieved a full and perfect remedy for such a breach of good faith. Citing Harrison v. Gardner, 2 Madd. 198 ; Williams v. Williams, 2 Sw. 253. In each of these caser, an action at law could have been entertained ; equity, howevei-, entertained jurit- diction, bacause it was only by compelling specific performance of the agreement that plaintifi' could obtain complete and perfect justice. In principle, ^Ve can per- ceive no distinction between these cases and the present. Although an action at law might lie, yet such an action is subject to all the objections of inadequacy and insufficiency, and the measure of damages therein would be equally uncertain and conjectural, as in the cases cited, where equity has given relief, because of the want of fullness in the common-law remedies.'' 46 SPECIFIC PERFORMANCE OF CONTRACTS. I shall simply enumerate the most familiar and illustrative examples. To the first head — of subject-matter — may be referred all contracts concerning unique and precious articles, heir-looms, rare paintings, old furniture, and the like, in which there is no market price to fur- nish a criterion, nor any other means of estimating the pretium affec- twnis, which constitutes the real value to the owner. (1) Also, contracts for the delivery of deeds, other muniments of title, and instruments in writing, whose value to the owner might be priceless, but is clearly beyond the competency of a jury to decide by the application of certain legal rules ;(2) and many contracts for the assignment and transfer of certain peculiar things in action, in which the damages for a breach would depend upon contingencies, apd be entirely conjectural.(3) To the second head — the special nature of the terms — must be refen-ed a variety of different agreements; among others, contracts in which acts are to be done, or articles delivered, by one party, and payments are to be made by the other, in installments, at stated times, through a number of years, and where, to compel the plaintiff to accept a present sum, by way of damages, for a non-performance, would be forcing him to sell his expected profits for a price wholly conjectu- ral; (4) contracts by artists, actors, singers, and others having special skill, or knowledge, to render personal services involving the use of such skill or knowledge, which are analogous to agreements concern- ing unique and precious chattels, there being no customary market price, nor other means, of ascertaining certain damages ;(5) and under- takings not to do certain specified acts, such as not to carry on a trade, »not to build, or not to build above a fixed height, not to ring a bell except at certain hours, for the broach of which pecuniary compensa- tion would be purely guess-work and assumption ; (6) contracts to erect defined structures, for the benefit of the plaintiff, upon land conveyed to the defendant, where the plaintiff would have no means of ascertaining the cost by performing the work himself, and thus fixing upon the actual damages resulting from a breach. (7) . The foregoing instances are sufficient to illustrate and establish the doc- trine, that equity may interpose and specifically enforce a large (1) See cases cited, ante, § 12 n. (1) (2) Cases cited, ante, in § 13, n. (1) (3) Cases cited, ante, § 20. (4) See cases cited, ante, J 15, (5) See ante, § 12, (G) AnU, § 24. (7) Ante, § 23, See, algo, for finothei' case, where equity has enforced an agree- ment, bec3,use a common-law coui't cannot, by its foi-m of judgment, do justice to all the parties j Beech «, Foi-d, 7 Ha, 208, DrSCRETIONARr CHARACTER OF THE EEMEDT. 47 variety of agreements, where the measure of legal damages is purely- conjectural, and the legal remedy of compensation is, therefore, wholly impracticable. These cases have also been, and generally are, cited to show that equity has jurisdiction where damages are inadequate; but the inadequacy here consists in the impossibility of arriving at any definite amount of damages, by means of the fixed and certain rules which govern the common-law methods of administering justice. SECTION II. The discretionary character of the remedy. Section 35. Having thus described the intrinsic nature of this equitable remedy as ancillary and supplementary to the ordinary legal relief of debt or damages, I shall next discuss, in a like general manner, the other important attribute mentioned in the introductory chapter — ^its discretionary character. Even where a contract belongs to a class susceptible of enforcement, the right to its specific perform- ance is not absolute, like the right to recover the legal judgment. The granting this equitable remedy is a matter of discretion. ; not, indeed, of an arbitrary, capricious discretion, synonymous with the mere pleasure of the judge ; but of a sound, judicial discretion, con- trolled by established principles of equity, and exercised upon a con- sideration of all the circumstances of each particular case. "Where, however, the agreement is in writing, is certain in its terms, is fair and just in all its provisions, is for a valuable consideration, and is capable of being enforced without hardship to either party, it is as much a matter of course for a court of equity to decree its specific per- formance, as for a court of law to award a judgment of damages upon its breach. This is the ordinary language as repeated by judges and text-writers. 1 propose to examine it with care, to analyze and com- pare the decisions, and to ascertain, if possible, the true nature and exact extent of this " discretion," which is constantly attributed to the jurisdiction. Asa preliminary, I have collected in the foot-note extracts from the judgments of several able courts, both ancient and modern, which will exhibit the judicial opinion in all its different forms of expression. (1) (1) Radcliffe v. Wai-rinffton, 12 Ves. 332. per Lord Erskine : "The jurisdiction is not compulsory upon the court, but the subject of discretion. The question is not what the court must do, but what it may do, under the circumstances, either 48 SPECIirU PEIitOUMANCE OF CONTRACTS. Sec. 3G. In determining the real force and effect of these judicial opinions, and in ascertaining the exact nature of the so-called " dis- cretion " exercised by the courts, it is necessary, in the first place, to ■»exei-cising the jurisdiction by granting the specific performance, or abstaining from it." Joynes v. Statham, 3 Atli. 388, per Lord Haedwickk : " The constant doctrine of this court is, that it is in their discretion whether in such a bill they will decree a specific performance, or leave the plaintiff to his remedy at law ;" and in Underwood v. Hitchcox, 1 Ves. Sen. 279, the same chancellor said : " The rule of equity in carrying agreements into specific performance is well known, and the court is not obliged to decree every agreement entered into, though for a valuable consideration, in strictness of law, it depending on the circumstances." The subject was carefully considered in the late case of Willard v. 'J'ayloe, 8 Wall. 557. The suit was by the vendoi* to enforce a contract empowering him to pur- chase leased property at the expiration of ten years, for a price which was con- ceded to be perfectly fair and I'easonable. The objection raised was that in the meantime the war had changed all the circumstances, the property had very largely increased in value, and the legal tender notes, with which the plaintiff pi'oposed to pay, were very much depreciated, compared with gold. The opinion of the court, per Field, J., after holding that the contract was legal, binding in law, and perfectly fair when made, proceeds (p. 565) : " When a contract is of this character, it is the usual practice of courts of equity to enforce its specific execu- tion, upon the application of the party who has complied with its stipulations on his part, or has seasonably and in good faith offered, and continues I'eady to comply with them. But it is not the invariable practice. This form of relief is not a matter of absolute right to either pai'ty ; it is a matter resting in the discretion of the coui't to be exercised upon a considei-ation of all the circumstances of each particular ' case " [citing several leading cases] (]i. 566). " It is true the cases cited, in which the discretion of the court is asserted, arose upon contracts in which there existed some inequality or unfair- ness in the terms, by i-eason of which injustice would have followed' a specific perfoi-mance. But the same discretion is exercised where the contract is fair in its tei'ms, if its enforcement, from subsequent events, or even from collateral cir- cumstances, would work hardship or injustice to eithei' of the parties," [citing City of London ■!). Nash, 1 Ves. Sen. 12; Faine v. Brown, cited tn Rarasden v Hylton, 2 Ves. Sen. 306] (p. 507) : " The discretion which may be exercised in this class of cases is not an arbitrary or capricious one, depending upon the mere pleasure of the court, but one which is conti'olled by the established doctrines and settled principles of equity. No positive rule can be laid down by which the action of the court can be determined in each case. In general, it may be said that the specific relief will be granted, when it is apparent, from a view of all the circumstances of the particular case, that it will subserve the ends of justice ; and th.at it will be withheld when, from a like view, it appears that it will bripg hardship or injustice to either of the parties. It is not sufficient to call forth the equitable intei'position of the court, that the legal obligation under the contract to do the specific thing desired may be perfect. It must, also, appear that the s)iecific enforcement will work no hardship or injustice ; tor if that result should follow, the court will leave the parties to their remedies at law, unless the gi'anting of the specific relief can be accompanied with conditions that will obviate that result. If that result can be thus obviated, a specific pei-formance will, generally, in such cases, be decreed cpndltiopaljy. It is the advantage of a court of equity, as DISCRETIONARY CHARACTER OF THE REMEDY. 49 distinguish between those expressions which are purely obiter, and those which are not. Such general language must be tested by and limited to the particular facts of the various cases in which it ie observed by Lord Redbsdale, in Davis v. Howe, 2 Sch. & Lef. 348, that it can modify the demands of parties according' to justice, and when, as in. that case, it would be inequitable, from a, change of circumstances, to enforce a contract specifically, it may refuse its decree, unless the party will consent to a conscien- tious modification of the contract, or what would generally amount to the ?ame thing, take a decree upon condition of doing or relinquishing certain things to the other party." Specific performance was, therefore, refused, unless the vendee would pay the piice and interest in gold, but decreed on condition that he paid in that manner, It will be seen, therefore, that the discussion on the subject of " disci-etion " formed a most important part of the ratio decedendi — in fact, was the very ground of the decision. Mai'ble Co. v. Ripley, 10 Wall. 339. In this case specific performance was asked of a peculiar contract, intended to run through many years and perhaps indefinitely, which was fair and equable when made. The relief was objected to, among other grounds, because, by a change in (ai-cumstances, the agreement had become one-sided, very advantageous to the party seeking the decree, and very burdensome to the party opposing. On this point the court, per Steong, J., said (p. 356) : " The next question is, whether Ripley was entitled, upon his cross-bill, to a decree against the Marble Company for a specific performance of the conti-act. The company urge that the contiact, though supposed to be fair and equal when made, has in the lapse of time, and by the operation of unforseen causes, ai'ising from changed circumstances, become exceedingly unfair, unreasonable, and unconscionable, so that a decree for its specific performance would tend to their oppression and i-uin. * * * It is by no means clear that a court of equity will refuse to decree the specific perfoi-ra- ance of a contract fair when it was made, but which has become a hard one by the force of subsequent circumstances, or changing events." Cites Fi-y, p. 116, ch. 6, that the hardship must be judged of at the time the contract was made. " Judge Story, indeed, states the rule somewhat diflfei-ently (§§ 750, 776), and there are some cases, that support his statements ; but the rule, as stated by Fry, must be applicable to contracts that do not look to completed performance within a defined or reasonable time, but contemplate a continuous performance, extend- ing through an indefinite number of years, or perpetually." The relief prayed for was refused on other grounds, so that these remai'ks were unnecessary to the decision. On another point he says (p. 357) : " There are other objections to a decree for a specific performance in this case, which are more serious. Such a decree is not a matter of right. It rests in the sound disci-etion of the court, and generally will not be made in favor cf a party who has himself been in default. * * * Applying these pinnciples to the case in hand, it would appear that the conduct of the cross-complainant has not been such as to justify the court in decreeing a specific performance at his suit against the Marble Company. With- out relying upon his alleged unfounded claims set up from time to time, etc., etc. ; his unlawful and unwarranted enti-y and ouster of the Marble Company was such an invasion of the contract as leaves him no standing as a complainant asking for its specific performance in a court of equity." Lowry v. Buffington, 6 W. Va 249, 255, per IIaymond, J. : " Applications to the court to compel specific performance, are addressed to its discretion ; but it is not an arbitrary or capncious dir-cre- tion, but a sound, judicial discretion, regulated by the established principles of 4 50 SPECIFIC PKRFORMANCE OF CONTBA.CTS. employed, and the judgments actually pronounced in those cases. Many of the passages quoted in the foot note had no relevancy what- ever to the matters in issue, or to the decisions finally made. I shall the court." This was a mere dictum, as the relief was granted, and the only- question in the case was one of fact, whether the alleged contract had been made. Fish V. Lightner, 44 Mo. 268, 272, per Curkier, J. : " Petitions foi- a specific per- formance of contracts are addressed to the sound and reasonable discretion of the court, which withholds or grants relief according to the circumstances of each particular case, when general rules and piinciples fail to furnish any exact measure of justice between the parties." Fish v. Leser, 69 111. 394. Defendant, a weak-minded man, ignoi'ant of business, just after the great Chicago fire, while he was much frightened thereby, was induced, by repeated solicitations of a per- son, to sign a writing authorizing that person, as his agent, to sell cei-tain lota in Chicago for $21,000 ; they were worth $30,000. and were rapidly increasing iu value ; extensive improvements were about to be commenced on adjoining lots, which would improve the value of the property. All these facts were well known to business men, but not to defendant, and he was not infoi-med of them by the pei'son who got the authoiity to sell, who was also agent for the buyers through- out the whole transaction. A specific performance against the vendoi' was refused. The court, per Craig, J. (p. 395), said : " Courts of equity will not always enforce the specific performance of a conti'act. Such applications are addi-essed to the sound, legal discretion of the court, and the court must be govei-ned, to a gi-eat extent, by the facts of each case as it is presented. Specific performance will not be decreed unless the agreement has been entered into with proper fairness, and without misapprehension, misrepresentation, or oppression. The contract must be fair, equitable, and just, and the complainant should be prepared to show that it will not be unjust or oppressive on the defendant to hav? the contract enforced." The court did not, in fact, decide this case upon any discretion, for they subse- quently held that the contract could be set aside as fraudulent against the vendor, because his agent was also the secret agent of the purchaser. Stone v. Pratt, 25 JU. 25. This was a, suit by an assignee of a part of a land contract against the vendor. The court, per Caton, Ch. J. (p. 34), said : " This is a bill for the specific perfoi'mance of an agreement by one who at law has no claims whatever upon the defendant — at least in his own name. Such a bill is always addressed to the sound discretion of the court, which must be governed by the circum.stances of each case as it is presented. In Lear -w. Chouteau, 23 111. 39, this court said : " In order to induce a court of equity to enforce specifically a contract, it must be founded on a good consideration ; it must be reasonable, fair, find just. If its terms are such as our sense of justice revolts at, this court will not enforce it, though admitted to be binding at law." It may be added, that the complainant must show no oppression or unconscionable advantage, when he comes into a court of conscience asking for a i-emedy beyond the letter of his strict rights. He must not ask for a favor beyond his technical legal rights when he bases his claim to that favor upon a hard, oppressive, technical advantage. He must stand before the court prepared to meet its scrutiny without a blush, relying upon the advocacy of «. well-regulated conscience in his favor. Such must not only be his own position, but he must show that it is not unjust or oppres- sive to the defendant to compel him to perform specifically. Let us examine the position of these parties. Waiving the question of the division of the contract, the complainant, before he could call on the defendant to convey to hini this lp.n4, DZSCRETIONARY CHARACTER OF THE REMEDY. 51 attempt, by analyzing these opinions, and by comparing them with the facts to which they relate, and with the decrees to which they led, to reach a definite statement of the doctrine, and to ascertain the pre- was oblif^ed to satisfy an obligation which secured to this defendant about §1,000. He attempts to do this not by paying him, or any orie else having a right to receive the money, the actual amount due, or to become due, on the contract, but he pur- chases the contract at a forced sale for $1,000. (The defendant's interest in the con- tract had been sold at a judicial sale, based upon some alleged clause of forfeit- ure). This is the extent of his merit. The defendant, by his contract with D'Wolf (the original vendee), was entitled to receive about $4,000 before he could be asked even by D'Wolf himself to convey any portion of the premises. Now, what has he realized for this $4,000 worth of land? Absolutely nothing. His claim or right to recover the money was sold (and upon the validity or effect of that sale we pass no opinion i, to pay a forfeit. Nothing more — nothing for which he had received value. Now, all this may have been a strictly legal transaction. The defendant, by his own folly, may have frittered away his legal lights to this money or to the land, but it is pot such a transaction as should induce a court of equity to throw down the legal barriers which surround the defendant, and com- pel him to do more, for the ease and benefit of the complainant, than the strict rule of law will give." This opinion, which was not obiter, but necessary to the decision made, is an admii'able statement of the docti-ine, and goes far towards explaining the exact nature of the " discretion," so often mentioned, and showing the true grounds upon which it rests. Quinn v. Roath, 37 Conn. 16. Suit against a vendoi- to compel a conveyance. There had been a slight delay of the plaintiff in making a payment stipulated to be made on a certain day, and this was relied upon as a defense. The relief asked was granted. Opinion by Phelps, J. (p. 24) : " Whether a specific performance of a contract shall be decreed is, in a g-i-eat measure, dependant upon the exercise of a sound judicial discretion, not arbitra- rily or capriciously, but reasonably, according to the circumstances of the partic- ular case. * * * Every agreement, as to time, is not of the essence of the con- tract, and therefore every failure by the petitioner in a literal performance does not, of necessity, furnish a sufficient defense against a bill for a specific perfoi-m- ance ; and we think no better or safer general rule, on this subject, can bo pre- scribed than that the broken stipulation should be of such a character as to con- stitute a condition precedent to the petitionei-'s right to enforce the contract ; or be such as, on its non-fulfillment without a reasonable excuse, to render in terms the contract void ; or in some other manner to render it clearly inequitable, under .circumstances of fraud, mistake, surprise, uni-easonable delay, gross neglect, bad 'faith, or other manifest unconscientiousness, that the Jietitioner should have a deciee." McComas v. Easley, 21 Gratt. 23, 29, 30, per Christian, J. : " Every bill for the specific performance qf a contract is an application to the sound dis- cretion of the court. It is not a case requiring the interposition of the coui-t ex debito JustitkB, but rests in their disci'etion upon all the circumstances of each par- ticular case. * * * Of course, the discretion to be exercised is not an arbi- trary and capricious one, depending upon the mei-e pleasui-e of the coui^t ; but one which is to t)e exercised and conti'oUed by the establisheii doctrines and set- stled principles of equity, govei-ned by the circumstances of oarh particular case. And, indeed, it is not at all in conflict with these views to say that, when a con- tract respecting real property is, in its nature and circumstances, unobjectionable, it is as much a matter of course for Qourts gf equity to decree a specific perform- 52 SFECTFIC PERFORMANCE OF CONTRACTS. cise nature of the remedial right to a specific performance — or, in other words, the real meaning and limits of the " discretionary " character so commonly assigned to it. It is abundantly settled, at the outset, ance of it, as it is for a court of law to give damages for the breach of it." The plaintiff in this case alleged a verbal contract for the sale of land to him ; the defendant set up and proved a quite different agreement covering the same land and other matters. Held, that the court had the power to specifically enfoi-ce the latter, and would do so, provided the I'elief did not work injustice or hard- ship to either party. Hale v. Wilkinson, 21 Graft. 75. Suit against a vendor of land ; defense that the price, by I'eason of a change in circumstances, had become inadequate. Held, that inadequacy is no defense unless it is of itself evidence of fi'aud. MoNCUHE, P. J., after quoting the foregoing language of the last case, added, in respect to the final passage of the above exti-act (p. 80; : " This propo- sition is self-evident. The law always enforces the contracts of men where they are unobjectionable. The literal and exact enforcement of a conti-act requires its specific execution, whatever may be the subject of such contract. Generally, specific execution of a contract, in regard to personality, will not be decreed, but the parlies will be turned over to their legal remedies, because they are more convenient than equitable remedies, and damages generally aflbrd ample and satisfactory compensation. * * * Land always has, in the eye of the law, a peculiar value, and a contract for the sale and purchase of it, if unobjectionable, will, therefore, Ije specifically executed. In no other way can parties I'eceive the full benefit of their conti'act. And no court, having jurisdiction of the subject, and being properly applied to for such relief, can withhold it but by an act of arbitrary power." Cooper v. Pena, 21 Cal. 403, 411, per Cope, J. . "It is a set- tled principle, that the specific performance of a conti'act is not a matter of course, but rests in the sound discretion of the court, upon a \iew of all the circum- stances ; and before the court will act, it must be satisfied that the contract is reasonable and equal in its operation." Bruck v. Tucker, 42 Cal. 346, 353, per "Wallace, J. ; "It is well settled, that an application made to a court of equity to obtain relief of that character [specific performance] does not proceed ex debito justiticB, as an action at law, brought for the recovery of damages upon a breach of such an agreement, but is addressed to the sound discretion of the court to be determined upon all the circumstances appearing. That the contract, concerning which relief is sought, is one sufficient in point of mere legal obligation ; that it is supported by a valuable consideration, paid, or agreed to be paid ; that it is free fi'om fraud, or from such a degree of imposition or surprise upon the defend- ant as would support an application, on his part, to set it aside entirely ; these, and the like circumstances, though ordinai-ily indispensable, are yet fai- from' sufficient, in themselves, as constituting a case for invoking the relief— extraordi- nary in its character — sometimes administered by the courts through the instru- mentality of a decree for specific performance. The agreement alleged must be one which, in all its features, appeals to the judicial discretion as being fit to be enforced in specie, as having been obtained without any intermixture of unfair- ness. Hence, if it appears that the bargain, though obligatory in point of mere law, and one not to be set aside in equity, is, nevertheless, a hard bargain, the court will not relieve." Bogan v. Daughdrill, 51 Ala. 312, 314: "When a con- tract respecting real estate js in writing, is certain, fair in all its parts, founded on an adequate consideration, and capable of exec'ution, a specific performance in » court pf equity is as much a matter pf right as damages for its breach, in a DISCIiETIONART CHARAnTER OF THE ESMEDY. 53 that the remedy is not " discretionary," in the usual acceptation of the term ; it is not given or withheld at the mere will and good pleas- ure of the judge ; nor does it depend upon his own individual coui-t of law." Aston v. Robinson, 49 Miss. 348, 351, per Simrall, J.: "The jurisdiction of a court of equity to enforce specitically a contract, though it is said to rest in judicial disci-etion, yet it is exercised according to sound and fixed rules, and within certain defined limits, but is controlled largely by the ciicumstances of the individual case (citing Ash ^i. Daggy, 6 Irid. 259 ; Griffith v. Frederick Co. Bk., 6 Gill. & John. 424). The requisites, upon which this equity arises, are : The performance must be necessai'y ; there must be a valuable considei'ation ; it must be practicable ; the agreement must be certain and mutual. Ordinarily, it will not be exerted in reference to agreements about chattels, because the law esteems that ample compensation can be made in damages for a breach. The light ai-ises where a contract, binding at law, has been infringed, and the remedy at law by damages is inadequate. The contract must be fair, and not hai^d and unconscientious on either party. Daniel v. Frazer, 40 Miss. 507." Weise's Appeal, 72 Pa. St. 351, 354, per Thompson, C. J. ; " Decrees in equity, for specific execution, are not, like judgments at law, a matter of right ; they are within the discretion of the chancellor, and of grace. Miller v. Henlan, 1 P. P. Smith, 265 ; Freetley v. Barnhart, id. 281. As ai'ule, whenever the equity of the party, under his contract, is not clear, or his case is unconscionable or inequitable, courts of equity refuse specific execution, and leave the party to his action at law to recover damages for the breach of the conti'act." This was merely a dictum; for the case was decided upon the single ground, that the agent, who made the contract, in the name of the defendant, acted without any authority, so that it was void even at law. Snell v. Mitchell, 65 Me. 48, 50, per Walto.v, J. : " Such appli- cation is addressed to the sound discretion of the court. Neither party to a con- tract can insist, as a matter of light, upon a decree for its specific performance. The courts of law are always open to him, and, ordinarily, an action at law fur- nishes an ample remedy for the breach of a contract ; and where such is the case, a court of equity generally declines to take jurisdiction. If a contract for the con- veyance of real estate is, in all inspects, fair, and free from ambiguity, and there are no insurmountable difficulties in the way of a specific performance, its per- formance will ordinarily be decreed. On the contrary, if the contract is uncon- scionable, or ambiguous, or through fraud; or mistake, or want of skill, on the part of the draftsman, does not truly embody the agreement of the parties, or if, for any other reason, the court is of opinion, that the contract is one which, in equity and good conscience, ought not to be specitically enfoi-ced, it will decline to interfere, and will leave the pai-ties to such redress as can be obtained in an action at law. * * * A court of equity will never knowingly decree an impossibil- ity ; it will never knowingly require a party, under the pains and penalties of pei-jietual impi-isonment, to do an act which is out of his power to do." Black- wilder V. Loveless, 21 Ala. 371, 374, per Chilton, J. : "The enforcement of the specific performance of contracts, in a court of equity, is not a matter of right in either party, but is a matter of discretion in the court ; not, indeed, of arbitrary or capi-icious discretion, dependent upon the mere pleasure of the judge, but of that sound and reasonable discretion, which governs itself, as far as may be, by general rules and principles ; but, at the same time, withholds or grants relief accordiii"- to the circumstances of each particular case, where these rules will not fui-nish any exact measure of justice between the parties. The court uniformly 54 SPECIFIC PERFORMANCE OF CONTRACTS. opinion, as to its propriety and feasibility ; much less is it a matter of favor. The statement, therefore, found in a recent Pennsylvania case, that the relief is " of grace," is neither consistent with principle nor refuses to decree a specific performance, except in cases where such decree would be strictly equitable. It requii'es much less strength of case to enable a defend- ant to resist a bill to perform a contract, than it does, on the part of the plaintiff, to maintain such bill ; for, if there be any fraud or mistake, or if the bargain be hard or unconscionable, or if the 'specific performance would, under all the cir- cumstances, be inequitable, the chancellor should I'efuse to deci-ee the specific execution of the agreement, and leave the parties to their i-emedies at law. * * * We will not say thei-e was any fraud or mistake in this case ; but we are satisfied that the defendant did not deal with the plaintiff on equal terms, and that, by reason of the peculiar condition in which the defendant was placed, the plaintiff was enabled to get his bond for title for a very inadequate consideration, and under the coercion of the process held in terrorem over him. Defendant was not in a condition to deal at arms' length with the plaintiff, nor to insist upon a fair and equitable bargain." Port Clinton R. R. v. Cleveland & Toledo R. R., 13 Ohio St. 544, 549, per Gholson, J. : " The specific performance of contracts rests upon the ground, that the ordinary remedy for its breach will not afford adequate relief. In some cases, this is so apparent, that a specific pei-formance is decreed as a matter of course. Such is the case of a contract for the conveyance of real estate. In such a case, if the party has not, by some act or omission, precluded himself from relief, he may be said to be entitled to it as a right. For, although the court is said to have a discretion in granting or refusing a specific perform- ance, it is not an arbitrary discretion, but a disci'etion to be regulated by prece- dent and established practice. It would, however, be going too far to say that, in all cases where the ordinary legal remedy would not afford adequate relief, there is necessarily a right to a specific performance." Rogers v. Saunders, 16 Me. 92, 97, per Sheplby, J. \ " It is a matter of discretion, in the courts, whether or not to decree a specific performance, not dependent, however, upon the arbi- trary pleasure of the judge, but regulated by general rules and principles. \yhen the contract is in writing, certain, fair in all its parts, is for an adequate consideration, and is capable of being performed, it is a matter of course for a, court of equity to deci-ee performance. And performance may, in a proper case, be decreed when the party has lost his remedy at law. When its binding effi- cacy has been lost alone by lapse of time, courts of equity are in the habit of relieving, when time is not essential to the substance of the contract." Seymour D. De Lancey, 6 Johns. Ch. 222, 224, 225, per Kent, Chan. . " It is an application to sound discretion. This has been the uniform language of courts of equity. It ia not a case requiring the aid of the court ex debito justitiw. It is a settled prin- ciple, that a specific performance of a contract of sale is not a matter of course, but rests entirely in the discretion of the court, upon a view of all the circum- stances. A court of equity must be satisfied that the claim for a deed is fair and j ust, and reasonable, and the contract equal in all its parts, and founded on an aileqate consideration, before it will interfere with this extraordinary assistance, If there be any well-founded objection on any of these grounds, the practice of the court is to leave the party to his remedy at law fcu" a compensation In dam- ages." The chancellor held, upon a I'eview of English authorties, that mere inadequacy in the pi'ice would be a defense, since it rendered the contract unrea- sonable, unequal, and hard. This decision was reversed by the Court of EiTOrs DISCRETIONARY CHARACTER OF THE REMEDY. 55 ■with authority.(l) The decisions agree, with some variation in their language, but with none in the meaning, that the discretion is a judicial one, controlled and governed by the principles and rules of equity.(2) in Seymour v. De Lancey, 3 Cow. 445, on the ground that mere inadeITRACTS. only possible difference is one of degree, whicli results from the par- ticular and special nature of the relief to be granted. As the remedy consists in carrying into execution the very terms of the contract, all those terms must be sufficiently precise and unambiguous for the court to enforce the whole contract and secure all the rights of both the parties. There is, therefore, no extraordinary quality in the cer- tainty demanded by a court of equity ; in both jurisdictions the lan- guage in which the parties have expressed their agreement, must enable the court to ascertain their rights, and to award the appro- priate relief. The requisite of a valuable consideration is the same in both judicial proceedings, with the single difference that equity does not attribute the common-law efficacy to a seal, nor allow it to take the place of direct proof. 2. The second element — of mutuality — is partly an expression of the commcn-law rule that a contract must be the assent of both the parties and be binding upon both, and is partly referable to the equitable principle which will be next men- tioned. A purely unilateral promise, without any acceptance or assent by the other party, cannot be enforced at law ; and if the agreement is still entirely executory no action upon it may, in general, be main- tained by either party. Whatever force and effect the requirement of mutuality possesses beyond this legal doctrine, results from the principle just alluded to, and which is stated at large in the following paragraph : It it plain that the conditions for administering the equit- able relief, as far as examined, have no special or peculiar character, but are substantially identical with those which permit the recovery of a legal judgment, somewhat modilied in degree to correspond with the different kind of remedy. Sec. 40. 3. The third, and by far the most important, element of fairness and equality in the terms of the contract, and in its opera- tion vipon the defendant, in whatever form and with whatever variety of detail it be expressed, is simply an application of the grand and far-reaching principle that he who seeks equity must do equity. From this fruitful doctrine is derived a large part of the remedial system administered by courts of equity. When an agreement is tainted with fraud, mistake, duress, or any other analogous defect which constitutes a defense in bar at law, or furnishes sufficient grounds for setting it aside in equity, there is in truth no binding contract, and in this respect both jurisdictions are governed by the same regular tions. The great and most beneficial principle, to which I have referred, extends far beyond these features which affect the validity and very existence of agreements ; it applies to contracts which are DISCRETIONARY CHARACTER OF TBE REMEDY. 59 valid, and which confessedly create legal obligations; it is developed m its practical operation, so as to resist and counteract every possible circumstance and incident of unfairness, inequality, and inequity. The doctrine that he who comes into the court seeking equity— that is, seeking to obtain an equitable remedy— must himself do equity, means not only that the complaining party must stand in conscien- tious relations towards his adversary, and that the transaction— be it a contract or not — from which his claim arises, must be fair and just in its terms, but also that the relief itself must not be oppressive or hard upon the defendant, and must be so modified and shaped as to recognize, protect, and enforce the latter's rights arising from the same subject-matter, as well as those inhering in the plaintiff. It is by virtue of this principle that the specific performance of a contract will be refused when the plaintiff has obtained the agreement by sharp and unscrupulous practices, by overreaching, by concealment of important facts, by trickery, by taking undue advantage of his position, or by any other means which are unconscientious ; and when the contract itself is unfair, one-sided, unconscionable, or affected by any other such inequitable feature, and where the specific enforcement wouhl be oppressive or harsh upon the defendant, or would prevent the enjoy- ment of his own rights, or would in any other manner work injustice. The requisite of mutuality is obviously involved in certain phases of this principle. Unless the contract and the remedy were mutual, they would be one-sided, unfair, burdensome upon the defendant with- out affording him an opportunity for any corresponding benefit. Sec. 41. I shall illustrate the foregoing proposition, by showing how the general language of judicial opinions should be limited by the facts, and how the decisions actually made have been applica- tions, under one form or another, of this equitable principle. By a contract, made in 1854, a lessee acquired the right to purchase the premises, and to receive a conveyance thereof, at the expiration of his ten years' term, for a specified price. The price was adequate, the agreement was, in every way, fair, and the purchaser acted with perfect uprightness in the whole transaction. At the time for execu- tion, the legal-tender notes had been issued, and were much depre- ciated in comparison with coin. The purchaser offered the price in these notes, but the vendor refused to complete. On a bill for a spe- cific performance, the relief was refused, unless the plaintiff would pay the purchase-money in gold coin. In this case, to compel the defendant to convey his property, and to accept a depreciated cur- rency, which was not contemplated when the bargain was made, 60 SPMCIFIC PERFORMANCE OF CONTRACTS. would have been harsh and unjust toward him, and the plaintiff was, therefore, required to do equity by accepting a modified form of relief, which recognized and protected the rights of the defendant. (1) In another case, the conduct of the complainant, in setting up unfounded claims, from time to time, under the contract, and espe- cially his unlawful, unwarranted, and clandestine interference with the defendant, and attempt to deprive it of all its rights and interests under the contract, were held to leave him no standing as a com- plainant asking for its specific performance. Here, the plaintiff's own acts, done under pretense of carrying out the agreement, were so tricky, unfair, and oppressive, his whole conduct had been so inequitable, that he could not claim an equitable remedy. (2) Again, while the same contract was binding upon the defendant indefinitely, the plaintiff might, at any time, abandon it, by giving a notice. The lack of mutuality here is objectionable, because it makes the bargain one-sided ; all advantage is on the plaintiff's part, and he could not do equity while he thus, practically, deprived the defendant of any remedy against himself. (3) Sec. 42. By a contract between two partners, the defendant agreed to convey to the plaintiff certain land, used in carrying on the busi- ness, when he had been paid the price out of the firm profits over and above his own share. A suit for a specific performance was dis- missed, because the plaintiff failed to exhibit any account of the business which had been carried on by himself alone, or to show, in any manner, that the defendant had received the purchase-money. Although the court repeated the usual formula concerning the " dis- cretionary" nature of the relief, the decision did not involve any such question, nor turn upon the equitable principle now under dis- cussion ; it was simply a case of non-performance, by the plaintiff, of the term on his part, which was a condition precedent to any recovery at law or in equity.(4) The owner of city lots in Chicago, a weak-minded man, ignorant of business and of their value, was induced, during the excitement just after the great fire, to agree to sell them for $21,000, They were worth, at the time, at least $30,000, and were rapidly increasing in value. ^Persons of large property had just made arrangements to build extensively upon the adjoining lots, which would have largely added to the value of the property. All these facts were well known to business men generally, but were not known to the vendor, and were not told to him before the agreement (1) "Willai-d V. Tayloe, 8 Wall. 557, 565. (3) lb. 359. (2) Marble Co. t). Ripley, 10 Wall, 339, 357. (4) Fish v. Lightner, 44 Mo. 268, 272. DISCS ETIONART CHARACTER OF THU REMEDY. 61 ■was signed. The person who procured him to sell, and was made his agent to effect the sale, appeared to be also acting on behalf of the purchasers, and this fact was concealed. A specific performance, prayed for by the purchaser, was refused. Even granting that the fraud, false-representation and concealment, were not sufiicient to constitute a defense at law, or grounds for a cancellation in equity, still the agreement was procured by trickery, overreaching, and taking advantage of the vendor's ignorance ; the parties did not stand upon an equal footing in respect to knowledge ; and it was unfair, one-sided, and unjust in its terms. To compel a conveyance, under these circumstances, would have been inequitable, and even oppres- sive. The plaintiff, instead of " doing equity," was asking the court to enforce a bargain which wanted little of being literally fraudu- lent.(l) The owner of land agreed to sell it for $4,000, and a part of the purchaser's interest was assigned to the plaintiff. The original contract of sale contained further stipulations, on the part of the vendor, and a clause, by virtue of which all his interest, under the agreement, became liable, in case of his default, to a forfeiture. The vendor made default in respect to some of these provisions, where- upon all his interest was forfeited, in some judicial proceeding, and sold to the plaintiff for a small sum, none of which was received by the vendor. The plaintiff, being assignee of a part of the vendee's interest, and having thus become clothed with the vendor's interest, brought a suit for a specific performance, which was refused, on the ground that defendant had received no compensation whatever for (1) Fish V. Lesser, 69 111. 394, 335. The recent case of Falck v. Gray, 4 Drew. 651, before Kihdersley, V. C, was quite similar. The defendant, an elderly- woman, being ignorant of their real worth, had agreed to sell two very valuable jars — articles of mrtM — to the plaintiff, who knew their nature and peculiar value. Although there was no actual fraud, yet, as the parties did not make their contract upon an equal footing, a specific performance was refused. See, also, ToiTance v. Bolton, L. R., 8 Ch. 118. In suit by vendor, when the descrip- tion is misleading, the onus is on him to show that the defendant was iwt misled. Actual fraud not necessai'y, even, to set aside a contract foi- sale of land ; enough that it is unconscientious. Phillips v. Homfray, L. R., 6 Ch. 770 ; suit by a pur- chaser ; a specific performance refused because the plaintiff had concealed a material fact relating to the land, viz., his own acts in digging coal upon the land, which was mining land. Even though there had been no undervaluation in the price agreed to be paid, i. e., the price was fair, on the assumption that all the coal was left in situ. Wycombe Ry. Co. v. Downington Hospital, L. R., 1 Ch. 268 (effect of mutual mistake in understanding the agreement) ; Mortimer v. Bell, L. R., 1 Ch. 10 (effect of "puffers" at auction sale) ; Gilliatt v. Gilliatt, L. R., 9 Eq. 60 (puffers at auction sale) ; Baskcomb v. Beckwith, L. R., 8 Eq. 100 (mistake, misleading deception). 62 SPECIFIC PERFORMANCE OF CONTRACTS. his land, and the decree, under the circumstances, would be harsh and oppressive. From the peculiar terms of the contract, and the subse- quent proceedings, the plaintiff had obtained an unconscionable advantage, and was seeking to obtain title to a valuable piece of land, ' for which he had paid but little, and for which the owner had been paid absolutely nothing.(l) The defendant, being in possession of a tract of land, worth several hundred dollars, under a claim of title, the plaintiff instituted proceedings against him, under the statute concerning forcible entry and detainer, in which a question of title is not determined, which resulted in a judgment and warrant of dis- possession. "While the plaintiff held the process for removal, the defendant, who had growing crops upon the land, entered into an agreement whereby, in consideration of §30, he promised to give up possession and to execute a deed of conveyance at the end of a year. This contract the court refused to specifically enforce, because, although'-there was no active fraud or mistake, the parties did not deal on equal terms ; the plaintiff, with his judgment and process of dispossession, occupied a position of unfair advantage, whereby he secured the contract for a very inadequate consideration, while the defendant was not in a situation to insist upon fair and equal terms. (2) Where a specific performance has been refused, on the ground of a mere inadequacy of price, the real objection was to the unfairness and inequality of the agreement, and the injustice of com- pelling the owner to convey his land for a sum much less than its value. (3) Sec. 43. These cases, which are simply taken as examples, show that the so-called "discretionary power "of the court to grant or refuse a specific performance, so far as its exercise depends upon the good conduct and .conscientiousness of the plaintiff, and upon the elements of fairness, equality, justice, mutuality, and the like, in the agreement, and upon the absence of harshness in the relief towards the defendant, is an application to this particular kind of remedy of the broad and fundamental principle : " He who seeks equity must do equity." The same principle is implicitly contained in the doc- trjng that equity, with equal care, recognizes, protects, and enforces the rights of both plaijitiflf and defendant in the same decree, and (1) Stone D. Pratt, 25 111, 25, 34. The opinion, quoted under § 35, is an admii-- able statement of the true equity doctrine. See, also, Bruck ■». Tuclver, 42 Cal. iJ46, 3.-j3, (2) BlackwiUler v, Lo\-eIess, %l h\^, 371. (3) Seymour v. De LfWSey, f? John, CJi. 222, 224. DISCRETIONAHY CHARACTER OF THE REMEDY. 63 that an equitable remedial right does not, in general, arise from any- special facts of one transaction separated from others, but depends upon, and is modified by, all the circumstances and incidents which, taken together, constitute the subject-matter of a suit, and determine the relations of its parties. Sec. 44. 4. Another special rule, which applies to a certain class of cases, has, perhaps, the appearance of being purely discretionary ; but it will be found, upon closer examination, to depend upon the same general principle of equity. I refer to the settled doctrine that in suits for a specific performance, brought by a vendor of land, the purchaser will not be forced to complete the contract and accept a conveyance, when the title is so doubtful that he might be exposed to litigation from an adverse claimant, or to a loss of his purchase, even though the court does not pass upon the question of title and definitively pronounce it to be bad. The mere fact that the title is, fairly and reasonably considered, a doubtful one, prevents the court from forcing its acceptance by an unwilling vendee. (1) The real nature of this special rule is plain, upon an examination of the reasons upon which it rests. If it clearly appears that the vendor has no such title at all as he has undertaken to convey, a specific performance is, of course, refused, since it would be a monstrous wrong to force the purchaser to pay the price and accept a conveyance when he does not thereby obtain the estate for which he contracted. Carrying this notion one step further; if a reasonable doubt is» thrown by the evidence upon the vendor's title, and it is thus rendered reasonably probable that the purchaser would lose all benefit of his bargain, or become involved in unlooked-for expenses, the contract itself would ■plainly be one-sided and unconscientious, and its enforcement would be unjust and oppressive. It is obvious, therefore, that the rule, under consideration, does not require the exercise of any judicial discretion; the only apparent discretionary elements consists in the decision for each case whether there is a reasonable doubt; but this decision is no more discretionary than that of many other matters of fact depending upon the weighing of probabilities. The court decides, with all the certainty which the nature of the question and of the evidence will permit, that a reasonable doubt exists as to the vendor's title, and having reached this condition of fad, it applies, not as a matter of dis- cretion, but as a matter of right belonging to the defendant, the (1) This rule is simply stated here without discussion. It will be found treated at length, and the cases involving it cited, in a subsequent section, viz., chap. 2, Sect. 11. 64 SPECIFIC I'ERFOliMATiCE OF CONTRACTS. principle, that he who seeks equity must do equity, and refuses a remedy which would be one-sided, unfair, and even oppressive. Sec. 46. 5. Finally, the requisite that the contract must be one capable of specific enforcement by a decree of the court, has no con- nection whatever with any discretion to be exercised in granting or withholding such decree. The want of power to specifically enforce may consist in a physical or legal inability of the defendant to per- form what is ordered, resulting from his having parted with all interest in, or control over, the subject-matter, or from some other efficient cause ; or it may inhere in the very terms of the contract itself, which are of such an intricate, various, personal, or special nature, that the court cannot, by any of its administrative means and methods, superintend and compel the execution. In either case the defect is absolute, and resides in the necessary imperfection of all judicial machinery. The difficulty does not lie in the pronouncing a decree which shall sufficiently describe and command all the required acts, but in carrying that decree into operation. No tribunal, though possessing the powers and methods of chancery, can compel a defend- ant to convey a good title to the plaintiff, when he has already con- veyed the land to another and bona fide purchaser; or can compel a prima donna to perform at the opera with all her skill and ability ; or can compel a contractor to construct an extensive line of railway accorditig to the specifications of his agreement. The requirement, therefore, that ttie contract must be one capable of specific enforce- ment does not involve any element of discretion, does not result from any discretionary nature of the jurisdiction, and does not render the remedy itself discretionary. Courts of law cannot compel the per- formance of any contract except by a pecuniary judgment ; courts of equity are able to specifically execute many classes of agreements ; but there are species of contracts the specific performance of which cannot be enforced by any tribunals. (1) Sec. 46. The conclusion reached by the foregoing discussion is, I think, equally obvious and certain. The language which describes the remedy of specific performance as depending upon an exercise of discretion — even of judicial discretion — unless taken with certain limitations and interpreted in a particular manner, is misleading ; it is a misconception which represents the granting of this relief as in any sense a matter of grace, or depending upon the favor of the court. (1) For a full discussion of the doctrine that specific performance must be practicable, gee ehap, 2, Sects, 17, 18. NOT GRANTED WHEN LEGAL REMEDY IS SUFFICIENT. 65 Courts of equity do not sit, any more than courts of law, to distribute favors or acts of grace to their suitors ; their judicial function consists in the protection of rights and the enforcement of duties by means of the remedies which they administer. The right to this particular remedy, being equitable, involves a variety of circumstances, inci- dents, and relations which may promote, modify, impede, or prevent its use, and one of the most important of these circumstances consists in the fact that a denial of the relief does not, in general, leave' a party without his legal remedy. Where all the proper conditions are present, the remedial right is as perfect, certain, and absolute as the nature of the remedy itself will permit. Many of the judicial opin- ions state the doctrine in this manner.(l) In determining a particu- lar case, after it is ascertained that the contract is legally valid, the question of granting a specific performance often turns upon collateral incidents, more or less numerous, which affect the equitable jurisdic- tion. The decision of these matters — ^for example, whether the con- duct of the plaintiff has been conscientious ; whether the agreement itself is fair, equal, reasonable ; whether its enforcement specifically will be just toward the defendant, and the like — as it requires the examination of numerous special circumstances, and is controlled by no definite rule, may seem, upon a superficial observation, to be merely an exercise of judicial discretion. All these collateral fea- tures of the case are, however, 'questions of fact to be decided upon the evidence ; and when they have been thus established, the princi- ples of equity come into operation, and pronounce with certainty and absoluteness whether the remedy shall be granted or withheld. SECTION III, Will not be granted when the legal remedy is sufficient. Section 47. The description of the general nature of specific per- formance, and of the equitable right to it, will be completed by a brief discussion of the principle that it cannot be granted when the legal remedy of damages is sufficient — that is, practicable and ade- quate ; which is the converse of the doctrine developed in Section I (1) See McComas v. Easley, 21 Gratt. 23, 30 ; Hale v. Wilkinson, 21 Gi-att. 75, 80; Bogan v. Daughdrill, SI Ala. 312, 314; Snell v. Mitchell, 65 Me. 48, 50; Rogers v. Saimdere, 16 Me. 92, 97; Port Clinton R. R. v. Cleveland & Toledo R. R., 13 Ohio St. 544, 549. 5 66 SPECIFIC PERFORMANCE OF CONTRACTS. of this chapter. It is the fundamental principle regulating the exer- cise of this equitable jurisdiction, that whenever the legal remedy of damages is sufficient, equity will not interfere, and the specific per- formance will be refused ; and this is always the case when the con- tract is satisfied by a payment of money. This rule has a w'ide appli- cation to a great variety of agreements.(l) For this reason contracts concerning goods, wares, and merchandise, and other ordinary chat- tels, or public and other stocks or securities, which have a market value and sale, are not specifically executed. (2) Sec. 48. Many of the ordinary classes of contracts, for which the legal remedy is sufiicient, have been mentioned in Section I, and need not be repeated here. In addition to these, the following cases have been decided. Where the rights of the party, plaintiif, under a con- tract, will be fully satisfied by an account of profits, and a payment of the sum found due thereby, and there is no obstacle to a recovery of such amount at law, a suit for a specific performance cannot be maintained.(3) Since the breach can always be fully compensated by #■ (1) For instance, of contracts with railway companies, see Loi 353 ; Verlander v. Codd, Turn. & Russ. 352 ; Parkhurst v. Van Cortlandt, 14 Johns. 15 ; Tallman v. Franklin, 14 N. Y. 584 ; Lerned v. Wannemaeher, 9 Allen, 416 ; Hu. Coombe, 1 Pet. 640. The following examples of documents held to be sufficient memorandums, under the statute, will serve to illustrate the state- ment of the text. Receipt for the purchase-money of land, Barickman v. Kuyken- dall, 6 Blackf. 21 ; Ellis -e. Deadman, 4 Bibb. 467 ; Evans v. Prothero, 13 Eng. Law & Eq. 163 ; a stated account in which a vendor of land charges himself with the price, Barry i). Coombe, 1 Pet. (U. S.) 640 ; Denton v. McKenzie, 1 Desaus. Ch. 289 I Bourland «. Co. of Peoria, 16 111. 538 ; an order, Lerned v. Wanne- MEMORANDUM SEQ VISED BT STATUTE, 123 Sec. 86. The memorandum must contain the substantive terms of a concluded contract, as has already been shown. (1) It will not satisfy macher, 9 Allen 416 ; return of a sheriff on execution, Hanson v. Barnes, 3 Gill 6 Johns. 359 ; Fenwick. v. Floyd, 1 Harr. & Gill. 172 ; Barney v. Patterson, 6 Har. & Johns. 182 ; Nichol v. Ridley, 5 Yerg. 63 , Elfe v Gadsden, 2 Rich. 373 ; entry in an auctioneer's book containing purchaser's name, piice, etc., Gill v. Bicknell, 2 Cush. 355 ; Coles v. Frecothick, 9 Ves. 234 ; Buckmaster v. Hari'op, 7 Ves. 341 ; Blagden v. Bradbear, 12 Ves. 466 ; Morton v. Dean, 13 Met. 385 ; McComb V. Wi-ig-ht, 4 Johns. Ch. 659 ; Cleaves v. Foss, 4 Greenl. 1 ; Sing-stack v. Harding, 4 Har. & Johns. 186 ; Smith v. Jones, 7 Leigh, 165 ; Adams v. McMillan, 7 Port. (Ala.) 73 ; .Gordon v. Sims, 2 McCord Ch. 164 ; Eudicott v. Penny, 14 Sm. & Mai-sh. 157 ; so of sheriffs and their deputies, Christie v. Simpson, 1 Rich. 407 ; Endicott v. Penny, 14 Sm. & Marsh. 157 ; Robinson v. Garth, 6 Ala. 204 ; Ennis v. Waller, 3 Blackf. 472 ; Brent v. Green, 6 Leigh, 16 ; Carrington v. Andei-son, 5 Munf. 32 ; ditto administrators. Smith v. Arnold, 5 Mason, 417 ; ditto court commissionera, Jenkins w. Hogg, 2 Const. (S. C.) 821; Gordon v. Sims, 2 McCord Ch. 164 ; Hutton v. "Williams, 35 Ala. 503 ; vote of a corporation entered on their books and signed by their clerk is. Tufts v. Plymouth Gold Min. Co., 14 Allen, 407 ; Johnson v. Ti-inity Ch. Soc, 11 Allen, 123 j Chase v. Lowell, 7 Gray, 33; Rhoades v. Castner, 12 Allen, 130. Clark v. Burnham, 2 Story, 1 : "Ells- worth, Dec. 15, 1834. Received of D. B. & C. S. C. $1,000, to be accounted for if they shall fui-nish me satisfactory security for certain lands on the Naraguagus river, say 119,000 acres for $113,000, on or before Friday morning next ; other- wise to be forfeited — John Black." Held, a. sufficient agreement to sell the lands. "Westervelt v. Matheson, 1 Hoff. Ch. 37 : " Received from A. $20 on account of the purchase of a house and lot. No. 38 Hammond street, at $2,900, subject to a lease to B. for four years from the first of May next ; $1,000 may remain by bond and mortgage ; the balance the first of May, when the deed will be exe- cuted and possession given," a binding contract for the sale of land. Hatcher v. Hatcher, 1 McMullen Ch. 311. A.'s land was to be sold on execution B. ver- bally agreed with A. to purchase it at the sheriff's sale with his own money, and to reconvey to A. when the latter should refund him the purchase-piice. A. afterwards made a part payment and B. gave him a receipt, stating that the sum received was in part payment for the land, describing it and adding, " this in part payment to i-edeem the land from B." Held, that this receipt was a suffi- cient memorandum of the contract to reconvey, and that the consideration might be shown by reference to other written evidence. Little v. Pearson, 7 Pick. 301. B. gave A. a note for $100, payable to A. or order on demand, with the following clause subjoined : " N. B. This note to be given up when I give him a deed of the land what I have engaged to give him," signed B. This document was held to be a sufficient memorandum of an agi-eement to convey upon which to decree a specific perfoi-mance. This decision, I think, trenches upon the statute, and can- not be reconciled with several others. Granting that all the rest of the contract is slated, the subject-matter is actually not described. Parol evidence is requisite to do far more than merely identify the particular parcel of land mentioned in the writing ; it must in fact supply this term, which is left wholly resting in the verbal agreement. See by way of contrast King 1>. Wood, 7 Mo. 389 ; Ellis v. Dead- man, 4 Bibb. 466, the following : "4th January, 1808. Received of I. Ellis $500, in part pay of a lot bought of me, in the town of V., it being the cash part of the purchase of said lot. N. Deadman," was held not to be a sufflcient memorandum. (1) See anie, section III. of this chapter. 124 SPECIFIC PERFORMANCE OF CONTRACTS. the statute as being "the agreement or a note or memorandum thereof in writing," where any part of the intended contract-—*, e., of the very contract of which it purports to be a memorandum — is left to further negotiation ; (1) and a fortiori when the entire arrangement is still in the condition of negotiation so that one party may with- draw ;(2) or where it leaves any term or terms of the contract for future settlement ;(3) or it contains only certain matters which have been agreed upon as tho preliminaries to, or basis of, the intended contract, and not the final contract itself.(4) These instances of Imperfect memorandums should be carefully distinguished from the cases which are controlled by the doctrine already discussed, namely, that if there has been a final agreement and the terms of it evidenced (1) Ogilvie V. Foljambe, 3 Mer.. 53 ; Stratford «. Bosworth, 2 V. & B. 841 ; Tawney v. Crowther. 3 Bro. C. C. 318 ; Roberts v. Tucker, 3 Wels. H. & G. 632 ; Barry «. Coombe, 1 Pet. (U. S.) 640; BalUngall v. Bradley, 16 111. 373; Hazard 1). Day, 14 Allen, 494. It should be observed, however, that the contract of ■which the memorandum is the evidence, may be wholly concluded and binding-, although the parties in the same document make reference to another distinct matter yet j'esting in negotiation and concerning what they intend or desire to contract at some future time. (2) Lord Glengal v. Barnard, 1 Keen, 769. (3) Honeyraan v. Marryatt, 21 Beav. 14 ; 6 H. L. Cas. 112 ; Wood v. Midgley, 5 DeG. M. & G. 41. In the fii-st of these two cases, H.'s solicitor had written offering 25,000^ for a certain estate advertised to be sold by M. M.'s solicitor answered by letter : "Mr. M. has authorized us to accept the offer, subject to the terms of a contract being arranged between his solicitors and youi-self. Mr. M. requires a deposit of from 1,200Z. to 1,500Z. and the purchase to be completed at midsummer day next." This letter simply accepted tho proposed price, but left all the rest of the contract unfinished, and these terms never being concluded, a specific performance at the suit of H. was therefore refused. The memorandum is not valid, if it refer to the ailleged agreement and repudiate it, declaring it not binding. Wood v. Midgely, 5 DeG. M. & G. 41 ; Goodman v. Griffiths, 38 Eng. L. 6 Eq. 491 ; Archer v. Baynes, 5 Wels. 11. & G. 625 ; Richards v. Porter, 6 B. & C. 437 ; Cooper v. Smith, 15 East, 103 ; or if it make variations or conditions, Wil- liam V. Bacon, 2 Gray, 387 ; Jenness v. Mt. Hope Co., 53 Me. 20; Smith v. Sur- man, 9 B. & C. 561. But a writing may be a binding memorandum contrary to the special design of the party in executing it ; as where defendant wrote a letter declining to sign a draft of the agreement which had been previously made, but saying that his word should be as good as his bond ; this letter was held to be a good memorandum. It will be noticed that he did not repudiate the verbal contract already made; but, on the contrary, announced his determination to be bound by it, and only refused to sign the draft, and therefore his letter was very properly held to supply the place of his signing. Tawney v. Crowther, 3 Bro. C. C. 318. See, also, in this connection, Jackson v. Lowe, 1 Bing. 9 ; Dobell v. Hutchinson, 3 A. & E. 355 ; Saunderson v. Jackson, 2 B. & P. 238 ; Pitzmaurice v. Bay ley, 38 Eng. L. & Eq. 136 ; Bailey v. Sweeting, 30 L. J. C. P. 150 ; McClean v. NichoUe, 4 L. T. (N. S.) 863. (4) Frost V. Moulton, 21 Beav. 596. MEMOSANDVM REQUIRED BT STATUTE. 125 in a manner to satisfy the statute of frauds, the agreement shall be binding, although the parties may have declared that the writing is to serve only as instructions for a formal agreement, or although it may be an express term that a formal agreement shall be prepared and signed by the parties.(l) Sec. 87. What are the essential or substantive features of the agree- ment which must appear on the face of the memorandum in order that it may comply with the requirements of the statute ? They are : 1, the parties; 2, the subject-matter; 3, the promises upon both sides ; 4, the price ; and undor the original and ordinary language of the statutory provision, 5, the consideration. If the memorandum consists of two or more papers, a part of these terms may be found in one writing, and a part in another.(2) Sec. 88. Parlies. — To satisfy the statute of frauds the memorandum of an agreement must contain either the names of the contracting parties or such a description of them that there cannot be any reason- able doubt as to their identity. In applying this rule, agents, by whom the memorandum is executed, are considered as equivalent to the parties themselves. The names, when expressed, may be included in the body of the instrument, or may be subscribed at its close. If a party is not named but is described, the description must be such that its application to the particular person intended will appear certain and direct by means of extrinsic evidence describing the situation and surrounding circumstances of the subject-matter ; the description must point to an individual and extrinsic evidence be needed only to identify him. Thus, in a contract for the sale of land, a mem- orandum is insufficient, in which the only description of one of the parties, whose name nowhere appeared, is the word " vendor."(3) The (1) Per Lord Chan. Westburt, in Chinnock v. Marchioness of Ely, 4 DeG. J. & S. 638, 641), and see ante, § 63. (2) As in the common case of " bonght and sold notes," and in contracts con- cluded by letters as desci-ibed, ante, §§ 82-84. Thus it has been shown that a letter may contain the signature only, and adopt by reference the other terms which are all found in a. separate unsigned document. (3) The docti-ine of the text is illustrated by the following cases : Potter v. Duffield, L. R. 18 Eq. 4. Real estate was sold at auctii.n. The particulars and conditions did not give the names of the vendors, nor state in any manner who they were, but simply spoke of them as the " vendors or the vendor," and an- nounced that one "B." was the auctioneer. The purchaser of a lot signed a memordandum acknowledging his purchase, and B. wrote and signed at the foot thereof as follows : "Confirmed on behalf of the vendor B." In a suit against the vendee it was held by jBSSBt, M. R., that this memorandum did not suffi- ciently show the parties— the vendor, and a specific performance was refused. This 126 SPECIFIC PERFORMANCE OF CONTRACTS. cases in the foot-note show, however, that a slight and general descrip- tion is enough, if serves to point out the party, and renders his identi- fication by extrinsic evidence possible. How far parol evidence may be used to explain tho memorandum in relation to the parties, and and to define tho relations in which they stand to each other, and to case is distinguishable from some to be soon cited, in which contracts made by agents on behalf of undisclosed principals have been sustained, from the fact that the agreement here does not purport to be that of the agent as the contracting pai-ty ; it piu-poits to be signed by the agent on behalf of some party, and who that party was, is not shown. If the sale had been made in B.'s name, and the memorandum signed by him as the vendor, then his principal, the real owner, could have enfoi-ced it. This case should be compared with Sale v. Lambert, L. R. 18 Eq. 1, also decided by Jessel, M. R. Upon a sale of lots at auction the " particulars" stated that the sale was by direction " of the proprielor," but the vendor's name did not appear. A memorandum of sale indorsed on a copy of these pai'ticulars was signed by the purchaser and by the auctioneer, " on behalf of the vendor." In an action for a specific prformance by the vendee, it was held that the vendor was sufficiently described, and that the memorandum was good under the statute of fi'auds. These two cases appear to be analogous, but are cleai'ly distinguishable. In the former one the memorandum simply described the party as " the seller," which give no clue to his identity — that is, the sup- plying this term of the contract was wholly due to parol evidence. In the latter case, the party is described as " the owner " of the l&nd. As the owner must be some definite individual, the only use of parol evidence was to identify the per- son thus designated. In Hood v. Lord Harrington, L. R. 6 Eq. 218, a sale was made by the executors of the deceased owner who had legal authority to do sa The particulars of the sale stated that the pi-operty belonged to Admiral F., deceased, and that the sale was by direction of his executoi-s. not naming them. A memorandum of sale indorsed on a copy of the pai'ticulars was signed by A. and B., agents " for the vendors." Hdd, by Lord Romilly, M. R., that the memo- randum was Bufl[icient and the contract binding. Here the description was plainly sufficient. Commins v. Scott, L. R. 20 Eq. 11. An agreement to sell land did not disclose the name of the vendor ; but it appeared from the document that the vendor was a company in possession of the premises sold, and that it carried on operations therein. The M. R. Jessel held that the vendor was sufficiently described to satisfy the statute. Also, Champion v. Plummer, 1 B. & P. (N. R.) 252 ; Waterman v. Meigs, 4 Cush. 497 ; Nichols v. Johnson, 10 Conn. 192 ; Sher- burne V. Shaw. 1 N. H. 1.57 ; Webster v. Ela, 5 id. 540 ; Farwell v. Lowther, 18 111, 252 ; Slieid v. Stamps, 2 Sneed, 172. In Champion v. Plummer, which is the leading case, decided by the Ch. of Exch. Chamb., Sir James Mansfield, C. J., stated the doctrine as follows, which was adopted by the court : The vendor's name appeared, but not the purchaser's in any manner. " How can that be said to be a contract or memorandum of a contract which does not state who are the contracting parties ? By this note it does not at all appear to whom the goods were sold. It would prove a sale to any other person as well as to the plaintiff. There canno* be a contract without two parties, and it is customary, in the course of business, to state the name of the purchaser as well as the seller, in every bill of parcels. This note does not appear to me to amount to any memorandum in ■writing of a bargain.'' MEMORANDUM REQUIRED BY STATUTE. 127 the subject-matter, has been discussed in recent cases arising under the clause of the statute concerning the sale of chattels, and the doc- trines which they establish may be applied to agreements governed by the clauses now under examination. When a memorandum of sale states the two parties by name or description, but does not indi- cate, either expressly or by inference, which is the seller and which the buyer, can extrinsic evidence be used to distinguish the parties, and thus explain the nature and effect of the contract ?(1) The following rule is clearly established by these cases. It must appear in the body of the instrument, or in the signatures, either expressly or by description, who the parties are; an agent being considered as (1) Salmon Falls Mfg. Co. v. Goddard, 14 How. (U. S.) 446. Action by the company to recover the pi-ice of goods alleged to have been sold to defendant, Goddard. Plaintiff relied wholly on the following memorandum: "Sept. 19. W. W. Goddard; 12 mo's; 300 bales S. P. drills, 7^ ; 100 cases blue ditto, 8|. Credit to commence when ship sails ; not after Dec. 1. (Signed) R. M. M. ; W. W." G."' "W. \V. G. were the initials of defendant. R. M. M. were initials of one Mason, an agent of the plaintiff. Defendant contended that this memorandum could not be explained by parol evidence ; that it did not state the pai-ties ; but if it did— by means of the signature of plaintiff's agent, R. M. M. — it did not state which was the seller and which was the buyer. There was no dispute that the mercantile abbreviations could be explained. The court held that the signature "R. M. M." — which was conceded to be as effective as though the name was written in full — sufficiently stated the plaintiff as a party, so that it could sue on the contract made by its agent ; and that which of the parties was the buyer and which the seller could be proved by parol evidence. Curtis, J., dissented, being of opinion that the memorandum should indicate, in terms, which party sells and which buys. Vandenburgh v. Spooner, L. R. 1 Ex. 316. Action for goods sold. Plaintiff relied on the following memorandum : " D. Spooner agrees to buy the whole of the lots of marble purchased by Mr. Vandenburgh, now lying at, etc., at Is. per foot. D. Spooner." Held, not a sufficient memorandum. The court said (p. 319) : " Can the essentials of the contract be collected from this document by means of a fair or reasonable intendment ? We have come to the conclusion that they cannot, inasmuch as the seller's name, as seller, is not mentioned in it, but occurs only as part of the description of the goods." This case may be completely reconciled with the preceding and the following; by the fact that in the memo- randum the seller's name does not appear as a party at all; there is not the slightest intimation that Vandenburgh was the other contracting party. In all the other cases both the parties do appear, although their position towards each other is not disclosed by the writing. Newell v. Radford, L. R. 3 C. P. 52. Action by a vendee against the vendor for non-delivery of goods. It was proved by parol that plaintiff was a baker, defendant a dealer in flour, and John Williams was defendant's agent. J. W. came to plaintiff's store and solicited orders, and finally wrote the following in the plaintiff's book: "Mr. Newell, 32 sacks of (a certain kind of flour), at 39s. ; to wait orders. June 8. John Williams." The flour was not delivered. The defense rested upon the insufficiency of the memo- randum, as it did not show who was seller and who biiyer, and that pai'ol evi- dence could not be admitted. Held, tha-t the agent's name was the same as 128 SPECIFIC PERFORMANCE OF CONTRACTS. equivalent to a party, where the agreement purports to be made by him. Extrinsic evidence can then be introduced to explain the situ- ation and relations of these parties, their business, the circumstances surrounding the transaction, and the like, whence it will at once appear which is the vendor and which the vendee. This use of parol evidence is no more than that which is always proper in the interpre- tation of wills, deeds, and other written instruments. Sec. 89. When the agreement is executed by an agent in his own name, he appearing to be the contracting party, the requisite as to parties is complied with. The principal may maintain a suit and enforce the contract, and it is immaterial whether the principal was actuallo known during the transactions, or whether the other party sup- posed that he was dealing with the agent personally, entirely on his own behalf.(l) Under the same circumstances, it is now the rule that a suit may be maintained, and the contract enforced against the principal, even though his name nowhere appears on the face of the writing, and even though he was undisclosed and unknown to the other party at the time of entering into the agreement, provided, of course, it was actually made on his behalf. (2) In both of these cases, though the defendant's name had been signed, and that extrinsic evidence was admissible to show which was the seller and which the buyer ; that such evidence does not alter nor add to the contract, but merely explains the surrounding circum- stances and situation of the parties, which may always be done. This decision is identical with that in Howard's Reports. (1) Heard v. Pilley, L. R. 4 Ch. 548. Suit for a specific performance by a vendee. The defendant, Pilley, who was an agent of the plaintiff, under a parol authority, made a written contract with defendant, Sugden, in his own name ; the fact that he was really acting as agent for the plaintiff not appearing, from the case, to have been disclosed.- The bill sought to obtain a specific performance against S., and to have it declared that the contract made by P. was made on behalf of the plaintiff, and the relief was granted. Also, Salmon Falls Mfg. Co. V. Goddard, 14 How. (U. S.) 446; Higgins v. Senior, 8 M. & W. 834; Hicks v. Whitmore, 12 Wend. 548 ; Sims v. Bond, 5 B. & Ad. 389, 393, per Lord Denman. " It is a well-established rule that when a contract, not under seal, ia made with an agent in his own name for an undisclosed principal, either the agent or the principal may sue upon it." (2) The leading case in support of this rule is Higgins v. Senior,. 8 M. & "W. 834, in which Parke, B., thus states the doctrine : "There is no doubt that where such a written agreement is made, it is competent to show that one or both of the con- tracting parties were agents for others, and acted as such agents in making the conti'aet, so as to give the benefit on the one hand to, and charge with liability on the other, the unnamed principals ; and this, whether the agreement be or be not required to be in writing by the statute of frauds ; and this evidence in no way contradicts the written agreement. It does not deny that it is binding on those ■whom, on the face of it, it purports to bind, but shows that it also binds another. MEMORANDUM BEQUIRED BY STATUTE. 129 in order that the rules as stated may be operative, the writing must be unsealed wherever the common-law doctrine as to the effect of a seal, is retained ; but it should be remembered that in many of the states all distinction between sealed and unsealed instruments has been abolished by statute. (1) Sec. 90. The subject-matter. — The subject-matter of the agreement must all be included in the memorandum, and must be described with sufficient exactness to render its identity certain upon the introduc- tion of extrinsic evidence simply disclosing the situation of the parties at, and immediately before, the time of making the contract. (2) But, on the other hand, to allow evidence to be given that the party who appears on the face of the instrument to be personally a contracting party is not such, would be to allow parol evidence to contradict a written agreement, which cannot be done." This decision and reasoning of Baron Paekb have, not without some dissent, been adopted by the courts of this country as well as of England, and the rule is established even in states whose earlier doctrines were very strongly the other way. See Beckham v. Drake, 9 M & W. 79 ; Jones v. Littleilale, 6 A. & E. 490, per Lord Desman ; Newell v. Radford, L. R. 3 C. P. 52 ; Lerned v. Wannemacher, 9 Allen, 419. Action upon a written agreement to sell a quantity of merchandise. It was signed by "Wannemacher & Maxfiekl," and defendant's name nowhere appeared in it. Held, that a suit was maintainable against defendant upon proof that W. & M. were i-eally his agents, and wei-e acting for him. Dykers v. Townsend, 24 N. Y. (10 Smith) 57. On the following memo- i-andum, " I have purchased of Dykers 500 shares of the N. Y. & E. R'y Co., at 71 p. c, deliverable in CO days — W. S. Hoyt," the defendant, Townsend, was held liable, Hoyt having been his agent. Ford v. Williams, 21 How. (U. S.) 287; Beer v. London & Paris Hotel Co., L. R. 20 Eq. 412, 426, per Malins, V. C. A contract of sale signed by an auctioneer on behalf of an undisclosed proprietor is valid under the statute of frauds, and enforceable against him ; and to the same effect is Walsh v. Barton, 24 Ohio St. 28. The doctrine, as stated in the text, is denied by some American cases. Thus, in Morgan v. Bergen, 3 Neb. 209, it was held that a contract for the sale of land must be in the principal's name ; that if the agent sign in his own name, either for himself or for his principal, it is his contract alone. (1) See ante, § 57. See, to this effect, Briggs v. Partridge, 64 N. Y. 357. (2) McMun-ay v. Spicer, L. R 5 Eq. 527. Suit by a vendor for a specific per- formance. The defendant agreed, in writing, to purchase fi-om the plaintiff " the mill property, including cottages, in Esther village— all the property to be free- hold." The subject-matter being fully identified by parol evidence, it was held, by Malins, V. C, that the contract was not void for ambiguity, since parol evi- dence was admissible for purpose of identification. In King v. Wood, 7 Mo. 389, the memorandum of an agreement to sell "all that piece of property known as the Union Hotel property," was held to be fatally defective, since parol evidence was necessary to show what was intended to be sold. The decision was cleariy wrong under the authorities. Parol evidence, mei-ely showing that vendoi' was owner of premises known by that designation, would at once have identified the subject-matter with absolute certainty. As to description of land, see Clinan v. Cooke 1 Sch. & Lef. 22 ; Lindsay v. Lynch, 2 Sch. & Lef. 1 j Haniet v. Yielding, 2 9 130 SPECIFIC FERSOHMANCE OF CONTKACTS. Parol evidence is admissible to show the surrounding circumstances and position of the parties, and thus to explain the meaning and application of the descriptive language, and thereby to identify the Sch. & Lef. 549 ; Montacute v. Maxwell, 1 P. Wms. 618 ; Ives v. Ai-mstrong-, 5 R. I. 567 ; Talrnan v. Franklin, 8 Duer, 395 ; Force v. Dutcher, 3 C. E. Green, 4C1 ; Ferg'u- son V. Staver, 33 Pa. St. 411 ; Church of the Advent v. Farrow, 7 Rich. Eq. 378 ; Meadowa v. Meadows, 3 McCord. 458; Carmack v. Masterton, 3 Stew. &Port. (Ala.) 411 ; Pipkin v. James, 1 Humph. 325 ; Kay v. Curd, 6 B. Mon. 103. In a contract for a lease, the memorandum must show the length of the letting- — i. e., the term, and the want of it cannot be supplied by parol evidence. Clinan v. Cooke, 1 Sch. & Lef. 22; Fitz Maurice v. Bayley, 3 L. T. (N. S.) 69; Farwell v. Mather, 10 Allen, 322 ; Hurley v. Brown, 98 Mass. 545 ; Hodges v. Howard, 5 R. I. 149 ; Abeel v. Radcliff, 13 Johns. 300. A description of the land which enables it to be cleai'ly identified, is enough ; for example, describing it as the vendor's light in a particular estate. Nichols v. Johnson, 10 Conn. 198 ; Phillips v. Hooker, Phil. Eq. (N. C.) 193 ; or land which the vendor had bought from a designated person. Atwood v, Cobb, 16 Pick. 230 ; and see Simmons v. Spruill, 3 Jones' Eq. (N. C.) 9. The following are cases of memoranda held either sufficient or insffi- cient: Grace v. Denison, 114 Mass. 13 ; a written agreement to convey land "for $25,000, and mortgage to remain at five per cent for five years," held too incom- plete to satisfy the statute. Matteson v. Scofield, 27 Wis. 671, an offer in a letter, accepted by the vendee, to sell certain land for $3,200, $1,000 down, and $500 annually, with interest, the amount unpaid to be secured by a mortgage, held sufficient. White v. Herman, 51 111. 243, a description of the land is sufficient, if it enables a surveyor to locate the tract intended to be sold. Whelan v. Sullivan, 102 Mass. 204 ; but such description is insufficient, if it gives no means of identi- fying the boundaries of the land sold. McGuire v. Stevens, 42 Miss. 724 ; a receipt, reciting that the money was paid for a lot of land, but giving no terms of the contract, does not constitute a memorandum. Hudson v. King, 2 Heisk. 560 ; a memorandum showing only the different tracts sold, to whom, and the prices, is insufficient. Heydock v. Stow, 40 N. Y. 363 ; a written instrument, signed by the owner, authoiizing a real estate broker to sell a parcel of land upon certain terms therein stated, and an agreement to purchase it upon those terms, sub- scribed by the vendee, written aci'oss the face of the instrument while unrevoked in the hands of the broker, do not, either alone or together, form a sufficient memorandum binding on the owner, nor does his parol assent, subsequently made, give it any validity. Cossett v. Hobbs, 56 111. 231 ; an owner, who- had authorized certain real estate brokers to sell a piece of land, wrote on the back of one of their business cards a short description of the property and his terms, and signed it ; on the same card, a pui-chaser wrote, " your terms are accepted," and signed it. Held, that these constituted a memorandum. This latter decision cer- tainly accords \s ith the spirit of the statute, and with the cases defining the gen- eral requisites of the memorandum much better than the decision immediately preceding does. The memorandum need not be an elaborate and perfected agreement. In the N. Y. case there was an offer by the vendor, signed by him, and, while it was unrevoked, it was accepted by the vendee. What more is necessary to constitute a contract ? Holmes v. Evans, 48 Miss. 247 ; a receipt for $100, "part payment on a piece of property, on corner of Main and Pearl sti-eets, city of Natchez, State of Mississippi," held insufficient. Ross v. Baker, 72 Pa. St. 186 ; a purchaser bought by parol, and took a receipt for the purchase-money. MUMOEANDUM REQUIRED BY STATUTE. 131 subject-matter ; and all technical terms and other phrases used in a special sense, may be thus, as it were, translated. But if, by this means, the subject-matter is not certainly ascertained, parol evidence cannot be used to go farther, and actually supply a substantive p.ivt of the agreement, which has been entirely omitted from the memo- randum or insufficiently expressed. It is enough that the subject-mat- ter is substantial /i/ stated, and that no material portion of it is left to be wholly supplied by parol evidence ; it need not be set forth, wi h all its details, with perfect, exhaustive accuracy, and this limitation applies with equal force to all the other terms of the contract, the promises, and the consideration. (1) The description of the subject- which stated the amount paid to be for "the Fleming' farm, French Creek;'' held to be a sufficiont description. Spangler v. Danforth, 65 111. 152 ; a letter fi'om the vendor to his own agent, stating that the vendee had " agreed to take the pasture lot for §2,400, $1,000 cash, $100 December first, 1871, at ten per cent, and $1,000 July first, 1872, at ten per cent, secured l:)y mortgage," and directing the agent to " make out the papers," and acknowledging the receipt of $20 ; held to be a good memorandum. To the same effect is Moss v. Atkinson, 44 Cal. 3, lii ; a letter by owner of land, P., addressed to one M., stating that he had agi-eed wi.h the purchaser H., to sell H. the land, and giving the terms of the agreement and the jiriee, and describing the land as " the land now claimed by him. P., on Diy Creek, some 200 aci-es of bottom land, and 700 acres of upland," was held to con- stitute a valid memorandum under the statute. Mead v. Parker, 115 Mass. 413 ; the description, in a contract of sale, " a house on Church street," held sufficient, and parol evidence admissible for purpose of identification. Riley i!. Farns worth, 116 Mass. 223 ; a memorandum of a, sale at auction, which stated the parties, price, description of the subject-matter, and the fact of a part payment, but did not contain the "conditions of sale," which, it said, "the vendor shall in all respects fulfill," was held to be insufficient. If these conditions of sale were ■written on a separate paper or printed, then this decision is clearly erroneous, and in direct conflict with the universal practice in England, and with all the cases which hold that the memoi'andum may be completed by another paper, to ■which reference is made. Here there was a plain reference to such conditions, if they were on a separate paper. If the conditions were verbal, the decision is as clearly coi-rect. Va.«sault v. Edwards, 43 Cal. 458, 462. An offer to sell land was written and signed by the vendor, the defendant, and stated that he had sold to the purchaser, the plaintiff, the land for $4,500, and had received $')0 in part payment, and added : " This sale is subject to a search of, and approval of the title, and if the title is rejected or [as] bad, I agree to refund to the said V. (Ilie vendee) the $50 paid on account ; but if the title be approved, I agree to convey the above premises to the said V. on receiving the balance of the purchase-money as above. And I hereby allow to the said V. twenty days for the examination of the title." This ofler, on being accepted by the purchaser, was held to constitute a valid contract. (1) Ives V. Hazard, 4 R. I. 14. An estate, upon which certain annuities were charged, was sold subject to them. A memorandum which, in describing the estate, mentioned the annuit.ie.'!, and stated the time when their payment by the purchaser was to begin, but did not specify the particulars in relation to them, was held sufficient. 132 SPECIFIC PERFORMANCE OF CONTRACTS. matter may be wholly or partially contained in an auxiliary writing, which, if referred to in such a manner as to establish the connection, becomes a constituent part of the memorandum ; or the accompanying document may be simultaneously with the memorandum signed, or otherwise authenticated by the parties, so as to show that the two are to be taken together and to form one agreement.(l) But advertise- ments, hand-bills, notices, or other writings, used at or before the sale, cannot be used to control or affect the ■ description contained in the agreement, unless they are thus connected and virtually adopted by a reference or a simultaneous execution. (2) Sec. 91. The promises. — In like manner the promises of both the parties, so far as they are executory, must all be included in the memorandum — whether it be one or more writings — so that parol evidence shall not be necessary to ascertain anything which the parties have undertaken to do or to omit. Every written contract pre-supposes a prior verbal agreement which it embodies — in fact, the writing is the evidence of the agreement, and not the essence of it. The memorandum, in order to satisfy the statute of frauds, must con- tain all the stipulations and undertakings of the verbal bargain. If any of these stipulations are omitted, then the memorandum — although the parts which it does contain might, by themselves, make a com- ' plete contract — is not a note or memorandum of the agreement as re- quired by the statute, and cannot be enforced at law or in equity.(3) (1) Nene Valley Drainage Comm'i-s v. Dunkley, L. R. 4 Ch. D. 1. • Suit by vendors for a specific performance. The commissioners agreed to sell certain property to D. The agreement did not refer to any plan, but the agents who signed it for the parties at the same time signed the following memorandum, written upon a jilan of the propei-ty : "Plan of property sold to and purchased by D., Oct. 22, 1874. N. B., the property included in the purchase is edged with i-ed color.'' Held, that the plan was sufficiently incorporated, and the description in the agreement was controlled by it — by Jessel, M. R., and by theCourt of Appeals. (2) Clinan v. Cooke, 1 Sch. & Lef. 22; O'Donnell v. Leman, 43 Me. l.'JS. (3) Jervis v. Berridge, L. R. 8 Ch. 351 ; McLean v. Nicoll, 7 H. & N. 1024. The parties made a vei'bal agreement for the sale of Fome goods ; a writing was afterward signed which omitted one of the collateral stipulations, and the court held that there was no sufficient memorandum to bind the defendant. Jervis v. Beriidge, supra, is directly in point. Plaintiff agreed to buy an estate from the L. Society, and to pay a deposit on signins' the contract. Before signing plaintiff verbally agree. Ronald, 4 Munf. 77 5) Holman v. Bank of Norfolk, 12 Ala. 369 ; Fugate v. Hansford, 3 Litt. 262. 6 Salmon Falls Manuf. Co. v. Goddard, 14 How. 446 ; Marshall v. Lynn, 6 M. & W. 109. per Pakkk, B. ; Sari .v. BourdiUon. 1 C. B. (N. S.) 188 ; Spicer v. Cooper, 1 Gale & Dav. 52 ; 5 Jur. 1036. 136 SPECIFIC PERFORMANCE OF CONTRACTS. marriage is not a sufficient part performance ; but when there has been such a verbal ante-nuptial agi-eement, a written contract or settlement in pursuance or upon the basis of it, made after the mar- riage, is valid and will be enforced.(l) But such subsequent agree- ment or settlement may not be upheld against intervening creditors, ■whose rights it would cut off. (2) Sec. 96. Part performance. — As has already been shown, (3) equity will sometimes decree the specific execution of agreements for tha breach of which the law can give no remedy, because the statute of frauds interposes an inseperable obstacle to the recovery of a legal judgment for damages. The doctrine was established at an early day in England that a verbal agreement, if part performed, can, not- withstanding the requirements of the statute, be enforced by a court of equity ; or, to use the technical language of the books, that part performance takes a verbal agreement out from the operation of the statute. (4) This doctrine has been fully adopted in nearly all the' American states, although the legislatures in several of them hav^ materially altered the language of the act by declaring that the con- tract shall be " void,'' instead of providing that " no action shall be maintained " upon it, in the absence of a written memorandum. (5) (1) Montacute v. Maxwell, 1 P. "Wms. 618 ; Stra. 236 ; Hammersley v. Du Biel, 12 CI. & Fin. 45, 64 n. ; Taylor v. Beech, 1 'Ves. Sen. 297 ; Surcome v. Pinniger, 3 DeG. M. & G. 575 ; Barkworth v. Young, 4 Drew. 1 ; Argenbi-ight v. Campbell, 3 Hen. & M. 144 ; Albert v. Winn, 5 Md. 66 ; Satterthwaite v. Emley, 3 Green. Ch. 489 ; Livingston v. Livingston, 2 Johns. Ch. 537 ; in Randall v. Morgan, 12 Ves. 67, Sir Wm. Gbant intimated a contrary opinion. (2) Reade v. Livingston, 3 Johns. Ch. 481 ; Winn d. Albert, 2 Md. Ch. 169 ; 5 Md. 66 ; Izard v. Izard, Bailey Eq. 236 ; Andrews v. Jones, 10 Ala. 400 ; Blow v. Maynard, 2 Leigh, 29 ; Smith v. Greer, 3 Humph. 118 ; Wood v. Savage, 2 Doug. (Mich.) 316 ; Borst v. Cory, 16 Barb. 136 ; Randall v. Morgan, 12 Ves. 67 ; Bat- tersbee -B. Farrington, 1 Sw. 106 ; per contra, see Dundas v. Dutens, 1 Ves. 196 ; Satterthwaite «. Emley, 3 Green. Ch. 489. (3) See ante, § 30. (4) The earliest reported case was decided by the House of Lords, April 7, 1701. Lester v. Foxcroft, 1 Colles's Par. Cas, 108 ; also cited siib. ■wm. Foxcroft v. Lys- ter, 2 Vern. 456 ; Leicester v. Foxcroft, Pre. Ch. 519, 526 ; Bond v. Hopkins, 1 Sch. & Lef. 433 ; Clinan v. Cooke, 1 Sch. & Lef. 22, 41. (5) Newton v. Swazey, 8 N. H. 9, 13 ; Tilton v. Tilton. 9 N. H. 385, 389 ; Annan V. Meriitt, 13 Conn. 479, 491 ; Eaton v. Whitaker, 18 Conn. . 222, 229 ; Hall v. Whittier, 10 R. I. 530; Peckham v. Barker, 8 R. I. 17 ; Meach v. Stone, 1 Chip. (Vt.) 189 ; Parkhurat v. Van Cortland, 14 Johns. 15, 31 ; Freeman v. Freeman, 43 N. Y. 34 ; Eyi-e v. Eyre, 4 C. E. Green. (N. J.) 102 ; Welsh v. Bayaud, 6 C. E. Green, (N. J.) 186 ; Moore v. Small, 19 Pa. St. 461 ; Greenlee v. Greenlee, 22 Pa. St. 225 ; Allen's estate, 1 Watts & Serg. 583 ; .Hall v. Hall, 1 Gill. 383, 389 ; Ham- ilton V. Jones, 3 Gill & J. 127 ; Cole v. Cole, 41 Md. 301 ; Semmes v. Worthing- MEMORANDUM KEQUIRED BY STATUTE: 137 ■In several of the states the doctrine, although originating in equity, has received a statutory sanction or even basis. There are two types of these statutory provisions. One class recognizes the doctrine of part performance as enforced by courts of equity, and declares that nothing in the statute of frauds shall be construed so as to interfere -with or abridge it, and thus leaves the subject, as it was prior to the legislation, wholly within the domain of equitable piinciples.(l) The statutes of the other class, differing from each other in their details, agree in making the doctrine a matter of legislation. As the section concerning sales of personal property requires either a written memo- randum, or receipt and acceptance, or payment by the buyer, so these provisions concerning lands prescribe a, writing or certain specified acts of part performance in the alternative, as the essential requisites of a valid contract. (2) How far, if at all, these statutes have modified the general rules of equity relative to pirt performance in their respective states will be considered in the sequel. Sec. 97. In a few of the states, either on account of a strict con- struction put upon the language of their statutes of frauds, or by reason of the limited jurisdiction in^ equity conferred upon their courts, the doctrine of part performance has been wholly rejected, or is applied only to a partial ejftent and under very special circum- ton, 38 Md. 298 ; Anthony v. Leftwich, 3 Rand. (Va.) 255 ; Pierce «. Catron, 23 Gratt. 483; Lowv/i). Buffingrton, 6 W. Va. 249; Sites v. Kellar, 6 Hamm. (O.) 207 ; Grant -o. Ramsay, 7 Ohio St, 157 ; Underbill v. Williams, 7 Blackf. 125 ; School District v. Macloon, 4 Wise. 79 ; Farrar v. Patton, 20 Mo. 81 ; Despain v. Carter, 21 Mo. 331 ; Feuiser v. Sneath, 3 Nev. 120 ; Chui-ch of the Advent v. Far- row, 7 Rich. Eq. 378; Ford v. Finney, 35 Geo. 258; Dugan v. Colville, 8 Tex. 126 ; Boze v. Davis, 14 Tex. 331 ; Howe v. Rogers, 32 Tex. 218 ; Clayton v. Fra- zier, 33 Tex. 91 ; Johnson v. Bowden, 37 Tex. 621 ; Gregg -e. Hamilton. 12 Kans. 333 ; Morgan v. Bergen, 3 Neb. 209 ; Fall v. Hazelrigg, 45 Ind. 576 ; Northrup ■0. Boone, 66 111. 368. (1) See ante, § 70, in the statutes of N. Y. ; Mich. ; Minn. ; Neb. ; Wise. ; Ind. (2) See ante, § 70, in the statutes of Alabama, which requires the contract for sale of lands, etc., to be written, etc., "unless the pui-chase-raoney or a, portion thereof be paid, and the purchaser be put in possession of the land by the seller." California, which requires a writing, etc., " unless the contract has been part performed by the party seeking to enforce it, and such part performance has been accepted by the other." Iowa, which enacts that' the requirement of a wi-iting does not apply " when the purchase-money or any part thereof has been received by the vendor, or when the vendee, with the actual or implied consent of the vendor, has taken and held possession thereof (i. e., of the land), under and by virtue of the contract, or when there is any other circumstance which, by the law heretofore in force, would have taken a case out of the statute of frauds." Also, that a parol contract shall be enforced when not denied in the pleadings, except against a person other than the maker of it. 138 SPECIFIC PERFORMANCE OF CONTRACTS. stances. In Massachusetts the courts long had the power of enforcing ■written contracts alone ;(1) but by recent legislation their equitable jurisdiction has been enlarged so as to embrace some cases, at least, of parol agreements which have been part performed.(2) In Maine, also, the equity powers of the courts are restricted to the enforcement of written contracts.(3) In North Carolina the equitable doctrine of part performance has never been admitted, and in case of a verbal contract, even if it be admitted by the defendant, provided he claims the benefit of the statute, the remedy of specific execution is refused. (4) The rule that parol contracts, which have been part performed, may be specifically enforced, has also been repudiated in Tennessee as being wholly inconsistent with the statute of frauds; (5) and is only admitted in Kentucky under special circumstances of hardship or injustice to the purchaser.(6) Sec. 98. This doctrine of part performance, that verbal contracts, embraced within the restrictive provisions of the statute of frauds, may still be enforced when they have been part performed, belongs exclusively to equity jurisprudence and jurisdiction; it has no exist- ence at law, and is, therefore, never admitted in legal actions.(7) (1) Jacobs ■». R. R. Co., S Cush. 223; Bi-ooks ■». "Wheelock, 11 Pick. 439 ; Dwight ■B. Pomeroy, 17 Mass. 303, 327 ; Buck v. Dowley, 16 Gray, 555. (2) Metcalf v. Putnam, 9 Allen, 97 ; Glass v. Hulbei-t, 102 Mass. 25, 33 ; Stock- ham Iron Co. V. Hudson Iron Co., 102 Mass. 45 ; Potter v. Jacobs, 111 Mass. 32. (3) Power is given by statute to compel " specific performance of contracts in writing," and it is held that, in the face of this provision, the general grant of jurisdiction in all cases of "fraud, trust, accident, and mistake," could not be made to include the specific enforcement of parol contracts which have been part performed. Wilton v. Harwood, 23 Me. 131, 134 ; Bubier v. Bubier, 24 Me. 42 ; Stearns v. Hubbard, 8 Greenl. 320. (4) This course of decision is expressly based upon the statute of frauds ; the rules established by the English court of chancery, it is asserted, amount to a virtual repeal of the statute, and let in all the opportunities for frauds and perjuries, which it was the design of that enactment to shut out. When, in such a case, the relief of specific performance is refused, the plaintiff may, however, recover the amount of his payments and outlays for improvements. See Love v. Neilson, 1 Jones' Eq. 339 ; Barnes 13. Teague, 1 Jones' Eq. 277 ; Ellis v. Ellis, 1 Dev. Eq. 345 ; Allen v. Chambers, 4 Ired. Eq. 125 ; Dunn ■». Moore, 3 Ired. Eq. 364 ; Albea v. Griffin, 2 Dev. & Bat. Eq. 9 ; Plummer r. Owen, 1 Busbee Eq. 254 ; Barnes v. Brown, 71 N. C. 507, 511, 512, per Rodman, J. (5 1 Ridley v. McNairy, 2 Humph. 174, 177 ; Patton v. McClure, Mart. & Yerg. 333, and in Mississippi, McGuire v. Stevens, 42 Miss. 724 ; Hairston v. Jaudon, 42 Miss. 380. (6) Worley v. Tuggle, 4 Bush, 168, 190. (7) O'Herlihy v. Hedges, 1 Sch. & Lef. 123 ; Kelly D. Webster, 12 C. B. 283 ; Ereeport v. Bartol, 3 Greenl. 345 ; Patterson v. Cunningham, 2 Fairf. (Me.) 512 j MEMORANDUM REQUIRED BY STATUTE. 139 Although its operation has doubtless been beneficial, and the prin- ciples and rules upon which it rests are firmly established, yet the courts are careful not to extend it to new circumstances or relations not embraced within those rules and principles. That the statute of frauds is a wise and politic enactment, and accords with the common experience of mankind, is shown by its adoption in nearly all the states, and the tendency at the present day is strongly in favor of sustaining and enforcing its provisions.(l) I shall arrange the further Norton v. Preston, 15 Me. 14, 16 ; Lane v. Shackford, 5 N. H. 132 ; Newell v. Newell, 13 Vt. 24 ; Pike v. Morey, 32 Vt. 37 ; Kidder v. Hunt, 1 Pick. 331 ; Thomp- son V Gould, 20 Pick. 138 ; Adams v. Townsend, 1 Met. 483 ; Eaton ti. Whitaker, 18 Conn. 231; Downey v. Hotchkiss, 2 Day (Conn.) 225; Jackson v. Pierce, 2 Johns. 221, 223 ; Abbott v. Draper, 4 Denio, 52 ; Thomas v. Dickenr^on, 14 Barb. 90 ; Boutwell v. O'Keefe, 32 Barb. 434 ; Wentworth v. Buhler, 3 E. D. Smith, 305 ; Seymour v. Davis, 2 Sandf. 245 ; Henderson v. Hays, 2 Watts (Pa.) 148 ; Walter V. Walter, 1 Whart. (Pa.) 292 ; Barickman v. Kuydendall, 6 Blackf. 22, 24 ; Sailors V. Gambril, 1 ?mith (Ind.) 82 ; Hunt v. Coe, 15 Iowa, 197 ; Davis v. Moore, 9 Rich. 215 ; Payson v. W^est, 1 Walker (Miss.) 515 ; Johnson v. Hanson, 6 Ala. 351 ; Allen V. Booker, 2 Stew. (Ala.) 21 ; Meredith v. Naish, 4 Stew. & Poi-t. (Ala.) 59. (i;^ Phillips «. Edwards, 33Beav. 440; Phillips «. Thompson, 1 Johns. Ch. 132, 149, per Kent, Ch. : " I agree with those wise and learned judges who have declared that the courts ought to make a stand against any further encroachment 00 the statute, and not to go one step beyond the rules and precedents already established." German v. Machin, 6 Paige, 289, 293, per Walworth, Ch. : " The beneficial provisions of the statute of frauds have been sufficiently broken in upon already, and the doctrine of part performance should not be extended to new cases which do not come clearly within the equitable principles of prBvious deci- sions." See, also, Allen's Estate, 1 Watts & Serg. 383, 388 ; Frye v. Shepler, 7 Barr. 91. 93 ; Moore v. Small, 7 Harris, 461 ; Poorman v. Kilgore, 2 Casey, 365 ; Ccx V. Cox, 2 Casey, 375 ; Wallace v. Brown, 2 Stockt. Ch. 308 ; Johnston v. Glancey, 4 Blackf. 94, 99 ; Massey v. Mcllwain, 2 Hill, Ch. 421, 426 ; Hood v. Bow- man, 1 Freeman, 290, 294; Anthony v. Leftwich, 3 Rand. 238, 244; Parkhurst v. Van Coi-tlandt, 1 Johns. Ch. 284. 285 ; Harnett «. Yielding, 2 Sch. & Lef. 549 ; Fos- ter V. Hale, 3 Ves. 712, 713, per Lord Alvanley ; O'Reilly v. Thompson, 2 Cox, 271 ; Lindsay v. Lynch, 2 Sch. & Lef. 4, 5, 7, per Lord Redesdale : " The statute was made for the purpose of preventing perjuries and frauds; and nothmg can be more manifest to any person who has been in the habit of practicmg m courts of equity, than that the relaxation of that statute has been a ground of much per- jury and much fraud. If the statute had been rigorously observed, the result would probably have been, that few instances of parol agreements would have occurred. Agreements would, from the necessity of the case, have been reduced to writing. Whereas it is manifest that the decisions on the subject have opened a new door for fraud, and that, under pretence of part execution, if pos.session is had in any way whatsoever, means are frequently found to put a court of equity in such a situation that, without departing from its rules, it feels itself obliged to \break through the statute. It is, therefore, absolutely necessary for courts of Unity to make a stand, and not to carry the decisions further." The reported Judgments of Lord Rbdbsdalb show that he was strongly opposed to this equ;- tp,ble doctrine. 140 SPECIFIC PERFORMANCE OF CONTRACTS. discussion of the subject in the following order : First. The kinds of contracts to which the doctrine of part performance is applied. Second. The equitable basis and essential principles of the doctrine. Third. The particular acts which do or do not amount to a sufficient part performance. Fourth. The nature and effect of the evidence by which the contract must be proved. Sec. 99. First. The kinds and classes of contracts to which, the doctrine of part performance is applied. — As the doctrine of part performance exists alone in equity, it is plain that the only agreements to which it can be applied, are those to which equity would grant the remedy of specific execution if they were written. All the conditions upon which the right to the equitable relief is based must be fulfilled, when the agreement is verbal as much as when it is written, for the mere absence of a written memorandum does not of itself let in the equi- table jurisdiction ; for, otherwise, all contracts might be enforced in equity if they were unwritten. The contract, therefore, must be one for which the legal remedy of damages would be inadequate or im- practicable, and for which the equitable remedy of specific exec\jtiou is possible. (1) It must be obligatory upon the parties, except so far as the absence of a written memorandum prevents its enforcement at law — obligatory, that is, as contradistinguished from a mere honorary engagement; (2) and must be complete and certain in its terms.(3) Sec. 100. The contracts embraced in certain clauses of the statute of frauds are all purely legal in their nature ; the legal remedy of damages is always adequate ; and there is no occasion or opportunity either for the equitable relief of specific execution, or the doctrine of part performance. These clauses are : 1, that relating to promises by executors, etc., to answer damages out of their own estates ; 2, that relating to promises by one person to answer for the debt, default, (1) Kirk V. Bromley Union, 2 Phil. 640 ; a contract for work and labor. Frame V. Dawson, 14 Ves. 386 ; Pembroke v. Thorpe, 3 Sw. 437 ; Eckert v. Eckert, 3 Penn. 332 ; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273 ; Armstrong v. Katten- horn, 11 Ohio, 265. (2) Loi-d Walpole v. Lord Orford, 3 Ves. 402 ; Izard v. Middleton, 1 Dessau. 116 ; and for further examples of honorary engagements, see ante, § 69. (3) Thynne v. Lord Glengall, 2 H. L. Cas. 158, per Lord BRonoHAM : " Part per- formance to take a cause out of the statute of frauds always supposes a com- pleted agreement. There can be no part performapce when there ia no completed agreement in existence. It must be obligatory, and what is done must be under the terms of the agreement and by force of the agreement." In re Thomas Ryan, 3 I. R. Eq. 238. The subjects of completeness and certainty are fully treated in subsequent sections of this chapter. The contract must be fair, just, reasonable, mutual, and certain. Reese v. Reese, 41 Md. 554. MEMORANDUM REQUIRED BY STATUTE. 141 etc., of another; and 3, similar provisions which are added to the statute in many of the American states. It has already been shown that a contract for the sale or assignment of things in action, and under very special circumstances a contract for the sale or transfer of peculiar chattels, may be specifically enforced in equity. Although the equitable remedy of specific performance may, therefore, be applied to agreements embraced within the clause of the statute relating to the sale of personal property, yet the doctrine of part per- formance cannot be so applied. The reason is obvious. The only acts which could by possibility be a part performance, payment, or delivery and acceptance, render the contract valid and binding at law ; these acts are substituted by the statute in the place of a written memorandum ; and all opportunity for resorting to the equitable doc- trine of part performance is thus cut off. The clause relating to con- tracts not to be performed within a year from the making thereof, seems, by its very terms, to prevent any validating effect of pait performance upon all agreements embraced within it. As the prohibition relates not to the subject-matter, nor to the nature of the undertaking, but to the twrie of the performance itself, it seems impossible for any part performance to alter the relations of the parties, by rendering the contract one which, by its terms, may be performed within the year. It has, indeed, been held in some cases, that if all the stipulations on the part of the plaintiff are to be performed within a year, an action will lie for a breach of the defendant's promise, although it was not to be performed within the year, and was not in writing. In all these cases, however, the promise of the defendant was simply for the payment of the money consideration, which might, in every instance, have been sued for and recovered upon his implied promise ;(1) and the doctrine itself has been expressly and emphatically repudiated by numerous other decisions.(2) But even admitting this rule to its fullest extent, it can only apply to legal actions, and has nothing in common with the equitable doctrine of part performance.(3) (1) Bracegirdle v. Heald. 1 B. & Aid. 727, per Abbott, J. ; Donellan v. Read, 3 B. & Ad. 899; Cherry v. Heming, 4 Wels. H. & Gord. 631; Smith v. Neale, 2 C B 67 ; Holbrook v. Armstrong-, 10 Me. 31 ; Haug-h v. Blythe, 20 Ind. 24 ; Curtis V. Sag-e. 35 111. 22 : Su^gett v. Cason, 26 Mo. 221 ; Talmadge v. Rensselaer k Sar. R. R.. 13 Barb. 493 ; Ellicott v. Turner, 4 Md. 476 ; Johnsons. Watson, 1 Geo. 348 ; Rake 'O. Pope, 7 Ala. 161. . „ ,. „„ (2) Sweet V Lee, 3 Man. & Gr. 452; 4 Scott, (N. R.)77; Fraryu Sterhng:, 99 Mass. 461 ; Broadwell v. Getman, 2 Denio, 87 ; Bartlett v. Wheeler, 44 Barb. 162 ; Pierce v. Paine's Estate, 28 Vt. 34 ; Emery v. Smith, 46 N. H. 151. (3) There is, perhaps, one exception to this general proposition, arising- under the 142 SPECIFIC PERFORMANCE OF CONTRACTS. i' Sec. 101. The conclusion is thus reached that the doctrine of part I performance is confined in its operation to the contracts embraced within the two remaining clauses of the statute of frauds, namely, that relating to the sale of lands, and that relating to agreements made upon the consideration of marriage. Verbal contracts for the sale of lands or of any interest therein may, in general, be part per- formed, and thus be brought within the jurisdiction of equity and speci- ' fically enforced, and in the vast majority of cases which have involved 1 the doctrine, the subject-matter of the agreement was real estate. As \ the statute speaks of lands, " or any interest in or concerning them," contracts to lease are both included within its terms, and are capable of being part performed so as to be taken out of the operation of the statute and made enforcible in equity.(l) In most of the American statutes all possible doubt upon this point has been removed by adding a clause to the section concerning lands, which expressly includes agree- ments to lease for a time not exceeding one year. Contracts made upon the consideration of marriage are also capable of partial performance, so as to be taken out of the operation of the statute, if verbal. They may stipulate for the transfer of lands, of chattels, or of things in action ; or they may provide for future settlements of real or personal property, in which case their specific performance would consist in the execution of instruments containing the proper covenants and other clauses necessary to carry into effect the intention of the parties. Although, as will hereafter be shown, marriage itself is not a part performance, marriage in connection with other acts may be a suffi- cient part performance upon which to base the equitable jurisdiction, and decree the enforcement of such agreements whether they deal with real or with personal property. (2) Although, in order to admit English statutes, and those few of the American states which have exactly copied its language, in the case of agreements to lease for a longer term than one year, which may be covered by the clause in question, and which are certainly capable of being partly performed, and thus brought within the equitable jurisdiction. In the great majority of the American statutes, however, agi'eements to lease, except for a term not exceeding one year, have been expressly included in the section relating to contracts for the sale of lands, while in New York and some other states it has been held, that such agreements do not come within the provision relating to contracts not to be performed within a year. Practically, therefore, agreements to lease for more than one year are referable to the clause concerning lands, and not to that concerning agreements not to be performed within a year. (1) GrEtnt V. Ramsey, 7 Ohio St. 157. (2) Gough V. Crane, 3 Md. Ch. 119 ; 4 Md. 316. A verbal agreement that cer- tain things in action— such as bonds, notes, etc., of the wife should become the property of the husband absolutely, had to be sufficiently part performed by a MEMORANDUM REQUIRED BY STATUTE. 143 the doctrine of part performance, the contract must be one which would be specifically enforced by a court of equity if it had been in writing ; the converse of this proposition is not true. Every contract which, if written, would be specifically enforced, is not, therefore, necessarily capable of being part performed when verbal, so as to admit the equitable jurisdiction. Part performance, as will be fully shown under the next subdivision, assumes such a change in the rela- tion of the parties that a restoration to their previous condition is impracticable, and a refusal to go on and complete the engagement would be a virtual fraud upon one of the parties. It is plain that there may be agreements even concerning interests in lands, which, by their very terms, are not capable of such a part performance. Wherever part performance is admissible as the basis of equitable interference and relief, it furnishes sufficient ground for enforcing the verbal contracts of corporations equally with those of natural persons.(l) Sec. 102. Second. The equitable bans and essential principles of the doctrine. — In the present subdivision I propose to describe the princi- pal foundation upon which courts of equity have rested the doctrine that a part performance will take a verbal contract out from the opera- tion of the statute of frauds, and the general princii)les which consti- tute the essential conditions of the doctrine. The various applications of these principles under different circumstances will be deferred to the next subdivision, which treats of the particular acts which may amount to a sufficient part performance. Sec. 103. 1. Fraivd the principal foundation. — It might appear to be a usurpation of legislative power for courts of equity to enforce a verbal contract, proved entirely by parol evidence, in the face of the statute which requires the evidence of a written instrument signed by the party to be charged. In truth, however, there is no attempt or design to repeal the statute. The doctrine of part performance is merely a particular application of the general principle which sup- ports a great part of the equitable jurisdiction ; the principle that fraud shall be prevented, relieved against, or punished in whatever form of under whatever guise it may appear. It is simply saying delivery to the intended husband. Surcome v. Pinniger, 3 DeG. M. & G. 571 ; Neale t). Neales, 9 Wall. 1 ; Dugan v. Gittings, 3 Gill. 138 ; Hammei-sly D. De Biel, 12 CI. & Fin. 61, 65 ; De Beil v. Thomson, 3 Beav. 475. (1) Wilson V. West Haitlepool R'y Co., 2 DeG. J. & S. 475 ; Crook v. Corpora- tion of Seaford, L. R. 6 Ch. 551 ; Steevens' Hospital ■». Dyas, 15 Ir. Ch. Rep. 405. As to lands owned by partnerships, see Dale v. Hamilton, 5 Hare, 369 ; 2 Ph. 266 ; Darby v. Darby, 3 Drew. 495. 144 SPBCIIW PBRFOIiMANCB OF CONTRACTS. that a man shall not be permitted to use a statute, more than any other assistant, for the purpose of promoting his own fraudulent intents or defending his own fraudulent conduct. If to this principle is joined the equitable conception of fraud, which sees the intent in the nature and consequences of a man's acts as well as in his own mental operations, the doctrine at once arises as a natural and necessary consequence. The grand principle which underlies this,.as well as many other instances of equitable jurisdiction, was briefly stated by V. C. Shadwell : " The author of a mischief is not the party who is to complain of the result of it, but he who has done it must submit to have the effects of it recoil upon himself. * * * Where a wrong has been done, the wrong-doer must suffer from the impossibility of accurately ascertaining the amount of damage. "(1) When, for exam- ple, a vendor of land, under a parol agreement, knowingly permits the purchaser to take possession, to make payments upon the price, and to expend money in permanent alterations or improvements, and thus to render it impossible for the parties to be restored to their original situation, such vendor cannot complain if a court of equity, not being able to ascertain the exact amount of damage, grants to the purchaser the relief of a specific execution, and th>is causes the effects of the wrong to recoil upon its author. The true theory upon which equity has proceeded in applying the doctrine was stated, with his usual accuracy, by Lord Westbury in a recent case : " The court of equity has, from a very early period, decided that even an act of parliament shall not be used as an instrument of fraud ; and if, in the machinery of perpetrating a fraud, an act of parliament intervenes, the court of equity, it is true, does not set aside the act of parliament, but it fastens on the individual who gets a title (or right) under that act, and imposes upon him a personal obligation, because he applies the act as an instru- ment for accomplishing a fraud. In this way the court of equity has dealt with the statute of frauds."(2) Sec. 104. The foundation of the doctrine is fraud; not necessarily an antecedent fraud, consciously intended by the party in making the contract, but a fraud inhering in the consequence of thus setting up the statute. When a verbal contract has been made, and one party has knowingly aided or permitted the other to go on and do acts in part performance of the agreement, acts done in full reliance ui;ion such agreement as a valid and binding contract, and which would not (1) Duke of Leeds v. Earl of Amherst, 20 Beav. 239, 242. (2) McCorinick v. Grogan, L. R. 4 H. L. 82, 97, per Lord Wbstbdrt. MEMORANDUM REQUIRED BY STATUTE. 145 have been done without the agreement, and which are of such a nature as to change the relations of the parties, and to prevent a restoration to their former condition and an adequate compensation for the loss by a legal judgment for damages, then it would be a virtual fraud in the first party to interpose the statute of frauds as a bar to a completion of the contract, and thus to secure for himself all the benefits of the acts already done in part performance, while the other party would not only lose all advantage from the bargain, but would be left with- out adequate remedy for its failure or compensation for what he had done in pursuance of it. To prevent the success of such a palpable fraud, equity interposes under these circumstances, and compels an entire completion of the contract by decreeing its specific execution. In the cases, which are by far the most frequent, of agreements to purchase and sell lands, it has also been said, in addition to the fore- going reasons, that when the purchaser has gone into possession and made improvements, he would be a trespasser and liable to damage as such, unless the agreement was sustained by reason of its part performance and enforced by equity ; and although this ground of the jurisdiction has been severely criticised by able courts, it is clearly tenable as strengthening and sustaining the more general and con- clusive argument based upon the principle of fraud.(l) The action (1) Lester c. Foxcroft. 1 Colles Par. Cas. 108 ; Foxcraft v. Lester. 2 Vern. 456 ; Buckmaster v. Harrop, 7 Ves. 346, per Sir Wm. Grant ; Mundy i,. JoUiffe, 5 My. & Cr , 177. per Ld. Cottenham ; Bond v. Hopkins, 1 Sch. & Lef. 433 ; Clinan v. Cooke, 1 Sch. & Lef. 22, 41 ; Morphett v. Jones, 1 Sw. 181 ; Atfy Gen. v. Day, 1 Ves 221 • Walker v. Walker, 2 Atk. 100 ; Whitbread i). Brockhurst, 1 Bi-o. C. C. 417 • 2 V & B 153, n. ; Hawkins v. Holmes. 1 P. Wms. 770 ; Wills v. Stvadhng;, 3 Ves.' 378 ; Meynell v. Surtees. 3 Sm. & Gif. 101 ; Farrall v. Davenport, 3 G.ff. 363 ; Caton o-Caton, L. R. 1 Ch. 137 ; Parkhurst u Van Cortlandt 1 J"hns Ch. 274, 284 ; Rathbun „. Rathbun, 6 Barb. 99, 106 ; Meach«. Perry, 1 Chip. (Vt) 189 ; T.l- ton V Tilton, 9 N. H. 386, 390; Eyre ^. Eyre, 4 Green Ch. 102; Gdbert v The Trustees 1 Beas. 180. 204; Allen's Estate. 1 Watts & S. 383. 385 ; Greenlee ^^ Greenlee. 22 Pa. St. 225; McKee .. Phillips, 9 Watts. 85. 86 ; ^^ "' J« Pa. St. 461 ; Hamilton v. Jones, 3 Gill & J. 127 ; Crane «• Gough 3 Md^Ch 119 Anthony .. Leftwich. 3 Rand. 255 ; Heth's Ex'r .. Wooldndge's ExV. 6 Rand. 05. 607 • Carlisle v Fleming. 1 Harr. 421, 430 ; Townsend v. Houston, 1 Ha^ i 532, 0;' Shuch of the a! Unt .. Farrow, 7 Rich. E,. 378 ; Anderson . Ch.ck tT . Wn 1 1 R 1 "4 • Ford V Finney. 35 Ga. 258 ; Gilmore v. Johnston, 14 Ga. 683 ; Bailey Eq. 118, l;j4 , *o™ ''■ *^ _ Underbill v Williams. 7 Blackf. 125 ; Hawkins Sit^s ..Keller « f^™^ (^"^ tJ^^^^t^Mo. 81 ; Despain . Carter. 2, Mo. 331 ; «. Hunt. 14 III- 42, Farrarj r ' Lecompte, 9 Mo. .^69; Feusier v. Sneath. 3 JNev. IM, r,m,u. „ y ^^ maintained on an '"^^ ^TrilSan^wSi is n:^TwHting. signed by the party to be K^dtithtrfna yrtle^ourt is in the daily habit of relieving, where the 10 146 SPECIFIO PEHtOUMAJSUE OF UONTRAOTS. of the English courts in thus dealing with the statute was, beyond a doubt, facilitated by the peculiar phraseology of its prohibition, which simply shut out a certain kind of evidence, but did not pronounce the contract void. As soon, therefore, as the interdicted species of evi- pai'ty seeking relief has been put into a situation which makes it agfainst con- science in the other party to insist on the want of u, writing so signed as a bar to his I'elief. The first case apparently of the kind was Foxcraft v. Lester, cited 2 Vern. 456, and reported in Colles' Pari. Cas. 208. That case was decided on a principle acted upon in courts of law, though not applicable by the mode of pro- ceeding in a court of law to the particular case. It was against conscience to suffer the party who had entered and expended his money on the faith of a parol agreement to be treated as a trespasser, and the other party to enjoy the advan- tage of the money hs had laid out. At law fraud destroys rights. The case of Foxcraft ^..^Ijester, therefore, I conceive, was decided on clear principle ; though, whether the cases founded on that case have been all so well considered, I will not take upon me to say. But it appears from these cases that courts of equity have decided on equitable grounds in contradiction to the positive enactment of the statute of frauds, though their proceedings are in words included in it." Clinan v. Cooke, 1 Sch. & Lef. 22, 41, per Lord Redesdale : "I take it that noth- ing is to be considered as a part performance which does not put the party into a situation that is a fi-aud upon him, unless the agreement is performed; for instance, if upon a jiarol agi'eement a man is admitted into possession, he is made a tres- . passer if there be no agreement. This is put strongly in the case of Foxcraft d. Lester ; there the party was let into possession on a parol agreement, and it was said that he ought not to be liable as a wrong-doer, and to account for the rents and profits ; and why ? because he entered in pursuance of an agreement. Then, for the purpose of defending himself against a charge which might otherwise.be made against him, such evidence was admissible ; and if it was admissible for such purpose, there is no reason why it should not be admissible throughout ; that, I apprehenil, is the ground on which courts of equity have proceeded in permitting part pei-formance of an agreement to be a gi-ound for avoiding the statute ; and I take it, therefore, that nothing is to be considered as part per- formance which is not of that nature. Payment of money is not part performance, for it may be repaid, and then the parties would be just as they were before ; especially if repaid with interest. It does not put a man who has parted with his money into the situation of a man against whom an action may be brought ; for, in the case of Foxcraft v. Lester, which first led the way, if the party could not have produced in evidence the parol agreement, he might have been liable in damages to an immense extent." Mundy v. JoUiffe, 5 My. & Cr. 177, per Lord Cottenham: "Courts of equity exercise their jurisdiction in decreeing specific performance of verbal agreements where thei-e has been part performance, for the purpose of preventing the great injustice which woukl arise from permitting a party to escape from the engagements he has entered into, upon the ground of the statute of frauds, after the other party has, upon the faith of such engage- ment, expended his money, or otherwise acted in execution of the agreement. Under siich circumstances, the court will struggle to prevent such injustice fi-ora being effected." Parkhurst w.Van Cortlandt, 1 Johns. Ch. 274 284, per Kent, Ch. : "The gi-ound of the relief in chancery is the fraud in permitting a parol agree- ment to be partly executed, and in leading on a party to. expend money in the MEMORANDUM BEQUIBEU BY STATVrF!. 147 dence was once held admissible, and the terms of the verbal contract thereby proved, in order to shield the purchaser who had been led into possession under it from the liabilities of a trespass9y,\nd of accounting for the rents and profits, there was really nothmg in the melioration of the estate, and then to withdraw from the performance of the con- trast. The courts of equity, in their anxiety to guard the parly from the effects of fraud, have been led to some fluctuating decisions on this point of part per- formance ; but the current of cases, both ancient and modern, is fully uniform and consistent with the principle I have stated, and the tendency of the latter cases is to prefer giving- the party compensation in damages instead of a specific per- formance. Wherever damages will answer the purpose of indemnity, this alter- native is to be prefei-red, as it will equally satisfy justice, and will be in coincidence with the provisions and in support of the authority ) — It is important here to obtain an accurate notion concerning the facts which the acts of part performance must show to exist, in order that they may be a sufficient ground for the interference of equity, especially as there are misleading dicta and even erroneous decisions upon this particular point. In a suit to enforce the specific perform- ance of a verbal contract embraced withia the statute of frauds, two distinct facts are established by parol evidence — the acts of part per- formance, and the terms of the agreement itself. According to the theory upon which equity proceeds, in such cases, the part perform- ance must be first proved, in order to fulfill the condition precedent for letting in parol evidence of the agreement ; and this is not a mere (1) Shannon v. Bradstreet, 1 Sch. & Lef. 72 ; Morgan D. Milman, 3 DeG. M. & G. 33, per Lord Crauwokth ; Blore v. Sutton, 3 Mer. 237 ; Whitbread v. Bi-ock- hui-st, 1 Bro. C. C. 404. The relations of remainder men to the life tenants have been so I'adically changed by statute in the American states, that this question could hardly arise in this country. (2) It has been suggested in a, recent case and by a very able equity judge (Morgan v. Milman, 3 DeG. SJ- & G. 33, per Lord Cbanwokth), that where the acts done by the plaintiff admit of two remedies in the alternative, the one a specific execution of the agreement in equity, and the other a special proceeding to accomplish the same general purpose given by statute, such acts could not, under the circumstances, constitute a part performance, since the refusal of the defendant to complete could not be considered a fraud upon the plaintiff when he is at liberty to avail himself of the otlier special remedy. This conclusion, of course, assumes that the alternative remedy is something more than the ordinary legal relief of damages, and is something in fact tantamount to a specific per- formance. The opinion, moreover, is only a dictum, and its correctness is doubt- ful ; for, in general, a new remedy, given by statute, does not displace the prior exis'ting'remedies at law or in equity. See Sedgwick on Statutory Law (2d ed.), pp. 75, 76. (3) " The acts proved in part performance must refer to, result from, or be made in pursuance of the agreement proved." Wright v. Pucket, 22 Gratt. 374. 152 SPECIFIC PERFORMANCE OF CONTRACTS. question of the order of proofs — it involves the very principle of the jurisdiction. As soon as a sufficient part performance is made out, the plaintiff may go on and show the terms of the verbal contract. There are, therefore, two distinct branches of parol evidence, with a distinct fact to be established by each, but proceeding in a fixed order of time, and of antecedent and consequent ; not, however, exactly in the order of cause and effect. Now, the question before us is. What must be proved by the first branch of this parol evidence, in order to open the way for the second ? In the vast majority of cases the evidence establishing the part performance, and the acts of part performance themselves, when established, do not and, in the nature of things, cannot fully show what are the terms of the agreement alleged and relied upon by the plaintiff, nor are they introduced for any such purpose. The judicial opinions which, in unguarded and careless language, would require the acts of part performance to prove the exact contract as alleged, are in this respect clearly erroneous. The true rule is, that the acts of part performance must be such as show that some contract exists between the parties ; that they were done in pursuance thereof, and that it is not inconsistent with the one alleged in the pleading. Whenever acts of part performance are made out, which thus point to a contract, the door is opened, and the plaintiff may introduce additional parol evidence directed immedi- ately tt) the terms of the contract relied upon.(l) (1) There are some cases which lay down the J-ule that the acts of part per- formance must clearly prove the contract as alleged ; must do more than show the existence of soine contract, by being of themselves evidence of the very con- tract which the pUtintiff seeks to enforce. See Phillips v. Thompson, 1 Johns. Ch. 131 ; Chesapeake, etc., Canal Co. v. Young, 3 Md. 480 ; Beard v. Linthicum, 1 Md. Ch. 345 ; Goodhue v. Barnwell, Rice Eq. (S. C.) 198 ; Grant v. Craigmile, 1 Bibb. 203. In Lindsay v. Lynch, 2 Sch. & Lef. 1, 8, Lord Redesadlb is reported to have said, that the acta of part performance must be siich as show them to have been done in pui-suance of the very same agreement as that alleged by the plaintiff. These American decisions may have resulted from a misunderstanding or misapplication of the language used by Sir William Grant in Frame v. Dawson, 14 Ves. 386, that the part perfonnance must be " an act unequivocally referi-ing to and resulting from the agreement ;" by giving an undue force to the article " the ;" " the agreement." If this were the true rule, then the whole doc- trine of enforcing a verbal contract which has been part performed, would rest upon a most vicious reasoning in a circle, since the acts of part performance would be relied on to prove the agreement, while their character as acts of part per- formance would at th'fe same time be proved by the agreement. The correct i-ule, as given above in the text, is admirably stated in the following quotation from the judgment of Shadwell, V. C, in Dale ■o. Hamilton, 5 Ha. 369 : "It is generally of the essence of such an act (of part performance) that the court shall, by reason MEMORANDUM BBQJ/IIiED BT STATUTE. 153 Sec. 108." With this explanation of their probative effect, the acts of part performance must be done in pursuance of the agreement ; must unequivocally refer to and result from the agreement ; or, in other words, clearly showing that there exists some contract between the parties, they must be exclusively referable thereto; it must appear that they would not have been done except on account thereof, and they must be consistent with the contract alleged. When parol evidence has been admitted to prove the agreement in suit, the acts of part performance must be clearly and exclusively referable to and in pursuance of its terms. Undoubtedly much of the general language found in the cases is intended to describe the necessary correspond- ence between the acts of part performance and the agreement alleged, after it has thus been established by the evidence directly introduced for that purpose. (1) The theory upon which equity proceeds in this of the act itself, without knowing whether there was an agreement or not, find the parties unequivocally in a position different from that which, according to their legal rights, they would be in if there were no contract. Of this a common example is the delivery of possession. One man, without being amenable to the charge of trespass, is found in the possession of another man's land. Such a state of things is considered as showing unequivocally that some contract has taken place between the litigani; parties ; and it has, therefore, on that specific ground, been admitted to be an act of part performance. But an act which, though in truth done in pursuance of a contract, admits of explanation without supposing a contract, is not, in general, admitted to constitute a part per- formance to take the case out of the statute of frauds ; as, for example, the pay- ment of a sum of money alleged to be purchase-money.'' See, also, Allan v. Bower, 3 Bro. C. C. 149 ; Frame v. Dawson, 14 Ves. 383 ; Morphett v. Jones, 1 Sw. 172 ; Savage v. Carroll, 1 Ball & B. 265 ; Toole v. Medlicott, 1 Ball & B. 393 ; Sutherland v. Briggs, 1 Ha. 27 ; Tomkiuson v. Staight, 17 C. B. G07, 707, per "Williams, J. ; Parkhurst v. Van Cortlandt, 14 Johns. 15 ; Han-is u. Knicker- backer, 5 "Wend. 633 ; Jones v. Peterman, 3 Serg. & R. 543 ; Church v. Stej-ling, 16 Conn. 402. (1) Lacon v. Mertins, 3 Atk. 3, 4, per Lord Haedwickb : " It must be such an act done as appears to the court would not have been done except on account of the agreement." Frame v. Dawson, 14 Ves. 386, per Sir "William Gbant : "It must be an act unequivocally refei-ring to and resulting from the agreement." Cooth V. Jackson, 6 Ves. 13; Buckmaster v. Harrop, 7 Ves 341; Morphett v. Jones, 1 Sw. 172 ; O'Reilly «. Thompson, 2 Cox, 271 ; Parker v. Smith, 1 Coll. C. C. 624 ; Lindsay v. Lynch, 2 Sch. & Lef. 1 ; Brennan v. Bolton, 2 Dru. & "Wal. 349 ; "Wills V. Stradlinff, 3 Ves. 378 ; Meynell v. Surtees, 3 Sm. & Giff. 101 ; Phillips v. Thomijson, 1 Johns. Ch. 131, 149; Rathbun v. Rathbun, 6 Barb. 98; Jervia v. Smith, Hoff. Ch. 470 ; Ham v. Goodrich, 33 N. H. 32 ; North v. Forest, 15 Conn. 400; Osborn«. Phelps, 19 Conn. 74, 75; Peckham v. Barber, 8 R. I. 17; Cole v. Pott's, 2 Stockt. 67 ; Robertson v. Robertson, 9 "Watts, 32, 42 ; Moore v. Small, 7 Han-is (19 Pa. St.), 461 ; Cox«. Cox, 2 Casey, 375 ; Eckei-t v. Eckert, SPenn. 332; Frye v. Shepler, 7 Barr. 91 ; Duvall v. Myers, 2 Md. Ch. 401 ; Moale v. Buchanan, 11 Gill & J. 314 ; Chesapeake & Ohio Canal Co. v. Young, 3 Md. 480 ; Mundorff 154 SPECIFIC PERFOBMANCE OF CONTRACTS. branch of its jurisdiction is well established, and if rightly understood, it will harmonize all the cases and remove all occasion of doubt or confusion. A plaintiff cannot, in the face of the statute, prove a verbal contract by parol evidence, and then show that it has been partly performed. This course of proceeding would be a virtual repeal of the statute. He must first prove acts done by himself, or on his behalf, which point unmistakably to a contract between himself and the defendant, which cannot, in the ordinary course of human conduct, be accounted for in any other manner than as having been done in pursuance of a contract, and which would not have been done without an existing contract ; and although these acts of part per- formance cannot, of themselves, indicate all the terms of the agreement sought to be enforced, they must be consistent with it, and in con- formity with its provisions when these shall have been shown by the subsequent parol evidence. It follows, from this invariable rule, that acts which do not unmistakably point to a contract existing between the parties or which can be reasonably accounted for in 1). Howard, 4 Md. 459 ; Shepherd v. Shepherd, 1 Md. Ch. 244 ; Owings v. Bald- win, 8 Gill, 337; Shepherd v. Bevin. 9 Gill, 32 ; Hamilton v. Jones, 3 Gill & J. 127 ; Goug-h v. Crane, 3 Md. Ch. 132 ; Hall v. Hall, 2 McCord Ch. 274 ; Smith v. Smith, 1 Rich. Eq. 130, 133 ; Hatcher D. Hatcher, 1 McMullan Eq. 311, 318 ; Davis 1). Moore, 9 Rich. 215; Anthony v. Leftwich, 3 Rand. 238, 247, 277; White v. Watkins, 23 Mo. 423, 428 ; Phillips v. Thompson, 1 Johns. Ch. 131, 149, per Chan. Kent : " 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 I'eferring- 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 sainc with the one p.artly performed. There must be no e()^uivocation or uncertainty in the case. The ground of the interference of the court is not simply that there is proof of the existence of a parol agreement, but that there is fraud in resisting the completion of an agree- ment partly performed." These remarks, if intended to describe the relation between the part performance and the contract alleged, after the terms of the latter have been faWy disclosed by the parol evidence, are accurate and clear; if they ai'e intended to describe the effect which must be produced by the evidence which is given simply to prove the acts of part performance, without reference to any furthei" evidence directed expressly to the agi'eement, they are too strong and in fact require an impossibility. Also, Anderson v. Chick, 1 Bailey Eq. 118, 124 ; Hood v. Bowman, Freeman Ch. 290, 293 ; Stoddert v. Tuck, 4 Md. Ch. 475 ; 5 Md. 18 ; Wolfe v. Frost, 4 Sandf. Ch. 72 ; Reese v. Reese, 41 Md. 554 ; Lester V. Kinne, 37 Conn. 9 ; Semmes v. Worthington, 33 Md. 298 ; Morgan v. Bergen, 3 Neb. 209 ; Horn v. Ludington, 32 "Wise. 73 ; Pierce ti. Catron, 23 Gratt. 588 ; Billingslea v. Ward, 33 Md. 48 ; Knoll v. Harvey, 19 Wise. 99. And it has been said that the part performance must give a mutual right to enforce the contract. Smith V. McVeigh, 3 Stockt. 239. But this cannot easily be reconciled with the rule given ante in § 105 MEMORANDUM REQUIRED BY STATUTE. 155 some other manner than as having been done in pursuance of such a contract, do not constitute a part performance sufficient in any case to take it out of the operation of the statute, even though a verbal agree- ment has actually been made between the parties. It is for this reason, among others, that payment of the purchase-price, in whole or in part, is not of itself a sufficient performance to obviate the statute, because the mere payment of money by one man to another does not, in the ordinary course of human conduct, indicate the existence of a contract between them; the fact of such payment is reasonably explicable in many other ways than as having been done in pursu- ance of a contract.(l) For a like reason, the mere possession of the premises by a tenant continued after the expiration of his term, is not a sufficient part performance of a verbal contract to renew the lease or to convey the land, because such possession may be as reasonably and naturally explained by his holding over as by an agreement to renew or to convey ; in other words, it does not unequivocally point to the existence of a contract between the parties, but is referable to another cause. (2) The rule is general in its application and fundamental in principle, that acts which are referable to something else than the verbal agreement, and which may be ordinarily otherwise accounted for, do not constitute a sufficient part performance of it.(:]) (1) Dale V. Hamilton, 5 Ha. 360, per Shadwell, V. C. ; Buckmaster v. Havrop, 7 Ves. 341 ; Coles v. Trecothick, 9 Ves. 234 ; Allen's Estate, 1 Watts & S. 383 ; Kidder v. Barr, 35 N. H. 235 ; Underbill v. Allen, 18 Ai-k. 466 ; Hart v. McClellan, 41 Ala. 251 ; Hyde v. Cooper, 13 Rich. Eq. 250. (2) Wills V. Stvadling, 3 Ves. 381, per Lord Louqhboeodgh, Ch. : "As to the possession in the case of a tenant, who of course continues in possession, unless he has notice to quit, the mere fact of his continuance in possession would not weigh. The delivery of possession by a person having- possession to the person claiming under an agi-eement is a strong and mai-ked circumstance ; but the mere holding over by the tenant, which he will do, of course, if he has no notice to quit, would not of itself take the case out of the statute, oi- even call for an answer." Morphett 11. Jones, 1 Sw. 181 ; Johnston v. Glancy, 4 Blackf. 94, 99 ; Anthony v. Leftwich, 3 Rand. 238, 256 ; Cole v. Potts, 2 Stockt. 67 ; Workman v. Guthrie, 5 Casey, 495, 572. (3) Duvall'D. Myers, 2 Md. Ch. 401. For example, where a tenant during the continuance of his term makes improvements, these will not be taken as part per- formance of a verbal contract to sell and purchase the premises between himself and the lessor, because they are as naturally referable to his right and interest under the lease. West v. Flannagan, 4 Md. 36. And acts which a tenant was bound or permitted to do under his lease, cannot be a sufficient part performance of a parol agreement to renew. Bryne v. Romaine, 2 Edw. Ch 445, 440. Where the owners of adjacent lots verbally agi-eed that each would build on the same line at a certain distance back from the street, and one of them erected his building 156 SPECIFIC PERFORMANCE OF CONTRACTS. Sec. 109. Finally, the acts of part performance must not only be done in pursuance of the agreement — that is, must be accounted for only on the supposition of its existence, but they must also be done in execution of the contract alleged, and for the purpose, so far as they go, of carrying it into effect. If a plaintiff should, relying upon a verbal agreement, and with the defendant's knowledge, do some- thing prejudicial to himself in a manner and to an extent not suscep- tible of compensation in damages, but unconnected with that agree- ment and not in execution of its provisions, this would fall far short of being the part performance required by the rule, in order to admit the remedial jurisdiction of equity.(l) This requirement is often con- founded, by the cases and by text writers, with the one last discussed; but there is a plain and wide difference between acts done in pursu- ance of an agreement — that is, because of it, relying upon it, accounted for by its existence, and acts done in execution of it. All acts done in execution of a contract are, of course, done in pursuance of it ; but the converse of this proposition is by no means true. We are now prepared to apply these general principles by determining what particular acts do or do not constitute a part performance. Sec. 110. Third. The particular acts which do or do not amount to a sufficient part performance. — In the discussion of this section I shall briefly enumerate those species of acts which, it is well settled, do not upon the line, this act was held not to constitute a part performance of the con- tract, since it might as well have been done without an agreement, and did not, therefore, unequivocally point to the existence of any agreement between the parties. Wolfe v. Frost, 4 Sndf. Ch. 7i; and see Brennan v. Bolton, 2 Dr. & W. S4D ; Frama v. D.iwson, 14 Ves. 33o ; Garmin v. Mj,ehin, 6 Paige, 289, 293. (1) Most of the cases cited under the last paragraph, § lOS, are also authority for this I'ule. Gunter v. Halsey, Ambl. 586; Buckmaster v. Harrop, 7 Ves. 341 ; Morphett v. Jones, 1 Sw. 181 ; Whitbread v. Brockhurst, 1 Bro. C. C. 417 ; 2 V. & B. 154, n.; Meynell v. Surtees, 3 Sm. & Giff. 1,01; Farrall v. Davenport, 3 Giff. 3G3 ; Frame v. Dawson, 14 Ves. 38 i ; Brennan v. Bolton, 2 Dr. & W. 349 ; Crocker v. Higgins, 7 Conn. 342 ; Harris v. Knickerbacker, 5 Wend. 638 ; Jervis v. Smith, 1 Hoff. Ch. 470 ; Lord v. Underdunck, 1 Sandf. Ch. 46 ; Smith V. Underdunck, 1 Sandf. Ch. 579 ; Byrne v. Romaine, 2 Edw. Ch. 445 ; Phillips V. Thompson, 1 Johns. Ch. 131 ; Peckham v. Barker, 8 R. I. 17 ; Davis V. Moore, 9 Rich. 215 ; Hatcher v. Hatcher, 1 McMullan Eq. 311, 318 ; Robertson V. Robertson, 9 Watts, 32, 42 ; Anthony v. Leftwich, 3 Rand. 238, 247, 277 ; Moore V. Small, 7 Harris, 461 ; Cox v. Cox, 2 Casey, 375 ; Stoddert v. Tuck, 4 Md. Ch. 475 ; 5 Md. 18 ; Andei-son -». Chick, 1 Bailey Eq. 118, 124 ; German v. Machin, 6 Paige, 289, 293 ; Ham v. Goodrich, 33 N. H. 32 ; Chesapeake and Ohio Canal v. Young, 3 Md. 480 ; Mundorf v. Howard, 4 Md. 459 ; Lester v. Kinne, 37 Conn. 9 ; Gough v. Crane, 3 Md. Ch. 132 ; Duvall u. Myers, 2 Md. Ch. 401 ; White v. Watkins, 23 Mo. 423, 428. MEMOHANDUM REQUIRED SY STATUTE. 157 constitute a part performance, and dwell with more detail upon those which do or may suffice to take a case from out the operation of the statute. 1. Acts done prior to the contract, since they are neither in pursu- ance nor in execution of it, are never a part performance upon which to base a specific enforcement of the agreement by a court of equity ;(1) and, therefore, possession taken when the negotiation between the parties began and in anticipation of rights which might accrue from an expected contract, is held to be unavailing as an act of part per- formance. (2) 2. Acts merely preparatory, introductory, or ancillary to the agree- ment, are not a part performance, for two reasons. 1. These acts, although they may be subsequent to the agreement, and in conse- quence thereof are not, from their very nature, done in execution of it, or for the direct purpose of carrying it into effect. 2. Such acts are generally performed by one party without the other's knowledge ; they do not so change the plaintiff's condition that a refusal to com- plete would work a virtual fraud upon him, and they do not unequiv- ocally point to a completed contract between the parties, but only indicate, at most, the pendency of a negotiation or treaty between them. It is fully established, under this rule, that the following and other analogous acts by or on behalf of the plaintiff are not a part per- formance to take a verbal contract out from the operation of the stat- ute ; delivering abstracts of title ; giving instructions for a lease ; giving orders for the drawing of conveyances and putting title deeds into an attorney's hands for that purpose ; the taking notes and pre- paring a conveyance by an attorney ; visiting and examining the land in question ; measuring the land ; employing surveyors to value the timber on the land ; appointing appraisers to value the land or to value stock ; valuations actually made ; drawing up, executing, and recording deeds of conveyance by the vendor which had not been accepted by the purchaser.(3) The same rule has been applied to (1) Parker v. Smith, 1 CoU. C. C. 608, 623. (2) Dougan v. Blocker, 12 Harris, 28 ; Eckert v. Eckei-t, 3 Penn. 332. (3) Cole V. White, cited 1 Bi-o. C. C. 409 ; "Whitbread v. Bi-ockhui-st, 1 Bro. C. C. 412 ; Whitchurch v. Bevis, 2 Bro. C. C. 559 ; Redding- v. Wilkes, 3 Bro. C. C. 400 ; Clerk v. Wright, 1 Atk. 12 ; Hawkins v. Holmes, 1 P. Wms. 770 ; Pembroke ■J). Thorpe, 3 Sw. 437, n.; Cooke v. Tombs, 2 Anst. 420 ; Montacute v. Maxwell, Stra. 236 ; Popham v. Eyre, Lofft. 786 ; Cooth v. Jackson, 6 Yes. 12, 17, 41 ; Frame V. Dawson, 14 Yes. 386 ; Stokes v. Moore, 1 Cox, 219 ; Eai-1 of Glengall v. Barnard, 1 Keen, 769 ; Thynne v. Earl of Glengall, 2 CI. & Fin. (N. S.), 131 ; Phillips v. 158 SPECIFIC PERFORMANCE OF CONTRACTS. other cases in which the acts, though not resembling those described in foregoing list, were held to be merely preparatory, and not done in execution of the verbal contract sought to be enforced. Thus, an appropriation of money made for the purpose of carrying out the intended purchase by the plaintiff, is not a part performance of a verbal contract of sale ;(1) and defendant having verbally agreed to convey land to the plaintiff when the latter should obtain a release of a right from a third person, the plaintiff procured the release by the payment of a large sura in consideration therefor, but this act was held to be merely preparatory to the agreement, and not in part per- formance ;(2) and where the purchaser, in a verbal contract for the sale of land, had bound himself to lease the premises to a third per- son, his making the lease does not constitute a part performance. (3) Sec. 111. 3. When a verbal contract is made in relation to or upon the consideration of marriage, the marriage alone is not a part per- formance upon which to decree a specific execution. This rule, which is firmly established, is based upon the express language of the statute. A promise made in anticipation of a marriage, followed by the mar- riage, is the exact case contemplated by the statute. It is plain that the marriage adds nothing to the very circumstances described by the statutory provision which makes a writing essential ; in fact, until the marriage takes place, there is no binding agreement independent of the statute, so that the marriage itself is a necessary part of every agreement made upon consideration of it, which the legislature has said must be in writing.(4) In a very few of the states this clause is entirely omitted from the statute of frauds, and of course the rules derived from its interpretation do not prevail therein.(5) The cases Edwards, 33 Beav. 440 ; Gratz v. Gratz, 4 Rawle, 411 ; Reeves v. Pye, 1 Cranch, C. C. 219 ; Givens v. Calder, 2 Dessau. Ch. 171 ; Smith v. Smith, 1 Rich. Eq. 130, 138. (1) East India Company v. Nuthumbadoo Veerasawmy Moodelly, 7 Moo. P. C. C. 482. (2) O'Reilly v. Thompson, 2 Cox, 271. (3) Whitchurch v. Bevis, 2 Bro. C. C. 559, and see Whaley v. Bagnel, 1 Bro. P. C. 345 ; compare these cases with Parker v. Smith, 1 Coll. C. C. 608. (4) Taylor 1). Beech, 1 Ves. Sen. 297, per Lord Hardwickb ; Dundas v. Dutens, 1 Ves. 199 ; 2 Cox, 235, per Lord Thuelow ; Lassence v. Tierney, 1 McN. & G. 551 ; "Wai-den v. Jones, 23 Beav. 497 ; 2 DeG. & Jo. 76 ; Cooper -w. Warrnold, 7 "W. R. 402 ; Caton v. Caton, L. R. 1 Ch. 137 ; L. R. 2 H. L. 127 ; McAskie v. McCay, 2 I. R. Eq. 447 ; Montacute v. Maxwell, 1 P. Wms, 618 ; Redding- -o. Wilkes, 3 Bro. C. C. 400, 401 ; Finch v. Finch, 10 Ohio St. 501. (5) See ante, § 70. MEMORANDUM REQUIRED ST STATUTE. 159 where other acts in connection with marriage may be sufficient to render the contract enforceable, are postponed to a subsequent para- graph.(l) Heo. 112. 4. Payment of the purchase-price, either in whole or in part, is not an act of part performance within the foregoing principles, and does not take a verbal contract out from the operation of the statute. (2) The statute of frauds of Iowa, however, in express terms, declares that the acceptance of the purchase-price, or a part thereof, by a vendor of land, shall make a verbal contract of sale binding — shall in effect be equivalent to a written memorandum. (3) In the earliest cases it was held, that the payment of a considerable portion of the purchase-price would take a verbal contract for the sale of land out from the operation of the statute, while the payment of a small portion would not have that effect ;(4) but this distinction was long ago rejected as being based upon no sound principle. (5) (1) See post, §133. (2) Clinan v. Cooke, 1 Sch. & Lef. 40 ; O'Herlihy v. Hedg-es, 1 Sch. & Lef. 123 ; Hughes V. Morris, 2 DeG. M. & G. 3.5t3 ; Leak v. Moi'iice, 2 Ch. Cas. 135 ; Alsopp ■B. Patten, 1 Vera. 472 ; Lord Pengall v. Ross, 2 Eq. Cas. Abr. 46, pi. 12 ; Seajjood V. Meale, Prec. Ch. 560 ; Buckmaster v. Harrop, 7 Ves. 341 ; Coles v. Ti-ecothick, 9 Ves. 234 ; Frame v. Dawson, 14 Ves. 388 ; Ham v. Goodrich, 33 N. H. 32, 39 ; Kidder v. Barr, 35 N. H. 235 ; Underbill v. Allen, 18 Aik. 406 ; Thompson v. Gould, 20 Pick. 134 ; Glass v. Hulburt, 102 Mass. 24 ; Eaton v. Whitakei-, 18 Conn. 222, 229 ; Cole v. Potts, 2 Stockt. 67 ; Allen's Estate, 1 Watts & Sevg. 383, 389 ; McKee v. Phillips, 9 Watts, 85 ; Parker v. Wells, 6 Wh.art. l.'JS, 161 ; Gan- gwer V. Fry, 17 Pa. St. 491 ; Rankin v. Simpson, 7 Hariis, 471 ; Jackson v. Cut- right, 5 Munf. 308 ; Hyde v. Cooper, 13 So. Car. Eq. 250 ; Anderson v. Chick, Bailey Eq. 118 ; Church of the Advent v. Farrow, 7 Rich. Eq. 378 ; Givens v. Calder, 2 Dessau. Ch. 174 ; Smith v. Smith, 1 Rich. Eq. 130, 132, 135 ; Finucane V. Kearney, 1 Freem. Ch. 65, 68 ; Hood i>. Bowman, 1 Freem. Ch. 290, 294 ; Black ■u. Black, 15 Geo. 445 ; Mialhi v. Lassabe, 4 Ala. 712 ; Hart v. McClellan, 41 Ala. 251 ; Garner v. Stubblefield, 5 Tex. 561 ; Wood v. Jones, 35 Tex. 64 ; Wilber v. •Paine, 1 Hamm. (Ohio) 252 ; Sites v. Keller, 6 Hamm. (Ohio) 528 ; Letcher v. Cosby, 2 A. K. Marsh. 106 ; Johnston v. Glancy, 4 Blackf. 94 ; Parke v. Leewright, 20 Mo. 85 ; Purcell v. Miner, 4 Wall. 513 ; Thompson v. Tod, Pet. C. C. 380 ; Cronk V. Trumble, 66 111. 428 ; Wood'U Jones, 35 Tex. 64 : LanzD. McLaughlin, 14 Minn, 72 ; Cuppy v. Hixon. 29 Ind. 522. (3) See ante, § 96. Fairbrother v. Shaw, 4 Iowa, 570. (4) Lacon i>. Mertins, 3 Atk. 4 per Lord Hardwicke, who held generally that part payment was a good part performance. Child v. Comber, 3 Sw. 423, n. ; Owen V Davies, 1 Ves. Sen. 82; Hales u Van Berchem, 2 Vern. 618; Skett «. Whitmore, Freem. Ch. 281 ; Main v. Melbourn, 4 Ves. 720, 724, per LordRosYLN, who held as stated in the text. Wetmore v. White, 2 Caine's Cas. 87, 109 ; Town- send -v. Houston, 1 Harring- 532, 541 ; Jones v. Peterman, 3 Serg. & R. 543; Frieze v. Glenn, 2 Md. Chr 361 ; Harwood v. Jones, 10 Gill & J. 404. (5) See cases cited above in the first note under § 112. 160 SPECIFIC PERFORMANCE OF CONTRACTS. Sec. 113. Before considering any special applications of this rule, or exceptions to it, the grounds upon which it rests must be stated and briefly explained. Three different reasons for it have been advanced by the cases. The first is drawn entirely from the language of the statute. Since the clause concerning the sale of goods and chattels expressly provides that the receipt of the price, or a part thereof, shall render a verbal contract binding, it is argued that, by omitting any similar provision from the section relating to lands, the legislature has clearly indicated its intent, that such a payment shall not avail in the case of a verbal contract for the sale of real estate. This explanation of the doctrine was first made by Lord Redesdale, and has been accepted as satisfactory by some othe? judges.(l) The second reason has already been mentioned. Payment of money is an act which may be referred to so many different causes, that it does not need the existence of a contract to account for it ; it does not une- quivocally point to a contract between the parties, nor necessarily appear to have been made in pursuance of an agreement. The essential condition, therefore, fails for the introduction of parol evi- dence by which to establish the verbal contract ; the primary element (1) Clinan v. Cooke, 1 Seh. & Lef. 22, 40, pei- Lora Redesdale . "It has always been considered that the payment of money is not to be deemed pai't performance to take a case out of the statute. Seagood v. Meale, Prec. Ch. 5C0, is the leading case on that subject ; there a, guinea was paid by way of eai-nest, and it was agreed clearly that it was of no consequence in case of an agreement touching lands. Now, if payment of fifty guineas could take a case out of the statute, payment of one guinea would do so equally, for it is paid in both cases as part payment, and no distinction can be drawn. But the gi-eat reason, as I think, why part payment does not take such an agreement out of the statute is, that the statute has said that in another case, viz., with respect to goods, it shall operate as part performance. And the courts have, therefore, considered this as exclud- ing agreements for lands, because it is to be inferred that when the legislature said it should bind in the case of goods, and were silent as to the case of lands, they meant that it should not bind in the case of lands." See, also, O'Herlihy v. Hedges, 1 Sch. & Lef. 123; Watt v. Evans, 4 Y. & C. Ex. 579 ; Lord Pengall v. Ross, 2 Eq. Cas. Abr. 46, pi. 12 ; Lane v. Shackford, 5 N. H. 132-134. An early case in Delaware, Townsend v. Houston, 1 Harring. 532, proceeded entii-ely upon this view, and because the statute of that state contained no provision concerning goods and chattels, similar to § 17 of the English act, it h«ld that part payment of the price constituted a part performance of a verbal agreement for the salo of land. But the whole argument is clearly based upon a misconception. The statute of frauds does not say that payment shall operate as a part performance in the case of goods ; it makes such payment equivalent to a memoi'andum ; and acc.ording to the equitable theory, part performance is not considered as a substi- tute for the written memorandum ; when admitted at all it comi:)letely displaces the statute, it creates such a state of circumstances that the application of the statute would be fraudulent. MEMORANDUM REQUIRED BY STATUTE. 161 of the equitable theory of part performance is wanting.(l) The third ground, and perhaps the one most satisfactory, is, that a payment of money by the plaintiff is not, in general, an act which renders it a fraud upon him if the defendant refuses to complete the contract. It does not so change his situation as to render a legal remedy either im- practicable or inadequate ; he can recover back the amount by an action at law, and thus be restored to his original position. Even the inability of the defendant to repay the money by reason of his own bankruptcy or insolvency, does not, in this respect, alter the relations of the parties so as to modify the rule, because there being nothing intrinsically fraudulent in the transaction, this circumstance is not a sufficient ground for imputing to the defendant the wrongful intent, which alone furnishes an occasion for the interference of equity to enforce the verbal agreement. (2) Sec. 114. "Whenever the foregoing reason fails — ^when it is impossi- ble to restore the plaintiff to his original position by any legal remedy, then the fundamental conditions of the equity jurisdiction in case of part performance are fulfilled, and a payment is sufficient to take the verbal contract out of the statute of frauds. These special circum- stances can hardly arise when the plaintiff has simply paid the pur- chase-price of land in money either wholly or partially ; they rather occur, if at all, when the consideration of the agreement consists in work, labor and services personally done and rendered by the plaintiff himself, or procured to be done and rendered and paid for by him. In such a case, if the value of the services can be ascertained with reasonable accuracy in an action at law, and adequately compensated by a recovery of damages, neither the sevices themselves nor the pay- ment for them will avail as a part performance of the verbal agree- ment.(3) But if the services are of such a peculiar character that it is (1) See ante, § 107. (2) See cases cited ante, § 104. Lord Redesdale also gave this reason for the rule in Clinan v. Cooke, 1 Sch. & Lef. 22, 41. After laying down the general doctiine, "that nothing is to be considered as a part performance which does not put the party into a situation that is a fraud upon him, unless the agreement is perfoiined," he added, "payment of money is not part performance, for it may be repaid, and then the parties will be just as they were before, especially if repaid with interest. It does not put a man, who has parted with his money, into the situation of a man against whom an action may be brought," as is the case with a vendee who has taken possession under a mere verbal agreement. (3) South Wales B'y Co. v. Wythes, 1 K. & J. 186 ; Frame v. Dawson, 14 Ves. 386 ; O'Reilly v. Thompson, 2 Cox, 271 ; Rhodes v. Rhodes, 3 Sandf. Ch. 279, 284. In Frame ■». Dawson, 14 Ves. 386, Sir Wm. Gkakt thought that money expended in repairs came within this description, and could be compensated by damages, 11 162 SPECIFIC PERFORMANCE OF CONTliACTS. impossible to estimate their value by any pecuniary standard, and it is evident that the parties did not intend to measure them by any such standard, then the plaintiff, after the performance of these ser- vices, could not be restored to the situation in which he was before, or be compensated by any recovery of legal damages. Under these circumstances, the rendition of the services, or the procuring them to be rendered, is a part performance of the verbal agreement, and the case is quite analogous to those in which outlays are made for improvements by a vendee or lessee under a parol contract, (1) This so that the expenditure was not a sufficient part performance. It has been settled, however, that outlays in improvements, repairs and alterations constitute a good part performance of verbal contracts to sell or lease lands. See post, §§ 126-132. In Edwards v. Estelle, 48 Cal. 194, a surveyor and another person made a vei-bal contract, by which the surveyor agreed to search for and survey certain swamp lands, and the other party agreed to pay the first installment of the purchase price, procure a certificate of purchase, and then convey one-half of the land to the surveyor. Tlie latter made the search, found the lands and surveyed them ; and these acts were held to constitute no part performance, which took the con- tract out of the statute of frauds. The court said, per Rhodes, J. (p. 196) : " There are two propositions upon which the cases are very fully agreed ; fii-st, that the payment of purchase-money will not be regarded as part performance ; and second, that the acts of part performance must be such that it would be a fraud upon him for the othei- party to refuse performance on his part. The term pur- chase-money, as employed in the proposition .above stated, comprehends the con- sideration, whether it be money or property, or services, for which the lands are to be conveyed, and is not limited to money alone. Here the services to be per- formed by the plaintiff were the consideration for which the one-half of the lands were to be conveyed to him ; and hence the performance of those services did not constitute a sufficient part performance within the meaning of the equitable rule. There is no ground for saying that the plaintiff, by his alleged acts of part performance, has been placed in such a position that the refusal of the defendants to convey the one-half of the lands will operate as a fi-aud upon him. The refusal to convey merely leaves him the creditor of the estate of Stewart (the othei- party to the conti-act who had died), and full compensation may be made for his ser- vices in money. He is in no worse position than if, instead of rendering the ser- vices, he had advanced their value in money." While this decision is undoubt- edly correct, and the reasons for it given at the close of the exti'act are unques- tionably sound, some of the generalizations concerning the consideration, ought, I think, to have been expressed with more limitations. And see Cronk v. Trum- ble, 66 111. 428 ; and Chastain v. Smith, 30 Geo. 96. (1) Rhodes v. Rhodes, 3 Sandf. Ch. 279, 284 ; Davison v. Davison, 2 Beasley, 246 ; Van Duyne i). Vreeland, 1 Beasley, 142, 151 ; Hill v. Gomme, 1 Beav. 541. Rhodes » Rhodes well Illustrates the rule. A person verbally agreed to convey a tract of land to his brother, in consideration that the latter should support, nurse, and fake care of him during his life-time. He was subject to epileptic fits, and the brother faithfully performed the agreement on his part ; nursed, main- tained and took care of the invalid during the rest of his life, but did not take possession of the land or do any other act directly affecting it. This contract was MEMORANDUM REQVIBED BT STATUTE. 163 principle is, at bottom, the same as that upon which the courts have proceeded, especially in a series of recent English decisions, in speciti- cally enforcing certain agreements for continuous acts of labor and services, and construction of works where the legal remedy of dam- ages for their breach is impracticable. It has, also, been applied under analaogous circumstances, where the plaintitf has not, indeed, maile any payment, but has done other acts in pursuance of the verbal agreement, but not directly affecting its subject-matter, which would leave him without adequate remedy unless the contract is enforced.(l) Payment of auction duty as required by statute in certain cases \i not a part performance, because it is made obligatory, " and that without which there would have been no contract, cannot be said to be in part performance of the contract. "(2) Payment of the price, although not of itself sufficient to admit the equitable remedy, is always regarded as a strong circumstance in connection with other acts, such as pos- session or the making improvements, which will be discussed in the succeeding paragraphs. specifically enforced ag^ainst the heira of the vendor, the court holding that the services rendered by the plaintiff, or procured to be rendered were, under the circumstances, a, part performance. The reasons for the decision ai-e seen in the following' extract : " Payment of the consideration will not, in general, be deemed such a part performance as to relieve a parol contract from the opei'atinn of the statute. But the reason for this, viz., that in such a case the repayment of the consideration will place the parties in the same situation in which they wei'e before, shows that the i-u!e applies to a moneyed consideration only. If the con- sideration for the c{mtract be labor :ind services, those may sometimes be esti- mated and their value liquidated in money, so as necessarily to make the vendee whole on rescinding the contract. But in a case like this, where the services to be rendered were of such a peculiar character that it is impossible to estimate their value to the plaintiff by any pecuniary standard, and where it is evident that he did not intend to measure them by any such standard, it is out of the power of any court, after the pei-formance of the sei-vices, to restore the plainti.T to the situation in which he was before the contract was made, or to compensate him in damag-es." The principle of this case is sound, and tlie decision itself is in strict conformity with the series of later English cases, which extend the remedy of specific perfoi-mance to agreements for services. In Davison v. Davison, supra, sei-vices of a son wei-e held to be a good part performance of his father's verbal agreement to leave him a farm after the father's death. (1) Malins v. Brown, 4 N. Y. 403. The plaintiff had made no payment of pur- chase-money, but had, in pursuance of the contract, entered upon ti-ansactions which svould entail upon him an injury not to t)e compensated by daniayc, a .d the court decreed a specific perfoi-mance. German v. Machin, 6 Paijje, 2 8 ; Dugan V. Gittings, 3 Gill. 138 ; Golden ii. Tucker, 6 Munf. 1 ; Parker v. Smith, 1 Coll. C. C. 608. (2) Buckmaster v. Harrop, 7 Ves. 341 ; 13 Ves. 456. In this case tt was argued by counsel that the payment should be held a part performance, because it could not be recovered back ; but the court held as stated in the text. 164 SPECIFIC FERFOXMANCB OF CONTRACTS. Sec. 115. 5. I pass now to the consideration of those acts which do amount to a part performance. Possession alone of land, under a verbal contract, when delivered to the vendee or lessee, or taken by him with the consent of the vendor or lessor, or with the knowledge which implies such consent, is an act of part performance which takes the caae out of the statute of frauds, even without the additional cir- cuiustauces of the payment of consideration, or the making of improve- nc ;uts. This rule is settled by an overwhelming weight of authority ill England and in this country, but has been disapproved by the courts of one or two states, which have, until recently, only possessed a very limited equity jurisdiction. The grounds upon which the doc- trine has been based are two : First. That the possession would expose the vendee to liability as a trespasser, and for the rents and profits, unless he was permitted to show the authority under which he entered; and evidence having been admitted to prove the verbal contract for this purpose, there is nothing in the statute which prevents a court from giving its full force and effect in establishing the contract by such evidence ; and secondly, in the language of an eminent equity judge, " the acknowledged possession of a stranger on the land of another is not explicable, except on the supposition of an agreement, and has, therefore, constantly been received as evidence of an ante- cedent contract, and as sufficient to authorize an inquiry into its terms, the court regarding what has been done as a consequence of contract. "(1) (1) Pain V. Coombs, 1 DeG. & J. 34 ; Coles v. Pilkington, L. R. 19 Eq. 174 ; Clinan v. Cooke, 1 Sch. & Lef. 22, 41, per Lord Redbsdaib ; Morjihett v. Jones, 1 Svv. ISl, per Sir T. Pldmek ; Earl of Aylesford's Case, 2 Stra.783; Lacon ■«. Mertins, 33 Atk. 1 ; "Wills v. Stradling, 3 Ves. 381 ; Bowers v. Cator, 4 Yes. 91 ; Gregory v. Mighell, 18 Ves. 328 ; Kine v. Balfe, 2 Ball & B. 343 ; Pain ■0. Coombs, 3.Sm. & Giff. 449; 1 DeG. & J. 34; Shillibeer v. Jarvis, 8 DeG. M. & G. 79; Butcher v. Stapely, 1 Vern. 3G3; Pyke v. "Williams, 2 Yern. 4rj J ; Geagood v. Meale, Prec. Ch. 560 ; Boardman v. Mostyn, 6 Yes. 467 ; Tilton V. Tilton, 9 N. H. 386, 390 ; Eaton v. Wliitaker, 18 Conn. 222, 229 ; Murray V. Jayne, 8 Barb. 612 ; Malins v. Brown, 4 N. Y. 403 ; Pugh v. Good, 3 Watts & S. 56, 61 ; Allen's Estate, 1 \Vatts & S. 383, 386 ; Jones v. Peterraan, 3 Serg-. & R. 543, 549 ; Reed v. Reed, 12 Pa. St. 117 ; Johnston ii. Johnston, 6 "Watts, 370 ; Rhodes t). Frick, 6 Watts, 315 ; Stewart v. Stewai-t, 3 Watts, 253 ; Miller v. Hower, 2 Rawle, 53 ; Bassler v. Niesly, 2 Sei-g-. & R. 352 ; Johnston v. Glancy, 4 Blackf. 94, 98 ; Anderson v. Simpson, 21 Iowa, 399 ; White v. Watkins, 23 Mo. 423 ; Catlett v. Bacon, 33 Miss. 269 ; Danforth v. Laney, 28 Ala. 274; Reynolds v. Johnston, 13 Tex. 214. But see, questioning this rule, Galbreath v. Galbreath, 5 Watts, 146 ; Wood V. Earmare, 10 Watts, 195; Dougan v. Blocher, 12 Harris, 28; Shepherd V. Shepherd, 1 Md. Ch. 244 ; Owings v. Baldwin, 8 Gill, 337 ; Morris v. Harris, 9 Gill, 19 ; Glass v. Hulbert, 102 Mass. 25, 32; Tatum v. Brooker, 51 Mo. 148. MEMORANDUM REQUIRED BY STATUTE. 165 Sec. 116. It is necessary to ascertain more accurately the theory upon which equity proceeds in dealing with possession as a part per- formance. The mere physical fact of possession is not of itself conclu- sive, nor even material. The possession must be taken and held with the intent of carrying out and executing the agreement. The existence of this intent is vital, and is the essential element which the courts require as a condition of the part performance upon which a decree of specific execution may be based. This intent, however, cannot be shown by proving the verbal contract between the parties, for such a course would be a most vicious arguing in a circle.(l) It must, therefore, be established by matter outside of the agreement. When, however, a person who was a stranger to the estate takes and holds possession of land belonging to another, the mere fact that such possession is with the knowledge of such owner, and without any objection from him, raises a prima facie presumption of the requisite intent, and of a contract in pursuance of which the act was done. (2) When, on the other hand, the possession is not a new fact, but is the continuation of a former similar condition,- as when it is by a tenant after the expiration of his term alleging a verbal contract to renew or to convey, the intent must be proved by some further act which clearly shows that possession must be accounted for by the new relation, and cannot be referred to the previous holding. Under such circumstances, the fact of possession raises no presumption as to the requisite intent. (3) It necessarily follows, from the theory as thus stated, that if the possession is not in pursuance of the agreement, but results from some distinct cause ; or if it can be naturally and reasonably accounted for otherwise than by a contract between the parties, it will not avail as a part performance. (4) For example, the possession by a son of land belonging to his father, even when accompanied by valuable improvements, will not be treated as a part performance, because the relation between the parties prevents the inference which would (1) See ante, § 107. Wills v. Stradling, 3 Ves. 378. (2) See cases ante, § 115. Lord v. Underdunk, 1 Sandf. Ch. 46, 48 ; Jervis v. Smith, Hoff. Ch. 470, 475 ; Thompson v. Scott, 1 McCord Eq. 32, 39. (3) Morphett v. Jones, 1 Sw. 172 ; Wills v. Stradling, 3 Ves. 378 ; Gi-egroi-y v. Mig-hell, 18 Ves. 328 ; Jones v. Peterman, 3 Serg. & R. 543 ; Poag v. Sandifer, 5 Rich. Eq. 170 ; Johnston v. Glancy, 4 Blackf. 94, 99. (4) Smith V. Smith, 1 Rich. Eq. 130, 133, 136 ; German v. Machin, 6 Paige, 289, 293 ; Wolfe v. Frost, 4 Sandf. Ch. 72 ; West v. Flannagan, 4 Md. 36 ; Jacobs v. The Railroad, 8 Cush. 223. 166 SPECIFIC PERFORMANCE OF CONTRACTS. otherwise arise from the fact, and removes all necessity of accounting for the possession by the supposition of an existing contract. (1) Sec. 117. It has been said, in some judicial decisions, that pos- session is an indispensible element in the part performance of a verbal contract for the sale of land — ^in other words, that the part perform- ance of such a contract is impossible without a change of possession; (2) but this conclusion is clearly incorrect. Many other acts, -without a possession fully satisfy all the requisites of a part performance.(3) It is not essential that the contract should expressly stipulate for the delivery of possession. If the possession is taken in pursuance and exe- cution of the agreement and with the knowledge of the vendor, it is a good part performance, although the contract be silent in respect to it.(4) As possession alone is sufficient, a fortiori possession delivered by the vendor, or taken with his knowledge and consent, when accom- panied by other acts on the part of the plaintiff, constitutes a part performance of the most effectual and conclusive character ; as pos- session and payment of the purchase-price in whole or in part ;(5) or possession and the making of valuable improvements on the land.(6) (1) Eckert v. Eckert, 3 Penn. 332 ; Haines v. Haines, 6 Md. 435 ; Poorman v. Kilgore, 2 Casey, 365 ; Cox v. Cox, 2 Casey, 375 ; McCue v. Jolinson, 1 Casey, 306 ; Ham v. Goodrich, 33 K. H. 32. The same is true of possession held by one person under another standing to him in loco parentis. (2) Ackerman v. Fisher, 57 Pa. St. 457 ; Peifer v. Landis, 1 Watts, 392 ; McFar- land V. Hall, 3 Watts, 37 ; McKee v. Phillips, 9 Watts, 85. It will be noticed that these authorities are all from the decisions of Pennsylvania* courts, which have very much narrowed the equitable doctrine of part performance. (3) See Mundy v. Jolliffe, 5 Myl. & Cr. 167 ; HoUis v. Edwards, 1 Vern. 159 ; Rhodes v. Rhodes, 3 Sandf. Ch. 279. (4) Harris v. Knickerbacker, 6 Wend. 645 ; Smith «. Underdunk, 1 Sandf. Ch. 579 ; Charabliss v. Smith, 30 Ala. 366 ; Gregory u Mig-hell, 18 Ves. 328. (5) Sutton V. Sutton, 13 Vt. 79 ; Wilkinson ■». Scott, 17 Mass. 251 ; Davis v. Townsend, 10 Barb. 347 ; Lessee of Billington u. Welsh, 5 Binney, 129 ; Gilday V, Watson, 2 Serg. & R. 407 ; Greenswalt v. Horner, 6 Serg. & R. 71 ; Woods v. Farmare, 10 Watts, 195 ; Follmer v. Dale, 9 Barr, 83 ; Wiblet'. Wible, 1 Grant (Pa.), 406 ; Dugan v. Gittings, 3 Gill. 140, 157 ; Haines v. Haines, 6 Md. 435 ; Drury v. Conner, 6 Harr. & J. 28 S ; Moale v. Buchanan, 11 Gill. & J. 314; Williams v. Pope, Wright (Oh.), 406 ; Kelley v. Stanbery, 13 Ohio, 408 ; Tibbs v. Bai-ker, 1 Blackf. 58 ; Hawkins v. King, 2 A. K. Marsh. 108 ; Thornton v. Vaughan, 2 Scam. 218 ; Shirley v. Spencer, 4 Gilman, 583, 600 ; Pitzsimmons v. Allen, 39 HI. 440 ; ■ Jones V. Pease, 21 Wise. 644 ; Brewer v. Brewer, 19 Ala. 481 ; Finucane «. Kear- ney, 1 Freeman Ch. 65, 68. (6) Newton v. Swazey, 8 N. H. 9, 14 ; Wetmore ■». Whites, 2 Cainea Cas. 87, 109 ; Parkhurst v. Van Cortland, 14 Johns. 15 ; Simmons v. Hill, 4 Harris & SicHen. 252 ; Moreland v. Lemasters, 4 Blackf. 383, 88.5 ; Mima •o. Lockett, 33 Geo. 9 ; Byrd v. Odem, 9 Ala. 756, 764 ; Johnson v. McGruder, 15 Mn. ,S65 ; MEMORANDUM BEQUIBED BY STATUTE. 167 In Massachusetts aud in Pennsylvania, as it seems by the later authorities, the rule, as to the effect of possession, is much more restricted than that which prevails in England and generally in this country. Mere possession is not sufllcient, and the notion that the possessor would be liable as a trespasser is rejected ; the possession must be taken under such circumstances that a money compensation would be absolutely impossible, and that a refusal to execute the con- tract would be clearly unjust ; and some of these decisions even deny that any possession can be a part performance, unless accompanied by payment of the consideration or the making of improvements.(l) Pos- session alone, without other acts of improvement and the like, is never a sufficient part performance of a parol gift of lauds. (2) Sec. 118. As the questions concerning specific performance may generally arise in two classes of suits, those prosecuted by vendees and those prosecuted by vendors, so the subject of possession as a part performance may be presented under these two aspects ; first, when Despain i). Carter, 21 Mo. 331 ; Dugan ■». Colville, 8 Tex. 126 ; Ottenhouse ■». Burleson, 11 Tex. 87. The following are additional cases where possession with improvements, and with or without any payment, has been held to constitute a part performance: Potter v. Jacobs, 111 Mass. 32; Northrop u Boone, 66 111. 368 ; Fall v. Hazelrigg, 45 Ind. 576 ; Lowry v. Buffington, 6 W. Va. 249 ; Howe V. Rogei-s, 32 Tex. 218 ; Freeman v. Pieeman, 43 N. Y. 34 ; Peckham v. Barker, 8 R. I. 17 ; Welsh v. Bayaud, 21 N. J. Eq. 186 ; Richmond v. Foote, 3 Lans. 244 ; Hendi-ick v. Hern, 4 W. Va. 620 ; Neale v. Neale, 9 Wall. 1 ; Mims v. Lockett, 38 Geo. 9 ; Clayton v. Frazier, 33 Tex. 91 ; Tatum v. Brooker, 51 Mo. 148 ; McCar- ger V. Rood, 47 Cal. 138 ; Gregg v. Hamilton, 12 Kans. 333 ; Johnson u. Bowden, 37 Tex. 621 ; Wimberley v. Bryan, 55 Geo. 1!!8 (possession and part payment) ; Green •).•. Finin, 35 Conn. 178 ; Ingles v. Patterson, 36 Wise. 373 : Hoffman v. Fett 39 Cal. 109 ; Poland v. O'Conner, 1 Neb. 50 ; Cagger v. Lansing, 43 N. Y. 550; Moss v. Culver, 64 Pa. St. 414; Sackett v. Spencer, 65 Pa. St. 89; Adams v. Fullam, 48 Vt. 592 ; Wiswell v. Teflft, 5 Kans. 263. (1) Glass V. Hulbert, 102 Mass. 25, 32 ; Moore v. Small, 7 Harris, 461, 476 ; Dougan v. Blocher, 12 Harris, 28, 34; Galbreath d. Galbreath, 5 Watts, 146 ; Woods V. Farmare, 10 Watts, 195 ; Brawdy v. Brawdy, 7 Barr. 157. In Dougam V Blocher, supra. Woodward, J., said : "Possession, to be part performance, must be taken under and in pursuance of the contract, and it must be mamtamed as it was taken ; and unless accompanied by such improvements as will not reasonably admit of compensation in damages, is not, even when so taken and mamtained such part performance of a parol contract as will take it out of the statute of frauds " In Glass v. Hulbert, mpm, the theory that a vendee is hable as a tres- passer" unless the verbal contract is admitted in defense to explain his possession, is emi-'hatically repudiated on the ground that a parol Ucense is a defense for acts done under it while unrevoked. (9) Stewart v. Stewart, 3 Watts, 253, 255 ; Eckert v. Eckert, 3 Penn. 332; Pinckard v. Pinckard, 23 Ala. 649. The subject of parol gifts will be discussed at large in subsequent paragraphs— posf, §§ 180, 131. 168 SPECIFIC PEBFORMANCE OF CONTRACTS. the vendee or lessee sues to enforce the verbal contract and relies upon a possession taken by himself with the consent of the vendor ; secondly, when the vendor sues and relies upon a possession delivered by himself and accepted by the vendee. Although the former case is by far the most frequent in practice, the rule as to part performance applies with the same force and effect to the latter.(l) Having stated the theory upon which possession is regarded as a part performance, and described the generic cases to which it does or does not extend, I shall now examine the particular features and qualities of this possession, in order that it may avail to take a verbal contract out of the statute of frauds. Sec. 119. 1 . The possession of a vendee or lessee under a verbal contract, must be with the consent of the vendor or lessor, for other- wise the very feature of the transaction, which would render a refusal to execute the agreement a virtual fraud as against the purchaser, would be wanting. (2) "Where the possession, however, is taken with the vendor's knowledge and without any objection on his part, this fact raises a presumption of his consent, and no further evidence of it is necessary.(8) If the original entry was without consent, but the vendor, on its coming to his knowledge, allows the possession to con- tinue, the subsequent assent will affect the act from the beginning (1) Pyke V. Williams, 2 Vern. 455 ; Earl of Aylesford'a Case, 2 Stra. 783 ; Hands V. Knickerbackei-, 5 Wend. 638 ; Pugh v. Good, 3 Watta & S. 56 ; Reeil v. Reed, 12 Pa. St. 117 ; Mooi-e v. Small, 19 Penn. St. 461 ; White v. Crew, 16 Geo. 416. (2) See cases ante, §§ 104, 106. Also, Howe v. Rogers, 32 Tex. 218 ; Freeman v. Freeman, 43 N. Y. 34 ; Moore v. Higbee, 45 Ind. 487. A possession taken under another right than that given by the contract is not sufficient. Jacobs v. Petei'borough, etc., R. R., 8 Cush. 224 ; Purcell v. Miner, 4 Wall. 513. (3) See ante, § 116. Cole -b. White, cited 1 Bro. C. C. 409 ; Gregory v. Mighell, 18 Ves. 32S ; Lord v. Undei-dunk, 1 Sandf. Ch. 46, 48 ; Jervis v. Smith, Hoffman Ch. 470. 475 ; Purcell v. Miner, 4 Wall. 513 ; Goucher v. Martin, 9 Watts, 106 ; Gratz v. Gratz, 4 Rawle, 411 ; Sage v. McGuire, 4 Watts & S. 228 ; Thompson v. Scott, 1 McCord Eq. 32, 39 ; Givens v. Calder, 2 Dessau. Eq. 174 ; Johnston v. Glanoy, 4 Blackf. 94 ; Ash v. Daggy, 6 Pointer (Ind.), 259 ; CarroUs -b. Cox, 15 Iowa, 455 ; Millard v. Harvey, 34 Beav. 237 ; 13 W. R. 125. Plaintiff's wife, ■without her husband's knowledge, paid to defendant 150i. with the design of pur- chasing a field for the plaintiff. A short time after defendant told plaintiflf he might have the field to put his horse v.-'.. Plaintiff occupied the field ten years without paying any rent, and in ignorance of what his wife had done. Defend- ant refused to convey, but kept the money and paid no interest on it. Sir John RoMiLLY, M. R., held that there was a contract with the wife as agent for the plaintiff, which was afterwards adflpted by him ; that as it was accompanied by possession with defendant's consent for ten years, this was a part performance, and it should be specifically enforced. MEHORANDUM REQUIRED BY STATUTE. 169 and make it a good part performance. (1) And when the possession has continued for a long time with the vendor's knowledge, he would probably be estopped from denying that it began with his consent.(2) The consent of the vendor may be inferred from his acts. If, for example, the land at the time of the sale is in the occupancy of a tenant of the vendor, and it is agreed between the parties that this tenant shall in future pay his rent to the vendee, and the tenant thereupon attorns to the vendee, the consent to a changing possession is thereby sufficiently shown.(3) Possession taken by a lessee of the vendee enures to the vendee's benefit, and if otherwise sufficient, is a good part performance. (4) Sec. 120. 2. The possession must be actual and not merely nomi- nal, open, visible, and notorious, so that the fact can be certainly proved by the testimony of eye-witnesses, and not left to be inferred by the court from doubtful and, perhaps, interested evidence. As the absence of a writing, as required by the statute, is, in some measure, supplied by the physical fact of possession, it is plain that the proof of that fact should be in a high degree satisfactory and certain. (5) When, therefore, the premises were, at the time of the verbal sale, occupied by a tenant of the vendor, who was left in the occupar cy, but recognizing the vendee as his landlord, this occupa- tion and attornment by the tenant was held not to be the open, and visible change of possession required by the rule in order to constitute a part performance ; if such attornment could be effectual, it must itself be public, formal, so as clearly to indicate the possession to be that of the vendee. (6) (1) Gregory v. Mighell, 18 Ves. 328 ; Pain i>. Coombs, 1 DeG. & J. 34, 46. (2) Hari-is v. Knickerbackei-, 5 Wend. 645 ; Thompson v. Scott, 1 McCord Eq. 32. And acquiescence in the possession for a long time will be a strong circum- stance to prevent the vendor from defeating the execution by setting up the statute. Blatchford v. Kirkpatrick, 6 Beav. 232. It has been held, however, that permitting the property to be occupied for a few months, when the profits of it were very small and no improvements were made, was not a sufficient part performance upon which to enforce the agreement. Jervis v. Smith, 1 Hoff. Ch. 470. (3) Williams v. Landman, 8 Watts & Serg. 56, 60 ; Pugh v. Good, 3 Watts & S. 56. But whether these facts would, of themselves, constitute a sufficient phys- ical possession by the vendee to satisfy the rule is a very different question. See Bawdiy v. Bawdry, 7 Barr. 157. (4) Pugh V. Good, 3 Watts & S. 5G ; and see Williams v. Evans, L. R. 1 9 E(i. 547. (5) White V. Watkins, 23 Mo. 423 ; Haslet v. Haslet, 6 Watts, 464 ; Fi-ye v. Shepler, 7 Barr. 91 ; Moore v. Small, 19 Pa. St. 461 Johnson v. Glancy, 4 Blackf. 94. (6) Bawdry v. Bawdry, 7 Barr. 157. 170 SPECIFIC PERFORMANCE OF CONTRACTS. Sec. 121. 3. The possession must be definite and exclusive ; it must unequivocally show what land is possessed, and that it is pos- sessed by the purchaser exclusively and not concurrently with the vendor; it must, in short, indicate the commencement of a new interest or estate.(l) This requisite was held wanting, and the possession accordingly insufficient in the following cases : Where a purchaser moved into the premises and remained there not as the sole, exclusive owner, but in company with a former occupant; (2) where the pur- chaser occupied the premises in question in common with adjacent land of his own, without having in any manner ascertained, marked out, or determined their extent and boundaries. (3) The rule con- cerning exclusive possession applies with special force to tenants in common. Where a plaintiff claims as purchaser of land to the pos- session of which he and others are entitled as tenants in common, or joint tenants, no mere possession by him can avail as a part perform- ance ; no possession can suffice which does not show his individual right to the exclusion of the other co-tenants. (4) The reason of this is obvious, and results from the nature of such co-ownership. Each tenant is entitled to the possession olthe common estate ; the posses- sion of one is that of all the others. An entry and possession of the plaintiff claiming to be the vendee would not, therefore, tend to show a contract of sale from the others, or any interest in him to the exclu- sion of the others. That such a possession should operate as a part performance, there must have been some prior act of open disseizin, or some joint act of partition among all the co-owners. This rule, touching a verbal sale among co-tenants, does not at all interfere with the well-known doctrine of a parol partition. When co-tenants make (1) Blakeslee ■». Blakeslee, 10 Harris, 237; Haslet v. Haslet, 6 Watts, 464; Moove V. Small, 19 Pa. St. 4(51 ; Robertson v. Robertson, 9 Watts, 32, 41 ; Frye V. Sheplev, 9'BaiT. 91 ; Goucher v. Martin, 9 Watts, 106, 109; Workman v. Guthrie, 5 Casey, 495, 512 ; Galbreath v. Galbreath, 5 Watts, 146 ; Zimmerman D.Wangort, 31 Pa. St. 401 ; Davis v. Moore, 9 Rich. 215. (2) Frye v. Shepler, 7 Barr. 91. (3) Haslet v. Haslet, 6 Watts, 464. (4) Workman v. Guthrie, 5 Casey, 495, 512 ; Galbreath v. Galbreath, 5 Watts, 148 ; Blakeslee v. Blakeslee, 10 Hari'is, 257. In Workman v. Guthrie, WooD- WAED, J., said : "What, then, it may be ask-^d, can there be no sale of land by pai'ol among tenants in common where all are in possession ! Certainly not ; because the statute of frauds forbids it, and there cannot be such part perform- ances as would take it out of the operation of that wise and statutory rule of titles." This doctrine applies with equal force, as is stated in the text, to the case where the tenants in common are not all in actual possession ; because where one is in possession all are in possession, unless there has been a disseizin. MEMORANDUM REQUIRED BY STATUTE. 171 a parol partition of the land among themselves, and each one takes exclusive possession of his own share thus allotted, it is settled that the statute of frauds does not apply, and a court of equity will con- firm and enforce the division by its decree. (1) The same rule also applies to verbal family arrangements, compromises, and exchanges, when carried into effect by an exclusive possession of his individual lands by each party ;(2) and to verbal compromises or settlemeuts of -boundaries and titles between adjacent proprietors, if followed by exclusive possession and enjoyment.(3) Sec. 122. 4. The possession must be of the very tract of land bargained for in the contract, and which forms the subject-matter of the suit. This proposition requires no authorities directly in its sup- port, and is either tacitly assu«ied or expressly asserted in all the decisions which discuss the doctrine of possession as applied to dis- tinct parcels included in one agreement.(4) The question may be presented in three cases — first, where the contract embraces only one parcel of land ; second, where several distinct parcels are bargained for by one entire contract for one gross consideration ; and third, where several distinct parcels are bargained for by separate contracts and for separate prices, although they are all sold at the same time and in the same general transaction — as, for example, at one auction sale. It is, of course, assumed in each of the two latter cases that all the parcels are sold by the same vendor and bought by the same vendee ; if the purchase is made from different owners, or by different vesdees, no question could of course arise. In the third case, where distinct parcels are sold to one purchaser by separate agreements, although at the same time in one general transaction, as at an auc- tion, it is fully settled that a possession of one parcel will not consti- (1) Corbin v. Jackson, 14 Wend. 619 ; Pratt v. Hubbell, 3 Ohio St, 243 ; Slice V. Derrick, 2 Rich. 7 ; Wildey v. Bonney, 31 Miss. 634 ; City of Natchez v. Vandervelde, 31 Miss. 706, 720 ; Calhoun v. Hayes, 8 Watts & S. 127 ; Rhodes v. Frick, 6 Watts, 310 ; Rhine v. Robertson, 27 Pa. St. 30 ; Loung: v. Frost, 1 Md. 377 ; Goodhue v. Barnwell, Rice Eq. 198 ; Weed v. Terjy, 2 Doug. 344 ; Cum- mings V. Nut, Wright (Ohio), 713 ; Sweeny v. Miller, 34 Me. 388. (2) Neale v. Neale, 1 Keen, 672 ; Stockley v. Stockley, 1 V. & B. 23. (3) City of Natchez v. Vandervelde, 31 Miss. 706, 720 ; Davis v. Townsend, 10 Barb. 333 ; Lindsay v. Springer, 4 Harring. 574 ; Boyd v. Graves, 4 Wheat. 513 ; Blair v. Smith, 1 Bennett (Mo.), 273 ; Fuller v. County Comm'rs, 15 Pick. 81 ; Kip V. Nortoi}, 12 Wend. 127. (4) Buckmaster v. Harrop, 7 Ves. 341 ; Smith v. Underdunk, 1 Sandf. Ch. 579 ; Jones V. Pease, 21 Wise. 644; Allen's Estate, 1 Watts & S. 384, 389; Pugh v. Good, 3 id. 56. 172 SPECIFIC PERFORMANCE OF CONTRACTS. tute a part performance in respect to the other parcels ;(1) and a fwtwri this would be so, if the sales of the various parcels took place at different times, for there would then be no appearance even of one single and entire contract. In the second case, where the several distinct parcels are sold to the same vendee by one entire contract and for a gross price, the rule, as generally adopted, makes the proper possession of one parcel a sufficient part performance as to all.(2) This doctrine, however, has been expressly repudiated in Pennsylvania.(3) The rule applicable to the first of these three cases is necessarily included in that which governs the second. Although the possession of the one tract must have the qualities heretofore described, it need not equally extend as an actual umr to all portions of the soil. It must be such as to indicate the whole tract claimed, and to assert a proprietorship over it ; but it need only be reasonable, customary, and according to the usages of the neighborhood, if it be agricultural land, or according to the nature and condition of the premises themselves. (4) Sec. 123. 5. The possession must be in pursuance of the contract, and with the view to carry it into execution. The meaning of this rule is, that possession, in order that it may of itself constitute a part performance, must be of such a nature and under such circumstances that it shall naturally and reasonably be accounted for by the suppo- (1) Buckmaster v. Havrop, 7 Ves. 341 ; and see cases cited in the two follow ing notes. (2) Smith -0. Underdunk, 1 Sandf, 579, 581 ; Jones v. Pease, 21 "Wise. 644 ; this rule is implied by the decision of Sir W. Grant in Buckmaster v. Harrop, supra; and see Dock v. Hart, 7 W. & S. 172. (3) Allen's Estate, 1 Watts & S. 384, 389 ; Pugh v. Good, 3 id. 56, 61 ; McClure V. McClure, 1 Barr. 374, 379. (4) Sutherland v. Brig-gs, 1 Hare, 26, per Wigbam, V. C. ; " It was next said that the justice of the case would be satisfied by giving to the plaintiff so much of the meadow as the house stands upon, which the defendant offered to do. To the suggestion that justice would be satisfied by doing this, I cannot accede ; for some additional portion of the meadow would be essential to the enjoyment of the house. The rules of this coui-t, howevei', will not permit me so to consider the case. If the acts done by the plaintiff are to be considered acts of part per- formance, taking the case out of the operation of the statute, the rules of the coui't entitle him to prove the entire agreement which the acts relied upon were intended partly to perform. The act of building part of the house upon the meadow was an act affecting the whole tenement, viz. : the meadow, and not t hat part of it only upon which the house stands. The case of Mundy v. Jolliffe, 5 My. & Cr. 167, will apply also to this part of the present case.'' See, also, Howe v. Hall, 4 I. R. Eq. 242 ; but see Frame v. Dawson, 14 Ves. 386. The recent case of Miller v. Ball, 64 N. Y. 286, is an admirable illustration of the text. MEMORANDUM BEqUIRED BY STATUTE 173 sition of a contract rather than of any other relation between the parties, and shall thus clearly indicate the commencement of a new interest or estate in the land on the part of the possessor.(l) This is nothing more than the application of a general principle heretofore discussed to this particular instance of part performance. It follows, therefore, that if the possession is not connected with the contract, but is referable to some other cause ;(2) or if it can be naturally and reasonably accounted for upon some supposition other than that of a contract, it will not be a part performance. (3) Sec. 124. This rule has its most frequent application to cases in which the possession is not a new fact, but is the uninterrupted con- tinuation of a former condition. It results as a necessary corollary from the rule itself that such a possession — one, that is, which merely prolongs a pre-existing situation of the party in reference to the land, cannot alone be a part performance of an intervening contract, since it will be accounted for by the prior condition as naturally as by the new agreement.(4) If, therefore, a verbal agreement is made by a lessor (1) Cole V. White, cited 1 Bro. C. C. 409 ; Morphett v. Jones, 1 Sw. ISl ; "Walker V. Walker, 2 Atk. 100 ; Whitbiead v. Bi-ockhuist, 1 Bi-o. C. C. 417 ; 2 V. & B. 154, n. ; Hawkins v. Holmes, 1 P. Wms. 770; Att'y Gen. v. Day, 1 Ves. 221; Wills V. Sti-adling, 3 Ves. 378 ; Buckmaster v. Havrop, 7 Ves. 346 ; HoUis v. Edwards, 1 Vern. 159 ; Meynell v. Surtees, 3 Sm. & Giff. 101 ; Fan-all v. Daven- port, 3 Giff. 363 ; Robertson v. Robertson, 9 Watts, 32, 42 ; Stoddart v. Tuck, 4 Md. Ch. 475; 5 Md. 184; Anderson v. Chick, 1 Bailey Bq. 118, 124; Hood v. Bowman, Fi-eeman Ch. 290, 293 ; Ham v. Goodrich, 33 N. H. 32. See, also. Peck- ham V. Barker, 8 R. I. 17 ; Welsh v. Bayard, 21 N. J. Eq. 186 ; Richmond v. Foote, 3 Lans. 244 ; Moore v. Higbee, 45 Ind. 487 ; Wood v. Thornby, 58 III. 464. (2) Ssiith v. Smith, 1 Rich. Eq. 130. (3) German v. Machin, 6 Paige, 289, 293 ; Cox v. Cox, 2 Casey, 375 ; Poorman V. Kilgore, 2 Casey, 365 ; Jacobs v. Railroad Co., 8 Cash. 223. (4) Jones v. Peterman, 3 Serg. & R. 543 ; Christy v. Barnhart, 14 Pa. St. (2 Harris), 260 ; Aitkin v. Young, 12 Pa. St. (2 Jones), 15 ; Poag v. Sandifer, 5 Rich. Eq. 170, and see cases cited in the next succeeding note. Wilmer v. Fanis, 40 Iowa, 309 (verbal contract of sale by one pai-tner to another, and the only change was the -withdrawal of the vendor, leaving the vendeein sole possession, not a part performance, enabling the vendee to enforce the cont)'act ; qn., might not it have been sufficient to enable the vendor to enforce?) ; Moote v. Scriven, 33 Mich. 500 (a verbal agreement by defendant to advance money for the pui'cha-se of land and to pay off incumbrances on it, and to transfer the land to the plaintiff on his repayment of the advance ; the plaintiff was in possession at the time of the agree- ment, and continued in possession, and did no other acts of part performance ; held, his possession not a sufficient part perfoimance. If. howevei-, the pur- chaser, although in possession at the time of the contract, so that thej-e is no change of his possession referable to it, goes on and makes permanent improve- ments and pays part or all the price, these acts will constitute a sufficient part performance) ; Edwards v. Fi-y, 9 Kana. 417. See, also, as illustrations of the 174 SPECIFIC PERFORMANCE OF CONTRACTS. ■with his tenant, either during the tenancy or after its termination, to grant another lease in place of the existing one, or to renew the lease after the expiration of the prior one, or to sell and convey the land itself, the possession of the tenant continued as under the former holding cannot of itself be a part performance of the agreement. If the original tenancy has not expired, the possession must, of course, be referred to that; if it has expired, the possession will more natu- rally be accounted for by the tenant's holding over than by a new contract. As has already been shown, such possession does not raise a presumption as to the intent of the possessor, as is the case where he is an entire stranger to the estate ; it must be accompanied by some further act on the part of the tenant in order to stamp its char- acter and connect it with the contract. (1) Whenever, after the expira- tion of the term, the tenant's possession, by means of some accompa- nying act or other circumstances, can only be reasonably accounted for by the supposition of a contract for a renewed lease, it is a good part performance. (2) It is, therefore, now settled, after some expres- sions of doubt, and with a few conflicting decisions, that possession by a tenant after the expiration of his former term, and payment by him of an increased rate of rent, are together a part performance of a verbal contract for a renewal of the lease. (3) In like manner, such general rule stated in the text, Peckham v. Barker, 8 R. 1. 17 ; Rosenthal v. Free- burger, 2t) Md. 75 ; Crawford v. Wick, 18 Ohio St. 190 ; Mahana v. Blunt, 20 Iowa, 142. (1) Wills v. Stradling, 3 Ves. 381 ; Smith ■». Turner, Prec. Ch. 561 ; Savage v. Carroll, 1 Ball & B. 265 ; Morphett i\ Jones, 1 Sw. 181 ; Seagood v. Meale, Pi'ec. Ch. 560 ; Gregniy v. Mighell, 18 Ves. 328 ; Kine v. Balfe, 2 Ball & B. 343 ; Cole V. Potts, 2 Stockt. Ch. 67 ; Smith v. Smith, 1 Rich. Eq. 130 ; Hatcher r. Hatcher, 1 McMullan Eq. 311, 318 ; Anthony v. Leftwich, 3 Rand. 238, 256 ; Johnston v. Glancy, 4 Blackf. 94, 99 ; West v. Flannagan, 4 Md. 36 ; Workman v. Guthrie, 5 Casey, 495, 572 ; Jones' ■». Petennan, 3 Serg. & R. 543; Christy v. Barnhart, 2 Harris, 260 ; Aitkin v. Young, 12 Pa. St. 15 ; Greenlee v. Greenlee, 22 Pa. St. 225 i Wilde V. Pox. 1 Rand. 165 ; Rosenthal v Fi-eeburger, 26 Md. 76 ; Car]-oll v. Cox, 15 Iowa, 45o ; Mahana ii. Blunt, 20 Iowa, 142 ; Anderson v. Simjison, 21 Iowa, 399 ; Armstrong v. Katterhoi-n, 11 Ohio, 265 ; Danforth v. Laney, 28 Ala. 274. (2) Dowell V. Dew, 1 Y. & C. C. C. 345 ; Pain v. Coombs, 1 DeG. & J. 34. And the same is ti-ue of a pni-chaser. Although in possession at the time of the contract, still if he afterwards pays pai't or all of the price and makes perma- nent improvements, this will constitute a part performance. Edwai'ds v. Fi'y, 9 Kans. 417 ; Brown v. Jones, 46 Barb. 400 ; Spear v. Orendorf, 26 Md. 37 ; Watson V. Mahan.-20 Iiid. 223 ; Blunt v. Tomlin, 27 111. 93 ; Holmes v. Holmes, 44 HI. 168 ; Morrison v. Peay, 21 Ark. 110 ; Howe's Heirs v. Rogers, 32 Tex. 218. (3) Wills V. Sti-adling, 3 Ves. 378 ; Nunn v. Fabian, L. R. 1 Ch. 35 ; Clarke ■». Reilly, 2 I. R. C. L. (Exch ) 422 ; Howe v. Hall, 4 I. R. Eq. 242 ; Archbold v. Ld. Howth, 1 I. R. C. li. 608 ; Lincoln v. Wright, 4 DeG. & J. 16 ; Spear v. Orendorf, MEMORANDUM REQUIRED BY STATUTE. 175 possession either before or after the end of the term, and a payment which could not be referred to the old rent, but could only be explained on the supposition of a contract, should be part perform- ance of a contract by the lessor to sell and convey the land. It is, also, well settled that a tenant's continued possession, and the making by him, in pursuance of stipulations contained in the agreement, of substantial improvements on the land, constitute a part performance of a verbal agreement to grant a renewal of the lease, or it would seem, of a contract to convey the fee.(l) These improvements, how- 26 Md. 37 ; "Wilde v. Fox; 1 Rand. 165 ; Williams v. Landman, 8 Wa,tts & S. 55 ; Shepheai-d v. Walker, L. R. 20 Eq. 659 ; but see Rosenthal v. Fi'eeburger. 26 Md. 75. In Wills V. Stradling, Lord LouGHBoitonGH said : " Payment of additional rent per se is an equivocal circumstance, it is ti-ue. It may be thit he shall hold over, from year to year, the lease being expii-ed. There may be other induce- ments. But how stands the averment upon this plea 2 It is that the landlord accepted the additional rent upon the foot of the agreement. Then the accept- ance upon the ground of the ag-reement, which is the averment upon this plea, is not equivocal at all." The bill alleging such an agreement and a possession and payment of the rent, which had been accepted by the landlord upon the strength of the agreement, the lord chancellor would not allow the bill to be defeated by a plea of the statute of frauds, but ordered it to stand as an answer so that the issue of fact raised might be tried and decided at the hearing. In Nunn v. Fabian, supra, a landlord verbally agreed to give his tenant a renewal lease for twenty-one years at an increased rent, with the option of purchasing the freehold, but died before executing the lease. The tenant had, bcfoi'e the lessor's death, paid him one quarter's rent at the advanced rate, and had made some slight repairs. Held, by Lord Chanwoeth, reversing the decision of the M. R., that the possession and payment of rent at the advanced I'ate amounted to a part per- formance, and a specific execution was decreed at the suit of the tenant. No stress was placed upon the fact of the i-epaii-s in this case. From this it appears that the payment of a single quarter at the new rate is sufficient, and on principle it should be as much as the payment of a year's rent or more, for it points with certainty to the new interest created by the agreement, which is all that the rule ever requires. (1) Wills V. Stradling, 3 Ves. 378, 382, per Lord Lodghborodgh ; Mundy v. JoUiffe, 5 My. & Cr. 167, reversing 9 Sim. 413 ; Sutherland v. Briggs, 1 Hare, 26 ; Howe V. Hall, 4 I. R. Eq. 242 ; Savage v. CarroD, 1 Ball & B. 265 ; Dowell v. Dew, 1 Y. & C. C. C. 345 ; Mahon v. Baker, 2 Casey, 519 ; Williams v. Evans, L. R. 19 Eq. 547. A. a tenant in possession made a verbal contract with the land- lord for a lease of thirty years. A. had contracted to sub-let to B., and B. expended money in alterations and I'epairs with the knowledge and approval of the landloi'd. Held, as much a part performance as if made by A., and B. was entitled to a specific execution of the contract. In Mundy v. JoUiffe, supra, which is the leading case on this particular point, the plaintiff', a tenant of a farm from year to year, had entered into a parol agreement with his landloi'd, the defendant, for a lease, and in pursuance thereof repaired the buildings, drained the land, and converted the only piece of arable land belonging to the farm into pasture land. Lord Cottenham held there was no doubt these acts constituted a part 176 SPECIFIC PERFORMANCE OF CONTRACTS. ever, must be of such an extent and kind that they are reasonably referable to the new agreement, and not such as would necessarily or naturally occur under the old condition of affairs.(l) Finally, the performance, and he decreed a specific execution of the contract, reversing the decision below of V. C. Sbadwell. In Sutherland v. Briggs, supra, the plaintiff was the lessee of a house and other premises for thirty-one years, at I'ent of HOl.t and was bound to make cei'tain improvements. He, also, held an adjoining meadow belonging to another owner, fi-om year to year, for 91. I'ent. The lan4- lorJ of the house, etc., bought the meadow and verbally agreed to grant a lease of the same to the plaintiff. In pursuance of the stipulations of this parol bar- gain, the improvements were made more extensive than was before contemplated ; part of the house was made to project over the meadow, and part of the meadow was attached to the original premises of which plaintiff' held the lease. One-half of the expense of these alterations was paid by the plaintiff; which far exceeded the amount he had covenanted to expend for improvements by his lease, and he also signed a written promise to pay 801. a year rent for the whole property. In a suit for a specific performance of the contract to lease the meadow, Sir James WiGKAM, v. C, held that the extension of the house into the meadow by the plaintiff, in connection with the landlord, was evidence of a Sufficient consideration for an agreement to lease the meadow ; that the building the house upon the mea- dow was evidence of a right which extended to the whole of that field, and which could not be restricted so as to reach only that part of the meadow upon which the building actually stood ; and that the extension of the house into the meadow and the increase and consolidation of the rents into one annual sum was evidence that the meadow was to be had for the s?.me time as the p/eraises of which the plain- tiff had the lease. In other words, the verbal agreement concerning the meadow had been part performed by the plaintiff, and should be specifically enforced. On the general subject of the part performance, the vice chancellor said: "The first point suggested, i-ather than pressed, was that the plaintiff, being in possession of the meadow as tenant from year to year, the expenditure upon the property did not unequivocally show that it had proceeded upon some antecedent contract with the landlord. Undoubtedly it is, in general, necessary that an act of pai-t pei'formance, whicVi is to take a case out of the statute of frauds, should unequiv- ocally demonstrate the existence of some contract to which it must be referred. Mbrphett v. Jones, 1 Sw. 172. But if the act of extending the house, in which the tenant had an intei'est for a terra of years, into the meadow, with the landlord's consent, be not evidence of a contract between them, I know not what act on the pai't of a tenant in possession of property could possiUy be so considered. Cir- cumstances much less stringent have been deemed sufficient ; and if the case of Mendy v. Jolliffe may be considered as correctly illustrating the rule of this coui't, as to the acts of part performance which will take a case out of the statute, the alterations of the garden fence and making the plantation in the ineadow, would be sufficient. In that case, the expenditui-e by the tenant was in di-aining the land, and the court decreed Mr. Jolliffe to grant him a lease upon the promise of which it was said the expense of draining had been incurred." (1) Brennan v. Bolton, 2 Dru. & War. 349, in which the outlay for impro' e- ments relied on, was not greater than would be made by the tenant in the oi-di- nary course of farming, and L. Ch. Shgdeit held that it would be again«!t all authoiity to say that such acts amounted to.a part performance. Fi'ame v. Daw- son, 14 Ves. 385. MEMORANDUM REQUIRED BT STATUTE. 177 possession by a tenant, together with further acts on his part which are neither payment of increased rent nor improvements, may be a sufficient part performance of such a verbal agreement.(l) Sec. 125. It follows, as a necessary corollary from the rule under discussion, stated in section 123, that the possession which shall be a sufficient part performance must be subsequent in point of time to the contract which it renders binding ; and, except in the case of a new agreement between a tenant and his landlord, or of some similar rela- tion, the act of taking possession must be performed after, or at all events simultaneously with, the conclusion of the contract between the parties.(2) Taking possession, therefore, and making improve- ments in anticipation of a right expected to arise from a future contract has been held unavailably as part performance of the verbal contract which was afterwards actually entered into ;(3) nor even a possession taken at the time when the negotiation between the parties commenced, although such negotiation resulted in a con- cluded agreement, and the possession was continued after the bargain was thus made. (4) The further requisite has been added by certain cases, that the possession, when taken in pursuance and execution of a verbal contract, must be continued without interruption down to (1) Parker v. Smith, 1 Coll. C. C. 608. Four tenants in partnership held a colliery under a lease which had sevei'al years yet unexpired. The landlord entered into a verbal agreement with all the four, whereby, on the surrondei- of the old lease, he undertook to grant a new one to two of them (the plaintiffs), it being pai-t of the bargain that the partnership should be dissolved, and that the two who were to receive the new lease and carry on the business, should i-elease the other two fi-om all liability. The partnership was therefoi'e dissolved, and the plaintiffs released to the retiring members, and thereby assumed the entire liability of the old firm and of the new business. The two members, continuing in possession, brought suit for a specific performance, and the possession and the acts aforesaid were held by V. C. Knight Brucb to be a part performance. He said: "It is part of the entire agreement that the dissolution 'and release shall take place. They do take place. It is impossible to treat these acts otherwise than as acts of part performance, taking the case out of the statute of frauds." This case furnishes an admirable illustration of the general doctrine of part per- formance. The plaintiffs having dissolved their fii-ra and released the other part- nera had so changed their own position, that they could not be restored to their original situation, nor was there any adequate compensation in damages. The fundamental principle was complied with, although none of these acts concerned the subject-matter of the contract — the lands (2) Christy v. Barnhart. 2 Harris, 260 ; Aitkin v. Young, 2 Jones, 15 ; Eckert •0. Eckert, 3 Penn. 332 ; Dougan v. Blocher, 12 Harris, 28 ; Reynolds v. Hewett. 27 Pa. St. 176 ; Myers v. Byerly, 45 Pa. St. 368. (3) Eckert v. Eckert, 3 Penn. 332. (4) Dougau V. Blocher, 12 Harris, 28. 12 178 SPECIFIC PMR]rOItMA.NCB OF CONTRACTS. the time of commencing the equitable suit to enforce a specific per- formance of such agreement.(l) It is certain that the possession, after it has once commenced, cannot be abandoned, or the character of it changed in such a manner, or under such circumstances, as to show an intent that it should thereafter be referred to some other cause than the contract, or an intent to surrender all right and inter- est under the contract ; by such an abandonment or change, all the benefits of the original possession, as a part performance, would be lost, and in this sense the jjossession must be retained by the party who relies upon it.(2) To conclude this branch of the discussion, it should be remembered that possession by the purchaser or intended lessee, under a verbal agreement to convey or to lease, does not relieve him from any of the obligations resting upon him as a condition to the enforcement of a specific performance — such, for example, as the duties to exercise diligence and good faith on his own part, and to perform whatever he is bound to do by the terms of the con- tract ; and a failure in these respects will generally be a sufficient ground for refusing to grant the equitable remedy of specific execu- tion.(3) Sec. 126, 6. Improvements. The making of valuable permanent improvements on the land by a vendee or lessee, in pursuance of the agreement, and with the knowledge of the other party, is always considered to be the strongest and most unequivocal act of part per- formance by which a verbal contract to sell and convey, or to lease, is (1) Dougan i). Blocher, 24 Pa. St. (12 Harris) 28 ; Mundorff v. Howard, 4 Md. 459. It is difficult to see any reasonable ground, upon principle, for this partic- ular requirement, unless the possession is abandoned or changed in such a manner or under such circumstances, as to show an intent that it should be refei-red to some other cause than the contract in question, or an intent to sur- render all right and claim ' under the contract. After the possession has com- menced and lasted for a time, it seems possible that it should be interrupted or suspended by the vendee, from a variety of motives, without necessarily showing a design on his part thereby to give up or waive his rights under the agreement ; nor does there seem to be any good reason why such a temporary suspension or interi'uption should necessarily operate as a waiver. (2) A purchaser took possession in pursuance of his verbal contract, but aftei^ •wards attorned to the vendor as his landlord ; this act, it was held, changed the character of the possession ; it could no longer be accounted for by the agree- ment to sell and convey, but was merely an occupancy by a tenant. Rankin •». Simpson, 19 Pa St. 471 ; Dougan v. Blocher, 24 Pa. St. 28. In Pennsylvania, it is also decided that the possesion must be taken in the life-time of the vendor. Sage •». McGuire, 4 Watts & Serg 228. 229. (3) McClellan v. Darrah, 50 111. 249 ; Dougan v. Blocher, 24 Pa. St. 28, 33. This subject is fully treated in a subsequent chapter. HKMORANDVM REQUIRED BY STATUTE. 179 taken out of the statute.(l). It is very plain that such proceedings satisfy the equitable principle upon which the doctrine of part per- formance restd, much more completely than a mere possession does. If the purchaser has simply taken possession, it might seSm possible for him to be restored to his former situation, and to be compensated in damages ; but when he has made outlays for valuable and perma- (1) Wells V Stradling', 3 Ves. 378, per Lord LonoHBAUOH ; Savage v. Foster, 5 Vin Abr. 524, pi. 43. when an intended lessee entered and built ; Sutherland ■». Bri'fjfs, 1 Ha. 2b ; Stockley v. Stockley, 1 V. & B. 23 ; Toole v. Medlicott, 1 Ball & B. 393 ; Mundy v Jolliffe, 5 My. & Co. 1(57 ; Surcome v. Penniger, 3 DeG. M. & G. 571; Floyd «. Bucldand, 2 Freem. 2^8; 2 Eq. Cas. Abr. 44; Mortimer «. Oi-chard, 2 Ves. 243 ; Wheeler v. D'Esterre, 2 Dow. 359 ; Norris v. Jackson, 10 W. R. 228 ; Crook v. Corporation of Seaford, L. R., 6 ch. 551 ; 10 Eq 678 ; Wil- liams o. Evans, L R. 19 Eq 547 ; Coles v. Pilkington, L. R. 19 Eq. 174 ; Wilson V. West Harthlepool Ry. Co., 2 DeG. J. & S. 475 ; Wilton v. Harwood, 23 Me. 133, 134 ; Newton v. Swazey, 8 N. H. 9, 14 ; Miller v. Tobie, 41 N. H. 84 ; Wet- more V. White, 2 Caine Cas. 87, 109 ; Parkhurst v. Van Cortland, 14 Johns 15 ; Adams v. Rockwell. 16 Wend. 285 ; Harder v. Harder, 2 Sandf. Ch. 17 ; Casler v. Thompson, 3 Green. Ch. 59 ; Martin v. McCord. 5 Watts, 493 ; Syler -b. Eckhart, 1 Binney, 378 ; Simmons v. Hill, 4 Har. & McHen. 252 ; Harrison v. Hariison, 1 Mil. Ch. 331 ; Shepherd v. Bevin, 9 Gill. 32 ; Rowton v. Rowton, 1 Hen. & Man. (Va.) 93 ; Wilkinson u. Wilkinson, 1 Dessau. Ch. 201 ; Mims v. Lockett, 33 Geo. 9 ; Byi-d b. Odem. 9 Ala. 756, 764 ; Cummings v. Gill, 6 Ala. 562 ; Brock v. Cook, 3 Port. (Ala.) 464 ; Finucane v. Kearney, 1 Freeman, Ch. 65, 69 ; Farley v. Stokes, 1 Sel Eq Cas. (Pa.) 422 ; Blakeney v. Ferguson, 3 Eiig. (Ark.) 272 ; Ottenhouse v. Burleson, 11 Tex. 87 ; Dugan v. Colville, 8 Tex. 126 ; Johnson v. McGruder, 15 Mo. 365 ; Despain v. Cai-ter, 21 Mo. 331 ; Cummins v. Nutt, Wright (Ohio). 713 ; Moreland v. Le Masters, 4 Blackf. 383, £85 ; Underbill v. Williams, 7 Blackf. 125 ; School District No. 3 v. McLoon, 4 Wise. 79 ; Moiin v. Martz, 13 Minn. 191; Johnson v. Glancy, 4 Blackf. 94; Tibbs v. Barker, 1 Blackf. 58 ; Thornton v. Henry, 2 Scam. 218 ; Bomier v. Caldwell, Hai-ring. Ch. 67, and see ca^^e^ cited under section 117. In Crook ii. Corp'n of Seaford, L: R. 6 Ch. 551 ; 10 Eq. 678. a, municipal corporation passed a resolution, in ]8j0. to lease to the plaintiff the flat part of the sea beach opposite to his land, for 300 years, at a nominal rent. He took possession of the beach between lines drawn in prolongation of the sides of his lot, and built a wall and ten-ace along such part. In 1864, the corporation gave him notice to quit, and in 1869 brought ejectment. He then sued for a spe'ciflc performance. Held, a, good part performance, and the coi-poration bound, although their agreement was not under seal, and therefore not binding at law, and they were ordered to execute a lease. In Wil- liams V. Evans, L. R. 19 Eq. 547, A., a tenant in possession, made a verbal contract for a lease of thirty years with defendant. A., had contracted to sublet to B., and B. had expended money in repairs and alterations, with the knowledge and approval of the lessor. Held, as much a part performance as if made by A., who was entitled to a specific performance. In Coles v. Pilkington, L. R. 19 Eq. 174, a verbal agreement was made to allow plaintiflF to occupy a leasehold house for her life, on payment merely of the ground rent, rates, and taxes. She took possession, and on account of the agreement, changed her whole mode of life ; this was held a sufficient part performance. 180 t>l>i.VlF10 PhUiOMMANCM OF CONTRACTS. nent improvements, and thus changed the chaiacter of the property, it would be in the highest degree unjust for the oAvner, who has permitted these expenditures and alterations to be made in reliance upon the agreement, to interpose the statute and prevent the comple- tion of his contract, and at the same time retain and enjoy all the benefit of the additional value imparted to his land. For these reasons, the courts have never hesitated to assert and enforce the rule as above stated. There are important differences in the quality of the act considered as a part performance, between possession and the making of improvements. In the first place, mere possession might be explained by a tenancy at will, while expenditures upon perma- nent and valuable improvements cannot be reasonably accounted for, except upon the supposition of an actual interest or estate in the land, not depending upon any contingency, or liable to be suddenly terminated. Secondly. As the possession of a stranger cannot, in general, continue long without the owner's knowledge, it raturally follows, as has already been shown, that from the fact of such posses- sion without objection, a prima facie presumption arises that it was taken and has continued with the owner's consent, and no direct evidence of such consent is necessary; but, on the other hand, as improvements might easily be made without the owner's knowloilge, no such presumption arises from the mere fact that valuable and per- manent improvements have been made by the purchaser or lessee, and he must prove the vendor's consent thereto by additional evi- dence. Nec. 127. That the making of improvements shall be a part per- formance, they must possess certain qualities — as is true in the case of possession ; and these essential attributes I now proceed to describe : 1. The improvements must be of a kind which would nat- urally and reasonably be done under a contract, so as to indicate the existence of a contract to account for them ; they must be made on the faith of the contract, and must of course be subsequent to it.(l) This rule is a particular instance of the general principle which gov- erns all species of part performance, and haS already been discussed with sufficient fullness. If, therefore, improvements are made under Such circumstances, or by a person holding such relations to the legal owner of the land, that a contract need not be reasonably assumed in (1) Hamilton v. Jones, 3 Gill & J. 127; Byrne v. Romaine, 2 Edw. Ch. 445; Farley?). Stokea, 1 Sel. Eq. Cas. (Pa.) 422; Carlisle v. Fleming-, Harring. Ch. 421. See, also, cases illustrating' the same rule as applied to possession, ante, §§ 123, 125 ; Wood v. Thoraly, 58 HI. 464. MEMORANDUM REQUIRED BY STATUTE. 181 cirder to explain them, they will not, any more than mere possession, be availing as a part performance. (1) The opinion* has been main- tained that the improvements must not only be made upon the faith of the agreement and with the assent of the vendor, but also that they must have been actually stipulated for by its terms, since, as it is argued, they cannot otherwise be said to be in execution of the con- tract.(2) No decision, however, has turned upon this alleged require- ment, and the conclusion itself is drawn from a very technical notion of executing a contract. It is well settled that possession need not be provided for in the agreement, but if taken in pursuance of it — that is, because of it, such possession is none the less in execution of it. (3) If a verbal contract is made to sell and convey a tract of land, the purchaser becomes thereby vested with the equitable title, and any acts done upon the land by him as owner, or which proceed from and tend to show such ownership, are in fact done in execTUtion of the contract — in other words, they carry the contract into effect. No acts more clearly indicate a proprietorship in the purchaser, and therefore point more unequivocally to the agreement from which such proprie- torship arises, than the making of valuable and permanent improve- ments on the land ; and this result is evidently the same, whether the improvements were stipulated for or not; indeed, the making improvements, when the contract was utterly silent in reference thereto, is perhaps the more emphatic assertion of the purchaser's interest, of his equitable estate, and of his purpose to carry the agree- ment into effect. The opinion above referred to, plainly rests upon no foundation of principle, is opposed to the equitable theory of part performance, and is not sustained by decisions of authority. Sec. 128. 2. The improvements, in order to avail as a part per- formance, must not only be valuable, but must be permanent in their nature and beneficial to the estate.(4) "We have seen that when a (1) As, for example, improvements by a son made on land owned by his father. Eckert v. Eckert, 3 Penn. 332 ; Haines v. Haines, 6 Md. 435. (2) This position is taken by Mr. Roberts, who insists that unless the improve- ments are bargained for in the contract, they cannot be i-elied on as a part per- formance ; and the language of certain cases may be regarded as supporting this view. Roberts on Fraud, p. 135. (3) See ante, §§ 117, 123. (4) See cases ante, § 126 ; HoUis v. Edwards, 1 Vera. 159 ; Deane v. Izard, 1 Vera. 159 ; Da,venport v. Mason, 15 Mass. 92 ; Wolfe v. Frost, 4 Sandf. Ch. 72 ; Wack V. Sorber, 2 Whart. 387 ; Hamilton v. Jones, 3 Gill. & J. 127. In this last case, the plaintiff, a mill owner, had made a verbal agreement with the owner of adjoining land, for the purchase of a portion thereof. The plaintiff then, at his own expense, dug a ditch through said land by which to supply his own mill 182 SPECIFIC PERFORMANCE OF CONTRACTS- tenant jn possession relies upon his improvements to support a parol agreement for a rfenewal, they must be something more than the ordi- nary employment of the land, or the beneficial effects which would result from its customary use of the land according to the terms of his former holding. (1) The same principle must apply, under the changed circumstances, to every verbal contract for the sale or lease of land. Improvements, so far as they are to constitute a part per- formance, must go further than an ordinary use of the premises ; they must add some permanent and substantial benefit to the corpus of the soil. In the foot note I have collected a number of cases which show what acts have been held in compliance with the rule. (2) If the outlays have permanently benefited the estate, it is not required in addition, that they should have been judicious. There are two reasons for this conclusion : First, it would often require a long, difficult and perplexing examination if the court were bound to decide this collateral issue as to the expediency of the purchaser's proceedings ; and secondly, it would always be highly unjust, if the owner, who would retain the improvements confessedly valuable and beneficial to his property, were allowed to defeat his agreement upon the plea that they were injudicious. (3) Sec. 129. 3. The circumstances of the case, and the relations of the parties must be such that the loss of his improvements, resulting from a failure to complete the agreement, would be an actual sacrifice on the part of the purchaser. On this ground, it has been held that the vendee cannot enforce a specific performance of the agreemtut, when he has gained more by the possession and use of the land than he loses by giving up the improvements which he has made ;(4) or when he has been fully compensated for his outlays in making the improvements.(5) I cannot think that these decisions can be recon- with water. This act was held not a part performance of the contract, because, although the plaintiff expended money, the ditch which he dugf was no benefit to the land throug:h which it ran, but rather an injury ; it was a benefit only to other land owned by the plaintiff, and so did not meet the 'requirements of the sale. See, also, Ann Berta Lodge v. Leverton, 42 Tex. 18 ; Peckham v. Barker, 8 R. I. 17 ; Mims v. Lockett, 33 Geo. 9. (1) Ante, § 124. (2) Whether the improvements must amount to an occupation. Ackennan ■». Fisher, 57 Pa. St. 457, and see cases cited under section 117. (3) Whitbread v. Brockhurst, 1 Bro. C. C. 417, per Lord Thcrlow, " whether the money has been well or ill laid out is indifferent ; the fraud is the same." (4) Wack V. Sorber, 2 "Whart. 387. (5) Eckert 1!. Eckert, 3 Penn. 332 ; Ash v. Dag-gy, 6 Porter (Ind. ), 259. It may be remarked that the Pennsylvania courts have shown a strong bias against the entire MEMORANDUM REQUIRED BY STATUTE. 183 ciled -with the principles of equity, which are generally accepted as governing the subject of part performance. Equity does not, under any circumstances, permit the owner both to retain his land and to enjoy, without return, the benefit of the improvements which the purchaser has made on the faith of his contract, If the court refuses to enforce a verbal agreement because its terms are not proved with certainty, or because the acts of part performance are not sufficiently made out, it will nevertheless compel the vendor to compensate the purchaser for the fair value of whatever substantial improvements he has made.(l) The effect of improvements, in connection with posses- sion, has already been described under the preceding subdivision.(2) It should be remembered that many of the essential qualities and incidents of a possession, in order that it should constitute a part performance, are also necessary in the case of improvements ; espeei- doctrine of part performance, as a means of avoiding' the statute of frauds, and have restricted its operation within nai-row limits. It may well be doubted whether these decisions would be regarded as authoritative in states where the equitable jurisdiction is i-ecognized to its full extent. In Ann Berta Lodge v. Leverton, 42 Tex. 18, it was held that possession by the vendee, and his expendi- ture for improvements, of an amount not exceeding the sum rec^eived by him for the rents of the premises, did not amount to a sufficient part performance. Here the court utterly ignored the fact of possession as a sufficient part perfoi-mance in itself. In the case of Mims D. Lockett, 33 Geo. 9, the court laid down a very different, and in my opinion the correct doctrine ; it held that possession and the. making of impi'ovements by the vendee are a sufficient part perfoi'mance of a verbal conti-act of sale, without i-egard to the amount of benefits received by the vendee from the use of the land, in comparison with the sum expended by him for improvements ; that the value of these benefits equaled or exceeded the expendi- ture for improvements was immaterial, and the fact that the vendee had been compensated for the improvements by the use and income of the land, was no defense to his suit for a specific performa'.ice. This decision, in my opinion, rests firmly upon the principle which underlies the doctrine of part performance; while the few decisions which would virtually require the court, in every case, to strike a balance between the vendee's benefits and outlays, his receipts and ■ expenditures, and decide for or against him, according to the result of the balance beino- unfavorable or favorable to him — these decisions loose sight of the equitable basis of confidence and reliance upon the good faith of the vendor, on which the whole theory of part performance is rested. (1) Lord Pengall ■«. Ross, 2 Eq. Cas. Abr. 46, pi. 12 ; Parkhurstii. Van Cortland, 1 Johns. Ch. 273 ; Wack v. Sorber, 2 Whart. 387 ; Heft v. McGill, 3 Barr. 256 ; Harden v. Hays, 9 BaiT. 151 ; Anthony v. Leftwieh, 3 Rand. 25.") ; Goodwin v. Lyon, 4 Port. (Ala.) 297. Even in North Cai-olina, where the entire doctrine of part perfoi-mance taking a verbal contract out of the statute, has been I'ejected compensation is decreed to the vendee for his outlays, although he fails to obtain a performance of the agreement. Albea v. Griffin, 2 Dev. & Bat. Eq. 9 ; Baker V. Carson, 1 Dev. & Bat. Eq. 381 ; Dunn v. Moore, 3 Ired. Eq. 364. (2) See ante, § 117. 184 SPECIFIC PERFORMANCE OF CONTRACTS. ally the outlays must be made with the consent, express or implied, of the vendor, and this consent is not presumed from the mere fact of their being made ; knowledge on his part, and the absence of objec- tion, must at least ba proved. Sec. 130. The making of valuable improvements by a donee in pos- sessioTi, is also regarded by courts of equ.ty as furnishing a sufficient ground for decreeing the specific execution of a parol gift of lands, either when the gift is made to a relative, in anticipation of marriage, in the nature of an advancement, or when it is purely charitable. (1) Possession alone is not sufficient. A parol gift of land, even from father to son, will not be enforced unless followed by possession and by valuable improvements made by the donee, or unless there are some other special facts which would render the failure to complete the donation peculiarly inequitable and unjust. This rule, however, has no conaectiou with the statute of frauds. In order to grant its remedy of a specific execution, equity requires a valuable considera- tion — it never enforces a voluntary agreement. The statute of frauds is satisfied by possession as a part performance, and the general doc- trines of equity demand, in addition thereto, a valuable consideration. This latter demand is answered by the outlays, expenditures, and labors of the donee in making the valuable improvements as a conse- quence of the gift.(2) The doctrine, therefore, has been generally accepted that, when the donee takes possession and makes outlays upon valuable and substantial improvements, in execution of the (1) McLain D. School Directors, 51 Pa. St. 196. (2) Stewart v. Stewart, 3 Watts, 253, 255 ; Eckert ■». Eokert, 3 Penn. 332 ; Eckei-t u Mace, 3 Penn. 364, n. ; Pinckard v. Pinckard, 23 Ala. 649. In Stewai-t 11. Stewai't, supra, it was said : " To take a parol contract out of the statute, it is necessaiy not only that it be partly performed by delivery of the possession, but that it be on a valuable consideration paid, or secured to be paid ; or, in the case of a gift, that there be an expenditure of money or labor in consequence of it, which comes to the same thing' ; and this for the plain reason that no equity arises from the naked delivery of the possession, and without a specific equity, a chancellor would not interfere to compel a conveyance or execution of the con- tract." That equity does not enforce an executory promise to make a donation, or an executory voluntary agfreement to give or to create a, trust, although in writing, see estate of Webb, 49 Cal 542, and other cases cited in section two of this chaiiter, on the necessity of consideration. The following are additional cases illustrating the rules stated in the text. Qalbraith v. Galbraith, 5 Kans. 402. A verbal gift of land by father to his son, with agreement to convey upon cer- tain conditions, was held to have been part performed by the donee's taking possession, and making permanent improvements with the donor's consent. Neale v. Weale, 9 Wall. 1. A son being about to marry, his father agreed verbally to convey to the intended wife a certain piece of land, and she verbally agreed to MEMORANDUM REQUIRED DT STATUTE. 185 donation, or does other analogous acts, which would render a revoca- tion or refusal to complete inequitable, a parol gift of land will be specifically enforced, since the labor and expenditures of the donee supply a valuable consideration, while the possession and betterments constitute a part performance which obviates the statute of frauds. (1) This doctrine has been criticised in some American decisions, and wholly repudiated by others. (2) Sec. 131. Slight and temporary improvements or trivial outlays, however, do not raise an equity in favor of the donee to have the gift enforced; nor does the court grant its specific remedy when the expenditure was not made in consequence of the gift, nor, it seems, when the donee has been compensated for his outlays by the rents erect a house on it with hex- own money ; the mari-iag:e took place, the possession was delivered by the father, and the daug-hter-in-law built the house; upon these facts the father was decreed to speciiically perform his agreement by con- veyingf the land. (1) Surcome v. Penniger, 3 DeG. M. & G. 571 ; Floyd v. Buckland, 1 Freem. 268 ; Ungley v. XIngley, L. R. 4 Ch. D. 73 ; Freeman v. Freeman, 43 N. Y. 34 ; ■Williston V. Williston, 41 Barb. 635 ; Lobdell v. Lobdell, 36 N. Y. 327 ; France i>. France, 4 Halst. Ch. 650 j Syler v. Eckhart, 1 Binney, 878 ; McCluie v. McClure, 1 Barr. 374; Bums v. Sutherland, 7 Barr. 103; Eckert v. Mace, 3 Penn. & Watts, 364, n. ; Young v. Glendenning, 6 Watts, 509 ; Mahon v. Baker, 2 Casey, 519 ; Atkinson v. Jackson, 8 Ind. 30 ; Saco v. Henry, 39 Ind. 414 ; Bright v. Bright, 41 111. 101 ; Galbraith v. Galbraith, 5 Kans. 402 ; Neale v. Neale, 9 Wall. 1 ; Kings V. Thompson, 9 Pet. 204 ; Haines v. Haines, 4 Md. Ch. 133 ; 6 Md. 435 ; Runker V. Abell, 8 B. Mon. 566 ; Kurtz v. Hibher, 55 111. 514 ; Johnston v. Johnston, 19 Iowa, 74. (2) Repudiated in Ridley v. McNairy, 2 Humph. 174 ; Evans v. Battle, 19 Ala. 393 ; Foi-ward v. Armstead, 12 Ala. 124 ; Pinckard v. Pinckard, 23 Ala. 649 ; Boze V. Davis, 14 Tex. 331 ; questioned in Mooi-e v. Small, 7 Harris, 461, 4G9 ; Thorne v. Thorne, 18 Ind. 462. The courts, in these decisions, seem to have wholly misapprehended the ground upon which the equitable doctrine of part per- formance rests. The enforcement of a part-performed contract is never based upon the contract itself, for that is wholly covered by the statute of frauds ; it is based upon acts of the parties outside of their bargaining, actc which render the defendant's I'efusal to go on a cleai' fraud upon the plaintiff. Now, it is evident that exactly the same i-easons exist, and have exactly the same cogency, in the case under discussion, of a parol gift. Its enforcement is never based upon the donor's promise ; it is based upon acts done outside of and in addition to such pi'omise ; upon the donee's taking possession and making improvements on the faith and in execution of the gift, and thereby altering his own position, so that a i-estoration to his former situation would be impossible, and a refusal to pei-fect the donation by conveying the title and the consequent loss of his outlays, would be an act of glaring injustice and virtual fraud against the donee. The same equitable considei-ations which lead to the enforcement of a verbal agreement, must apply with like force to the enforcement of a parol gift, if a consideration has been supplied by the donee. 186 SPECIFIC PERFORMANCE OP CONTRACTS, and profits already received from the land.(l) The gift must be established by certain and unmistakable evidence, and the fact that the improvements were made in consequence of and in reliance upon it, must also be directly and unequivocally proved ; proof merely that the donee has received possession of the land, and has made improve- ments upon it, will raise no presumption of his purpose and intent, nor furnish a sufficient ground for the specific equitable relief.(2) If the donee, through lack of certain evidence, fails to establish the gift and to obtain its enforcement, he may, nevertheless, be reimbursed or compensated for the money and labor expended in reliance upon the donor's promise. (3) Sec. 132. In certain states the foregoing rule, as to parol gifts, has even been extended to parol licenses. In those states, therefore, a parol license to enter upon and occupy land of the licenser, and to do acts thereon, such as constructing a way or water-course, or building a permanent structure even, if partly executed by the licensee, so that injury, which is technically called irreparable, would be caused by its revocation, will be specifically enforced. The nature of the relief will, of course, depend upon the nature of the license and the acts done under it by way of part performance. In general, the actual remedy is an injunction to prevent a revocation, and restrain the licenser from interfering with the occupation and works of the licensee. (4) This rule is undoubtedly opposed to the common-law doctrine concerning licenses as it prevails in England, and in most of the American states. Sec. 133. 7. Although marriage, as has already been shown, is not alone a part performance of contracts made in consideration of it, yet an agreement made in consideration of marriage, or in antici- pation of marriage, or a parol gift to one or both of the intended (1) Wack V. Sorter, 2 Whart. 387 ; Neale v. Neale, 9 'Wall. 1 ; Young v. Glen- denning, 6 Watts, 509, per Gibson, C. J. : " Slight and temporai-y erections for the tenant's own convenience, give no equity ; but an indefeasible right may grow out of permanent improvements.'' The expenditures must be shown to have been made on the faith of a prior donation. Eckert v. Eckert, 3 Penn. 332 ; West V. Flannagan, 4 Md. 36. (2) Hugus ■». Walker, 2 Jones, 173. (3) King V. Thompson, 9 Peters, 204 ; Evans v. Battle, 19 Ala. 398 ; Boze v. Davis, 14 Tex. 381. (4) The proposition stated in the text is most strongly maintained by decisions of the Pennsylvania courts. Rerick w. Kern, 14 Serg. & R. 267 ; Swartz «. Swartz, 4 Barr. 353 ; McKellip v. Mcllhenny, 4 Watts, 317 ; Pope v. Henry, 24 Vt. 560 ; Sheffield v. Collier, .S Kelly, 82 ; Wynn v. Garland, 19 Ark. 23 ; 2 Am. Lead. Cas. 570 (5th ed.). MEMORANDUM REQUIRED BY STATUTE. 187 spouses where the donor receives no pecuniary consideration, will be specifically enforced, if there are other independent acts of part per- formance in connection with the wedlock ; and the courts are, perhaps, not inclined, in such cases, to scrutinize these ancillary acts with severity, or to require that they should be in themselves of much importance.(l) Possession of the land is a sufficient act in case of an (1) Hammereley v. De Biel, 12 CI. & Fin, 64, n. ; Sureome v. Pennigei-, 3 DeG. M. & G. 571 ; Taylor v. Beech, 1 Ves. 297 ; Ungley i). Ungley, L. R. 4 Ch. U. 73 ; Neale v. Neale, 9 Wall. 1 ; Duval v. Getting, 3 Gill. 138 ; Goag-h v. Crane, 3 Md. Ch. 119 ; 4 Md. 311. In Neale v. Neale, 9 Wall. 1, taking possession and making pei-manent impi'ovements by the husband and wife, were held a sufficient part perfoi'mance of an ante-nuptial verbal promise by the father of the husbaud, to convey land to the wife, made in consideration of the intended marriage. In Sureome v. Pepniger, supra, a father, before the marriage of his daughter, told her intended huisband that he should give them certain leasehold property on their marriage. After the marriage, he put the husband in possession, and told the tenants to pay their I'ents to the husband, who also laid out some money on the property. This, it will be seen, was a parol gift in anticipation of the mar- riage ; the subsequent acts were held by the lord justices, a good jiart perfoi'm- ance, per L. J. TuKNEK : " In this case, there has been a. part performance by the delivery up of possession to the husband — a fact which has always been held to change the situation and rights of the parties — ^and there has been a con- sideiable expenditure by him on the property. There is, therefore, here, what was wanting in Lassence v. Tierney, viz. : acts of part pei'formance besides the man'iage. The difficulty in these cases is, that the statute of frauds presents an obstacle to suing upon the agreement. But it has been held in many cases, that if there be a written agreement after man'iage, in pursuance of a parol agi'ee- ment before the marriage, this takes the case out of the statute ; so does also part performance." The recent case of Ungley v. Ungley, supra, is still more emphatic. A father, in contemplation of the mai'i'iage of his daughter, verbally promised to give her a certain house as a present, and at once, after the mar- riage, put her and her husband in possession. The father was the owner of the premises, which were leasehold, subject to a charge in favor of a building society, payable in installments. He paid those which fell due in his life-time, and at his death there was a, balance of IIOZ, which fell due shortly after his death. Held, per Malins, V. C, that the verbal promise having been proved, the possession was a part performance, which took the case out of the statute of frauds ; that the intent of the donor was to give the house free from incum- brances, and so the l\Ol. was payable out of the personal estate of the deceased. This could hardly be called a contract made upon consideration of marriage, it was rathei' a gift in anticipation thereof; and yet possession, without the making of improvements, was held a sufficient part performance, probably because the marriage itself was to be regarded as a strengthning circumstance. In Ham- mersly v. De Biel, 12 CI. & Fin. 64, the lady's father and her intended husband . made a verbal agreement prioi' to the mai-riage, by which the father agi'eed to settle certain property on his daughter, and the husband agreed to settle a cer- tain jointure upon her. The intended husband executed his settlement as he had promised, and the marriage took place. It was held by Lord Ch. Cottbnham, that this execution of the settlement in pursuance of his contract by the husband, 188 SPECIFIC PERFORMANCE OF CONTRACTS. agreement; possession and improvements in case of a mere parol promise or gift. Under some very special circumstances, cohabita- tion, even between a husband and his wife, may be an act of part performance sufficient to take a contract, in which they are both ben- eficially interested, out of the st tute of frauds. (1) 8ec. 134. 8. The foregoing, especially possession and improve- ments, either alone or in connection with each other, or with payment, being' an act done by him over and above the marriage, was a sufficient part perfoi-mance to take the father's verbal agreement out of the statute, and it was accordingly enforced. On appeal to the House of Loi-ds, Lord Campbell and Lord Lyhdhukst were strongly of the same opinion with Lord Cottbkham, but the decision below was actually affirmed upon another view of the ease. Ham- mersley v. De Biel, 12 CI. & Fin. 45. In the more recent case of Warden v. Jones, 23 Beav. 487. where the ante-nuptial verbal agieement was between the intended husband and wife alone, and not between the husband and another person, it was held by Sir John Romilly, M. R., that the execution of a settlement by one of the parties, was not a sufficient part performance to render the agreement bind- ing as against the other. The distinction made by the M. R. in this case would, probably, not be accepted and followed in those American states which have so largely increased the wife's capacity to contract by various statutes, provided the doctrine of the preceding case (Hamraersley v. De Biel) was approved and adopted. If the execution of a written instrument, like a settlement of property, is an effectual part pei-formance of a verbal ante-nuptial agreement between one of the spouses and a third person, there can be no reason, by the modern law respecting married women which prevails in those states, why the same result should not follow in the case of a verbal ante-nuptial agreement between the two intended spouses. In Duval v. Getting, supra, a father. In contemplation of her marriage, made a verbal gift of land to his daughter ; the marriage and subse- quent possession by the daughter and her husband, were held to constitute a part performance. In Gough v. Crane, supra, a verbal ante-nuptial agreement was made by a woman and her intended husband, to the effect that he should be entitled absolutely to all her things in action, in consideration of a yearly allow- ance to be paid by him to her for pin money. At the marriage, the wife's bonds were delivered to the husband, and he afterwards paid her the pin money as agreed. After her death, this agreement was enforced against her representa- tives, the Maryland court of appeals holding that the delivery of possession was a good part performance. This decision has been criticised on the ground that, as the husband was entitled by law to the po&session of his wife's choses in action, the fact of his possession did not indicate any contract, and therefore lacked the first essential element of a part performance. Passing by this criticism, the decision is clearly opposed to the distinction talieu by the M. R. in Warden v. Jones, supra. (1) Webster v. Webster, 27 L. J. Ch. 115 ; S. C. on app., 4 DeG. M. & G. 437. A husband and wife having separated and executed a deed of separation, he covenanted therein with her trustee to pay her a certain annuity during the separation. Shortly before his death, he verbally promised to her and her ti-us- tee, that if she would return and live with him, he would continue 1o pay her the annuity for her life, and would charge it upon hi§ real estate. She, therefore, returned and cohabited with him until his death, but he did not fulfill his pai-t of MEMORANDUM REQUIRED BT STATUTE. 189 or with marriage, are by far the most common species of part per- formance with which the courts are called upon to deal. It will be noticed that they operate directly upon the land or other subject- matter of the contract, and involve some physical acts on the part of the plaintiff affecting its very corpus. I shall, in the present subdi- vision, collect all the remaining miscellaneous instances of part performance which do not admit of a more specific classification, and many of which are entirely independent of the subject-matter of the contract. 1. A verbal agreement to exchange land, when followed by possession, is thereby part performed and will be enforced ;(1) and the possesion by one of the parties will take the agreement out of the statute as to the other, who has not entered into the possession of his tract. (2) It has evon been held that the execution of a conveyance by one party, in pursuance of a verbal contract to exchange lands, is of itself a sufficient part performance upon which to enforce the agree- ment against the other party.(3) When two claimants of the same land verbally agree to compromise the controversy by dividing it between them, and the division is made, and each takes possession of his allotted portion, the bargain will be enforced at the suit of either.(4) The same rule is recognized and followed in the doctrine as to parol partitions and adjustments of boundaries heretofore stated. (5) Sec. 135. 2. Under very special circumstances, work, labor and services done or procured to be done by a vendee for the benefit of a vendor, if they cannot be adequately compensated by an award of damages, and if the plaintiff cannot be restored to his original posi- the agreement. After his death the agreement was enforced ag-ainst the hus- band's devisees, the court holding the act to be a part performance. It will be noticed here, that the part performance was something which did not directly act upon or affect the land itself. (1) Reynolds v. Hewett, 3 Casey, 176 ; Johnston v. Johnston, 6 Watts, 370 ; Miles V. Miles, 8 Watts & Serg. 136 ; Parrill v. McKinley, 9 Gratt. 1 ; Beebe v. Dowd, 22 Barb. 255 ; Stockley v. Stockley, 1 V. & B. 23 ; Neale v. Neale, 1 Keen, 672 ; Baker v. Scott, 2 T. & C. 603. Verbal agreement between A. & B. to exchange lands. A conveyed to B., who took possession. Held, A. was thereby entitled to a specific performance against B. (2) Lee v. Lee, 9 Ban-, 169 ; Dock v Hart, 7 Watts & S. 172 ; Reynolds v. Hewett, 3 Casey, 176 ; Jones v. Pease, 21 Wise. 644. (3) Caldwell v. Carrington, 9 Pet. 86. It is clear that such an act fully meets all the requirements of the doctrine. (4) Weed v. Terry, 2 Doug. (Mich.) 344. See Stapilton v. Stapilton and notes. Lead. Cases in Eq. v. 2. (5) See ante, 5 121. 190 SPECIFIC PERFORMANCE OF CONTRACTS. tion, will constitute part performance of an agreement to convey land in consideration of such services. (1) 3. Sometimes acts done to or by a third person, not a part.y to the suit, may be a part performance ; but they must, of course, be contemplated by the agreement, and done in pursuance of it ; and, it would seem, must materially affect both the plaintiff and the defendanl). Examples of this kind are given in the foot-note. (2) Acts of ownership, done on or towards the land by (1) Rhodes r. Rhodes, 3 Sandf. Ch. 279 ; see ante, § 114. This case is doubtless unusual, but I ihink the decision clearly conforms with the essential principles upon which the doctrine of jiart performance i-ests. The criticisms upon it exhibit the too common inability or unwillingness to understand and appreciate the effect of a general principle, and its application to an assemblage of facts different from those to which it is ordinarily app.ied. For a case, where in' a contract some- what similar to the foregoing, the part performance was held insufficient, see Cronk v. Tramble, 66 HI- 428 In Twiss v. George, 33 Mich. 253, a step-son, on his coming of ago, was about to leave Home and act for himself. His step- father thereupon agi'eed, verbally, that if he would remain at home and work the farm, and take care of the family, he should have a deed of one-half of the farm. The evidence showed this to have been a distinct and plain agreement, and not a mere vague expectation. The step-son substantially performed on his part, and it was held that he was entitled to a specific execution of the contract. (2) In Johnson v. Hubbell, 2 Stockt. Ch. 332, a father made an oral promise to a son, in presence of his daughter, to devise certain land to the son in consideration of the latter's conveying, at once, certain other land of his own to the daughter. The son thereupon executed the conveyance to his sister, and this was held to be a part performance of the fathers verbal agi-eement to devise. In Lee v. Lee, 9 Barr. 169, a father and son agreed that the father should purchase for himself a certain piece of land with money of the son's, and that the son should, in retui-n, take for himself a second ti-act belonging to the father. The father thereupon bought and took possession ot the first parcel, and the sfecond was assessed in the son's name, although he did not take possession of it. The act of the father in buying and taking possession of the first parcel, with the assessment of the second to the son (which fact, however, of itself, could have had little or no eSect), was held to be a part performance, and took the father's verbal agreement to convey the second parcel out of the statute. In this case, it is true, no act was done to or by a third person ; but at the same time the act constituting the part performance had no direct connection with the land which was the subject-matter of the contract sought to be enforced. In Crocker v. Higgins, 7 Conn. 342. an agreement was made between A., B., and C, whereby it wiis stipulated that if A. would convey certain land to B., he (B.) would lease the same to C. A. conveyed to B., and this was held a part pei'formance upon which B.'s undertaking to lease could be enforced on behalf o. C. In Parker v. Smith, 1 Coll. C. C. 608, the owner of a colliery had leased to foui- partners for a term of years, which had yet several years to run. He made a verbal agreement with the lessees, in substance, that the firm should dissolve ; that two of them should retire and give up all interest in the business, which should be thereafter conducted by the other two, they assuming all the existing liabilities, and he would thereupon give these two partners a new lease at a diminished rent. The firm was therefore dissolved, by the two specified members retiring ; the other two assumed all the liabilities, and MEMORANDUM REQUIRED BY STATUTE. 191 or on behalf of the vendee, do not always per se amount to a part per- formance. Thus, if a purchaser under a verbal contract does not take possession, nor make the requisite kind of improvements, the assess- ment of the land to him and his paying taxes on it, will not be suffi- released the out-going members thei-efrom, and carried on the business by them- selves. These acts between tlie two who went out and the two who continued, whereby the firm was dissolved, and the liabilities of the latter were increased, were held to constitute a part performance, and the verbal agreement to give a new lease was enforckjd. The decision has often been oi.ed with approval. On the other hand, when the vendee, in a verbal contract fur the purchase of land, has stipulated as a part of the agreement to lease the premises to a third person, his executing the lease is held not to be a part pei-formance. Whitchui-ch v. Bevis, 2 Bro. C. C. 559. And where ihe ven. Dutcher, 3 Green. Ch. 401 ; Brewer V. Wilson, 2 C. E. Green, 180 ; Brown v. Finney, 3 P. F. Smith, 373 ; Sage v. Mc'.Gnire, 4 Watts & S. 22S, 229 ; Charnley v. Hansbury, 1 Harris, 16, 21 ; Moore V. Small, 7 Harris, 461, 470 ; Rankin v. Simpson, 7 Harris, 471 ; McCue v. Jdhns- ton, 1 Casey, 306 ; Cnx v. Cox, 2 Casey, 375 ; Prye v. Shepler, 7 Barr. 91 ; Green- lee V. Greenlee, 22 Pa. St. 225 ; Burns v. Sutherland, 7 Barr. 103 ; Hugiis v. Walker, 2 Jones, 173 ; Shepherd v. Bevin, 9 Gill. 32 ; Owings i) Baldwin, 1 Md. Ch. 120 ; Shepherd v. Shepherd, 1 Md. Ch. 244 ; Bear. Max- well, 1 P. Wms. 618 ; Battura v. Sellers, 6 Har. & Johns. 249 ; Lambert v. Wat- son, 6 Har. & J. 2.i2 ; Wilson v. Watts, 9 Md. 436 ; Walker «. Hill, 6 C. E. Green, 191 ; Glass v. Hulbert, 102 Mass. 24, 39 ; Purcell -w. Miner, 4 Wall. 513. This doctrine has been applied in some of the decisions, both when the promise extends to the whole agreement, and when it extends only to some stipulation or term which has been omitted under a parol agreement that it shall be as binding as though inserted ; and the suit is brought, and the attempt is made to add it to the written contract, or to treat the writing as though the verbal terra was part of it. Glass V. Hulbert; Batturs v. Sellers; Wilson ti. Watts; Walker «. Hill, supra. In Wilson «. Watts, the doctrine'was thus laid down: "Where there is a written contract in relation to land, and some of the terms or provisions in the verbal agreement of the parties are not included in the writing, but omitted by design, even on the express understanding that such provisions shall be carried into effect in the same manner as if they constituted part of the written instru- ment, if there is no fraud, undue influence, surprise or mistake, either in the making of such contract, or in the reducing it to writing, parol evidence will not be admitted to enforce the omitted provisions, or for the purpose of contradicting, adding to, or varying the written instrument, although subsequently to its execu- tion, one of the parties has fraudulently refused to comply with the omitted provisions, and in open violation of good faith and fair dealing, insists upon his right, under the statute of fi>auds, to have the contract, as written, carried into effect." So far as the doctrine of these decisions would require that the writing should be obligatory and enforced, although it does not contain all the terms of the agreement, although some of the terms have been purposely omitted, it cannot be reconciled with many other cases, nor, in my opinion, with the principle that the memorandum must contain all the material terms upon which the parties have agreed. See, for example, Jervis v. Benidge, L. R. 8 Ch. 351, the facts of which are given, ante, } 91. (1) See post, §§ 246-262. 198 SPECIFIC PERFORMANCE OF CONTRACTS. suggested in some doubt. The general rule was settled, that a con-' tract admitted by the defendant must be substantially the same with that alleged in the bill, in order that the plaintiff can avail himself of such admission. (1) The court has, however, in the condition of the pleadings and proofs described, granted relief to the plaintiff, by decreeing performance of the contract as admitted by the defend- ant.(2) On the other hand, this mode of proceeding has been disap- proved, and very decidedly, by Lord Redesdale, who held that the acts of part performance could only be applied to the very contract set up by the plaintiff, and it alone could be enforced. (3) The rule to be deduced from the more modern American authorities, is that the court, in such a case, has a discretionary power to enforce the agreement alleged by the defendant, without driving the plaintiff to another action, but is not bound to do so ; and this conclusion is certainly in complete harmony with the theory and provisions of the reformed codes of procedure, adopted in a large number of the states.(4) Sec. 140. Admission of the contract by the defendant's answer. — In addition to part performance there are two other causes which operate to take a verbal contract out of the statute of frauds — or, to speak more accurately, which furnish a ground on which a court of equity will specifically enforce such a contract, notwithstanding the statute. These two conditions I now proceed to discuss. When a verbal contract is alleged by the plaintiff, and the defend- ant admits it in his answer, without, at the same time, interposing the statute of frauds as a defense in his pleading, such contract will be established and enforced by the decree of the court ; no evidence is necessary to prove it, and no part performance is requisite.(5) (1) Legal V. Miller, 2 Ves. Sen. 299 ; Leigh v. Haverfield, 5 Ves. 452 ; Willis v. Evans, 2 Ball & B. 228 ; Lindsay v. Lynch, 2 Sch. & Lef. 1 ; Harris v. Knicker- backer, 5 Wend. 638. (2) As in Mortimer v. Orchard, 2 Ves. 243, heretofore cited. Lord Loughborough said, that though, in strictness, the bill ought to be dismissed, yet, as there had been part performance of some agreement between the parties, and that set up by defendants was established by a strong preponderance of evidence, he would order it to be enforced ; but he required plaintiff to pay the costs. (3) Lindsay v. Lynch, 2 Sch. & L. 1 ; and see Willis v. Evans, 2 Ball & B. 228; Harris v. Knickerbacker, 5 Wend. 638. (4) See cases cited post, under §§ 252-258. (5) Guntac. Halsey, Ambl. 586 ; Simondsnn v. Tweed, Gilb. 35 ; Rondeau D.Wyatt, 2 H. Bl. 68, per Loi'd Rosslyn ; Att'y-Gen. v. Day, 1 Ves. Sen. 221 ; Lacon v. Mertins, 3 Atk. 3 ; Collington v. Fletcher, 2 Atk. 155 ; Crayston v. Banes, 1 Eq. Cas. Abr. 19 ; Prec. Ch. 203 ; Child v. Godolphin, 1 Dick. 39 : Whitchurch v. Be vis, 2 Bro. C. C. 566, 567 ; Spurriur v. Fitzgerald, 6 Ves. 548, 555 ; Cooth v. Jackson, 6 Ves. 12; Atfy-Gen. v. Sitwell, 1 5r. & C. Exch. 583; Newton v. MEMORANOVM REQUIRED BY STATUTE. 199 Although this rule is firmly established, the cases and text-writers are not agreed as to the reasons for its adoption. Three principal ones have been suggested: First. It has been said that such au admission by the defendant obviates all the dangers which the statute was intended to prevent ; that the object of the legislature was to remove all the opportunity and occasion for frauds and perjuries which are furnished by mere parol testimony, and the written statements by both the pai-ties in their pleadings as to the terms of their agree- ment, leave no possible room for any fraud or perjury.(l) Secondly, it has been suggested, and especially by Judge Story, that the answer signed by the defendant, or by his attorney, and admitting the con- tract as set forth by the plaintiff, technically and literally satisfies the very demands of the statute, since it is a note or memorandum in writing signed by the party to be charged, or by his agent duly authorized.(2) Thirdly, it is argued that an admission of the con- Swazey, 8 N. H. 9, 13 ; Tilton v. Tilton, 9 N. H. 386, 389 ; Harris -o. Knickei- backer, 5 Wend. 638 ; Cozine v. Graham, 2 Paig-e, 178, 181 ; Vaupell v. Wood- ward, 2 Sandf. Ch. 143. 144; Jervia v: Smith, Hoff. Ch. 470, 476; Chetwood D. Brittain, 1 Green Ch. 430 ; Dean v. Dean. 1 Stockt. Ch. 425 ; Ilouser v. Lamont, 55 Pa. St. 311 ; Artz v. Grove, 21 Md. 4.:6 ; Albert v. Ware, 2 Md. Cli. 109; 6 Md. 66 ; Hall v. Hall, 1 Gill, 383, 3r6 ; Aryenbrigrht v. Campbell, 3 Hen. & Mimf. 141; Holling.Aead v. McKenzie, 8 Geo. 457; Kirliseyi). Kirksey, 30 Geo. 156; Patterson v. Ware, 10 Ala. 445, 447 ; Baker v. Hollobough, 15 Ark. 322 ; G.irner V. Shebblftfield, 5 Tex, 553 ; Sneed v. Bradley, 4 Sneed. 301 ; Woods v. Dille. 11 Ohio, 455 ; Minus v. Morse, 15 Ohio, 56 j, 571 ; Switzer v. Skiles, 3 Gilm. (111.) 529, 534; Tartleton v. Vietes, 1 Gilm. (111.) 470, 473; Dyer v. Martin, 4 Scam. (111.) 146 ; Thornton v. Henry's Heirs, 2 Scam. 219, 220 ; Esmay v. Grotser, 18 111. 483 ; McGowan v. West, 7 Mo. 569 ; Burt v. Wilson, 28 Cal. 133. In Ridg-way V. Wharton, 3 De Gex, M. & G. 689 ; 6 House of L. Cases, 238, Lord Chancellor Cranworth said, that " when a defendant, by answer, admits an ag-reement, if he means to rely on the fact of it not being- in writing' and signed, and so being invalid by reason of the statute of frauds, he must say so ; othei'wise he is taken to mean that the admitted agreement was a written agreement, good under the statute, or else that on some other ground it was binding on him." This i-ula is carried so far, at all events in England, that in Skinner v. M:.Douall, 2 DeG. & Sm. 205, where the defendant, in his answer, alleged that no formal note of the agreement was made, and denied that any binding agreement ever existed, but did not expresly claim the benefit of the statute of frauds, V. C. Knight Bruce held, at the heaiing, that he was not entitled to the benefit of the statute. See Hays V. Actley, 4 DeG. J. & S. 34 ; 12 W. R. 64. In Sneed v. Bradley, 4 Sneed (Tenn.), 331, it was held that only the parties to a contract, and those claiming under them, as heirs or purchasers, have the right to set up the statute as a defense; that a general creditor or subsequent judgment-creditor cannot avail himself of it. (1) See Rondeau v. Wyatt, 2 H. Bl. 68, per Lord RosSLYif, and cases cited under the preceding note. (2) Story on Eq. Jur., § 755. 200 SPECIFIC PERFORMANCE OF CONTRACTS. tract, without at the same time setting up its invalidity or the impos- mbility of enforcing it resulting from the statute, is a deliberate and formal waiver of all benefit which the defendant might have derived from the legislation — this benefit being personal, and therefore capable of being waived. (1) Both the first and second of these reasons are open to an objection fatal to each of them. If sound, they should apply with equal force to the case where the defendant sets up and relies on the statute after admitting the contract, and to that where he does not set up the statute. If an admission of the agreement obviates the dangers of perjury, or constitutes itself a memorandum, this would be none the less true if the diifendant should add to such admission a plea of the statute as a defense. The rule cannot be accounted for on either of these grounds; its explanation must be found in the third reason, which alone is consistent with other doc- trines. In some cases it has been held that where the defendant merely makes default by not answering, and the bi.l is thus taken pro confesso, the contract, as alleged by the plaintiff, is thereby admitted, and the requirements of the statute are obviated.(2) This particular rule, however, is not in accordance with the procedure pre- vailing in New York and many other states, which requires, where default is made in such kind of actions, the plaintiff to prove a prima facie case as alleged by legal evidence satisfactory to the court. Sec. 141. Where an admission has been thus made by the defend- ant its effect is permanent, and is not confined to the issue raised by those identical pleadings. If, therefore, after having made such admission, the defendant should die before decree, the effect would extend to and bind his heirs or personal representatives, and the con- tract could be enforced against them in the suit revived for that pur- pose. (3) And after admitting the contract the defendant cannot, in (1) See cases cited or referred in last note but one. (2) Newton v. Swazey, 8 N. H. 9 ; Whiting- i>. Gould, 2 'Wise. 552 ; Esmay v. Gorton, 18 111. 483 ; James v. Rice, 1 Kay Ch. 23. (3) Atty.-Gen. v. Day, 1 Ves. Sen. 218, 221 ; Lacon v. Mertins, 3 Atk. 3. It was held in early cases that where a vendor dies, and a bill is filed by his personal representatives against his heir and the purchaser, an admission by the purchaser would bind not only himself but also the vendoi''s heir. Lacon v. Mertins, 8 Atk. 1 ; Potter v. Pottei-, 1 Ves. Sen. 437. This doctrine has been abandoned. In order that either the heir, or the personal representative of a deceased party, may be able to enforce the conti-act against the other, the deceased at the time of his death must have been legally bound to pei-form the contract ; although either his( personal i-epresentative or his heir may be willing to abide by the agreement, in the absence of any binding quality, the other can take any objection which the deceased contractor might have taken had he been living. Buckmaster v. Harrop, 7 Ves. 341 i 13 Ves. 456. MEMORANDUM REQUIRED BY STATUTE. 20l his answer to an amended bill or complaint filed by the plaintiff, ■withdraw such admission and set up the statute as a defense.(l) On the other hand, the rule is equally well established, both in England and in this country, that the defendant, although admitting in his answer the parol agreement charged in the bill or complaint, may at the same time insist upon its want of conformity with the require- ments of the statute of frauds, and such defense will constitute a com- plete bar to a decree in favor of the plaintiff, unless he can show a part performance in conformity with the principles hereinbefore stated.(2) Sec. 142. Where a compliance with the statute has been prevented hy actual fraud.~\t was stated in section 140 that, in addition to part performance, there are two other causes which furnish a ground for the enforcement in equity of a verbal contract notwithstanding the statute of frauds. One of these has just been considered, and I now proceed to treat of the other. It is the case of actual, positive fraud. It is a familiar and thoroughly established doctrine of equity, that the statute which was enacted for the purpose of preventing fraud, shall not be made the instrument of shielding, protecting, or aiding the party who relies upon it, in the perpetration of a fraud, or in the consummation of a fraudulent scheme.(3) The principle was clearly stated by Lord Eldon, as follows : " Upon the statute of frauds, though declaring that interests shall not be bound except by writing, cases in this court are perfectly familiar, deciding that a fraudulent use shall not be made of that statute ; where this court has interfered against a party meaning to make it an instrument of fraud, ahd said that he should not take advantage of his own fraud, even though the statute has declared that, in case those circumstances do not exist, the instrument shall be absolutely void. One instance, in the case of instructions upon a treaty of marriage^the conveyance being abso- lute, but subject to an agreement for a defeasance — which, though not (1) Spurrier v. Fitzgerald, 6 Ves. 548. This doctrine has been extended to the case when defendant in his answer confessed a contract, and the plaintiff, with leave of the court, amended his bill so as to alleg-e the agreement thus admitted ; defendant was not permitted to retract his admission and interpose the statute as a defense. Patterson v. Ware, 10 Ala. 444. (2) Moore v. Edwards, 4 Ves. 23 ; Cooth D. Jackson, 6 Ves. 12 ; Rowe v. Teed, 15 Ves. 375 ; Blag