(JiDrnrll IGam i>rl]nnl ICtbrai^y MarsljaU iEquttij (Enllcrttou (Sift 0f IE. 31. MarHljaU. iC.ffi. 1. 1894 CORNELL UNIVERSITY LIBRARY 3 1924 084 257 462 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924084257462 EQUITY MISSOURI EDITION AN ANALYSIS AND DISCUSSION OF MODERN EQUITY PROBLEMS, WITH NOTES ON MISSOURI CASES. BY GEORGE L. CLARK, S. J. D. PROFESSOR OF LAW. UNIVERSITY OF MISSOURI COLUMBIA, MISSOURI E. W. STEPHENS PUBLISHING COMPANY 1920 Copyright, 1919. By Geoege L. Clabk. ROSCOE POUND AND THE MEMOBT OP JAMES BARR AMES. PREFACE The main purpose of th.e following pages is to presen't, analyze and discuss various equity problems. For this reason no space has been used in accumulating authorities. It is believed that the increasing number of decided eases will sooner or later require that more attention be given to the discussion of principles. The author wishes to acknowledge his special in- debtedness to the Harvard Law School class room lec- tures of Professor Ames in 1902-4 and of Professor Pound in 1912-13; to the collections of cases on equity subjects by Professors Keener, Ames, Scott and Boke ; and to the articles and notes in the law reviews of Harvard, Columbia, Michigan and Yale. Parts of the book have already appeared, in sub- stancei, in the December, 1917, numbers of the Harvard, Columbia and Michigan law reviews and are used here by the permission of the publishers of those reviews. University of Missouri, May 28, 1919. G. L. C. TABLE OF CONTENTS. CHAPTER I. INTRODUCTION. A. Bbiet History of Equity. 1. Equity as a stage in our legal development. 2. Development of Roman and English law contrasted. 3. The English courts before equity. 4. The English court of chancery or equity 5. The defects in the common law. 6. Administration of equity. B. Limits and Nature of Equity Jubisdiction. 7. Possibilities of equity jurisdiction. 8. Limitations on the existence of equity jurisdiction. 9. Equity acts in personam, not in rem. 10. Decree of an equity court does not affect the legal right. 11. Commanding an act within the jurisdiction which affects property outside. 12. Statutes giving jurisdiction in rem. 13. Enjoining acts abroad — suits abroad. 14. Decrees involving aflftrmative acts abroad. 15. Rule and discretion. Importance of discretion in equity. 16. Equity will not be ousted because law courts have adopted an equitable remedy. C. Maxims of Equity. 17. Nature and value of maxims. 18. Where there is a right there is a remedy. 19. Equity regards substance rather than form. 20. Equity regards that as done which ought to be done. 21. Equity imputes an intent to fulfill an obligation. 22. Equity acts specifically and not by way of compensation, 23. Equity prevents a multiplicity of suits. 24. Equity delights to do justice and not by halves. 25. Equality is equily. (IX) X CONTBN-TS. 26. Equity follows the law. 27. Between equal equities the law will prevail. 28. Between equal equities the first in order of time prevails. 29. He who seeks equity must do equity. 30. He who comes into equity must come with clean hands. 31. Equity aids- the vigilant. 32. A rule of equity will never be applied to reach an inequitable re- sult. D. 'Definition and Classification. 33. Definition of equity. 34. Classification of equity. CHAPTER II. SPECIFIC PERFORMANCE OF CONTRACTS. A. In General. 35. Scope of the subject. 36. The primary right in specific performance. 37. Specific performance not exclusively an equitable remedy in all jurisdictions. 38. Specific performance or specific reparation? 39^ Is there a right to break a contract or only a power? 40. Alternative performance — liquidated damages — penalty 41. The requirements of certainty. B. Affibmativb Contracts. I. Contracts for the sale and purchase of interests in land. 42. Hard and fast rule as to inadequacy of damages. 43. Some exceptional cases. / '" II. Contracts relating to property other than land. 44. Ordinary chattels. 45. Defendant vendor execution proof or insolvent. 46. Chattels having sentimental value — unique chattels. 47. Unique chattels continued — patents and copyrights. 48. Specific performance to the seller — mutuality. III. Specific performance given hecause damages at law are con- jectural. 49. In general. 50. Annuities — dividends against bankrupt's estate. 51. Contracts to give security. CONTENTS. XI 52. Contracts to Insure. 53. Contracts to deliver in installments. IV. To void irreparable injury to the plaintiff. 54. In general. 55. Contracts to exonerate. 56. Necessary articles procurable only from the defendant. 57. Shares of stock. V . Contracts for continuous performance. 58. In general — difficulty of supervision. 59. Contracts to build. 60. The public interest a possible element. 61. Contracts to repair. 62. Contracts for personal service. VI. Miscellaneous cases. 63. Contracts to lend money. 64. Awards — contracts for arbitration or valuation. 65. Contracts to form a partnership. C. Negative Contracts. 66. In general. I. Defendantsl promise entirely negative. 67. Covenant not to sue — circuity of action. 6,8. Promise not to compete with the plaintiff. 69. Promise not to reveal trade secrets. 70. Covenant restricting the use of land — "mandatory injunction." 71. Miscellaneous cases of negative promises. II. Defendant's undertaking partly affirmative. 72. Lumley v. Wagner. 73. (1) Affirmative promise not specifically enforcible. 74. (2) No separate consideration for the negative promise. 75. (3) The negative promise incidental to the affirmative. Criticism of Lumley v. Wagner. 76. (4) Both promises had been broken by the defendant. 77. (5) Plaintiff damaged by both breaches. 78. (6) Lack of mutuality of remedy- — lack of mutuality of per- formance. 79. Same — employment of substitute by the plaintiff. 80. (7) An express negative promise, 81. (8) The defendant's services unique. Xn CONTENTS. n. Relief Fob and Against Third Pebsons — Equitable Sbevitudes, 82. Assignability of contracts at law and in equity. '83. The creation of a property right in the purchaser. 84. Express trusts — constructive trusts. 85. Limitation of constructive trust doctrine — 'bona fide purchase lor value without notice. 86. Transfer of land by vendor or lessor. , 87. Assignability of specifically enforcible option. 88. Bankruptcy of vendor — of purchaser. 89. Contract to devise or bequeath property. 90. Right of a beneficiary of a contract to sue in equity. 91. Specific performance , given to protect purchaser's right to se- curity. 92. Specific performance against assignee of purchaser. 93. Rights in another's land at common law. 94. Rights in another's land in equity. 95. fiasis of plaintiff's right in THilk v. Moxhay — unjust enrichment. 96. Real basis for plaintiff's right in Tulk v. Moxhay. 97. Wlio are bound by equitable servitudes. 98. Who may enforce equitable servitudes. 99. Equitable servitudes attaching to after acquired property. 100. Restrictive agreements as to a business. 101. The formality essential to the creation of equitable servitudes. 102. Whether equitable servitudes may require afilrmatlve action. 103. Mutual covenants in general building scheme. 104. Failure of purpose of restriction. 105. Public policy against enforcing restriction. 106. Equitable servitudes upon and for the benefit of chattels. 107. Effect of plaintiff's default or acquiescence. E. Consequences of Right of Specific Pebformance. 108. Devolution of purchaser's rights and obligations. 109. Devolution of vendor's rights and obligations. 110. Devolution of equitable real property rights. 111. Options— devolution of option holder's rights. 112. Options — devolution of rights of the other party. 113. Rights of purchaser's widow or widower. 114. Rights of vendor's widow or widower. 115. Voluntary and involuntary transfers of vendor's rights. 116. Voluntary and involuntary transfers of purchaser's rights. 117. Liability of vendor or purchaser for waste. 118. Benefit of accruing profit and risk of. accidental loss. 119. Risk of loss — criticism of the prevailing rule. CONTENTS. XIII P. Paetial Pekfobmance with Compensation. 120. Effect of breach by plaintiff in action at law. 121. Effect of breach by vendor upon his suit for specific performance. 122. Suit by purchaser for specific performance with compensation. 123. Same — criticisms of the doctrine. 124. Limitations of the doctrine. G. Defences. I. Lack or inadequacy of consideration. 125. Consideration in uses and trusts. 126. Consideration necessary in specific performance. 127. Same — options — meritorious consideration. 128. Adequacy of consideration. II. Title not marketable. 129. Development of doctrine requiring marketable title. III. Statute of Frauds — Part performance — Fraud. 130. Statute of frauds. 131. Payment of purchase money. 132. Taking possession by vendee or lessee. 13/3. Continuance in possession. 134. Taking possession and improvements. 135. Modem attempts to explain doctrine of part performance. 136. Inreparable injury without change of possession. 137. Personal services for promise' to devise. 138. Oral promise to make a gift. 139. Oral agreements for easements. 140. Relief for plaintiff solely in equity. 141. Fraudulent representation in regard to the memorandum. 142. Other fraudulent representations. IV. Plaintiff's default or laches. 143. Conditions precedent in bilateral contracts. 144. Failure to comply With terms of option. 145. Plaintiff's breach of his own promise as a bar. 146. Representations as to intent not fulfilled by plaintiff. 147. Plaintiff's Insolvency. 148. Breach by plaintiff acted upon Justifiably by defendant. 149. Effect of mere delay by plaintiff. 150. Effect of plaintiff's delay coupled with other circumstances. 151. Time expressly made of tlte essence. XIV CONTENTS. 152. Time made of the essence by nature of the property or other circumstances. 153. Tender of performance by vendor. 154. Specific performance and the statute of limitations. 155. Foreclosure of purchaser's property right. V. Fraud, misrepresentation and concealment. 156. Rescission and specific performance. 157. Active misrepresentation or concealment by a fiduciary. 158. Misrepresentation by a non-fiduciary. 159. Non-disclosure or concealment by a non-fiduciary. 160. Innocent third person injured by plaintiff's fraud. VI. Mistake — Sharp practice. 161. Mistake as a ground for reformation or rescission and as a de- fence to specific performance. 162. Mistake of the defendant caused innocently by the plaintiff. 163. Mistake coupled with sharp practice by plaintiff. 164. Non-negligent mistake coupled with great hardship. 165. Whether defendant may set up negligent mistake. 166. Mistake of law. 167. Ambiguity — surprise. VII. Hardship. 168. Hardship of defendant as §ole ground. 169. Hardship on others than defendant. 170. Hardship foreseen as a risk. VIII. Intoxicatiori. 171. Effect of intoxication of defendant at time of making contract. IX. Lack of mutuality. 172. Mutuality as a basis for giving relief. 173. Lack of mutuality as a basis for denying relief. I. Lack of mutuality of obligation. 174. II. Lack of mutuality of remedy. 175. (1) Plaintiff has defense of statute of frauds — (2) Plaintiff an infant at time of contract. 176. (3) Contract with a fiduciary — (4) Contract procured by fraud — (5) Contract with one who conveys property in fraud of creditors. CONTENTS. XV 177. (6) Complete performance by plaintiff. 178. il) Options. 179. (8) Failure of vendor to get title. (9) Contract with wife and husband. 180. (10) Lumley v. Wagner. 181.' III. Lack of mutuality of performance. CHAPTER III. SPECIFIC REPARATION AND PREVENTION OF TORTS. A. In General. 182. Analogy of torts to contracts. B. Waste. 183. Common law definition of waste. 184. Common law and statutory actions for waste. 185. Equitable remedies for common law waste. 186. Ex^nptlon from liability for waste — "equitable waste." 187. Same — persons affected by the doctrine. 188. Basis for the doctrine. 189. Equitable relief after waste has been committed. 190. The right to the proceeds of waste. C. Tbespass. I. Trespass to land. 191. Common law and equitable remedies for trespass to land. 192. Requiring the plaintiff to establish his right at law — early rule. 193. Same — later development. 194. Plaintiff in possession — (1) Trespass in the nature of waste. 195. Same — (2) Repeated trespasses. 196. Same — (3) Continuing trespasses. 197. Same — (4) Taking possession of part of plaintiff's land. 198. Same — (5) Legal remedy inadequate because of other circum- stances. 199. Defendant in possession. 200. Plaintiff a reversioner or remainderman. 201. Defendant insolvent. II. Trespass to chattels. 202. Remedies at law and in equity. D. Pmvate Nuisance. 203. Definition. XVI CONTENTS. 204. Remedies. 205. Essential elements — test. 206. Damage. 207. Legalizing nuisances. 208. Culpability of defendant. 209. Motive of defendant — spite fences— percolating -waters. 210. Joint actors — Independent actors. 211. Whether Issue at law must first be directed. 212. Balance of convenience — preliminary injunction. 213. Same — existence of nuisance. 214. Same — adequacy of damages. 215. Same — perpetual Injunction. B. Disturbance of Pmvate Basbiments. 216. Private easements distinguished from natural rights — remedies. 217. Light and air. 218. Right of way. 219. Land occupier's right of access to public way. F. Obstbuction of Public Rights. 220. Remedy of private Individual at law. 221. Remedy of private individual in equity. 222. Remedy of- public — purprestures. G. PuBuo Nuisance. 223. DefinltlQp. 224. Remedy of the public. 225. Remedy of private individual. H. CoMuoN Law Coptbioht — Statutoby Monopolies. 226. Common law copyright. 227. Patents. 228. Statutory copyright. I. Intebfebence with Trade Interests — Fbaud. 229. Trade secrets. 230. Trade marks. 231; Cases analogous to trade marks — unfair competition. 232. Protection of non-commercial names. 233. Other fraudulent representations to third party. J. Intebfebence with Contract and Business Relations. 234. Compelling or inducing breach of contract. 235. Interference with "probable expectancies" of an employer — strikes and boycotts. CONTENTS. XVII 236. Interference with "probable expectancies" of employee — the blacklist. 237. Interference with "probable expectancies" of a competitor — of a non-competitor. K. Defamation — Intekfkrbnce with privacy. 238. Disparagement of property. 239. Dispstragement of character — libel and slander. 240. Interference with privacy. L. Interference with Domestic, Social and Political Relations. 241. Interference with domestic relations. 242. Interference with social relations. 243. Interference with political relations. / CHAPTER IV. PREVENTION OP CRIMES AND CRIMINAL PRO- CEEDINGS. 244. Prevention of crimes. 245. Prevention of criminal proceedings. CHAPTER V. TRUSTS. A. Obibin, History and Classification. 246. Origin and history of uses. 247. Statute of uses and its results. 248. Uses not affected by the statute of uses. 249. Ways in which express trust may be created. 250. Classification of trusts. B. Trusts Compared with Similar Relations. 251. With a bailment. 252. With the relation of principal and agent. 253. With a debt. 254. Same — payment of interest as a test. 255. Same — a trust changed into a debt. 256. Same — trustee liable as if he were a debtor. 257. Same — remedies against debtor and trustee. 258. With contract for the benefit of a third person. 259. Same — English cases. 2S0. With an equitable charge. 261. With an assignment of a chose in action. 262. Same — partial assignments. 263. With an executorship. 264. With relation of vendor and purchaser. XVIII CONTENTS. C. Essentials to Creation and Existence of the Tbust Relation. 265. Language necessary to the creation of a trust, 266. Consideration — the law of uses. 267. Same — the law of trusts. 268. The statute of frauds. 269. The subject matter of a trust. 270. The cestui que trust — public or charitable trusts. 271. Same — private trusts. 272. The trustee— appointment and removal. 273. Same — disclaimer. D. Natdee of Cestiti's Intekbst. 274. Remedies of cestui against trustee and vice verity 275. Same — situs of property not important. 276. Direct and indirect remedies of cestui against third persons — laches of trustee. 277. Same — remedy of trustee against confederate. 278. Same — discharge of obligee by trustee; by cestui. Payments to trustee by obligor. 279. Remedies of third persons -against trustee and cestui — set oil. 280. Is the cestui's substantive right in personam or in remt B. Resulting and Constructive Tbusts. 281. Distinction between resulting and constructive trusts, I. Purchase money resulting trusts. 282. Origin of the rule. 283. Extent and limitations of the rule. 284. Rebutting the presumption — conveyance to a dependent. 285. Legislative changes. il. Intended trust fails. 286. Failure because of lapse, illegality or uncertainty. 287. Property not exhausted by intended trust. 288. Where transferee received pay for the property. III. (Gratuitous conveyance upon oral trust. 289. Gratuitous conveyance inter vivos — whether resulting trust. 290. Same — whether constructive trust. 291. Same — criticism of prevailing American rule. 292. Conveyance by will upon oral trust. CONTENTS. XII IV. Property acguired 63/ homicide. 29^3. Testator killed by devisee or legatee. 294. Ancestor, killed by prospective heir — insurance cases. V. Property acquired hy torongful use of another's property. 295. Purchase by trustee or other fiduciary. « 296. Purchase by convertor or disseisor. 297. Mingling of funds by trustee — tracing trust funds. 298. Same — mixture invested in property. VI. Property acquired ty fiduciary with his own funds. 299. Taking renewal of lease. 300. Fiduciary with authority to sell or to buy. F. Tbansfeb of Tbust Pbopebty. I. By act of the trustee. 301. Elements of bona fide i/urchase for value — (1) paying value. 302. (2) Getting title. 303. Same — transfer of choses in action. 304. Same — transfer of equitable interests. ' 305. (3) Without notice. II. By act of cestui. 306. Successive assignments — Dearie v. Hall. III. By Death. 307. Death of the trustee. 308. Death of the cestui. III. By disseisin or conversion. 309. Remedy of cestui against disseisor or converter. IV. By Marriage. 316. Marriage of the trustee. 311. Marriage of the cestui — dower and curtesy. 312. Same — rights of husband during coverture. V. By bankruptcy. 313. Bankruptcy of the trustee. 314. Bankruptcy of the cestui — "spendthnii" trusts. XX CONTENTS. VI. By act of creditors. 3.15. Creditors of the trustee. 316. Creditors of the cestui. G. Extinguishment of a Trust. 317. Methods of extinguishment H. Duties of a Trustee. r. As to conveyance of the trust property. " 318; The general rule. 319. Provision postponing cestui's right to a conveyance. II. As to possession, information and custody. 32G. Right of life cestui to possession. 321. Extent of duty to give- information. 322. Duty of custody. III. As to investment, collection and payment. 323. Standard of care — investments authorized by the creator of the trust. 324. Investments authorized hy courts of equity. 325. Depositing trust money in a bank. 326. Collecting debts due the trust estate — payments. 327. Extent of trustee's liability for breach. IV. As to delegating trust duties. 328. Right of transferee to office of trustee. . 329. Action by less than all the trustees. 330. Permissible employments of agents. CHAPTER VI. REFORMATION OF INSTRUMENTS. A. In General. 331. Invulnerability of written instruments at common law. 332. Standard for rectification. B. Bilateral Transactions. 333. Mutual mistake. 334. Same — correction of price. 335. Plaintiff's mistake caused innocently by the defendant. CONTENTS. XXI 336. Defendant cogbizant of plaintiff's mistake. 337. Same — option of reformation or rescission. 338. Fraud in performance of a contract or In reducing the bargain to writing. 339. Plaintiff alone mistaken, defendant innocent. 340. Mistake as to collateral matter. C. Unilateral oh Voluktary Transactions. 341. The Intent of the donor. 342. Relief tg th4|donor. 343. Relief against the donor — who are volunteers. 344. Reformation against representatives of deceased. D. Mistake of Law. 345. Historical development of the subject. 346. Present state of the law. E. Kind and Amount of Proof Required. 347. The so-called parol evidence rule. 348. Statute of frauds — English rule. 349. Same^minority view in the United States. 350. Same — prevailing American view. 351. Statute of wills. 352. Amount of proof required. P. Relief Fob and Against Third Persons. 353. Analogy to other equities. 354. Reformation against a married woman. G. Plaintiff's ConduSt as a Defense. 355. Lapse of time. 356. Negligence in failing to discover mistake. 357. Fraud on third person* — illegality. 358. Compromise. 359. Ratification — election of remedies. H. Miscellaneous. 360. Reformation as an independent equity, 361. Form of relief. 362. Execution sales — statutory formalities — foreclosure of mortgage. CHAPTER VII. RESCISSION. A. In General. 363. Rescission distinguished from reformation. 364. Rescission in equity and at law. 365. Rescission and specific performance. XXII GONTENTB. B. Mistake. 366. Intrinsic and extrinsic or collateral facts. 367. Mutual mistake. 368. Plaintiff's mistake caused innocently by defendant. 369. Defendant cognizant of the plaintiff's mistake. 370. Misunderstandings. 371. Plaintiff alone mistaken, defendant innocent. 372. Rescission of unilateral transactions. 373. Mistake of law — historical development. 374. Same— change of judicial decision. 376. Lapse of time. 377. Negligence in failing to discover the mistake. 378. Ratification — compromise. - 379. Placing the defendant in statu quo. C. Fbaud. 380. Does fraud alone give equity jurisdiction? 381. Action at law for fraudulent representation. , 382. (1) Representation made to the plaintiff — promise — opinion- intention. 383. (2) Representation not 'true in fact— suppression— concealment — non-disclosure. 384. (3) Defendant's belief in representation — negligent and innocent misrepresentation. , 385. (4) Defendant's intent that plaintiff act upon representation. 386. (5) Plaintiff's reliance upon representation — damage therefrom. 387. Non-actionable representations — intention as to price — "puffing" — ^prlce paid. 388. Representation of law. 389. Representation to third parties. 390. Representation by third parties. 391. Negligence in failing to discover fraud. 392. Lapse of time. 393. Ratification — election of remedies. 394. Putting defendant in statu quo. 395. Rescission at law — trover — replevin — assumpsit. 396. Conveyances in fraud of creditors. 397. Proof of fraud. D. Duress and Undue Influence. 398. Duress on the plaintiff. 399. Duress on third persons. 400. Undue influence. E. iLr-EdAtlTT.' 401. In general — unlawful cohabitation. CONTENTS. XXin 402. Gambling — marriage brocage. P. Breach of Contkact. 403. In general — c6nveyance of land for support. 404. Rescission to a grantee. ^ CHAPTER VIII. BILLS QUIA TIMET AND TO REMOVE CLOUD ON TITLE. A. Cancellation of Contbacts. 405. Scope of bills Quia timet. 406. Equitable defenses arising at inception of contract. 407. Equitable defenses arising after inception of contract. 408. Real defenses to contracts — jurisdiction quia timet. 409. Inadequacy of bill to perpetuate testimony. 410. Injunction against transfer of negotiable Instruments. 411. Effect of pendency of an action at law. 412. Conflict between state and federal decisions. B. Bnxs TO Remove Cloud on Title. 413. In general. 414. What constitutes a cloud on title. 415. Requirements of title and possession. 416. Inadequacy of other remedies. 417. Title by adverse possession — prevention of cloud. 418. Cloud on title to personalty — oral and written claims. 419. Form of relief — pendency of ejectment action. C. Othee Quia Timet Relief. 420. Tlie perpetuation of testimony. 421; Taking testimony de bene esse. 422. Bills to secure rights of future enjoyment. CHAPTER IX. BILLS OF INTERPLEADER 423. In general. 424. Applicant must show a reasonable doubt. 425. Must one claimant be entitled? 426. No collusion with either claimant 427. Applicant's interest in the res. 428. Other relief inadequate. ' 429. Part of the claimants non-resident. 430. Claims mutually exclusive — independent liability. 431. The same debt, duty or thing. 432. Privity between claimants — land. 433. Same — property other than land. 434. Applicant a tort feasor. XXIT CONTENTS. 435. Judgment or verdict against applicants — laches. 436. Miscellaneous— bills In the nature of a bill of Interpleader. CHAPTER X. BlUbS OF PEACE. 437. Purpose and Scope. A. To Avoid ob Pbevent Numebous Suits Between one and Many. 438. Joinder distinguished. 439. Claim of an exclusive property right. 440. No claim of an exclusive property right 441. Same — tort cases giving relief. 442. Same — tort cases denying relief. 443. Collection of void taxes. 444. Contractual and statutory pecuniary obligations. B. To Avoid oe Pbevent Ntjmebous StriTs of One Against Onb. 445. Bill to quiet title — ejectment. 446. Same — repeated actions of trespass. 447. Numerous criminal prosecutions. CHAPTER XI. MISCELLANEOUS TOPICS. 448. Equitable conversion. 449. Account. 450. Subrogation. 451. Indemnity or reimbursement. 452. Contribution. 453. Exoneration. 454. Marshalling. 455. Creditors hills. 456. Equitable mortgages. 457. Penalties and forfeitures. 458. Infants, idiots and lunatics. 459. Ademption, and satisfaction. 460. Lit pendens. TABLE OF CASES Aaron's Reefs v. Twiss 159 Abbott V. Dow 337 v. James 129 V. Sunder 128 Abergarw Brewery Co. v. Holmes 97, 100 Abernethy v. Hutchinson . . . 226 Acheson v. Miller 452 Acker v. Priest 2bl Ackerman v. True 219 Ackroyd v. Smithson 448 Acton V. Blundall 209 Adams, In re Ill V. Adams 273 V. Gillig 382 V. Messenger ....47, 48 V. Weare 170 V. Williams 322 Adderley v. Dixon 48, 50 Adler V. Metropolitan etc. R. R 220 Agar V. Macklew 64 Ager V. Peninsular Co 228 Ahrens v. Jones 292 Albany City Sav'gs Inst'n v. Burdick 356 Albea v. Griffin 134 Alden v. Gregory 392 Aldrich v. Cooper 454 Aleck V. Jackson i36 Alexander v. McTeck 455 Allen V. Impett 257 V. Watts 448 AUerton- «. Belden 409,412 Altman v. Royal Aquarium Soo'y 68 Alton V. Nat'l Bk 388 (xxv) [References are to sections.] Altro V. Gowland 352 American Ass'n Baseball Club V. Pickett 77, 80 Law Book Co. v. Edward Thomp- son Co 234 Mfa Co. V. Lind- • gren 219 Nat'l Bank v. Fidel- ity Co 278 Sugar Refining Co. V. Fancher 297 I Steel etc. Co. v. Wire Drawers' Union 441 Amerman v. Dean 104 Ames V. Scudder 327 Amsterdam Knitting Co. v. Dean 206 Anderson v. Lemon 299 V. McDaniel 379 Andrews v. Andrews . . . 342, 361 V. Berry '406 V. Dashler 416 V. Kingsbury 68 Angell V. Angell 421 Angle V. Chicago R. Co 234 ' Anglo-Algerian S. S. Co. v. Houlder Line 220 Anonymous, Bellewes' Cases. 276 Moore, 554 185 Moseley, 237 ... 190 . , , 3 Swanst. 99 . . . 328 1 Vern 351 1 Vernon 120 .. 228 Y. B. 1405 257 Y. B. 1429 257 Y. B. 1464 274 Y. B. 1465 308 XXVI TABLE OF CASES. [References are to sections.] Anonymous, Y. B. 1468 , 307 Y. B. 1522 310 Y. B. 1522, 14 Henry VIII 21 Y. B. 2 B(Jw. VI 391 Appleton Water Works Co. v. Central Trust Co 441 Ardglasse v. Muschamp 397 Applegarth v. Colley - 425 Appleton V. Bascom 451 V. Rowley 311 Arguello, In re' 325 Arkansas Midland R. R. v. Pearson 270 Arlington v. Liscom 417 Armor v. Pye 97 Armstrong v. Short 362 Arnett v. Finney 154 Arnould v. Grinstead 323 Ashley's Adm's v. Denton . . 251 AsMon V. Thompson '. . . 400 Ashurst V. McKenzie 418 Aston V. Aston 186 Atkins V. Fletcher Co 236 Atkinson v. Miller 19 Atlanta, K., & N. R. R. v. Mc- Kinney 102 Atty-Gen. v. Council etc. of Birmingham . . . 215 -V. Pitzsimmons 223, 244 ' V. Gore 320 V. Hickman 273 V. Hunter 223 V. Lauderfleld 272 > V. Mangles 448 V. Nichol 217 V. Richards 222 V. Sheffield Gas Con- sumers Co 222 V. Sitwell 348 V. Smith 222 V. United Kingdom Electric Light Co 222 V. Williams . . ; . . . 222 Ayerst v. Jenkins 401 Aylesford's Case 132 Bacon v. Jones 227 Baddeley v. Baddeley 267 Badger v. Broadman '...... . 98 Baer's Appeal 325 Bailey v. Duncan 113 V. New England Life Ins. Co 276 V. Tillinghast 444 Baily v. Taylor 228 Bain «.*Fothergill 123 Baird v. Wells 242 Baker v. Copenharger 315 V. Paine 347 Ballon V. Hopkinton 441 Bait. & O. R. R. V. Arthur . . 424 Bank of Chenango v. Cox . . 189 Banta v. Vreeland 372, 377 Barker's Trusts, In re 272 Barkley v. Hibernia Savings & Loan Soc'y a76 Barnadiston v. Soame 274 Barned's Bkg Co., In re 258 Barnes v. Racster '.... 454 V. Wood 122 Barney v. Everard 103 V. Parsons 324 Baron v. Korn 197 Barr v. Essex Trades Council 235 Barrett v. Hinckley 19 Barringtan, In re 190 Barrow v. Barrow 340 V. Richard 101, 103 Bartlett v. Bartlett aO, 308 V. Dimond 257 Barton v. De Wolf 57 Bascomb v. Beckwith 158 Basely v. Clarkson 208 Bass V. Gllliland 122 Bassett v. Leslie 430 Batard v. !Hawes 452 Bateman v. Hotchkin 190 Bates V. Delavan 385 V. Johnson 304 Batten v. Earnley 422 Batton V. McClure 134 TABLE OF CASES. XXVII [References are to sections.] Batty V. Chester 401 V. Lloyd 397 Baugh's Ex'r v. Walker . ; . . 299 Baxendale ■;;. Seale 167 Beardsley v. Duntley ....... 350 Beattie v. Callahan 234 Beaumont v. Dukes ..*. 146 Beavan, In re 450 Beaver v. Ross 448 Beck V. Allison 58 Becker v. Vlning 283 Bedier v. Reaume 393 Beedle v. Bennet 227 Belchier, Ex parte 330 Belknap v. Belknap 297 Bell V. Hatchings 403 Bellamy, Re 312 Bellamy v. Debenham 148 V. Sabine 460 V. "Wells 225 Betlasls v. Uthwatt . . . .■ 459 Bells V. De Vltre 227 Bennett v. Box 316 V. Crandall 262 V. Van. Syckel 42 Benton v. Pratt 389 Berry, Demoville & Co. v. So- well 353 Bess V. Drake 444 Bewick v. Whitfield 190 Bibb V. Smith 284 Biddle v. Ramsey 145 Bigelow V. Armes 132 Bilble V. Lumley 345, 373 Bill V. Kinaston 422 Bingham v. Bingham . . 368, 373 Binns v. Viiagraph Co 240 Birch V. Blagrave 292 Bird V. Hall 91 Birmingham v. Lesan 19 Bishop of London v. Webb. . 186 V. Moorman 414 > of Winchester's Case 186 Bittick V. WilliS,ms 450 Black V. Homersham 118 V. Superior Council.. 404 Blackburn v. Randolph 353 Blackett v. Bates 58 Blackmer v. Phillips .' . 115 Blake v. Flatley 43 Blakeman v. Blakeman .... 346 Blanchard v. Hill 230 Blauvelt v. Ackerman 320 Blew V. McClelland 118 Bliss V. Anaconda Mining Co. 215 Block V. Morrison 116 V. Shaw 44 Bloomer v. Spittle ..337, 355, 356 Blount V. Blount 109 Board of Comm'rs v. Strawn 297 Bockes V. Lansing 414 Bodwell ■ V. Bodwell 145 Bogan V. Daughdrill 122 Boggs V. Duncan-Schell Co. . 237 Bohle V. Hasselbroch 298 Bonesteel v. Bonesteel 305 Borel V. Mead 126, 178 Boring v. Ott 38>9 Borough Billboard Co. v. Levy 98 Bostock V. Floyer 330 Boston V. Nichols 153 Etc. Co. V. Condit .. 307 Dlatite Co. v. Flor- ence Mfg. Co 238 & M; R. Co. V. Sullivan 195 Safe Etc. Co. v. Col- lier 319 Bostwlck V. Insurance Co. . . 392 Bottomley v. Lord Fairfax. . 311 Bowen v. Wright 324 Bower v. Berry 20 Bowers Co. v. New York Co. 227 Bowles' Case 186, 190 Bowles V. Rounds 159 Bowner v. Welborn 208 Box V. Lanier ...... j 294 Boyer v. Western Union Tele- graph Co 236 Boyes, In re 292 Brady v.' Waldron 187 Bragg Mfg. Co.'i;. Hartford.. 227 Braine v. Hunt ;-..".. 426 Brande v. Grace 217 Brandon v. Robinson 31^ XXVIII TABLE OF CASES. [References are to sections.] Brandreth v. Lance 2S9 Breen v. Donnelly 355 Brennan v. Willson 330 Bresnahau v. Sheehan 293 Breton's Estate, In re 267 Brett V. Cooney 386 V. East India & Lon- don Co 78 Brewer v. Herbert 118 V. Marshall 105 V. Springfield 443 Brewster v. Lanyon Zinc Co. 403 Bridge v. Conn. Co 306 Brier, In re 330 Briggs V. National Wafer Co. 231 V. Santord 283 Brigham v. Winchester 295 Brill V. Flagler ,. . . . 204 British Red Cross Balkan Fund, In re 287 Broad, Ex parte 254 Broadbent v. Imperial, Gas Co. 215 Boadway Bank v. Adams ... 314 Brogden, Re '. 326 Bromage v. Genning 39 Brobke v. Howitt 88 Brooking v. Maudslay 407 Broome v. Monck Ill , Brotherton Bros. v. Reynolds 383, 391 Brougham v. Poulett 263 Broughton v. Hutt 369, 374 Brown, In re 297 V. Burdett 271 V. Equitable Assur- ance Co 303 V. Fagan 356 V. Fletcher 280 V. Gellatly 324 V. Guarantee etc. Co. 150 V. Lake Superior Iron Co 8, 35 V. Lamphear ...337, 361 V. Montgomery ..383, 395 V. Norman 394 . .. v. . Uakshoot 321 V. Pierce 39S Brown v. V. V. Rouse . Smith Ulrick V. Ward Browne v. Coppinger V. Ward Browne's Will Re Bruce v. Tllson Bryant v. Craig Bubb's Case Buck V. Buck Buckhurst Peerage Buckingham v. Clark Buckland v. Hall 88, Buckland v. Pappillon Buckmaster v. Harrop Buford's Heirs v. MoKte .... Bugden i;. I'ylee Bullock, In re Bullock V. Bullock 55, V. Whipp Bulteel, Ex parte Burden v. Grandi Burgess v. Wheate Burke v. Smith Burkhalter v. Jon"s Burnett v. Anderson Burney v. Ryle & Co Burns v. Dagget Burrowes v. Lock Busch V. Gross Bush V. Western Busk V. Aldam Butcher v. Stapley Butler V. Bull V. Freeman V. GalettI V. Haskell Buxton V. Broadway . . . 406, V. Lister 41, 53 Byars v. Stubbs Byrne v. Jones 450 158 151 153 128 122 318 154 327 109 108 269 292 147 116 lOS 127 321 314 433 353 362 105 30S 209 162 426 81 134 1J8 231 211 318 132 227 458 81 397 411 , 56 157 11 Cabot V. Christie 384 Cadigan v. Brown 438 TABLE OF CASES. XXIX [References are Cadman v. Horner 157 Cahoon v. Cooper 113 Calrd V. Slme 226 Calcraft v. Thompson 217 Caldwell v. Caldwell 292 V. Depew 165, 167 Callanan v. Gilman 219 Callard v. Callard 266 Calvert v. Godfrey 458 Campbell v. Drake , 290 V. Miller 324 V. Seaman 206 Campbell's Trust; In re .... 272 Canal Co. v. Clark 230 Canedy v. Marcy 346 Cann v. Cann 325 Cannon v. Beatty 354 Capell V. Winter 276 Cape May etc. R. R. Co. v. Johnson 441 Caplen's Estate, In re 258 Capshaw v. Pennell 334 Carey v. Brown 276 Carlton v. Hulett 394 Carlton v. Newman 440 Carmichael v. Lathrop 459 Carolee v. Hendells 44 Carpenter v. Carpenter 306 Carpenter's Estate, In re ... 294 Carpenter v. Marnell 313 V. Mutual Co 52 V. Strange 14 Carriclj v. Errlngton 286 Carrodus v. Sharp .'.... 118 Carskaddon v. Kennedy 175 Carstalrs v. Bates '. 253, 255 Carter v. Phillips 147 V. Williams 97 Carteret v. Petty 14 Cartwrlght v. Wise 284 Carver v. San Pedro . .' 220 Casey #. Cavarock 20 V. Leggett 415 Cass V. Ruddle 1 119 Castellain v. Preston 119 Castle V. Wilkinson 122 Castleman v. Craven 185 to sections.] Catalanl v. Cataianl 290 Cathorpe, Ex parte 324 Caton •;;. Caton 135 Catt V. Tourle 100 Cave V. Cave 304 V. Mackenzie 303 Cayuta etc. Co. v. Kennedy etc. Co 227 Central Ga. Power Co. v. Stubbs 237 Cerf V. Deiner 129 Channon v. Stewart 449 Chase v. Chapin 313 Chambers v. Mauldin 276 Chandler v. Thompson 209 Chappell V. Stewart 239, 240 Charity Board v. Waterworks Co 183 Cheale v. Kenward 48 Cheeke v. Lord Lyle 143 Chesley v. King 209 Chicago & Alton R. R. v. Glenny 450 Child V. Douglass 103 Child V. Mann 434 Christman v. Colbert 353 Chion, Ex parte 253, 313 Chubb V. Peckham V 170 Chudlelgh's Case 311 Citizen's Nat'l Bank v. Judy 353 City Nat'l Bank of Dayton v. Kusworm 399 City of Bainbridge v. Rey- nolds 245 Bisbee v. Arizoaa . . 245 Chicago V. Collins 245, 4^3 Hoboken v. Hoboken & M. R. R. Co. ... 196 Hutchinson v. Beck- ham 447 North Vernon v. Voeg- ler 204 Wheeling v. Natural Gas Co 215 Claflin V. Claflin. 319 Clark's Case 62, 257 Clark V. Clark 42, 273 XXX TABLE OF CASES. [References are Clark V. Davenport 417 V. Devoe 97 V. Rochester R. Co. . . 168 V. Timmons 298 V. Trultt 65 Clarke v. Franklin 448 V. Ramuz 117 Clay V. Freeman 19 Clayton v. Ashdown 175 V. Rose 276 Cleaton v. Gower 122 Clegg V. Hands ICO, 102, Cleghorn v. Zumwalt . .' 338 Clerk V. Wright 136 Clermont v. Tasburg 158 Clinan v. Cooke 135 Clowes V. Higginson 370 Cloyd V. Trotter 12 Coates V. Collingford 107, 145 Cobb V. Saxby ■ 219 Cockford v. Alexander 117 Codman v. Evans 203 Coffin V. Coffin 188 Cohen v. Nagle 2X1 Coholan v. Condrin 284 Cole V. Dealham 41 V. Fickett 333, 353, 360 V. Gibson 402 V. White 132 Coleman, In re 306 Coleman v. Board of Educa- tion 243 Coles V. Feeney 100 V. Peck 64 V. Trecothick 128 Collier V. Blake 307 Collins V. Blantem 406 V. castle' 103 CoUis V. Lee 425 Colls V. Home & Colonial sWes 213 Colman v. Sarrel 267 Colonial Dames of America V. Colonial Dames of New York 232 Colson V. Thompson 41 Colt 1^. Wollaston 380 to sections.] Columbia College v. Thacher 104 Columbia College of Music v. Tunberg 81 Combes v. Scott 150 Commercial etc. Insurance Co. V. Union etc. Insurance Co. 52 Com'th V. Foster 254 V. McGovern 223 V. Straton 450 of Pa. V. East Wash- ington 224 Compton's Case 309 Comstock V. Coon 343 V. Hitt 92 Ccnaway i;. Gore 350 Conger v. N. Y. R. R. Co 169 Conner v. Welch 377 Consolidated Gas Co. v. Mayer 245 Contee v. Lyons 405, 417 Continental Paper Bag Co. v. Eastern Paper Bag Co. . . 227 Conybeare's Settlement, Ex parte 272 Conyers v. Mericles 362 Conyngham v. Conyngham . . 273 Cook V. Carpenter 444 V. Fisher 118 Cooke V. Crawford 328 «. Forbes 203, 214 etc. Co. V. Miller 231 Coon V. Atwell 387 Cooper V. Crabtree 200 V. Davis 189 V. Jarman 110 V. Phibbs 374 Coosaw Mining Co. v. South Carolina 222 Copeland v. Barnes 51 Copis V. Middleton 396, 450 Corbett v. Nutt 12 Corbin v. Tracy 47 , Corliss V. Walker .*. . . 226 Corning v. Lowerre 221 V. Wlndslow 203 Cornwell v. Deck 322 Cortelyou v. Barnsdall 173 Cotter V. B'k 427 TABLE OF OASES. XXXI [References ar CottrlU V. Krum 391 CoVell V. Edwards 452 . Cowper V. Earl of Cowper . . 25 Cowper V. Laidler 215 Cowtan V. Williams* 432 Cox, Creditors of 316 V. Douglass 199 V. Middleton 158 V. Walker 276 Coy V. Minneapolis etc. R. R. 42 Cragg V. Holme 171 Craig V. Beatty 270 Crane v. McDonald 424 Crane v. Peer 40 Cranford v. Tyrrell 225 Cranstown v. Johnston 281 Crass V. Memphis etc. R. R. 424 Crawshay v. Tliornton . . 430, 43.B Credits Gerendeuse v. Van Weede 429 C, R. I. & P. R. R. V. City of Lincoln 243 Crocke v. Manhattan Life Ins. Co 190 Crockford v. Alexander 187 Croft V. Day 231, 237 Crofton, Re 112 Cronin v. Bloemecke .^. , 223, 225 I Crosbie v. Tooke .... 42, 88 Cross V. Armstrong 429 V. McClenahan 19 V. Mayo 149, 151 Crowder v. Tinkler 212 Crowe V. Ballard 393 V. Lewin 370 V. Wilson 187 Croyle v. Moses 382, 383 Cruce V. Cruce 327 Crump V. Lambert 204 Cud V. Rutter 57 Culbreath v. Culbreath ..345, 374 Cummack v. Edwards 287 Cure V. Bowyer 109 Curra-n v. Banks 121 V. Holyoke Water Co 169 Currence v. Ward 283 e to sections.] Currier v. Howard 82 Curtels V. Wormald 448 Cutting V. Dana 50 Czermak v. Wetzel 132 Daggett V. Ayer 355 Dale V. Sollett 257 Dallas, In re 306 Daly V. Smith 74, 76, 81 Dambman v. Schulting 356 Dana v. Valentine 206 Daniel v. Commercial Fire In- surance Co 339 V. Ferguson 217 Danielly v. Cheeves 204 Daniels v. Davison 86 V. Keokuk Water Works 215 Danser v. Warwick 268 Darbey v. Whittaker 64 Darlington v. Darlington .... 448 D'Arcy v. Blake 311 Darst V. Kirk 35 Daugherty v. Cooper 301 Davies v. Otty 290 V. Humphreys . . . 451, 452 Daviess Co. Distilling Co. v. Martinoni >.. 231 Davis, In re , . 284 V. American Soc'y 245 V. Condit 234 V. Ely 349, 360 V. Emerson 453 V. Porman 80 V. Louisville Trust Co. . 382 Davison v. Davison 89 Dawklns v. Antrobus t.. 242 Day V. Cohen 154 V. Wells 164 Co. V. State 414 Dean, In re 271 V. Cassiday i 134 Dean's Heirs v. Mitchell's Heirs 114 Dearie v. Hall 306 XXXII TABLE OF CASES. [References are to sections.] De Brampton v. Seymour .... 382 Decker v. Hardin 388 V. Pope ■ 451 Deen v. Milne 65 Deere v. Guest 197 Deering v. Winclielsea 452 Delaney v. Flood 245 Demaree v. Driskell 283 Doming v. Darling 387. DeMinico v. Craig 235 Dennis v. Jones 393 Denny v. kancock 165 De Pol V. Sohlke 77 De Rivaflnoli v. Corsettl 32 Derry v. Peek 381 Detroit B'k v. Truesdail .... 454 Dewey v. Long 455 De Wilton v. Saxon 94 Dickerson v. De La Vergne Co 227 Dickerson v. Grand Jn. Canal Co 70, 98 Dickerson's Appeal 317 Dickinson, Appellant . . 323, 324 V. Colegrove 29 Dietrickson v. Cabburn 74 Digby V. Legard 286 Diggles, In re 265 Dlkeman v. Sunday Creek Coal Co 144 Dillet V. Kemble 377 Dills V. Doebler 40 Dilly V. Doig 438, 439 Dinwiddle v. Bailey 449 DishoBg V. Finkbeiner 445 Dix V. Burlord •. 329 Dixon V. Caldwell 296 V. Dawson 448 V. Holden 239 V. Olmius , . . . . 292 Dobie V. Fidelity Co 453 Dockstader v. Reed 81 Doctor & Student 266 Dodd V. City of Hartford 443 Dodge V. Hills 302 Dodkin v. Brunt 273 Doe V. Harris 273 Doe V. Pegge 276 Doherty v. AUman 185 Doily V. Sherratt 329 Dolman v. Nokes 383 Donaldson v. Allen 330 V. Becket 226 Donaldson v. Donaldson ..... 267 Donnell v. Bennett 56, 73 Doremus v. Hennesy ........ 234 Dorma-n v. McDonald 44 Dorr V. Harrahan 101 Dorset v. Girdler 420 Down V. Fox 436 Downing v. Anderson 194 Dowson V. Solomon 148 Dresdel v. Jordan 17!' Drewe v. Coop 121 V. Hanson 121 Drummond v. Altemus 233 DuBost V. Beresf ord 239 Duff V. Randall 302 V. Russell 80 Duffy V. Kelly 143 Dugan V. Baltimore 29 Duke of Dorset v. Girdler . . . 420 Duke of Grafton v. Hilliard. 223 Dulaney v. Willis 456 Dull's Appeal 415 Dumont V. Fry 57 Dunbar v. Dunbar 284 Dunckel v. Dunckel 136 Duncombe v. Felt 188 Duncuft V. Albrecht 57 Dundas v. Dutens 315 Dungey v. Angove 432 Dunker v. Field & Tule Club 199 Dunn & Co., In re 297 Dunn V. Dunn 400 V. Raley 456 Dunshee v. Standard Oil Co. . 237 Dupre V. Thompson '. . 373 Du Pre V. Williams 202 Durham v. Griswold 398 V. Legard 164 Duvall V. Simpson 355 V. Wellman 402 Dyer v. Hargrave 121 TABLE OF CASES. XXXIII tReferenees are Eaden v. Plrth 212 Earl of Aylesford'a Case ... 132 Feversham v. Watson 143 Klldare v. Eustace.. 274 Stamford, In re 273 Earlom v'. Saunders 448 East India Co. v. Vincent... 139 Eastman Kodak Co. v. Reich- ■ enbach 229 Eaton y. Eaton 343 V. McCall 11 Ebert v. Arends 124 Edgar v. Wallcer 208 Edgerton v. Peckham ..150, 152 Edgingon v. Pitzmaurice 382 Edison v. Edison Polyform Mfg. Co 231 Edi,son Elec. Liglit Co. v. Bea- con Vacuum Pump Co. ... 227 Edwards v. Allouez TWining Co 215 V. Edwards 283 V. Harben 306 V. Jones 26i V. McLeay 404 V. West 119 Ehrman v. Bartholomew .... 8i Ekins V. Tresham 387 Elder v. Elder 350 H!ldridge v. Dexter etc. R. R. 356, 374, 377 Ellard v. LlandafE 159 . Ellcock V. Mapp 287 ! Ellerson v. Westcott 293 Elliott V. Landia Machine Co. 277 Ellis V. Duncan 209 V. Kansas City etc. R. R 208 Elmhurst V. Spencer 211 Elwin V. Williams 312 Bmack v, Kane 238 Empire Realty Co. v. Sayre.. 129 Emuss V. Smith 112 Eneberg v. Carter 448 England v. Curling 65 to sections.] Elqultable Gas Light Co. v. Baltimore Coal Tar Co. . . 56 Erhardt v. Boaro 199 Espert V. Wilson 128 Essex Trust Co. v. Enrlght . . 299 Etter V. Greenwalt 260 Evangelical Synod v. Schoe- nick 297 Evans v. Prince's Bay Oyster Co 185 Everett v. Crew 252 V. Paschall 223 Eyre v. Burmester , 305 Pahnestock's Appeal 322 Paine v. Brown 168 Fairchild v. McMahon 387 Fairland v. Percy 315 Falk V. Am. West Indies Trade Co 230 Falloon v. Schilling 205 Pant V. Dunbar 298 Pargo V. Arthur 425 Parley v. Blood 436 V. Gate City Gas Light Co 206 V. Turner 255, 258 Parnsworth v. Duffner 386' Parrington v. Lee 257 Parwell Co. v. Hilton .. 394, 395 Pelch V. Hooper 275 Pennely v. Anderson 179 Perry v. Stephens 126 Pesmire v. Shannon 330 Bessler v. Town of Union 221, 222 Peversham v. Watson Hi Pield V. Pield 322 Pilley V. Duncan 115 Pine Cotton Spinners v. Har- wood Cash & Co 231 Pirst Nat'l Bk. v. Blnnlnger 433, 434^ V. Broadway B'k 305 V. Pirst Nat'l B'k 276 XXXIV TABLE OF CASES. [References are to sections.] Fischer v. Blank 230 Pischll V. Dumaresly . . . 300 FIshbeck v. Gross 290 Fisher v. Keane 242 Fitts V. Shaw 428 Fleetwood v. Charnock . 452 Fleming v. Burnham . . 129 Fletcher \'y. Bealey 204, 405 V. Ferrel 460 V. Tuttle 243 Plight V. Bolland . 32 175 V. Cook . . ; '. 422 Flint V, Brandon .. 59, 61 Florence Co. v. Zeigler 301 Pluker V. Taylor 449 Fogg V. Mlddleton 261, 269 Foley V. Hill 449 V. . Holtry ... 392 Forman v. Bastwick . . . 8 Forster v. Wilson 279 Fortescue v. Barnett . . . 267 Fort Worth etc R. R. v. Glenn 208 Foster v. Ballenburg . . 78 V. Charles 385 V. Cockerell 306 V. Elsley 269 V. Klmmons . . . 41 Fothergill v.. Phillips . 159 V. Rowland . . ...53, 80 Fonts V. Root 138 Fowler v. Black 345, 346 V. Fowler 459 Pox, Estate of 294 Foxwell V. Webster 438, 439 Fralich .v. Despar 69 Frame v. Dawson 133, 135 Frampton v. Garrard . . 266 Francisco v. Smith 100 Franklin v. CpUey 285 Franklin's Estate, In re 286 Prazier v. Combs 314 V. Jeaklns 300 Frederick v. Frederick . . 20 Preedman's Co. v. Barle 316 Preeland v. Wilson .... 429 Freeman v. Freeman . . 138 Friend v. Lamb 168 Proemke i>. Marks 283 Frohman v. Parris 226 Frost V. Spitley 415 Prue V. Houghton 57 Pulkerson v. Brownlee 450 Fuller V. Berger 227 V. Percival 408 Fyler v. Fyler , 324 G Gadbury v. Gas Co 457 Gale V. Conn 404 V. Linds 406 Gallagher v. Gallagher 134 Galveston etc. R. R. v. Dowe 447 Gandy v. Gandy 90 Gannett v. Albree 145 Gannon v. Peterson 186 Gardner v. Ogden /. 11 V. Rowe 268 Garland, The 412 Garnsey v. Mundy 317 Garrard v. Frankel 337 Garrison v. Hargadon 203 Gartell v. Stafford 42 Garth v. Ward 460 Gates V. Blincoe 204, 220 V. Johnson Lumber Co. 194 Gebb V. Rose 354 Gee V. Pritchard 226, 239 V. Spencer 368 Gent V. Harrison 190 George v. Blow 238 Georgetown v. Alexandria Coal Co 221 Georgia v. Tennessee Copper Co 224 Gerdine v. Menage 372 German Alliance Ins. Co. v. Van Cleave 443 Gibson v. Wlntei' 278 Giddings v. Eastman 301 Gilbert v. Bunnell 57 V. Showerman 213 Giles V. Harris 243 TABLE OF CASES. xxtv [References ar Giles V. Little 129 V. Perkins 255 V. Walker 205 Gillespie v. Smith 330 Gllmore v. Tiittle 324 Gimbel Bros. v. Milwaukee Boston Store , 197 Giotlich V. Klein 214 Girty v. Standard Oil Co. ... 398 Gladding i;. Yapp 287 Gladville v. McDoIe 137 Glass v.. Hulbert 349 Glenn v. Clark 311 Glidewell v. Spaugh 285 Gloucester Isinglass Co. v. Russia Cement Co 56 Goddard v. Whyte 450 Goding. V. Bangor & A. R. R. Co 169 Goff V. Gott 374 Gold V. Murch 113 Goldman v. Rosenburg - 118 GoUnik's Estate, In re 294 Goodrich v. Lathrop , . 371 Goodson V. Ellison 269, 318 V. Richardson 196 Goodwright v. Wells 317 Gorder v. Pankonin 42 Gordon v. Jefferson City 262 V. Parmelee 387 Gormeley v. Gymnastic Ass'n. 388 Gorsch V. Niagara Fire Ins. Co 118, 119 Gossard Co. v. Crosby 62 Gottschalk v. Stein 50 Gould V. Emerson 367 Graham v. Dickinson 448 V. Graham 459 V. King 330 V. McCampbell 115 Grand Chute v. Wiaegar 411 Grand Lbdge v. Grimshaw . . 232 Graves v. Graves 269 Gray v. Supreme Lodge 353 Gray v. Union Trust Co 317 Gt. Boston etc. Co., In re . . 286 e to sections.] Great Falls Mfg. Co. v. Wors- ter 13 Green v. Cole 184 V. Green 21, 136, 142 V. Smith 108, 111 Greene v. Goddard 451 Gregory v. Bowlsby 290 Grell V. Globe etc. Co 424 Grey v. Colville 316 V. Tiibbs 151 Griffith V. Sebastian Co. 366, 374 Griswold v. Hazard 360, 361 Grone v. ^Economic Life Ins. Co 388 Grover v. Grover 267 Groves v. S^tell 436 Grummett v. Girigrass 178 Grymes v. Sanders 377, 379 Guest V. Homfray 148 Gun V. Barrow , 274 Gun V. McCarthy 336, 337 Gunnison v. Erie Dime Sav. B'k 281 Gunter v. Halsey 135 Gustin V. Union School Dis- trict . / Ill H H's Settlement, In re 458 Hackley i;. Headley 398 Hackrader v. Wadley 245 Haftey v. Lynch 22 Hahn v. Concordia Soc'y ... SI Haile v. Livingstone 235 Hale V. Burns 196 V. Hale 130, 135 Hall, Matter of 323 Hall V. Craig 432 V. Delaplane 151 V. Ewin 97 V. Hall 19 V. Hardy 64, 124 V. Klepzig 362 V. Law 25 V. Linn 291 , V. ptterson 376 XXXVI TABLE OF CASES. [References are to sections.] Hall V. Potter 403 V. Rood 197 V. Spencer 401 V. Wheeler 378 Hallett's Estate 297 Halsa V. Halsa 301, SOS Halsell V. Wise Co 300 Halsey v. Grant 121 Hamar v. Medsker 35t Hamer v. Sldway 251 Hamilton v. Cummlngs 419 Hammond v. Hopkins 31 V. Messenger ..82, 261 V. Pennock' 394 Hampson v. Edelen . '. 115 Hampton, Petition of 18 Handley v. Palmer 448 Hanna v. Wilson 92 Hanston v. Jandon 134 Harder v. Harder 130 Harding v. Glynn 265 f Hare v. Grant 453 Harlow v. La Brun 386 V. Oregonian Pub. Co. SO Harmon v. Delaney 237 Harniss v. Bulpitt 220 Harper v. Virginian Ry. Co. 60 Harrah v. Jacobs ... .' 450 Harrington v. Churchward . . 449 V. Port Huron 196 Harris, In re . : 458 V. Boots 98 V. Titan '383, 397 Harrison v. Forster 436 V. Talbot 334 Hart V. Leonard 218 V. Logan , 113 V. Sansom 12 Hartopp's Case 286 Harvard College v. Amory . . 323 Haskins v. Ryan 226 Hathaway v. Brady 350, 360 V. Pry 436 Hattat's Trusts, In re 272 Hatton V. Gray 175 Haughwout V. Murphy 301 Haviland v. Willets 369,. 377 Hawarden v. Youghiogheny Co 237 Hawes v. Hubback 312 Hawkins v. Pearson 357 Hawley v. Clowes 187 Haycraft v. Creasey 384 Haydock v. Haydock 400 Hayes v._ Brooklyn Heights R. R. Co 208 Haynes v. Mico 459 Hayward v. Dimsdale 413 V. Hayward ., 239 Haywood v. Brunswick Bldg. Co 102 V. Cope 159, 170 V. Hutchins 449 Hazelton v. Miller 43 Head V. Porter 227 V. T'eynham 318 Hebert v. Mutual Life Ins. Co. 52 Hecht V. Batcheller 366 Heckard v. Sayre 151 Heddon v. Griffin 394 Heli, In re 458 Helling v. Lumley 168 Hellreigel v. Manning 117 Hemings v. Pugh 449 Henderson v. Dickey 357 Hendry v.- Whjdden 45 Hennesy v. Carmony 215 Henny Buggy Co. v. Ashen- felter 396 Henry v. A. B. Dick Co 227 Hepburn v. Lordau 212 Herbert v. Penn. R. R. . . 212, 219 Hercy v. Birch 32 Herman v. Hodges -51 Hesse v. Brlant 157 Hevendon v. Annes'.ey 31 Hlatt t). Williams 137 Higgins V. Butler 164 Hill, In re 272 Hill V. Barclay 457 V. Buckley 122 V. Josselyn 329 V. King 450 HiUman v. Newington 219 TABLE OF CASES. XXXVII [References are to sections.] Hinckley «. Pfister 436 V. Smith 121 Hlpwell V. Knight : . 152 Hitchcock V. Glddings 367 Hitchings v. Pettlnglll 338, 356, 361 Hitchman v. Stewart 453 Hix V. Att'y Gen'l 307 Hoare v. Bremridge 411 Hodge V. Churchward 260 ' V. Glese 218 V. Sloan 105 Hodgson V. Duce 201 Hogg V. Scott 228 Holbrook v. Morrisson 237 Holland v. Holland 274 Holley V. Boston Gas Light Co 208 Holmes v. Dring 324 Holt V. Holt 59, 110 Home & Col. Stores v. Colls. . 217 Home Co. v. Virginia Co. . . . 444 Homrich v. Robinson 418 Hood V. N. E. Ry. Co 60 Hopgood V. Perkin 330 Horn V. Garry 415 Hosmer v. Republic Iron & Steel Co 208 Hotchkln v. Third Nat'l Bk. 383, 395 House V. Jackson 87 Hout V. Hout 344 Hovey v. Dary 448 How V. Tenants of Broms- grove 439 Humphries v. Brogden 203 Hunnewell v. Duxbury 382 Hunt V. Rousmanlere . . 340, 346 V. White 351 Hunter V. Carroll 196 Hunting v. Damon 129 Hutchings v. Davis 448 Hutchinson v. Grubbs 154 Ide V. Thorlicht 227 111. Cent. R. R. V. Grabill ... 203 Insurance Co. v. Armstrong . 294 Irons V. Smallpiece 267 Ivinson v. Hutton 331 Jackson's Case . . : 86 Jackson v. Cator 139 V. Cleveland 289 I V. Duke of Newcas- tle 217 V. Edwards 124 .V. Phillips 270 V. Stevenson " 104 Jacksonville Nat'l B'k v. Beesley 283 Jacobson v. Blackhurst 427 James v. Hayward 220 Jaquet v. Jaquet 90, 260 Jaquith v. Hudson 457 Jeaklns v. Frazler 340 Jefferys v. JefEerys 126 Howard v. Kimball 115 Jenkinson v. N. Y. Finance V. Nutkin 71 Co. 1). R. R 206 Howe V. Watson 170, 177 Howland v. Norris 109, 121 Hoyt V. Puller ." 80 V. Oliver 343 Hudman v. Henderson 305 Hug V. Van Burkleo 143 Huling V. Abbott 305 Humfray v. Fothergill 57 Humphreys v. Green 135 Co SO^ Jerome v. Ross 194 Jersey City Printing Co. v. Cassiday 234 Jervis v. Smith 140 Jesus College v. Bloom 189 Jevons V. Bush 272 Jew V, Wood 432 Jowell V. Barnes' Adm'r .... 269 Johnson, In re 315 Johnson v. Atkinson 431 XXXVIII TABLE OP CASES. [References are to sections.] Johnson v. Bragg |348 V. Conn. B'k '202 V. Gibson 305 V. Mills 422 V. Newton 325 V. Rickett 42 Johnson Co. v. Bryson 262 Johnston v. Glancy 133 V. Spicer 208 Johnstone v. Hall 1. . . 98 Jones V. Britton 187 V. Chappell 217 V. Evans 122 V. Hardy 442 V. Jones 197 V. Lewis 322 V. Newhall 16, 44, 49 V. North 68 V. Parker 61 V. Palmer 270 V. Perry 414 V. Robbins 150 V. Williams 20S Jordan v. Stevens 374 Joseph V. Wild 139 Joy V. St. Louis •. - . - SO Joyce V. Conlin 216 Joyner v. Crisp 122 Joynes v. Statham 163 J. R. ■!;. M. P 10 Judd V. Mosely 300 Judson V. Corcoran 305 Juniper v. Batchelor 292 Kahn v. Walton 402 Katz V. Miller 329 Kaufman v. Weiner 202 Keane v. Kyne 415 Kearns v. Howley 243 Keeble v. Hickeringill 237 Keech v. Sandford 299 Keen v. James 387 Keller v. Harper 20 Kelley v. York ClifEs Improve- ment Co '. 163 Kellog V. Hale 248 Kelly V. Nichols 270 V. R. R. ..156, 158, 159, 160 Kemp V. Division No. 241 . . 235 Kempson v. Kempson 14 Kenamore, State ex rel. v. Wood 418 Kenney v. Nexarft 48 Kent V. Bornstein 394 Kenyon v. Welty S75 Kerkham, Re •. . , 88 Kerrlson v. Stewart 279 Kersten v. Myers 338 Key V. Gordon 257 Keyes v. Charlton 317 V. Ketrick 415 V. Little York etc. Co. 439 Kidney v. Stoddard 283 Kien v. Stukely 150 Killian v. Bbbinghaus 428 Kimber v. Barber 157 Kimberley v. Jennings 81 Kinder v. Jones 194 Klne V. Balfe 132 King V. Bardshaw 121 V. Boys 272 V. Bushnell 310 V. Daccombe 308 V. Dlckeson 97, 103 V. King 458 V. Mildmay 307 V. Satids 270, 303 V. Smith 187 V. Stuart 194 V. Talbot 324 V. Tiffany 203 , V. Townshend .... 417, 419 Kinmonth v. Brigham 323 Kinney v. Ensminger 356 Kinyon v. Young 137 Kirby v. Haynes 396 Kirchner v. Gruban 80 Klrby v. Dillon 316 Kile V. Van Broock 189 KnatchbuU v. Hallett 297 Knight V. Bunn 343 Knox V. Slngmaster 400 TABLE OF CASES. XXXIX [References are to sections.] Knott V. Cottee 322 Koppinger v. O'Donnel ...... 436 Kowalke v. Milwaukee Elec. Light Co 366 Krause v. Sander 242 Krehl v. Burrell 218 Kronmeyer v. Buck 399 Kruczlnske v. Newendorf ... 41 j Kuznlak v. Kosminski 209 Kyle V. Fehley ..» 335, 346 Lacey, Ex parte 300 Lacon v. Mertius 131 Lacy V. Heuck 78 Ladd V. Osborne 195 Laguras Nitrate Co. v. Lagur- as Syndicate 394 Lambe . v. Eames 265 Lambton i>. Mellish 2 10 Lancaster v. Conn. Co 276 Lane v. Debenham 329 V. Dlghton 295 V. Hardware Qo 177 V. Newdlgate 80 Lane etc. Co. v. Locke 227 LangdNn v. Sherwood 12 Langf ord v. LangJord 14 V. Patt 108 V. Taylor 44 Langrldge v. Levy 386 Langworthy v. Chadwick . . . 422 Lansdowne v. Lansdowne .... 189, 190, 374 Larabrie v. Brown ....'. 435 Lasky Feature Play Co. v. Surratt 81 Latrobe v. Baltimore 279 Lawes V. Bennett 112 Lawley v. Hooper 380 Lawrence v. Fox 103, 258 V. Staigg ..... 334 Lawson v. Hewell 242 V. Jordan 434 Layer v. Nelson 451 Leach v. Fobes 44 Leakan v. Cochran 208 Leather Cloth Co. v. Am. Leather Cloth Co 230 Lee V. Howlett 306 V. Kirby 170 V. Percival 338 Leeds v. Wheeler ^ . 418 Legal Aid Soc'y v. Wage Earners' Legal Aid Ass'n . . 232 Lehigh Valley R. R. Co. v. McParlan . .^ 442 Lehman v. Shock 419 Leitch V. Wells ,. . 460 Lent V. Howard 448 Lerols v Lechmere 48 Leslie V. O'Neill 347, 351 Letts V. Kessler 209 Lewis V. Gollner 99 Liggett V. Metropolitan Ry. Co 118 Light V. Light . . . '. 458 Liles V. Terry 400 Lincoln v. French 276 V. Parr 257 Lindeke v. Ass'n Realty 457 Lindsey v. Barron 430 LJngwood V. Stowmarket Co. 203 Linnell v. Batty 414 Lionberger v. Baker 301 Lippincott v. Barton 189 Little V. Giles 129 Littleton v. Fritz 22'S Livermore v. Aldrich 284 Livesley v. Heise 53 Livingston V. Tompkins .... 457 Lloyd V. Banks 306 V. Kirkwood 458 V. Rippingale 151 Lochenour v. Lochenour .... 284 Lockren v. Rustan 268 Lockwood V. St. Louis B'k . 443 Logan V. Bull 179 Loggie V. Chandler 416 London Guarantee Co. v. Horn 237 London etc. R. R. v. Lancas- tershire etc. R. R 198 Lonergan v. Dally 41 XL TABLE OF CASES. [References are to sections.] Long V. Long 329 V. Mechem 283 V. Woodman 382 Longwood Valley R. R. Co. v. Baker 211, 212 Lord Provost v. Lord Advocate 298 Los Angeles etc. Coal Co. v. Occidental Oil Co 145 Losee v. Morey 42 Losey v. Stanley 458 Love V. Fairfield 262 Low V. Bouverie 30G Lowman v. Crawford 403 Lowndes v. Bettle 193 Lowrie v. Bourdieu 345 Lowson V. Copeland 326 Lowther v. Lowther 46 Lozier's Ex'rs v. Van Sawn's Adm's 435 Lumley v. Gye 39, 234 V. Wabash R. R. . .,. . 376 V. Wagner 72-81, 102, 180 Lumsden v. Fraser 109 Lurie v. Pinanski 299 Lushington v. Bolden 190 Lutterel's Case 185 Lyde V. Taylor 422 Lynch v. V. S 386 Lyon V. Richmond 373 Lyons V. Wilkins 23$ Lysaght v. Edwards 109, 155 Lytle V. Sandefur 414 M McBrlde v. Weeks 152 McCall Co. V. Wright 69 McCarthy v. Bunker Hill ... 215 McClure v. Leacraft 32, 104 McComb V. Frink 327 McCord V. Quicksilver Mining Co 187 McCormick v. Horan 203 McCormick v. Stephany 178 McCoy V. Johnson 417 McCreery Bng. Co. v. Mass. Fan Co 227 McCullough's Exr's v. McCul- lough 324 McDaniel v. Cummings 203 McDermott v. Harrison 390 McDonough v. O'Neil 283 McEachern v. Colton 71 McFadden v. Jenkins 259 McFie V. Kilauea Co 453 McGowan v. McGowan 283 McGowin v. Remington .... 44 McGregor v. Silver King Min- ing Co 196 McGuire v. McGuire 89 McHenry v. Hazard .... 408, 411 McKersey v. Ramsays 256 McLaughlin v. Piatti 44 McManus v. City of Boston 159 McMechan v. Warburton .... 344 McNally V. Gradwell 147 McNamara v. Home Land Co. 45 McNaughton v. Partridge .... 343 McNeil u., Williams 228 McRaeny v. Johnson 276 McReynoIds v. Grubb 354 McTwiggan ,«. Hunter 443 Mackenzie v. Coulson 339 Mackenzie v. Johnston 449 Macomber v. Peckham ...347, 349 Macy V. Nantucket 427 Maddison v. Alderson 137 Madgeburg v. Ulhlein 90 Magruder v. Drury 299 Mahurin v. Harding 384 Makepeace v. Rogers 449 Malachy v. Soper 238 Malim v. Keighley 265 Malins v. Brown 136 Malins v. Freeman 164 Malmesbury v. Malmesbury. 361 Maloney t;. Katzenstein 212 Mander v. Falcke 97 Manderson's Appeal 315 Manhattan Co. v. Wood 231 Manhattan Iron Works v. French 245 Manners v. Johnson 70 Mann v. Stephens 94, 97 TABLE OF CASES. XLI [References are to sections.] Mann v. Willey 206 Mansell v. Valley Printing Co. 226 Mansfield v. Hogdon 12? V. Sherman 163 Margraf v.. Muir 157 Martin etc. Co. v. Shields . . . 23S Marsh v. Buchan 157 V. Kaye 444 Martell v. White 235 Marthinson v. King 43 Martin v. Graves 413 V. Home B'k 394 V. Mitchell 124 V. Nutkin 94 V. Price 217 V. Reed 51 V. Remington 284 Mason v. Armitage 164 Mast V. Henry 301 Mather v. Barnes 379 Mathews v. TerwUllger 167 Matteson v. Scofield ,12 Matthews v. Bliss 386 V. Crowder 404 V. Gadd 108 Mattison v. Lake Shore etc. R. R. Co 236 Maure v. Harrison 455 Mavrich v. Grier 279 May V. Piatt 348 Mayor of Wolverhampton v. Emmons 59 Mayor of York v. Pilkington 245, 439 Measures Bros. v. Measures . . 78 Mechanics' Foundry v. Ryall. 446 Medbury v. Watson 387 Medsker v. Parker 453 Meehan v. Owens 44 Mier v. Hess 305 Megod's Case 274 Mellen v. Moline 8 Memphis Keeley Institute v. Keeley Co 160 Merrill v. Beckwith 12 Mersey Docks & Harbor Board, In re 430 Mescall v. Tilley 290 Metcalf V. Hervey 426, 428 Metropolitan B'k v. St. Louis Despatch Co 25 Metropolitan Lumber Co. v. Lake Sup. Ship Co 350 Meyer v. Hinman 115 Michel V. Hallheimer 403 Micklethwait v. Micklethwalt. 188 Middlesex Co. v. McCue 205 Middleton v. Spicer 308 Miles Medical Co. v. Park & Sons Co. . . ; 106 Miller v. Ball 135 V. Bingham 312 V. Davis 283 V. Edison etc. Co 208 V. Gittinga 1^ V. Taylor 226 V. Tool 243 Millin^on v. Fox 231 Mills V. Hall 206 V. Lawrence 126 Milner v. Mills 135 Milnes v. Gery 143 Milton Dairy Co. v. Great Northern Ry 245 Minard v. Beans 20, 109 Minasian v. Osborne 235 Mitchell V. Hayne 427 V. Trotter 326 Moayon v. Moayon 177 Moeckley v. Gorton 410 Moetzel v. Kock 171 MofEet V. City of Rochester . . 371 Mogg V. Mogg 192 Mogul Steamship Co. v. Mc- Gregor 237 Mohr V. Gault 204,205 MoUineaux v. Powell 185 Monahan v. Monahan 283 Merchants' B'k v. Evans .... 414 i Moncrief v. Ross 448 Merriam v. Texas Sittings Co. 230 Monson v. Tussauds 239 Merrick v. Harvey 373 Montacute v. Maxwell ...130, 131 XUI TABLE OF CASES. [References are to sections.] Montague v. Flockton 79, 8.0 Montgomery v. Pickering . . . 393 Montgomery etc. Co. v. Mont- gomery Traction Co 78 Moore v. Darton 90, 259 v: Horsley 290 V. Metropolitan B'k . . . 303 V. Small 1S4 V. Topliff 453 V. Townshend' 183 V. Williams '. . 129 Moore's Estate, In re ... 317 Moores v. Townshend 415 More V. Merst 64 Moreland «. Atcliison 388 Morgan v. Boyes . .-: 216 V. Kansas City Ry. Co 276 iji. Malleson 267 V. Rhodes 116 Morice v. Bishop of Durham. 271 Moriey v. Clavering 166, 167 V. Loughman 400 V. Moriey 253 Morris v. Griffiths 448 V. Graham 220 V. Morris 186 Morrison v. Herrick 133 Morse v. Woodworth 398 Mortimer v. Cottrell 192 V. Ireland 328 Morton & Hallett, In re . 328 Mosley v. Mosley '. 322 Moss V. Wren 40 Mott V. Underwood 187 Moulton V. Holmes 326 Mousely v. Carr 327 Mulholland's Estate 325 MuUett v. Halfpenny 141 Mullong V. Schneider 284 Munden v. Harris 240 Mundy V. Joliffe 133 Murdock etc. v. Walker .... 235 Marietta v. South American etc. Co 426, 427 Murphy v. Christian Press Ass'n V . , . . 106 Murphy v. Lincoln 195 Murray v. Ballou 460 V. Haverty 187 Muagrave v. Dickson 450 Musselman v. Marquis 201 Mussett V. Bingle 271 Myers v. Malcolm 225 N Nashville Trust Co. v. Lan- som's Heirs 283 Nat'l B'k V. Ins. Co 279 Life Ins. Co. ■;;. PIngrey 430 Park B'k v. Goddard. . 441 National Phonograph Co. v. Edison Bell Pho- nograph Co 234 Protective Ass'n v. Cummings 237 Telegraph News Co. V. pastern Union Telegraph Co. .. 226 Naylor v. Winch 358 Neal V. Nash 450 Neale v. Cripps 199 Neap V. Abbott 167 Neill V. Shamburg -383 Neilson v. McDonald 399 Neininger v. State 350 Nelson v. Bridges 42 Nssmereth v. Bowler 202 Newall V. Randall 383 New Banking Co. v. Mont- gomery 302 England' Cement Gun Co. V. McGivern 235 Jersey Trust Co. v. Parker 317 Newman v. Franco 402, 406 Newman v. Newman 304, 306 Newton v. Newton Ill V. Porter 295 New. York v. North Amer- ican Life Ins. Co. 50 Bank Note Co. v. Hamilton B'k Co, 106 TABLE OF CASES. XLIII [References are to sections.] New York Co. v. Schuyler . . 306 N. H. & H. R. V. , Schuyler 438 State B'k v. Flet- cher 450 Nibert v. Baghurst 132 Niblett V. McFarland 394 Nichols V. Jones 199, 201 Nickerson i7. Loud 418 Nishstt & Potts' Contract, In re / 97 Noel V. Jevon 310 Noel's Ex'r. v. Gill 350 Nogy V. Manitoba Free Press Co 238 NolStn Bros. Shoe Co. v. Nolan 2S1 Norcross v. James 105 Nordenfelt v. Maxim Co 68 Norris v. Fox 179 V. Haggin 154 Norton v. Phelps 315 V. Ray 274 Nottingham Co. v. Butler . . 101, 103 Nowack V. Berger 131, 132 Nutter V. Vickery 422 Nye V. Merrlam 386 Oatway, In re 297 O'Brien v. Boland . . 127, 178 V. Creitz 415 Ocean City Ass'n v. Chalfant 107 O'Donnel v. O'Donnel 133 Ogle, Ex parte 322 O'Grady v. O'Grady 290 O'Herlihy v. Hedges 140 O'Kane v. Kiser 121 Okill V. Whittaker 340, 379 Oldham v. Mt. Sterling etc. Co 390 Oliver V. Dougherty 415 O'Neill V. Webb 57 Onslow V. Wallis 318 Orient Ins. Co. v. Sloan 429 Ormiston v. Olcott 324 Ormonde v. Kynersley 188» Osborn v. Morgan 312 Osborn v. Nicholson , . . . 118 Osborne v. Taylor 436 Owen V. Davies 10 Owings V. Rhodes . .' 326 Pacific B'k v. Robinson 455 Pacific Mutual Life Ins. Co. V. Glaser 406 Packington's Case 186, 188 Paddock v. Davenport . . 43, 56 Padwick v. Stanley 449 Page V. Higgins 339 Page Belting Co. v. Prince & Co 394 Paget V. Marshall 337, 369 Paine v. Meller 118, 119 V. Upton 3S4 Palmer v. DeWitt 226 V. Graham 68 V. Hartford Fire Ins. Co. 338, 356 V. Schribb 265 Palmer v. Young 185 Parish v. Camplin 354 Park & Sons Co. v. Hartman. . 106 Park Bros. v. Blodgett 346, 347, 352 Parker v. Carolina Sav. B'k 456 V. Garrison 45 V. Nightingale . . 101, lOS V. Shannon . 418 V. Tenant 27S Parkin v. Thorold 149 Parkinson. Co. v. Building Trades Council ^ 235 Parry v. Rogers 420 Parsons v. Lyman 263 Parsons v. McKinley 392, 393 Pasley v. Freeman 382, 385 Patterson v. People 243 Paull V. Halferty 237 Pavesich v. New England Life Ins. Co 18, 240 XLIV TABLE OF CASES. .Pawlett u. Att'y Gen'l 308 Pawling \}. Pawling 133 Peabody v. Norfolk 69, 229 Peacock v. Nelson 290 V. Penson 168 Pearce v. Bastable 88 Peck V. Conway 101 V. Jenness 13 Peek V. Peek 136, 142 Peer v. Wadsworth 185 Peers v. Lambert 121 Pegg V. Wlsdep IS.'} Pegge V. Skynner 10, 272 Penfold V. Bouch 286 Pengall v. Ross 131 Pennsvlvanla Co. v. Wolfe ... 65 Pennybacker v. Laidley 383 People V. Central R. R. Co. . . 14 V. Mould 222 ex rel v. Davidson . . . 222 Perkins v. Ede 121 Perkins v. Nichols 283 Persons v. Persons 284 . Perrott's Case 184 Perry v. Strawbridge 293 Perry v. Young 418 Peters v. Delaplane 150 Peterson Co. v. Jersey City . . 445 Peto V. Brighton etc. R. R. . . . 78 Pevis V. Pevis 188 Phelps V. Berkshire St. Ry. Co 196- V. McAdoo 245 Philadelphia Ball Club v. La- joie 173 Co. V. Stinson . . 13 Philbrook v. Delano 291 Philbrick's Settlement, Re .. 318 Phillips V. McAdoo 196 V. Phillips 283, 304, 306, 449 V. Stauch 124 V. Sylvester 117 Pier V. Fond du lac Co 415 Pierce v. Holzer 450 Pierce etc. Co. v. Werckmeis- ter 226 [References are to sections.] Pierson v. Glean 20S Plgot V. Bullock 190 Filling's T'rusts, In re 307 Pillsworth V. Hopton 192, 194, 199 Pirbright v. Salws,y 271 Pironi v. Corrigan 403 Piscataqua Navigation Co. v. New York etc. R. R. Co. ... 220 Pitcher v. Hennesy 346 Pittsburg Nat'l B'k v. McMur- ray 254 Pixley V. Clark 203 V. Huggins 414 Placer Co. B'k v. Freeman . . . 377 Platte Valley B'k v. Skillings Lumber Co 433 Plumer v. Harper 208 Plympton v. Malcolmson .... 227 Poindexter v. Burwell 19 Polhill V. Walter 385 Pollard V. Photographic Co. . . 226 Pollock V. Lester 211 Pomeroy v. Benton 391 Pond V. Sheean 136 Poole V. Koons 11 Pooley V. Budd 48. 83 Portarlington v. Soulby .... 13 Porter v. Frenchman's Bay etc. Co 48 V. Jackson 260 Port Royal R. Co. v. Ham- mond 14 Post V. Emmett 424 Potter V. Couch 314 t). EUice 109 Powell V. Earl of Powis 439 V. Martyr 109 V. Mathis 452 V. Smith 167 V. Tuttle 330 V. Yearance 292 Powell DufEryn' Coal Co. v. Taft Vale Ry. Co 60 Powers V. Flansburg 244 Powys V. Blagrave 185 TABLE or CASES. XL.V [References are to sections.] Pratt V. Kendlg 445 V. Tuttle 269, 449 Presbyterian Church v. Cooper 138 Preston v. Preston .198, 201, 450 Preston v. Smith 449 Price V. Asheton 88, 147 Prince Albert v. Strange . . 226 Proctor V. Thrall 374 Prospect Park etc. R. R. v. i Coney Island etc. R. R. . . 60 Provident Co. v. Mills 116 Prudential Ass. Co. v. Knott 238, 239 Prudential Assurance Co. v. Thomas 428, 429 Pusey V. Desbourrle 374 V. Pusey 46 Putnam i;. Story 306 Pyatt V. Lyons 148 Pye, Bx parte 125, 267, 273 Pynchon v. Stearns 183 Pyrke v. Waddingham 129 Q Quinn v. Patton 434 C,'ilvey V. Parker 362 B Rackeman v. River Bank Imp't Co 404 RalEle.s v. Wiche'aus 370 Randle v. Daughdrill 415 Ranelagh v. Melton 144 Ranelaugh v. Hayes 55 Rankin v. Harper 284 V. Huskisson 70 Rankine v. Metzger 317 Rasch V. Noth 196 Rayner v. Preston 119 Rea V. Wilson ., 343 Reardon v. Reardon 292 Reichenbach v. Quinn 271 Rector of St. David's v. Wood 56 Reece Folding Machine Co. v. * Fenwick 47 Reece Folding Machine Co. v. Earl & Wilson . . 227 Rees V. City of Watertown 18 Regis V. Jaynes 230 Reid V. Sheffy 460 Reilly v. Tolman 410 Renals v. Cowlishaw 93 Rex V. Williams 308 Reynolds v. Waller's Heir . . 394 Rhea v. Shields 458 Rhoten v. Baker 18 Rice V. D'Arville 147 Rice V. Gibbs 147 Richard's Appeal 215 Richards v. Delbridge 267 V. Dower 196 Richardson v. Hardwick .... Ill V. New Orleans . . 297 V. Richardson... 267 Richmond v. Dubuque etc. R. R 44 Rickey L. & C. Co. v. Miller 14 Rideout v. Knox 209 Riegel v. Amer. Life Ins. Co. 367 Riesz's Appeal 124 Rigby V. Connol 242 Rigdon t;. Shirk 414 V. Walcott 394 Riggs V. Palmer 293 Rlleys V. Halifax 196 Riordan v. Banon 292 Ripy V. Cronin 387 Roberson v. Rochester Fold- ing Box Co 18, 240 Roberts v. Amer. Bonding Co. 453 V. Gwyrfai District Council 206 V. Harrison 205 V. Lewis 129 V. Lloyd 261 V. Marchant 109 Robertson v. De Brulatos . . 317 V. Rentz 281 Robes V. Bent '. . . 301 Robeson's Appeal 45i Robinett's Appeal 327 XLVl TABLE 01" CASES. [References are Robinson v. Baugh 214 V. Byron 212 V. Lytton 186 V. Robinson 327 Roca V. Byrne 254 Rochester Distilling Co. v. Devendo 393 Rockhill V. Hanna 316 Roffey V. Shallcross 121 Rogers v. Abbott 362 V. Challis 63 V. Elliott 205 V. Hosegood 95 V. Ingham.. 358, 359, 393 V. Rogers 287 Roper V. Williams 107 Roscoe V. Winder 297 Rtfss V. Butler 213 V. Duncan 271 V. Union Pac. Ry. ...... 61 Rous V. Noble 422 Routh V. Webster 23.? Royal Bank v. Commercial • Bank 455 Bristol Bldg. Soc'y v. Bomash 122 League v. Kavanaugh. . 13 Ruckerman v. Cory 355 Rudd V. Lascelles 124 Rue V. Meirs 67 Rummonth v. White 301 Rumsey v. Sullivan 185 Rushman v. Polsue 213 Russel V. Russel 456 Russell V. Grinnell 318 Russell V. Huntington Nat'l Bk 263 Russia Cement Co. v. Frauen- har 231 Rust V. Conrad 173, 178 Rutherford v. Haven 153 Ryan v. Mutual Tontine etc. Ass'n 80 V. Williams ..'' 285 Ryder v. Bentham 217 Rylands v. Fletcher 203 to sections.] S Sable V. Maloney 355 Sackville v. Ayleworth 420 St. Helen's Smelting Co. v. Tipping 206, 213 St. Louis Life Ins. Co. v. Al- liance Ins. Co 436 Salmon, In re 323, 324 Salomon v. Hertz 69 Salsbury v. Colt 327 Saltmarsh v. Barnett 327 Salton Sea Cases 14 Salusbury v. Denton 286 Salvin v. North Brancepeth Coal Co 192 Sample v. Bridgeforth 366 Sampson v. Shaw 402 Sanders v. Sanders 202 Sandy River R. Co. v. Stubbs 299 Sanford v. Keer 107 Sanger v. Wood 378, 393 Bros. V. Collum 301 Sanxay v. Hanger 418 Sargent v. Hubbard 216 Sartar v. Gordon 46 Saunders v. Dehew 302 V. Vautler 319 Savage v. Stevens 391 Savannah etc. R. R. v. Atkin- son 403 Savile's Case 186 Sawyer, In re 243 V. Davis 207 V. Pickett 382 Saxlehner v. Eisner etc. Co... 230 Scarborough v. Scotten 46 Schafer v. Reilly 303 Schelkampf v. Schrader 194 Schenk v. Schenk : 307 Schlang v. Ladies Waist Makers' Union 235 Schmidt V. Palisade Supply Co 103 Schneider v. Brown 200 Scholle V. Scholle 300 Sehultz's Appeal 292 TABLE OF OASES. XLVIl [References are to sections.] Schultz V. Frankfort etc. Co. 240 ■Schwab V. Cleveland 279 Schwartz v. Edrlngton 239 Scott V. Carron Co 272 1 V. Coulson 367 V. Hanson 158 V. Jones 263 v. Onderdonk 414, 416 V. Scholey 316 Scudamore v. Scudamore . . 448 Seacoast R. R. Co. i;. Wood. . 305 Seavey v. Drake 138 Secor V. Clark 398 Security Fire Ins. Co. v. Kentucky Marine & IMre Ins. Co 52 Seeley v. Brumble 353 Seely v. Bacon 377 Selover v. Island Harbor land Co 57 Seton V. Slade. . ^ 25, 149 Sevin V. Deslandes 73 Seymour v. Delaney 128 v.- Smith 278 Shaler v. Trowbridge 295 Sharington v. Strotton 266 Sharon v. Gager 399 V. Hill 413 V. Tucker 405, 419 Sharpe v. Scarborough .... 316 Shears v. Western 344 Shelter v. City of London Lighting Co 207 Shellenberger v. Ransom 293 Shelton v. Johnson 460 Sheridan, In re 51 Sherman v. Fitch 418 Sherry v. Parkins 235 Sherwood v. Salmon 391 V. Sherwood 351 V. Walker 366 Shirley v. Stratton .... 159 Shivers v. Shivers 218 Shoe & Leatker Nat'l B'k v. Dix 279 Shoemaker v. Hinze 253 Shoemaker v. South Bend etc. Co 238 Shortridge v. Lamplugh 289 Shropshire Co. v. The Queen 302 Shubert v. Woodward 5,8, 62 Sibley v. McAllister 451^ Silliman v. V. S 398 Simmons v. Bedell ,. . . 291 V. Norton 183 V. Palmer 376, 378 Simpson v. Howden 408 V. Savage 217 V. Vaughan . . ; 345 Sismey v. Eley 401 Skehill V. Abbott 283 Skelton v. Skelton 187 Skinkle v. City of Covington 447 Skinner v. Bailey 380 Slaney v. Sidney 431 Slanning v. Style 267 Slater v. Oriental Mills 297 Slaughter's Adm'r v. Gerson 391 Slevin v. Brown 248 Slingerland v. Slingerland . . 133 Slingsby v. Boulton 434 Sloane ■;;. Cadogan 267 Sloo V. Law 329 Sinith, In re 263 Smith V. Allen 301 V. Aykwell ^10 V. Bank of New Eng- land 436, 444 V. Boyd 389 V. Bricker 384 v. Day . 217 V. Flathead River Coal Co 32 v. Floyd 328 v. Fly 334 «. Fuller 325 V. Garland 176 • V. Hatch 130, 131 V. Illiffe ■. 361 V. Land Corp'n 382 V. Richards 384, 387 V. Smith 217 V. Smith, Murphy & Co 382 XLVIII TABLE OF CASES. LReferences are Smith V. Swain 450 V. Turner 133 Smyth V. Carter 183 V. Griffin 401 Smythe v. V. S 322 Snell V. Atlantic etc. Ins. Co. 335, 346 Snook V. Snetzer 13 Snyder v. Hopkins 199 Soltau V. De Held . . 203, 211, 223 Somerset Water Co. v. Hyde 215 Sonley v. . Clockmakers' Co. . . 273 , Southern Plre Brick Co. v. Garden City Co 80 Southern Pacific Ry. Co. v. Allen 149, 155 Southern Ry. Co. v. Franklin & P. R. Co 170 Southern Ry. Co. v. Glenn's Adm's 327 South Wales Ry. Co. v. Wythes '^^ Southard v. Curley 352 Sowles V. Hall 151 Sperry v. Webber Co 234 Speight V. Gaunt 330 Spencer v. Peek 420, 421 Spinning Co. v. Riley 244 Spokane Co. v. First Nat'l B'k of Spokane 297 Sprague v. West 436 Sprake v. Day 110 Sprole V. Whayman 51 Squib V. Wyn 16, 82, 261 Stafford v. Fetters , 346 Stallard v. Gushing ' 218 Standard Elevator ,Co. v. Crane Elevator Co 227 Standard Steel Gar Co. v. Stamm 159 Stanton v. Miller . ; 41 V. Tattersall 404 Stapylton v. Scott 129 Starkweather v. Benjamin . . 391 Starr v. Woodbury Glass Works 196 to sections.] Stale V. Copeland 322 V. Moffett 204 V. Ohio Oil Co 222 V. Patterson 244 V. Porter : . . . . 208 V. Stark 223 V. Union B'k 444 V. Wood 418 Stead V. Fortner 244 V. Mellor 265 Stebbins v. Perry Co 418 Stedman v. Drinkle 151 Steele v. Clark 258 Stelnbach v. Relief Ins. Co. . . 359 Steinmetz v. Kelly 391 Stephens v. Bailey 307 Sternberger v. McGovern . . 124 Sternburg v. O'Brien 80, 81 Stevens v. Keating 227 V. Railroads 411 V. Rose 183, 188 SteVenson v. Anderson. . 426, 429 Steward v. Winters 70 Stewart v. Brand 343 V. Hook 229 V. Pettus 307 V. Piatt 313 Stilf V. Ruby 272 Stinson, In re Estate of .... 44S Stith V. Lookabill 315 Stock V. McAvoy 284 V. Vining 361 Stone etc. Union v. Russell.. 71 Storrs V. Utiea 208 Stovers Adminr's v. Wood . . 387 Strain v. Genoa 412 Streltwolf V. Streitwolf 14 Strickland v. Symons 315 Strohmeier v. Zappenfield 64, 143 Strong V. Williams 459 Stroup V. Stroup 311 Stuart V. Pennis 42 Sturge V. Starr 304 Sturgis . V. Bridgman 206 Sullivan v. Jennings 165 V. Portland etc. R. R. 31 Summers v. Griffiths 397 TABLE OF CASES. XLIX [References are to sections.] Supervisors v. Deyoe 436 Sutterthwait v. Marshall 65 Snitton V. Hayden 89 Swaine v. Gt. Northern R. R 214 Swale V. Swale 329 Swaisland v. Dearsley .... 162 Swedesboro Loan Ass'n v. Gans 372, 373, 374 Sweetapple v. Bindon 311 Sweeting v. Sweeting 292 Swift V. Rounds 382 Tabor v. Cilley 347, 357 V. Hoffman 229 TafE Vale Ry. Co. v.. Nixon 449 Tait's Case 392 Tallmadge v. East River B'k 101 Talmash v. Mugleston. .25, 34, 154 Tamplin v. James 165 Tankersley v. Anderson .... 453 Tarleton v. McGawley 237 Tayloe v. Merchants' Fire Ins. Co 52 Taylor v. Kelly 115 V. Millard 97 V. Mitchell 89 V. Neville 53 V. Vale 266 Tenham v. Herbert 446 Tewkesbury v. Howard 129 Thackeray v. Eldigan 184 Thackrah v. Haas 394 Thayer v. Dewey 324 Third Ave R. R. v. Mayor 245, 447 Nat'l B'k V. Lange 305 Nat'l B'k V. Skillings Lumber Cot 433 Thomas v. Beals 396 V. Borden 68 de York v. Thomas de Crop 398 V. Howell 109, 112 V. Oakley 194 Thomassen v. Van Wyngaar- den 261 Thombleson v. Black 47 Thompson's Appeal 445 Thompson v. Gibson 208 V. Gould 118 V. Rose 301 V. Thompson 113 V. Winter 147 Thornton v. Knight 407 Thorpe v. Brumfitt 210, 218 Thum Co. V. Tloczynski 69 Thurber v. Meves 177 Thurston v.. Blanchard 395 Thweatt v. Jones 43 Tidd V. Lister 320 Tierney v. Wood 268 Tilden v. Green 270 Tilley v. Thomas 152 Tillinghast v. Merrill 322 Tillis V. Smith 353 Tillman v. Kifer 290 Tillott, In re 321 Tinkham v. Heyworth 255 Titcomb v. Morrill 290 Title & Document Co. v. Ker- rigan 419 Titley v. Wolstenholme 328 Toledo etc. R. R. Co. v. Pa. Co. 18 Tomlinson v. York 126 Tompkins v. Craig 444 V. Halleck 226 Tonson v. Collins 226 Torrance v. Bolton 368, 383, 386 Torrence v. Davidson 320 Totten, In re 273 Town of Sharon v. Gager ... 399 Town of Venice v. Woodruff. . 412 Townley v. Bedwell 112 Townsend v. Champernoune. 108 TVegonwell v. Sydenham 286 Tribette v. 111. Cent. R. R. Co 440, 441 Triebert v. Burgess 51 Trower v. Newcome 158 Trueblood v. Hollingworth . . 202 Trust Co. of Ga. v. State ... 244 TABLE, , OF OASES. [References are .to sections.] Trustees of Columbia College V. Lynch 103 Tucker v. Howard 218 Tulk V. Moxhay 94-105 Turner v. Green 159 V. Hampton 78 V. Mlrfleld 211 V. .Russel 450 V. Turner 367, 373 v.. Wardle 274 V. Wright 187. 188 Turnipseed v. Slrrine 89 Tuttle V. Buck 237 Twining v. Morice 162 V. Nell .' 166 Terrell's Case 248 Tyson v. Jackson 263 Uhlman v. N. Y. Life Ins. Co. 449 Ungley v. Ungley 132 Union Trust Co. v. Olmstead 11 U. S. V. Bussey 435 17. Debs 244 Frame & Picture Co^ v. Horowitz 231 ex rel. Guaranty Trust Co. V. Haggerty 235 V. Huckabee 398 V. Munroe 352 Uzzell V. Mack 450 Vanatta v. Llndley 408 Vanderbilt v. Mitchel 233, 238, 241, 389 Van der Volgen v. Yates 288, 289 Van Duzor v. Allen 301 Van Dyne v. Vreeland ... 89, 422 Van Horn v. Clark 139 Van Horn v. Van Horn 234 Van Joel v. Hornsey 217 Van Praagh v. Everidge 164 Vane v. Lord Bernsird . . 186, 189 Vansant v. Rose 98 Vassar College v. Loose-Wiles Biscuit Co 232 ■Venice v. Woodruff 412 Vernon's Case 311 Vernon v. Keyes 387 V. Stephens 151 Very v. Levy 65 Vickery v. Welsh 229 Victoria Ins. Co. v. Bethune. 435 Vieley v. Thompson 443 Vile V. Pa. R. R 208 Volmann v. Michel 276 W Wabash R. R. Co. v. Hanna- han 235 Wadsdale, In re 304 Wadsworth, Matter of 328 Wagner v. Wagner 319 Wainscott v. Bldg. & Loan Ass'n 386 Wake V. Tinkler 279 Wakeman, v. Dodd 300 Walcott V. Walker 226 Waldron v. Letson 361, 362 Walker v. Collier 260 V. Walker 267 Wall V. Stubbs 158 Wallace v. Castle 256 V. Chicago etc. R. R. 391 V. Holmes 227 Walls V. Brundidge 243 Wampler v. Wimpler 382 Wannamaker v. Brown 124 Ward V. Spelts 356, 391 Warfield, Ex parte 241 Warlier v. Williams 201 Warner v. Bassett 227 Warren v. Parkhurst 210 Warrington v. Wheatstone . . 428, 429 Washburn v. Bur nham .... 414 V. Miller 195 V. Great Western Ins. Co 369 TABLE OF OASES. LI [References are to sections.] Washington Co. v. Williams 441, 444 Washington Gas Light Co. v. District of Columbia 451 Wass V. Mugridge 88 ^aterhouse v. Stansfield ... 11 Waterloo Milling Co. v. Kuen- ster & Co 256 Waterman v. Shipman 231 Watson V. Colusa-Parrot Co. 210 V. Hunter 189 V. Marston 166 V. Sutherland . . 189, 202 Watts V. Ball 311 V. Kellar Ill, 178 V. Turner 318 Weakly v. Roger 273 Weall, In re 330 Weaver v. Lelman 25 Webb V. Hughes 155 V. Jonas 324 V. Jones 218 Webber v. Timlin 243 Webster v. Cecil 163 V. Dillon 80 V. Stark 340 Wedgwood v. Adams 168 Weeks v. Love 444 Weniger's Policy, In re .... 306 Weis V. Meyer J 90 Welch V. City of Boston 427 Welch's Adm'r v. Welch . . 344 Wellenvoss v. Graad Lodge.. 242 Weller v. Smeaton 211 Wells V. Calnan 118 V. Cook 385 V. Ross 449 V. Smith 151 Welsh V. Crater 448 Welton V. Tizzard 343 Welty V. Jacobs 78 Werckmeister v. Springer Co. 226 Wesson v. Washburn Iron Co. 225 West, In re 287 West V. Brown 219 V. Chasten 453 Western R. R. Corp'n v. Bab- cock 165 Western Wagon Co. v. West 63 Wetherill v. Hough 448 Wetmore v. Porter 277 Whalen v. Union Bag & Paper Co 215 Whaley v. Norton 401 Whatman i;. Gibson 94 Wheatley v. Slade 122 Wheaton v. Peters 226 Wheelock v. Noonan 196 Whitaker v. Howe 68 White V. Chapin 96 V. Nutt 118 V. White ; 361 Whitehouse v. Cargill 260 Whitfield V. Bewit a85, 190 Whitney v. Union Ry. Co. 107 Whiton V. Whiton 89 Whittemore v. Farrington . . 340 Whittenton v. Staples 102 Whittingham v. Thomburg . . 382 Whittlesy v. Hughes 328 Whitworth v. Gaugain 315 V. Harris 65 Wickersham v. Whedum 262 Wilcocks V. Wilcocks 21 Wilder v. Ranney 448 Wilding V. Bolder 272 Wilkes- V. Spooner 100 Wilkinson etc. Co. v. Mcll- quam 220 Willard V. Tayloe 168 Williams v. Day 187 V. Donnelly 303 V. Duke of Bolton . . 190 V. Kerr 386 V. Mcllroy 301 V. ThTfving Electric Co 374 V. Wessels 124 V. Williams 68, 324 Williamson v. Jones 187 Williard v. Williard 184 Wills V. Stradling 133 • UI TABLE OF CASES. [References are to sections.] Willson V. Louisville Trust Co 227 Wilmarth v. Woodcock 196 Wilson V. Carpenter's Adm's. 386 V. Powkes 29 V. Furness Ry. Co. . . 58 V. Josephs 13 V. Miller 419 V. Townsend 217 V. Williams 122 Winans v. Wlnans 285 Wing V. Spaulding 426 Winnett v. Adams 243 Winship v. Pitts 183 Winston v. Westfeldt 10, 410 Witham's Case 312 Withy V. Cottle 50 Wolford V. Stokor 286 WolmerhauseA v. Gulick 453 Wombwell v. Belasyse 188 Wood V. Griffith 64 V. Midgely 141 V. Scaith 165 V. White 351 Woodhouse v. Crandall 297 V. Newry Navi- gation Co 196 Woolapi V. Hearn 347 Wpolums V. Horsley 128, 159 World's Dispensary Ass'n v. Pierce 231 Worrell v. Harford 315 Worthington v. Miller 415 V. Waring 236 W. R. Lynn Shoe Co. v. Au- burn-Lynn Shoe Co 231 Wright V. Cobleigh 279 V. Eisle 226 V. Raftree 134 Wyatt V. Carwithen 19 V. Harrison 203 Wych V. East India Co 276 Wyche v. Greene 344 Wycofe etc. v. Howe Scale Co. 231 Wykle V. Bartholomew 355 Wylly's Trusts 326 Wynne v. Hawkins 265 V. Humberston 321 Yarhorough v. Thompson . . . 435 Yates V. Jack 217 Yeatman v. Sav'gs Inst'n 313 York V. Hlnkle 399 V. Pilklngton 245, .439 Young V. McGown 362 V. Overhaugh 138 V. Young 89 EQUITY CHAPTEE I Inteodtjction. A. Brief History of Equity. § 1. Equity as a stage in our legal development.^ The law of every country in the civilized world is based either on the Roman " Law or on the English Common Law. Each of these systems shows, roughly speaking, four stages of development, equity being the third. In the first stage of archaic law, the state is so weak that it does not undertake to work out justice; it merely tries to keep the peace by buying off the injured party and thus satisfying his desire for re- venge. In the second stage of strict law, the state does 1. Lack of space forbids anything but the merest outline of the historical development. See Kerley's Historical Sketch of the Juris- diction of the Court of Chancery and the Introduction to Adams' Equity. See also 27 Harv. Law Rev. 195-234, The End of Law, by Roscoe Pound; 16 Col. Law Rev. 87-98, The Origin of English Equity, by George Burton Adams; 13 Col. Law Rev. 696-713, Justice According to Law, by Roscoe Pound; 13 Mich. Law Rev. 293-301, The Early History of Equity, by W. S. Holdsworth; 11 Mich. Law Rev. 537-571, Relations between Law and Equity, by Wesley N. Hohfeld; 3 Amer. Law School Rev. 172-182, The Place of Equity in our Legal System, by Henry Schofleld; 25 Yale Law J. 42-57, A Glance at Equity, by Robert L. Munger; 21 Yale Law J. 58-71, Confusion of Law and Equity, by H. H. Ingersoll; and 26 Yale Law J. 1-23, Relation of Equity Administered by the Common Law Judges to the Equity Administered by the Chan- cellor, by W. S. Holdsworth. (1) 2 INTRODUCTION. [Chap, i undertake to do justice by giving legal remedies to the injured party. In this period the law consists of rules for getting into court; these rules needed to be certain in order to avoid dispute and thus to sup- press self help, because men were still much more inclined ^to use their' fists than their reasoning powers. The emphasis during this period was thus upon reme- dies; while there was an attempt to work out justice, the attempt was a very crude one from our modern point of view because of the importance of certainty. As men's sense of justice developed, such an unmoral, formal system became inadequate. This brought about the third stage known in our system as equity and in the Eoman Law system as natural law. This was a period in which morals were infused into the law. The emphasis came to be laid not upon remedies but upon duties and the aim of the legal system was to reach an ethical solution of controversies. In the fourth stage of the maturity of law, equity became more or less completely merged into the legal system. This merger took place completely in the Eoman Law but in our system the process is still going on. The emphasis in this period is not upon remedies or duties but upon rights. § 2. Development of Roman and English law contrasted. As we have just seen, both the Eoman Law and the English Common Law systems passed through the stage of equity or morals infusion. But there was one important difference: in Eoman Law this was done by the regular magistrates, while in the English system it was done by a separate court. It is largely an accident of history that it was so. If the judges of the common law courts of the sixteenth century had been sufficiently strong, broadminded men we might have had the common law moralized without the neces- sity for a separate court. ^ 4] INTBODtrOTION. 3 § 3. The English courts before Equity. Before the Norman Conquest of England in 1088 justice was administrated in England chiefly in people's courts and the law enforced was in the strictest sense unwritten; i. e. it was handed down by oral tradition. After the Conquest, the • king gradually established a system of royal or King's courts which eventually all but crowded out the Au'glo-Saxon courts.- The theory of the King's courts was that the king was the fountain head of all justice and the judges acted as his agents. . This was not only theory but fact, and it was not till several centuries later that the inde- pendence of the English judiciary became established. Purely traditionary law, being administered by the people themselves, does ttot need to be justified to the people. But the law as administered by judges who are set over the people must be thus justified. The judge must give his reason or basis for his decision. In the Eoman Law there were statutes — the Twelve Tables — upon which to rest decisions, but in English law there being no such early statutes, the habit grew up of de- ciding according to the decisions of previous eases and in the absence of such precedents, according to a judicial reasoning which its^elf became traditional. This habit of adhering to precedent became so firmly fixed that when it became necessary to relieve against this formal and rigid system in order to meet the demands of a later and more complex civilization, the common law judges were not equal to the task and the work fell into other hands. § 4. The English court of chancery or eqtiity. The English king was in theory and fact the fountain of justice If justice could not be procured in the common law courts, the disappointed party might be able to get justice by appealing directly to the king. The king usually was not skilled in law, and he would naturally turn to some one of his advisers who 4 INTRODUCTION. [Chap, i was. The adviser to whom were entrusted these ap- peals for justice outside the common law courts was the king's secretary or chancellor. These early chan- cellors were clergymen, not learned in the common law, but in the Roman and canon or church law. It was quite natural, therefore, that when the king through his chancellor gave relief it was done on ethical grounds. Gradually the business of relieving from the inadequacies of the common law system became so great that the chancellor came to have a separate court, which became known as the court of chancery or equity. In this country the terms -chancery and chancellor have been used in only a few jurisdictions. § 5. The defects in the common law. As already stated, it was the formalism and con- servatism of the common law which led to the establish- ment of the court of chancery. These defects may be more particularly classified as follows: 1. The rigidity of the common law. For example, the common law judges failed to give any remedy against a trustee except in certain simple cases, and trusts thus became an almost exclusively equity sub- ject. Another example of rigidity was that the judg- ment of a common law court was absolute, either for the plaintiff or for the defendant; the decree of a court of equity on the other hand, may be conditional. 2. The negative nature of the law. The com- mon law courts could not, or at least would not com- mand the parties, except in the extraordinary remedy of mandamus. The only command given was that to the sheriff, either to turn over to the plaintiff some ■ specific property hitherto in the possession of the defendant, or to take and sell enough of the property of either party to satisfy the money judgment of the court. The power to command the defendant is one of the distinguishing features of a court of equity. 3. The common law can deal only with a two- sided case; equity can deal with any number of sides, § 6] INTRODUCTIOlir. 5 settling the rights of all the parties against each other. A good illustration is- the power of a court' of equity in winding up a partnership determining in one suit the rights of the individual creditors and the partnership creditors against the firm and the jights of the members of the firm against each other. It is one of the aims of equity to prevent, where feasible, a multiplicity of suits. 4. The exclusively contentions nature of the law. A law court will only deal with the case of an infringed right ; it waits till the harm is done and then redresses the wrong. A court of equity exercises a preventive jurisdiction and will enjoin the threatened injury. A good illustration of this is an injunction given to a landlord against a tenant 's cutting down valuable trees ; the common law court would be compelled to wait till they were cut down and give merely a money judgment by way of redress. § 6. Administration of equity. In England the court of Chancery existed as a separate court down to the Judicature Act of 1873, when all the courts of England were consolidated into one court and each division of it was clothed with both law and equity powers.^ In this country there are now, roughly speaking, three ways of administering equity.^ The first method is by having a separate court of equity; this is, of course, similar to the Eng- lish method before 1873. This method exists in Ala- bama, Delaware, Mississippi, New Jersey, Tennessee, and Vermont. By the second method of administration equity and law are administered by the same courts, but the procedure is kept distinct. This method is followed in Florida, Illinois, Maine, Maryland, Massa- 1. See "The Operation of the Reformed Equity Procedure in England," 26 Harv. Law Rev. 99-107. 2. For a brief history of the changes of administration in many of the jurisdictions see 16 Cyc. 24-27. 6 iNTEODTJCTioiT. [Chap, i clmsetts, Michigan, New Hampshire, Pennsylvania, Ehode Island, Texas, Virginia, West Virginia, and in the Federal courts.^ In all other jurisdictions, follow- ing the lead of New York, codes of procedure have been adopted, which purport to abolish the distinction be- tween law and equity .procedure; under these codes, however, it has been generally held that essential distinctions between legal and equitable rights and remedies still exist. B. Limits and Nature op Equity JuKisDicTroifr. § 7. Possibilities of equity jurisdiction. As has been already pointed out,^ after the Norman Conquest of England, the king was considered to be the'" fountain head of justice ; the common law judges were his agents but with only a limited authority to hear and adjudicate certain specified causes of action. But the early chancellors represented the king directly. The king's jurisdiction was limited only by the bound- aries of England; all persons and property within' his dominions were subject to it; there was no reason in the nature of things why the chancellors, to whom was delegated this power of the king, should not have had a complete and universal jurisdiction. But in so far as the common law courts gave completely ade- quate relief, there was no justifiable occasion for in- terference; besides, an attempt to exercise such a broad jurisdiction would have brought them into serious conflict with the common law courts. Very early, there- fore, some limitations were set upon the exercise of their jurisdiction, some of which have become so rigid that they are generally considered limitations upon the very existence of jurisdiction. 3. See "One Year under the New Federal Equity Rules of 1913," 27 Harv. Law Rev. 629-639. 1. See ante § 3. ■^ 8] INTRODUCTION. 7 § 8. Limitations on the existence of equity jurisdiction. Altho courts of equity are accustomed to say that a court of equity does not have jurisdiction in such and such a case, most of these limitations are restric- tions only upon the exercise of their jurisdiction and not upon its existence; that is to say, they are limita- tions whicji courts of equity are at liberty to disregard if in their discretion they deem it wise and expedient to do so. There is one limitation, however, which prob- ably no court of equity at the present time feels at liberty to disregard, viz., that equity will act only if it acquires jurisdiction over the person of each of the parties to the litigation — ^jurisdiction of the property involved not being enough.^ This limitation is such a handicap that , nearly everywhere statutes have been passed giving to courts of equity jurisdiction in rem in specified classes of cases. Two other re- strictions, viz., that equity will not interfere if the common law remedy has always been plain, adequate, and complete, and that equity will not restrain crime or criminal proceedings, are frequently referred to as if they were limitations which were absolutely binding upon the equity courts. However, the fact that the restrictions are subject to some exceptions and modi- fications'' tends to show that they are merely limitations upon the exercise and not upon the existence of equity jurisdiction.' These restrictions will be discussed more fully late?.* 1. But see post § 361. 2. If a defendant wishes to object that the plaintiff had a plain and adequate remedy at law, he must do so at the earliest opportunity; and if he does not, the objection is waived; Brown v. Lake Superior Iron Co. (1890) 134 U. S. 530, 535. See 10 Col. Law Rev. 365; 7 id. 533; 27 Harv. Law Rev. 368 (acquiring jurisdiction by estoppel) ; 24 id. 239, discussing Forman v. Bostwick (1910) 139 N. Y. App. Div. 333. 3. A decree which violates these rules can -not be questioned col- laterally; Mellen v. Moline (1888) 131 U. S. 352, 367. Though of course it is subject to reversal if the objection was taken promptly but over- ruled. 4. S6e post §§ 244, 245. 8 INTRODUCTION. [Ohap. i § 9. Equity acts in personam, not in rem. The jurisdiction of a common law court may be based either upon its control over property or upon the fact that the . defendant has been served with process or has voluntarily submitted himself to the court's jurisdiction.^ The jurisdiction of an equity court is based, in the absence of a statute, upon the second ground alone, viz., getting control of the person. Procedure in a common law court may be either in personam, ending in a personal judgment for damages, or it may be in rem; proceedings in rem are brought to recover the possession of property or to have a judicial declaration of a property right. Proceedings in rem are usually brought against a specific person or persons ; in such a case the judgment is decisive only as to such person or persons. For example, if A sues B in replevin for a horse and gets judgment against B, this binds B but it does not prevent a stranger, X, from suing A in replevin for the horse and getting a judgment against A. But proceedings in rem may be brought against all the world; outside of admiralty* these are modern and statutory and are practically limited to the settling of title to land. In such a proceeding any one who has a claim may come in and assert it and hence every one is bound by the judg- ment. Proceedings and judgments may thus be said to be either (1) in personam, (2) in rem, binding only 1. The terms in rem and in personam are used not .only to desig- nate the two different kinds of jurisdiction but also in classifying rights, actions, judgments, and executions. As applied to jurisdiction the phrases mean "on" or "over" rather than "against" the property or person. In connection with executions, on the other hand, the phrases are used in their literal sense. The term "right in rem," is used to indicate a right which is available against people generally instead of against definite persons, the latter sort of right being called a right in personam. The phrases as applied to actions and judgments are sufficiently explained in the text. See also post § 280. 2. Such proceedings are common in admiralty law, which au- thorizes actions to be brought against a ship or cargo; these actions lead to Judgments binding the interests of all persons in the property. >§. iO] INTRODUCTION. 9 on particular individuals, or (3) in rem binding the whole world. Apart from statute the proceedings and judgment^ in an equity court are in personam only. Executions in a common law court, except in man- damus are in rem and not in personam. If the judg- ment is that the plaintiff do recover a specific piece of property, the sheriff places the plaintiff in posses- sion of that property. It the judgment is that the the plaintiff recover a certain sum of money as damages and the defendant fails to pay, the judgment plaintiff -may then have a writ of execution issued to the sheriff authorizing and commanding the sheriff to levy upon the defendant's property, to sell it at public sale and with the proceeds to satisfy the plaintiff's judgment. In the extraordinary common law action of mandamus, and in equity, however, the decree merely orders the defendant to do or to refrain from doing some act ; if he refuses in spite of being imprisoned and having his property sequestered, the court is unable to bring about a performance of the decree, apart from statute.* § 10. Decree of equity court does not affect the legal right. Another way of saying that equity acts only in personam is to say that the decree of an equity court does not affect the legal rigbt; the legal right is affect- ed only by that which is done in obedience to the decree. This was the natural result of equity being administered by a separate court. If a common law court had said that the legal right was in A and an equity court had said that it was not in A but in B, 3. The judgment of an equity court is usually called a decree. 4. It was a weakness of the common law courts that except In mandamus, they were unable to command the defendant; it is a weak- ness of equity that without a statute it can proceed only by command. Statutes are desirable not only to give equity courts jurisdiction in rem but also to have their decrees operate in rem. See post § 12. In most states statutes of thi^ sort have been passed. See Huston, The En- forcement of Decrees in Equity, pp. 157-183 for a compilation of the Statutes, ■ 10 iNTEODuoTiON. [Chap, i chaos and confusion as well as conflict would have resulted. Thus, a decree that an obligation be delivered up and cancelled does not of itself avoid the obligation; as it has been expressed:^ "But to execute this [de- cree], the chancery can do nothing but order him to prison, there to remain until he will obey. And this is all that the court can do. And if the party will lie in prison rather than give up the obligation the other is without remedy, and so the Chancellor has no power to nullify the obligation." So, an injunction against negotiating a negotiable note does not destroy the negotiability of the note.* An injunction against the enforcement of a common law judgment — for example, on the ground of its hav- ing been fraudulently obtained — does not affect the validity of the judgment;^ if the defendant is willing to remain in prison for contempt, he may have ex- ecution on the judgment. And a decree that the de- fendant convey land to the plaintiff does not affect the legal title to the land. Hence, if the defendant is in- sane or 'paralytic and therefore unable to execute a conveyance, all that the equity court can do is to de- cree that the defendant convey when he shall have re- covered from his insanity* or paralysis." Legislation is especially necessary here in order to avoid in- justice, and statutes usually give power in such cases to courts of equity to take the legal title and pass it either by their decree or by conveyance executed by some ofi&cer of the court such as a master in chancery. 1. J. R. V. M. p. and Others, (1459) Year Book 37 Henry VI, folio 13, placltum 3, 1 Ames Eq. Cas. 1. 2. Winston v. Westfeldt (1853) 22 Ala. 760, Ames Vol. 1, 3. 3. See Littleton 3T; "If judgment be given in an action at common law, the chancellor cannot alter or meddle with the Judgment, but he may proceed against the person for corrupt conscience, because he will take advantage of the law against conscience;" 1 Ames Eq. Cas. 4. 4. Owen v. Davies (1747) 1 Vesey Sr. 82. 5. Pegge v. Skynner & Richardson (1784) 1 Cox Eq. Cases 23, t Ames Eq. Cas. S. § 11] INTRODUCTION. 11 § 11. Commanding an act within the jurisdiction which affects property outside. If the defendant has been properly served with process or has submitted to the jurisdiction of the equity court, it is not necessarily an objection to giving a decree that the act commanded to be performed would affect property outside the jurisdiction. In Gardner v. Ogden^ suit was brought in New York to avoid as fraudulent a deed to land in Illinois, and to compel the defendant to reconvey the land to the plain- tiff. The court gave the decree asked for. It is to be noted that the act of conveyance could take place in New York; it was not necessary for the defendant to go to Illinois to do it. If the conveyance is executed in New York according to the formalities prescribed by Illinois law as to deeds of conveyance of land, it will be recognized and given effect to in Illinois; it will be no more an objection that the defendant acted under the compulsion of a New York court than if he had acted under the complusion of an Illinois court. This is so because of the provision in the United States Con- stitution requiring that full faith and credit be given to the judgments and decrees of sister states.^ There 1. (I860) 22 N. Y. 327, 1 Ames Eq. Cas. 6. 2. Where a mortgage covers land which is partly In one state and partly In another, and foreclosure and sale Is sought. It Is obvious that In order to secure practical justice by having the property sold as a unit the court of one state must act; the court first appealed to will usually give relief by requiring the mortgagee tp convey the foreign property to the purchaser at the foreclosure sale. Byrne v. Jones (1908) 159 Fed. 321; Union Trust Co. v. Olmstead (1886) 102 N. Y. 729, 7 N. B. 822, 1 Ames Bq. Cas. 23. When the land mortgaged Is entirely in another jurisdiction a court of equity will refuse to grant a (^cree of foreclosure and sale because that would usually require the presence of its own court oflBcers in the other jurisdiction or else a sale at a distance from the property, which would mean probably a sale at a serious sacrifice, but in a few cases a decree of strict foreclosure (i. e. without sale) has been granted; but It would seem that' such decrees should be given only in exceptional cases. See Baton v. Mc- CaU (1894) 86 Me. 350, 29 Atl. 1103, 41 Am. St. Rep. 561. 12 INTRODUCTION, [Chap, i seems to be no insuperable objection to an equity court of one of our states decreeing the conveyance of land in Canada or England, both of which countries , have the same legal system as our own,^ but it is be- lieved that no case of that sort has arisen; it is not likely to arise in the future because of the large num- ber of statutes giving equity courts jurisdiction in rem and giving their decrees operation in rem.* * § 12. Statutes giving jurisdiction in rem. As stated previously, an equity court gets its juris- diction — apart from statute — only by personal service of process. So called "constructive service" by pub- . lication is not service at all ; it is never sufficient as a basis of personal jurisdiction; it is appropriate only where the jurisdiction of the court is based on the control of the property and it then performs the office of notifying persons interested in the property to come in and litigate to protect their interests. So called constructive service is proper in divorcee proceed- ings were jurisdiction is based upon the matrimon- ial domicile ;^ also in foreign attachment proceed- 3. It Is not likely that any Anglo-American court would render a decree directing the conveyance of land in Continental countries, he- cause conveyances in those countries must usually be made by the parties going before the local magistrate. Since there would be no way of overseeing the carrying out of the decree such a decree would be futile and a court of equity will not waste its time giving an obviously futile decree. See post § 13, 26 Harv. Law Rev. 294; Waterhouse v. Stansfleld (1852) 10 Hare 254. 4. See 6 111. Law kev. 545 criticising Poole v. Koons (1911) 252 111. 49, 53, 96 N. E. 556 for saying that there was no difference between ordering the defendant to convey Arkansas land and ordering the master in Chancery to do so. 1. For example, if the matrimonial domicile is Ohio, the removal of pither the husband or wife from the state after cause for divorc* has arisen will not affect the right of the other party. Suit may be brought in the Ohio court, and notice of the proceeding be published according to statutory ■ requirements. The statute in order to be due process must provide for reasonable publicity. See 13 Col, Law Rev. 241. § 12] > INTRODtrCTIOlT. 13 ings^ where the jurisdiction is based iipon control over the property attached and in garnishment proceedings* where the jurisdiction is based upon the control over the debtor's chose in action which the court has through its control over the debtor's obligor. If a court of equity is by statute given, jurisdiction in rem, so called constructive service by publication is proper. But in addition to the power to take jurisdic- tion in rem a court of equity needs also to be given the power, to render decrees in rem. This may be done either expressly or by necessaiy implication. If a statute authorizes courts of equity to exercise juris- diction in rem, it would seem, by necessary implication, to authorize the giving of decrees in rem in such cases, because it would be of no value to "hear the case with- out personal service unless the court could also give a decree not involving a command to the defendant. But if a statute merely provides for execution in rem it is not a necessary implication that the court may exercise jurisdiction in rem, because power to give a decree in rem is important even where the court has personal jurisdiction; for example, where the defend- ant has been duly served with process but is now in- sane or absents himself from the jurisdiction or merely refuses to obey the command of the court. On the other hand, if a statute merely provides for the exercise of jurisdiction in rem the necessary implication of power to give decrees in rem will only exist as to pro- ceedings which are begun under such a statute; the cases just mentioned where the proceeding has been in personam but the defendant is unable or unwilling to perform the personal decree would not be covered by 2. If A of Nebraska owes a debt of $500 to B of Iowa and owns some cattle in Iowa, B may attach tbe cattle and thus avoid having to sue A in Nebraska. 3. If X of Iowa owes A, of Nebraska, a debt, B Is able by garnish- ment proceedings In Iowa to compel X to pay .the debt, to B instead of to A and thus to get payment of his own claim against A. 14 iNTEODircTioiT. [Chap, i the implication.* It is therefore of great importance that legislation should expressly provide not only for jurisdiction in rem but also for giving decrees in rem in cases where the proceeding is in personam but a de- cree in personam would not be effective. A Texas statute providing that "when the judgment is for the conveyance of real estate or for the conveyance of personal property, the decree may pass title to such property without any act to be done on the part of the party against whom the judgment is rendered" provides, of course, only for execution in rem, not for jurisdiction in rem and therefore does not authorize a suit to quiet title against non-resident defendants.® On the other hand, an Illinois statute which authorized the exercise of in rem jurisdiction was held thereby to authorize also the rendering of an in rem decree in such a proceeding.® Such legislation should be made broad enough to cover all the cases where jurisdiction in rem and ex- ecution in rem are needed. In Massachusetts it was held'' that a statute giving courts of equity power to take title away from a trustee who was an infant or insane or out of tlj.e state and vest it in a new trustee was not broad enough* to authorize similar action in a suit for specific performance against a non-resident.' 4. For cases of jurisdiction in personam followed by a statutory decree in rem, see Matteson v. Scofield (1871) 27 Wis. 671; Langdon v. Sherwood (1888) 124 U. S. 74. 5. Hart V. Sansom (1884) 110 U. S. 151, 1 Ames Eq. Cas. 11. 6. Cloyd V. Trotter (1886) 118 lU. 391, 9 N. E. 500. 7.. Merrill v. Beckwith (1895) 163 Mass. 503, 40 N. E. 855. 8. If the land as well as the person is outside the jurisdiction, statutes are powerless to aid the plaintiff. Jurisdiction must he based either on the property or on the person. Hence if in a suit for specific performance ot a contract to convey land the defendant is in New York and the land Is in Pennsylvania, no suit whatever can be brought in any other state; Corbett v. Nutt (1870) 10 Wall 464. 9. See 15 Col. Law Rev. 37-54; 106-141; 228-252; Powers of Courts of Equity, by W. W. Cook. ^ '^ 13] INTEODUCTION. 15 1 13. Enjoining acts abroad. Suits abroad. A defendant within the control -of an equity court may be enjoined from doing an act anywhere in the world, since he ,may obey the decree without leaving the jurisdiction or subjecting himself to the laws of other countries.^ For example, it will in a proper case enjoin a defendant from committing a trespass in another jurisdiction.^ Where the act sought to be en- joined is that of suing the plaintiff in another jurisdic- tion, an injunction will usually be granted in those cases where relief would have been given against such a suit in the same jurisdiction.* On the other hand, the mere fact that the plaintiff has succeeded in getting personal service upon one who has started (or is about to start) suit against the plaintiff in another jurisdic- tion, does not entitle him to have the suit in the other jurisdiction enjoined and the merits of the ease tried in the court in which he is plaintiff. Whether a court will give relief will depend upon the balance of con- venience in the particular case. The respect which is due to foreign tribunals should require the plaintiff to make out a very strong case before relief should be granted. The general rule is that the court which first gets jurisdiction is entitled to retain it. As said by Mr. Justice Grier in Peck v. Jenness,* the rule is founded on necessity. "For if one may erijoin, the other may retort by injunction, and thus the parties be without remedy; being liable to a proceiss for con- tempt in one if they dare to proceed in the other." The mere fact that the foreign court is likely to decide the case contrary to the way in which the decision would be made in the court where the injunction is 1. Philadelphia Co. v. Stimson (1912) 223 U. S. 605; 26 Harvard Law ReView 293. 2. Great Falls Mfg. Co. v. Worster (1851) 23 N. H. 462. 3. Portarlington v. Soulby (1834) 3 Mylne & Keen 104; 1 Ames Eq. Cas. 24. ., 4. (1848), 7 How. (U. S.) 612, 625. 16 INTRODUCTION. [Chap, i sought is not ground for relief.** But in Miller v. Gittings*? the court enjoined a suit in New York on the ground that the defendant was attempting thereby to. evade the policy of the Maryland law prohibiting im- prisonment for debt. And in some cases the evasion of exemption laws by foreign attachment has similarly been enjoined.'^ It is to be noted, however, in these •cases that much emph,asis is laid upon the fact that the defendant was a citizen of the state in which the injunction was obtained, the inference being that the court would probably not grant such relief against a non-resident, and apparently there are no cases going so far. § 14. Decrees involving affirmative acts abroad. Where the carrying out of a court's decree would involve affirmative acts of its own officers abroad, re- lief will usually be refused. Thus, in a suit for parti- tion of foreign land, if there is any dispute as to whether the land can properly be divided specifically, it would be necessary for an officer of the equity court to go on the land in order to make a proper sale; since the court is not in a position tp protect its officer it will generally refuse to exercise its jurisdiction.^"^ A somewhat similar situation arises where a decree is sought commanding a defendant to do some act abroad. Relief is usually denied. For example, a court will generally refuse to order the abatement of a foreign nuisance.^ Specific performance of a contract to dig a ditch in another state has been denied.* And t 5. Royal League v. Kavanaugh (1908) 233 lU. 175, ' 84 N. E. 178. See 26 Harvard Law Review 292-296; 347. 6. (1897) 85 Md. 601, 37 Atl. 372. 7. Snook V. Snetzer (1874) 25 0. St. 516; Wilson v. Josephs (1886) 107 Ind. 490, 8 N. E. 616. 1. Carteret v. Petty (1675) 2 Swanston 323, note (a), 1 Ames Eq. Cas. 21. 2. People V. Central R. Co. (1870) 42 N. Y. 283. 3. Port Royal R. Co. v. Hammond (1877) 58 Ga. 523. § i4] INTEODUCnON. 17 a decree declaring void a conveyance of foreign land has also been refused.* In some cases, however, relief has been granted. In the Salton Sea Cases® the plain- tiff's land in Arizona was wrongfully flooded by an act of the defendant in Mexico; the Federal court gave an injupction against further flooding of the Ari- zona land tho this "as a practical matter involved the defendant's doing an affirmative act in Mexico. While this case may be justified as a sound exercise of dis- cretion under the circumstances, it is rather difficult to defend the English case of Langford v. Langford.® In that case an English court went so far as to order the defendant to procure an act to be done in Ireland which was in violation of the Irish law, and for refusal to obey the order imprisoned him for contempt. The deci- sion is objectionable not only on the ground of placing the defendant in an embarrassing predicament but also on the ground that the court failed to accord the proper respect to the law of a sister jurisdiction. It is not likely that any American court would go so far. In Kempson v. Kempson^ the defendant, domiciled in New Jersey, desiring to get a divorce from the plain- tiff, went to North Dakota and resided for ninety days in order to obtain such a domicile as would be recog- nized by the North Dakota courts as sufficient basis for jurisdiction for divorce. Having filed suit for divorce the plaintiff later succeeded in getting personal service on him in New Jersey, where she- still resided, and obtained a decree ordering him not to continue with the divorce proceedings; in violation of this de- cree he went ahead with his North Dakota suit and ob- tained the divorce. The New Jersey court committed him to prison for contepipt until he should have the , decree in the North Dakota divorce proceedings set 4. Carpenter v. Strange (1891) 141 U. S. 87. 5. (1900) 172 Fed. 792. See also Rickey L. & C. Co. v. MUler (1910) 218 U. S. 258. 6. (1835) 5 L. J. N. S. Ch. 60. 7. (1899) 58 N. J. Eq. 94, 43 Atl. 97. Eq.— 2. 18 INTRODUCTION. [Chap, i aside. The court seemed to take for granted that the defendant could easily, of his own motion, procure the reversal of the divorce decree; if the North Dakota court had refused such a reversal, it would have been embarrassing either for the defendant or for the. New Jersey court. The New Jersey court was, however, probably justified in taking the position it did, because most common law jurisdictions refuse to' give effect to such divorces on the ground that the court does not really have jurisdiction;® hence the assumption of jurisdiction by the North Dakota court at the suit of the defendant was really a fraud upon the plaintiff and she was entitled to the full power of the equity court in protecting her; while she might have success- fully fougbt the divorce in all other jurisdictions ex- cept in Nortel Dakota because most of them would have considered the divorce a nullity, yet this would have entailed a great hardship upon her. § 15. Rule and discretion. Importance of discretion in equity. It has been in the past and still is today not un- common in Oriental countries to have justice adminis- tered without rules, that is, according to the unfettered will of the magistrate.^ But altho rules are not ab- solutely essential to the administration of justice, they are practically expedient especially in a society having extensive commercial transactions, and therefore in Occidental countries magistrates are governed to a large degree by rules. But not entirely, for hunaan ingenuity has never yet been able to devise, either by statute or precedent, a system of rules which would properly provide for every possible contingency; it is always necessary, therefore, that there be some margin 8. See Streltwolf v. Streitwolf (1900) 181 U. S. 179. 1. This has been aptly characterized as personal justice or jus- tice without law. & Columbia Law Review 20; 18 id. 696-7. § 15] INTBODUCTION. 19 for personal action on the part of the magistrate in the particular case. The proportionate amount of rule and discretion not only varies with different countries and legal sys- tems, but with different periods of time . in the same system. Equity began as a reaction against a system that had become over-rigid, toward justice without law, and for some time Selden's statement was not far from the truth when he said:^ "Equity is a roguish thing. For law we have a measure, and know what we trust to. Equity is according to the conscience of Him that is Chancellor; and as that is larger or narrower, so is Equity. 'Tis all one as if they should make his foot the standard for the measure we call a Chancellor's foot. What an uncertain measure this would be. One Chancellor has a long foot, another a short foot, a third an indifferent foot. 'Tis the same thing in .the Cl^ancellor's conscience." Once the pgsition of the Chancellor as a judge became assured, equity itself be- gan to be reduced to a system of rules, wherein the magistrate retained a little greater discretion than the common law judge had and more attention was paid to the circumstances of the particular case. During the past century which has been a period of industrial and commercial expansion the intense interest in the security of legal transactions and acquisitions has tended to reduce the discretion in equity cases, especi- ally in this country, to such a degree that it has been pointed out that equity has really become decadent.^ If the process of crystallization continues to such an extent that discretion i^ all but eliminated, we can confidently make a prediction, based upon past history, that there will be another reaction in favor of elasticity 2. Selden's Table Talk, Title, Equity. 3. 5 Col. Law Rev. 20-35, The Decadence of Equity, by Roscoe Pound. In Brooks and Co. v. Blackburn Benefit Society (1884) App.'' Cas. 857-866 Blackburn, J., said: "This appears to be justice; whether it is technical equity Is another question which I think is not now be- fore the house." 20 INTRODUCTION. [Chap, i against rigidity, especially in those fields of the law where facts are so multitudinous and various that discretion is indispensable, It is against this over- crystallization of equity that every lawyer and jurist should fight.* § 16. Equity will not be ousted because law courts have adopted an equitable remedy. It is frequently said^ that "jurisdiction once acquired in chancery, over any subject or class of rights, is not taken away by any subsequent enlargement of the powers of the courts of common law, nor by reason of any new modes of remedy that may be afforded by those courts. . . . Hence arose a wide range of con- current jurisdiction^ within which chancery proceeded to administer appropriate remedies, without regard to whether a like remedy could be had in the courts of law." While this is generally true^ there are at least two fields from which equity has retreated. At a time when the common law courts held that choses in action could not Ijae assigned, equity courts gave a remedy to the assignee;* later, after the common law courts devised a remedy by treating the assignee as an agent of the a;ssignor, equity courts refused to give relief 4. Roughly speaking, fixed rules are highly desirable in that which we are accustomed to speak of as property and commercial law; while discretion should have a larger part in those branches of the law which deal with the complexities of human conduct, such as mis- take, fraud, unfair conduct, etc. See 24 Harv. Law Rev. 298, The De- cadence of the System of Preeedent, by John B. Sheppard, Jr., dis- cussing the tendency of our whole legal system to become artificial and mechanical. 1. Jones V. Newhall (1874) 115 Mass. 244; Story, Equity Jur. § 641. 2. See 16 Cyc. 33. 3. See 16 Cyc. 37. 4. In Squib v. Wyn (1713) 1 P. Wms. 378 the court states that "choses in action are assignable in equity but not at law" as if It were then well settled. See post § 261. § 17] INTBODUCTION. 21 merely because the plaintiff was an assignee.^ Fur- thermore, ' in early times, equity exercised, a criminal jurisdiction which it later abandoned.' C. Maxims of Equitt. § 17. Nature and value of maxims. In addition to the jurisdiction rule already dis- cussed that equity acts in personam, there are rules — or' principles rather, because they are not exact enough to be properly called rules^ — which have been expressed in the form of maxims, or short, pithy statements. There is no general agreement as to the number or identity of these maxims and the fact that a principle is or is not stated in the form of a maxim is no certain clue to its importance. Some equitable principles which have never been expressed in that form are of much greater scope and value than some of those that are. But since it is so common to cite the maxims, it has been thought desirable to discuss them briefly. Maxims are of little or no value^ to the student — in fact, they may be worse than useless — unless he gets a fairly clear idea as to their meaning and ap- plicability. The following sections will, therefore, oe 5. If the assignor threatened to collect, equity might, of course, enjoin him from doing so because of the threatened irreparable In- jury to the assignee. 6. See 16 Harv. Law Rev. 389-403, The Revival of Criminal Equity, by Edwin S. Mack; and see post § 244. 1. Phelps' Juridical Equity 183: "But equity, life war, like po- litical economy, like law Itself, cannot claim to be an exact science. Its maxims are not like the axioms of mathematics, inflexibly and uni- versally true. The blended products of ethics and, expediency, they cannot be expected to be more than approximations to the absolute truth." 2. See 9 Harv. Law Rev. 13-26, The Use of Maxims in Jurispru- dence, by Jeremiah Smith. While maxims are of doubtful value to the student of equity, the psychological influence of maxims upon equity judges has been very great, especially during the formative period. ' 22 INTRODUCTION. [Chap, i devoted to showing what idea the maxim is meant to express and the field of equity in which it is fairly «afe to apply it. § 18. Where there is a right there is a remedy. If righf^ be taken in the narrow sense of legal or jurdical right, as opposed to a mere moral right or interest, this maxim expresses only a truism. While it is true that we do have some legal rights without remedies to enforce them such instances are exceptional. The most common illustration is that of a right still existing after the remedy has been taken away by a statute such as the usual Statute of Frauds^ or Statute of Limitations; even here, however, it is only the direct remedy by action that is taken away ; the in- direct, defensive remedy still exists. If right be taken in the broader sense of moral right or interest, the maxim represents the goal of every system of civilized law toward which it is con- stantly working but which, in the nature of things, is unattainable. It is thus a maxim of the Eoman Law aiid also of the common law as well as of equity; but equity put new life into it and made it the basis of its growth. The equitable rights of the cestui que trust and of the mortgagor are among the most striking effects of equity's expansion under the influence of this principle. With the gradual crystallization of equity, already spoken of,* the vitality of this maxim has become lower and lower, but has never been entirely extinguished. While it seems impossible for equity 1. HlstoricaUy, , remedies existed before abstract rights were thought of; the latter are inferred from the former; and where there never has been a remedy it is difiBcult to draw the inference of an abstract right. See post § 83, note 1. 2. In a few states failure to comply with the statute of frauds makes the transaction void and not merely unenforcible. 3. See ante § 15. § 19] INTEODUCTION. 23 now to add large fields to its jurisdiction,* it seems still to be true that if a statute creates a new right which cannot adequately be enforced at law, equity will contrive in some way to enforce it.*' § 19. Equity regards substance rather than form. The meaning of this maxim is obvious and it is such a salutary principle that it deserves to be applied throughout the whole field of equity. The overerystal- lization of equity during the past century to which allusion has already been made^ has considerably lower- ed the present day vitality of the maxim and we are compelled to fall back upon the past achievement of equity for illustrations of the influence of this principle. Perhaps the most striking example is the relief given to a mortgagor who has failied to pay his debt on the day. 4. Note for example, tjie recent failure of equity to give relief In cases of the violation of an alleged right of privacy. Roberson v. Rochester Folding Box Co. (1902) 171 N. Y. 538, 64 N. E3. 442, 59 L: R. A. 478. See contra Pavesich v. New England Life Insurance Co. (1905) 122 Ga. 190, 50 S. E. 68. See also Rees v. City of Watertown (187S) 19 Wall. 107. In that case the holder of bonds issued by tlie defendant city brought suit against the city and obtained judgments upon which executions were returned unsatisfied. He then procured a mandamus against the city officials directing them to levy and col- lect a tax upon the taxable property of the city in order to pay the judgment; before the suit could be served a majority of the city council resigned their offices. Plaintiff then asked the equity court to direct its marshal to seize property of the citizens, sell it, and apply the proceeds to pay his judgments. The United States Supreme Court held that altho the plaintiff had been unreasonably obstructed in the pursuit of his legal remedies, a court of equity was powerless to give relief, because the legal remedy was theoretically complete. This decision shows what a great change has come over equity since the time when the English Chancellor gave relief upon the sole ground that the local court was controlled by the plaintiff's opponent and therefore denied justice. See Petition of John Hampton (1337) Se- lect Cases in Chancery, Case 133. 5^ Rhoten v. Baker (1902) 104 111. App. 653; Toledo, A. A. & N. M. Railroad Co. v. Pennsylvania Co. (1893) 54 Fed. 746, 19 L. R. A. 395. 1. See ante § 15. 24 iNTEODTJOTioN. [Chap, i i By the terms of the old common law mortgage' such a default forfeited the entire interest in the property to the mortgagee; equity, however, insisted that the substance of the transaction was that the mortgagee should be paid his debt with interest, and hence he couldi not properly complain if the payment were not made exactly on the day set for payment.^ Equity dealt in a similar way with all forfeitures* and penal- ties.* 'The whole jurisdiction of equity over trusts is frequently considered as in some degree a product of this principle of regarding the interest of the cestui que trust as the real substantial ownership, the cor- responding legal estate of the trustee being treated as a mere form and shadow." A more specific application m the subject of trusts is the equitable doctrine that equity will not allow a trust to fail for want of a trustee.® The doctrine of equity that a defectively executed mortgage or contract to .give a mortgage will be treated as a mortgage'' in equity is properly referred to ' this and the following maxim that equity regards that as done which ought to be done. § 20. Equity regards that as done which ought to be done. Though the above is the more usual expression, there is a narrower and more accurate statement that equity regards that as done'which was agreed or direct- ed to be done. In addition to the doctrine of equitable mortgages already alluded to as in some degree refer- 2. Barrett v. Hinckley (1888) 124 111. 32, 42, 14 N. E. 863. 3. Birmingham v. Lesan (1885) 77 Me. 454, 1 Atl. 151; see post § 457. 4. Cross V. McClenahan (1880) 54 Md. 21, 24. 5. Clay V. Freeman (1885) 118 U. S. 97, 108; see post § 280. 6. Polndexter v. Burwell (1886) 82 Va. 507, 514; see post § 272. 7. Hall V. Hall (1882) 50 Conn. 104, 111. Wyatt v. Carwithen (1883) 21 W. Va. 516, 520; Atkinson v. Miller (1890) 34 W. Va. 115, 11 S. B. 1107, 9 L. R. A. 544. See post § 456. For a further discussion of the maxim, see Phelps, Juridical Equity § 194-§ 204. § 20] INTEODUOTION. 25 able to fins principle,^ several others may be mentioned. The doctrine of equitable conversion, whereby real estate which has been directed to be turned into per- sonalty, and personalty which has been directed to be turned into realty, are treated for certain purposes as if the directed conversion had already taken place, is directly referable to this maxim.^ So is the doctrine in specific performance of contracts to convey prop- erty, that the purchaser is treated, from the moment the contract is made, as the owner in equity.^ So also is the rule that equity regards that as done at the time when it should have been done. For example, trustees are usually chargeable with interest from the time at which it was their duty to make proper investments, tho no interest has actually been received.* And where a specifically enforcible contract to convey land has been made, the purchaser is usually entitled to rents and 1. This Is true historically and psychologically rather than ana- lytically. Prom the modern analytical point of view a defectively exe- cuted mortgage is treated as a mortgage in equity because a court of equity would give specific performance of a contract to give a mort- gage. See post § 51. Similarly the doctrine of equitable conversion is usually based upon the fact that equity will as a settled part of the rules governing trusts compel the trustee to convert land into money or vice versa. See post i 448. And the doctrine of the purchaser's equitable ownership In land rests upon his right to get specific per- formance of the contract to purchase. See post § 83. In fact nearly all the cases referable to the maxim can now be based upon some rec- ognized head of equity jurisdiction. In Frederick v. Frederick (1719) 1 P. Wms. 710, however, the decision seems to rest upon the maxim above. In that case one Frederick agreed, upon his marriage to a ward of the City of London, to become a freema,n of the city but failed to do so. After his death it was held that for the purpose of, determining the widow's rights in his property he should be considered as a free- man. Whether the aldermen of the city or the wife could have spe- cifically compelled Frederick in his lifetime to become a freeman does not appear. But with very few exceptions the following statement of the rule will cover all the cases. "Equity regards that as done which it would have specifically compelled to be done." 2. See post § 448. 3. See post § 83. 4. Keller v. Harper (1884) 64 Md. 74, 82, 1 Atl. 65. See post § 327. 26 iNTEODucTioN. [Cliap. i profits and the vendor to interest from the time the contract should have been performed.® The maxim is purely equitable, not legal; hence the rights which equity has created under the influence of the maxim are, like all other equitable rights, not enforcible against a bona fide purchaser for value with- out notice.* § 21. Equity imputes an intent to fulfill aJi obligation. This maxim seems to be a specialization of the one just discussed. It is rarely quoted and its scope and application are quite limited. Perhaps the most im- portant field in which the principle, can be said to nave had much influence is in that of constructive trusts. Through these equitable obligations to restore specific property which the defendant unjustly detains from the plaintiff are now recognized to exist independ- ently of the intentions of the parties, and are therefore not really trusts at all, yet they were at first imposed under a fiction of an implied intent. Thus if the ex- press trustee should convey the trust property to X who had notice of the trust, equity held that X was bound by the trust on the ground that the court would presume that X meant to carry out the trust;* like- wise, if a trustee invested trust money in property, it was presumed that he intended to carry out his ob- ligation as trustee and not to commit a fraud.^ Still a third illustration is the rule of equty that if a trustee mingles trust money with his own private bank ac- 5. See Minard v. Beans (1870) 64 Pa. 411, 1 Ames Eq. Cas. 217, 219. See post § 118. And see 15 Col. Law Rev. 256. 6. Bower v. Berry (1851) 3 Md. Ch. 359, 362. Casey v. Cavaroc (1877) 96 U. S. 467, 491. See post § 301. 1. "For It shall be intended since he parted with the land with- out consideration that he parted with it in the most proper way, 1. e., to hold it as he held." Anonymous, Year Book (1522) 14 Henry VIII, Folio 4, placitum 5, Ames' Trust Cas. 283. See post § 84. 2. See post § 295. § 22] INTRODUCTION. 27 count, and later checks out sums for his private use, he is presumed to have intended to draw upon his own money and not upon the trust money.® Though these rules came about by the use of the fiction of in- tendments or presumptions, they are now treated as well settled rules of substantive equity.* § 22. Equity acts specifically and not by way of com- pensation. It has already been pointed out ihat one of the reasons for the existence of equity was the inability of the common law to command the defendant or to give preventive relief. The subjects of specific performance of contracts,^ and specific reparation for and prevention of torts^ as well as rescission for mistake or fraud* have grown up at least partly as the result of this corrective principle. While equity thus seeks to place the parties in the position which they ought to occupy, and would have occupied but for the tort or breach of contract, it 3. See post § 297 for a more accurate statement. 4. Another equitable doctrine wliich is usually traced to the in- fluence of this maxim is that of satisfaction. There are two chief ap- plications of the doctrine. If a parent makes a will giving a legacy to a child and later makes an advancement to the child, there is a pre- sumption that the advancement was in satisfaction of the legacy either wholly or partially, depending upon the relative amounts; and if a debtor leaves a legacy to his creditor, the presumption is that the legacy was meant to be in satisfaction of the debt. Green v. Green (1875) 49 Ind. 417. It is to be noted that the doctrine is only one of presumption of intent; if th^ evidence of a contrary intent is proved, It will be given effect. See 2 Williams, Executors, 7th American Edition, 629 on the modern unpopularity of this presumption. See post § 459. In England where marriage settlements are common there is a presumption that an act done later by an obligor which might be considered to be in performance of his obligation, was meant by him as such l)erformance: Here, too> the presumption of "perfor- mance," as is was called, could be rebutted. See Wllcocks v. Wilcocks (1706) 2 Vernon 558. 1. See post Chap. 11.' 2. See post Chap. III. 3. See post Chap. VII. 28 INTKODUCTION. [Chap, i should be pointed out that if the parties are properly in equity but specific relief is impossible equity will then proceed to give compensation in lieu thereof.* § 23. Equity prevents a multiplicity of suits. As previously stated,^ a common law court could only deal with a two sided case; this was at least partly due to the jury system. The equity court, not having a jury system, could deal with many-sided cases, and thus avoid an unnecessary amount of litigation; in addition to the illustrations already given from partnership law may be mentioned bills of interpleader.^ Another large field of equity which is based upon the desire of equity to avoid multiplicity of suits is that of bills of peace.^ Still another comprises those cases where equity gives an injunction to avoid circuity of action.* 4. For example, if B contracts to convey land to A and A sues for specific performance without knowing that specific performance has been rendered impossible by reason of B's transfer of the land to a bona fide purchaser for value without notice, equity will give A such compensation as he would be able to get in an action at common law and will thus not compel him to begin another action. See 30 Harv. Law Rev. 188. For a discussion of the effect of the codes on this point, see Haffey v. Lynch (1894) 143 N. Y. 241, 38 N. E. 298; 16 Col. Law Rev. 326-329. 1. See ante § S. 2. See post Chapter IX. 3. See post Chap. X. 4. A single illustration will suffice. If A having a claim against B for $1000 contracted with B never to sue him on the claim, the con- tract was no defense at common law. But if A in breach of his con- tract should sue B and obtain judgment and satisfaction thereof, A would be able to recover the same amount in an action for a breach of the contract never to sue. After both actions the parties would be in the same position as they were at first, except for the payment of court costs and attorney's fees. Equity therefore at the suit of B in- terfered by giving a perpetual injunction against A's suing on the original claim. See post § 67. J § 25] INTRODTJOnON. 29 § 24. Equity delights to do justice and not by halves. This maxim, which is not always classed as such, is really only a special instance of the maxim just previously discussed. The significance of the maxim is in the last phrase, A more complete statement is that equitable jurisdiction having once attached, it will be continued for the final adjudication of all rights involved and thus avoid further litigation in the future, even tho this involves the giving of relief which is usually classified as legal.^ § 25. Equality is equity. The meaning of this maxim is that unless there is a specific requirement to the contrary, equity will treat all members of a class as upon an equal footing and will distribute benefits or impose charges either equally or in proportion to the several interests.^ A few of the many practical applications are to contribution be- tween co-sureties,^ the distribution of insolvent estates,' marshalling of assets,* and the abatement and ademption of legacies.® The doctrine has never been applied to defeat a creditor who has obtained a lien or a prefer- ence which is allowed to him by the common law, but its influence on legislation has brought about many re- forms, such as bankrupt and insolvent laws, the ab- 1. It an insurance company contracted to insure A's premises against, fire and a loss occurred before the policy was Issued, A was formerly not allowed to sue at law because of being unable to pro- duce the policy. Equity would, however, give specific performance of the contract to issue a policy and having jurisdiction would also decree that the insurance company pay the amount of the loss though the latter by itself is common law relief. See post § 52. Several other illustrations of the principle will be found later in the book. See, for example, post § 189, note 3. 1. See 16 Cyc. 137. 2. See 32 Cyc. 276. 3. See Riley v. Carter (1893) 76 Md. 581, 25 Atl. 667. 4. See 26 Cyc. 927; see post § 454. 5. See 40 Cyc. 1899, 1914. 30 iiTTBO&TJOTiow. [Chap, i olition of the distinction between different classes of unsecured debts and the change in the common law presumption which formerly favored joint tenancy to a presumption in 'favor of tenancy in common.® Where the maxim has been applied to parties who are not members of a class the r^ults have not al- ways been happy. The doctrine of mutuality as a basis for giving specific performance and the doctrine of lack of mutuality as a basis for denying specific performance are most probably the result of the max- im.' § 26. Equity follows the law. In the meaning that equity assumes the existence of the legal system and the rights created by it, equity always follows the law. Tho in some sense a rival of the common law, equity never attempted to compete with it directly by denying the existence of rights or remedies created by the common law system.^ In the meaning that equity follows and applies the legal rule, the maxim is partly true and partly un- true. If jequity always applied the common law rule, there would of course be no such thing as equity; on the other hand, there are fields of the common law, e. g., the law of descent and distribution of property and the great bulk of the law of evidence, in which the equity courts did not find it necessary or expedient to interfere; whenever questions relating to such subjects arise in the course of an equity suit, the equity court naturally applies the common law rule.* There is still a third meaning which the maxim may have, viz., that equity frequently follows common law analogies. For example,, equity not only left intact the common law rules of distribution of property with 6. See 23 Cyc. 485. 7. See post §§ 48, 172-181. 1. See ante § 10. 2. Cowper v. Earl of Cowper (1754) 2 Peere Williams 720, 753. § 26] INTRODUCXnON. 31 reference to legal estates, but, also applied these rules by way of analogy to equitable property interests such as the property interest of a cestui que trust, of a mortgagor and of a vendee of land under a specifically enforcible contract to convey.* Another illustration exists in the attitude of equity courts toward statutes of limitations; excfept in recent years these have ap- plied only to common law actions and not to suits in equity, but equity courts have been accustomed, in the absence of special circumstances, to apply the statute to equity suits by way of analogy.* It should be pointed out here that in a very true sense the reverse of the maxim is true, that law follows equity. Where there is a merger of law and equity, the equity rule usually prevails, in case of conflict, over the previous common law rule; this is sometimes provided for by statute, as in the English Judicature Act.® And in specifically enforcible contracts to convey land, the equitable right to specific performance pre- vails over any common law action for breach of con- tract.^ 3. See post § 108 and § 308; see also Astor v. Smallman (1706) 2 Vermont 556, where it was held that if on« of two joint cestuis que trust (fie, his interest goes to the survivor. 4. Where an equity court applies the statute of limitations by analogy, it is not necessary to plead the statute. The court takes ju- dicial notice of it. Talmash v. Muggleston (1826) 4 L. J. Ch. 200; 1 Ames Eq. Cas. 343. Where law and equity jurisdictions are strictly concurrent (see post § 34), equity courts consider themselves hound by the statute. See Metropolitan Bank y. St. Louis Despatch Co. (1893) 149 U. S. 436; HaU v. Law (1880) 102 U. S. 461, 466; Weaver V. Leiman (1879) 52 Md. 708. 5. St. 36 and 37 Vict. c. 66; 38 and 39 Vict. c. 77. Unfortunately this has not always been the effect of American Codes of Procedure; 5 Col. Law Rev. 20. The law also follows equity in giving remedies in its own courts after remedies have been decreed by courts of equity. The right agreement to have the case tried In equity. Darst v. Kirk (1907) 230 111. 521, 82 N. 'E. 262; 21 Harv. Law Rev. 368. 4. See post $ 87. (41) 42 SPECIFIC PEEFOBMANCE OF CONTEACTS. [Chap, il § 36. The primary right in specific performance. In the subject of specific performance of contracts there is, with the exception of one class of cases,^ the common law primary right of contract; i. e. a right which the common law protects by its own appropriate remedy. As we shall see later,^ however, the vendee under such a contract to convey property as equity will specifically enforce has, as a consequence of the giving of the equitable remedy in that class of cases, a primary property right which is somewhat similar to the right of a cestui que trust^ and to the right of a mortgagor after condition broken.'* § 37. Specific performance not exclusively an equitable remedy in all jurisdictions. Specific performance is usually consiidered to be a remedy which one may obtain only in equity and until within the last seventy or eighty years this has been strictly true. Within that time, however, there has gradually grown up in many, perhaps a majority, of jurisdictions in this country, a common law doctrine that in cases of contracts to sell a chattel, the vendor may recover the price altho the title to the chattel has nq/t passed.^ In some jurisdictions the doctrine is ex- pressly limited to articles not readily salable on the market and therefore as to which it is difficult to fix the market price,^ and it is not at all unlikely, that this limitation will be quite generally adopted wherever the question as to the scope of the doctrine squarely arises. 1. See post § 138. 2. See post § 83. 3. The vendor under a specifically enforcible contract Is frequently referred to as a trustee, but this is not entirely accurate. See post § 264. 4. That the analogy to mortgage is not complete see post § 92. 1. See 18 Harv. Law Rev. 298; 20 id. 372, 373; Williston, Sales §§ 562-565. lAnd see 17 Mich. Law Rev. 283-293, the Seller's Action for the Price, by John Barker Waite. 2. Williston, Sales § 564. "^ 38] SPECIFIC PERFOBMANOE OF OONTBACTS. 43 The cases layihg down the doctrine can be traced back to decisions holding that a contract to manufacture and deliver a chattel to one's order was not a contract for the sale of a chattel within the meaning of the seven- teenth section of the Statute of Frauds, but a contract for work and labor. Tho this reasoning is now generally admitted to be defective, the decisions themselves allow- ing recovery of the purchase price have not been over- ruled.' The doctrine thus limited can be sustained upon the ground that when articles are made according to a special order damages are really an inadequate remedy to the vendor and he should be allowed to shift to the vendee the bnrden of getting rid of the articles if he does not want them.* We thus have the odd situation of the common law itself giving specific performance in a case where equity probably would have refused it, since equity courts have been quite, reluctant to ex- ercise their jurisdiction in cases of contracts to sell chattels." § 38. Specific performance or specific reparation? Mr. Langdell has pointed out^ that while in cases where a court of equity enjoins a threatened tort it gives specific performance of the plaintiff's primary a. Williston, Sales § 563. 4. WiUiston, Sales § 565. 5. See post § 44. 1. 1 Harv. Law Rev. 355. One of the points In Mr. Langdell's argument was that "a bill will not lie (any more than an action at law win lie) upon an aflBrmative contract until the contract is broken." Apropos of this It may be pointed out that the modern rule at com- mon law is subject to an exception, namely, the doctrine of allowing an action for anticipatory breach ; see 14 Harv. Law Rev. 428-441. And while a bill for specific performance filed before the day set for per- formance might be demurrable yet if objection is not taken promptly the bill will be good if it transpires that there is a breach on the day, because an equity court may take into consideration everything hap- pening down to the date of the decree, tho a common law court can 44 SPECIFIC PBEFOBMANCE OF CONTRACTS. [Chap, ii right to be free from the tortious interference, the term specific performance of contracts is a misnomer because the utmost that a court of equity can do is to give per- formance after breach of the contract and therefore after the time the plaintiff is entitled to it. Wliile this is strictly true, yet since the substance of the contract is the performance rather' than the time of the perform- ance, — which is usually immaterial^ where the plaintiff is seeking affirmative equitable relief, — it seems fair enough to call it specific performance. § 39. Is there a right to break a contract or only a power? During the contest that was waged by the chancel- lors against the common law judges for jurisdiction, the position was taken by the latter that since the only remedy the common law gives on a contract is to make the party who breaks it pay damages, there is therefore a right to choose between performing or ipaying dam- ages. This position was taken by Lord Coke in Bromage V. Genning:^ "And Coke said this [specific performance] would subvert the intent of the covenantor since he in- tended to have his election to pay damages or to make the lease." But the sound doctrine is that in all cases each party to a contract has the rigM to have the other party to perform in specie and that it is merely be- cause the common law is defective in its machinery that it gives only damages ; there is no right to break a generally look only to the state of facts existing at the time of action. Furthermore, if X contracts to devise land to Y and X fears that Y will sell and convey the land to a iona fide purchaser for value, X may file a bill at once to prevent it the performance is not due till X's death. See post § 89. 2. Time is, of course, sometimes highly important in a specifically enforcible contract, but the party to whom time is thus an Important advantage will ordinarily be a defendant who seeks to escape per- formance because of the delay of the plaintiff. For a discussion of this class of cases see post §§ 151, 152. 1. (1616) 1 Roll R. 368, 1 Ames Eq. Cas. 38, § 40] SPECIFIC PEEFOEMANOE OF CONTRACTS. 45 contract and escape performance, even tho there hap- pens to be the power^ to do so, because of the defective state of the common law. Even at commn law the right to performance in specie is recognized and given effect to indirectly. If the covenantor had been induced by a third person to break his contract with the plaintiff such third person would probably be liable to the plaintiff in an action of tort.^ If the covenantor had really a right to break his contract with the plaintiff it is difficult to see . how the inducing him to break the contract could be tortious. While, therefore, at common law there is a power to elect between performing and paying damages, there is no right to do so and equity properly supplements the law by giving specific performance in those cases where the com.mon law remedy of damages is inadequate. § 40. Alternative performance — liquidated damages- penalty. Where the defendant's promise is in the alternative, either to do or to refrain from doing certain acts, or to pay money at his option, equity will not give specific performance^ because this would be taking away the defendant's option and thus making a contract for the 2. The existence of a power without a right is by no means un- common; for example, one who has obtained title to property by fraud has the power, the not the right, to convey it to a tona flde pur- chaser for value without notice and thereby cut off or destroy the equitable property right of the defrauded owner. In such a case the power exists without the right because of the equity doctrine which protects Bono fide purchasers against equitable rights. 3. In Lumley v. Gye (1853) 2 Ellis and Blackburn, 216, the defend- ant was held liable for inducing Miss Wagner, a famous singer, to break her contract with the defendant and to sing for the plaintiff. Later cases have not made clear the exact extent of the doctrine. For a col- lection of cases on the subject, see Rohlen, T'orts Cases, 1174; Cooley, Torts, 3rd edition, 592. 1. Moss and Raley v. Wren (1909) 102 Tex. 567, 113' S. W. 739, 120 S. W. 847; Dills v. Doebler (1892) 62 Conn. 366, 26 Atl. 398. See 14 Harv. Law Rev. 613. 46 SPECIFIC PERFOBMANOE OF CONTRACTS. [Chap. 11 parties substantially different from the one Into which they entered. Where, however, the parties contemplate that the payment of money Is not performance, but is merely a fixing of liquidated damages or a penalty for non- performance, this does not bar the giving of specific per- formance,^ even tho the defendant is willing and offers to pay the amount. § 41. The requirement of certainty. .Tho a contract may be sufficiently definite to sup- port a common law action for a breach thereof, it may not be definite .enough to Induce a court of equity to un- dertake Its specific execution.^ The reason for this is that an equity court must not only determine that a defendant is in default but must also decide just what specific thing the contract requires him to do.* The difference is likely to be brought out in cases where the performance asked for requires long supervision by the court;* or where the contract is an oral one.* Even where the uncertainty has been caused by the defend- ant 's default. It is still said to be a bar to specific relief.^ 2. Crane v. Peer (1887) 43 N. J. Eq. 553, i Atl. 72; 1 Ames Eq. Gas. 125, note. 1. Colson V. Thompson (1817) 2 Wheat. 336; "If the contract be vague or uncertain ... a court of equity will not exercise is extra- ordinary jurisdiction to enforce it but will leave the party to his legal remedy." 2. See Foster v. Kimmons (1874) 54 Mo. 488, 26 Am. Dec. 661, 663, note. 3. See Buxton v. Lister and Cooper (1746) 3 Atk. 383; 1 Ames Eq. Cas. 47. See post §§ 58-62. 4. See Lonergan v. Daily (1914) 266 lU. 189, 107 N. B. 460. See post §§ 134-139. 5. In Stanton v. Miller (1874) 58 N. Y. 192, 200, Mrs. Miller entered into a contract with Stanton whereby in consideration that Stanton would take care of Mrs. Miller during her life, the latter agreed to convey her house and lot after her death to such members of Stanton's family as she might choose. It was held that unless Mrs. Miller had made the designation, specific performance would be re- fused because of the uncertainty of the person to whom the convey- ance was to be made. § 42] SPECIFIC PEEFOEMAKCE OF COKTEACTS. 47 Contracts to give security without specifying the property will not be specifically enforced.* B. Apfiemative Contbacxs. * 7. Contracts for the sale and purchase of interests in lamd. § 42. Hard and fast rule as to inadequacy of damaf es. As hitherto explained/ it has been the policy of equity not to interfere where the common law remedy has always been adequate. Conceivably the determi- nation of the question of the adequacy of the common law remedy might have been left to the discretion of the court under all the circumstances in the particular case. To a large extent this is true, but there are two hard and fast rules on. the subject. One* of these is that damages for the breach of a contract for the sale and purchase of any interest in land is always considered in- adequate, without regard to the size, value or location of the land or the possibility of getting other land sub- stantially equivalent.* The crystallization of this rule is probably due historically to the peculiar respect and consideration which has been accorded to land in the English law;* its modern justification is that because there is no open market for land either for seller or buyer, the number of instances where the buyer could get land substantially as satisfactory or where the vendor could make a ready sale to another purchaser is so small as to be negligible. > 6. Cole V. Dealham (1862) 13 Iowa 551, 26 Am. Dec. 670, note. See post § 61. 1. See ante § 8. 2. For the other, see post § 48. 3. Gartrell v. Stafford (1882) 12 Neb. 545, 11 N. W. 732. \. Kitchen t. Herring (1851) 42 N. C. 191: "The principle In regard to land was adopted, not because it was fertile or rich in miner- als or valuable for timber, but simply because it was land — a favorite and favoied subject in England, and every country of Anglo-Saxon 48 SPECIFIC PERPOEMANCE OF oonteacts. [Chap, ii The originally all equitable relief w^s given as a matter of grace, specific performance of contracts for the sale and purchase of interests in land has come to be such a usual remedy that it may now be said to be a matter of right, provided the contract is not uncon- scionable in its terms and there is no misapprehension, surprise, mistake or the 'exercise of any undue ad- vantage.' Tho most of the decided cases are of contracts for the sale and purchase of a fee simple, the remedy will apparently be given no matter how small the interest ; e. g. contracts to give^ or to renew'' a lease, or to assign*" a lease, or even the good will® of a lease, have been specifically enforced. So have contracts for the sale of easements^** and for the sale of mere possessory interests" and for the digging of stone.^^ Whether a contract for the sale of standing timber is to be treated in this respect as an interest in land can hardly be said to be settled. The better view probably is that if the trees are to be severed at once they are to be treated as chattels.^' origin. Our constitution gives to land pre-eminence over every other species of property; and our law, whether administered in courts of law or of equity gives it the same preference. Land, whether rich or poor, cannot be taken to pay debts until the personal property is ex- hausted. Contracts concerning land must be in writing. Land must be sold at the Court House, must be conveyed by deeds duly registered, and other instances too tedious to mention. The principle is, that land is assumed to have a peculiar value, so as to give an equity for a specific performance, without reference to its quality or quantity." 5. Losee v. Morey (1864) 57 Barb. 561, 564. 6. Clark v. Clark (1875) 49 Cal. 586. : 7. Gorder v. Pankonin (1909) 83 Neb. 204; 119 N. W. 499. 8. Crosbie v. Tooke (1833) 1 Mylne & Keen 431, 1 Ames Eq. Cas. 135. 9. See Bennett v. Vansyckel (1855) 4 Duer (N. Y.) 462. 10. Coy V. Minneapolis & St. Louis R. R. (1902) 116 Iowa 558, 90 N. W. 344. 11. Johnson v. Rickett (1855) 5 Cal. 218. 12. Nelson v. Bridges (1837) 1 Jurist 753. As to contracts to sell expectant estates, see 24 Harv. Law Rev. 410. 13. See Stuart v. Pennis (1895) 91 Va. 688, 22 S. E. 509, and cases cited; 36 Cyc. 554. See also 13 Col. Law Rev. 748. § 43 J SPECIFIC PEEFOEMANCE OF CONIEACTS. 49 § 43. Some exceptional cases. In Blake v. Flatley^ it was held that since specific performance was a matter for the discretion of the court, and since the selling price of the land was only $55 and the plaintiff had shown no special reason for want- ing that particular piece of land, specific performance should be denied. It is doubtful whether the case will be followed. In Hazelton v. Miller^ it was held that the fact that the plaintiff purchased and contracted to sell -the land to a third person showed that the plaintiff had an ad- equate remedy at law and hence was not entitled to specific performance. This holding is ob.iectionable not only because specific performance in land contracts has become a matter of right but also because it de- prives the third person of specific performance ; further- more, it subjects the plaintiff to an action for damages at the suit of the third person, and while it is possible that he will be able to collect from the original vendor an equivalent amount, such a result seems somewhat inconsistent with the desire of equity to prevent a mul- tiplicity of suits. Where, however, the plaintiff had been acting as agent for X in ftaking the contract of purchase with the defendant and then X purchases directly from the defendant, the plaintiff is not entitled to specific per- formance because all he is seeking is compensation for his services as agent and for that the common law remedy is adequate.* 1. (1888) 44 N. J. Eq. 228, 10 Atl. 158, 14 Atl. 128. 2. (1903) 33 Wash. Law Rep. (D. C.) 217; the case was affirmed but on a difCerent point, in (1905) 202 U. S. 71. See 18 Harv. Law Rev. 625; 36 Cyc. 552; Paddock v. Davenport (1890) 107 N. C. 710, 717, 12 S. E. 464. 3. Thweatt v. Jones (1898) 87 Fed. 268; Marthinson v. King (1906) 150 Fed. 48. Eq.— 4 50 gPBGis'io PBHsemMAKGii OF 00WTBA0T3. [Ohap. ii //. Contracts relating to property other than land. I § 44. Ordinary chattels. In the vaat majority of contracts to sell chattels the common law remedy of. damages is adequate and there- fore equity will not give specific performance. Un- fortunately this has led to the statement^ that the general rule is that equity will not give specific per- formance of contracts for the sale and purchase of chattels, as if there was something in the nature of such property which influenced courts of equity against giving relief; whereas' the general rule^ really is that equity will give relief if the common law remedy has not always heen adequate. This misstatement of the true rule has no doubt had something to do with the con- servatism of equity in regard to enforcing such con- tracts. As has heen already stated,* in many Jurisdic- tions it now possible for a vendor of chattels to get specific performance at law in cases where he would probably be refused relief in equity. Wherever the chattel is readily procurable in the open market, damages are obviously adequate because the purchaser can with the amount o| money received from the vendor as damages for the breach, together with the purchase price he would have paid to the ven- dor, buy elsewhere just as advantageously;* consequent- ly, unless there is some other circumstance in the con- tract which renders the common law remedy inadequate, specific performance will be denied. All the ordinary 1. See 36 Cyc. 554. 2. Klchmond v. Dubuque & Sioux City R. R. Co. (1871) 33 Iowa 422, 480. 3. See ante §37. 4. Or, If the buyer refuses to take the goods the seller can sell the rejected goods and If he is compelled to sell for less, he can collect the difference from the buyer. Jones v. Newhall (1874) 115 Mass. 244. ^45] SPECIFIC PEKPOEMANOE OP CONTRACTS. 61 agricultural and manufactured products fall within this class; e. g. cotton,^ cattle,*' lumber,^ whiskey,^ bar room fixtures,® fruit business, and stock in trade.^® Where '{he subject matter of an entire contract is partly ordinary chattels and partly land, equity will give specific performance of the whole contract.^ ^ § 45. Defendant vendor execution proof or insolvent. Where one who has made a contract to sell ordinary chattels is execution proofs it is obvious that damages are an inadequate remedy to the vendee, especially if he 5. Block V. Shaw (1906) 78 Ark. 511, 95 S. W. 806. 6. McLaughlin v. Piatti (1865) 27 Cal. 451. 7. Dorman v. McDonald (1904) 47 Fla. 252, 36 So. 52. 8. Langford v. Taylor (1901) 99 Va. 577, 39 S. E. 223. 9. Meehan v. Owens (1900) 196 Pa. St. 69, 46 Atl. 263. 10. Carolee v. Handelis (1898) 103 Ga. 299, 29 S. E. 935. 11. Leach v. Fobes (1858) 11 Gray 506. McGowin v. Remington (1849) 12 Pa. 56, 15 Harv. Law Rev. 318. See 36 Gyc. 564. It is some- times said that this is done in order to avoid multiplicity of suits; that is, that instead of giving specific performance as to the land only and thus compelling the plaintiff to sue at law as to the chattels, equity settles the whole affair In one suit. 15 Harv. Law Rev. 318. It Is difficult to see, however, that either a court of law or a court of equity would be justified in thus splitting an entire contract into two choses in action. It seems clear, therefore, that the real alternative to specific performance of the whole contract is no specific performance at all. And since damages are Inadequate as to part of the subject matter of the contract, it is difficult to see how it can be an adequate remedy in an action brought upon the whole contract, except, perhaps, where the land was an insignificant part of the subject matter. 1. Tlie distinction taken in the text between a defendant being execution proof and insolvent seems to have been entirely overlooked. Apparently the only case oii the subject using the phrase "execution proof" Is Hendry v. Whidden (1904) 48 Fla. 268, 37 So. 571, and in that case relief was denied. The failure to grasp the distinction Is probably the reason for the uncertainty of the law on the subject. While there are many dicta and a few decisions favoring the plaintiff, they have been vigorously assailed. See Wllliston, Sales §§ 143-144; 18 Harv. Law Rev. 454; 1 Col. Law Rev. 267. It is possible that a defendant may be either execution proof and not insolvent. Insolvent and not execution proof or he may be both insolvent and execution proof. For example, 52 SPECIFIC PEEFORMAlirCE OF CONTRACTS. [Cll8tp. ii has paid a large pqrt or all of the purchase price and at least in cases where the defendant has become execution proof after the payment of the money equity should give either specific performance^ or declare an equitable lien on the property for the amount paid by the buyer. Where the vendee is not execution proof but is insolvent, a somewhat similar situation is presented, and it would seem that the solution should be the same unless there are other creditors who object ; the defend- ant himself is certainly in no position to object;* other creditors may properly object on the ground that to give the buyer specific performance or an equitable lien is in the nature of- a preference* and is a violation of the maxim that equality among members of a class is equity." Where the defendant is also execution proof, however, so that no creditor is able to enforce payment, it is doubtful whether the other creditors can legitimate- ly object to the buyer's getting specific performance or an equitable lien. If so, the objection must be based upon the ground that altho they are unable to enforce payment now they might be able to do so later and that If the exemption is $3000 worth of property and A agrees to sell B $800 worth of cattle and A has pnly $2000 worth of property all together, with no obligations except to B| A is execution proof but not insolvent. If, however, he has $10,000 worth of property and owes $15,000, he is Insolvent but not execution proof. And if he should have $2900 worth of property and owe $4,000 he is both execution proof and insolvent. That one may sell or give away his exempt property, see 18 Cyc. 1446. 2. See Parker v. Garrison (1871) 61 111. 251, 1 Ames Bq. Gas. 44; McNamara v. Home Land Co. (1900) 105 Fed. 202. In these cases the defendant was probably execution proof as well as insolvent, but only insolvency Is mentioned. , 3. Cf. the enjoining of a trespass because of the defendant's insol- vency; see post § 201. The enjoining of a trespass does not, of course, infringe upon the rights of the defendant's creditors. 4. In one instance the defendant himself may probably raise a valid objection on the ground that specific perfprmance would subject him to proceedings in involuntary bankruptcy. ^ 5. See Williston, Sales § 144. In determining solvency under the Bankruptcy Act the test is whether the debtor's assets — both exempt and not exempt — are sufficient to pay his debts. § 46] SPECIFIC PERFOBMANOE OF CONTRACTS. .53 giving specific performance would tend to decrease their chances of future recovery. § 46. Chattels having sentimental value— unique chat- tels. Where a chattel has a sentimental value to the pur- chaser specific performance will he given hecause in such a case damages are obviously inadequate. Heir- looms^ constitute the stock illustration of this class of chattels. In slavery times, slaves, epecially those who did household work, frequently became chattels with a sentimental value.^ The same reasoning applies to all articles of a unique or rare value which cannot be duplicated. The most common illustrations .are valuable works of art,' especially if old. To the same extent that equity will give specific performance, it will give specific relief against one who wrongfully detains a chattel of sentimental or unique value. The common law remedies of detinue and re- plevin are inadequate, frequently for two reasons. In the first place, it is open to the defendant in some juris- dictions to pay the value and keep the chattel just as if trover had been brought.* Even in jurisdictions where this option is not allowed, the chattel may be so secreted^ as to be very difficult if not impossible for the sheriff to find it. A court of equity being able to command the defendant himself to produce the chattel can thus deal with the situation more effectively than a 1. See Pusey v. Pusey (1684) 1 Ver. 273, 1 Ames Eq. Cas. 39, note, where the equity court commanded the defendant to deliver to the plaintiff an ancient horn which had time out of mind gone with the plaintiff'^ estate. It was a case of wrongful detention, not of a contract to sell, but the principles underlying it are the same. For further cases see 36 Cyc. 557. 2. Sartar v. Gordon (1835) 2 Hill, Equity (S. C.) 121. 3. Lowther v. Lowther (1806) 13 Ves. 95. 4. See 14 Cyc. 1459. 5. See Scarborough v. Scotten (1888) 69 Md. 137, 14 Atl. 704. 5'4 SPECIFIC PERFORMANCE OF CONTRACTS. [Chap. 11 common law court. Instances In tlie books where the plaintiff has thus been awarded specific reparation for the tortious detention of a chattel of sentimental value are more numerous that cases where specific perform- ance has been given.® § 47. Unique chattels continued — patents and copy- rights. In its very nature a patent Is property of a unique character which Is not procurable on the open market by the purchaser or easily salable by the vendor; hence specific performance of contracts with reference to a patent will be glven.^ The same reasoning applies to a copyright^ and to such patented articles* as are pro- curable only from the defendant. § 48. Speciflc performance to the seller — mutuality. Where it Is the buyer who Is asking specific per- formance of a contract to sell land or chattels of unique or sentimental value, It Is usually quite easy to see that damages are not an adequate remedy. But suppose the seller asks for specific performance; 1. e. asks that the buyer be compelled to pay the full purchase price and take the property; can not the buyer properly Insist that damages at law will be adequate? May he not ar- gue that altho there is no exact duplicate of the prop- erty, there are other persons to whom the vendor may sell? The answer to this Is that in perhaps the large 6. Since specific performance cases in this field are so rare, it is quite common to cite the specific reparation cases instead. See 36 Cyc. 557, note 21. 1. Corbin v. Tracy (1867) 34 Conn. 325. An agreement to assign future improvements on patent rights has also been specifically en- forced. Reece Folding Machine Co. v. Fenwick (1905) 140 Fed. 287; 19 Harv. Law Rev. 542. 2. Thombleson v. Black (1837) 1 Jur. 198. ^ 3. Adams v. Messenger (1888) 147 Mass. 185, 17 N. E. 491, 1 Ames Eq. Cas. 50. (^ 48] SPECrFIO PERFOBMANCE OP CONTRACTS. .55 majority of cases damages would not be adequate be- cause there being no open market for such property, it may be very difpcult for the vendor to find other buy- ers.* But this question is seldom considered;^ it is a hard and fast rule that if the property is such that the court would have given specific performance to the buyer if he had sued for it, the seller may have specific performance.' This is usually referred to as the doc- trine of mutuality.* But it is to be noted that it is mutuality as a -basis for giving relief and must be care- fully distinguished from the doctrine of lack of mutual- ity as a ground for denying relief; that doctrine will be discussed later in the chapter.^ In order to avoid confusion the two doctrines will be called respectively "mutuality" and "lack of mutuality." On principle the doctrine of mutuality is difficult to justify.^ It is an illustration of the tendency of equity courts to limit the scope of discretion and widen the field of fixed rule. Historically it is perhaps trace- able to a notion on the part of the courts that in thus giving the vendor specific performance they were 1. In reply to this it might be suggested that the vendor of land might sell it at public auction and collect the deficiency from the pur- chaser; but it might well happ^en that the purchaser could raise the money to take the land and yet not be able" to meet a judgment for damages for the deficiency. 2. In a few states the vendor of land must show that damages 'would be inadequate; Porter v. Frenchman's' Bay & Mt. Desert Land and Water Co. (1892) 84 Me. 195; 24 Atl. 814; 36 Cyc. 566, note 53. 3. 'Adams v. Messenger (1888) 147 Mass. 185, 1 Ames Bq. Cas. 50 (unique chattels); Adderley v. Dixon (1824) 1 Simons & Stuart 607, 1 Ames Eq. Cas. 58; Cheale v. Kenward (1858) 3 DeGex & J. 27 (shares of stock). 4. Kenney v. Nexam (1822) Maddock & Geldart 355: "I consider this case, therefore, strictly a case of mutual remedy so as to entitle the vendor to a bill for specific performance." 5. See vost § 173. 6. It is sometimes suggested that the vendor of land Is entitled to specific performance because of the doctrine of "equitable conver- sion." This is, however, putting the cart before the horse. Pooley V. Budd (1855) 14 Beav. 34, 44. See post § 448. 56 SPECIPIO PEEFOEMANCE OP CONTEAOTS. ■ [Chap, ii following out the principle that equality is equity;'' it seems, however, a misapplication of the maxim, because that maxim properly applies to members of a class; it cannot reasonably be contended that the vendor and vendee are members of a class.* It has been argued that the vendor's right to get specific performance without inquiring into the adequacy of his common law remedy "has nothing to do with any question of mutuality. The vendor, from the time of the bargain, holds the legal title as security for the payment of the purchase money, and his bill is like a mortgagee's bill for payment and foreclosure of the equity of redemption."^ It is not clear whether this re- fers to the vendor's right to hold as security or to his ohligation so to hold. If it is the former that is meant thta it may be answered that in th6 case of contracts to sell ordinary chattels without provision for credit, it is equally true that the vendor cannot be compelled to part with the title or possession of the goods till he has been paid; but this does not mean that he can recover the price in equity.^" If, however, the argument refers to the vendor's obligation to hold the property, it amounts substantially to the following:" "The sellers' action for specific performanfee is really in the nature of an action to foreclose the equitable right of the buyer to specific performance. In other words, whether the 7. See ante § 25; Lerois v. Lechmere (1721) 10 Modern 503. 8. The rule of mutuality Is also applied to cases where part per- formance of an oral contract Is held to take the case out of the opera- tion of the Statute of Frauds. If the purchaser's going into possession is held to entitle him to speciiic performance, it also entitles" the vendor. See 'post § 132. Query: Would the doctrine of mutuality be applied where a chattel is not unique and is of sentimental interest to the buyer only? Or where a chattel is procurable only from the vendor? Such cases are obviously not likely to arise. 9. Professor J. B. Ames, 3 Col. Law Rev. 1, 12. 10. In some jurisdictions he may, under some circumstances, re- cover the price at law. See ante § 37. 11. Professor W. W. Cook in 6 American Law and Procedure, 183, arguing that the doctrine of mutuality Is unnecessary. § 48] SPECIFIC PEEFOEMANCE OF CONTEACTS. 57 seller asks for specific performance or seeks to foreclose the equity by a sale, the object of the suit is the same, to put an end to the situation created by equity in mak- ing the seller a trustee'^ for the buyer, and permitting this relation to continue even after the time set for performance in the contract itself." There seem to be two defects in this argument. If for some reason^* the purchaser could not enforce specific performance against the vendor the latter is not a "trustee"" or fiduciary and therefore there is no "situation " to put an end to; and yet the vendor may get specific per- formance. Secondly, in any case if all that the vendor wishes is to get rid of his fiduciary obligation with reference to the land, he can do that just as effectually by getting a common law judgment for damages which would merge the contract, as he can by obtaining a decree for specific performance. ; Of course the mere fact that the vendor's remedy of specific performance is somewhat similar to a mortgagee's bill for fore- closure is no reason in itelf why the vendor should be given such a remedy.'^ 12. For objections to calling the vendor a trustee see ante § 36; and post § 83, note 6. 13. For example, it the purchaser has been guilty of fraud on the vendor or if only the vendor signed the memorandum required by the Statute of Frauds. 14. See supra note 12; 31 Harv. Law Rev. 273, note 12. 15. Professor Ames' argument continues: "This view is confirmed it we consider the position of a vendor v/ho has conveyed before the time fixed for payment. He is now a creditor, just as if he had sold goods on credit, and there is no more reason why he should have a bill in equity than any other common law creditor. No case has been found in which a bill has been sustained under such circum- stances. The case of Jones v. Newhall (1874) 115 Mass, 244 Is a solid decision against such a bill." It -would seem that the fact just men- tioned does not tend to show that there is no positive rule of mutu- ality but merely that the rule is not applied where the vendor can get a judgment for the purchase money at law, the procedure peculiar to equity being here unnecessary. When the purchaser sues for specific performance he must do so in equity even if he has paid the full purchase price because he wants a decree in personam that the ven- dor convey — something he can not get at law. If the vendor sues 58 SPECIFIC PERFORMATTCE OP CONTBACTS. [Chap. 11 III. Specific performance given because, damages at law are conjectural. § 49. In general. In contracts concerning land or chattels of senti- niental or unique value or where the seller has a legal monoply, damages are inadequate primarily because the buyer wants the specific thing and no amount of damages would be a satisfactory substitute. There is, however, the additional reason that it is difficult If not impossible to get an accurate estimate of the amount of damages; this latter reason as an ample one In itself for giving specific performance as will be seen in the following sections. § 50. Annuities— dividends against bankrupt's estate. A contract for the sale of an annuity is specifically enforcible not because of any unique quality or senti- mental value but because of the difficulty of computing damages. If an action is brought at common law for breach, the market value of the annuity will be cal- culated according to the recognized mortality tables* which are based on the expectancy of life of the average human being. The plaintiff,, whether seller or buyer, may properly insist that he had in mind not the life of the average person but the life of the particular in- fer specific performaace without having conveyed, the suit must be ill equity because, inter alia, the common law does not regard the unaccepted tender of a deed of land as entitling the vendor to the pur- chase price; and an equity decree is necessary to compel the pur- chaser to accept the conveyance and also to protect both parties by making the performance of each conditional upon the simultaneous performance by the other. No such conditional decree is necessary if the vendor has. conveyed, and the remedy at law is therefore quite adequate. 1. New York v. North American Life Insurance Co. (1880) 82 N. Y. 172; 20 Am. & Eng. Encyc. of Law, 2nd edition, 884. § 51] SPECIFIC PEKFOEMANOE OF CONTRACTS. 59 dividual. It is obvious that damages in such a case would be conjectural.^ Similarly, in a. contract to sell dividends against a bankrupt's estate, the uncertainty of the percentage of dividends which the estate will pay makes damages at law so conjectural and uncertain and therefore in- adequate that specific performance will be decreed to either seller or buyer.^ The same reasoning prevails in contracts to sell the promissory notes of a maker who is insolvent but not bankrupt.* § 51. Contracts to give security. A contract to give a mortgage on land would be specifically enforcible merely because an interest in land^ is involved. But contracts to give a mortgage on specific property of any kind will be specifically enforced^ for the reason that damages are conjectural. If the debtor should remain solvent the damages would be only nominal; on the other hand, if the debtor should later become insolvent, the damages would vary from a small sum in cases of slight insolvency up to the whole amount of the debt in cases of total insolvency. If the creditor were denied specific performance he would be compelled to rely entirely on the solvency of the debtor, the very thing which he wished to avoid. In these cases the equitable maxim properly applies 2. Withy V. Cottle (1833) 1 Simons & Stuart 174, 1 Ames Eq. Cas. 57.- 3. Adderley v. Dixon (1824) 1 Simons & Stuart 607, 1 Ames Eq. Cas. 58. 4. Gottschalk v. Stein (1888) 69 Md. 51, 13 Atl. 625; Cutting v. Dana (1874) 25 N. J. Eq. 265. 1. See ante § 42. 2. Hermann v. Hodges (1873) 43 Law J. Ch. 192, 1 Ames Eq. Cas. 61;. Triebert v. Burgess (1857) 11 Md. 452. It is of course necessary that' the contract should be definite In its terms so that the court may be reasonably sure of (carrying out the Intentions of the parties. See ante § 41; 22 Harvard Law Review 309. A contract to give security without naming any specific property will not be enforced by equity. 60 SPECIFIC PEEFORMANCE OF CONTRACTS. [Chap. 11 that equity regards that as done, which was agreed to be done.* In England, a contract to pledge personal property is treated in the same way as a contract to give a mortgage and apparently upon the same reasoning.* In this country weight of authority is contra,^ on the ground that since a pledgee without possession is usually not protected against creditors of the pledgor, it would be giving greater effect to a contract to pledge than if the pledge had actually been made but posses- sion retained by the pledgor.^ § 52. Contracts to insure. If an insurance company contracts to insure and then refuses to issue the policy, equity will give specific relief by compelling the issuance of the policy' Here, again, damages are inadequate because conjec- tural. If, there is no loss, no damages at all could be recovered at common law; if there is a loss, the damages may be any amount up to the full amount of the promised policy. 3. See ante i 20. In most cases where the creditor seeks relief equity will not require the formality of the defendant's executing a formal mortgage but will give complete justice by declaring an equi- table lien on the property and ordering a sale of the property to satisfy the lien. See ante § 24. Occasionally, however, the debtor is com- pelled to execute a formal mortgage; Hermann v. Hodges (1873) 43 Law J. Ch. 192. See ^prole v. Whayman (1855) 20 Beav. 607. 4. Martin v. Reld (1860) 11 C. B. N. S. 730. 5. See Copeland v. Barnes (1888) 147 Mass. 388; In re Sheridan (1899) 98 Fed. 406. 6. It might be suggested, In answer to this and In support of the English rule, that there is' less likelihood of fraud in cases ot contracts to pledge than in cases where the pledge is actually made but possession is retained. 1. Tayloe v. Merchants' Fire Ins. Co. (1850) 9 Howard 390, 1 Ames Eq. Cas. 59; Hebert v. Mutual Life insurance Co. (1882) 12 Fed. 807. Where the insurance company reserves the power to cancel the policy the. right to specific performance before loss is defeated because equity will not give a futile decree; see ante § 32, note 2. § 52] SPECIFIC PEKFOEMANCE OP OONTBACTS. 61 The ease which usually arises is after a loss, either partial or total; if the loss covers only a part of the policy equity will decree the issuance of the policy and then upon the principle that when equity once takes jurisdiction of a case it will, settle up the whole matter,^ it will give a money decree for the amount of the loss instead of sending the plaintiff to a court of law to sue upon the plicy.* If the loss is large enough to cover the whole amount of the policy, the issuance of the policy would be a mere matter of form, so the only decree given is for the payment of the amount of the policy.* The above discussion shows the situation at the 'time when equity took jurisdiction. It is well settled now that at law the plaintiff can recover the same damages on a contract to insure that he would have been able to recover if the policy had bejgji issued;' and besides, since parties to a suit are now made com- petent witnesses the plaintiff will usually have no dif- ficulty in proving his contract in a common law court; and since he can usually demand a jury trial at common law, while in equity a jury is merely for the purpose of enlightening the conscience of the chancellor and within his discretion, most of the suits of this sort are today brought in common law courts. But as already stated, wherever equity has once ta'ken jurisdiction on the ground Jhat relief at common law is inadiequate, it will generally not relinquish the exercise of that jurisdic- tion merely because later the relief at law becomes adequate ; ' hence the jurisdiction of equity in cases of contracts to insure will still be exercised.® 2. See ante 1.24. 3. Security I*ire Ins. Co. v. Kentucky Marine & Fire Ins. Co. (1869) 70 Ky. 318. 4. Commercial etc. Ins. Co. v. Union etc. Ins. Co. (1856) 19 How- ard 318. 5. Baile v. St. Joseph Ins. Co. (1881) 73 Mo. 371. See 15 Harv. Law Rev. 575. 6. Carpenter v. Mutual Co. (1846) 4 Sandt Ch. 408. 62 SPECIFIC PEBJFOKMANCE OP CONTRACTS. [Chap, ii § 53. Contracts to deliver in installments. , If a seller contracts to deliver property which fluctuates greatly in value, the deliveries to be made in installments covering a relatively long period of time, equity will probably give specific performances because damages would be conjectural.^ If the value is com- paratively stable and the time relatively short specific performance is likely to be refused, as a matter of discretion.^ The mere fact that delivery is made in in- stallments is not a sufficient basis for equity jurisdic- tion.^ • IV. To avoid irreparable injury to the plaintiff. § 54. In general. Specific performance is sometimes given where the damage which the plaintiff will suffer from a breach of contract by the defendant is of such a character that damages can not be a satisfactory substitute, e. g., where a breach will cause serious injury to the plain- tiff's business. Here the basis for the exercise of equity jurisdiction is not merely that it is difficult to estimate damages but that even if estimated accurately, it 1. Taylor v. Neville, cited in Buxton v. Lister (1746) 3 Atk. 383, 1 Ames Bq. Cas. 48; and see Mvesley v. Heise (1904) 45 Oregon 148, 76 Pac. 952. 2. Fothergill v. Rowland (1873) Law Reports 17 Eq. 132, 1 Ames Eq. Cas. Ill (contract for coal which had three years to run). In this case Jessel, M. R. said: "T'o say that you cannot ascertain the damage in a case of breach of contract for the sale of goods, say in monthly deliveries extending over three years . . . is to limit the power of ascertaining damages in a way which would rather astonish gentlemen who practice on what is called the other side of Westminster Hall." This remark does not, however, meet the point; of course a court of law has the power to ascertain the damage, however con- jectural, if the plaintiff sues at law for relief; the real question is as to the adequacy of such a remedy, not the power to give it. 3. It must he borne in mind that while the length of time over which the installment contract is to run tends to make damages at law conjectural, the increased amount of supervision required might tend to influence an equity court not to give relief. See post $ 58. § 55] SPECIFIC' PERFORMANCE OF CONTRACTS. ■ 63 would be totally out of proportion to the injury suffered. The principle involved is thus closely akin to that underlying the cases where specific performance is given of contracts with reference to chattels having a unique character or sentimental value. Some of these cases may also be classified under the quia timeP- jurisdiction of equity. § 55. Contracts to exonerate. A contract whereby A in consideration of B's be- coming a surety either for A or for a third person, agrees to save B harmless from the consequences of entering into sTich an obligation is usually and properly called a contract to exonerate.^ Such contracts are specifically enforcible^ at least when the plaintiff can show that to rely upon his right of subrogation^ or upon his right of reimbursement against his principal debtor would entail great hardship upon him; e. g., where the raising of the cash to pay off the obligation would seriously cripple his business, and where ob- viously his other remedies would be inadequate. In such a case the plaintiff would get a decree that the defendant pay the obligation and thus save the plain- tiff harmless; such a decree may be enforced against the defendant's property just as any other money decree.* Since equity has quia timet jurisdiction, i. e. 1. See vost Chap. VII. 1. It is sometimes called a contract of indemnity; but the terms 'indemnity' and 'indemnify' are ambiguous because they are also used to designate the right of a surety to reimbursement after he' has paid any part. See post §§ 451, 453. 2. Comes Ranelaugh v. Hayes (1683) 1 Vernon 189, 1 Ames Bq. Cas. 64. 3. The right of subrogation is the right of a surety, who has paid the whole amount for which he is liable, to the assignment of all the rights which the creditor had the moment before payment. See post § 450. 4. Such a decree may even be enforced in other jurisdictions by suing thereon, just like suing on a judgment. See Bullock v. Bullock (1895) 57 N. J. L. 508, 31 Atl. 1024.. 64 SPECIFIC PEEFORMANCE OP CONTKACTS. [Chap, ii jurisdiction to prevent threatened wrongs, it is not necessary that the plaintiff wait till he is actually sued by the creditor. Furthermore, it should be pointed out that the plaintiff's right is solely against the de- fendant his promisor; such a contract does not affect the creditor's rights in any way.' The right, in absence of an express contract, of a surety to exoneration against his principal delitor and to proportional exoneration against his co-sureties will be discussed in a later chapter." § 56. Necessary articles procurable only from the de- fendant. Where the defendant has practically a monoply of articles which are necessary to the plaintiff's business, the plaintiff may have specific performance even tho the chattels can not be said to be unique in character. For example, when a defendant agreed to furnish the stone from his quarry for the erection of a church building but refused to go on after the building, was partly completed, specific performance was granted because of the impossibility of matching the stone from other quarries in the vicinity.^ In such cases to deny the plaintiff relief would result in inflicting an injury which would be incommensurable with any amount of damages which the plaintiff might get in an action at law.^ It has been held that if the plaid- tiff would be compelled to go a long distance for similar necessary articles he is entitled to specific perform- ance.* 5. See post § 453. 6. See post § 453. 1. Rector of St. David v. Wood (1893) 24 Oreg. 396, 34 Pac. 18; 36 Cyc. 560. In Donnell v. Bennett (1883) Law Rep. 22 Ch. Div. 835, 1 Ames Bq. Cas. 114 the defendant was enjoined from deliver- ing the article (fish refuse) to any one else then the plaintiff. 2. Gloucester Isinglass & Glue Co. v. Russia Cement Co. (1891) 154 Mass. 92, 27 N. E. 1005 (fish slcins). 3. The Equitable Gas Light Company of Baltimore City v. The Baltimore Coal Tar and Manufacturing Co. (1884) 63 Md. 285, (coal tar not procurable elsewhere in Baltimore). And see the suggestion §' 57] SPECIFIC PEBFOEMANGE OF CONTRACTS. 65 § 57. Shares of stock. Contracts for the sale and purchase of shares of stock in private corporations have beeu dealt with differently in different jurisdictions. By what is be- lieved to be the weight of authority, however, specific performance will be denied only where there is an open market for the stock so that its value can be easily ascertained and so that the purchaser may be able to buy elsewhere.' In England the tendency is toward a more liberal rule,^ very little attention being paid to whether the stock is readily procurable on the market. On the other hand, in some states in this country there is a tendency toward the stricter rule that mere inability to procure the stock on the market is not a sufficient ground for specific performance but that the purchaser must show some particular and peculiar need for it -in specie ;* e. .g. that he needs it to give him a majority of the/ stock and thus a control- ling interest in the corporation; in such a case a failure to get specific performance would result in such an injury that damages at best could be only a lame substitute.* made by Lord Hardwicke in Buxton v. Lister (1746) 3 M.tk. S83, 1 Ames Eq. Cas. 47, 49, as to timber for ship building. Of course the mere fact of convenience of location is not enough because that may be considered in estimating damages. Paddock v. Davenport (1890) 107 N. C. 710, 12 S. E. 464 (timber trees near a watercourse). 1. Fru'e V. Houghton (1882) 6 Colo. 318; 36 Cyc. 560. In Selover, V. Isle Harbor Land Co. (1904) 91 Minn. 451, 98 N. W. 344, the stock had never been sold and hence had no market value whatever; specific performance was decreed. See 9 Col. Law Rev. 635; 2 Harv. Law Rev. 153-154. 2. Duncuft V. Albrecht (1841) 12 Sim. 189, 1 Ames Eq. Cas. 55; Poole V. Middleton (1861) 29 Beav. 646. / 3. Barton v. DeWolf (1883) 108 111. 195; Gilbert v. BunneU (1904) 86 N. Y. Supp. 1123. See 36 Cyc. 562, note 38. 4. O'Neil v! Webb (1898) 78 Mo. App. 1; 13 Mich. Law Rev. 609, 610. In Humfray v. Fothergill (1866) Law Rep. 1 Eq. 567 the court • decreed specified performance of a contract whereby a right of pre- emption was given of partnership shares to the other members of the partnership. Bq.— 5 66 SPECIFIC PEHFOBMANCE OF CONTRACTS. [Chap. U In regard to government bonds or stocks,* specific performance will not he decreed anywhere, since they are always for sale on the open market. V. Contracts for continuous performance. § 58. In general — difficulty of supervision. In most of the cases discussed thus far ii^ this chapter, the acts which the plaintiff has asked to have specifically performed have been such that their performance would occupy only a brief period of time; e. g. to execute a conveyance, to deliver a chattel, to pay money. In some cases, however, courts are asked to decree specific performance of contracts where the act to be done by the defendant will take a long period of timie, such as contracts to put up a building, con- tracts to repair, etc. Tho there is language in some of the decisions* to the effect that there is lack of jurisdiction in such cases, the decisions themselves show that these cases do not differ in principle from those that have been already discussed; jurisdiction exists if the defendant is within control of the court, and will be exercised if the remedy at law is inadequate, and the inconveniences attending its exercise are not too great.^ It must be borne in mind that while the remedy of specific performance is no longer a mat- ter of grace but of right, yet on the other hand it is 5. Cud V. Rutter (1719) 1 P. Wms. 570. Nor will equity compel delivery by one who wrongfully detains such bonds; Dumont t. Fry (1882) 12 Fed. ,21. 1. Blackett v. Bates (1865) Law Rep. 1 Ch. App. 117: "The form of the decree itself shows the want of jurisdiction. It does not and could not decree a specific performance . . . ." Beck v. Allison (1874) 11 N.'Y. 366, 1 Ames Eq. Cas. 70: "As I understand the English cases, the power of enforcing the specific performance of con- tracts for repairs is not now exercised by courts of equity there, and there is no authority for its exercise by the courts of this State. This being so, a court of equity had no jurisdiction . . . ." 2. See 8 Col. Law Rev. 670. §. 59] SPECIFIC PEBFOBMANCE OF CONTEAOTS. 67 not atttomatically given like assumpsit or replevin, but is given only in the exercise of judicial discretion.* If the court orders a defendant to do an act which will require a long period bf time, such as the building of a house, the court must of course see that it is per- formed, in order that the decree be not nugatory. This difficulty of supervision in ease specific perfor- mance should be granted is weighed against the hardship of the plaintiff in case specific performance should be refused. If the hardship of the plaintiff would be very gteat the court will, and should, undertake a more difficult task of supervision than where the hard- ship on the plaintiff would be relatively slight.* It is a matter then, of expediency, of the balancing of con- venience, to be decided upon all the circumstances of the particular case and is incapable of being reduced to a rule. § 59. Contracts to build. ' Where the defendant has agreed to erect a building on the plaintiff's land, damages at law are usually adequate; in fact the remedy at law may be even more satisfactory than specific performance,^ because the plaintiff can usually find some one else who will do the work substantially as well and it is much more agree- able to have a builder who works willingly than one who works under compulsion. It may happen, however, that it is impossible or very difficult for the plaintiff 3. Shubert v. Woodward (1909) 167 Fed. 48; 21 Harv. Law Rev. 210. 4. Wilson V. Furness Ry. Co. (1869) 9 Eq. Cas. 28, 33: "It would be monstrous if the company, having got the whole benefit of the agreement, could turn around and say, 'This Is a sort of thing which the court finds a difficulty in doing and will not do.' Rather than allow such a gross piece of dishonesty to go unredressed the court would struggle with any amount of difficulties in order to perform the agree- ment." 1. See Flint v. Brandon (1803) 8 Vesey 159, 1 Ames Bq. Cas. 69, 70. 68 SPECIFIC PEBFOSMANCE OF CONTRACTS. [Chap, ii to get another builder; in such a case, if the hardship on the plaintiff would be very great, specific per- formance should be decreed.^ Where the defendant has agreed to erect a building on his own land we have a very different state of affairs from the case where the building is to be put upon the plaintiff's land. In Mayor of Wolverhampton V. Emmons* the plaintiff city having several lots to sell sold part of them to defendant with a view of enchancihg the value of the lots retained; it required the defendant as a part of the consideration for the lots purchased by him a covenant that he -virould within a certain time erbct houses thereon, according to certain specifications. The hardship on the plaintiff if specific performance is denied in such a ease is obvious; the damage suffered by it due to the failure to erect the houses is purely conjectural, a matter of speculation j and it is impossible to have some one else etect the houses, because they were to be erected on the de- fendant's land and to go on the land without his con- sent would be a trespass ; furthermore,' even if the de- fendant should consent to the plaintiff's thus erecting the buildings, unless the consent also amounts to an 2. In early times Chancery was quite literal in granting specific performance of contracts to build on plaintiff's land. 10. Col. Law Rev. 574, 1 Ames Eq. Cas. 68 note 4. A most interesting case is that of Holt V. Holt (1694) 1 Eq. Abridg. 274, placitum 11; the contract to build was made by the defendant with the plaintiff's father, who died leaving the plaintiff as his heir. The reasoning of the court in giving specific performance to the heir is not given but apparently the sole ground is that a contract by Y to erect a building on X's land creates in X a property right to have the land thus benefitted, which property right passes to the heir. See post § 83. 3. Law Rep. (1901) 1 K. B. Div. 515, 1 Ames Eq. Cas. 76; the court gave specific performance. For other cases wher# specific performance was decreed of contracts to erect buildings on defendant's property, see 1 Ames Eq. Cas. 78 note. It is sometimes suggested that in order that the plaintiff should succeed it is necessary that the land be ob- tained by the defendant from the plaintiff. See 36 Cyc. 583. While this element is usually present it is not essential. See 16 Harv. Law Rev. 293. Where the court gives relief it should appoint as overseer an architect who has expert kHowledge. § 60] SPECIPIO PEBFOEMANCB OF CONTRACTS. 69 agreement to pay therefor, the plaintiff could not ordinarily afford to do so because the buildings would becotne the property of the defendant.* § 60. The public interest a possible element. Usually, in exercising their discretion in determin- ing whether it will be expedient to give relief, a court takes into consideration and balances only the interests of the contracting parties. But in some cases there is a public interest to be considered either in favor of or against the granting of specific performance and it may be suflBciently heavy to turn the scale. In Hood V. Noijth Eastern Ey. Co.^ the defendant had con- tracted to keep on the plaintiff's estate a first class station for the purpose of taking up and setting down passengers travelling along the said roadway. Specific performance was decreed, " whatever public interest there was being in favor of granting relief and damages being clearly inadequate. So, in Joy v. St. Louis,^ where the defendant railway company had con- 'tracted to allow the plaintiff to use its tracks through Forest Park, the defendant company to have control of the running of plaintiff's trains and to keep in order the tracks and terminal facilities, the court in giving relief took into consideration the public interest in favor of having the contract performed. • On the other hand, in Powell Duffryn Coal Co. v. Taff Vale Ry.^ where an Act of Parliament had given 4. Still further, since What the plaintiff wants is the general result of increase in the value of his own* land, much less supervision is required than if the building is for the plaintiff's own use. 1. (1869) Law Rep. 8 Eq. 666; 1 Ames Eq. Gas. 82. 2. (1890) 138 U. S. 1. See also Prospect Park & Coney Island R. R. Co. V. Coney Island & Brooklyn R. R. (1894) 144 N. Y. 152, 39 N. E. 17, 1 Ames Eq. Cas. 83, where the defendant street car company had agreed to make connection with the plaintiff's steam railroad trains; the public interest was an element which helped the plaintiff to get his decree. See 8 Col. Law Rev. 670. 3. (1874) Law Rep. 9 Oh. App. 331, 1 Ames Eq. Cas. 79. It is to be noted that the plaintiff's right was statutory, not contractual; 70 SPECIFIC PEBPOKMANCE OF OONTBACTS. [Chap. 11 to the plaintiff railway company the right to use a portion of the defendant railway company's tracks, specific performance of this obligation was refused; the remedy at law was clearly inadequate; but there was a great practical difficulty of supervision involving the fixing of schedules; hence, whatever public interest there was was against specific performance because it would tend to increase the danger to the public to attempt to require defendant's servants to work the train signals and would also probably decrease the speed of the defendant's trains. The tendency in this country at present is to vest the regulation of such matters in an administrative commission which can handle the matter much more effectively than can an equity court. § 61. Contracts to repair. A contract whereby a landlord agrees with his tenant to repair the demised |>remises is very similar to a contract to erect a building on the plaintiff's land; the remedy at law is usually more satisfactory than specific performance because work done under com- pulsion is not likely to be as well done as that which is done voluntarily. As the court expressed it in Flint V. Brandon,^ "In some respects the legal remedy is better than any this court can give ; for the plaintiff re- covering and having the disposition of the money, may perform the work in such a manner as he thinks proper; whereas, if^ specific performance is decreed a question may arise whether the work is sufficiently per- possibly this made the court more reluctant to give relief. See 28 ' Harv. Law Rev. 110. In Harper v. Virginian Ry. Co. (1915) 76 W. Va. 788, 86 S. B. 919, the decree that defendant operate its depot according to the terms of its promise was expressly limited to such time as such operation remained consistent with its duties to the public. See 29 Harv. Law Rev. 552; 14 Col. Law Rev. 612. 1. (1803) 8 Vesey 159, 1 Ames Eq. Cas. 69. It is not uncommon to find statements that covenants to repair will never be enforced. See Ross V. Union Pacific Ry. Co. (1863) 1 Woolworth 26., § 62] SPECIFIC PERFORMANCE OF CONTRACTS. 71 formed. The jurys may also take into consideration any injury to him by not having performed at the com- mencement of the lease; but this court can only decree specific performance." But here, as in building contracts, the circum- stances may be such that damages would be so in- adequate that specific performance would be decreed. If the lease is short in duration, and the repairs to be made by the landlord are relatively very expensive, specific performance would be necessary to protect both parties. At common law the tenant could not get as damages the value of the improvements because the law court could not give a conditional judgment and therefore could not require that the tenant use the money in making the improvements on the land; the measure of damages in a common law court is the difference between the value, for the period of the lease, of the premises without the improvements, and the value, for the same period, which the premises would have had if the landlord had made the promised improvements. Unless the tenant can find a site in the neighborhood substantially as good, it is clear that damages are inadequate and specific performance should be decreed unless the difficulty of supervision is very great.^ § 62. Contracts for personal services. A contract to render personal services* will not be 2. In Jones v. Parker (1895) 163 Mass. 564, 1 Ames Eq. Cas. 73, the landlord had contracted to heat and light the demised premises during the term of the lease; s'pecific performance was decreed. . Since the fixtures would become the property of the landlord and all that the tenant wanted was a general result, less certainty and less super- vision were required. 1. While building and repair contracts require personal ser- vices, they are not strictly contracts for personal service but for a building; it Is usually immaterial to the plaintiff how the result is attained. 72 SPECIFIC PEEFOEMANOE OF CONTHACTS. [Chap. U affirmatively^ enforced against the party who agreed to perform the services, for one or more of three different reasons. First, where the services are not unique and the plaintiff can easily get some one else to perform them; here equity will not give specific performance for the simple reason that the remedy at law is ad- equate. Second, where the remedy at law is inadequate either because the services are unique or because of some other circumstances. Here equity will not exer- cise its jurisdiction because personal services rendered under compulsion are not satisfactory; e. g., supposing that the defendant has unique ability as a gardener, or draftsman or butler ; if an order of court is necessary to compel him to work, it is not likely that his services will be worth much to his employer under such cir- cumstances. Third, in the United States, where the thirteenth amendment has forbidden involuntary ser- vitude,* we have a limital^on not merely upon the exercise but upon the existence* of equity jurisdiction; at least where the services to be rendered are those of manual labor, through long hours and for a con- siderable period of time, an order of court requiring defendant to perform would probably be in violation of the United States Constitution.^ 2. For a discussion of negative or indirect enforcement see post §§ 72-81. I 3. See 8 Harv. Law Rev. 172, 173. See also Gossard Co. v. Crosby (1906) 132 Iowa, 155, 163, 109 N. W. 483: "Any system or plan by which the court could order or direct the physical coecrion of the' laborer would be wholly out of harmony with the spirit of our insti- tutions, and his imprisonment would take away his power to make specific performance. Even if such authority existed its exercise would .be undesirable. If the relation of employer and employee js to. be of value or profit to either it must be marked by some degree of mutual confidence and satisfaction, and when these are gone and their places usurped by dislike and distrust, it is to the advantage of all concerned that their relations be severed." 4. See ante § 8. 5. S6e Clark's Case (1821) 1 Blackf. (Ind.) 122; in denying specific performance to the employer against a menial servant the court distinguished the case of apprentices on the ground of the § 63] SPECIFIC PEKFOEMANCE OF CONTHAGTS. 73 The employee is likewise unable to get specific performance of the contract for services against the employer. In most cases damages are an adequate remedy because all that the employee wants is money. In the exceptional ease whepe the employee desires something besides money, e. g., experience, it will usually be more satisfactory to get it elsewhere than with an unwilling employer.® VI. Miscellaneous cases. § 63. Contracts to lend money. Tho a contract to give a mortgage to secure a loan of money or other debt already contracted is specifi- cally enforcible by the creditor,* a contract to lend money cannot be specifically enforced by either party, even tho the loan is to be with security.^ In most cases damages at law are adequate because there is ordinarily an open market for the lending and borrow- ing of money upon good security. If the loan were to be made without security or with insufficient security, 'the borrower may find it difficult to secure the loan elsewhere and damages therefore would be inadequate. But_ in such a case specific performance should be re- fused because the equity court has no means of in- suring that the Ipnder will be repaid at the maturity of the debt. This is sometimes expressed by saying that there is lack of mutuality of performance.* parental relation involved and the case of soldiers and sailors on the ground of the public interest in the national safety. See 36 Cyc. 579, 580. 6. See Shubert v. Woodward (1909) 167 Fed. Rep. 48 where affirmative relief was sought by the manager of a theater against the employer. In this case as well as in most cases where the employee has sued the employer the denial of relief has been unnecessarily placed upon the ground of lack of mutuality of /remedy. 36 Cyc, 581. For a discussion of lack of mutuality of remedy see post §§ 174-180. ( 1. See ante § 51. 2. Western Wagon & Property Co. v. West (1892) 1 Ch. Dlv. 271, (suit by borrower); Rogers v. Challis (1859) 27 Beav. 175, 1 Ames Eq. Cas. 61 (suit by lender). 3. See post § 181. 74 SPECIFIC PEilFOEMANCE OF CONTEACTS. [Chap. 11 There is one state of facts in which a court of equity might conceivably give the borrower relief; viz., where he has contracted to give ample security but because of a sudden money panic happening after the contract to lend was made, it is now impossible or very difficult to borrow money elsewhere.* § 64. Awards — contracts for arbitration or valuation. If a contract is made to submit a matter to arbitration or valuation and the arbitrators are ap- pointed and make an award, the award is treated just as if it were a contract betwee'n the parties; e. g., if the award is to convey land, equity will give specific performance of it;^ if it is to pay money, the proper remedy is at law.^ But if after the agreement to arbitrate or to value is made, one of the parties refuses to go on and ap- point an arbitrator or valuer, equity will not interfere. The reason for such refusal is that the acts expected of the arbitrators and valuers involve so much discretion that it is unlikely that a command by a court of equity to appoint an arbitrator or valuer would bring about the desired result. Equity will not render a decree which is so likely to be futile. In Agar v. Macklew^ counsel said: "Suppose the court were to decree that the defendant should name an arbitrator how could it compel the execution of that decree? Or even if the arbitrator were named, how could it compel that 4. Of course relief should not be given if it would cause great hardship to the lender. There are apparently no decisions on the point. 1. Hall V. Hardy (1733) 3 Peere Wms. 186. Wood v. Griffith (1818) 1 Swanst. 43. 2. The common law remedy was debt. 3. (1825) 2 Simons & Stuart 418, 1 Ames Eq. Cas. 67. The court was asked to refer the valuing to a master In chancery but refused to do so. See also Darbey v. Whlttaker (1857) 4 Drew. 134. ^ 65] SPEiOiriO PERFOKMANCE OF CONTRACTS. 75 arbitrator to act? Could it corppel the arbitrators to agree upon a price?* It is the constant doctrine of the court never to interfere in cases where it can not enforce the acts which it is called upon to direct." Nor will the court itself determine the. question because this would be making a new contract for the parties. Where, however, the agreement to arbitrate or submit to valuers is a comparatively unimportant part of the contract, which is otherwise specifically enforci- ble, specific performance will be given of the whole contract, the court itself deciding the question or re- ferring it to a master in chancery.^ So, when the plain- tiff has gone to great expense in reliance upon the agreement so that to deny relief would cause great hardship to the plaintiff this may be enough to turn the balance of convenience and cause the court itself to decide the question and to give specific performance.® § 65. Contracts to form a partnership. A contract to enter into a partnership at will or for an indefinite period of time will not usually be specifi- cally enforced because such a partnership may be im- mediately dissolved and the equity decree thus rendered futile.^ But if by the contract the plaintiff was en- titled to the conveyance of an interest in land or in a unique chattel from the defendant, specific performance will be decreed of the contract especially if denial of 4 Formerly juries were rather severly treated to compel them to agree on a verdict. 5. Coles V. Peck (1884) 96 Ind. 333; 30 Cyc. 578. Compare this holding with the decisions giving specific performance of entire con- tracts to sell land and ordinary chattels; see ante § 44. 6. Strohmeier v. Zappenfield (1877) 3 Mo.App. 429. Where the referees appointed are willing to act but the defendant refuses to allow them to come upon the land to make the valuation, it seems that equity may enjoin such prevention; More v. Merst (1821) Mad- dock & Geldart 26. As to indirect enforcement of affirmative promises generally see post §§ 72-81. 1. Clark V. T-ruitt (1899) 183 111. 239, 55 N. E. 683. 76 SPECII'IC PERFORMANCE OF CONTEACTB. [Chap, ii relief would work great hardship upon the plaintiff.* A contract to enter into a partnership for a fixed time will not ordinarily be specifically enforced for the same reason that specific performance will not be given for personal services.* No court would undertake to compel the partners to work together as such.* C. Negative Contpacts. § 66. In general. Hitherto in this chaptsr the discussion has been limited to the enforcement of promises to do something as distinguished from promises to refrain from doing. In this subdivision of the chapter the latter cl^ass of cases will be treated. As a matter of brevity and con- venience a promise to do will be spoken of as an affirma- tive promise or contract or stipulation, while a promise to refrain from doing will be referred to as a negative promise or contract or stipulation. Where specific performance of negative promises 2. Whitworth v. Harris (1866) 40 Miss. 483 (land); Sutter- thwait V. Marshall (1872). 4 Del. Ch. 337 (patent). Since the promise to convey an interest in the land or in the patent was in itself specifi- cally enforcible, the fact that there was also a promise to enter into a partnership was not a sufficient reason for denying specific performance of the entire contract. Cf. giving specific performance of an indivis- ible contract to sell land and ordinary chattels; see ante § 44. 3. Cee ante § 62; 36 Cyc. 579. In England v. Curling (1843) 8 Beav. 129 the court gave a decree declaring the rights of the parties to specific performance of a fourteen year contract, remarking, however, that it was impossible to make persons who will not concur, carry on a business jointly for their own common advantage. 4. Some other cases of interest where specific performance of aflBrmative contracts has been decreed are as follows: Agreement by X with his intended wife that he would substitute her as the beneficiary in a mutual benefit life insurance policy; Pennsylvania Co. v. Wolfe (1902) 203 Pa. 269, 52 Atl. 247, 16 Harv. Law Rev. 67. Agreement to receive specific chattels in satisfaction of a debt; Very v. Levy (1851) 13 How. 345. Agreement to vacate a judgment; Deen v. Milne (1889) 113 N. Y. 303, 20 N. E. 861; 36 Cyc. 568. I % 67] SPECIFIC PBEFOEMANCE OP CONTBACTS. • 77 is given, it will be of course by a negative decree; this negative decree is called an injunction.^ The negative promise may be the only promise made by the defendant or it may be coupled with an affirmative promise. 7. Defendant's promise entirely negative. § 67. Covenant not to sue— circuity of action. Where the only promise made by the defendant is a negative one, the question whether equity will give specific performance or not depends upon the adequacy of the common law remedy. Where the, defendant has contracted never to sue the plaintiff on a certain cause of action, equity will give specific performance by a perpetual injunction^ in order to avoid circuity of action and the expense and delay incident thereto. By circuity of action is meant that by litigation at common law the parties would arrive at the same position in which they were when they started. For example, suppose A owes B $100 and contracts never to sue him; then he does sue in violation of his promise; the contract never to sue is no answer to the action at law under strict common law pleading; but B could at once bring an action against A for breach of his contract never to sue and recover as damages the amount which A had recovered in the first litigation and costs. The result is that except for the loss of court costs and attorney's fees the parties are where they started. If the promise was not to sue on the cause of action for a certain time, equity will give specific 1. While the word "injunction" means primarily nothing more than command, its secondary meaning is a forbidding or prohibiting. It is in this secondary sense that the term is used in equity unless qualified by the word "mandatory" in which case the meaning is exactly the opposite, namely, a command to do something. See post S 70. 1. Rue V. Meirs (1887) 43 N. J. Bq. 377, 12 Atl. 369. In some states this may be set up at law as an equitable plea, and in code states it may be set up in the answer. 78 • SPECIFIC PERFOKMANCE OF CONTRACTS. [Chap, ii performance by a temporary injunction till the time has expired.^ In such a case if the common law court should allow B to recover back the full amount of the judgment there would be circuity of action as in the case of the promise never to sue. If it should not allow the recovery of the full amount but of some lesser sum, the common law remedy would be. inadequate because of the difficulty of estimating the amount of \ damages suffered in such a case. § 68. Promise not to compete with the plaintiff. Where one sells out a business — whether com- mercial or professional — and agrees as a part of the consideration not to engage in competition with the buyer, equity will give specific performance to the seller,^ provided, of course that the contract is not illegal as being in unreasonable restraint of trade.* The equitable remedy is given here because of the im- possibility of estimating accurately the damages at law, the value of the good will of a business being con- jectural.* 2. This cannot be availed of at law because a judgment at law must be unconditional and final; see Sutherland, Damages 4th Ed. § 144. 1. Andrews v. Kingsbury (1904) 212 111. 97, 72 N. E. 11 (sale of newspaper); Williams v. Williams (1818) 2 Swanst. 253 (sale of coach business) ; Whitaker v. Howe (1841) 3 Beavan 383 (sale of attorney's business). That the agreement not to compete' may be implied from rfhe circumstances see Palmer v. Graham (1850) 1 Par. Sel. Cas. (Pa.) 476, 478. 2. As to the test of reasonableness in restraint of trade, see Norden- felt V. Maxim Co. (1894) A. C. 535. Where the contract is valid at common law equity will usually give relief in such cases as a matter of course; but in Thomas v. Borden (1908) 65 Leg. Int. (Pa.) 404 the court refused to enjoin the defendant frcmi practicing painless dentistry in Philadelphia tho the contract was valid at law, because equity should not protect a right to a monoply in the means of relieving human suffering. For a criticism of this case see 22 Harv. Law Rev. 145; 8 Col. Law Rev. 586. 3. Palmer v. Graham (1850) 1 Par. Sel. Cas. (Pa.) 476, 478. <^ 69] SPECIFIC PEEFOKMANCE OP CONTRACTS. 79 The same reasoning has been applied where the promise not to compete with the plaintiff is based upon considerations other than the sale of a business.* § 69. Promise not to reveal trade secrets. If an employee agrees, as a part of the considera- tion for his employment, not to divulge 'the trade secrets of his employer, equity will give specific per- formance of such a contract,^ damages being wholly inadequate because of the difficulty of estimating them and usually also because of the irreparable injury which would result. In the absence of an express understanding it wquld Usually not be difficult to show an implied promise^ to that effect, especially if the relation between the employer and employee was one of personal trust and confidence. As we shall see later,' even if there were no contract of employment at all, equity would enjoin one who had obtained a trade secret and threatened wrongfully to divulge it, on the ground of enjoining a threatened tort to property where the plaintiff's loss would be irreparable in money. 4. Altman v. Royal Aquarium Society' (1876) L. R. 3 Ch. Div. 228 (agreement that lessee should have sole right to sell various articles on lessor's premises); Jones v. North (1875) L. R. 19 Eq. 426 (vendor of stone agreeing not to complete with vendee for the business of the B corporation). t 1. Peabody v. Norfolk (1868) 98 Mass. 452; Fralich v. Despar, (1894) 165 Pa. St. 24, 30 Atl. 521. 2. Salomon v. Hertz (1885) 40 N. J. Eq. 400, 2 Atl. 379, 1 Ames Eq. Cas. 128. Tkum Co. v. Tloczynskl (1897) 114 Mich. 149; 72 N. W. 140, 22 Cyc. 843. In McCall Co. v. Wright (1909) 117 N. Y. Supp. 775. there was no express agreeemnt not to divulge trade secrets but there was an express provision that the defendant was not to enter the services of a competitor during a specified period; the defendant abandoned the contract and was about to act as the president of a rival firm; tho his services were not unique (see post § 81) he was enjoined from entering the services of the competing concern because he had become acquainted with the plaintiff's secret formula and business methods. See 10 Col. Law Rev. 559, 575. 3. See post § 229. 80 SPECIFIC PERFOEMANCE OF CONTRACTS. , [Chap. U § 70. Covenant restricting the use of land— "mandatory injunction." Promises not to do some particular act on a piece of land usually occur in the deed of conveyance to the premises and are therefore spoken of as covenants.^ Not only will equity enjoin^ the threatened breach of such a covenant on the ground that an interest in land is involved, but it will compel the defendant to undo what he has done provided that relief is asked for promptly. The most common illustration is the build- ing restriction contract, whereby the grantee agrees not to build nearer the street than a certain line; in one case the defendant having erected two houses with bay windows projecting three feet beyond the line, the court compelled him to remove them.^ Such a decree is usually called a mandatory injunction; the term is not literally accurate because an injunction is ordinarily used to mean a command not to do a thing* while the word 'mandatory' would at most add emphasis; the phrase is in constant use, however, to mean an affirma- tive decree, quite the opposite of its literal significance. § 71. Miscellaneous cases of negative promises. In the preceding sections are the most common cases of contracts where the only promise sought to be 1. Tho orglnally "covenant" was used synonymously with "prom- ise," later usage tends to restrict its meaning to promise under seal. The term covenant in this connection is no longer significant because (1) in the United States a deed of conveyance is executed -Only by the grantor, (2) in many states seals have been abolished and (3) the right of the grantor is treated as a technical property right rather 'than as a contract right. See post § 94. 2. Rankin v. Huskisson (1830) 4 Simons 13 (not to erect any building); Steward v. Winters (1847) 4 Sandf. Ch. 628 (not to use premises except for dry goods business) ; Dickerson v. Grand Junction Canal Co. (1852) 15 Beav. 261 (not to dig a weU). 3. Manners v. Johnson (1875) L. R. 1 Ch. Div. 673, 1 Ames Eq. Cas. 130. This case was unusual in granting affirmative relief before the final hearing. 4. See ante i 66 note 1. ^72] SPECIFIC PBKFOEMANCE OF CONTRACTS. 81 enforced is negative. Equity will generally give relief,' however, upon exactly the same principles which under- lie the giving of specific performance of affirmative contracts. 11. Defendant's wndertcMng partly affirmative. § 72. Lumley v. Wagner. When the defendant has made two promises, one negative and the other affirmative, various questions may arise. In the leading case of Lumley v. Wagner' the defendant, Johanna Wagner, a singer of great ability, agreed to sing at the plaintiff's theater for a certain number of nights and not to sing elsewhere during that period. The defendant later refused to sing for the plaintiff and entered into a contract to sing at a rival theater. The plaintiff asked the court to decree specific performance of the negative promise by en- joining the defendant from singing at any other theater than the plaintiff's; the desired relief was given. The case was severely criticized at the time but there is a tendency in recent years to acquiesce in the decision. It is to be observed that there were the following elements in the case : 1. See 22 Cyc. 846. For example, Howard v. Nutkin (1724) 2 Peers Wms. 226 (not to ring the town bell); McEachern v. Colton (1902) A. C. 104, 15 Harv. Law Rev. 748 (not to assign a lease). In Stone etc. Union v. Russell (1902) 38 N. Y. Misc. 513, specific per- formance of a contract not to employ non-union labor was denied on the ground that while the contract was not invalid as an unreasonable restraint of trade, its tendency in that direction was such that an equity court might properly exercise their discretion in denying specific relief. See 16 Harv. Law Rev. 215. 1. (1852) 1 De Gex, Macnaughten & Gordon *604; 1 Ames Eq. Gas. 93. It is not entirely clear from the report of the case whether, at the time the plaintiff filed his bill, the breaches were actual or merely threatened. Apparently the affirmative promise had been broken and a breach of the negative was impending. The point is, however, immaterial. Eq.— 6 82 SPECIFIC PERFORMANCE OF CONTRACTS. [Chap, ii 1. The affirmative promise was not specifically en- forcible. 2. There was no separate consideration for the negative promise. 3. The negative promise was incidental to the affirmative. 4.^ Both promises had been broken by the de- fendant. 5. The plaintiff had been damaged by the breach of the affirmative promise and would have been damaged still further by a breach of the negative promise. 6. There was no mutuality of remedy; i. e. the defendant could not have had specific performance against the plaintiff of- the plaintiff's affirmative promise. 7. There was an express negative promise. 8. The defendant was a unique person. Each of these elements will be discussed separately and the importance of each one determined. § 73. (1) Affirmative promise not specifically enforcible. The affirmative promise in Lumley v. Wagner was not specifically enforcible because it was a promise to render personal services.^ If it had been specifically enforcible there would have been a clear case for giving the relief sought. Wherever the affirmative promise is itself specifically enforcible it would seem to follow necessarily that a promise not to do something in- consistent with the performance of the affirmative promise would be specifically enforcible, since the latter is included in the former.^ In Donnell v. Bennett,' 1. See ante § 62. 2. For example, since a contpact to devise land is specifically enforcible, it follows that the promisor may be enjoined from conveying the land to any one else; see vost § 89. 3. (1883) 22 Ch. Div. 835, 1 Ames Eq. Cas. 114. In Sevin v. Des-, landes (1860) 30 Law J. [N. S.] Eq. 457 the owner of a ship which had been chartered' was held entitled to enjoin the charterer from doing anything inconsistent with the charter party. ^ 74] SPECIFIC PEBFORMANCE OF CONTEAOTS. 83 the defendant agreed to sell to the plaintiff, a manure manufacturer, all parts of fish not used by defendant in his business of fish curer and fish smoker for two years and not to sell to any other manure manufacturer dur- ing that time. The plaintiff sought and obtained an in- junction against the defendant's selling to another manu- facturer. Tho the point is not discussed in the case it seems clear that the plaintiff could have obtained a de- cree of specific performance of the affirmative promise, because of the difficulty of obtaining the fish refuse elsewhere;* since the promise was not to produce fish refuse but merely to sell to the plaintiff what he should produce, there would have been no difficulty about supervision. § 74. (2) No separate consideration for the negative promise. In Lumley v. Wagner there was no separate consideration for the negative promise; if there had been a separate consideration so as to make the con- contract a divisible one, the case would have been a clear case for equitable relief, the remedy at law for the breach of the negative promise being inadequate. Such a case would not differ materially from the cases where the only promise made by the defendant was negative.^ It is arguable that the decision in Dietrickson v. Cab- burn^ may be rested on this ground. In that case the defendant, a patent medicine proprietor, had agreed to 4. See ante § 56. 1. See ante § 66. In Daly v. Smith (1874) 38 New York Super. Ct. 158, the contract provided that if the defendant should refuse to fulfill her part, and should attempt to perform at any other theater before the termination of her agreement with the plaintiff, the plain- tiff might restrain her from so performing, on payment to her during such restraint a sum equal to one quarter of the salary to be paid to her under the contract. As the court pointed out, the stipulation could not confer jurisdiction, but it made plain and simple the way to exercising It. 2. (1846) 2 Phillips 52, 1 Ames Bq. Cas. 108. 84 SPECIFIC PERFORMANCE OF CONTRACTS. [Chap, ii employ the plaintiff, an extensive vender of patent medicines, as wholesale agent for 21 years, to supply him with such medicines as he should order at 40% discount and not to supply any other agent or dealer at a larger discount than 25%. The plaintiff asked for and obtained specific performance of the negative promise. If it can be truthfully said that the considera- tion for the negative promise was the promise to act as agent for the defendant, the buying and selling of the medicines ' being a separable part of the transaction, there would seem to be as clear a case for specific performance as if the negative promise had been the only one made by the defendant, the common law remedy being inadequate because of the difficulty of estimating damages. It is to be observed that altho the contract of employment as agent could not be specifically enforced by either party because it involved personal services* and a confidential relationship, there was no valid ob- jection to enjoining defendant from selling to others at a higjier rate of discount than 25% because the in- junction would be dissolved as soon as plaintiff ceased to act as agent. § 75. (3) The negative promise incidental to the affirm- ative—criticism of Lumley v. Wagner. The negative promise in Lumley v. Wagner was incidental to the affirmative; i. e. the main thing the plaintiff wanted was that the defendant should sing for him, but he also wished to be protected against the probabilty of business being attracted away from his theater to that of a rival by her singing at the latter 's theater. And the plaintiff wanted specific performance of the negative not only because it would prevent his rival from thus increasing his share of the theater patronage but in order to bring pressure to bear upon the de- fendant to perform her affirmative undertaking. In 3. See ante % 62. § 75] SPECIFIC pebformAnce of conteacts. 85 other words, performance of the negative is being sought not merely for its own sake but in order to bring about performance of the affirmative which the court will not directly enforce.^ One of the criticisms of the decision in Lumley v. Wagner has been aimed at this point; It has been urged^ that it is an unwarranted extension of equity jurisdiction because the court is acquiring jurisdiction by attempting to do indirectly what is cannot do directly. If the court had no juris- diction to compel the performance of the affirmative promise directly, the criticism would be sound, because jurisdiction should not be acquired by indirection.^ But equity does have jurisdiction to enforce directly a promise to render personal service, except that in the United States the thirteenth amendment must not be ■ violated; the reason it does not exercise its jurisdiction is the difficulty of supervision, the interference with personal liberty, and the uncertainty that the plaintiff would get what he bargained for if equity should give an affirmative decree. The difference between a con- tract to render personal service and a contract to con- vey land is only a difference of degree, because in either case it is possible for the defendant to defeat the decree by disobeying it and merely remaining in jail if committed for contempt. The difference is not one of principle but one of the practical administration of justice. In the conveyance case the, act called, for is the simple, mechanical one of executing a deed, while in the case, of the personal service contract such as that in Lumley as. Wagner the acts to be done by the defendant are so continuous and complicated that equity keeps its hands off. When it. is said that equity cannot make one. 1. See ante § 62. 2. For other criticisms see 8 Harv. Law Rev. 172 and 6 Col. Law Rev. 82, (commented on in 19 Harv. Law Rev. 476). 3. There is, however, a recent tendency to take jurisdiction by consent; 21 Harv. Law Rev. 368, 446. 86 SPECIFIC PERFORMANCE OF CONTRACTS. [Chap, ii sing or write a book* or paint a picture, it is not meant that equity does not have jurisdiction to make the decree, but that the practical difficulties are so great that equity, as a matter of the decent administration of justice, will not exercise its jurisdiction. Since the difficulty in Lumley v. Wagner was one merely affecting the exercise of jurisdiction and not the existence of jurisdiction, it would seem that the court properly did what it could to bring about per- formance of the affirmative promise; in enjoining a breach of the negative there was, of course, no difficulty about supervisions.'' § 76. (4) Both promises had been broken by the defend- ant. In Lumley v. Wagner the defendant had either- broken or threatened to break both her affirmative and her negative promise. Suppose, however, that her affirmative promise had been of such a nature — e. g. to sing only on alternate nights — that it would have been possible for her to carry out her affirmative promise and also to break the negative promise by singing at the rival theater on the free nights. If by the terms of the contract the consideration were divided so that 4. Considering the number of books that have been written while in prison, an affirmative decree in such a case might conceivably be sometimes effective. 5. Sometimes the term "incidental" is used with an entirely dif- ferent meaning. In South Wales Ry. Co. v. Wythes (1854) 5 DeGex, M. & G. 880, the defendants had agreed to build some railway stations and to give a bond for £50,000 to secure the performance" of the con- tract. The plaintiff argued that altho the agreement to build was ,too indefinite to be specifically enforced, he was entitled to specific performance of the agreement to give the bond, on the authority of Lumley v. Wagner. In denying relief the court puts its decision on the ground that the agreement to give the bond is a mere incident to the rest of the contract. Wha,t the court evidently meant was that a decree ordering the giving of the bond would have very slight, If any, tendency toward bringing about the building of the stations and that the failure to give the bond did not cause any damage beyond that caused by the failure to build the stations. § 77] SPBCiriO PERFORMANCE OF CONTRACTS. 87 she was to be paid so much for singing for the plaintiff and so much for not singing elsewhere, it would be just as if the only promise made were negative, and since damages were conjectural, equity would certainly enjoin wherever Lumley v. Wagner is followed because it is a much stronger case for the plaintiff;^ and a court that refused to follow Lumley v. Wagner might consistently give relief because there would be little or no hardship on the defendant. Even if there is no such apportionment of the consideration, the fair in- ference is that a part of the total compensation she receives is for her promise not to sing elsewhere, and an injunction should be issued just as in Lumley v. Wagner; it would be conditional, of course, upon the plaintiff being willing to employ the defendant and would be dissolved if the plaintiff failed to fulfill his part of the agreement.^ § 77. (5) Plaintiff damaged by both breaches. In Lumley v. Wagner the plaintiff had been damaged by the breach of the affirmative promise and would have been damaged further by the breach of the negative. Suppose the negative promise — not to sing elsewhere— had been broken in such a way that the plaintiff would suffer no damages thereby : for example, suppose that the defendant instead of contracting to sing at a rival theater in London had contracted to sing in a city so far distant that such singing could not damage the plaintiff; would the plaintiff in such a case be entitled to an injunction? This question arose in 1. In Daly v. Smith (1874) 38 New York Super. Ct. 158 the con- sideration was apportioned, but the defendant had broken both prom ises, so that the decision is not squarely in point. Where the plain- tiff has cc^ntracted for only a part of the defendant's time and there Is no express negative promise, it would take quite strong evidence to warrant a court in implying such a promise. See post § 80. 2. Apparently there are no decisions yet on the points discussed in this section. 88 SPECIFIC PEKFOKMANCE OF CONTEACTS. [Chap. 11 De Pol V. Sohlke^ where there was a contract made by a dancer in Cleveland similar to the contract in Lumley V. Wagner; later the dancer abandoned the contract and began dancing at a New York theater. An injunction to restrain her from dancing in New York was asked for and refused on the ground that since the plaintiff had no establishment in New York there was no damage to his business.^ It might be argued that if it was likely that, as a result of the desired injunction, the de- fendant would return to Cleveland and perform her contract with the defendant, the equity court would-be justified in giving relief ; but it is at least doubtful whe- ther a court would go so far; it would and should re- quire a case of very extreme hardship on the plaintiff if it did give such relief. § 78. (6) Lack of mutuality of remedy — lack of mutuality of performance. Another current criticism of Lumley v. Wagner is that there is no mutuality of remedy; that Miss Wagner could not have gotten specific performance and therefore, the plaintiff should not be allowed to have it.* There are two answers to this; the first is that if Lumley had in violation of his contract hired another singer — a rival — in the place of Miss Wagner and refused to let Miss Wagner sing and the circumstances were such that 1. (1867) 30 N. Y. Super. Ct. 280. 2. In Lumley v. Wagner the decree apparently was not limited to enjoining the defendant from singing for the plaintiff's rival nor was it even limited to enjoining her from singing elsewhere in Lon- don. But in Daly v. Smith, supra, the court expressly limited its de- cree to the city of New York, so that the defendant in that case was free to work any where else. It would seem that the injunction in tl^se cases should always be limited to such territory as would fur- nish reasonable protection to the plaintiff's business. In the baseball world it may be necessary to enjoin the player from playing in rival ball clubs anywhere else in the United States. See American Associa- tion Baseball Club v. Pickett (1890) 8 Pa. C. C. R. 232. 1. See Professor Ames' article in 3 Col. Law Rev. 7, 8. § 78] SPECIFIC PEEPORMANCE OF CONTEACTS. 89 damages would not be an adequate remedy for the breach in the hiring of another^ to take her place, it is quite probable that equity would enjoin , Lumley from employing the other singer in her place, altho it would not undertake to compel him to let her sing. In other words, since under similar circumstances Miss Wagner might probably have obtained an injunction against Lumley, it is fair to say that there was no lack of mutuality of remedy.^ 2. Assuming for the present that Lumley had expressly agreed not to hire another to take Miss Wagner's place. As to the necessity of an express negative see post § 80. S. While Miss Wagner could not get specific performance of Lumley's aflBrmative promise, neither could he get specific performance of her affirmative promise. Tho there are a few cases which raise or suggest the question converse to that in Lumley v. Wagner, the prob- lem has not been very carefully analyzed. In Welty v. Jacobs (1898) 171 111. 624 the defendant, theater owner, had agreed to furnish the theater, light, heat, music, stage hands etc., and the plaintiff, a the- atrical manager, agreed to put on a play for seVen consecutive nights, commencing December 29, 1895. The defendant later contracted with N, a rival theatrical manager, to' put on the same play at the same time. The plaintiff made the tactical blunder of asking not only for an injunction against the defendant's allowing N to use the theater but also against the defendant's refusing to furnish to the plaintiff light, heat, music, etc. during the period. As the court properly, pointed out, the second request was really for affirmative relief and the dis- solution of the injunction by the lower court was affirmed chiefly on the ground that the defendant could not have compelled the plaintiff to perform affirmatively. In Peto v. Brighton etc. Ry. Co. (1863) 1 Hemming & Miller 468, in which the plaintiff had contracted to build a railway for the defendant, the, plaintiff made the same tactical blun- der of asking also for affirmative relief and lost probably because of thus clouding the issue. In Montgomery Light &i Power Co. v. Mont- gomery Traction Co. (1911) 191 Fed. 657, the defendant town had agreed to buy from the plaintiff company exclusively for fifteen year.s all the electrical current it might need. The temporary decree given is really affirmative, tho the court talks about enforcing negative con- tracts. In Brett v. East India and London Co. (1864) 2 Hemming & Miller 404 the court says the case is the converse of Lumley v. Wag- ner, but in reality it is not, because only affirmative relief is asked for (contract of service as broker). In at least two cases which were apparently the converse of Lum- ley v. Wagner relief has been given to the employee. In Turner v. 90 SPECIFIC PEEFOEMAJSrCE OF CONTRACTS. [Chap, il The other answer to the criticism is that the doctrine of lack of mutuality of remedy is subject to so many exceptions that there is practically nothing left of the doctrine.* Hampton (1906) 30 Ky. Law Reporter 179, 97 S. "W. 761, the plain- tiff, having heen engaged as a school teacher, was prevented from en- tering upon her duties by the trustees who had hired another teacher. The report of the case says that the plaintiff obtained a "temporary injunction under which she taught the school pursuant to the con- tract." The Court of Appeals held that "injunction was the proper remedy, as in no other way could the plaintiff obtain adequate relief." While it is not clear, apparently the court granted only negative relief. If so, the decision — tho criticized in 7 Col. Law Rev. 204, 205 — may be rested on the authority of Lumley v. Wagner, if it was of very great importance to the plaintiff to get teaching experience, even tho the breach of the implied negative, i. e. the hiring of the other teacher, caused her no separable damage. If the trustees had been under an official duty to have the school taught by some one, it might have been argued that giving an injunction really amounted to giving specific performance of the affirnjative promise; in a theater case there is no such embarrassment tho an injunction might, of course, entail heavy economic loss if the theater owner preferred to close down the theater rather than go on with the contract. The tact that the plain- tiff herself was not a person of extraordinary qualifications is utterly immaterial when she asks for relief, unless the artificial rule of lack- of mutuality of remedy is to be narrowly applied. Lacy v. Heuck (1883) 9 Ohio Dec. Reprint, 347 was a theater case very similar ia facts to Welty v. Jacobs; the plaintiff asked both negative and af- firmative relief; refusing to give the latter on the ground of super- vision the court ^ave the injunction sought for, saying: "The case at bar differs from all the caseS cited in that the position of the par- ties is here reversed. In those cases it was manager against actor, in this it is actor against manager, but' in both the personal services of the other party are sought and in that respect they are the same in principle. If Heuck could enjoin Lacy from performing the next week in any other place than his opera house, why should not Lacy have similar relief to secure the services of Heuck and his subordi- nates in the management of the opera house?" In Foster v. Ballenberg (1890) 43 Fed. 821 the court in refusing an injunction suggests as one of the grounds the facts that the new opera troupe had no knowledge or notice of the plaintiff's contract with the defendant; can it be fairly argued that the doctrine of iona fide purchaser for value be applied to such a case? See post § 301. 4. See post S§ 174-180. § 78] SPECIFIG PERFORMANCE OF COlSrTRACTS. 91 The doctrine of lack of mutuality of performance is, however, well settled and sound on principle. That doctrine is that equity will not give specific performance unless it can adequately protect the defendant kgainst possible later non-performance by the plaintiff.^ For example, the case already discussed® of refusing the borrower specific performance of a contract to lend money where the circumstances were such that damages were inadequate, is to be properly rested upon the ground that the lender could not be protected against the borrower's possible later non-performance in failing to. repay the money. Does the decision in Lumley v. Wagner square with this doctrine? Suppose that after getting the injunction Lumley should refuse to let the defendant sing or refuse to pay her for singing according to the contract? The defendant is at least partially protected against the possibility by a decree conditional upon the plaintiff's performing his part of the contract, so that if the plantiff should later default in his performance, the defendant could have the in- junction dissolved.'^ But suppose that the defendant after having been enjoined, chooses to do nothing rather than perform her contract with the plaintiff; in such a case the plaintiff will apparently be under no* obligation to pay anything. The compensation was not apportioned by the parties and it is doubtful whether the court should make an apportionment; such action on the part of the court would seem too much like making over the contract, and 5. See post § 181. 6. See ante § 63. 7. Of course it might happen that she could not at this later time get employment. In deciding whether to issue the injunction the court should take into consideration this possibility. In the actual case of Lumley v. Wagner Miss Wagner's reputation was such that she probably would have had no difficulty In securing employment at any time during the regular season. If at the time of asking for the injunction the plaintiff himself has already defaulted, a fortiori equi- table relief will be refused. Measures Brothers v. Measures (1910) 2 Ch. 248. 92 SPECIFIC PEEFORMANCE OF CONTRACTS. [Chap, ii while courts of equity have in some classes of cases done this,^ the practice is not to be commended. The result is that altho part of the compensation was meant to be in return for the defendant's not singing else- where, she could probably get no compensation for the bare compliance with the injunction. Can it be truly said then that equity properly protects the defendant in such a case? This is the only criticism of the decision in Lumley v. Wagner which has much merit and can be answered only by saying that where the hardship on the plaintiff is great the court is justified in taking chances that the enforcement of the negative will result in the performance of the affirmative also; that if the de- fendant should be obstinate enough to refuse to per- form the afSrmative promise, she is hardly in a position to complain of lack of protection. § 79. Same — emplojrment of substitute by the plaintiflf. Suppose the plaintiff either before or after ob- taining the injunction had employed some one else permanently in place of the defendant so that he was unable to go on with the contract when the defendant tendered her services. It seems clear that in such a case the plaintiff should be entitled to have the injunc- tion continued only if he is willing to pay the entire compensation. This would be true even if the considera- tion had been apportioned because the plaintiff is entitled to the injunction only on the assumption that he wants and is ready to receive full performance. This would be adequate protection to the defendant where, as in Lumley v. Wagner, she wished only money. If the opportunity of appearing before a London audience had been important to her, this element of hardship on the ^defendant should be balanced by the court against the hardship on the plaintiff if the injunction were refused or dissolved, i 8. See post §§ 121-123. (<^ 80] SPECIFIC PEEFOKMANCE OP CONTKACTS. 93 In Montague v. Flockton^ where the plaintiff had employed another to take the defendant's place, the court gave the injunction without requiring the plain- tiff to pay the defendant any compensation whatever, saying that the defendant had brought this trouble upon himself. The result of that decision was that unless the defendant should go to another city where he would not injure the plaintiff's business, he must remain idle for the whole period and receive no pay.. This would seem to be carrying the doctrine of Lumley v. Wagner too far; it is difficult to imagine a case of such great hardship oh the plaintiff as to counterbalance such a hardship on the defendant. If it were important for the defendant to appear before an audience in that particu- lar city, the hardship upon him would of course be all the greater. On this point it is believed that Montague V. Flockton will not and should not be followed. § 80. (7) An express negative promise. In Lumley v. Wagner there was an express negative promise, but it is well settled,' except in Illinois,^ that it is not necessary that the negative be express; it is sufficient that it was actually intended by the parties; whether it was so intended is a question to be de- .termined upon all the circumstances of the particular case. In Montague v. Flockton^ the court said: "an engagement to perform for nine months at Theater A is a contract not to perform at Theater B, or any other theater whatsoever." The court was probably right in implying a negative in that case but it would be unfortunate to lay down- a hard and fast rule of con- struction. It is conceivable that circumstances might be 1. (1873) L. R. 16 Eq. 189, 1 Ames Eq. Cas. 105. 1. Duff V. RusseU (1891) 60 N. Y. Super. Ct. 80, 83. 2. See Southern Fire Brick & Clay Co. v. Garden City Sand Co. (1906) 223 111. 616, 79 N. E. 313 and a criticism thereof by Professor Schofield in 2 111. Law Review 217-243. 3. (1873) L. R. 16 Eq. 189, 1 Ames Eq. Cas. 105. 94 SPECIFIC PERFORMANCE OF CONTRACTS. [Chap, ii such that the parties would intend the employee to be free to act at other theaters at such times as he would not be actually employed at Theater A. For example, in Webster v. Dillon* the injunction was expressly limited in duration to the ordinary hours for per- formance at the plaintiff's theater.^ On the other hand, in Hoyt v. Fuller® where the defendant had represented herself to be the only person who could perform a certain kind of dance, she Was enjoined from using her leisure time in performing the same dance at other theaters. However, the mere fact that there is an -express negative promise does not insure the granting of equitable relief. In Stemburg v. O'Brien^ the de- fendant had agreed to work for the plaintiff as collector in the installment clothing business, and not to work in that business for a year after ceasing to work for the plaintiff. After working for the plaintiff for four or five weeks he quit and shortly afterward accepted em- ployment as collector for a person carrying on a rival business. An injunction was refused on the ground that damages were adequate. There was nothing to show that the defendant was a collector of unique or ex- traordinary ability, he was not engaged in a fiduciary capacity, and had worked for the plaintiff for such a short time that he could not have acquired much in- fluence over the plaintiff's customers, especially since he was not a salesman but a mere collector. Every aifirmative promise necessarily implies a promise not to do anything inconsistent with the per- 4. (1857) 3 Jur. [N. S.] 4S2. 5. It might not damage the plaintiff's business for the defendant to perform for him in the evenings and for other theaters In the after- noon, l^ecause the performances at different times might attract dif- ferent classes of patronage; whereas- it might be a serious damage to his business for the defendant to act elsewhere in the vicinity in the evenings. 6. (1892) 19 N. Y. Supp. 962. 7. (1891) 48 N. J. Eq. 370, 22 Atl. 348, 1 Ames Eq. Cas. 126. § 80] SPECIFIC PERFORMANCE Of' CONTRACTS. 95 formance of the afBrmative promise;* hence, the mere fact that the defendant has broken an implied negative promise does not entitle the plaintiff to an injunction. For example, a promise to sell chattels to the plaintiff necessarily implies a promise not to sell to another, but equity will not give an injunction unless damages at law are for some reason inadequate. In Fothergill v. Eowland® the defendant had agreed to sell the whole of the get of the coal of the No. 3 seam of the New- bridge colliery at a fixed price for five years. The plaintiff asked for an injunction against the defendant's selling any coal from that seam to any other person during the continuance of the contract with the plaintiff, the contract having three years yet to run. The in- junction was denied, there being nothing to show that damages were not an adequate remedy. If the plaintiff had shown that coal fluctuated greatly in value or that this coal was of a special character not to be obtained elsewhere, the case would probably have gone the other way because under such a state of facts the affirmative itself could have been specifically enforced ; there would have been no difficulty as to supervision because the defendant's contract was not to work the mine but merely to sell what he actually did produce. Putting a promise which is affirmative in substance in a negative form will not strengthen the plaintiff's case. In Davis v. Foreman^" there was a contract of employment with a covenant not to discharge. The plaintiff sought the enforcement of the negative; the injunction was refused on the ground that the negative 8. American Association Base Ball Club v. Pickett (1890) 8 Pa. C. C. R. 232: "Every express promise to do an act embraces within its scope an implied promise not to do anything which will prevent the promisor from doing the act he has engaged to do." 9. (1873) L. R. 17 Eq. 132, 1 Ames Eq. Gas. 111. 10. (1894) 3 Ch. 654. In Kirchner & Co. v. Gruban (1909) 1 Oh. 413 the employee agreed "to remain in his position and not to give notice before July 1, 1901". Relief was refused on the ground that to give an injunction would in effect give specific performance of the aflSrmative promise to work for the plaintiff. 96 SPECIFIC PEEFOKMANCE OF CONTRACTS. [Chap, ii here was simply another way of stating the affirmative; since the affirmative would not be enforced, the negative would not be." § 81. (8) The defendant's services were unique. In Lumley v. Wagner the defendant was a person of extraordinary qualifications,^ so that it was im- possible for the plaintiff to have filled her place even substantially. If the consideration had been apportion- ed "by the parties so that the defendant would have received some pay for obeying the injunction without performing the affirmative promise, the mere fact that damages for breach of the negative promise would be conjectural would be er|,ough to justify a court of equity in granting relief, just as in case of a contract entirely negative.^ But where, as in Lumley v. Wagner, the 11. Even where there was no express negative promise, plaintiffs have frequently asked for decrees which, tho negative in form, were really affirmative in substance. For example, see Harlow v. Oregonian Pub. Co. (1904) 45 Or. 520, 78 Pae. 73T where the plaintiffs asked that the defendants be "restrained from refusing to furnish them papers etc."; Ryan v. Mutual Tontine etc. Association (1893) 1 Ch. 116, In which the plaintiff asked an injunction to restrain the defendant from employing as a porter any person who was not resident, and constantly in attendance and able and jvilling to act as the servant of the plain- tiff. See 7 Harv. Law Rev. 53. This confusion of form and substance probably originated in Lane v. Newdigate (1804) 10 Ves. 192, 1 Ames Eq. Gas. 74, where the court quite unnecessarily put an affirmative de- cree in negative form. 1. While it may be urged that it is literally impossible to have different degrees of uniqueness, yet as a practical matter it is a mat- ter of degree, like adequacy, and in determining it, much must be left to the discretion of the trial court; it is not the sort of thing that can be reduced to a rigid rule. 2. See ante § 74. In Daly v. Smith, supra, the defendant was to receive one-fourth salary for .refraining from acting for others if she should abandon her contract with the plaintiff; she would still proba- bly be entitled to this one-fourth if she should go for employment far enough away so as not to injure the plaintiff. Hence, the analogy between Daly v. Smith and contracts not to compete is fairly close. It is therefore important for the employer In drawing up a contract to §. 81] SPECIFIC PEEFOBMANCE OF CONTEACTS. 97 defendant in order to earn anything, must either per- form the affirmative undertaking, or else go far enough away not to injure the plaintiff, this hardship^ oil the defendant is so great that courts of equity should not and usually do not interfere unless the services contracted for are unique and extraordinary,* so that there would be a corresponding hardship on the plain- tiff if specific performance were refused." provide for separate compensation for the performance of the negative if he wishes later to get an Injunction, because it will save him the trouble of proving that the employee was unique; it will be enough for him to show that damages for breach of the negative would be con- jectural. 3. While the injunction is limited to the sort of services con- tracted for by the plaintiff, the chance that the defendant will be able to secure employment in other lines of activity, for example, as a dan- cer rather than a singer, is usually slight. In lEhrman v. Bartholomew (1898) 1 Ch. Div. 671, the defendant, a traveling salesman, had con- tracted to work for the plaintiffs, wine merchants, for ten years and not to "engage or employ himself in any other business" with persons other than the plaintiffs during the continuance of the agreement. After six months the defendant left the plaintiff's employ and engaged himself to a rival. The court refused the injunction because the prom- ise was to abstain wholly from business, and not merely from the wine business. Perhaps the long term of the contract may have had some influence in keeping the court from construing "business" to mean "wine business". 4. Sternburg v. O'Brien (1891) 48 N. J. Eq. 370, 1 Ames Eq. Cas. 126 (collector in installment clothing business) ; Columbia College of Music v. Tunberg (1911) 64 Wash. 19, 116 Pac. 280 (music school teacher) ; Burney v. Ryle & Co. (1893) 91 Ga. 701, 17 S. B. 968 (in- surance agent) ; Lasky Feature Play Co. v. Surratt & Fox Film Corp. (1915) 154 N. Y. Supp. 974 (moving picture actress) ; Klmberley v. Jennings (1836) 6 Sim. 340 (travelling salesman). The last mentioned case was decided before Lumley v. Wagner. In Butler v. Galetti (1861) 21 How'. Prac. 465 it was held that Lumley v. Wagner did not apply to dancing because it did not involve the exercise of intellectual quali- ties;, this does not, of course, represent the present judicial attitude. 5. An express , stipulation in the contract that the employee has extraordinary qualifications so that in case of breach the employer should be entitled to enjoin the employee's working for any other per- son is properly held to be ineffectual. Dockstader v. Reed (1907) 121 N. Y. App. Div. 846, 106 N. Y. Supp. 795. On the other hand, a stipu- lation that in case of any breach by the employee he should forfeit $200 was held sufficieAt to prevent the employer from getting an In- Eq.— 7 98 sPEcano pebtormance of contkacts. [Chap, ii D. Eeliep foe and Against Thhid Peksons. — Eqtjitabi^e Servitudes. § 82. Assignability of contracts at law and in equity. In the early common law, contracts, even tho for the mere payment of money, were not assignable; if X owed A a debt of $100, he could insist upon paying no one but A.^ The pressure of growing commercial interests gradually compelled this to be changed as to contracts to pay money. Some early equity cases seem to show that equity courts took the lead^ in the matter, but the common law courts worked out a method of assignment by regarding the assignee as the agent of the assignor and allowing him to sue in the name and as the representative of the assignor.^ Whether the exercise of the jurisdiction of the equity courts can fairly be said ever to have become firmly established or not, it was apparently discontinued* after common law courts afforded a remedy. At the present time, in nearly every jurisdiction there are statutes not only allowing but requiring the assignee to sue in his own name as the real party in interest. junction because he could not show that his damage would be irre- parable. Hahn v. Concordia Society (1875) 42 Md. 460. But this seems at least questionable. See ante § 40. In 6 Columbia Law Re- view 82, 91 the argument Is made that all persons should be consid- ered unique, just as are all pieces of land. For a summary of the preceding sections see 17 Col. iLaw Rev. 701. 1. See 3 Harv. Law Rev. 337; 18 id. 23, 24. 2. At some time in the 17th century equity began giving relief to the assignee when the assignee had paid value tor the assignment, the assignee suing in his own name. In Squib v. Wyn (1713) 1 P. Wms. 378, the court states that "choses in action are assignable in equity but not at law" as if it were then well settled. 3. See post § 261. ' 4. Hammond v. Messenger (1838) 9 Simon 327, Ames Trust Cas. 59. If the assignor threatens to collect, the assignee may get an in- junction upon quia timet grounds. See post % 261. In spite of such § 83] SPEOrFIC PEBPOEMANCB OF CONTRACTS. 99 In equity, contracts which are not personal in their nature have always, apparently, been considered as- signable and since equity looks at the substance and not at the form, the assignee has always been allowed to sue in an equity court in his own name. Hence, if V makes such a contract with P that P could get specific performance, e. g., a contract for the sale and purchase of land, an assignee of P has a similar right." § 83. The creation of a property right in the purchase. The purchaser's specifically enforcible right^ to get specific property is of necessity a specific property right and not a mere contract right.^ One might reason- ably expect that equity would consider that this property discontinuance, however, such assignments are still frequently re- ferred to as "equitable assignments." 5. And it is not necessary to make the assignor a party. Currier T. Howard (1860) 14 Gray 511. See 17 Harv. Law Rev. 175. 1. Juridical rights are all deductions from juridical remedies; hence, as soon as it became settled that a purchaser could get the remedy of specific performance of a contract to convey land, the in- ference or deduction was that there was already a specifically en- forcible right to the property which was the basis for his suit. Before a remedy is once given in any particular class of cases there may be an interest which should be protected, but no right can be said to arise until such protection is given. After the remedy Is once given we infer the existence of a right before the suit was brought; and if the decision is acquiesced in as representing the probable future ac- tion of the courts in such cases, the right in similar cases is then thought of as existing 'before any remedy is sought to enforce it and even tho no remedy is ever sought. Where a right is given by statute the inference above indicated is unnecessary. 2. The vendor's right to specific performance is not a right to specific property but merely a contract right to money. He has, of course, legal title to the property till conveyance and is entitled tb hold it as security till the purchase price is paid or secured, but his having the legal title Is not due to the contract. In case of contracts to exchange lands, each has an equitable specific property right In the land of the other. If X coiitracts with Y to trade his farm for Y's ordinary chattels, does X have an equitable, specific property right in the chattels? There seem to be no cases. 100 SPECIFIC PEEFORMANCE OF CONTBACTS. [Chap, ii right came into existence at the time set by the parties for performance, because it is not till then that the purchaser can properly ask for a conveyance.* But the rule seems to be well settled that equity regards the purchaser as having a specific property right from the moment of making the specifically enforcible contract. There are two reasons for the rule. (1) If no time is set for performance a purchaser is entitled to ask for performance after a reasonable time has elapsed. It would be highly inconvenient to have the time of coming into existence of important property rights open to such an uncertainty. In the field of property law generally it is of great importance that the rules be certain. Since it is fairly easy to deter- mine the date of the completion of a contract, the advantage of having the equitable property right date from this time is obvious. (2) If a time is set for performance and the vendor keeps the property till that time, it might not be objectionable to regard the 3. This view was strongly urged by Professor Langdell in discuss- ing the eciuity rule as to risk of loss: "What is the rule in equity in such a case? Clearly it ought to be the same as at law, if the loss happen before the time fixed for completing the purchase has arrived; for in that case the consequences of the loss will be the same in equity as at law, namely, that the ven- dor will be unable to perform the contract on his part. It is true that equity may enforce the contract against the vendee, notwithstanding the destruction of the buildings; but if it does, it must do so be- cause the breach of condition by the vendor did not go to the essence of the contract, and hence the performance by the vendee must be with compensation for the loss of the buildings, 1. e., the value of the build- ings must be deducted from the purchase-money to be paid by the ven- dee. If, on the other hand, the fire happen after the time fixed for completing the purchase is past, the loss will in equity fall upon the vendee: i. e., the vendor will be able to throw the loss upon the vendee by enforcing specific performance of the contract in equity, assum- ing, of course, that he is In a condition to enforce such performance. The reason of this is that, when performance of a contract is enforced in equity, the performance is held to relate back to the time fixed by the contract for its performance; and hence, if performance be en- forced in the case supposed, equity will regard the land as having be- longed to the vendee when the loss happened." § 83] SPECIFIC PEEFOEMANCE OF CONTEACTS. purchaser as having only a common law contract rigbt^ before that time, and to regard the equitable property right as coming into existence at that time if the vendor failed to convey. But to hold that the purchaser has only a common law contract right till the time for per- formance would make it possible for the vendor to prevent the purchaser from ever getting any property right by merely conveying away the property before the time came.* In order, therefore, to give the pur- chaser adequate protection the equity courts were forced — consciously or unconsciously — to regard the purchaser as having a property right from the moment of contract.® The situation between the vendor and purchaser may then be briefly stated as follows : from the moment a contract is entered into which equity would enforce on behalf of both parties, the vendor is treated in equity as a fiduciary® of the land, holding the legal title 4. At the time when thfe rules as to specific performance were tal!:ing shape, the common law of contracts — not yet having worked out implied conditions — gave even less protection to a purchaser than at present; apparently he could be compelled to pay the full price without getting the land. There was therefore a still further reason at that time for holding that the equitable property right arose at once. It is common to refer the doctrine to the equitable maxim that equity regards that as done which ought to be done or was agreed to be done; but if that were applied literally it would result in considering the equitable property right as coming into existence at the time iset for performing — not at the time of making the contract. 5. See 31 Harv. Law Rev. 285 note. 6. It is quite common to say that the vendor is a trustee. This was quite natural because the rules in trusts had been worked out be- fore those in specific performance, and the situation was analogous in some respects. But the analogy was not perfect, and the more general term "fiduciary" is therefore used. Where a vendor has been fully paid the purchase price, he ceases to have any beneficial interest in the land and Is substantially in the position of a trustee. If he has not been fully paid, it is inaccurate to refer to him as a trustee be- cause he has an interest in the land whi<;h he may properly transfer by conveying to anyone but a Bono fide purchaser for value without notice, while the trustee is under an obligation not to transfer the property to anyone, even though he may have loaned money to the' 102 SPECIFIC PEEFOBMANCE OF CONTRACTS., [Chap. 11 as ^security for the payment of the purchase money; while the purchaser Is treated as the equitable owner with the right to become the legal owner upon paying or satisfactorily securing the price. But the equitable property right, tho it come into existence at the mom- ent of the contract is postponed as to enjoyment till the time for performance. In this latter respect the relation of vendor and purchaser is not merely that of fiduciary and beneficiary but is also analogous to the relation between the tenant of a particular estate and the holder of a shifting use or executory devise.'' It is often said that the purchaser is trustee of the purchase money f this is inacurate. If, as . is usually the case, he does not have the sum set aside there could be no trust because there would be no trust property.* And even tho he does have the amount of money on hand and sets it aside, no trust thereof will arise till the vendor assents^** to the crea- tion of a trust in the money.^^ § 84. Express trusts— constructive trusts. As pointed out ante,^ the primary right in ex- cestui que trust upon the security of the trust property. And it Is not accurate to call him a constructive, trustee, because his obligation to hold the property for, the purchaser and then convey to him is con- sensual, not constructive. Because of his obligation not to convey to a iona fide purchaser, he may properly be called a fiduciary. 7. For example, a devise to X in fee, but if Y pays X $1000 then over to Y in fee; Y, has a property right which will be protected even before the contingency happens. 8. Pooley v. Budd (1851) 14 Beav. 42. 9. See post § 258. 10. See post §§ 255, 258. 11. It Is possible^ that courts calling the purchaser a trustee of the purchase money may have in mind merely that equity will compel' him to pay the full amount and take the land, whereas the common law remedy Is merely for the loss caused by the breach. 1. See ante i 34. §, 84] SPECIFIC . PEEFOKMANCE OF CONTEACTS. 103 press trusts^ is equitable. "When the' legal title of property other than money was placed in one person to hold for the benefit of another, the latter was afforded no remedy at common law ; he ' had to rely upon the honesty of the holder of the legal title; the obligation was only moral. Equity, being a court of conscience, gave the beneficiary a remedy and thus turned the merely moral obligation into an enforcible one. If the holder of the legal title had other duties to perform, he was called a trustee; if his duty was to remain passive, he was called — if the property were land — a feofee to uses. Some years after equity began giving a remedy against the feoffee to uses Parliament passed the Statute of Uses,^ giving the beneficiary of the use or cestui que u&e the legal title, thus destroy- ing uses. The .statute did not apply to trusts. About a century later the modern passive trust arose, similar to the ancient use but held by the equity courts not to be affected by the Statute ' of Uses. Hence, at the present time a trust may be either an active or a passive one. At first equity gave its remedy only against the trustee or feoffee to uses; his transferee whether by descent, devise, or conveyance inter vivos was not held bound unless he too expressly undertook the trust. This obviously was not a complete protection to the benefi- ciary* so the equity court took the further step that the transferee would be presumed to have taken the pi-operty upon the original use or trust; this presump- 2. This section and the following comprise a very brief statement, inserted here to throw light upon the subjects discussed in the sec- tions following. For a more extended discussion see post Chap. V. 3. (1535) St. 27 Hen. VIII^ c. 10. 4. Because the trustee could easily defeat him by merely con- veying the property to some one who did not expressly undertake the trust. When equity courts first gave a remedy to the cestui que trust against his trustee they created in the cestui que trust an equitable property right. Even though it was enforcible agaihst only one per- son, it can hardly be regarded otherwise than as a property right- But a property right which is enforcible against only one person is of I 104 SPECIFIC PBEFORMANCE OF CONTRACTS. [Chap. 11 tlon may have been at fitst a genuine presumption, 1. e. what is usually called a presumption of fact, cap- able of being rebutted by showing that the transferee aid not so take the property, but if It ever was thus rebuttable, it soon hardened into a hard and fast rule; the transferee, subject to an exception to be discussed presently, was held bound as if he had undertaken the trust, whether he had actually done so or not. The ob- ligation thus being imposed or constructed by equity in order to protect the beneficiary more fully, it is commonly called a constructive trust. The primary right' in cases of constructive trust is very frequently legal; 1. e. the person whom equity would hold as con- structive trustee of property is very frequently liable, at the option of the injured party — to a common law action in quasi contract for the value of the property, based upon the unjust enrichment which would result if no remedy at all were given.* § 85. Limitation of constructive trust doctrine— bona fide purchase for value without notice.^ But equity does not hold all transferees from a trustee liable to the beneficiary. If the trustee trans- fers to one who pays value for the property and ac- quires title before notice of the rights of the beneficiary of the trust, such a transferee is protected as against the beneficiary; he is usually called a bona fide pur- chaser for value without notice. For the sake of relatively little value because It can be so easily destroyed; there- fore the courts were forced, in order to give adequate protection to the cestui que trust, to give a remedy against all transferees except iona fide purchasers for value without notice. 5. The doctrine of constructive trust wasi extended to all cases where the plaintiff sought to get specific property which the defend- ant had wrongfully obtained or wrongfully retained. 6. Sometimes he may be held liable in a common law tort ac- tion; e. g., if he obtained a conveyance of the land by fraud, 1. For a more extended discussion see post § 301. § 85] SPECIFIC PEEFOEMANCE OF CONTEACTS. 1.05 brevity he will be called a bona fide purchaser. As already pointed out,^ the maxim that between equal equities the legal right prevails is always cited as being the basis for the doctrine of bona fide purchase for value without notice. Where there are two equi- table claimants whose claims have substantially equal merit, the fact that one has the legal title is enough to turn the scale against giving relief to the other claim- ant; having the legal title, the defendant may retain it unless the plaintiff shows a substantially better right in himself.^ In order for one to become a bona fide purchaser in the full sense three conditions must be complied with: Ijie must pay all, or at least a substantial part, of the purchase money; he must get title and he must have done both of tlfese before receiving notice of the rights of the beneficiary. Both the doctrine of constructive trust and its limiting doctrine of bona fide purchaser apply not merely to wrongful transfers by trustees, but through- out the whole field of equity. Wherever one party has acquired title to property which it is unjust for him to retain, equity will, as a remedy to the injured party, declare a constructive trust of the property for his benefit. And a bona fide purchaser of property is pro- tected not only against the equitable claim of a cestui que trust but against all sorts of equitable claims to the property. It is to be noted carefully that it is not necessary that the defendant acquire the property wrongfully ; it is sufficient that it is unjust for him to retain it. For example, if a trustee or vendor or any other per- son holding property subject to an equity should make a gift of the trust property to his son who should re- ceive it without notice of the trust, the son has com- 2. See ante § 27. 3. See 1 Harv. Law Rev. 1, Purchase for Value Without Notice, by Professor Ames. 106 SPECIFIC PEEFOBMANCE OF CONTRACTS. [Chap. U mitted no wrong in thus receiving it; but from the moment that he receives notice of the equitable claim it is unjust for him to retain it ; the constructive obliga- tion to hold it for the benefit of the defrauded party arises, therefore, at that moment.* § 86. Transfer of Isund by vendor or lessor. If after making a specifically enforcible contract to sell an interest in land the owner should thansfer the land to a third person or should die and the land should descend to his heir or should go by will to a devisee the doctrine of- constructive trust would ap- ply; unless the transferee is a bona fide purchaser he ;takes subject to, the equitable right of the purchaser under the contract. In Jackson^s Case,* X had con- tracted to make a lease of certain land to the plaintiff; he then conveyed the land to the defendant who had notice of the plaintiff's contract* It was held that the defendant was bound by the contract; that he stood in no better position than X^ and therefore the plaintiff was entitled to specific performance of the contract. It is to be noted here that X was a fiduciary only to the extent of the contracted leasehold interest and therefore the defendant was a constructive trustee only to the same extent. § 87. Assignability of specifically enforcible optioii. As pointed out already,* where a specifically en- forcible contract is made to convey an interest in prop- 4. See post f 301. 1. (1609) Lane 60, 1 Ames Eq. Cas. 143. 2. If the plaintiff has not yet paid the price and the transferee Is not entitled — as hetween himself and vendor — to all the purchase money,, the proper procedure is to have the vendor made a party and settle the rights to the purchase monpy in the same litigation. See Daniels v. Davison (1811) 17 Vesey 433. 1. See ante § 83. § 88] SPECIFIC PERFOKMANCB OF CONTRACTS. 107 erty, the purchaser under such a contract has both' a common law contract right and an equitable property right. Similarly, if the purchaser had first taken a specifically enforcible option to buy which he later exercises, by acceptance, from the moment of such exercise he is in exactly the same position as if he had made a contract of purchase in the first place. But after the procuring of the specifically enforcible option and before its exercise, does he have a mere contract right or a property right? This point will be discussed later ;^ at present it is enough to show that his right, whatever it is, is assignable. In House v. Jackson* the defendant leased certain land to one Haley, the lea^e giving to Haley an option to buy the land at any time before the expiration of the lease for $2500. Haley went into possession and later assigned all his interest under the lease to one Pomeroy who assigned it to one Righetto and the plaintiff; Eighetto then assigned his interest to the plaintiff who before the lease ex- pired tendered the defendant $2500 and demanded a deed. Specific performance was decreed. § 88. Bankruptcy of vendor; of purchaser. If after the making of a specifically enforcible contract the vendor becomes bankriipt, the assignee in bankruptcy, not being a bona fide purchaser, takes the property subject to ^he right of the purchaser to en- force specific performance. The purchaser, having an equitable property right and not merely a contract right, is entitled to that property in specie, and need not come in with the general creditors.^ Likewise, specific performance may be enforced by the vendor's assignees in bankruptcy against the purchaser. On the other hand, if it is the purchaser who be- 2. See post § 111. 3. (1893) 24 Oreg. 89, 32 Pac. 1027, 1 Ames Eq. Cas. 137. ^ 1. Re Kerkham (1886) 80 Law Times 322. 108 SPECIFIC PERFORMANCE OP CONTRACTS. [Chap. U comes bankrupt instead of the vendor, the vendor can not enforce specific performance against the assignees in bankruptcy of the purchaser.^ The reason for this is that his right is not a right to any specific property of the purchaser but merely to a sum of money out of the purchaser's general assets; hence, there is no specific property which he can claim; and altho his remedy at law may nat be adequate, it would inflict too great a hardship on the other creditors to throw upon the assignees in bankruptcy the burden of getting rid of the property which would be thus thrust upon them. The vendor's remedy is to sue for breach of contract, reduce his claim to judgment and then prove with the other creditors. '^ While, however, the purchaser's assignees in bank- ruptcy can not be compelled to take the property and pay the purchase price, they may, if they prefer, en- force specific performance against the vendor.* For example, if the property has advanced greatly in value since the making of the contract, it might be advantage- ous for the assignees to get specific performance and then resell the property at a profit. This is one of the well established exceptions to the supposed rule* that lack of mutuality of remedy is a defence. It^is however no exception to the principle of lack of mutuality of performance, because the specific performance will not be decreed against the vendor unless the assignees in bankruptcy pay the full purchase* price^ for the prop- erty. 2. Pearce v Bastable (1901) 2 Ch. 122, 125. 3. In Crosble v. Tooke (1833) 1 Mylne & Keen 431, 1 Ames Eq. Cas. 135, the purchaser (of a leasehold Interest) assigned, it to X who sued for specific performance. It was held, that the purchaser's in- solvency iwas no defense to X's suit against the vendor for specific performance. 4. See post § 174. 5. If one who has contracted for a lease becomes insolvent, but not bankrupt, may he get specific performance without tendering the full amount of the rent for the entire term? In Buckland v. Hall (1803) 8 Ves. 92, Lord Eldon said he oonsiderpd it a "weighty o^■ ■^ 89] SPECIFIC PERFORMANCE OF CONTRACTS. 109 X Even where the purchaser has not become bankrupt the fact that part or all of the purchase money ha^ not, by the terms of the contract become due will not ex- cuse the purchaser from paying it in full if he wishes specific performance. An assignee of the purchaser stands, of course, in no better situation.* § 89. Contract to devise or bequeath property. A contract to devise realty or to b^equeath person- alty is treated similarly to a contract where the parties contemplate a conveyance by deed. If the contract is specifically enforcible the owner of the property is treated from the moment of making the contract as a fiduciary thereof; hence, if he devises or bequeaths to another^ or allows it to descend to his heir^ or to be distributed to the next of kin,^ or transfers it by deed to some one* other than a bona fide purchaser, specific performance will be decreed and a constructive trust declared for the benefit of the person entitled under the contract. If the latter fears that the promisor may, jection" to giving specific performance. See also Price v. Asheton (1835) y. & C. 441, 444. If he has become bankrupt it would seem that the rule as to purchasing the fee should apply and the assignees should be compelled to tender the whole amount. See Brooke v. Howitt (1796) 3 Ves. 168, 169. A somewhat similar rule prevails In the sale of chattels. Tho one who has contracted to buy a chattel has stipulated for credit as to part or all of the purchase money, his bankruptcy puts an end to his right to credit and the seller is not put in default unless the full amount is tendered. See Williston, Sales § 662, p. 1111. 6. Wass V. Mugridge (1880) 128 Mass. 394, 1 Ames Bq. Cas. 138. Perhaps it would be enough if the assignee, being himself solvent, were willing to pay a sjibstantial part and secure the rest. 1. Young V. Young (1889) 45, N. J. Eq. 27, 16 Atl. 921. 2. Sutton V. Hayden (1876) 62 Mo. 101. Conversely, if Z con- tracts not to make a will, and In violation thereof, devises to X, the heirs may enforce against the devisee; Taylor v. Mitchell (1878) 87 Pa. 818. 3. Whiton v. Whiton (1899) 179 111. 32, 54, 53 N. E. 722. 4. McGuire v. McGuire (1874) 74 Ky. 142. 110 SPECaFIO PERFOEMANCE OF OONTEACTS. [Chap. 11 in violation of the contract, convey the property t6 a bona fide purchaser,^ he should file a bill for specific performance at once, without waiting for the promisor's death. The decree in such a case will not be that the defendant make the will because even if he did make the will he could revoke it at any time; an equity court will not render such a futile decree. The decree will Usually be that defendant shall upon his death, convey to the plaintiff.* Such a decree would, on the doctrine of Us pendens, prevent any one from be- coming a bona fide purchaser, and would enable the plaintiff without instituting another suit, to procure the property from the heir or transferee if the defendant died without fulfilling the order of the court. Where the contract ^yas to bequeath nothing but ordinary chattels or money equity formerly gave relief because of its jurisdiction over the administration of estates.'' There seems to be some doubt whether this jurisdiction still exists.* § 90. Right of a beneficiary of a contract to sue in equity. A transaction between two persons may be entered into for the purpose of benefitting a third person, "whom we will call in this section a beneficiary. There are four types of these beneficiaries, classified according to the kind of transaction involved: viz., beneficiaries 5. Or if there has already been a conveyance to a third party who IS not a bona fide purchaser for value and the plaintiff fears that delay in asking for relief may prejudice his rights. See Van Dyne v. Vreeland (1857) 11 N. J. Eq. 370, 12 N. J. Eq. 143. 6. Davison v. Davison (1861) 13 N. J. Eq. 246, 253. 7. Maitland's Equity and the Forms of Action 193, 28 Harv. Law- Rev. 242. 8. Whiton v. Whiton supra seems to assume that it still exists; but see 19 Harv. Law Rev. 473. In Turnipseed v. Sirrine (1900) 57 S. C. 559, 35 S. E. 757, specific performance was given of a contract to make mutual wills, the promisor having only personal property at his death; but it was apparently on the grgund of the difiBculty of estimating damages. §. 90] SPECIFIC PEBFORMANCB OF CONTBACTS. HI of bailments, trusts, charges on property, and of eon- ■ tracts. Very early, — apparently while the common law ^was still somewhat elastic, — detinue, which was the normal remedy for the bailor where the bailee was un- der a duty to redeliver to him, was given to the benefi- ciary of the bailment;* so that if A bailed a bag of gold to B to be handed over to X, X had a common law remedy as adequate as if* he had been a party to the transaction. In the ease of trusts, unless the duty of the trustee were the very simple one of paying over money, the matter was too complicated to be handled by the com- mon law machinery and the cestui que trust had to be protected by equity, whether he was merely the benefi- ciary or was also the creator of the trust.* If A owning property (usually land) conveyed it to X reserving a charge thereon to himself, or if he kept the land and conveyed a charge to X, the holder of the charge could enforce it at common law.' If, however, a charge was attempted to be created in favor of a third person, B, the common law failed to give relief and equity had to interfere* to protect the bene- ficiary. Since his sole relief is in equity the charge is called an equitable charge. In the fourth case of the beneficiary^ of a con- tract, the early lommon law gave him no relief. Logic- ally we should expect that equity would interfere in his behalf just as it had in the oases of the trust and 1. Madgeburg v. Uihlein (1881) 53 Wis. 165; see post § 251. 2. See post § 274. 3. See post § 260. 4. See Jaquet v. Jaquet (1859) 27 Beav. 56, Ames Trust Cas. 56. See post § 260. 5. Where the performance of the contract would result in a gift from the promisor to the beneficiary, the latter is called a sole or gift beneficiary. The term "gift beneficiary" is preferable because the performance might be partly for the benefit of the promisee and partly lor the benefit of the third person, in which case the beneficiary would not be the sole person interested in the performance. If the performance of the contract would result in the payment of a debt 112 SPECIFIC PERFORMANCE OF CONTRACTS. [Chap. U the equitable charge, on the ground of no relief at law, by giving specific performance of the promise. How- ever nothing of the sort occurred,® perhaps because, by the time the^ question was squarely presented, equity had lost much of its former elacticity. Within the last century, however, the majority of courts in this country have given the beneficiary the common Jaw remedy of special assumpsit,'' so that in this respect the common law has shown itself less rigid than equity. Where the contract is of a specifically enforcible charac- ter the beneficiary has usually been allowed to have specific performance,* often without argument; this is true even in England,* where the beneficiary has no relief at law apart from statute. In Cassey v. Fitton,^" Cassey had two sons, John and William, by different wives ; John being sickly and childless, C was unwilling to let the estate descend to him, because it would not descend from him to his half brother William, and was therefore about to make a settlement in order to limit a remainder to William. John thereupon promised his father that if he would let the land descend, he would alien no part of it more than was necessary to pay his debts and would leave all the rest to his younger brother. C assented to this and died without making -a settlement. John devised the property to the defendant; the property having been sold, pre- sumably to a bona fide purchaser, the court declared a due from the promisee to the third person the latter may conveniently be designated as a payment beneficiary. Nearly all cases of bene- ficiaries of contracts belong to one or the other of these two types. See post § 258.^ 6. Except that in England the law of trusts was lllogically ex- tended to protect gift beneficiaries. Moore v. Darton (1851) 4 De Gex & Smale 517, Ames Trust Cas. 39. See post § 259. 7. Or its equivalent under the codes; see 15 Harv. Law Rev. 767-809. 8. See Weis v. Meyer (1886) 1 S. W. 679 (Ark). 9. See Gandy v. Gandy (1885) 30 Ch. Div. 57, 66. 10. (1679) 2 Hargrave, Judicial Arguments 296, 1 Ames Eq. Cas. 145. § 92] SPECIFIC PERFOEMANCE OF CONTRACTS, 113 constructive trust of the proceeds of the land for Wil- liam, the gift beneficiary of the contract. § 91. Specific performance given to protect purchaser's right to security. Even tho the purchaser under a contract has con- veyed his interest to another, he may get specific performance against the vendor or the vendor's assignee if the legal title is necessary to protect him fully as security for the purchase money still unpaid by his transferee. In Bird v. HalP one Hall had contracted to sell some land to one Bird, who paid part ; Bird then contracted .to sell his interest to McFee, who paid part and was placed in possession; Hall then transferred to McFee the legal title. Bird' now asks that- McFee be decreed to convey the legal title to Bird so that Bird will have security for the balance due ; the court decreed the conveyance. Even tho Bird might have held Hall responsible for the damage which was caused by thus depriving him of the security, the remedy would not be adequate; as the court pointed out, the measure of recovery against Hall would be conjectural,^ because until the rest of the purchase money is due, it would be impossible to tell how much the plaintiff would be damaged by the loss of the security. § 92. Specific performance against assignee of pur- chaser. As already pointed out,^ the assignee in bankruptcy 1. (1874) 30 Mich. 374, 1 Ames Eg. Cas. 144. 2. T'his reasoning seems unnecessary. Any conveyance of the legal title by Hall without the consent of Bird was wrongful and McFee not being a bona fide purchaser, the doctrine of constructive trusts applied. See ante S 84. The case is really one of specific repara- tion for destroying security. That equity will give specific performance of a contract to give security, see ante § 51. 1. See ante § 88. Eq.— 8 114 SPECIFIC PERFOEMASrCE OF CONTRACTS. [Chap, ii of the purchaser can not be forced to take the property and pay the purchase price, because the vendor has no specific property right in the purchaser's estate, but merely a claim to be paid a sum of money out of the purchaser's general assets. The same principles ap- ply to any other assignee of the purchaser ; the contract can not be "specifically enforced* against him unless he has by contract expressly or impliedly aS'sumed the obligation to pay the purchase price; the assignment passes rights to the assignee but imposes no liabilities. Where the assignee has contracted with the purchaser to assume the purbhaser's obligation to pay the pur- chase price, the vendor stands in the position of a payment beneficiary of such a contract and may as such enforce specific performance.® Tho the vendor cannot get specific performance against the assignees of the purchaser where the as- signees do not assume the burdens of the contract he may have the property sold on a foreclosure sale to pay the rest of the purchase money, equity treating him as if he were a mortgagee.* This being a property right, the remedy by foreclosure is not barred by the Statute of Limitations applying to the personal ob- ligation of the purchaser.^ , § 93. Rights in another's land at commau law. At common law the rights other than legal charges^ and natural rights^ which one might have in the land 2. Comstock v. Hitt (1865) 37 111. 543, 1 Ames Eq. Cas. 139. 3. See ante § 90. 4. The position of the unpaid vendor is always at least as strong as that of a mortgagor, and in some circumstances it is stronger. See post § 155. 5. 'Hanna v. Wilson (1846) 3 Grattan (Va.) 243, 1 Ames Bq. Cas. 142. 1. SeeTiffany, Real Property § 354. 2. Tiffany, Real Property, Chapter XI. The most important natural rights are the right to have the air diffused over one's prem- ises in appromixately its natural condition, the right to have water in '^ 93] SPEOI]?IO PBEFOEMANOE OF CONTBACTS. 115 of another,, i. e., rights which could be enforced against the land into whosoever hands the land might come, consisted chiefly of easements,* profits* and covenants running -vyith the land.^ In order to create them it was necessary that there be an instrument under seal and that they touch and concern the land. The most important easements were those of rights of way, drainage, support of party wall, flowage, and fencing. While an easement is a right or privilege to use the land of another, a profit is a right or privilege to take something from the land of another, such as turf, fire- wood, pasture, or fish. Covenants running with the land bound only those who succeeded to the estate of the covenantor and could be created only where there was privity of estate;® in this connection privity of estate was said to exist where there was an easement or profit or where there was the relation of grantor and grantee or that of lessor and lessee. Most usually, covenants running with the land occurred in leases. The most common ones running with the land against transferees of the lessee were covenants to pay rent, to repair, to rebuild, not to use premises in a certain way and not to assign the lease; those running with the land against the lessor's transferees were cove- nants to rebuild and covenants to renew the lease. In England, covenants will not run against a transferee except in case of landlord and tenant.'^ At common law damages were of course all that could be recovered for a breach of a covenant; but if damages were inadequate equity might in a proper case interfere by injunction. But there is a large class a watercourse flow past one's land without diminution, deterioration or alteration and the right to have one's land supported by adjacent and subjacent land. 3. Tiffany, Real Property, Chapter XII. 4. Tiffany, Real Property, Chapter XIII. 5. Tiffany, Real Property i§ 49, 342, 344. See also 22 Harv. Law Rev. 298. 6. See Tiffany, Real Property § 345. 7. Tiffany, Real Property § 344. 116 SPECIFIC PBEFOEMANCE OF CONTEACTS. [Chap, il I of cases in which there is no primary common law right, in which equity will interfere, thus creating an equitable property* right in another's land. § 94. Rights in another's land in equity. In Tulk V. Moxhay^ the plaintiff, who was the owner of a piece of vacant ground in Leicester Sqiiare and also of several of the houses forming the square, sold the vacant piece to one Elms, the deed containing a covenant by Elms^ that he, his heirs and assigns would keep the piece of ground in its then state, un- covered with any buildings, etc. The piece of land passed by several mesne conveyances into the hands of the defendant whose purchase deed contained no similar covenant with his vendor, but he had notice of the original covenant when he made his purchase. The covenant did not run at law against the transferee /of Elms because it was not connected with an easement; 1. (1848) 2 Phillies 774, 1 Ames Bq. Gas. 147. Altho Tulk v. Moxhay is the leading case on the subject, the point had already been decided in Whatman v. Gibson (1838) 9 Simons 196. It was a sale of lots under a building scheme and the restrictions were mutual. The court did not say anything about unjust enrichment but merely pointed out the advantage to all the proprietors of preserving the residential character of the neighborhood. The case of Mann v. Steph ens (1846) 15 Simons 377, also antedates Tulk v. Moxhay; it varies in facts from Thilk v. Moxhay only in that the assignee entered into a similar covenant with the original covenantor. The reasoning of the court is not reported. Before the decision in T'ulk v. Moxhay, a con- tract not to use land in a particular manner was treated by equity courts in the same way as were other negative contracts; if the plain- tiff was so injured in the enjoyment of his own land that damages at law did not furnish an adequate remedy, equity would specifically enforce the contract by granting an injunction against the promisor; Martin v. Nutkin (1724) 2 P. Wms. 266 (promise not to ring a bell); De Wilton v. Saxon (1801) 6 Ves. 106 (not to break up mowing land). The right thus to control the use of property in the hands of the promisor can hardly be classified as other than a property right, hut since it was enforcible only against the promisor it was a property right that could be easily destroyed by any alienation of the property and therefore was of relatively small value. 2. As to enforcing the covenant against Elms, see ante § 70. § 95] SPEOIPIO PEBFORMANCE OF CONTBACTS. 117 furthermore, there was not only no common law prop- e;rty right, but there was not even a contract right against the defendant because the defendant had made no such covenant with any one. The defendant having manifested an intention to alter the character of the land and having asserted a right to build thereon, the plaintiff sought and obtained an injunction against his doing so. Such a right as equity declared belonged to the plaintiff as against the defendant in this case was fortoerly called an equitable easement; it is now more common to call it a covenant running with the land in equity. Since such restrictive agreements are recognized by equity as creating property rights in chattels as well as in land, while the common law recog- nizes no easements or covenants as giving property rights in chattels, it is perhaps better to avoid these terms and call them merely equitable servitudes.^ § 95. Basis of plaintiff's right in Tulk v. Moxhay — unjust enrichment. The court in Tulk v. Moxhay seemed to rest their decision on the ground that if such a right were not recognized and enforced there would be unjust enrich- ment at the expense of the plain ti5ff. Where the parties in the different transactions after the purchase and covenant by Elms supposed that the restriction was binding on transferees and fixed the price of the prop- erty accordingly, unjust enrichment of the defendant would result if the restrictions were not enforced against him. And where those same parties supposed that the restriction was not binding on transferees and fixed the price according to that understanding, unjust enrichment would result to the covenantor if the restric- 3. Another objection to calling them covenants running with the land in equity is that if they were treated strictly as covenants equity ■would not interfere unless there was irreparable damage or at least some damage to the owner of the dominant tenement; on the con- trary, no damage at all need be shown in order to get relief. See post § »8. 118 SPECIFIC PERFOEMANCE OF CONTBACTS. [Chap, ii tion is enforced against the defendant. On the other hand, where there is no misapprehension by the parties as to the legal rule, there is no unjust enrichment of any one because the price of the property will be fixfed according to the enforcibility or non-enforcibility of the restriction. Consequently the decisions enforcing equitable servitudes against transferees can be rested on the doctrine of unjust enrichment only in the rather abnormal case where the parties were mistaken as to thp law. Oddly enough, it has been the orthodox^ doc- trine — now happily disappearing — that equity would give no relief against a mistake of law.^ At the present day courts usually pay no attention to the question of unjust enrichment in restrictive agreement cases.^ A decision which shows that unjust enrichment is not the basis of equitable servitudes is that of Eogers V. Hosegood.^ In that case it was held that a transferor of the covenantee was entitled to enforce an equitable servitude on the defendant's property tho the plaintiff knew nothing of the restriction when he bought his property. T § 96. Real basis for plaintiff's rig^ht in Tulk v. Mox- hay. , The court in Tulk v. Hoxhay reasoned in a circle; whether there was unjust enrichment of the defendant at the expense of the plaintiff depended upon the extent of the plaintiff's right; i. e. upon whether the plaintiff could enforce the restrictive agreement against only the covenantor or whether he could also enforce it against the transferees of the land. But tho the reasoning is unsound the decision has been followed with practically no adverse criticism and some other 1. See post § 166. 2. Conceivably a restriction might be positively valuable to the purchaser; e. g. if he bought two pieces of land, one of them being subject to a restriction which was of more value to the other piece than it was a detriment to the restricted piece. 3. L. R. (1900) 2 Ch. 388, 1 Ames Eq. Cas. 165. § 96] SPECIFIC PBEFOBMANCE OP CONTRACTS. 119 reason must be found so that it may be fitted in with other parts of the legal system. This reason is found in that the rights in another's property which were recognized and enforced at common law were not adequate to meet modem economic conditions. ^ It is at least doubtful whether such a right could have been crea- ted at common law especially in this country where the courts have refused to recognize an easement of light and air by prescription^ and have been hostile to such an easement even by way of grant. Furthermore, it is practically certain that no such right could have been created at common law with reference to chattels. A specifically enforcible right that the land of another shall or shall not be used in a certain way is of course a property right and not merely a contract right; and, as in the case of trusts and of specific per- formance of contracts to sell, equity would naturally be forced into giving relief against transferees who were not bona fide purchasers in order to give anything like adequate protection.^ But the curious thing was that this property right which originated in the giving of specific performance where the legal remefjy was not adequate, developed into a technical property right, not dependent in any way upon the rules of specific performance of contracts.* Hence equitable servitudes are to be sustained not on the ground of the inadequacy of the common law of contracts but upon the inadequacy of the common law of property. 1. See 28 Harv. Law Rev. 201. Another reason was the almost total lack of govermental supervision of building in Anglo American countries. Tho it might he much better to have municipal control of the use of land than to enforce restrictions imposed by private indi- viduals, such control by private individuals has on the whole been beneficial in the last half century's rapid growth of cities. 2. White V. Chapin (1866) 12 Allen 516; Tiffany, Real Property § 451, p. 1031. 3. See ante § 83. See also 21 Harv. Law Rev. 139, 146. 4. This judicial legislation, now recognized to be beneficial, was . for the most part unconscious. 120 SPECIFIC PEBFOBMANCE OF CONTEAOTS. [Chap, ii § 97. Who are bound by equitable servitudes. A common law easement or profit was enf orcible against" any successor in title tho lie paid value in good faith.^ But like other equitable rights the benefit of an equitable servitude may not be enforced against a bona fide purchaser.^ Tho a common law covenant running with the land was enforcible only against one who succeeded to the estate of the covenantor, there is no such limitation upon the enforcement of equitable servitudes. In Abergarw Brewery Co. v. Holmes,^ wherer there was a covenant in a mortgage not to buy wines, beers, etc. from , any one except the mortgagee, the restriction was enforced against an under les- see with notice,* on the ground that it was the intention of the parties tg bind every one claiming under the mortgagor. In order to protect the defendant in such a case, the decree would of course be made conditional upon the mortgagee's complying with his promise to furnish- the liquor.® 1. Easements and profits are, however, generally required by modern registry acts to be recorded; hence, in the absence of such record a 'bona fide purchaser will be protected. See Armor v. Pye (1881) 25 Kan. 731; Taylor v. Millard (1890) 118 N. Y. 244. 2. Independent of the. recording acts common law rights were enforcible against every one while equitable rights were not enforcible against hona fide purchaser-s. But wherever the registry statutes apply there is a new line of division; if the right, whether common law or equitable, is recorded according to the statutory provisions, it is en- forcible against all; if it is not so recorded it is not enforcible against Sojia fide purchasers, or attaching creditors. It haS been generally heM that the registry statutes allow and therefore require the recording of equitable servitudes; where, therefore, they have been properly re- corded they are enforcible regardless of actual notice. See 18 Harv. Law Rev. 535. 3. li. R. (1900) 1 Ch. 188, 1 Ames Eq. Cas. 149. 4. If he had not notice, aliter; Carter v. Williams (1870) L. R. 9 Eq. 678. 5. See also King v. Dickeson (1889) L. R. 40 Ch. Div. 596, 1 Ames Eq. Cas. 178, where a building line restriction was enforced against one who had bought the premises at a foreclosure sale; Mann V. Stephens (1846) 15 Sim. 377. § 97] SPECIFIC PEEPORMANOi; OF CONTKACTS. 121 It has been long considered as settled that one who obtains title from a trustee by adverse possession is entitled to hold it as against the cestui que trust even tho he knew of the trust.® On the other hand, one who obtains title by adverse possession of property sub- jept to an equitable servitude does not thereby destroy the servitude even tho he had no notice of it.'' The only way in which he can get rid of the servitude is by getting a release or by violating it and having the Statute of Limitations run in his favor.® The reason for the distinction seems to be this: the holder of the equitable servitude is not interested in the ownership of the servient property but merely in the way the property is used; hence his rights have not been in- fringed till the property is used in a way inconsistent with the servitude] Or, to state it differently, while it is a breach of trust for the trustee to convey the trust property to any one without the consent of the cestui que trust or an order of court,® because he owes a fiduciary duty to protect and administer the property for the cestui, the holder of property subject to an equitable servitude is not a fiduciary to that extent; he may alien freely except that he must not destroy the servitude by conveying to a bona fide purchaser for value.*" A fortiori one who has disseised- the owner of the servient , property but has not yet acquired title is bound by the servitude." On the other hand, while 6. See post § 275. 7. In re Nisbet and Potts' Contract (1906) 1 Ch. 386, It is not clear whether the court did or did not regard notice as material. It ought not have iDeen regarded as material. See 18 Harv. Law Rev. 608. 8. In this respect the holder of the equitable servitude is treated just as if he had a common law easement or profit. 9. See post § 328. 10. His position Is very similar to that of the owner of land subject to an equitable charge. See ante § 82 and post § 260. 11. Mander v. Falcke (1891) 2 Ch. 554. The court mentions the fact that he had notice. Since he has paid nothing for the land it would seem that he ought to be bound even if he had not had notice. 122 SPECIFIC PERFORMANCE OF CO"NTRACTS. [Chap, ii the original covenantor remains liable for violations of the equitable servitude committed by subsequent transferees, a subsequent transferee with notice who does not bind himself by contract with reference to the servitude is liable only for violations while he is owner of an interest in the property; he is liable for infringe- ments by his alienee only if he authorized them.^^ § 98. Who may enforce equitable' servitudes. In determining the question as to who may enforce equitable servitudes, equity will usually carry out the intentions of the parties, — either express or as gathered ftom all the circumstances of the case. While it is usually the intent to benefit a particular piece of land into whosesoever hands it may come, the parties may 12. Hall V. Ewin (1887) 37 Ch. Div. 74, semble. Even before Tulk V. Moxhay there was nothing to prevent a promisor from under- taking to be liable for acts done by his transferee; but at any time it would seem that the promise should not be construed as including such an extensive undertaking in the absence of clear evidence of intent. The mere fact that he promises "for his executors and administrators" ought not to Mfe conclusive because the phrase may have been used as a mere form; his executor or administrator, of course, would be responsible in any event for a breach committed by him while he held the land. In Clark v. Devoe (1891) 124 N. Y. 120, a deed from the de- fendant of a lot in New York City, after reciting that the grantee was the owner of an adjoining lot, contained a covenant on his part, "for himself, his heirs, executors, administrators and assigns . . . that he will not erect or cause to be erected, on said lot, . . . any build- ing which shall be regarded as a nuisance, or which shall be occupied for any purpose which may render' it a nuisance." The defendant con- veyed the adjoining lot to X by a deed without any restriction; X erected a building which was used as a livery stable. In an action on the covenant for damages the court held that the covenant should not be so construed as to make the defendant liable for the act of X, because of the "serious result to the grantor with but slight benefit to the grantee." The dictum of the court that the covenant did not create an equitable servitude so as to bind transferees is, however, unsound; instead of requiring clear language to make the restriction enforcible by injunction against transferees, it would and should take clear lan- guage to limit the duration of the restriction to the time that the covenantor is owner of the property, because of the comparatively small value of a restriction thus limited. § 98] SPECIFIC PEEFOBMANCE OP CONTRACTS. 123 intend that the restriction be of less duration. In Eenals v. Cowlishaw* the devisees in trust for the sale of a mansion house and residential property known as the Mill Hill estate and of certain pieces of land adjoining thereto, sold and conveyed two of these ad- joining pieces of land to one Shaw who covenanted, among other things, that the property should be used for private dwellings only and not for any trade or business. The conveyance' did not state that the cove- nant was for the protection of the residential property or make any reference to the other adjoining pieces of land. The same trustees also sold other pieces of land adjoining the Mill Hill estate, similar conveyances being made. The trustees later sold and conveyed the Mill Hill estate to Bainbrigge who died and his devisees in trust sold and conveyed to the plaintiff. The pieces of land conveyed to Shaw came by several mesne conveyances into the hands of the defendants who carried on the trade of wheelwrights, smiths, and bent timber manufacturers and had erected a high chimney which emitted thick black smoke, thus in- juring the residental character of the neighborhood. The plaintiff was refused an injunction on the ground that the restriction was not meant to benefit the prop- erty, i. e., the subsequent owners, but merely to benefit the covenantees "to enable them to make the most of the property which they retained." If the intent of , the parties was that the restriction should exist only as long the covenantees should hold the land, the decision seems unimpeachable. But it should bp pointed out that to refuse to protect the transferees of the covenantees very largely wipes out the commer- cial value of the restriction to the covenantees unless the trans:^eree erroneously supposed he would be protected ; for if at the time he contracted to buy he knew that he could not as purchaser of the land enforce the restric- tion, he obviously would pay little, if any, more than 1. (1870) L. R. 9 Ch. Div. 125, 1 Ames Bq. Cas. 159, See also Badger v. Broadman (1860) 16 Gray 550. 124 SPECIFIC PERFORMANCE OF CONTRACTS. [Chap, ii if there had been no restriction. The chief value of the restriction therefore is merely to keep the premises free till a sale could be made.^ On the other hand, if the intent was clear to limit the duration of the restriction to the period of the trustees' ownership of the Mill Hill estate and the purchasers of the lots thus understood it and bargained accordingly, they are entitled to be free from the restriction the moment the trustees convey the property. If the restriction had been thus limited in duration, the lot purchasers might have paid more than they would if the restriction was not so limited but whether they paid more or less has no bearing on the enforcibility of the restriction.* It is to be noted here that tho the servitudes bound transferees of the covenantor, it was only during the time that the covenantees held the property; it was probably not, however, a servitude in gross because it is at least doubtful whether the court would have 2. This might be of sentimental value to the occupants. 3. In the restrictive agreement cases before Tulk v. Moxhay the equity courts based their jurisdiction upon the threatened injury to the promisee's enjoyment of his own land in the vicinity and upon the inadequacy of the common law remedy to compensate for such an injury; and in T'ulk v. Moxhay, where the court assumed without argument that they would have had jurisdiction to enjoin the promisor there was such threatened injury. Since Tult v. Moxhay, however, there has been a change of attitude upon the part of the courts that is none the less curious because probably unconscious. In Peck v. Conway the master found as a fact that the violation of the restriction "would be no appreciable damage or injury to the plaintiff's premises." In discussing this, the court said: "Such an act of the defendants would be against the restriction by which they are bound, and a violation of the rights of the plaintiff, of which she cannot be deprived, because in the judgment of others it is of little or no damage." In other words, the court apparently regarded the plaintiff as being substantially in the same position as if she had bargained for the fee instead of merely for the power to control the use of the land. That Is, if she had con- tracted to buy the fee it would of course be no defense to a suit for specific performance that the plaintiff would be as well or better off without the land; the fact that it is land is a sufficient reason in itself. Similarly, having bargained for a restriction on the land, she Is now considered as having bought an interest in the land and the fact that she would not otherwise be damaged if she did not get specific per- §. 98] SPECIFIC PERFORMANCE OF CONTRACTS. 125 I allowed the covenantees to enforce after they had parted with the land.* It has, however, been held that an equitable servitude may be in gross; but it would seem that none should be held to be created unless the plaintiff's remedy of damages at law on the con- contract would be adequate.^ In Vansant v. Eose* the plaintiffs, covenantees, were held entitled to enforce a restriction (not to erect a flat) altho at the time of making the contract and at the time of bringing suit they owned no land'' in the neighborhood and would suffer no damage by the erection of the flat. The argu- ment of the court is that the purchasers presumably paid a less ^rice because of the restriction and there- fore the plaintiff ought to be allowed to enforce it to prevent the defendants' being unjustly enriched; and that the plaintiff's motive in creating and attempting to enforce the retriction was of no importance. While this argument seems faulty* the decision might con- ceivably be supported on the ground that tlje plaintiff \ formance is no longer considered important. In other words, she is considered as being the equitable owner of an interest in the servient land from the moment the restriction is intended to become operative. 4. See Harris v. Boots (1904) 2 Ch. Div. 376. 5. In Borough Bill Board Co. v. Levy. (1911) 129 N. Y. Supp. 740 the defendant had contracted to the plaintiff bill posting company the exclusive privilege for one year of erecting a signboard on certain lots for bill posting purposes; the defendant later made a similar agreement with another bill posting company who began to tear down the plaintiff's signs and boards. The giving of an Injunction here amounted to holding that the plaintiff had a servitude in gross and is supportable on the ground that damages would be conjectural. See 11 Col. Law Rev. 789. 6. (1912) 170 in. App. 572, 250 lU. 401, 103 N. B. 194. 7. In England, common law easements could not be in gross but in the U. S. there has been some tendency to relax the common law- rule. Tiffany, Heal Property § 305. 8. Suppose the plaintiff had never owned any land at all in the city and paid the defendant $1,000 in consideration for defend- ant's promise not to erect a flat building on his lot. If the defendant broke his promise the plaintiff could recover only nominal damages on the contract— not being able to prove any loss, — but he could re- 126 SPECIFIC PEBPOKMANCE OF OONTKACTS. [Chap. H in requiring the covenant and in suing intended to represent and . did represent the property owners in the vicinity and the injunction was given to protect them. Nothing of this' appears in the case.* While one having an estate in possession in the dominant property can get' an injunction without show- ing any damage to such property,^" one who has an es- tate in remainder or reversion after a life estate and is not the promisee must show that the hreach would cause injury to his estate in order to get injunctive relief.^^ § 99. Equitable servitudes attaching to after acquired property. In Lewis v. Grollner^ one Gollner hought a lot in a residential section, intending to erect a tenement building; the plaintiff, representing persons who owned residences in the neighborhood, sought to buy him out and did buy hin^ out, for the sole purpose of saving cover In quasi-contract $1,000. Would anybody seriously contend that equity should grant an injunction in such a case and thus create an equitable servitude in gross? The actual case of Vansant v. Rose is different only in that the consideration for the restriction is un- certain; is the uncertainty of the amount of recovery in quasi-con- tract a sound basis for equity jurisdiction? If the plaintiff could show that there was a real deduction made in price it would seem that he ought to be able to recover in quasi contract for the amount of the deduction. 9. The decision is an example of the tendency in this country of equity to become mechanical. See ante § 15. 10. Dickenson v. Grand Junction Canal Company (1852) 15 Beav. 260. 11. Johnstone v. Hall (1856) 2 Kay & J. 414, 1 Ames Eq. Cas. 187. This is analogous to common law protection of property rights; a per- son in possession may bring trespass for a violation of the possession and recover judgment without proving any damage; the remainder- man must bring an action on the case and prove actual damage in order to recover. If the remainderman were also the promisee, he would not, of course, be under the necessity of showing any such damages if Vansant v. Rose, supra should be followed. 1. (1891) 129 N. Y. 227; 29 N. E. 81; 1 Ames Eq. Cas. 152. § 99] SPECIFIC PEEFOEMAKOE OF CONTEACTS. 127 the neighborhood from flats. The plaintiff paid Gollner $6000 more than GoUner had agreed to give for the lot, the latter agreeing that "he would not construct or erect any flats in plaintiff's immediate neighborhood or trouble him any more." Immediately afterward GoUner bought a lot diagonally opposite his first pur- chase and began erecting a seven-storjr flat. The plaintiflf's attorney threatened action and' one of the materialmen refused to continue to supply him further, so GoUner sold and conveyed the premises to his wife who took with knowledge of all the facts and with the intention of protecting her husband. The plaintiff sought an injunction against GoUner and his wife; the lower court refused to give it but this was reversed by the upper court. It is to be observed here that at the time the contract was entered into, the defendant . GoU- ner had no land to which an equitable servitude could attach and consequently there was, strictly speaking, no equitable servitude at that time. The court seemed to think that the contract created such a situation between the parties that an equitable servitude came into existence the moment that GoUner acquired- a piece of land in the immediate neighborhood and would therefore be enforcible against a purchaser of the land with notice of the facts. This is somewhat analogous to the creation of a trust of after acquired property.^ The actual facts of the case did not require such rea- soning; it was clear that GoUner 's wife was colluding with him to help him escape the consequences of his contract and even if the obligation of GoUner be con- sidered as merely personal, damages at law being in- adequate, the court properly enjoined the wife as well as GoUner. But if GoUner transferred to a stranger who had no intent to aid GoUner to evade his contract but did know the facts, such a transferee could be enjoined only on the ground suggested by the court. 2. See post § 269. 128 SPi:CIFIC PEBFOEMAKCE OF CONTRACTS. [Chap. 11 § 100. Restrictive agreements as to a business. Tho the great bulk of equitable servitudes consist of restrictions placed on one piece of land, for the benefit of another piece of land, they may be imposed for the benefit of a business and if so intended the benefit will pass to the assignee of the business.^ Similarly, the benefit of a personal covenant not to compete with the promisee in business will pass to the assignees of the promisee, if so intended.^ On the other hand, the restriction may be enforced against the as- signees of the covenantor's business. In Wilkes v. Spooner,^ X sold to the plaintiff his business of general butcher, covenanting not to establish a rival business within three miles. X also conducted a pork business at a nearby shop which he held on lease. This lease X surrendered in order that his son, the defendant, who bought the pork business with notice of this covenant, might get a new lease and set up a business to compete with the plaintiff's. The real reason for enjoining the defendant was that he was the assignee of the father's business — not that he happened to occupy the same building; tho the court seemed to put it on the latter ground, it is difficult to see how X, having only a term for years, could create an equitable servitude on the land which would outlast his lease. § 101. The formality essential to the creation of equita- ble servitudes. Altho equitable servitudes are treated as technical 1. Abergarw Brewery Co. v. Holmes (1900) L. R. 1 Ch. 188, 1 Ames Bq. Cas. 149. . ^ 2. Francisco v. Smith (1894) 143 N. Y. 488, 38 N. E. 980, 1 Ames Eq. Cas. 186. As the court pointed out, since the benefit of the covenant passed to,< the assignee of the business, no Injunction can be granted if the business is discontinued; but a discontinuance does not put an end to the right but merely suspends the enforcement, so that if the business is later resumed the covenantor can then be enjoined. See also Clegg v. Hands (1890) L. E. 44 Ch. Div. 403; Catt V. Tourle (1869) L. R. 4 Ch. App 654. 3. (1910) 24 L. T. R. 157, (1911) 2 K. B. 473, 24 Harv. Law R«v. 574. "^ 101] SPECIFIC PBEFORMANCE OF CONTRACTS. 129 property rights,^ no particular formality is required for their creation. Thus not only is a seal not necessary," but there is a conflict of authority as to whether any written memorandum at all is necessary to comply with the Statute of Frauds.* Furthermore, it is not im- portant whether the restrictions take the form of covenants,* reservations, or conditions.^ But altho form may not be essential, it is as a practical matter very important in drawing up in- struments containing restrictions, that express stipula- tions be made. If the covenantee wishes to make certain that his transferees may take advantage of the restriction, the safest way is to have an express pro- vision in the deed that it is for the l)enefit of the land; if he fails to do this, it will then become a question of construction for the court. In Tallmadge v. East Eiver Bank® it was held that if the sale was made with reference to a plat showing the restriction, that was enough. And in Peck v. Conway'^ and Barrow v. Eichard* it was decided that if on a fair construction of the whole instrument an intention to benefit the land appeared, that was sufficient.® If the seller intended to sell all the property and not retain any himself, 1. That is, they are enforced tho the plaintiff would suffer no dam- age to other land by breach. See ante §§ 96, 98. / 2. Dorr v. Harrahan (1869) 101 Mass. 531. 3. See Browne, Statute of Frauds (4th ed.) $ 2€9; but see 5 Harv. Law Bev. 278: "If the acts and the land are stated in writing, the court considers the statute satisfied, and will gather the other terms of the restriction by reading the writing as a whole in the light of surrounding circumstances." 4. Peck V. Conway (1871) 119 Mass. 546, 1 Ames Eq. Cas. 162. 5. Parker v. Nightingale (1863) 6 Allen 341, 5 Harv. Law Rev. 277; Barrow v. Richard (1840) 8 Paige 351, 1 Ames Bq. Cases 173. 6.. (1862) 26 N. Y. 105. 7. (1871) 119 Mass. 546, 1 Ames Eq. Cas. 162. 8. (1840) 8 Paige 351, 1 Ames Eq. Cas. 173. 9. 5 Harv. Law Rev. 278: "The ownership and character of buildings in the neighborhood, plans, building schemes, the existence of similar restrictions upon other lots, even parol agreements among neighbors may be shown as bearing upon the probable intention of the contracting parties." Bq.— 9 130 SPECIFIC PERFOBMANCB OP OONTBAOTS. [Chap, ii this fact tends strongly to show that the restriction was meant to benefit the future owners of the land.^" § 102. Whether equitable servitudes may require afifirm- ative action. With the exception of the spurious common law easements of fencing,^ common law easements require no action on the part of the owner of the servient property. An equitable servitude, on the other hand, may impose- a duty to act tho the court may as a practical matter refuse relief.* If the act is of such a nature as to require little or no supervision, enforcement will be decreed, e. g. in Whittenton v. Staples,* where the covenant was to pay the grantor or assignee one fifth of flowage damages caused by a reserve dam. On the other hand, if the act is such as to require a great deal of supervision, equity will usually refuse relief as a matter of the balance of convenience unless the hard- ship on the plaintiff would be very great if relief were denied.* 10. See the discussion of mutual covenants post § 103; Nottingham Company v. Butler (1886) L. R. 16 Q., B. D. 778, 1 Ames Eq. Gas. 169. 1. Tifiany, Real Property § 312. 2. Because of the difficulty of supervision and the interference with the personal liberty of the defendant. It is a question to be decided as a matter of the balance of convenience. See ante § 62. See also 5 Harv. Law Rev. 278, 279. 3. (1898) 164 Mass. 319. See also Atlanta K. & N. Ry. Co. v. Mc- Kinney (1906) 124 Ga. 929, 52 S. E. 701, in which a covenant to convey water to the covenantee's residence was enforced against the covenant- or's assignees. See 14 Harv. Law Rev. 301 (contract to keep water wheel in repair). In Clegg v. Hands (1890) 44 Ch. Div. 503, a coven- ant by a lessee to buy beer only of the lessor was indirectly enforced In favor of the lessor's assignees by enjoining the lessee from buying beer elsewhere. It thus combines the peculiar principles of both Tulk V. Moxhay and Lumley v. Wagner; see ante § 72. 4. Haywood v. Brunswick Building Co. (1881) 8 Q. B. D. 403, 1 Ames Eq. Cas. 176 (covenant to keep in repair not enforced against assignee). <^ 103] SPECIFIC PEBFOBMANCB OF OONTEAOTS. 131 § 103. Mutual covenants in general building schemes. Another illustration of the non-technical way in which equitable servitudes may be created is shown in the rules applying to mutual covenants in general building schemes. In Nottingham Brick and Tile Co. V. Butler^ thirteen lots were put up at auction, subject to certain sale conditions as to the use of the land which were also expressed in the deeds of conveyance to the various purchasers. It was held that since the grantor intended to sell and did sell the whole property, the restrictions were evidently meant to benefit each lot as against all the others, and equity would effectuate this . intention.^ In Barrow v. Richard,^ it did not appear that the vendor intended to sell all his property in the vicinity, but in each of the conveyances which he made there was included a condition against the property being used for "any manufactory, trade or business which should or might be in any wise offensive to the neighboring inhabitants." This was held to be sufiScient to sho\§ 108] SPllCIFIO PERFOBMANCB OP CONTRACTS. 137 E, Consequences of Eight of Specific Perfoemance. § 108. Devolution of purchaser's rights and obligations. At common law the rule for the devolution of the assets of an intestate was that the real property — which included all interests in land except terms for years — went to the heir, while personal property — which included everything else — ^went to the executor to pay debts and to distribute to the next of kin.^ Since the heir and next of kin are not necessarily the same person or persons, it often becomes important to determine whether the intestate's assets are to be treated as realty or personalty. There being no oc- casion for a different rule of devolution of equitable interests, equity followed the law on this point, not only with^ respect to common law property rights but also as to equitable property rights. As already explained,^ the purchaser under a contract for the sale and purchase of property which is specifically enforcible* against the vendor has not only a contract right but an equitable property right from the moment the contract is made ; provided, of course, that the vendor at that time owns the property; if he did not then own it but expected to procure it, the property right could not arise till it was procured. And •if the purchaser dies before it is procured, he leaves ling house was not protected by a modiflcatlon allowing necessary or desirable outbuildings. 1. Tiffany, Real Property § 425. In the very early common law the executor apparently kept what was left after payment of the debts. 2. See ante § 83. 3. If the contract is for any reason not specifically enforcible by the purchaser no property right arises even though for some purposes the contract may be treated as valid. In Buckmaster v. Harrop (1802> 7 Ves. 341, the contract was oral; specific performance was denied to the heir of the purchaser although it appeared that the vendor was willing to convey and that the purchaser would probably have carrlea out the.contract if he had lived long enough to do so. 138 SPECIFIC PERFORMANCE OP CONTRAOtS. [Chap, ii only a contract right which passes to his executor as a part of his personal assets.* , If, however, at the time of the purchaser's death the vendor has the legal title to the property and the property consists of realty, the purchaser's equitable property right passes to his heir who may enforce* it to the exclusion* of the contract right which goes to the executor. Hence, any attempt by the vendor and the executor of the purchaser to rescind the contract will have no effect upon the rights of the heir.'' The proper remedy of the heir is to bring a bill against the vendor asking for a reconveyance, joining the purchas"er's executor in the suit so as to compel him to pay for the land out of the personal assets of the decedent's estate.* Since the equitable property interest passes to the heir upon intestacy, the right may be devised ;* and the rights of the devisee are exactly the same as the 4. Green v. Smith (1738) 1 Atkyns 572, 1 Ames Bq. Gas. 193. 5. The effect of such enforcement by the heir would be the extinction of the contract right; but if for any reason the heir chooses, not to enforce it, there would seem to be no reason why the executor might not recover damages against the vendor for breach of contract, subject, of course, to the possibility of the vendor's enforcing speclflo performance, if not barred therefrom. 6. Wherever the equity rule or right came into conflict with the common law rule or right, the former always prevailed; and such is' the express provision of the English Judicature Act. In this country the reverse has sometimes unfortunately happened. See 5 Col. Law Rev. 20-35, The Decadence of Equity, by Roscoe Pound. 7. See Matthews v. Gadd (1871) 5 South Aus|tralia Law Reports 129, 1 Ames Eq. Gas. 193. In that case the heir did not insist upon specific performance but it was held that he was entitled, to an amount, equal to the purchase money which would have been paid for the land. He could be entitled to this only if he was entitled to specific performance. 8. Milner v. Mills (1729) Moseley 123, 1 Ames Eq. Gas. 191. 9. Since real property acquired after the execution of a will does not pass by the will in the absence of statute, the heir and not the residuary devisee is entitled to land bargained for by the testator after his will was executed; Langford v. Patt (1731) 2 Peere Wms. 629. . . §. 109] SPECIFIO PERFOBMANCB OF CONTBACTS. 139 rights of the heir" would have been if the property right had been allowed to descend." If after the purchaser's death it is the vendor who seeks specific performance, the party to be sued primarily is the executor, since the obligation to pay the purchase money devolves upon him and not upon the heir or devisee; the heir or devisee should, however, be joined so that he can be in an advantageous position to insist upon getting a good title and also because, in case the personal estate should be. insufficient to pay the purchase price, he can have an opportunity to make up the deficiency out of his own pocket.^^ § 109. Devolution of the vendor's rights and obligations. Under a contract for the sale and purchase of property which is specifically enforcible against th6 purchaser, the vendor has two contract rights; one is to sue the purchaser at common law for breach if he refuses to perform; the other is to compel the pur- chaser to pay the full purchase price and take the property. During his lifetime the vendor may choose which right he will enforce and the enforcement of either will extinguish the other — subject, however, to 10. Either the heir or the devisee 'must bring suit, not the admin- istrator, unless enabled to do so by statute. See Buck v. Buck (1844) 11 Paige 170. 11. If after the purchaser's death the vendor should sell and convey the land to a bona fide purchaser and thus destroy the property right of the purchaser's heir, it would seem that the latter should recover from the executor the amount of the purchase money which the executor could have been compelled to pay to the vendor for the land if there had been no such wrongful sale; it would seem that he ought also to be entitled to whatever damages the executor may be able to collect from the vendor for breach of contract, or he might be able to recover from the vendor the excess, if any, which the vendor received for the land beyond the contract price. If, however, the sale by the vendor to the tona fide purchaser took place before the purchaser's death the heir will not be entitled to anything because at the time of his death the purchaser had no equitable property right in the land but only a right of action for damages. 12. Townsend v. Champernoune (1821) 9 Price 130. 140 SPECIFIC PBKFOBMANCE OF CONTEACTS. [Chap, ii the possibility that the purchaser may demand specific performance against the vendor if there is no bar to such enforcement. Upon the death of the vendor both rights pass to the executor who has a similar choice. If he chooses to enforce specific performance he may do so despite any attempt by the vendor's heir and the purchaser to rescind the contract. His proper remedy is to sue the purchaser for the payment of the purchase money, joining the heir of the vendor in the same suit so as to compel conveyance of the land.^ Where the contract, is specifically enf orcible against the vendor he is treated by equity as -a fiduciary^ of the land from the moment of contract, holding the legal title merely by way of security for unpaid purchase money. Where the contract is specifically enforcible by the vendor but not, for some reason, specifically enforcible against him, he does not become a fiduciary of the land, tho of course, he must convey it in order to get the purchase price. But upon the vendor's death in the latter case, the heir of the vendor becomes a sort of fiduciary for the vendor's executor because the executor can compel specific performance, and force him to convey to the purchaser, and it has even been held that where the purchaser is barred by laches from getting specific performance, the executor may claim the land from the heir without forcing the purchaser to take it.^ On the other hand, if the contract is specifi- 1. Bubbs' case (1678) Freeman, Chancery Cases 38, 1 Ames Eq. Cases 194. In that case the court gave a decree for the purchase money without having a conveyance made by the heir; but the purchaser might have insisted upon having the heir made a party and upon a conveyance by him. Roberts v. Marchant (1843) 1 Phillips 370. If the vendor has devised the premises the purchaser may insist that the devisee be made a party. Coles v. Feeney (1894) 52 N. J. Eq. 493, 29 Atl. 172. 2. His fiduciary obligation is not so serious a matter as to make wrongful a conveyance of the land and the right to the purchase money to a donee or to a purchaser with notice; in this respect he is like a mortgagee, hot a trustee. 3. Cure v. Bowyer (1819) 5 Beav. 6, note (b), 1 Ames Bq. Cas. 196. This doctrine rests upon the principle that the rights of the heir and § 109] SPECIFIC PEBFOEMANCE OF CONTEACT. 141 cally enforcible against tLe vendor but not by him, because of the failure of title to some part, and the purchaser fails to enforce specifically, the vendor's heir is entitled to keep the land because at the vendor's death the vendor had no right to the purchase money.* Where the contract fixes a time in the future for the transfer of title and possession and the payment of the purchase money, the vendor is entitled to the rents and profits until the time for performance has arrived." If at the time for performance the purchaser is put into possession but does not get title, he may keep the rents and profits but must pay the purchase money or executor respectively should not be determined by what the purchaser does or does not do. The same principle underlies the doctrine of marshalling of assets. See post § 454. 4. Thomas v. Howell (1886) L. \R. 34 Ch. D. 166, 1 Ames Eq. Cas. 196. 5. Lumsden v. Fraser (1841) 12 Simons -263, 1 Ames Eq. Cas. 220. A practical reason for thiS| is that since the purchaser does not pay interest on the purchase money during the period, he ought not to be entitled to the rents and profits. In this respect the analogy of the vendor to trustee and mort- gagee both fail; if the vendor were really a trustee he would be accountable to the purchaser for the rents and profits; if he were a mortgagee, he could be compelled to apply them upon the purchaser's debt. The situation really is that although equity was compelled, in order to protect the purchaser, to hold that his property right and therefore the vendor's fiduciary obligation arise at once, the property right may be postponed in enjoyment, similar to the right of the holder of an executory devise or shifting use. See ante § 83. In Lysaght v. Edwards (1876) L. R. 2 Ch. DIv. 499 the court speaks of the vendor as being "a constructive trustee for the pur- chaser of the estate from the moment the contract is entered into;"' and this was adopted by Professor Keener in 1 Col. Law Rev. 1, 6. The usage is objectionable because the obligation of the vendor to con- vey is in no sense constructive; that is, the obligation is consensual, while a constructive obligation is properly one which the law imposes upon a party irrespective of and usually contra to his intent, as in the case of property obtained by fraud or mistake. The obligation of the vendor to convey upon the purchaser's paying or securing the purchase price according to the terms of the contract exists at common law as well as in equity; the difference between common law and equity here consists primarily in that the common law gives only damages l)y way of redress. 142 SPECIFIC PEEFORMANCB OF CONTRACT. [Chap, ii interest thereon.* If through default of the vendor the purchaser is not even put into possession, the purchaser should have the choice of either paying no interest till he gets possession or title or of paying interest and making the vendor account for the rents and profits/ If the contract fixes a time for performance in th^ future — say at the end of two years — and the vendor dies before the expiration of the time set, the rents and profits for the remaining time go the heir.* In thus holding equity is following the law, because if the conveyance of the legal title had been made by bargain and sale to take effect at the end of two years, the rents and profits for the two years would go to the heir on the ground that it was merely a continuation of the estate which the vendor already had and there- fore a part of the fee.' If after the death of the vendor it is the purchaser who seeks specific performance, his suit will primarily be brought against the vendor's heir; but the executor should also be joined^" because the money is to be paid to him and only he can give a proper receipt therefor to the purchaser." 6. Mlnard v. Beans (1870) 64 Pa. 411, 1 Ames Eq. Cas. 217. If he wishes to avoid paying interest but also wishes to avoid payln? the purchase money till he gets the title, he can escape paying interest by making a permanent tender of the purchase money in a bank and notifying the vendor. Howland v. Norris (1784) 1 Cox 259. 7. Blount V. Blount (1748) 3 Atk. 836; Powell v. Martyr (1803) 8 Ves. 146, note. 8. Lumsden v. Fraser (1841) 12 Simons 263, 1 Ames Eq. Cas. 220. 9. Leake's Digest of Property Law 352. 10. Potter V. Elliee (1872) 48 N. Y. 321. 11. In discussing these cases the phrase "equitable conversion" has been carefully avoided. Though it Is much used in the decisions and text books, it has only tended to confuse the subject. At best it is only a result and not a cause. The really Important question in the devolution cases is: what rights did the purchaser have at the moment of death? See 13 Col. Law Rev. 369-388 Equitable Conversion by Contract by Harlan F. Stone. For a discussion of equitable con- version see post § 448. § 110] SPECIFIC PEEFOEMANCE OF CONTEACT. 143 § 110. Devolution of equitable real property rights created in contracts to build. According to the more recent decisions a contract to erect a building on one's own land will not be specifi- cally enforced against the builder.^ An early English case,^ however, held that if the owner dies before the house is built, "the heir may compel the builder to build it and the father's executor to pay for it." It is at least likely that at that time* the ancestor himself could have obtained specific performance, so that the court did not place the builder in a different position from that which he occupied before the owner's death. Assuming that the father could have had specific per- formance, it is obvious that such a right would not pass to his executor but to his heir because the performance of the contract would result in a benefit to the land which would, of course, pass to the heir. The giving of the remedy of specific performance to the ancestor by equity therefore created in the ancestor an equitable real property right to have a house built upon the land out of materials furnished by the builder; and this equitable real property right passed to the heir along with other real property rights. It is to be observed that this right is the converse of a profit in gross in fee; the latter is an inheritable right to get a benefit from land but not appurtenant to other land; the former is a right to have a benefit added to land by the labor and materials of a builder, but not in any way connected with the builder's land. 1. On the ground of diflBculty of supervision and the comparative futility of the decree. See ante § 59. • 2. Holt V. Holt (1694) 1 Eq. Abridg't 274, pi. 11, 1 Ames Eq. Cas. 68. 3. In early times Chancery was quite liberal in granting specific performance of contracts to build on the plaintiff's land; the build- ings involved were probably much simpler than those required by the average modern contract, and the task of supervision was therefore not so great. See 10 Col. Law Rev. 574; 1 Ames Eq. Cas. 68, note 4. If the ancestor could not have obtained specific performance, it is difficult indeed to see any possible ground for the heir to get it. 144 SPECIFIC PERFORMANCE OP CONTRACT. [Chap. 11 Now that such contracts are not usually specifically enforcible against the builder by the ancestor for the reasons already given, It would seem clear that the accident of the ancestor's death should not take away the builder's defense. But has the change In the rule entirely wiped out the equitable property right of the ancestor and heir, or does it still exist but with other means of enforcement? It is as least arguable that the change by the equity courts in the way In which they exercise their discretion ought not to have the effect of destroying an equitable property right even though the right does, of course, owe its existence to the fact that at an earlier date courts of equity did give specific performance in such cases. At any rate, there are two fairly modern cases which are difficult to explain except on this assumption. In Cooper v. Jarman^ the ad- ministrator -had paid the builder for the finishing of the house after the intestate's death and it' was held to be a proper payment.^ And in Sprake v. Day" it was held that the devisee could insist that the administrator pay for finishing the house.'' If the builder were unwilling t6 finish it, this should not affect the substantial rights of the devisee; he should be entitled to have the 4. (1866) L. R. 3 Eq. Cases. 98. 5. The chief argument of the court was that to hold otherwise would place the administrator in an embarrassing position. "The administrator could not safely pay the amount of damages claimed hy the contractor for the loss sustained by breach of the contract. If he did, the next of kin might successfully say that he paid more than a jury would have allowed, and if he resisted and went to trial at law, and thereupon the amount of damages found by the jury, together with the costs of the suit should exceed the amount to be paid for the completion of the contract, could the legal personal representative be allowed 'to deduct this in taking the accounts?" 6. (1898) 2 Ch. Div. 510. These seem to be the only modern Eng- lish cases and there seems to be no American case. 7. That the real explanation is that given in the text and not the explanation of the court in Cooper v. Jarman is shown by the other part of Sprake v. JDay. The testator had also contracted with the same builder to build some houses on other land already belonging to the devisee; It was held that the devisee — being a volunteer- § 111] SPECIFIC PEEFORMANCE OF CONTRACT. 145 sum paid to any other builder whom he chooses, to finish it; or to himself if he prefers to have the money rather than the building, according to what is usually called the doctrine of equitable reconversion. And while in Sprake v. Day supra the work had already been be- gun by the builder, it would seem that that fact should be held immaterial. § 111. Options — devolution of option holder's rights. Where a specifically enforcible express option to buy has been exercised by acceptance before the death of the option holder, the situation arising is similar .to that already discussed.^ If, however, he dies before exercising the option and also before the period for exercising the option has elapsed, does the right to qjc- ercise it go to his heir or to his executor? There are two plausible^ solutions: (1) Let the heir exercise the option and if he accepts, let him get the land, he paying the purchase price. (2) Let the executor exercise the option, and if he accepts, let him get the land, he paying was not entitled to have the contract carried out by the administra- tor. Since the devisee did not obtain from the will any property right to this land' or to these houses and since in England a sole beneficiary of a confract has no right, either at law or in equity to complain of its nonperformance the decision seems the only logical' one. But it Is to be observed that the administrator may be compelled by the builder to pay damages for breach unless the devisee is willing to as- sume the burdens of the contract by paying for the houses. 1. See ante % 108. 2. There are two other possible solutions, neither of which can be called plausible. If the heir were allowed to exercise the option and compel the executor to pay the purchase price, such a holding would be open to two objections; first, i he. would practically always ex- ercise the option by acceptance and hence it would really cease to be an option; and, secondly, the decedent never having become liable for the purchase money it would be difficult to see how the executor could be made liable. If the executor were allowed to exercise the option and required, in case of accepting, to pay the purchase price but the heir to get the land, such a holding would be open to the ob- jection that the executor would practically never exercise it by ac- ceptance and it would therefore cease to be an option. Eq.::-10 146 SPECIFIC PEEFOBMANCE OF CONTRACT. [Chap, ii the purchase price. Since the option holder at the time of his death had just as much rigM^ to get the land* as if he had already exercised the option by acceptance, it would seem that the right should pass to the heir. If it. is worth accepting, it is in substance a right to get land at a desirable price ;^ and such a right seems to savor just as rouch of realty as if the option holder had accepted the option before his death.* Where the option to buy is due to the failure of a vendor to make a good title to all the land which he 3. Tho, of course, under no otUgation with respect thereto. To be sure, if the option holder accepts, his right to get the land is likely to be of longer duration than is the right given by the option, but the right itself is no greater. 4. It may be urged here that he also had a right to keep his money and not buy the land; but he would ordinarily keep only in case the option was not worth being accepted. If it is worth being accepted U is in substance a right to get land at less than its value; and such a right seems to savor of realty rather than of personalty. 5. If the heir does not wish to accept the option but the executor does and the heir will not assign it to him, it is arguable that the executor should be allowed in such a case to have it; but it is dif- ficult to see any principle upon which such a tandem succession could be worked out. 6. There seem to be very few decisions on the subject. In Gus- tin V. Union School District (1883) 94 Mich. 502 and in In re Adams (1883) 27 Clj. Div. 394, the option holder was also the lessee of the land; it. held in each case that the option passed to the executor and not to the heir, but the reasoning is far from conclusive. In the first case the court seems to rely partly on the fact that the op- tion accompanied a lease which of course went to the executor, and partly on the argument that the option gave no interest in the land to "the option holder. The only case cited for the latter proposition is Eichardson v. Hardwick (1882) 106 U. S. 252 which merely held that after the time for the exercise of the option had expired without ac- ceptance, the option holder had no right. In In re Adams, supra, each of the judges was careful to rest his decision on the peculiar words of the contract which provided for acceptance by the lessee, "his executors, administrators and assignees." While the court is probably right in assuming that the parties may effectually stipulate by their contract that In case of the death of the option bolder tho option shall be exercised by his executor and not by his heir; yet considering the formal character of the phrase it seems to be a very narrow basis for a decision. In Newton v. Newton (1876) 11 R. I. § 112].. SPECIFIC PERFORMANCE OF CONTRACT. 147 contracted to sell,'' the option to take specific per- formance with compensation for defects should be treated in the same way as express options.* While specifically enforeible options to sell 'are rare they ar^ not unknown. If the option holder should die before having exercised the option, it should pass with the land to his heir or devisee.* § 112. Options— devolution of rights of the other party. Where the owner of land, subject to an option to buy, dies before the holder of the option has exercised it, it would seem clear that since the owner at the time of his death had no right to the purchase money, no such right can go to his executor; what the owner does have at death is realty which. is subject to being' changed into personalty by the act of the option holder ; this right should therefore pass to the heir. Hence, if the option is exercised after the owner's death, his heir and not his executor should be entitled to the purchase money. Where in a case of a contract for sale^nd pur- chase the vendor dies, having lost his right to specific performance by failure to meet a condition precedent and where the purchaser has thereby acquired an- option either to rescind or to waive the condition and insist upon specific performance, the above argument has been applied and the vendor's heir given the purchase money .^i_ It has also been applied to the case where, after giving an option, a specific devise is made of the I* 390, 393, the court said that the administrator could not exercise the option except for the heir. See 26 Harv. Law Rev. 747. 7. See post § 121. The same reasoning ought to apply to any- other fact which makes a contract specifically enforeible by the pur- chaser but not against him. 8. It is well settled that in such a case the executor can not be compelled to pay the purchase money. Green v. Smith (1738) 1 Atk. 572, 1 Ames Bq. Cas. 193; Broome v. Monck (1805) 10 Ves. 597, 612. 9. Watts V. Kellar (1893) 56 Fed 1. 1. Thomas v. Howell (1880) L. R. 34 Ch. Div. 166; 1 Ames Eq. Cas. 196. 148 SPECIFIC PEBPORMANCE OF CONTBAGT. [Chap, il property, the devisee being given the purchase money upon the option being exercised after the death of the testator.^ » Where, however, the case has been one of an ex- press option and the question has arisen between the executor on the one hand and the general devisee* or heir on the other, the weight of authority is that the purchase money shall go to the executor. In Townley V. Bedwell* the decedent had leased certain premises to one Townley for 33 years with a proviso that if Townley, his executor, administrator, or assigns should desire to purchase the premises within six years, he, his executors, etc., should pay to the decedent, his heirs or assigns $600 for the purchase, etc. Before the expiration of the six years, the lessor had died; after his death Townley exercised the option by ac- ceptance. The court (Lord Eldon) held that the rents and profits of the land from the time of the decedent's death till the time of the exercise of the option should go to the decendent's heir but that the purchase money should ^0 to the decendent's executor. The latter part of the decision seems inconsistent not only with the clear intent of the parties in providing that the purchase money was to be paid to the decedent or his heir or assigns, but also to the former part of the decision giving the rents and profits to the heir till the exercise of the option. Lord Eldon felt bound by an earlier decision* which gave the purchase money to 2. Emuss V. Smith (1848) 2 De G. & Sm. 722; In re Pyle, 1 Ch. 724. 3. While it is possible to draw a distinction between the case of the special devisee on one hand and the general devisee or heir on the other, on the ground that in the former case the testator ha'^ clearly show his intention that the devisee shall have the proceeds, It is not a satisfactory explanation of why the heir or general devisee should not have It. 4. (1808) 14 Ves. 591, 1 Ames Eq. Cas. 199. 5. Lawes v. Bennet (1785) 1 Cox 167 In which the court (Sir Lloyd Kenyon) argued that the acceptance of the option related back to the time of giving the option. ^ 112] SPECIFIC PERFORMANCE OF CONTBACT. 149 the executor rather than to a general devisee. The fault in Lord Eldon's argument lies in failing to dis- tinguish between right and obligation; the decedent was under an obligation to convert the property into money if the option holder so chose; but the decedent had no right to do so and hence it is difficult to see how he could pass any to his executor. The doctrine is not only illogical but works badly because the ultimate ownership of the property or its proceeds as between the vendor's heir or executor may remain unsettled for several years and be dependent upon the (to them) accidental decision of a third party .^ In Re Crofton'^ there was a lease for three lives renewable forever, with an option to purchase at any time ; the option was exercised within four years after the death of the lessor, but it is conceivable that it might have been exercised many years later;^ Where there is a specifically enforcible option to sell and the party against whom it may be exercised dies before it has been exercised, the' right to the pur- chase money, — in case of a later acceptance of the voption, — can be enforced only against the decedent's executor because it is an obligation resting primarily upon the personal estate; and the executor upon pay- ing the purchase money should be entitled to keep the land because at the time of death the decedent had no right to any land, tho he was under an obligation 6. See ante § 20. This tends to create a strong temptation for the heir to attempt to bargain with the option holder not to accept the option and 'for the executor to bargain with him to accept It. 7. (1839) 1 Ir. Eq. 204. 8. For a further criticism of Lawes v. Bennet and Townley v. Bedwell see 27 Harv. Rev. 79, 2a id. 70,. 12 Col. Law Rev. 155. Much of the confusion has been caused by considering equitable conversion as a reason for a decision rather than a mere name for the result of a decision. It may be suggested that if it is not feasible to get rid of the term, we ought at least to distinguish between entire and partial equitable conversion; entire equitable conversion would exist where the contract is specifically enforcible by both parties; partial equitable conversion when the contract is specifically enforcible only by one. 150 SPECIFIC PERFORMANCE OF CONTRACT. [Chap, ii to take it and pay for it if the option should be ac- cepted.' § 113. Rights of purchaser's widow or widower. Where a contract for the sale and purchase of realty is specifically enforcible against the vendor and the purchaser dies, modern statutes ■ give to the widow of the purchaser dower in the premises.^ The widower is usually held entitled without a statute.* Where the purchase money is still unpaid, she, as well as the heir, can insist that the executor pay for the land out of the personal assets. But if the personal estate is insufficient, she may insist upon dower only by contributing^ with the heir her proportional share of the unpaid purchase price.* § 114. Rights of vendor's widow or widower. Where a contract for the sale and purchase of land is specifically enforcible against the vendor and the vendor dies, the widow or widower are by the common law entitled to dower or curtesy just as if no such con- 9. There seem to be no cases on the point. 1. Thompson v. Thompson (1854) 1 Jones (N. C.) 430, 1 Ames Eq. Gas. 201; Bailey v. Duncan (1827) 4 Monroe 256, 13 Col. Law Rev. 550. 2. See post § 311. The reason for this was that while it had been customary to join husbands in any conveyance of a wife's equi- table property interest because of the coverture, it had not been cus- tomary to join the wife in the conveyance of property to which the husband had only a claim in equity. Hence while it would not up- set land titles to give curtesy to the widower it would do so to give dower to the widow. 3. Hart v. Logan (1872) 49 Mo. 47. In Gaboon v. Gooper, (1869) 63 N. G. 386 it was held that the widow had a right of exoneration as against the heirs also; this is not the better view. 4. Where the holder of an option to buy land dies before exercis- ing it, it is believed to be the better view that the heir is entitled to the land upon paying the purchase price. See ante § 111. If the option holder left a widow it would seem that she should be allowed dower in the land upon contributing her share of the price. § 115] SPECIFIC PERFOEMANCE OF CONTBACT. 151 tract had been made; but like the heir the widow or widower may be held as constructive trustee of such common law interest for the purchaser.^ The same reasoning properly applies where the vendor's ex- ecutor actually enforces specific performance ag-ainst the purchaser tho it could have been decreed against the heir and widow or widower of the vendor." Where the purchaser has an option to take specific performance with compensation or sue for damages, — the vendor having so defaulted that he could not have obtained specific performance at the time of his death, — and the purchaser chooses to sue at law for damages rather than for specific performance, the widow or widower (like tjie heir) of the vendor may keep; because the contract having been extinguished there is no one to hold him or her as constructive trustee. Such choice by the purchaser not only enables the widow or widower of the vendor to retain the common law interest received, but it destroys the inchoate right which the purchaser's wife or husband had in the land.^ § 115. Voluntary and involuntary transfers of vendor's rights. Where the contract for the sale and purchase of any kind of property is specifically enforcible by both parties, the vendor holds the property as security for the payment of the debt; hence, if he transfers the 1. Dean's Heirs v. Mitchell's Heirs, 4 J. J. Marshall (Ky.) 451, 1 Ames Bq. Cas. 204. 2. For example, where the vendor has been guilty of laches or where there is a large deficiency in the property to be conveyed. See post i 121. 3. I'h.e purchaser Is thus allowed to destroy the equitable prop- erty interest without the consent of the wife or husband, whereas the spouse would be compelled to assent and join in an alienation of such interest to another in order ',o bind the inchoate marital Interest therein.' This is analogous to the right of the insured in a life Insur- ance policy to destroy the right of the beneficiary by surrendering the policy, though he can not usually substitute a new beneficiary with- out the consent of the one; to be displaced. 152 SPECIFIC PEBFOEMANCE OF CONTBACT. [Chap, ii debt, wMcli is usually evidenced by a note or bond, the transferee of the debt is entitled to the security.^ This is merely a special application of the general rule applying to all securities. The basis for the rule is that the transferee is the one best entitled to it; the transferor cannot .enforce the security after having transferred the debt and the debtor is not entitled to the security until he pays the debt; hence, a court of equity, will declare the transferor of the debt a con- structive trustee of the security for the benefit of the transferee.^ Wherever the debt is so evidenced by a note' or bond that it is by statute made salable at common law execution, it would seem that the same^principles should apply to such an involuntary transfer as applies to a voluntary transfer.' .On the other hand, a transfer voluntary or involun- tary of the property, i. e. the security, will not carry along with it the debt ;* however, in case of a voluntary transfer, circumstances may show that it was in- tended that the debt should pass and that a formal assignment was omitted by mistake; in such a case the transferee of the property is entitled to the debt" unless of course it has been transferred to a bona fide pur- chaser in which case his equity is cut off. Where the vendor has wrongfully sold the property to a bona fide purchaser, so that the purchaser's equitable property right is thus cut off and destroyed, the purchaser may of course still sue at law for the 1. Graham v. McCampbell (1838) Meigs (Tenn.) 52, 1 Ames Bq. Cas. 205. This is true even though he did not know of the security at the time of the transfer of the debt. 2. This result is usually summed up by saying that the" security is incident to the debt. The .purchaser may, of course, safely pay to the vendor until the former has notice of the latter's assignment un- less the purchaser gave a note or bond for the purchase money. Meyer V. Hinman (1855) 13 N. Y. 180. 3. See post § 456. 4. Blackmer v. Phillips (1872) 67 N. C. 340, 1 Ames Eq. Cas. 2ia 5. See post § 456. § 115]~^ SPECIFIC PEEFOEMANCE OF CONTRACT. 153 breach of contract. If the purchaser sues for specific performance knowing that his equitable property right has been cut off and that it is now impossible to get such equitable relief, his bill will be dismissed;* but if he filed his bill without such knowledge he is properly in an equity court and he will not be compelled to dis- continue and sue at law but the equity court will award common law relief. Even if the transfer by the vendor is to one not a bona fide purchaser, so that the pur- chaser's equity is not destroyed, he has his option to affirm the sale and demand the purchase money if he has paid — or the profit if he has not paid.'' At common law the land is liable for the debts of the vendor; but since in equity the vendor is merely a fiduciary of the land from the moment of the contract, the purchaser may get an injunction to prevent the creditors of the vendor — since they are not bona fide purchasers^ — from attaching or levying execution on the land.» "Where the purchase money note or notes recite that they are given for purchase money, this is notice to any transferee of the notes of the purchaser's equitable claim to get specific performance, so th^t if good title to the land cannot be made, the transferee cannot enforce the notes." 6. If the vendor sold at a profit and the purchaser in his biU asks either for specific performance or for the amount of such profit In case specific performance can not be had, it would seem that he ought to be entitled to the latter relief even though he knew he could not get specific performance. If the property right were a common law property right the proper remedy would be in quasi contract for the unjust enrichment; but since the property right is exclusively equi- table a suit based upon the unjust enrichment arising from a sale of the right would necessarily be in equity, based upon the doctrine of constructive trust. 7. Taylor v. Kelly (1857) 3 Jones Eq. (N..C.) 240, 1 Ames Eq. Cas. 215. 8. Pilley & Hopkins v. Duncan (1871) 1 Neb. 134, 137. 9. Hampson v. EdeMn (1807) 2 Harris and J. (Md.) 62. The purpose of an injunction here is to prevent a transfer to a bona fide purchaser or a clouding of the title. 10. Howard v. Kimball (1871) 65 N. C. 175, 1 Ames Eq. Cas. 242. 154 SPECIFIC PEEFOBMANCE OP CONTRACT. [Chap. 11 § 116. Voluntary and involuntary transfer of purchaser's right. As already explained,^ both the contract right and the equitable property right of the purchaser are freely alienable. If an attempt were made to transfer inter vivos the rights to different persons, the equitable property right would probably take precedence over and suspend the enforcement of the contract right, just as in case of the purchaser's death the equitable property ^ right of the heir takes precedence over and suspends the enforcement of the contract right of the executor. Neither right, however, is subject to common law execution apart from statute. Both rights are in- tangible and therefore not salable by the sheriff; furthermore the property right, being merely equitable, was not recognized in common law courts. The creditor's remedy is by creditor's bill for equitable execution^ whereby the creditor — if he can slfow that he cannot get satisfaction by common law execution — may have the debtor's intangible property, legal or equitable, applied tp the payment of his debts. In many juris- dictions statutes have been passed which allow the purchaser's interest to be sold at common law execution by the sheriff.* As already pointed out,* the holder of an unexer- cised option has just as much right to the land as he has after he exercises it by acceptance; and if he becomes bankrupt before exercising it the right to the option passes to his assignees in bankruptcy^ who may either accept it or sell it for the benefit of the creditors. And apart from bankruptcy it ought to be similarly 1. See ante §§ 82, 83. 2. See post % 455. 3. Block V. Morrison (1892) 112 Mo. 343, 20 S. W. 340, 1 Ames Eq. Cas. 214 note. 4. See ante § 111. 5. Buckland v. PapUlon (1866) L. R. 1 Eq. 477; Morgan v. Rhodes (1834) 1 M. & K. 435. § 117] SPECIFIC PEEFOBMANCE OF CONTEACT. 155 subject to being reached by his creditors by a creditor's bill." . § 117. Liability of vendor or purchaser for waste.^ Where, after the making of a contract for the sale and purchase of realty, the vendor, being in possession, commits waste, the purchaser is entitled to the same preventive and compensatory "remedies against the vendor as if legal title had already passed;^ except of course that the purchaser must, in the absence of statute, sue in equity and not at common law because it is an injury to his property right and not to his contract right and the property right is not recognized in a common law court.' Where after the contract is made but before con- veyance the purchaser has been placed in possession of the land, his position is analogous to that of a mort- gagor in possession; hence, if the purchaser is about to commit such waste as would impair the security of the vendor, the latter may get an injunction.* The jurisdiction of equity here is based upon the damages at law being conjectural just as they are where a con- 6. In Provident Co. v. Mills (1899) 91 Fed. 435 the court said that he had no such interest as could be reached by creditoi's but it was put on the ground that equity -would not ordinarily give specific performance to the option holder because of the lack of mutuality of obligation. See post § 173. 1. For the general discussion on Waste see post §§ 183-190. 2. Clarke v. Ramuz (1891) L. R. 2 Q. B. 456, 1 Ames Eq. Cas. 222. Since this English case was decided after the Judicature Act, the plaintiff's equitable property right was entitled to recognition in all parts of the High Court of Justice. 3. Ordinarily a vendor in possession is not liable to the purchaser for mere permissive waste such as the ordinary wear and decay. Hellreigel v. Manning (1884) 97 N. Y. 56. But if the vendor should fail to relet the premises to tenants pending the settlement of a dispute as to the title, so that the buildings are allowed to go to ruin and the land to go uncultivated, he is accountable for the loss oc- casioned thereby, phillips v. Sylvester (1872) L. R. 8 Ch. App. 173. 4. Crockford v. Alexander (1808) 15 Ves. 138, 1 Ames Eq. Cas. 221. 156 SPECIFIC PBEFORMANCE OF CONTBACT. [Chap, ii tract is made to give security.^ After the purchase money has been fully paid of course there is no right to an injunction. § 118. Benefit of accruing profit and risk of accidental loss. ' Since the purchaser has an equitable property right from the moment of making a contract which is specifically enforcible against the vendor,^ he is in a position to avail himself of any increase in the value of the property by enforcing specific performance.^ Where the contract is specifically enforcible against the purchaser^ and the property has depreciated in value because of some accidental* loss, upon which party — in absence of express stipulation — shall the loss fall? There are at least five conceivable answers to this question. (1) Equity might have held that the risk should remain upon the vendor until the conveyance of the legal title, so that if the depreciation were small the purchaser could be forced to perform but would be 5. See ante § 51. 1. See ante § 83. Whether or not it is specifically enforcible by the purchaser against the vendor is here of no importance. 2. Hence one who ' has a specifically enforcible contract for shares of stock is entitled to dividends declared upon the stock after the making of the contract but before transfer. Black v. Homersham. (1878) L. R. 4 Bxch. D. 24, 1 Ames Bq. Gas. 239. Conceivably dividends might have been treated like rents and profits of land instead as _ increase in value. 3. If, for any reason, the contract is not specifically enforcible against the purchaser the loss must of course be borne by the vendor. Thompson v. Gould (1838) 20 Pick 134; Gorsch v. Niagara Fire Ins. Co. (1910) 123 N. Y. Sup.. 877. The criticism of the case in 10 Col. Law Rev. 673 seems unsound. Whether or not it is specifically en- forcible by the purchaser against the vendor is here of no importance. 4. That Is, loss for which neither the purchaser nor the vendor is in any way to blame. Where the one in possession is responsibly for a loss it is waste. See ante § 117. ^ 118] SPECIFIC PEEFORMANCE OF CONTEACT. 157 entitled, to compensation® therefor, and if large the purchaser could not be compelled to perform but might elect® to insist upon specific performance with com- pensation. This is apparently the rule in a minority'' , of jurisdictions in this country and has the merit of coinciding with the present rule at common law.' Very little can be urged against such a view; for while it was necessary for the purchaser's adequate protection® to give him an equitable property right from the moment he had a specifically enforcible contract, it is not necessary for the vendor's protection that he be able to throw the risk of loss upon the purchaser from the moment he has a contract specifically enforcible against the latter, because the vendor protects himself against most of such losses by insurance and usuUly does have insurance at the time of making the contract and expects to continue it till conveyance. (2) Equity might have held that the risk should pass to the purchaser on the day fixed for performance if on that day the vendor is able to perform ; Professor Langdell argued strongly for this view.^" (3) The risk might have been held to pass to the purchaser at the moment the vendor puts him in de- fault by a proper offer of performance." This would 5. Just as in cases where there was at the time of contract a slight deficiency In the res; see post § 121. 6. See post § 122. 7. Gold V. Murch (1879) 70 Me. 288; Wells v. Calnan (1871) 107 Mass. 514. 8. See 12 Col. Law Rev. 257 arguing that the rule should be the same in equity as at law. 9. See ante i 83. 10. i Harv. Law Rev. 374, 375: "The reason for this Is that when performance of a contract is enforced by equity, the perform- ance is held to relate back to the time fixed by the contract for Jts performance." Professor Langdell did not in this article say what he would do in the case where no time was set for performance. 11. In determining some other questions the time of putting the purchaser in default has been held the decisive factor. In Carrodus v. Sharp (1855) 20 Beav. 56, where the subject matter of sale was the lease of a mill which bound the lessee to keep in repair, it was held 158 SPECIFIC PBRFOBMANCB OF CONTRACT. [Chap, ii have the advantage over Professor Langdell's view in that it could be applied to cases where no time was set for performance. (4) Equity might have held that the risk passed to the purchaser from the moment when he is put into possession. This is ' the view urged by Professor Williston." (5) The rule in England^* and the prevailing rule in this country" throws the risk upon the purchaser from the moment the contract is made. As already pointed out supra this was not a necessary rule but it was a natural rule when we consider the strong in- clination of courts to make similar the rules applying to vendor and purchaser.^ ^ It is of course open to the that the burden of complying with the covenant to repair did not pass till the vendor made out a good title. And in Ligget v. Metro- politan Ry. Ce. (1870) L. R. 5 Ch. App. 716 the court held that al- though ordinarily the purchaser was entitled to the rents and profits from the time set for performance yet if he defaulted in the payment of the purchase money he was not so entitled. 12. See 9 Harv. Law Rev. Ill-\l25. The arguments are briefly as follows: (1) That it is better to allow the loss to lie where it fall [at law?], because it saves litigation. (2) It Is wiser to have the party in possession of property care for it at his own peril rather than at the peril of another. (3) The purchaser is not likely to insure before taking possession. In answer to (3) it may be suggested that if the purchaser does not provide for insurance before taking possession he is not likely to do so at that time or until he gets title. Professor Willlston's suggested rule has the merit of being analogous to the rule regarding the risk of loss in conditional sales of chattels. 13. The leading case is Paine v. Meller (1801) 6 Ves. 349, 1 Ames Bq. Cas. 227, though it has also been cited by Professor Langdell in support of his contention. 1 Harv. Law Rev. 375 note 1. See also White V. Nutt (1702) 1 Peere Wms. 61, 1 Ames Eq. Cas. 226 where a purchaser of a lease for two lives was forced to pay the full pur- chase price though one of the lives had ceased before the time set for conveyance. 14. See Osborn v. Nicholson (1871) 13 Wall 654, 660; Blew v. McClelland (1860) 29 Mo. 304, 306, 9 Harv. Law Rev. 112- note 3; 2 111. Law Rev. 274. See Professor Keener's article in 1 Col. Law Rev. 1-10 in favor of the rule; also 23 Harv. Law Rev. 476. 15. That is to say, since the ' purchaser is given an equitable property right from the moment of contract it is only fair that §. 119] SPECIFIC PEBFOBMANCE OF CONTRACT. 159 parties to stipulate that the risk is to remain on the vendor until a later time and an express promise on the part of the vendor to deliver over the premises in the same condition as they are at the making of the contract amounts to a stipulation that the risk remains on the vendor till conveyance of the legal title.^® § 119. Risk of loss— criticism of the prevailing rule. The rule of Paine v. Meller has been vigorously assailed,^ and it must he admitted that the minority view is to be preferred as coinciding more nearly with the usual intention and understanding of the parties. On the other hand, the prevailing rule or any other of the rules which have been suggested^ could be made to operate quite satisfactorily if there were adequate means of giving information of the rule to purchasers so that they could protect themselves,* or if insurance companies could be induced to provide in their policies that a purchaser would be entitled to the insurance money in case of loss* befbre conveyance of the legal from the same moment he should hear the risk of loss. Or to put it a little differently, the conversion should operate completely on hoth sides. 16. Cook V. Fisher (1813) 3 Bihh. (Ky.) 51; Goldman v. Rosen- berg (1889) 116 N. Y. 78, 22 N. E. 259. But merely an express prom- ise to give possession at a future date is ineffectual. Brewer v. Her- bert (1869) 30 Md. 301. 1. See 9 Harv. Law Rev. 117-125; 12 Col. Law Rev. 237; 13 id. 386. 2. With the exception of Professor Langdell's suggested rule which apparently makes no provision for cases where no time is set for performance. 3. By the rules of most fire insurance companies at the present time the purchaser can usually entitle himself to the protection of the vendor's insurance by notifying the company of the contract — un- less the purchaser is a person who is objectionable because of the moral hazard. 4. The objection to such a provision is of course that the in- surance company should have a chance to choose whom they wilt insure, because of the moral hazard sometimes Involved. Where, 160 SPECIFIC PEKFOEMANCE OF CONTEACT. [Chap, ii title." In the absence of any such provision or any arrangement between the insurance company and the purchaser, the latter is not entitled to any of the in- surance moneys because the contract of insurance is one of personal indemnity''' and protects only the vendor.* Similarly one who after a loss by fire exercises an option by acceptance cannot successfully claim the insurance money already collected from the insurance company.® * however, the premises remain In the possession of the vendor the moral hazard of the purchaser becomes of slight importance; and the provision might be limited — where the purchaser is put into the pos- session — to purchasers who had never been refused insurance because of the moral hazard. 5. Of course the objection to the prevailing rule still remains where the vendor has no insurance on his buildings or where the loss is due to a cause which is not insured against. In Cass v. Ruddle (1692) 2 Vernon 280 the loss was due to an earthquate, which is a casualty not ordinarily insured against. 6. Rayner v. Preston (1881) L. R. 18, Ch. D. 1, 1 Ames Eq. Gas. 229. 7. TTie vendor is entitled to a decree for the full amount of the purchase price and if he receives it he can collect nothing from the insurance company; and if he has already collected it he must make restitution to the company. Castellain v. Preston (1883), L. R. 11, Q. B. D. 380. If the purchaser is financially irresponsible the insur- ance company will of course be liable to the vendor. If the purchaser is solvent but the vendor prefers to collect fr6m the insurance company the latter can probably insist upon being subrogated to the vendor's claim against the purchaser to specific performance, which would re- sult in compelling the vendor to convey. 8. Under the modern "change of interest" clause in fire insurance policies the entering into a contract which is specifically enforcible against the purchaser is held to avoid the policy unless notice thereof is given to the company; if notice is given the policy then protects the vendor's interest In the purchase money. Were it not for this clause a purchaser might conceivably be held entitled to the insurance money where he has paid the vendor in full so that the latter has become practically a trustee of the land with no substantial Interest left to protect. See Gorsch y. Niagara Ins. Co. (1910) 123 N. Y. Supp. 877. 9. Edwards v. West (1876) 7 Ch. Div. 858. § 120] SPECIFIC PERFORMANCE OF CONTRACT. 161 F. Partial Performance With Compensation. § 120. Effect of breach by plaintiff in action at law. Eoughly speaking there have been three stages' in the development of the common law rule as to the effect of' a breach by the plaintiff in an action for breach of contract. When bilateral contracts were first recognized, each promise was considered to be entirely independent of the other promise unless there was a condition, either express or implied in fact. That is, the mere fact that the plaintiff had broken his own promise even by utter failure to perform, was no bar to his recovery against the defendant for a breach of the latter 's part of the contract; the defendant's sole remedy was to sue the plaintiff in another action. By qj process of interpretation of the parties' intentions which frequently amounted to a determination of what the parties would probably have provided for if the point had been brought to their attention at the time of making the contract — the courts imposed upon one or both parties a condition either that he must perform or offer to perform his own promise before being able to sue the other party for a breach. Logically this should have been regarded as an excuse rather than as a condition ; but since the early law gave no excuse, the courts would have' found it difScult to. overrule the old cases. By reading in implied conditions they ac- complished the same* result indirectly. Where the performance by one party took some time — such as the rendering of personal service — while the performance by the other party required only a slight fraction of time — such as the payment of money, the common law imposed a condition that the former could not sue for the price of his performance till he had performed; such conditions are called conditions precedent implied in law. Where the performance by each party may be 1. See an article by Professor Costigan on Conditions in Contracts in 7 Col. Law Rev. 151. See also 24 Harv. Law Rev. 424. Eq.— 11 162 , SPECIFIC PERFOKMANCE OF CONTRACT. [Chap, ii performed in a fraction of time — for example, the conveyance of property on the one hand and the pay- ment of money on the other, — the common law imposed conditions upon both parties that if either failed to tender performance he would be unable to recover from the other. . Such conditions, requiring only tender of performance, are called mutual concurrent conditions implied in law. During the second stage the require- ment of performance or of tender was strictly enforced ; the slightest breach, especially if in limine, was fatal. The third stage, which was brought about largely thro the influence of equitable principles upon the common law courts, was a modification of the strict requirement of performance; it is now insisted only that the performance or tender shall be substantially complete ; or to state it in a different form, merely ^ slight breach by the plaintiff will be no bar to his re- covery. Whether there has been substantial per- formance in the particular case will depend upon aU the circumstances of the case, including especially the nature of the subject matter arid the time of breach — whether in limine or after part performance.* Perhaps it should be pointed out here that in this last stage of the common law it is not open to the criti,cism that it involves a making over of the contract by the court, because the common law started with the proposition that no breach by a plaintiff was a bar and the defendant cannot complain because now the law requires only substantial and not full performance. § 121. Effect of breach by vendor upon his suit for specific performance. The question whether a vendor whose tendered performance lacked in quantity or quality what the 2. The courts are more liberal to a plaintiff after he has partly performed because the denal of relief is more likely to re- sult In a hardship to the plaintiff than where the breach la in limine. § 121] SPECIFIC PERFORMAKGE OF CONTEAOT. 163 / contract called for was entitled to compel the purchaser to accept what he could convey with compensation for the deficiency arose apparently at the time when the common law had not developed beyond the second stage. The question arose, too, at a time when English chancellors felt called upon to exercise a more pater- nalistic jurisdiction than equity courts pow exercise. The result was that vendors were allowed specific performance in cases where not only could there have been no recovery at law, but where specific performance amounted to making a new contract for the parties which probably never would have .been made at all if they had known the facts. In Dyer v. Hargrave,^ the premises in question were sold at auction, the house described by the auctioneer as being in good repair and the farm as consisting of fifty acres, part arable and part marsh, in a high state of cultivation and all within a ring fence. The defense set up was that the house was in bad repair and the ground in a poor state of cultivation and that it was not enclosed within a ring fence but that it was inter^ersed with other land. The court compelled the purchaser to take the land and pay the purchase price with compensation only for the defects in the soil and house; since the purchaser had lived in the neighborhood the lack of a ring fence was considered so obvious that the purchaser could not have believed the statement that there- was one; therefore he was allowed no compensation for it. It is at least doubtful whether a court of equity would give specific performance in such a case at the 1. (1805) 10 Ves. 505, 1 Ames Eq. Gas. 245. See also Rowland V. Norris (1784) 1 Cox Ch. 58 where the purchaser was com- pelled to accept an estate subject to a tithe Instead of helng tithe free; King v. Bardshaw (1822) 6 Johnson Ch. 38, building spot two feet narrower than represented. The most extreme case Is that related by Lord Eldon in Drewe v. Hanson (1802) 6 Ves. 675; the contract was for a house and a wharf, the object of th*. purchaser being to carry on his business at the wharf; the purcha&er was com- pelled to take the house alone. 164 SPECIFIC PEBFOKMANCE OP CONTEACT. [Chap, li present time.^ Now that the common law rule is more liberal toward a plaintiff than formerly, and there is a tendency on the part of equity courts to restrict the doctrine of partial performance with compensation, the position of each of the two courts is approaching that of the other and it is to be hoped that they will ulti- mately be the same. At the present time, however, though the term substantial performance is used in both common law and equity cases, it is likely that it would be administered more liberally to the vendor by an equity court than by a common law court. Where the deficiency in the plaintiff's performance takes the form of an incumbrance on the res, the breach is purely formal if the incumbrance is due and may be paid off out of the purchase money f but if it is not due and the incumbrancer is unwilling to receive the money and remove the incumbrance, this may constitute such a defect as will prevent specific performance,* espe- cially if the amount of the incumbrance is relatively large. Where, however, the purchaser bought in an outstanding tax title and sef it up in defense to a suit for specific performance it was held that he could not thus take advantage of such sharp practice.' § 122. Suit by purchaser for specific performance with compensation. Where a vendor is unable to render complete per- 2. The vendor failed 'in the following cases: Roffey v. Shallerosa (1819) 4 Madd. 227, one seventh of the estate instead of two sevenths bargained for; Drewe v. Corp (1804) 9 Ves. 368, leasehold instead of freehold; Peers v. Lambert (1844) 7 Beav. 546, title failed as to a jetty which was essential to the enjoyment of the property,; Perkins v. Ede (1852) 16 Beav. 193, 1 Ames Bq. Cas. 247, title failed as to a long strip of land between the house and the road. 3. See Halsey v. Grant (1806) 13 Ves. 73. 4. O'Kane v. Kiser (1865) 25 Ind. 168; Hinckley v. Smith (1872) 51 N. Y. 21. 5. Curran v. Banks (1900) 123 Mich 594, 82 N. W. 247, 14 Harv. Law Rev. 168. § 122] SPECIFIC PERFORMAirCE OF CONTKACT. 165 formance according to the contract, it may be that the purchaser will prefer to take what the vendor can convey to him with compensation for the deficiency rather than to sue at common law for damages. In many cases the purchaser has been given such relief and the doctrine is not limited to cases where the ven- dor can give substantial performance.^ In fact there are decisions giving specific performance with com- pensation when the vendor had only a life estate^ in the property and also where he had only- one-fifth^ of the property he had contracted to convey. In so far as the purchaser is given specific per- formance with compensation for more than slight defects, it is difficult to find a satisfactory basis for the doctrine. It is usually said* that the vendor is estopped to set up that he can not fully comply with the contract. If it be urged against this explanation that the applica- tion of the genuine doctrine of estoppel places the party in whose favor it operates in the same position as he would have been if the representation made by the other party had been true, it may be answered that al- though equity cannot do this for the purchaser, it, does so as nearly as it can and it is not for the vendor to complain that equity can do no more for the purchaser. However, it may be further urged against the estoppel 1. The purchaser may therefore be In a position where he can enforce specific performance with compensation but where the vendor could not enforce specific performance against him. 2. Cleaton v. Gower (1674) Finch 164, 1 Ames Eq. Cas. 248. 3. Bogan v. Daughdrill (1874) 51 Ala. 312, 1 Ames Eq. Cas 251 note. Some other cases allowing recovery by the purchaser are Hill v. Buckley (1811) 17 Ves. 394, (a deficiency of 26 acres out of 217) ; Royal Bristol Bldg. Soc'y v. Bomash (1887) 35 Ch. D. 390, (compensation 'allowed for not getting possession at once); Jones v. Evans (1848) 17 Law J. Ch. 409, (vendor has only 2/21 of the property instead of ^ of the property). On the other hand, in Wheatly v. Slade (1830) 4 Sim. 126, specific performance with compensation was denied against the vendor who could convey only 9/16. See also 8 Col. Law Rev. 309. 4. See Barnes v. Wood (1869) L. R. 8 Eq. 424, 1 Ames Eq. Cas. 249. 166 SPECIFIC PERFORMANCE OP CONTRACT. [Chap, ii explanation that relief has sometimes been given where there was no misrepresentation by the vendor.® Where the purchaser knew of the deficiency at the time of the contract, he can not get compensation therefor* unless the vendor agreed to remove the de- fect.^ § 123. Same— criticism of the doctrine. Even assuming that the basis of the doctrine is estoppel, this does not meet the objection that except in cases of slight deficiencies equity is violating — often seriously — the freedom of contract by enforcing specifically a contract which the parties ne'^er made;^ e. g., in the cases above mentioned, where in one case the vendor had a life estate and in the other only .one-fifth of the res and where he would receive only a fraction of the purchase money, can not the vendor very well say that he would not have made that sort of contract at all? The only justification in remaking the contract is that usually there would be much greater hardship^ on the purchaser if he is left to his remedy at law 5. See 8 Col. Law Rev. 310; in Bass & Carter v. Gilllland (1843) 5 Ala. 761, the vendor had after the contract with the purchaser, conveyed y^ of the property to a third party; it was held that the purchaser could elect to take the remaining third. See also Brown v. Ward (1899) 110 la. 123, 81 N. W. 247. 6. Joyner v. Crisp (1912) 158 N. C. 199, 73 S. E. 1004; Castle V. ^Vilkinson (1870) L. R. 3 Ch. App. 534, 1 Ames Bq. Cas. 252. 7. See Wilson v. Williams (1857) 3 Jur. N. S. 810. 1. It is sometimes said that if the vendor intended to sell all, he intended to sell any part which he should happen to have, but this is not necessarily true. It may be that the vendor needed to raise a particular sum of money and a less sum is of no ad- vantage to him. It would seem that whether the vendor did in- tend to sell whatever he had should be taken into consideration In each case by the court in exercising its discretion. See 8 Col. Law Rev. 309. 2. This is especially true in jurisdiction where in an action at law the purchaser is not allowed damages for the loss of his bargain but merely for the expenses incurred. Bain> v. PotherglU ^ 1^4] SPECIFIC PfiRFORMAKCE OF CONTRACT. 167 than there is on the vendor in compelliiig him to convey what he has; but if in the particular case the balance of hardship is the other way it would seem that com- pensation should be refused. § 124. Limitation of the doctrine. Where the defect is of such a nature that the amount of compensation for it can not be accurately estimated, as e. g. a dower interest, the better view is that covipensation should be refused ;Mf the purchaser is not willing to pay the full purchase price for what the ven- dor is able to convey, he should be left to his common law remedy of damages. In some jurisdictions, however, compensation is given by present abatement figured ac- cordingly to the mortality tables.^ In others the pur- chaser is protected by being allowed to retain or have (1874) L. R. 7 H. L. 158. 25 Harv. Law Rev. 731. See also 3 Sedgwick, Damages, 9th ed. §§ 1009-1011. 1. RIesz's Appeal (1873) 73 Pa. 485, 1 Ames Bq. Cas. 254. Ebert v. Arehds (1901) 190 111. 221. Apparently the early English practice was to coippel the husband to coerce the wife Into re- leasing her dower right; Hall v. Hardy (1733) 3 Peere Wms. 187. But this is no longer followed in England. Martin v. Mitchell (1820) 2 Jac. & W 413. See 10 Col. Law Rev. 573, 28 Harv. Law Rev. 732. 2. This is computed by determining the present value of an annuity for the life of the wife equivalent to the interest in the proportion — usually one third — to which her contingent right of dower attaches and deducting therefrom the value of a similar annuity for the joint lives of herself and her husband. See Jackson v. Edwards (1839) 7 Paige (N. Y.) 386, 408. For a criticism of this see Sternberger v. McGovern (1874) 56 N. Y. 12, 19,: "To require the defendant to convey. . . . and pay such compensation as the court should determine its market value was Impaired by the outstanding right of dower, or such sum as the real value of such right ascertained by the tables of mortality would be unjust and oppressive. . . . These tables when ap- plied to a great number of cases will, in the aggregate, show correct results: hence they may be used by life^ insurance companies with safety In fixing their rates and are resorted to by 168 SPECIFIC PEKFORMANOE OP CONTKACT. [Ch^p. ii set /aside enough of the purchase money for an in- demnity.^ There is another objection in a few juris- dictions to giving compensation in the dower cases, viz., that at' common law the vendor is not liable for the loss of the bargain and hence to give specific per- formance with compensation would be placing heavy pressure* on the wife to get hor to join with her hus- band and release her dower right.^ Another case where compensation would be re- . fused because difficult to estimate is that where land is subject to restrictive covenants.* courts when the probable duration of life must be determined in adjusting the right of the parties. But to determine the value of the inchoate right of dower in this way for the purpose of enforcing specific performance. . . . with compensation, would bee un- sustained by precedents or sound principle." C4 ante §§ 49-53. where specific performanct is given because damages are conjectural. 3. Wannamaker v. Brown (1907) 77 S. C. 64, 57 S. E. 665, 25 Harv. Law. Rev. ■ 732. 4. If the property involved is a homestead no decree whatever will be given against the husband because a deed by the husbana alone is wholly invalid and equity will not give a JEutile decree. See Phillips v. Stauch (1870) 20 Mich. 369. 5. See 3 Sedgwick, Damages, 9th Ed. § 1009-1011. See also Young V. Paul (1855) 2 Stockton (N. J.) 401 where the court thought that a decree of specific performance with compensation would be no greater compulsion than a judgment at law for damages. Where there will be no coercion on the wife that objection to giving compensation fails, though of course the objection as to the conjectural value of the defect still applies. In Williams v. Wessels (1915) 94 Kan. 71, 145 Pac. 856 the vendor made a contract to convey to the plaintiff in which the wife did not join. The wife later joined with him in the conveyance to the defendant who had notice of the plaintiff's contract. The defendant was given his option of conveying the whole or of conveying such interest as the plaintiff could have, obtained from the vendor, with abatement of the purchase price. Since it was within the power of the defendant to convey the whole even the objection as to the conjectural value of the dOwer right which he- may retain has little weight. See 28 Harv. Law Rev. 717. 6. Rudd V. Lascelles (1900) 1 Ch. 815, 1 Ames Eq. Cas. 255, Lesley v. Morris (1873) 9 Phila. 110. § 125] SPECIFIC PEBFORMANCE OP CONTBACT. 169 Gr. DsiFENSES. I. Lack or inadequacy of consideration. § 125. Consideration in uses and trusts.^ Before the Statute of Uses, it was impossible to raise or create a use in land gratuitously, i. e., unless the land were conveyed upon a use or unless consider- ation were paid to the owner of the land for a use. After the Statute of Uses when uses were important only in the law of conveyancing, the rule was relaxed so that the owner of land might gratuitously create a use therein for the benefit of a relative by blood or marriage; the use being created, the Statute of Uses at once passed the legal title. This conveyance was called a covenant to stand seized. Down to the decision in Ex parte Pye,^ the law of trusts was like the old law of uses; in that case, however, it was decided that a declaration of trust in favor of another was not rendered invalid merely because it was gratuitous. Outside of these cases in the law of uses and trusts, the genuine volunteer — one •^lao pays nothing in any way for what he receives* — is denied equitable relief. § 126. Consideration necessary in specific performance. At common law before, as well as -after, the doc- trine of consideration arose, promises under seal were binding though the promisee was a volunteer; a covenant to convey land, therefore, was enforcible at common law by an action for damages though there was no consideration for the making of the covenant 1. gee post §§ 266, 267, for a fuller discussion; See also 21.Harv. Law Rev. 261-274, Origin of tTses and Trusts by Professor James Barr Ames. 2. (1809) 18 Ves. 140; see 9 Harv. Law Rev. 213. 3. A donee of land who merely goes into possession without mak- ing improvements is not entitled to specific performance; see post 5 138. As to reformation bet-neen volunteers, see post §§ 343, 344. 170 SPECIFIC PERFOEMANOB OF CONTRACT. [Chap, li or for the conveyance.^ But equity refuses in such a case to decree specific performance,^ though, as we have just seen, a declaration of trust for the land would have been enforced. In" Ferry v. Stephens,* the vendor contracted to sell certain land to the plaintiff for $1100 with the understanding that the purchase money was not to be paid and a receipt in full for the purchase price was indorsed upon the contract by the vendor. The vendor died, having devised the premises. It was held that since the written receipt was conclusive the agreement was not voluntary and hence that the plaintiff could get specific performance without paying anything. In jurisdictions which allow a receipt to be contradicted,* the plaintiff would not have been able to get specific performance without paying. § 127. Same — options— meritorious consideration. It seems to be well settled that an option to buy land is specifically enforcible although the validity and irrevocability of the option depends upon a seal alone without consideration.^ The reason for this is 1. See 9 Harv. Law "Rev. 49-59, Specialty Contracts and Equi- table Defenses, by 'Professor Ames. 2. Jefferys v. JefCerys (1841) Craig & Phillips 139, 1 Ames Eq. Cas. 261; Tomlinson v. York (1858) 20 Texas 694. The burden of alleging and proving that there was consideration for a sealed con- tract should be upon a plaintiff who seeks specific performance. But courts are so accustomed to repeat the now discredited explanation of the validity of sealed instruments, that a seal Imports considera- tion, that they are likely to throw the burden on the defendant to show that there was no consideration. Borel v. Mead (1884) 3 N. Mex. 84, 2 Pac. 222, 1 Ames Eq. Cas. 434. See Mills v. Larrance (1900) 186 m. 635, 58 N. E. 219, 14 Harv. Law. Rev. 387. 3. (1876) 66 N. Y. 321, 1 Ames Eq. Cas. ^62. 4. See Wigmore, Evidence §§ 2532, 2518. 1. Mansfield v. Hodgden (1888) 147 Mass. 304, 17 N. E. 544; O'Brien v. Boland (1896) 166, Mass. 481, 44 N. E. 602, 1 Ames Eq, Cas. 433. § 128] SPECIFIC PEKFOEMANCE OF CONTRACT. 171 that although the plaintiff is a volunteer so far as the option itself is concerned he must pay the purchase price in order to get the land and therefore in sub- stance is not a volunteer. In the United States where it is not customary to provide for one's wife and children hy marriage set- tlements the anomalous doctrine has grown up of con- sidering agreements to make provision for members of one's immediate family as being founded upon a meritorious consideration.^ § 128. Adequacy of consideration. Although equity will not give specific performance of gratuitous covenants, no greater amount of con- sideration is required than is required by common law courts; in other words, the inadequacy of the con- sideration is of itself no defense to specific performance of the contract.^ Where, however, i^is so great as to shock the conscience of the chancellor and thus show fraud,^ or when it is coupled with insufficient evidence of fraud,* or unfair conduct, or coercion,* relief may be denied. It is usually the seller who sets up inadequacy of consideration as a defense to a suit for specific per- formance but occasionally it is the buyer. In Espert V. Wilson,^ the defendant thinking he could sell a lot - - , 2. See post § 267. In Buford's Heirs v. McKee (1833) 31 Ky. I I 107 the court refused to extend the doctrine so as to include a nephew. 1. Burro\i(es v. Lock (1805) 10 Ves. 470, 1 Ames Eq. Cas. 263.' Abbot V. Sunder (1852) 4 De G. & S. 448. See 15 Harv. Law Rev. 741. 2. Lord Bldon in Coles v. Trecothlck (1804) 9 Ves. 234, 246; 5 111. Law Rev. 219 note; 27 Harv. Law Rev. 288. 3. See Woolums v. Horsley (1892) 93 Ky.'582, 20 S. W. 781. Seymour v. Delaney (1824) 3 Cowen 445. 4. Browne v. Coppinger (1854) 4 Ir. Ch. 72 (plaintiff who was in possession as lessee threatened to take exhaustive crops off the land if the lessor would not give him a lease on the lessee's own terms). 5. (1901) 190 111. 629, 60 N. B. 923. 172 SPECIFIC PEBFOBMANCB OF CONTRACT. [Chap, il of land to X provided lie could convey with it an adjoining strip, contracted to buy the strip from the plaintiff who demanded an excessive price, knowing why the defendant wanted it. The defendant then failed to sell to X and contested the plaintiff's suit for specific performance; because, of the excessive price specific performance was refused. II. Title not marketable. § 129. Development of the doctrine requiring market- able title. The older rule required that the vendor should furnish a .good title; the fact that there was some doubt of its being good due to the uncertainty of either the law or the facts was no defense provided the Chancellor himself was convinced that the title was good.^ The modetn view,^ however, is that a doubt- ful title should not be forced upon the purchaser unless the court's decree will cure the defect in it and thus preserve to the purchaser the right and power to alien the property — in which event the title ceases to be doubtful. It is only a comparatively rare case where a court is able to do this; the land must not be outside the jurisdiction, the parties whose claims are involved must be parties to the suit* and the court must be the final court of appeal. Where a court can not thus settle the matter finally it should 1. In Stapylton v. Scott (1809) 16 Ves. 272, 1 Ames Eq. Cas. 266, Lord Eldon said, "The habit of this court formerly was not to refuse the decree of specific performance upon the ground that the title was doubtful. The court, relying on its own opinion in favor of the title would not admit any doubt detracting from the value of that opinion." ■» 2. See the cases collected in 1 Ames Bq. Cas. 267 note; 22 Harv. Rev. 529. 3. See Fleming v. Burnham (1885) 100 N. Y. 1, 2 N. E. 905; Abbot v. James (1889) 111 N. Y. 673, 19 N. E. 434; Hunting v. Damon (1894) 160 Mass. 441, 35 N. B. 1064. / § 129] SPECIFIC PEEFOEMANCE OF dOFTEACT. 173 take into consideration the reasonable doubt of other persons* regarding the title; and if the court decides that the purchaser would have difficulty in marketing the property because of the doubtful title, specific per- formance^ should be refused. Whether the court should take into consideration the improbability of an actual defect being litigated seems to be unsettled;" as is also the ^question whether the presumption of death arising from absence for over seven years is sufficient to make the title marketable where the death is an essential facf It is no objection that the ven- dor's title was acquired by advet-se possession because the title has become an accomplished fact and does not rest upon mere presumption arising from the passing of time.* 4. Pyrke v. Waddlngham (1850) 10 Hare 1, 1 Ames Bq. Cas. 269. The construction of written Instruments frequently raises douttful questions of title. A will making a devise to a widow was passed upon in Giles v. Little (1881) 104 U. S. 291, Little v. Giles (1889) 25 Neb. 313, 41 N. W. 186, Roberts v. Lewis (1893) 153 U. S. 367. The first decision gave the widow only a life estate, the second gave her a fee simple with condition subsequent as to a later marriage and the third a life estate with power to dispose of the fee during widowhood. 5. Apparently law courts have now adopted the equity rule; 22 Harv. Law Rev. 529. Moore v. Williams (1889) 115 N. Y. 586, 22 N. E. 233. 6. In Empire Realty Co. v. Sayre (1905) 107 N. Y. App. Div. 415 the ornamental stone work of the ten story building contracted for projected two inches over the street line. The title was held market- able because of the Improbability of the city's litigating the matter. For a criticism see 6 Col. Law Rev. 56. 7. The better view is that it is not in itself sufficient but It may be enough if corroborated by other facts, such as illness, exposure Lo danger or advanced age. See Cerf v. Diener (1914) 210 N. Y. 156, 104 N. E. 126, 14 Col. Law Rev. 460, 27 Harv. Law Rev. 768, 21 Id. 374, 19 Green Bag 713. On the other hand, the possibility that a widow seventy years of age might have children was considered too re- mote to prevent specific performance, in spite of the well settled rule in property law, in regard to possibility of issue. See 27 Harv. Law Rev. 286. 8. Tewkesbury v. Hsward (1893) 138 Ind. 103, 37 N. E. 355, Bee Moore v. Williams (1889) 115 N. Y. 586, 22 N. E. 233. 174 SPECIFIC PEEFOEMANCE OF CONTEACT. [Chap. 11. 777. statute of Frauds — part performance — fraud. § 130. Statute of Frauds. The fourth section of the English Statute of Frauds^ has been copied either verbatim or substan- tially In nearly all American jurisdictions. It reads as follows: "No action shall be brought (3) to charge any person upon any agreenfent made In con- sideration of marriage; (4) or upon any contract or sale of lands, tenements or hereditaments, or any Interest In or concerning them; (5) or upon any agree- ment that Is not to be performed within the space of one year from the making thereof; (6) unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully author- ized." Although the wording of the statute is similar to that of the Statute of Limitations, viz., "no action shall be brought," it has always been held to apply to equity suits as well as to actions at common law. As already pointed out,^ statutes of limitations are con- strued as not applying to equity suits unless specifically so provided. The phrase "contract or sale" seems now quite awkward; the modern phrasing would be "contract for the sale of." However, the awkward phrasing may have helped bring about a broad Interpretation of the statute so far as the kind of transaction was con- cerned; for the statute has been held to apply to a contract to devise,' to a contract to exchange* and would probably be applied to any contract to acquire an Interest in land in any way whatsoever.'' 1. Stat. 29 Chas II. Chap. Ill, Sec. 4, 8 Statutes at Large 405. 2. See ante § 31. 3. Harder v. Harder (1844) 2 Sandf. Ch. (N. Y.) 17. 4. Smith V. Hatch (1865) 46 N. H. 146^ 1 Ames Eq. Cas. 277. 5. As applying to oral contracts to make mutual wills, see Hale V. Hale (1894) 90 Va. 728, 19 S. E. 739, 25 Harv. Law Rev. 571; <^ 131] SPECIFIC PEHFOKMANCE OF CONTRACT. 175 There are two exceptions to the application of the Statute of Frauds by courts of equity, the limits of which will be discussed in the following sections. § 131. Payment of purchase money. The seventeenth section of the English Statute of Frauds relating to the sale of chattels expressly pro- vided that a memorandum should not be required where there had been earnest or part payment of the pur- chase money or a delivery of the chattel.^ Tho the fourth paragraph under discussion makes no such ex- ception, courts of equity at first apparently refused to enforce the statute where there had been a part per- formance on either i side. Hence, payment Or part payment of the purchase money seems to have been sufficient to take a case out of the statute.^ Whatever may have been the law at that time, however, it is now settled in most jurisdictions that except where the purchase price takes the form of personal services, the full or part payment thereof does not prevent the operation of the statute. In Lord Pengall v. Eoss,* where there was an oral agreement to make a lease for twenty-one years and the lessee had paid $100 in part payment the statute was held applicable and specific performance refused. So, where the oral, con- tract was for an exchange of land and the plaintiff has conveyed his land to the defendant, the court re- fused to compel the defendant to convey his land to the plaintiff.* In Montacute v. MaxwelP the defendant orally agreed with the plaintiff that if the plaintiff - 14 Col. Law Rev. 272. And see Montacute v. Maxwell (1720) 1 Peere Williams 618, 1 Ames Eq. Cas. 274 where tlie agreement was that the plaintiff should, after her marriage, enjoy her property as if sole. ' 1. 29 Car. II c. 3, § 17; Williston, Sales, § 51. 2. Lacon v. Mertius (1743) 3 Atk 1; 4 Col. Law Rev. 294. 3. (1709) 2 Eq. Abridgt, 46, pi. 12, 1 Ames Eq. Cas. 276. 4. Smith V. Hatch (1865) 46 N. H. 146, 1 ^mes Eq. Cas 277. 5. (1720) 1 Peere Williams 618, 1 Ames Eq. Cas. 274. . I 176 SPECIFIC PEEFOBMANCE OF CONTEACT. [Chap, il would marry him she should enjoy her property to her separate use as if sole; after marriage the defendant refusing to allow her to do this, the plaintiff asked for specific performance but it was refused, though the plaintiff had fully performed on her part. It is to be observed in this case that the contract came within two provisions of paragraph four; the one relating to interests in land and the other relating to agree- ments in consideration of marriage. Hence even if the court had held that performance took the case out of the provision of the statute as to interests in land,* it would be difficult to see how any court could logically allow marriage to prevent the operation of the other provision. Such a holding would render the provision nugatory in equity, for until marriage the plaintiff could not ask for specific performance and if marriage took the case out of the statute, there would be no cases to which the provision could apply because a court of equity would not compel marriage; § 132. faking possession by vendee or lessee. Payment in full or in part is now usually held insufficient to take the contract out of the operation of the statute; but in the majority of jurisdictions the mere taking possession under the contract by the ven- dee or lessee is sufficient without more to exempt from the requirement of a memorandum.^ And the rule operates not only in favor of the purchaser or lessee 6. There Is at least one case so holding. In Nowack v. Berger (1896) 133 Mo. 24, 34 S. W. 489, the defendant had made an oral ante-nuptial agreement with his intended wife that, in consideration of their marriage and of his having charge of her infant son, the plain- tiff, during his minority, he would in his will devise to this son and any children of this marriage in equal shares. The marriage was held to be sufficient part performance to render the contract enforcible in equity. See 10 Harv. Law Rev. 60. 1. Butcher v. Stapley (1685) 1 Vernon 363, 1 Ames Bq. Cas. 279; and see the cases collected in note 1. § 133] SPECIFIC PERFOEMANCE OF CONTBACT. 177 but also in favor of the vendor or lessor,* by the ap- plication of the positive rule of mutuality already dis- cussed.* And the rule applies, tho the contract was also within the provision of the statute as to agree- ments in consideration of marriage.* But in order that the taking of possession shall take it out of the op- eration of the statute in favor of the purchaser or lessee, possession must be taken with the consent of the vendor or lessor.^ In Czermak v. Wetzel,® the defendant orally agreed to give the plaintiff a ten year lease of certain premises. Later a disagreement arose, defendant claiming it to be for only five years. The plaintiff entered, however, made improvements and demanded the execution of a ten year lease ; specific performance was refused, because taking possession after such disagreement could place him in no better position. It would seem, however, that the vendor could not rightfully object to a decree giving the plain- tiff a five year lease. § 133. Continuance in possession. Altho by the weight of authority mere taking possession under the contract is suflScient to take the ease out of the operation of the statute, it is well set- 2. Earle of Aylesford's case (1714) 2 Strange 733, 1 Ames EJq. Cas. 280; Kine v. Balfe (1813) 2 Ball & Beatty 343. Hence, if in an oral exchange of lands one party is given possession, this takes it out of the statute as to both parties. See Bigelow v. Armes (1882) 108 U. S. 10. See also Nibert v. Baghurst (1890) 47 N. J. Bq. 201. 3. See ante § 48. 4. Ungley v. Ungley (1877) L. R. 5 Ch. D. 887, 1 -Ames Eq. Cas. 281. See 10 Harv. Law Rev. 60, discussing Nowack v. Berger (1896) 133 Mo. 24. 5. Cole V. White (1767) 1 Brown, Ch. Cas. 409, 1 Ames Bq. Cas. 282. See 16 Col. Law Rev. 524. As to whether the vendor or lessor may enforce .where possession has been taken without such consent, quaere. It would seem that he should be able to do so; the purchaser or lessee should not be able to set up the other party's lack of consent to the taking of possession. 6. (1906) 100 N. Y. Supp. 167, 20 Harv. Law Rev. 335. Bq.— 12 178 SPECIFIC fekpokmance op cokteact. [Ckap. ii tied that mere continuance in possession is not suffi- cient whether the contract be for a lease^ or a purchase.^ But where the purchaser or lessor not only retains possession but puts repairs on the property, it has been held to make a memorandum unnecessary.^ It has also been held that the payment of an increased amount under an oral contract by the lessee in pos- session was enough to enable him to get specific per- formance of the contract for a new lease,* but it is difficult to reconcile this decision with any of the cur- rent explanations of the doctrine of part performance.* § 134. Taking possession and improvements. In a few jurisdictions the purchaser or lessee is required not only to take possession under the oral contract but also to erect valuable improvements.* In still others he must not only take possession but must pay a part or all of the purchase money ;^ while in 1. Smith V. Turner (1720) Precedents in Chancery 561 (cited), 1 Ames Eq. Cas. 282; Johnston v. Clancy (1835) 4 Blackf. (Ind.) 94. 2. See the criticism of O'Donnel v. O'Donnel (1911) 11 N. S. W. 340 in 25 Harv. Law Rev. 480. 3. Mundy v. Jollffe, (1839) 5 Mylne v. Craig 167, 1 Ames Eq. Cas, 289; Morrison v. Herrick (1889) 130 111. 631, 22 N. E. 537. But see Frame v. Dawson (1807) 14 Ves. 386, 1 Ames Eq. Cas. 283; in that case the defendant orally agreed to grant the plaintiff a further lease of ten years in consideration of the plaintiff's repairing a party wall; the making of the repairs was held not to be sufficient to take the case out of the statute. 4. Wins V. Stradling (1797) 3 Ves. Jr. 378, 1 Ames Eq. Cas. 291. 5. The decision in Pawling v. Pawling (1895) 86 Hun 502, hold- ing that a continuance in possession and the payment of the entire purchase money was enough to take the case out of the statute seems equally as diificult to sustain. If each element alone is wholly in- sufficient It is rather hard to see how both ' together could be enough. 1. Burns v. Dagget (1886) 141 Mass. 368, 1 Ames Eq. Cas. 284. See 18 Harv. Law Rev. 137 in support of this view. See also Moore V. Small (1852) 19 Pa. 461. The possession must be exclusive and the improvements substantial. Gallagher v. Gallagher (1888) 31 W. Va. 9, 5 S. E. 297. \ 2. Wright V. Raftree (1899) 181 111. 464, 473, 54 N. E. 998. 1^ 135] SPEOIPIO PERFORMANCE OP CONTKACT. 179 four jurisdictions' the whole doctrine of part per- formance has been repudiated, § 135. Modem attempts to explain doctrine of part per- formance. The position which courts of equity apparently first took in regard to the Statute of Frauds, viz., that any part performance took the case out of the oper- ation of the statute, was easily understandable tho probably not justified because it was reading too much into the statute. The modem position, however, which limits the doctrine to certain acts and excludes others, while probably a step in the right direction, is open to the objection that no basis has yet been agreed upon which will explain all the decisions. Perhaps the most common theory is that only acts which are refer- able solely to some contract with reference to the land are sufficient to take the case out of the statute.^ Thus, the taking of possession with the consent of the ven- dor' is, according to the argument, referable solely to the contract in regard to the land of which possession is taken. There are two difcculties with this theory; one is that taking possession does not necessarily show 3. Albea v. Griffln (1838) 2 Dev. & Bat. Eq. (N. C.) 9, 1 Ames Eq. Cas. 288; Hanston v. Jandon (1869) 42 Miss. 380; Dean v. Casslday. (1899) 88 Ky. 572, 11 S. W. 601; Batton v. McClure (1828) Mart & Y. 333. In these states the purchaser or lessee is entitled to recover In gMosi-contract any money paid and by the better view the increase in value to the land caused by the improvements erected. 9 Col. Law Rev. 961; 13 Harv. Law Rev. 410. 1. See Gunter v. Halsey (1739) Ambler 586, Miller v. Ball (1876) 64 N. Y. 286, Humphreys & Green (1885) L. R. 10 Q. B. D., 148. Hence if there is an oral contract to make mutual wills, the making of a will by one party is liot part performance because it is not an act referable solely to any contract. Hale v. Hale (1894) 90 Va. 728, 19 S. E. 739; Caton v. Caton (1866) L. R. 1 Ch. App. 137, 14 Col. Law Rev. 272. If the will Itself is clearly referable to the contract it is arguable that relief should be granted because of the survivor's change of position in undergoing risk for which money damages would not be adequate compensation. 25 Harv. Law Rev. 571. 180 SPECIFIC PEBFOEMANCE OF CONTBACT. [Chap. 11 some contract with reference to the land; It might be that the entry was under a mere parol license of the vendor, without any contract. The other objection is that even assuming that it does necessarily show the existence of some contract, it does not adequately ex- plain why that. should be enough to take the case out of the statute and allow oral proof of the terms of the contract.^ It must be admitted, however, that tho the explanation is not satisfactory it is the only one which is even applicable to the majority view. Where the taking of possession is not enough with- out the making of valuable Improvements on the land, it is more common to explain the giving of specific performance upon the theory that equity is enforcing the contract to avoid irreparable injury* to one who has acted on the strength of the other's promise. It is to be observed that this will usually, if not always, operate in favor of the purchaser or lessee only; if in these jurisdictions a vendor or lessor is given spe- cific performance it must be entirely on the ground of mutuality.* As a matter of prin6iple it would seem that this minority view and the theory by which it is usually explained, is the preferable one. Under this theory the jurisdiction of equity might perhaps be better . classified as jurisdiction to prevent fraud^ rather than to give specific performance and as such its enforce- ment of contracts which are without the letter of the Statute" of Frauds may be justified. Historically, the doctrine of part performance even when logically extended to all acts of part per- formance is really anomalous, because it is a plain violation of the terms of the statute. 2. See 9 Harv. Law Rev. 457. 3. Frame v. Dawson (1807) 14 Ves. 386, 1 Ames Eq. Cas. 283. 4. See ante |§' 48, 132. See ,also 18 Harv. Law Rev. 137. 138. 5. For example, see Clinan v. Cooke (1802) 1 Sclioales & Lefroy 22. For a digcusslon of both theories see 13 Col. Law Rev. 150. § 137] SPECIFIC PERFORMANCE OF CONTRACT. 181 i § 136. Irreparable injury without change of possession.' In Clerk v. Wright,^ the purchaser, according to the conveyancing custom in England, had given orders to have conveyances drawn up and had gone several times to view the land. Here there was irreparable injury because no recovery whatever in quasi-contract, but it -was of relatively small amount; and specific performance was refused. In Malins v. Brown^ M negotiated with W to buy 40 acres of land for $1500'; the defendant's testator had a mortgage on this and other land.' M declined to complete the purchase unless defendant's testator would release the land from the mortgage; the latter then orally agree to do so upon payment of $700; M paid the $700 but the release was then refused. Specific performancfe was granted here because M has involved himself in a contract with W from which he can not get released.* § 137. Personal services for promise to devise. Where the plaintiff has rendered services in re- liance upon a promise to convey, usually by devise, a 1. (1737) 1 Atkyns 12, 1 Ames Eq. Cas. 294.| 2. (1850) 4 N. Y. 403 1 Ames Eq. Cas. 304'. 3. See also Slingerland v. SUngerland (1888) 39 Minn. 197, 39 N. W. 146, where In pursuance of the oral contract the plaintiff had dismissed actions against the defendant and the bank of which the defendant was president; Dunckel v. Dunckel (1894) 141 N. Y. 427, 36 N. E. 405, where the plaintiff in pursuance of the oral contract had paid notes of her deceased husband to various holders. If irrep- arable Injury has been caused by fraudulent representations of the defendant the plaintiff's position is rendered still stronger. Green V. Green (1886) 34 Kansas 740, 10 Pac. 156; Peek v. Peek (1888) 77 Cal. 106, 19 Pac. 227. On the other hand, altho there has been a change of position on the part of the plaintiff it is not sufficient to take the case out, of the statute if the changa is distinctly for the better. See Pond V. Sheean (1890) 132 m. 312, 23 N. B. 1018, where in considera- tion of tie plaintiff's parents allowing the defendant to take and rear the plainUlSthe defendant orally agreed to leave all his property to the plaintiff; the court refused relief on the ground that the plaintiff was 182 - SPECIFIC PERFORMANCE OF CONTEACT. [Chap, ii piece of land, the weight of authority^ is that specific, performance cannot be obtained, coming within the modem rule already discussed^ that neither partial nor complete payment of the purchase money or its equivalent will take the case out of the statute. There is, however, a strong minority of jurisdictions giving specific performance.* Where circumstances were such that it was impossible for the plaintiff to take posses- sion and where the plaintiff has served for many years and the recovery in quasi contract is held barred by the Statute of Limitations except as to the last six years,* (or whatever the statutory limit is), specific performance may be justified on the ground of ir- reparable injury to the plaintiff.* Another element which has probably had some influence on these minor- ity decisions is the fact that the plaintiff is — in devise eases — seeking relief against volunteers.? § 138. Oral promise to make a gift. In most jurisdictions it is now well settled that if the owner of land promises to give it to another and the latter in reliance upon the expected gift takes posssession and erects permanent improvements, he may compel specific performance of the promise.' The much better off than if she had stayed with her parents. There being g,n indivisible contract for both realty and personalty relief was denied as to the personalty also. 1. Maddison v. Alderson (1883) L. R. 8 .App. Cas. 467, 1 Ames Eq. Cas. 295. See 14 Harv. Law Rev. 64. ,2. See ante § 131. 3. Gladville v. McDole (1910) 247 111. 34, 93 N. E. 86; Kinyon V. Young (1880) 44 Mich. 339; 6 N. W. 835; Hiatt v. Williams (1880) 72 Mo. 214. 4. 25 Harv. Law Rev. 410; 21 id. 544. 5. See ante § 136. Where the contract thus enforced is unilat- eral, the performance by the plaintiff does double duty; it brings the contract into existence by performing the office of accepting the offer and It also serves to prevent the operation of the statute. 6. See ante § 127, post § 344. See 14 Harv. Law Rev.-f 44. 1. Freeman v. Freeman (1870) 43 N. Y. 34, 1 Ames Eq. Cas. 306; Seavey.v. Drake (1882). 62 N. H. 393, 1 Ames Eq. Cas. 308. In the ■^ 139] SPECIFIC PEEFOBMANCE OP CONTKACT. 183 historical explanation of tliis is probably that at the time the question first came up in equity, the test of" consideration for a contract had not been settled at common law and the equity court considered that the making of the improvements in reliance upon the promise created a contract.^ At -the present time, however, there is no contract ' at common law^ because the detriment suffered -by the promisee was not suffered in exchange for the promise, but equity still gives specific performance of the promise. Since it can no longer, be placed upon the ground of giving specific performance of contracts,* it is usually explamed as being based upon the prevention of fraud on the donee." In many cases, however, the donee could be adequate- ly compensated in money for the improvements erected. § 139. Oral a^eements for easements. Oral agreemeiits for easements, sometimes by way of sale,^ and sometimes by way of gift,^ have been en- former case there may have been a contract according to modern law but the decision was not placed on that ground. 2. Even where it is clear that the intent was to make a gift and not a contract courts still speak of the plaintiff's act as being consideration or "consideration in eqtiity." Young v. Overbaugh (1875) 145 N. Y. 158. Fonts v. Roof (1898) 17i 111. 568, 50 N. B. 653. 3. Presbyterian Church v. Cooper (1889) 112 N. Y. 517, 20 N. E. 352. But there are many cases in the tlnited States contra. 17 Harv. Law Rev. 278; 15 id. 312. What really is needed here is a doctrine similar to the civil law doctrine of culpa in contrahendo which would make one liable in tort for the damages actually sustained by the plaintiff In reasonable, bona fide reliance upon the defendant's prom- ise. 4. It might be argued that in these cases the putting of the donee In possession is in substance a livery of seisin and that equity is justified in giving effect to it tho oral, where damage would be irreparable. 5. Freeman v. Freeman (1870) 43. N. Y. 34, 1 Ames Bq. Cas. 306. 1. Bast India Co. v. Vincent (1740) L. R. 35 Ch. Dlv. 694 (cited), 1 Anies Eq. Cas. 310; 15 Harv. Law Rev. 321. 2. Van H^rn v. Clark, (1898) 56 N. J. Eq. 476, 40 Atl. 203, (gratuitous oral license to get water from a spring, acted upon by licensee). But see 13 Harv. Law Rev. 54. 184 SPECIFIC PEBFOBMANCE OP CONTEACT. [Chap. 11 forced specifically. Here courts of equity have over- 'come not only the objection of the statute of frauds but of the common law requirement of a deed.^ In most, If not all, of the cases, the theory has apparently been that of preventing irreparable injury to the plain-, tiff. In Jackson v. Cator,* the defendant leased to X for thirty years, reserving all' trees, shrubs, etc.; X assigned to the plaintiff; the" plaintiff notified the de- fendant that he expected to make certain alterations ; the defendant consented and the plaintiff went to a large expense in reliance upon the defendant's oral license; the defendant later threatened to cut down trees so that the value of. the plaintiff's alterations would have been destroyed; the plaintiff asked for and received an injunction against the defendant's cutting any trees during the remainder of the term. In Joseph v. Wlld,^ the plaintiff and defendant owned adjoining unimproved lots; the plaintiff being about to build on his lot, they made an oral contract whereby the plaintiff was to erect the wall of the building on the division line and to erect a .stairway over the defendant's land for entrance to the upper story of the plaintiff's building, the defendant to have the use of the wall when he should build. The plain- tiff having erected a temporary stairway the defendant threatened to remove it fifteen years later. It was held that since the plaintiff had expended a large amount of money in erecting his building in reliance on the oral contract, he was entitled to relief. The plaintiff, having arranged his building for the outside stairway, would obviously be irreparably damaged if It were removed. § 140. Relief of plaintiff solely in equity. Since there is no contract at law in the cases of promises to make gifts, it is obvious that there is no 3. Tiffany, Real Property | 315. 4. (1800) 5 Ves. 688, 1 Ames Eq. Cas. 311. 5. (1896) 146 Ind. 249, 45 N. E. 467. § 141] SPECIFIC PERFOEMAKOE OP CONTRACT. 185 remedy whatever at law because there is no primary common law right. Even where there is a contract, however, and therefore a common law primary right, there is no common law remedy because the equitable doctrine of part performance is not recognized by common law courts.^ The result is that if the plain- tiff's equitable right to specific performance has been cut off by a transfer to a bona fide purchaser, his remedy is still in equity tho he knows of the transfer before bringing suit.* Since he can not get specific performance equity will gi\e him what it can as a substitute therefore, viz., comij)ensation in money.^ § 141. Fraudulent representation in regard to the memo- randum. Even in jrfrisdictions which hold that the mere taking of possession prevents the operation of thu statute, courts are sometimes inclined to explain the floctrine of part performance on the ground of fraud ; i. e. that it would work a fraud on the plaintiff if specific performance were refused. This, however is using the term fraud in a very broad sense. In a much more restricted sense, fraud itself without reference to part performance, may operate to take a case out of the Statute of Frauds. If the defendant has fraudulently induced the plaintiff to believe that a memorandum has been properly made or if he has fraudulently obtained possession of the memorandum from the plaintiff and destroyed it,' equity will give specific reparation for 1. O'Herlihy v. Hedges (1803) 1 Sch. & Let 123, 130. 2. Jervls v. Smith (1840) Hoffman, Ch. Rep. 470, 1 Ames Eq. Gas. 313. 3. Jervis v. Smith supra: "If the only redress is in this court, and the contract would have been enforced had the property re- mained in the vendor, it follows that damages may be recovered through the instrumentality of this court." 1. Mullet V. Halfpenny (1699) Precedents in Chancery (cited) 1 Ames Eq. Cas. 315. 186 SPECIFIC PEKPOKMANCE OF CONTRACT. [Chap, ii the fraud by giving specific performance just as if the memorandum had been introduced in evidence in the § 142. Other fraudulent representations. Even tho the fraudulent representation has no reference to the memorandum, it will^n a clear case — prevent the operation of the statute. In Peek v. Peek* the plaintiff's father had orally promised to marry the defendant and on or before the marriage to convey to her a piece of land. By 'repeated promises and pro- testations which were obviously fraudulent he induced the defendant to marry him without the conveyance and on the morning of the marriage conveyed the land to the plaintiff, his son by a former marriage. It was held that this was sufficient to take the case out of the statute, especially as against a volunteer.^ IV. Plaintiff's defcmlt or laches. § 143. Conditions precedent in bilateral contracts. Where, in a bilateral contract there is a condition precedent . with which the plaintiff has for any reason failed to comply, the condition is as efficacious in equity as at law to defeat the plaintiff. In Earl of Feversham v. Watson,* the plaintiff who was about to marry a daughter of Sir George Sands, agreed to settle £500 per annum upon her for separate maintenance and to purchase £840 per annum within twenty miles of London and settle it upon himself for life, remainder to his intended' wife for life with remainders over; 2. The mere refusal of the defendant to sign the memorandum Is not enough to prevent the operation of the statute. Wood v. Midgely (1854) 5 DeG. Mc. N. & G. 41. 1. (1888) 77 Cal 106, 19 Pac. 227. 2. See also Green v. Green (1886) 34 Kan. 740. 1. (1678) Freeman v. Chancery Cases 35, 1 Ames Eq. Cas. 317. § 143] SPECIFIC PEKFOEMANCE OP CONTEACT. 187 j Sir George Sands promised that as soon as the plain- tiff should perform the promises, he -would settle £3000 per annum upon the plaintiff for life, remainder upon the plaintiff's wife for life, with remainders over. The plaintiff did all except purchase the £840 per annum; his wife died. The court refused to decree specific performance because the express condition precedent in Sir. George Sands ''promise had not been performed, altho, of course it could not now be per- formed due to the wife's death.^ So, where the defendant has promised to buy or sell at a certain price to be fixed by arbitrators or valuers, the arbitration or valuation is a condition precedent and must be complied with before the plaintiff can get specific performance.^ Where the defendant has fraudu- lently prevented the valuation or arbitration from being made, however, equity should, if possible, give specific reparation for the fraud* and this usually in- volves the giving of specific performance of the de- fendant's promise. The mere fact, however, that if relief of some sort is not given the defendant would be enriched, seems to b^ more properly a ground for giving quasi contractual relief^ and not for specific performance, tho some cases have given specific per- formance on this ground." The fact that no mode of valuing was provided by the contract will not prevent equity from giving specific performance.'' 2. The fact that the plaintiff has not defaulted in his own performance is not material. In -Cheeke v. Lord Lyle (1674) 2 Freeman 303, the marriage articles provided that the plaintiff should have £2500 If he , should within four years after the marriage settle £400 per annum upon his wife; the wife having died a month after the marriage the plaintiff was unable to obtain .specific performance tho the four years had of course not expired. 3. Milnes v. Gery (1807) 14 Ves. 400; Hug v. Van Burkleo (1874) 58 Mo. 202. 4. Biddle v. Ramsey (1873) 52 Mo. 153 (appointing preju- dlred assessors). 5. Hug V. Van Burkleo (1824) 58 Mo. 202. 6. Strohmaier v. Zeppenfeld (1877) 3 Mo. App. 429. 7. Duffy V. Kelly (1897) 55 N. J. Eq. 627, 37 Atl. 597. 188 SPECIFIC PEBFORMANCE OF CONTEACT. [Chap. 11 § 144. Failure to comply with terms of option. If the plaintiff has failed tb comply with the ex- press terms of An option before the time for acceptance has elapsed, he cannot get specific performance^ be- cause there is no primary right^ upon which to base his suit.' The reason for failing to make a proper acceptance in due time. is of no importance.* § 145. Plaintiff's breach of his own promise as a bar. Even tho the defendant's promise is not made expressly conditional upon the performance of some act or the happening of some event, a failure of the plaintiff to perform substantially^ his part of the contract may prevent his getting specific performance. In Gannett v. Albree^ the bill was brought for specific performance of an agreement to renew a lease; the lease provided that if the lessee should cease to occupy the premises, he should have the right to underlet the same for use as a private dwelling and "not for any public or objectionable purpose." The lessee assigned to the plaintiff who with the defendant 's consent opened a boarding school for young ladies ; later the plaintiff sublet to one Surett who us^ed the premises as a board- ing house. Altho perhaps the plaintiff might have re- covered at common ,law for the breach of the contract 1. Ranelagh v. Melton (1864) 2 Drewry & Smale 278, 1 Ames Eq. Cas. 319. 2. Courts are inclined in such cases to say that "time is of the essence of the contract;" but the entire lack of any contract is a more fundamental and satisfactory reason. 3. The option contract bavihg expired by its own limitation and no other contract having come into existence. 4. Dikeman v. Sunday Creek Coal Co. (1900) 184 111. 546, 56 N. E. 864, (delay due to inadvertance of plaintiff's agent). . 1. If the failure amounts to only a slight deficiency of the res, the plaintiff may be given specific performance, -with com- pensation to the defendant for the slight defect. See ante §§ 121. 2. (1869) 103 Mass. 372, 1 Ames Bq. Cas. 321. § 147] SPECIFIC PEEFOBMANOE OF CONTRACT. 189 to renew, he was refused specific performance in equity, because of the use to which the premises had been put.^ § 146. Representation as to intent not fulfilled by plain- tiff. In Beaumont v. Dukes/ a bill for specific per- formance was brought by the vendor. The defense Set up was that the plaintiff's auctioneer announced at the auction that the vendor intended to make certain street improvements in the vicinity of the property; that the defendant bought relying upon this statement; and that the plaintiff had refused to make the alterations; specific performance was refused. Here the defendant probably could not have recovered at common law because there was no promise by the vendor that he would make the improvements and an action for deceit could be defeated by showing that the representation was made bona fide, but that the vendor later changed his mind. Specific performance was refused because the plaintiff's hands were rendered unclean* by his failure to make good the representation. § 147. Plaintiff's insolvency. If one who has contracted for a lease sues for specific performance, his supervening^ insolvency will usually be held a bar unless he tenders the full amount 3. See also Los Augeles etc. Oil Co. v. Occidental Oil Co. (1904) 144 Gal. 528, 78 Pac. 25, (the plaintiff had failed to per- form his promise to develop the land for oil) ; Bodwell v. Bodwell (1894) 66 Vt. 101, 28 Atl. 870, (default in promise to allow his divorced wife to care for their son) ; Coates v. CuUingford (1911) 131 N. Y. Supp. 700, 12 Col. Law Rev. 158, 170 (plaintiff's violation of equitable servitude a bar to enforcing it aga'inst the defendant). 1. (1822) Jacob 422, 1 Ames Eq. Cas. 323. 2. See ante § 30. 1. Or if the plaintiff's insolvency at the time of contract was not known to the defendant. ( 190 SPECIFIC PEKFOBMANCE OF CONTEACT. [Chap. 11 of the rent for the whole term." And where he is bound to make considerable repairs which cannot be made until after entry, It may prevent entirely the specific execution of the lease.^ Similarly a purchaser who has become insolvent cannot insist upon credit even tho the contract provides for it;* and if a purchaser should assign such a con- tract to another who is insolvent the latter cannot insist upon specific performance unless he pays cash." On the other -hand, if the plalntlfE has fully performed, the fact that he is insolvent and that because of such insolvency the defendant fears that he may not be able to collect an independent claim is no bar to specific performance.^ § 148. Breach by plaintiff acted upon justifiably by de- fendant. If after the making of a specifically enforcible contract to convey property, the purchaser first learns that there is a defect in the vendor's title, he is justified, after waiting a reasonable time for the vendor to remedy the defect, to repudiate the contract; if he does so, changing his position upon the supposition that he cannot get. the land, the vendor cannot by repairing the defect later insist upon- performance.^ The gist 2. See Price v. Asheton (1835) 1 Y. & C. 441, 444, In which it was held that it was a matter of discretion for the court; and see McNally v. Gradwell (1866) 16 Ir. Chan. 512. 3. See Buckland v. Hall (1803) 8 Ves. 92. 4. Carter v. Phillips (1887) 144 Mass. 100, 10 N. B. 500 (contract to buy a business). A similar rule prevails now at common law. Williston, Sales § 576, 577. And see Rice v. D'Arville (1895) 162 Mass. 559, 39 N. E. 180, where the plaintiff was refused specific performance of defendant's promise not to sing for others because the plaintiff's ability to pay the defendant depended upon the outcome of the opera season. 5. Rice V. Gibbs (1894) 40 Neb. 264, 58 N. W. 724. 6. Thompson v. Winter (1889) 42 Minn. 121, 43 N. W. 796. 1. Bellamy v. Debenham (1891) L. R. 1 Ch. 412, 1 Ames Eq. Gas. 325. ,In that case the plaintiff asked for damages in the § 149] SPECIFIC PEEFOEMANCE OF CONTEAOT. 191 of the defense is that the defendant can properly ob- ject to being kept in susjpense; hence, if the defect has been remedied before he knows of it, he cannot com- plain of it. Where he knew of the defect at the time of entering the contract it would seem that the same principles would apply^ except that he is probably under an obligation to wait a longer time than where he was ignorant of the true state of affairs. In Dowson^ v. Solomon * the plaintiff had con- tracted to sell to the defendant a leasehold, the con- veyance to be 'made July 20. The insurance expired June 24 and the plaintiff renewed it for one month only. The meeting for completing the conveyance was put off until Aug. 26. It was ndt till then that the defendant learned that the insurance had expired July 24 and that the lease was therefore subject to forfeiture by the lessors; the defendant offered to complete if the plaintiff would procure a waiver of the fSrfeiture from the lessors but this offer was refused and on Sept. 7 the defendant wrote to the plaintiff declining to go on. Later the plaintiff reinsured and procured the waiver and then sought specific performance. Eelief was refused, the court saying that the waiver came tod late. The ground for refusing specific performance here also is that it was unfair to keep the defendant in suspense as to the title. The same reasoning applies where before the time for the plaintiff's performance he repudiates the contract and the defendant changes his position in reliance upon such repudiation.* § 149. Effect of mere delay by plaintiff. It is sometimes said that at common law time is xalternative but since the common law rule on this point Is now substantially the same as the equity rule, he failed also to get that. See Williston, Sales S§ 576, 577. 2. At least, if the plaintiff had agreed to remedy the defect. 3. (1859) 1 Drewry & Smale 1, 1 Ames Bq. Cas. 418. 4. See Pyatt v. Lyons (1893) 51 N. J. Bq. 308, 27 Atl. 934; Guest T. Homfray (1801) 5 Ves. 818. And see Williston, Sales § 578. 192 SPECinC PEEFOEMANCE OF CDNTKACT. [Chap. 11 always of the essence of a contract; this Is true, how- ever, only of mercantile contracts and even there it does not necessarily mean that one party is excused if the other does not perform at the very moment, but merely that because of the possible fluctuation in price, time is an irqportant and perhaps controlling element.' Since the contracts which equity specifically enforces are rarely to be classified as mercantile contracts, time is usually not of the essence. In the ordinary land contract a delay of weeks or even months may not and frequently does not give rise to a defence by the other party .^ In Parkin v. Thorold,^ the plaintiff agreed on July 25 to sell to the defendant, the abstract to- be delivered in ten days, the purchaser to pay a deposit and sign an agreement to complete the purchase on or before October 25. Difficulties in regard to the title arose. On October 21 the defendant gave notice to the plaintiff to complete on or before November 5 or he would treat the contract as at an end. On January 8 the plaintiff offered to produce the deed but the purchaser stated that he had long ago abandoned the contract. On February 25 the purchaser sued to get ba5k the deposit. On March 1 the vendor filed his suit for specific performance. In giving the relief 1. Of course an inexcusable failure to perform on time necessarily gives the other party a cause of action for such breach; and sometimes this is all that is meant by courts in saying that "at law time is always of the essence." Whether such a breach is an excuse to the other party is an entirely different question. Williston, Sales § 453. 2. See Seton v. Slade (1802) 7 Vesey 265 (specific performance allowed to the vendor after the purchaser had sued for and recovered the deposit.). 3. • (1852) 16 Beav. 239, 1 Ames Bq. Cas. 327. Where the suit has been brought against the party in default courts will frequently in giving a decree for specific performapce fix a period within which the defendant must complete or lose his rights under the contract; Southern Pac. Ry. Co. v. Allen (1896) 112 Cal. 445, 44 Pac. 796 (six. months allowed to defendant purchaser to complete purchase or be forclosed) ; Cross v. Mayo (1913) 167 Cal. 594, 140 Pac. 283 (ten days allowed). §^ 150] SPECIFIC PEEFOBMANCE OP CONTRACT. 193 prayed for, the court held that the exact time for performance — October 25 — was not essential; that al- though express notice will make -time of the essence where a reasonable time is specified on the notice for the completion of the contract, the notice of October 21, did not have that effect, because the time specified — till November 5 — was too short; and also that there had been no such laches or acquiescence in the de- fendant's attempted abandonment of the contract to preclude him from insisting now on specific per- formance. The phraseology used by the court — that one party could make time of the essence by giving notice to complete within a time limit which is reason- ablets unfortunate. The actual effect of such a notice is to prevent any question of waiver by delay and perhaps to help somewhat to determine what amounts to a reasonable time for completion in the particular case. § 150. Effect of plaintiff's delay coupled with other cir- cumstances. Where the plaintiff's delay has occurred after part performance' — especially if the part performance has benefitted the defendant^ — specific performance will more likely be given than if there had been no such part performance. On the other hand, if during the delay the' property has changed considerably in value this additional fact will tend to influence the court against granting relief.* 1. For example, If the purchaser has been placed In possession; see Brown v. Guarantee etc. Co. (1888) 128 U. S. 403 (purchaser also made large expenditure in improvements; Jones v. Rohbins (1849) 29 Me. 351 (plaintiff purchaser in possession but defaulted 58 days In tendering an installment because of Illness). A similar doctrine prevails now at law; see 9 Harv. Law Rev. 148. 2. Edgerton v. Peckham (1844) 11 Paige 352 (suit by purchaser who had paid two thirds of purchase money). 3. Peters v. Delaplane (1872) 49 N. Y. 362 (delay of seventeen years and increase of tenfold in value); Combes v. Scott (1890) 76 Misc. (N. Y.) 662 (delay of six years and increase of twenty to Eg.— 13 194 SPECIFIC PERFORMANCE OF CONTRACT. [Cliap. 11 § 151. Time expressly made of the essence. Altho It Is frequently said* that time may be made of the essence by agreement of the parties, the state- ment is not strictly true as shown by many decisions.^ /The real effect of such a stipulation seems to be that it is evidence — more or less weighty — tending to show that time was really so important that a delay by the plaintiff should bar him from equitable relief. The stipulation is therefore to be considered along with all the other facts and circumstances of the case.' The relief against forfeitures, especially in mortgages and bonds with penalties* was one of the earliest heads of equity jurisdiction; and wherever the express stipula- tion would operate to bring about a serious forfeiture of property interests, it would seem clear that equity should not enforce the provision.^ If, on the other hand, it operates merely as an express condition precedent to the obtaining of a property interest fifty fold in value). In Klen v. Stukely (1722) 1 E. R. 506 the defendant* purchaser had intended to pay for the land with the proceeds of the sale of South Sea Stock which declined greatly during plaintiff's delay in , making title; for this reason specific performance was refused; 1. In Grey v. Tubbs (1872) 43 CaJ. 359; Sowles v. Hall (1890) 62 Vt. 247, 20 Atl. 810. In Hubbell v. Schoening (1872) 49 N. Y. 326, the court said that "time is not of the essence of the contract unless made so by the • terms jof the contract." 2. See Cross v. Mayo (1913) 167 Cal. 594, 140 Pac. 283; Hall v. Delaplane (1856) 5 Wise! 216. 3. The argument for a strict enforcement of such a provision is that the proper protection of business interests requires uniform en- forcement of certain rules; and that the court cannot make over the contract for the parties. Brown v. Ulrick (1896) 48 Neb. 409, 67 N. W. 168. For a recent discussion of the subject see 29 Harv. Law. Rev. 791. See also 22 Harv. Law Rev. 543. 4. See post § 457. 5. Wells V. Smith (1837) 8 Paige 22. In Stedman v. Drlnkle (1916) A. C. 275, the court took the middle ground of denying specific performance but relieving the plaintiff against forfeiture of money paid; this is to be commended. § 151] SPECIFIC PERFORMANCE OF CONTEACT. 195 which the party has not before possessed, equity may properly refuse specific performance if the plaintiff has failed to observe the stipulation, and there has been little or no part performance.'' In Ver|ion v. Stephens'' the purchase price agreed upon was £1200 and 100 guineas; the purchaser had paid some and defaulted as to the rest of the purchase money, whereupon it was agreed that if the purchaser failed to pay by a certain day, the contract was to be cancelled. The purchaser then paid £1000 but defaulted as to the residue. A further agreement was then made whereby a further day was given and the purchaser agreed that he would lose all the money which he had advanced before and the benefit of the contract if the money should not be paid on the day. The purchaser again made default and later sued for specific perform- ance. The court, being of the opinion that the vendor would be adequately compensated by interest on the de- layed payments granted the relief. It is to be here noted that by the very large payment the purchaser had become substantially the owner of the property and hence the later agreements were somewhat like conditions sub- sequent in mortgages. Frequent repetition of the statement that the parties may make time of the essence has brought several unfortunate^ decisions. In Heckard V. Say re* the plaintiff, having contracted to buy land for $900 and having paid $600, defaulted six days in paying the note for the other $300. The note provided that time should be of the essence and the court re- fused specific performance. It is believed that this decision will not be generally followed and that a more liberal rule will prevail, at least as to the forfeiture of money already paid. 6. Lloyd V. Rippingale (1836) 1 Younge & Collier, Exch. 410 (cited), 1 Ames Eq. Gas. 335. 7. (1722) 2 Peere Wms. 66, 1 Ames Eq. Gas. 338. 8. (1874) 34 111. 142, 1 Ames Eq. Gas. 340. See also Iowa etc. Land Co. v. Mickell (1875) 41 la. 402 in which the plaintiff lost 14000 in Improvements because he tendered fl65 instead of |168 for the second Installment. 196 SPECIFIC PERFORMANCE OP CONTRACT. [Chap, ii § 152. Time made of the essence by nature of the property or other circumstances. Where the property contracted to be sold fluctuates greatly in value, it is usually a fair inference that the parties understood time to be of great importance without an express stipulation; hence any delay which might seriously affect the defendant's interests en- titles him to refuse to go on with the contract,* the rule being practically identical with the common law rule^ as to mercantile contracts and for the same reason. Tho the property itself is not of such sort as to make, time ah essential element of the contract, the cir- cumstances surrounding the contract may show that the time set for performance was an important factor. In Tilley v. Thomas' the plaintiff had .contracted on December 14 to sell a lease of Cambridge Lodge to the defendant, possession to be given on January 14. The plaintiff was unable to show a complete title on January 14; on June '5 the plaintiff asked specific performance having perfected the title. Specific per- formance was refused on the ground that it was known to the plaintiff that the defendant expected to use the premises as his own residence immediately after January 14. § 153. Tender of performance by vendor. As already pointed out,* a contract for the sale and purchase of property is considered by common law courts at the present time as including mutual con- current conditions: if either party wishes to obtain 1. Macbride v. Weeks (1856) 22 Beav. 533 (lease of a mine); Hipwell V. Knight (1835) 1 Y & C. 401, 415, (sale of stock); Edgerton v. Peckham (1844) 11 Paige 352 and cases cited. 2. Williston, Sales §189. 3. (1867) L. R. 3 Ch. App. 61, 1 Ames Bq. Cas. 336. 1. See ante S 143. § 154] SPECIFIC PEKFOBMANCE OF CONTRACT. 197 a judgment against the other for breach, he must be able to ^show that at or near the time set for per- formance (depending upon whether time is or is not an essential element), he offered to exchange performances with the other party.^ In equity, however, there is no such strict requirement, because equity is able to give a conditional decree which will protect the defendant and secure to him the plaintiff's performance in ex- change for his own. Thus in Eutherford v. Haven^ it was held that it was not fatal to the vendor's suit for foreclosing the buyer's right in the property that he had not tendered a deed to the buyer. In the dis- cretion pf the chancellor, however, costs may be awarded against a plaintiff who has failed to tender |)erformance before bringing suit.* § 154. Specific performance and the Statute of Limita- tions. On the ground that the Statute of Limitations expressly mentioned only "actions" and not "suits," courts of equity held that they were not bound by the statute.* It was, however, usually looked to as furnish- ing the longest period of permissible delay;* but whUe a much shorter period than that provided by the statute might bar the plaintiff, the circumstances might be such that he was entitled to a longer, period in which to bring his suit.^ In a few jurisdictions at the present time there are statutes of limitations applying expressly to equity suits.* 2. 7 Col. Law Rev. 151, 153. 3. (1861) 11 Iowa 587, 1 Ames Eq. Cas. 342. See also Lesley V. Morris (1873) 9 PWla. 110. 4. Brown v. Ward (1899) 110 la. 123, 81 N. W. 247; Boston v. Nichols (1868) 47 111. 353. 1. Talmash v. Muggleston (1826) 4 L. J. Ch. 200, 1 Ames Eq. Cas. 343. 2. Norris v. Haggln (1889) 136 U. S. 386; Hutchison v. Grubba (1885) 80 Va. 251. 3. See Arnett v. pinney (1886) 41 N. J. Bq. 147, 3 Atl. 696. 4. See 25 Cyc. 1057, note 54. 198 SPECIFIC PERFOEMANCE OF CONTBAOT. [Chap, il Where the statute is applied, either by way of analogy or because of the express provisions of the legislative act, it begins to run in specific performance cases, from the time that a suit for specific performance could have been brought.^ Where, however, the purchaser has been put in possession and pays all the purchase price, it would seem that the statutory period ought not to begin to run till the vendor, who occupies substantially the position of a passive trustee, has repudiated to the knowledge of the purchaser.® Such a suit is in sub- stance a suit to quiet title'' rather than a suit to get title. § 155. Forclosure of purchaser's property right, Tho the relation of vendor and purchaser is in many respects closely analogous to that of mortgagee and mortgagor, there is one substantial difference; the mortgagee in order to foreclose the interest of the mortgagor must institute some sort of court proceed- ings and usually have the property sold ; but the I vendor in case of substantial delay by the purchaser may, by g^iving notice to the latter that he must complete within a certain time, foreclose his interest in the property,^ provided that the time thus allowed is reasonable^ under all the circumstances of the case. If the vendor does not wish to take the chances of fixing a reasonable period, he may, of course, appeal to a 5. Bruce v. Tilson (1862) 25 N. Y. 194, 1 Ames Bq. Cas. 345. 6. Day v. Cohen (1884) 65 Cal. 508, 4 Pac. 511. , 7. See post §§ 413-415. 1. Webb V. Hughes (1870) L. R. 20 Eg. 281, 286: "if any unnecessary delay is created by one party, the other has a right to limit a reasonable time within which the contract shall be perfected by the other." See also Lysaght v. Edwards (1876) L. R., 2 Ch. Div. 499. 2. In' Pegg V. Wisden (1852) 16 Beav. 239 the court held that under all the circumstances six weeks was too short a period to set for the purchaser to complete. ■^^ 156] SPECIFIC PEKFOKMANCE OP CONTBACT, 199 court of equity which will fix a limit within which the purchaser must perform;^ this limit corresponds roughly to the time for redemption which statutes have allotted to mortgagors after foreclosure.* V. FroAid, misrepresentation and concealment. § 156. Rescission and specific performance. Where fraud of such a serious character has been practiced by one party to a contract upon the other that it will be recognized at common law as a* defense to the defrauded party if sued for breach, equity will, to preserve this common law defense to the defrauded party, declare the contract rescinded and order it to be delivered up and cancelled. This subject will be dealt with in the chapter bn Rescission.^ Since, how- ever, "equity has always considered specific performance as an extraordinary remedy to "be given only in the sound discretion of the chancellor, misconduct on the part of the party asking for specific performance which is much less heinous than what common law courts regard as fraud, will be a bar to such equitable relief, especially if there be coupled with such mis- conduct other elements, such as hardship etc. which make it inequitable to force the defendant to perform.^ In fact, as will be pointed out later,* even innocent misrepresentation when coupled with other elements may operate to prevent the plaintiff from getting equitable relief. It may be argued that the denying of specific per- 3. Southern Pac. Ry. Go. v. Allen (1896) 112 Cal. 455 (six months allowed to complete). 4. Lysaght t. Edwards (1876) L. R. 2 Oh. Div. 499. 1. See post Chap. VII. This Is a part of equity's quia timet jurisdiction. 2. See Kelly v. Railroad (1888) 74 Cal. 557, 16 Pac. 386 (fraud Without damage held a bar to specific performance). 3. See post § 164. 200 SPECIFIC PERFOBMANCE OP CONTRACT. [Chap. 11 N formance but refusing resoission thereby allowing the plaintiff in the suit for specific performance to sue and recover at law instead Is of little value to the de- fendant because ordinarily the rule of damages is that he must pay the plaintiff the loss of his bargain; the answer to this Is that while the misconduct of the plaintiff may not give a defense in point of law, the jury will almost certainly be influenced by it and will give a verdict for a less sum than the plaintiff would be entitled to according to the strict rule of damages, and such a verdict will not be disturbed.* § 157. Active misrepresentation or concealment by a fiduciary. When a fiduciary deals with his beneficiary or principal, he must divest himself of the advantage which his position has given him, by making a full disclosure of all fact's relative to the transaction^— especially such facts as he has obtained by reason of the fiduciary relation. In Cadman v. Homer,^ the plaintiff who had been the agent of the defendant cbntracted to buy some land from him for $600; in defense to the suit for specific performance the de- fendant sought to show misrepresentation as to value and as to the amount of repairs needed. The cburt in dismissing the bill, after commenting on the fact that the defendant must have known the value from the fact that he had recently piurchased it, said ". . . 4. This is sometimes expressed by saying that jurors are chancellors. 1. If an agent attempts to act for both parties to a transaction without full disclosure of 'his relation to each, it Is at least a bar to specific performance against the innocent party, if not also basis for rescission. Marsh v. Buchan (1890) 46 N. J. Eq. 595, 22 Atl. 128; Hesse v. Brlant (1856) 6 De. G., McN. & G. 623. 2. (1810) 18 Ves. 10, 1 Ames Bq. Gas. 370. See also Klmber v. Barber (1872) 8 Ch. App. 51; Margraf v. Muir (1874) 57 N. Y. 155 (parties in unequal position because of plaintiff's residence near the land). § 158] SPECIFIC PERFOBMANOE OF CONTEACT. 201 yet as upon the evidence the plaintiff has been guilty of a degree of misrepresentation, operating to a certain, though a small extent, that misrepresentation dis- qualifies him from calling the aid of a court of equity, where he must come, as it is said, with clean hands. ' ' In Byers v. Stubbs^ the defendant who lived 100 miles away from certain land that he owned, wrote to the plaintiff who lived in the vicinity of the land offering him all over $500 that he could get for the land. The defendant, not disclosing that there had been a "boom" in land values in the neighborhood, procured from the defendant an option on the land which he later accepted. The court refused to decree specific performance .on the ground that the plaintiff should have disclosed the facts to the defendant, saying: "It is true, the relation of principal and agent was not consummated between complainant and defendant; but the proposition of the latter to employ the former, as agent to sell the land, placed them in a relation, each to the other, which demanded open and fair dealing." Unless there was an express reliance* by the defendant upon the plaintiff it is rather difficult to make out a fiduciary relation. But the decision is perhaps support- able on the ground that tho there was no fiduciary relation there was sharp practice and since the real value of the land was probably at least double the option price, the hardship on the defendant would have been severe. § 158. Misrepresentation by a non-fiduciary. The dividing line between a misrepresentation by a non-fiduciary which will bar specific performance and one which will not, is necessarily hard to define because so much depends upon the other circumstances. Where an auctioneer stated that the land offered was "un- commonly rich water meadow land" whereas it was not 3. (1887) '85 Ala. 2^6, 4 So. 755, 1 Ames Eq. Cas. 370. 4. See § 386. 202 SPECIFIC PEEFOBMANCE OF CONTEACT. [Chap, ii a water, meadow, it was held to be no bar,'^ being merely the loose opinion of the auctioneer with reference to a matter which was patent to the buyers. And where the printed particulars of an auction of an advowson stated that a "voidance of this preference is likely, to occur soon" and the auctioneer stated in explanation that the "living would be void upon the death of a person aged eighty-two," it was held no bar to spe- cific performance that the incumbent of the living was not the person aged eighty-two but expected to take the living of the latter upon the latter 's death. The court thought that the representation, tho perhaps naturally misunderstood by the defendant, was too vague and indefinite to have any legal effect. The fact that the plaintiff had offered to covenant that the in- cumbent woTild avoid the living upon the death of a person aged eighty-two was not mentioned by the court, tho it may have had some influence upon the decision. On the other hand, if there is gross misrepresenta- tion as to the value,^ it may be a bar to specific per- formance especially if coupled with great hardship — as it usually will be ; and this js true tho the misrepresen- tation be non-actionable at common law on the ground of puffing* or on the ground that the party making the representation made it innocently.^ And in Clermont V. Tasburg® which was a suit for specific performance of an agreement to exchange lands, the misrepresenta- tion by the plaintiff to the defendant that the de- fendant's tenants were willing to give up their interest in the defendant's land was held to be a bar to relief.^ 1. Scott V. Hanson (1826) 1 Simons 13, 1 Ames Eq. Cas. 353. 2. Trower v. Newcome (1813) 3 Merivale, 1 Ames Bq. Cas. 352. 3. Brown v. Smith (1902) 89 N. W. 1097 (Iowa). 4. Wall V. StubJ)s (1815) 1 Maddock 80, 1 Ames Eq. Cas. 362. 5. See Baskcomb v. Beckwith (1869) L. R. 8 Eq. Cas. 100. 6. (1819) 1 Jacob & Walker 112, 1 Ames Eq. Cas. 358. 7. In Kelly v. Railroad (1888) 74 Cal. 557, 16 Pac. 386, the fraudulent representation was held a bar to specific performance tho the plaintiff had suffered no damage thereby. That the defendant § 159] SPECIFIC PEKFOEMANCE OF CONTEACT. 203 § 159. Non-disclosure or concealment by non-fiduciary. .At common law mere non-disclosure by one who is under no duty to speak,* is not actionable fraud and will afford no defense to an action for breach of contract, tho active concealment from one who was attempting to find out the truth might be actionable by or give a defense to the innocent party. In Shirley v. Stratton^ where the plaintiff vendor had industriously concealed the existence on the land of a sea wall which cost £50 a year to keep in repair the court denied specific performance on that ground ; it would seem that the court would have been justified even in awarding cancellation to the defendant on the ground that he had a common law defense. On the other hand, in Bowles V. Bound* the mere non-disclosure by , the plaintiff vendor that there, was a foot path across the land was held to be no defense to specific performance, the defect being patent and no attempt to conceal being shown. The non-disclosure may be of such a character as to give 8 defense to specific performance while afford- ing no defense at common law. In Ellard v. Llandaff* the plaintiff had been negotiating with the defendant for a new lease for lives; the only surviving life in the old lease was that of one Ellard and his life expectancy was an important matter in determining the granting of a new lease. The plaintiff having heard of the serious illness of Ellard, immediately took steps, before the was imprudent in acting upon the plaintiff's fraudulent representa- ' tion does not prevent the latter from being a bar. Cox v. Middleton (1854) 2 Drew. 209. 1. This duty to speak may arise either from a fiduciary relation, express reliance or an undertaking to tell the whole truth; or when parties are not dealing on an equal footing. 2. (1785) 1 Brown Ch. Cas. 440, 1 Ames Eq. Gas. 362. 3. (1800) 5 Ves. 508, 1 Ames Bq. Cas. 361. See also Haywood V. Cope (1858) 25 Beav. 140 (defendant could see that the mine had been worked before and abandoned). 4. (1810) 1 Ball & Beatty 241, 1 Ames Bq. Cas. 363. 204 SPECIFIC PEKPOEMANCE OF COISTTKACT. [Chap, ii defendant should also hear of it, to close the contract • for a new lease. The court refused to give specific performance, putting their decision on the ground of sharp practice. It is to be observed, however, that there was also the element of hard bargain and it is upon this ground, probably, that the later English decision of' Turner v. Green' is to be reconciled with EUard v. Llafi^aff- In Turner y. Green the suit was for specific performance of an agreement to compromise; the de- fense set up was that/ at the time the compromise agreement was entered into the plaintiff alone, but not the defendant, knew that in the action which had been brought by the plaintiff agains^ the defendant the chief clerk after a hearing had given the opinion that the plaintiff's summons should be dismissed; no hard bar- gain appears because the opinion of the chief clerk was not final — it was . merely one «tep in the litigation ; whereas in Ellard v. Llandaff the illness of the cestui que trust was a strong determining element. In Fothergill v. Phillips^ the plaintiff having tres- passed upon the defendant's farm below the surface and taken 2000 tons of coal, contracted to buy the farm, saying nothing of the trespass.. Here the de- fendant may sue in trespass or probably in quasi con- tract for the taking of the coal ' whether the sale of the \ land goes through or not, because the cause of action would not pass with the land ;'' but the plaintiff's wrongfully obtained knowledge as to the quality and perhaps as to the quantity of the coal under the la^nd was rightfully held to be a bar to specific performance. 5. (1895) L. R. 2 Ch. 205, 1 Ames Bq. Cas. 364. 6. (1871 J L. R. 6 Ch. App. 770, 1 Ames Bq. Cas. 368. 7. The court seemed to assume that It would: "The proposal which he makes is not in reality a simple proposal for the purchase of the property; It Involves a buying up of rights which the owner has acquired against him and of which the owner Is not aware." Since the cause of action for taking the coal is obviously not an easement, profit or covenant running with the land, It is difficult to see how it would pass to any transferee. ^ § 160] SPECIFIC PKRFOEMANCB OF CONTRACT. 205 In McManus v. City of Boston* the plaintiff, in anticipation that the city of Boston would want a particular piece of land for school building purposes, bought the land for $5700 and shortly afterwards con- tracted to sell it to the city for $9500. It was admitted that the price was not exorbitant* and the plaintiff not being a fiduciary, specific performance was decreed. ' If the plaintiff is an expert and the defendant not, a failure to disclose may be fatal to the plaintiff's suit.^" But even in such a case if the defendant's hardship is due to an increase in value of his land caused by the purfehaser 's pursuit of his own business specific performance should not be refused on the ground of concealment.^^ Where the plaintiff has undertaken to tell the whole truth, the failure to fulfill the undertaking may amount to a deception and be a b^r to specific per- formance.** § 160. Innocent third person injured by plaintiff's fraud. In Kelly v. Central Pac. Railroad Co.* the de- fendant's land agent had addressed a circular to the public inviting settlement on its vacant lands and stating that settlers would generally be given preference of purchase at the regular price. One Menger, who 8. (1898) 171 Mass. 152, 50 N. E. 607, 1 Ames Eq. Cas. 420. 9. If, however, there had been a fraudulent representation this f?ict would not prevent the representation from being a bar. Kelly v. Railroad (1888) 74' Cal. 557, 16 Pac. 386. 10. Woolums V. Horsley (1892) 93 Ky. 582, 20 S. W. 781 (expert buyer conceals from ignorant farmer the mineral value of his land). 11. Standard Steel Car Co. v. Stamm, (1904) 207 Pa. 419, 66 AU. 954 (plaintiff sent an agent to procure an option on defendant's land; the •agent concealed the name of the real vendee)'. See 17 Harv. Law Rev. 499. 12. See Aaron's Reefs v. Twiss (1896) H. of L. App. Cas. 273. See post § 383. 1. (1888) 74 Cal. 557, 16 Pac. 386, 1 Ames Eq. Cas. 355. 206 SPECIFIC PEBPOEMANOE OP CONTRACT. [Chap, ii was already occupying some of the land, who received the circular and some verbal announcements from the defendant, conveyed whatever rights he had to one Cole who moved on the land and made improvements relying upon the circular. The plaintiff, with knowledge of Cole 's rights and expectations in the matter, falsely represented to the defendant's agent that he had settled on the land and procured from him a contract to purchase; it which he now seeks specifically to enforce; Cole intervened - and asked for the conveyance of the land to himself. The court below decreed that the land be conveyed to Cole and the plaintiff appeals. The upper court held that whether Cole was entitled to specific performance or not, the plaintiff was not, on the ground that he had not come into equity with clean hands, and even tho no injury would result to the vendor in giving specific performance to the plaintiff it was sufficient that injury would result to the third person, Qole. If Cole had had a contract with the de- fendant which complied with the Statute of Frauds or was taken out of the Statute of Frauds by part per- formance. Cole clearly would be entitled to specific performance against the defendant in exclusion of the plaintiff. If there was a contract but unenforcible becalise of the Statute of Frauds, it would seem that the plaintiff should not be allpwed to complain if the defendant should prefer to carry out the prior un- enforcible contract, unless the defendant at the time of his contract with the plaintiff knew that Cole was in occupation.^ In the latter case or in case Cole had no contract with defendant but a mere expectancy of purchase, then the case must be rested on the ground expressed by the court, that of injury to a third person which would be caused by winking at the sharp practice of the plaintiff.^ 2. In -which case the^ contract with the plaintiff would be a re- pu(^iation of the oral contract with Cole. 3. See also Memphis Keeley Institute v. Keeley Co. (1907) 155 Fed. 964, where specific performance was denied to the plaintiff be- §, 161] SPECIFIC PERFORM ANCE OP CONTRACT. 207 VI. Mistake — sharp practice. ■ § 161. Mistake as ground for reformation- or rescission and as a defense to specific performance. Where, due to a mistake in the expression of a written instrument it fails to express the true intention which both parties had, equity will correct orj^to use the more usual term, — reform the instrument so as to make it conform to this real iiltention. The subject of Eeformation will be treated later.* Like fraud, mistake may be the basis for equity de- claring the contract rescinded on the ground that the mistake has prevented the making of a genuine contract tho the forms required by law may have been complied with. The most common \ exaihples are cases where there has been a mistake (1) as to the nature of the transaction, such as a deed of conveyance having been signed by the plaiiitiff thinking that it was a lease; (2) a mistake as to the identity of the object dealt with; (3) a mistake as to characteristics or quality of the sub- ject matter which is so important as to go to the root of the transaction.'^ When the mistake is not serious enough to justify a court of equity in declaring rescission, it may still be used as a defense to a suit for specific performance, especially when it has been caused by the plaintiff or when it is combined with sharp practice on the part of the plaintiff or when specific performance would result in great hardship to the defendant. As already pointed out in discussing fraud,^ tho the plaintiff may theoreti- cally recover the loss of the bargain at; common law, rescission not being given, yet as a practical matter cause its business had been built up by fraudulent misrepresentations to the public as to the ingredients in its remedies. 1. See post Chap. VI. 2. For a discussion of the subject of rescission see post Chap. VII. 3. See ante § 156. 208 SPECIFIC PEKPoBMANCE OP CONTRACT. [Chap, ii' juries will usually not give a verdict for the full amount under such ciroumstances. § 162. Mistake of the defendant caused innocently by the plaintiff. If the defendant's mistake is caused intentionally by the plaintiff, this of course amounts to fraud and will usually be ground for rescission and is g, fortiori a bar to specific performance. Where the mistake was caused innocently by the plaintiff it is a factor to be considered along with hardship on the defendant in determining whether to give specific performance. In Burkhalter v. Jones^ the suit for specific performance was by the purchaser; the vendor wrote a letter to the purchaser who had been recently left a widow and was unacquainted with business, in which his offer to buy for $2000 was so \i^orded that she thought it was an offer to buy at $2100. Specific performance was refused on the ground that altho there was a contract and hence no basis for rescission, equity should not give specific performance because the defendant's mistake was due to the plaintiff's misleading letter. Since the defendant had sold the premises to another for $2400, there would have been some hardship in giving specific performance. A case somewhat similar in its facts is Swaislahd y. Dearsley.^ Defendant bought at an auction sale some property which was described as follows: "An un- divided moiety in a valuable piece of freehold planta- tion ground, etc. . . let to Mr. Godfrey a yearly ten- ant. The apportioned rent of the lot is £16 per annum." The defendant thinking that the rental of the moiety was £16 bid £170 for the property. If the defendant had read the rest of the conditions of the sale he would have dis- covered that the rent of what he purchased was only £8 per annum. Specific performance was refused because i * 1. (1884) 32 Kan. 5, 3 Pao. 559, 1 Ames Eq. Gas. 378. 2. M861) 29 Beav. 430, X Ames Eq. Gas. 376. ^ 163] SPECIFIC PEEirOBMANCE OF CONTKAOT. 209 of the ambiguous way in which the lot had been des- cribed; the hardship on the defendant ifi specific per- formance had been decreed is quite evident. Even tho the mistake is that of a third party it may operate to prevent specific performance. In Twining v. Morice^ the plaintiff had happened to meet one Blake just before an auction sale and asked Blake to bid for him. The other bidder^ at the auction sale thought that Blake was a puffer because he happened to be the solicitor for the vendors and therefore they did not bid. While re- fusing to give specific performance to the plaintiff part- ly because the plaintiff had innocently caused the mistake, the court refused to give rescission to the defendant, leaving the plaintiff to his remedy at law. § 163. Mistake coupled with sharp practice by plaintiff. If the plaintiff, knowing that the defendant is laboring under a mistake, takes' advantage of the mis- take the defendant can resist specific performance and perhaps, in a clear case on the facts, get rescission. Such cases nearly always involve hardship on t^e de- fendant. In Mansfield v. Sherman^ the defendant offered several lots for sale; (^ue to the negligence of the engineer in marking the lots and prices on the plan, one lot worth $12000 was offered for $2500; there was no direct evidence to show that the plaintiff in accepting the offer knew of the error, but the circumstances tended to show that he probably did. Specific performance was refused, but no rescission was given to the defendant. A very similar case was that of Webster v. Cecil;" in that case the defendant, due to an error in adding a column of figures, offered property for $1100 instead of $2100 ; the defendant had already refused to sell the property for $2000 to the plaintiff's agent. The court 3. (1788) 2 Brown's Ch. Cas. 326, 1 Ames Eq. Cas. 416. 1. (1899) 81 Me. 365, 17 -Atl. 300, 1 Ames Eq. Cas. 385. 2. (1861) 30 Bear. 62, 1 Ames Eq. Cas. 382. Eq.— 14 210 SPECIFIC PEKPOEMANCE OF CONTRACT. [ChjiEip. U refused specific performance saying that tlie plaintiff might bring such action at law as he might be advised. Under such circumstances a jury would give a very small verdict to one who was engaged in such sharp practice. If defendant had. asked for rescission and cancellation it would seem that it should have been granted, because it was quite clear that the plaintiff had snapped up the offer. In Kelley v. York Cliffs Improvement Co.* the de- fendant company had been organized in 1892 to buy and sell lands ; a by-law of the company allowed share- holders to buy land from the company with stock at par value. The company was not successful and the stock depreciated in value. In 1898, the plaintiff con- tracted to buy land of the company; the company thought it was selling for cash. The plaintiff bought up shares of stock at much less than par and tendered them in payment. No lots had ever been sold for or paid for in stock and no allusion was made to stock payment in the negotiations of the defendant company with the plaintiff. The ^harp practice of the plaintiff, coupled with the great hardship on the defendant if specific performance were decreed were relied upon by the court in refusing specific performance unless the plaintiff would pay cash; the plaintiff was thus left to his remedy at law.* § 164. Non-negligent mistake coupled with great hard- ship. Even where the mistake of the defendant has not been caused by the plaintiff and where he has not knowingly taken advantage of it, it may be ground for denying specific performance, where coupled with great 3. (1900) 94 Me. 374, 47 Atl. 898, 1 Ames Eq. Cas. 402. 4. In Joynes v. Statham (1746) 3 Atk. 388 the plaintiff wlio was asking for specific performance of an agreement to lease, had drawn up the agreement himself and omitted to stipulate that he should pay taxes; it appearing that the defendant could not read, specific per- formance was denied. / "^ 164] SPECIFIC PERFOBMANCE OF CONTRACT. 211 hardship, but rarely, if ever, a ground for rescission. In Mason v. Armitage^ an auction was being held of the defendant's land; one Rising was to put in one bid for the defendant but by mistake expected to be called upon by name and was to bid £9000. The estate was sold for £8000 to the plaintiff. The plaintiff had told the defendant that he would not buy, the defendant telling the plaintiff that Rising was to^make one bid for him. Specific performance was denied on the ground that altho the plaintiff had not caused the mistake or knowingly taken advantage of it, he had not only thrown the defendant off his guard but had led other bidders to believe that he was a bidder for the defendant. Mason v. Armitage is followed in the later English case of Day v. Wells^ in which there was no suggestion whatever of any unfair conduct on the part of the plaintiff. In that ease the defendant having an auction sale of land, thought that the auctioneer would prevent the property from being sacrificed and there- upon refrained from having any one bid for him; the auctioneer understood that there was to be no reserve and allowed property worth $240 to be sold for $162. In Malins v. Freeman' the defendant bid in the wrong lot at an auction, his mistake being due to his defective hearing. Specific performance was refused but the opinion of the court is far from satisfactory. If the decision is to be supported it must be on the ground of the hardship which would be entailed upon the purchaser to compel him to take property he did not want at any price ; but the argument of the court is all , based upon tlie ground of mistake. If the mistake had been a mutual mistake instead of the mistake of the defendant alone, the decision would have been un- assailable. The fairly recent case of Van Praagh v. 1. (1806) 13 Ves. 25, 1 Ames Bq. Cas. -374. 2. (1861) 30 Beav. 220, 1 Ames Eq. Cas. 380. 3. (1837) 2 Keen 25, 1 Ames Bq. Cas. 383. 212 SPECIFIC PERFORMANCE OF CONTRACT. [Chap, il Everidge* which is very similar in facts, gave specific performance. In Durham v. Legard," the defendant in contracting to sell an estate containing 11,800 acres to the plaintiff represented that it contained 22,000 acres. The plain- tiff sought specific performance with compensation testifying that he was influenced by size and not by rental; the defendant insisted that he had based his price on rental, not on size, and that the misrepresen- tation as to size was due to the mistake of his agent. Compensation for the deficiency was refused; it is quite likely, however, that the court would have refused specific performance without compensation if the de- fendant had asked for it. In Higgins v. Butler^ the defendant had agreed with the plaintiff to convey his interest in a piece of land worth $1200 for a horse worth $200, acting under the mistaken belief that she was not entitled to hold the land but she had only a claim against it. The court based its refusal to give specific performance upon the unsatisfactory state of the evidence. Assuming the substantial truth of the facts stated, the mistake of the defendant coupled with the great hardship on the part of a woman who was probably unacquainted with business dealings would seem to have been adequate ground for refusing relief. I § 165. Whether defendant may set up negligent mis- tike. The fact that a mistake has been made negligently is, by the great weight of authority, not important in. the law of quasi contracts.^ In specific performance, 4. (1902) 2 Ch. 266; see 16 Harv. Law Rev. 14S. 5. (186S) 34 Beav. 611, 1 Ames Eq. Gas. 395. 6. (1886) 78 Me. 520, 7 -Atl. 276, 1 Ames Eq. Cas. 419. 1. Woodward, Quasi Contracts § 15: "No matter how close at hand the means of knowledge may be, no matter how stupid or care- less the failure to ascertain the truth may be. If one confers a benefit § 165] SPECIFIC PERFOBMANCB OF CONTRACT. 213' however, it is usually taken into consideration along with other facts to determine whether the plaintiff should be given relief so that it might be sufficient to throw the scales against the defendant.* In Tamplin v, James,^ the defendant bought, just after aii auction, one •of the pieces of land not sold at the auction. Upon being sued for specific performance the purchaser set up in defense that he supposed that one of the three garden plots was included in what he bought. The auction sale map showed that it was not so included. Specific performance was decreed against the buyer on the ground that he was negligent in making the mistake. The annual rental for the garden plot was 10s per annum so that the hardship upon the defendant was very slight. In Sullivan v. Jennings* the first mortgagee who was not joined in a foreclosure suit instituted by the second mortgagee, bid in the property, acting under a mistake of law thinking that it was necessary to protect himself. To force him to take the property at the prifce bid would compel him to pay $4500 for property worth $3500. Specific performance was refused.^ Here tho under an honest mistake, i. e. In unconscious Ignorance of the truth, the retention of the beneiit Is ordinarily inequltahle." 2. This is a good Illustration of the difference between the usual working of law and equity; at law negligence in making the mistake must either be or not be a bar to relief: there is no possible middle ground; in equity it merely Influences the chancellor in the exercise of his discretion. 3. (1880) L. R. 15 Ch. Dlv. 215, 1 Ames Bq. Cas. 388. See also Western R. R. Corp'n v. Babcock (1843) 6 Metcalf 340: "He must *how an honest mistake not imputable to his own gross negligence." And see Caldwell v. Depew (1889) 40 Minn. 528, 42 N. W. 479. 4. (1888) 44 N. J. Eq. II, 14 Atl. 104, 1 Ames Bq. Cas. 393. 5. In Denny V. Hancock (1870) L. R. 6 Ch. App. 1, the failure of a purchaser at auction to -examine minutely a plan of the property did not prevent him from successfully urging mistake as a bar to specific performance. In Wood v. Scaith (1855) 10 Jur. [N. S.] 1107 the defendant in making an offer by mail to lease carelessly omitted to say that he expected a premium of £ 600; specific performance was refused. 214 SPECIFIC PBEFOBMAK'CE OF COKTEACT. [Chap. 11 the defendant was negligent In making the mistake the hardship would be very great if he were compelled to perform. § 166. Mistake of law. As a matter of principle no distinction should be drawn between mistake of law and mistake of fact and such seems to be the present tendency.* There is, of course, a perfectly soun^ doctrine that ignorance of the law does not excuse;^ this properly applies to one who has committed a crime or tort or breach of contract, but it does not properly apply to one who has commit- ted no wrong and therefore asks no excuse. The con- fusion has been brought about by stating the rule too brog,dly that every one is presumed to know the law; of course ev^n as to those seeking an excuse such a statement is a fiction; but as to others it is not only a fiition but is conducive to unfortunate results. The modern tendency in specific performance cases is shown by Twining v. NeiF in which the mistake of the purchaser as to the existence of a mortgage to- gether with hardship prevented a decree for specific performance.* 1. For a discussion of mistake of law in reformation and res- cission cases see post §§ 345, 346, 373, 374. As to mistake of law In quasi contracts see Woodward, Quasi Contracts §§ 35, 36. There has also been a tendency in the law of 'torts to hold that representa- tions of law are not actionable; this holding also should be reversed. 2. The law could hardly be administered upon any other basis. 3. (1884) 38 N. J. Eq. 470. There is a tendency to regard mis- take as to title as a mistake of fact. That law is a species of fact and that it is often very difficult to determine whether a particular mistake is one of fact/or law is a still further objection to treating them differently. . 4. See also Watson v. Marston (1853) 4 DeG., M. & G. 230, in which the defendant's mistake as to who was entitled to the surplus after the sale of mortgaged property, savad her from a decree of specific performance. The mistake was pretty clearly one of law. On the other hand, in Morley v. Clavering (1860) 29 Beav. 74, the court said that mistake of law was no defense. § 167] SPECIFIC PEBFOEMANOE OF CONTEAOT. 215 § 167. Ambiguity;' surprise. As already pointed out,^ a court of equity may refuse specific performance on the ground that the con- tract is not certain enough in its terms to permit of specific execution tho it may be certain enough to allow an action at law.^ On the other hand, where the terms of the contract are certain and clear and the parties have dealt on an equal footing, a court of equity will be disinclined to listen to a defendant who says he did not understand what was meant. In Powell V. Smith,* the defendant made an agree- ment with the plaintiff to lease certain land to the lat- ter, "lease to be for 7, 14, or — years from Sept. 29, 1870." After the plaintiff had gone into possession and had expended large sums in improving the farm, the defendant refused to give a lease unless the option of refusing a renewal were reserved to himself, as he erroneously understood the agreement to provide. The court in decreei\ng specific performance said that the defendant was bound by a fair construction of the con- tract and his misunderstanding of it was immaterial.* But even if the terms of the contract are clear, if the defendant has acted without deliberation and under confused and sudden impressions, equity may refuse to give specific performance against him on the ground of surprise, especially if there is also much hardship.^ 1. See ante § 41. ' 2. See also Baxendale v. Seale (1855) 19 Beav. 601; Neap y. Abbot (1838) 47 E. R. 531. 3. (1872) L. R. 14 Eq. 85, 1 Ames Eq. Cas. 391. 4. See also Morley v. Clavering (1860) 29 Beav. 84; Caldwell V. Depew (1889) 40 Minn. 528, 42 N. W. 479. 5. See Mathews v. Terwilliger (1848) 3 Barb. 50, 54, in which the defendant signed a written contract without noticing that it did not provide either for interest on the purchase money or for securing the principal. 216 ' SPECIFIC PERFORMANCE OF CONTRACT. [Chap, ii VII. Hardship. § 168. Hardship of defendant as sole ground. Tho hardship alone is never a ground for giving rescission it may be, if very serious, the sole basis for refusing specific performance. In Wedgewood v. Adams,^ the defendants, who were trustees, contracted to convey some land to the plaintiff free from incum- brance. To enforce the contract specifically against the defendants would make them personally liable for the iilcumbrance if the purchase money were not enough to satisfy them. Because of the great hardship on the trustees specific performance was denied, the court cit- ing as authority thei decision of Lord Hardwicke in Faihe v. Brown ;^ in that case the defendant had been devised an estate by his father, upon the condition that if he aliened it in twenty-five years, one-half the pur- chase money should go to his brother; the court said that the hardship of losing half the purchase money was a sufficient reason for refusing specific perform- ance.' In Willard v. Tayloe* the defendant had in 1854 leased to the plaintiff for ten years with an option to buy. At that time gold and silver were the ordinary money of the country. In 1862, Congress made green- backs legal tender. The plaintiff exercised his option 1. (1843) 6 Beav. 600, 1 Ames Bq. Gas. 400. 2. (1750) 2 Ves. Sr. 307 (cited), 1 Ames Eq. Gas. 397. 3. In several oases equity has refused to gire specific per- formance where it would result indirectly in a forfeiture by the defendant. Peacock v. Penson (1848) 11 Beav. 355; 16 Col. Law Rev. 410-412. In Helling v. Lumley (1858) 3 DeG. & J. 493 it was not clear whether giving specific performance of a contract for an opera seat would subject the defendant to a forfeiture of his lease but the court said it would be no defense since it would he due to the defendant's own act after the contract. If this is to be reconciled with Faine v. Brown it must be on the ground that In Faine v. Brown there was in addition to hardship some other element which does not appear. 4. (1869) 8 Wall 557, 1 Ames Eq. Gas. 404. ■^ 169] SPECIFIC PEKFORMANOE OF CONTKACT. 217 by acceptance and then sought specific performance, tendering greenbacks in payment. The court refused specific performance unless he paid in gold, the green- . backs being worth at that time only a little over one- half par, so that the hardship on the defendant would have been very severe. In Friend v. Lamb,^ the defendant, a married woman with small resources made a foolish and im- provident contract to buy land for $50,000, she agreeing to pay only $5000 down and agreeing to pay the rest in installments covering seven years. On account of the great hardship which would almost certainly result to the defendant, the court refused specific performance. In Clarke v. Rochester, etc., E. E. Co." specific per- formance was sought, not of a contract but of a statu- tory obligation imposed upon the defendant, to erect and maintain fences on the sides of their road and farm crossings for the use of proprietors of lands adjoining. The plaintiff owned two parcels of a small village lot which had been divided by the railroad right of way and was of small value ; the cost of making a farm crossing would have been very great on account of a fifteen foot embankment. As a matter of the balance of convenience specific performance was therefore re- fused.'^ § 169. Hardship on others than defendant. In some cases the fact that the giving of specific 5. (1893) 152 Pa. 529, 1 Ames Eq. Cas. 408. 6. (1854) 18 Barb. 350, 1 Ames Bq. Cas. 410. 7. See 9 Col. Law Rev. 68-70 for an argument that the 'eal basis of the hardship cases is inequality of the position of the parties due either (1) to the defendant's mental inferiority; (2) to the fact that the defendant's means of knowledge of the subject ' matter were inferior in important tespects to the plaintiff's; or (3) to events or discoveries unforseen to either party at the date of the contract which have rendered it unequal. It is rather difficult, \ however, to explain all the cases in this and the following sections on such a basis. See also 16 Col. Law Rev. 410 for a modified re- statement. 218 SPEOIFIO PEBFOEMANOB OF CONTKACT. [Chap, ii performance against tlie defendant would work a hard- ship on persons other than the defendant has been an element in refusing specific performance. In Conger V. N. Y., etc., E. E. Co./ the defendant railroad com- pany agreed with the plaintiff to erect a station at a particular place and to stop five express trains each way daily. In refusing specific performance of the contract the court rested its decision upon the slight benefit to the plaintiff, the great expense to the defend- ant and the inconvenience to public travel, the com- munity being only sparsely settled and ther' place for the station being at a sharp curve, with steep grades in both directions. In such a case, unless the plaintiff sues at law and thus extinguishes the contract, it might be possible for him later to get specific performance, e. g., if a great business boom should come to the com- munity so that the benefit to the plaintiff would be greater and the inconvenience to the defendant and the public^ would b^ less. In Curran v. Holyoke Water Co.^ after the defend- ant had contracted to convey a city lot to the plaintiff, the street line was changed ten feet so that performance by the defendant would interfere with the width of the street, and with the lines of another street, thus injur- ing the owners of other lots in the vicinity ; the de- dendant was willing to compensate the plaintiff for the ten feet. Specific performance was refusedi as to the whole lot on account of the great hardship to innocent- third parties. § 170, Hardship foreseen as a risk no defense. / Altho the mere fact that the hardship is produced by later events does not prevent its being a bar, yet if 1. (1890) 120 N. Y. 29, 1 Ames Eq. Cas. 412. For a very similar case see Goding v. Bangor & A. R. Co. (1901) 94 Me. 542, 48 Atl. 114. 2. As to public convenience being an element in refusing an injunction in non-contractual law see 28' Harv. Law Rev. 110. 3. (1^4) 116 Mass. 90>, 1 Ames Eq. Cas. 414. §. 171] SPECIFIC PERFOEMAKCB OF CONTRACT. 219 the parties contracted with reference to the possible hardships, it will have no influence upon the court in determining whether to give specific performance. In Adams v. Weare^ the defendant had contrac.ted to buy an estate of the plaintiff and the plaintiff asks specific performance. The defense set up was that the defend- ant had agreed to give nearly double the value because he expected to get the consent of a third party to the building of a mill on the premises and he had been un- able to procure such consent. Specific performance was decreed on the ground that the defendant went into the transaction with his eyes open.* VIII. Intoxication. § 171. Effect of intoxication of defendant at time of making contract. Where the paintiff has procured the defendant to be intoxicated in order to take advantage of him in making a contract a court of equity will usually give rescission on the ground that such conduct amounts to fraud. Where the plaintiff has not procured the intoxication but deliberately takes advantage of it, the case is almost as strong.^ But the mere fact of intoxication is in 1. (1890) 1 Brown Ch. Cas. 567, 1 Ames Eq. Cas. 397. A mere decline in value of the property contracted to be purchased by the defendant is no bar. Lee y. Kirby (1870) 104 Mass. 420. As to accidental loss happening after the date of the contract see ante §§ 118, 119. In most jurisdictions this is no defense. 2. Where the transaction is obviously speculative the mere fact that it turns out badly for the defendant is not a bar to specific performance. Haywood v. Cope (1858) 25 Beav. 140 (mine lease); Southern Ry. Co. v. Franklin & P. R. Co. (1899) 96 Va. 693, 32 S. E. 485 (tailroad Ifease) ; Chubb v. Peckham (1860) 13 N. .T Eq." 207 (agreement to support); Howe v. Watson (1901) 179 Mass. 30, 60 N. E. 415, 1 Ames Eq. Cas. 429 (agreement to support). See also 11 Mich. Law Rev. 147-150. 1. See Moetzel & Muttera v. Kock (1904) 122 Iowa 196, 97 N. W. 1079. 220 SPECIFIC PEEFOEMAIfCE OP CONTKACT. [Chap, ii itself no ground for resoissioi, tho it alone has been held a complete bar to affirmative relief.^ In practically all such cases where the defendant resists specific per- formance, more or less hardship would result if- specific performance were decreed. If the contract were ad- vantageous to him he would usually have performed.* IX. Lack of mutuality. § 172. Mutuality as a basis for giving relief. There are two doctrines, each of which is commonly referred to as the doctrine of mutuality, which should be carefully distinguished; for the sake of brevity and convenience one will be referred to as the doctrine of mutuality and the other as the doctrine of lack of mutuality. Tho they are sometimes so stated as to be destructive of each other, each has its separate place and function. The doctrine of mutuality has ap'parently been in- voked only in favor of vendors against purchasers,^ and in only two classes of cases. If the* subject matter of the contract is such that damages would be inadequate to the purchaser, so that he would ordinarily have ob- tained specific performance if he had sued for it, the vendor may have specific performance; that is, if the buyer's common law remedy would have been inad- equate, the court will not inquire into the adequacy of the seller's common law remedy.^ The other application is that the rule of part performance as taking a case out of the operation of the Statute of Frauds; if a pur- 2. Cragg V. Holme (1811) 18 Ves. 14 n. (12), 1 Ames Eq. Cas. 417. 3. Of course, it is assumed here that the defendant was not so intoxicated as not to have a contracting mind; if he were in such a condition he could ask for a decree of rescission on the ground of no contract. 1. Or in favor of lessors against lessees. 2. See ante '{ 48. § 173] SPECIFIC PERFORMANCE OF CONTRACT. 221 chaser is held to have sufficiently part performed by the taking of possession so that he would have escaped the bar of the statute if he had sued for specific per- formance, the vendor may likewise take advantage of' such part performance.* § 173. Lack of mutuality as a basis for denying relief. I. Lack of mutuality of obligation. The phrase "lack of mutuality" may mean either •'lack of mutuality of obligation" or "lack of mutuality of remedy." Again, the phrase "lack of mutuality of obligation" may mean either of two things. It may mean that the contract is unequal in its terms or unfair to the defendant and that to give specific performance would result in great hardship' to him ;* it may, however, mean that the contract or supposed contract was not binding upon both parties. If the contract was a uni- lateral contract, i. e., one in which an act or forbear- ance on one side was exchanged for a promise on the other, the former party is never bound and it was not intended that he should be, because no contract arises until he has fully performed the act or forbearance to be exchanged. Where he has thus fully per formed, and a pontract has come' into existence, it would seem absurd to allow the defendant to set up in defense that the plaintiff was never bound to per- form.^ If the parties had meant to enter into a bilateral contract, i. e. an exchange of a promise for a promise, but for some reason or other one of the parties 3. See ante § 132. 1. ^ee Rust v. Conrad (1882) 47 Mich. 449, 11 N. W. 265. 1 Ames Eq. Cas. 435; 14 Col. Law Rev. 686; 9 Col. Law Rev. 542; 16 Col. Law Rev. 461. The subject of hardship has already been discussed; see ante § 168. 2. See 16 Col. Law* Rev. 448. In Cortelyou v. Barnsdall (1908) 236 111. 138, §6 N. E. 200, the court not only refused specific per- formance of a unilateral contract because of lack of mutuality of obligation, but actually cancelled it. See 2 111. Law Rev. 402, 403. 222 SPECIFIC PERFORMANCE OF CONTRACT. [Chap. 11 is not bound thereby, there is no contract at all because by the common law of bilateral contracts both parties must be bound or neither is bound. There would seem to be, no necessity for applying such an imposing phrase as lack of mutuality to such a situation; it is much simpler to say that there is no contract at all. § 174. II. Lack of mutuality of remedy. The more usual meaning of the phrase "lack of mutuality" is lack of mutuality of remedy. This doctrine seems to have been formulated first by Fry as follows:* "A contract to be specifically enforced by the court must be mutual, that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other of them. When, therefore, whether from personal in- capacity, the nature of the contract or any other cause the contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against the other, tho its execution in the latter way might in itself be free from the difficulty attending its execution in the former." If this rule were literally followed, it is obvious that it would not only obliterate the doctrine of mutuality as a basis for giving specific performance,^ but it would also deprive purchasers of specific performance in all cases where the remedy at law would be adequate . for the vendors. Hence the phrase in the rule "or any other cause" and therefore the rule itself must be understood as not applying to the question of adequacy of damages;^ that question, as we have seen, i^ governed by the doctrine of mutuality as a basis for giving specific performance. In a recent edition of. Pomeroy on Equity the doctrine has been stated as foljlows: "If at the time of 1. Fry, Specific Performance, 5th Ed., § 461. 2. See ante § 172. 3. Or to the question of part performance as taking cases out of the operation of the Statute of Frauds. See ante § 132. 4. See 6 Pomeroy, Equity Jurisprudence, 3rd Ed., § 769. '^ 175] SPECIFIC PERFORMANCE OF CONTRACT. 223 filing the bill in equity, the contract being yet executory on both sides, the defendant, himself free from fraud or other pe^-sonal bar, could not have the remedy of spe- cific performance against the plaintiff, then the contract is so lacking in mutuality that equity will not compel the defendant to perform but will leave the plaintiff to his remedy at law." In the following sections the exceptions to the rules as laid down by Fry and Pomeroy will be discussed. § 175. 1. Plaintiflf has defense of Statute of Frauds.— 2. Plaintiff an infant at time of contract. 1. It is no bar to specific performance that only the defendant signed the memorandum of contract and hence that the plaintiff might have pleaded the Statute of Frauds, if he had been sued for specific performance.* Here there was mutuality of obligation in all juris-' disdiction in which failure to comply with the Statute of Frauds does not render the contract void but merely unenforcible ;^ there was no mutuality of remedy at the time of filing the bill tho there was the moment after such filing in those jurisdictions which regard the filing of the bill for specific performance as satisfying the Statute of Frauds.^ Hence this is an exception even to Pomeroy 's restatement- of the rule unless it be still further amended so as to read : "If at the moment after the filing of the bill in equity, etc." 2. It is no bar to specific performance that the plaintiff was an infant at the time of making the con- ^ tract, if at the time of filing suit he is of age ^nd ithe-refore capable of- affirmance.* The situation here is very similar to the ease just discussed of the Statute of 1. Hatton V. Gray (1864) 2 Cases in Ch. 164, 1 Ames Eq. Cas. 421; see 3 Col. Law Hev. 5. 2. In a few jurisdictions the failure to comply with the statute renders the contract void; in those jurisdictions the contract is apparently void for all purposes. 3. ■ See Carskaddon v. Kennedy (1885) 40 N. J. Bq. 259. 4. Clayton v. Ashdown (1714) 9 Vinei-'s Abridg't 393 (G. 4) pi. 2, 1 Ames Eq. Cas. 421. 224 SPECIFIC PEEFOEMANCE OP CONTHACT. [Chap. 11 Frauds. There was mutuality of obligation becaui^e an Infant's contracts are not void but merely not en- forclble against him if he chooses to set up Infancy as a defense. There was no mutuality of remedy at the time the contract was made or at the time the bill was filed tho there probably was the moment after the bill was filed, because the filing of the bill probably was such an affirmance that if he had dismissed the suit, the other party could have obtained specific performance against him. If the plaintiff had filed the bill and the question had come up for decision before he became of age specific performance would have been refused;" but if the question had not come up for decision until after he became of age, there would seem to be no good reason why specific performance should not be given. This last would be an exception even to the suggested amendment of Pomeroys 's statement. § 176. 3. Contract with a fiduciary— 4. Controxjt pro- cured by fraud.— 5. Contract with one who conveys property in fraud -of creditors. (3). Where a fiduciary to sdl has attempted to buy for himself, he cannot get specific performance of the contract no matter, how fair It is, the privilege of avoiding it being given to the other party in order to insure his protection; yet the latter may get specific performance against the former.^ (4). Similarly, one who has procured a contract by fraud is unable to get specific performance tho of course he cannot set up his own fraud in defense if he is sued by the other party.^ (5). And one who before contracting with the plaintiff has made a voluntary settlement of his property in fraud of creditors, cannot get specific performance 5. Flight V. Holland (1828) 4 Russell 299, 1 Ames Eq. Cas. 422; 3 Col. Law Rev. 1, 5. 1. See 3 Col. Law Rev. 1, 4. 2. See 3 Col. Law Rev. 1, 4. § 177] SPECIFIC PEKFOEMANCE OF CONTEAOT. 225 against the purchaser because he cannot attack- his own settlement; but he cannot resist a bill for specific performance by the purchaser on this ground.* These are exceptions to the statement made by Fry but not to the restatement of the doctrine made by Pomeroy; the latter providing for these cases by the stipulation "the defendant himself free from fraud or other personal bar." § 177. 6. Complete performance by pljlaintifF. Where the plaintiff has fully performed his part of the contract, he may get specific performance tho he could not have been compelled to perform. This is true whether the contract is unilateral or bilateral; in the former case, of course, there is no contract till such performance by the plaintiff. In Howe v. Watson^ the decedent had promised her sister, the plaintiff, to give all her property, including some land, to her if she would icome and stay with the decedent during the rest of her life. The plaintiff accepted the offer, removing from Florida ; the decedent lived, however, only thirty- eight hours after the plaintiff's arrival. The court gave specific performance,^ saying it was an exception to the doctrine of lack of mutuality. It does not appear whether the offer made by the decedent was for a unilateral or for a bilateral contract. If it were for a bilateral contract and therefore accepted by the plaintiff's letter saying she would come, specific performance could not have been had against her because it involved personal services. It it were for a unilateral contract, to be 3. Smith V. Garland (1817) 2 M^rivale 123, 1 Ames Eq. Cas. 440. 1. (1901) 179 Mass. 30, 60 N. B. 415, 1 Ames Bq. Cas. 429. 2. See also Lane v. Hardware Co. (1898) 121 Ala. 296, 25 So. 809 (contract to build a house); Thurber v. Meves (1897) 119 Cal. 35, 50 Pac. 1063, 51 Pac. 536 (contract for personal services) ; Moayon v. Moayon (1903) 114 Ky. 855, 72 S. W. ?3, (contract to become reconciled and live with the defendant, her husband). See 3 Col. Law Rev. 357, Eq.— 15 226 SPECIFIC PERFORMANCE OF CONTRACT. [Chap, ii accepted by completely performing the services, the plaintiff was of course never bound at all to perform, since she made no promise. The restatement of the rule by Pomeroy provides for this class of cases by the phrase "the contract being still executory," so that it is not an exception to the rule as so stated tho it is of course an exception to the rule as formulated by Fry. § 178. 7. Options. Where the plaintiff has made a contract with the defendant which gives the plaintiff an option for a certain time to buy* at a certain price the fact that before exercising the option the plaintiff could not have been compelled to buy, — in fact, was under no common law obligation to buy, — is no bar to specific per- formance.^ And the fact that the option was under seal without consideration is no bar' to reliefs because tho the plaintiff paid nothing for the option, he must pay for the property if he gets it, so that substantially he is not a volunteer. This is not an exception to the rule as restated by Pomeroy, because at the time of filing the bill the plaintiff must have exercised his option and therefore is himself liable for specific per- formance. It is, however, an exception to the rule as stated by Fry unless "contract" is construed to mean not the contract of option but the bilateral contract which comes into existence the moment the option is exercised by acceptance. 1. Similar reasoning applies to options to seU; Watts v. Kellar (1893) 56 Fed. 1. 2. McCormick v. Stephany (1898) 57 N. J. Bq. 257, 41 Atl. 840, 1 Ames Eq. Cas. 431. But see ante § 173, note 2. 3. Bore! v. Mead (1884) 3 N. M. 84, 2 Pac. 222, 1 -Ames Eq. Cas. 434. And this is true even tho the defendant attempts to revoke the option before, acceptanse; O'Brien v. Boland (1896) 166 Mass. 481, 44 N. E.' 602, 1 Ames Eq. Cas. 433. Whatever the correct theoretical reason therefor, an option under seal or based upon consideration is deemed to be irrevocable. See 13 CoL Law Rev. 738. TTie practical §. 179] SPEOinO PERFOEMANCE OF CONTBAOT. 227 I In Rust V. Conrad,* the plaintiffs sought specific performance of an option contract to give a lease of a mine, the option contract giving the plaintiffs (lessees) the privilege of terminating the lease on thirty days' notice. Specific performance was refused because of the privilege of putting an end to the lease, on the ground that the plaintiff might easily nullify the action of tte court. However, the plaintiff cannot immediately render the decree nugatory but only at the end of at least thirty days ; it is therefore, not like the case where an infant is denied specific performance while he is still an infant, because he can render the decree nugatory at once. The decision of Eust v. Consad has been criticised^ and the leading American case now is contra to it.« § 179. 8. Failure of vendor to get title. — 9. ContrarCt with wife and husband. (8). Where at the time the contract was made the vendor did not have good title but later procures it I convenience of holding option contracts to be irrevocable is obvious; Watts V. Kellar (1893) 56 Fed. 1. 4. (1882) 47 Mich. 449, 11 N. W. 265, 1 Ames Eq. Cas. 435. 5. See 16 Harv. Law Rev. 72, 55 Cent. Law J. 64. And the legis- lature of Michigan changed the rule by a statute giving the holder of an option for a mine lease the right to specific performance; Grum- mett V. Gingrass (1889) 77 Mich. 369, 388, 43 N. W. 999. 6. Philadelphia BaU Club v. Lajoie (1902) 202 Pa. 210, 51 Atl. 973. In that case Lajoie contracted with the baseball club to play the whole season but the contract provided that the club should have the" power to terminate the agreement on ten days notice; the club sought to obtain an injunction against Lajoie's playing for another ball club and succeeded. In order to have sufficient mutuality of obli- gation to have a valid bilateral contract it is not necessary that both parties be bound for the same length of time any more than that they must be bound to do the same 'things, but no doubt each must be bound for an appreciable time; if the club could haye discharged Lajoie upon an hour's notice, it is doubtful whether this would be considered as a contract. If, however, the obligation imposed by the contract upon the defendant is very much heavier than that imposed upon the plaintiff specific performance may be denied on the ground of hardship. See ante § 168. 228 sPECinc peepobmance of contract. [Ohap. ii before the purchaser learns of the defect or before he repudiates the contract the vendor may by the weight of authority obtain specific performance against the pur- chaser.^ This is obviously an exception to the rule as stated by Fry but not to Pomeroy's restatement, be- cause at the time of filing suit the purchaser would be able to get specific performance against the vendor. There are a few cases denying relief, on the mechanical ground of lack of mutuality.^ (9). A somewhat similar case is that of Fennely v. Anderson,^ In that case the defendant had contracted to buy some land, from some married women the contract having been signed by their husbands also. The defense set up to a bill for specific performance was that the married women could not have been compelled to convey since as to them the contract was not only unenforcible, but void. The court gave specific performance, however, remarking that it was one oj the exceptions to the doctrine of lack of. mutuality of remedy. It is to be observed here that this case is an ex- ception even to the rule as restated by Pomeroy, and to its suggested amendments since the filing- of the bill would not bind the married women to the contract.* § 180. 10. Lumley v. Wagner. (10). As already explained,' the injunction in Lumley V. Wagner was given against Miss Wagner's 1. Dresdel v. Jordan (1870) 104 Mass. 407, 3 Col. Law Rev. 1, 7, note 3. 2. Norris v. Fox (1891) 45 Fed. 406, l.Ames Bq. Cas. 426 and cases cited In note. 3. (1851) 1 Ir. Ch. 706, 1 Ames Eq. Cas. 423. See also Logan v. Bull (1880) 78 Ky. 607, where the contract was made with the husband but the title was In the wife; she being willing to convey, specific performance was decreed against the purchaser. 4. Tho there might have been a validation of the contract under statute 4 and 5 Wm. IV. v. 92, the filing of the bill would apparently not satisfy the statute. 1. See ante §§ 73, 78. § 181] SPECIFIC PERFORMANCE OF CONTRACT. 229 singing at other theaters in spite of the fact that Miss Wagner could not have obtained affirmative performance from Lumley; however, since in converse circumstances^ she might perhaps have obtained an injunction against Lumey's hiring another in her place, it is fair to say that there was mutuality of remedy. If, however, she could not have obtained such negative relief, then the decision is an exception to all of the suggested forms of the rule, because even after ihe decree she would be no better entitled to an injunction than she would at any earlier, time. The decisions which are inconsistent with the case of Lumley v. "Wagner are usually placed on the ground of lack of mutuality of remedy. In Hills v. CroU,* the defendant had agreed to buy from the plaintiff all the acids he should require for the manufacture of sulfate of ammonia and to sell to the plaintiff all the sulfate of ammonia which he might manufacture, the plaintiff promising to supply the acids and the de- fendant promising to buy from no one else. Later the defendant began buying acids from others; the court refused to enjoin this on the ground that it could not compel the plaintiff to furnish all the acids the de- fendant might need.. If the acids were unique or difficult to procure, the court probably would be willing to give such relief to the defendant if he had sued; but if the acids were easily procurable elsewhere the case is sound, on the simple ground of the adequacy of the common law remedy. § 181. III. Lack of mutuality of performance. The doctrine of lack of mutuality of remedy, no matter how stated, is at best artificial and mechanical. The substantial principle really involved in this class of cases is that which underlies the modern common law doctrine of so called conditions implied in law. That 2. See ante § 78. 3. (1845) 2 Phillips GO, 1 Ames Eq. Cas. 427. 230 SPBOIFIO PERFORMANCE OF CONTRACT. [Ghap. ii principle is briefly and roughly this : a defendant should not be held liable at common law in an action for damages or in equity compelled specifically to perform his promise unless in the former case the defendant had an opportunity of getting the plaintiff's performance for which he had bargained or in the second case, unless equity is able to give such performance to the defendant either at the time of the decree or later.^ If it be desired to retain the word mutuality this well settled principle may be called the doctrine of the lack of mutuality of performance.^ Altho the decisions show ten classes of cases that are exceptions to the doctrine of lack of mutuality of remedy as stated by Fry and at least four^ to the doctrine as restated by Pomeroy, there is no class of cases in which the weight of authority is not entirely consistent with the principle of lack of mutuality of performance. In (1), (2), (3), (4), (5), (7), (8), (9), ante, the ordinary conditional decree protects the defendant by providing for simul- taneous performance by the plaintiff and the defendant ; in (6), where the plaintiff has already fully performed, such protection is obviously unnecessary; while in (10) the defendant who is willing to work for the plaintiff after the injunction is granted may have the injunction dissolved if the plaintiff should later default in his performcince.* 1. The first formulation of this was by Professor Ames, 3 Col. Law Rev. 1, 12: "Equity will not compel specific performance by a defendant, if after performance the common law remedy of damages would be his sole security for the performance of the plaintiff's side of the agreement." See also 23 Harv. Xaw Rev. 294. 1 2. This phrase is suggested in 3 111. Law Rev. 608, 612. 3. Namely the (1), (2), (9), and (10) ante. 4. See ante § 78. / CfHAPTEE m. SpEorpic Eepajration and Pebvention of Torts. A. In GrENEBAL. § 182. Analogy of torts to contracts. The general attitude of courts of equity toward reparation and prevention of torts is similar to their attitude toward enforcing performance of contracts; relief is given only where the remedy at law is in- adequate and where the balance of convenience is not against giving the relief. In the exercise of its juris- diction over trespass, however, history has played a large part. Specific reparation of torts is analogous to the specific performance of affirmative promises while prevention of torts is analogous to the specific per- formance of negative promises. B. Waste. § 183. Common law definition of waste. At common |law waste consisted of any act done by one who was rightfully in possession of land but who possessed an estate .less than an estate of inheritance, which resulted in injury to the inheritance or in such a change of the appearance of the land that it would be difficult to identify it.^ Thus a change of meadow land into arable lanql or vice versa was considered waste* for rnis reason, and so was the putting up of new 1. Tiffany, Real Property | 243. 2. Simmons v. Norton (1831) 7 Bing. 640. (231) .. 232 EEPAEATION AND PREVENTION OF TOETS. [Chap, lii houses.* But with improved methods of identifying lands, and in this country with the adoption of the registry system such changes are not in themselves waste* unless they also injure the inheritance.^ The definition of waste just given confines it to acts done, but it might also consist of omissions, in which cases it was called permissive as distinguished from active or voluntary waste. In England apparently a tenant for years was liable at common law for per- missive waste but not a tenant for life;* but in this country both are liable.'^ Permissive waste consists in failing to use due care to prevent injury to the land and building by fire, water, etc.; by the modern view the tenant is not liable for accidental injury, or for the unauthorized act of a stranger.* Where the act of the tenant resulted in an increase of value of the property it was usually called ameliora- 3. Where the new buildings may be removed at the en^ of the term witliout much inconvenience, leaving the property in the same situation! as it was at the beginning of the tenancy it is not now con- sidered to be waste; Winship v. Pitts (1832) 3 Paige 259. " 4. Pynchon v. Stearns (1846) 11 Mete. 304; 14 Harv. Law Rey. 226. See Tiffany, Real Property § 243: "The general tendency of the American courts has been to restrict the application of the Eng- lish law of waste, in order to adapt it to the conditions of a new and growing country and to stimulate the development of the land by the tenant in possession." 5. But one entitled to the inheritance is not barred from ob- jecting merely because changes made will increase the value of the land where, for example, the entire character of a building is altered. Smyth V. Carter (1853) 18 Beav. 78; Tiffany, Real Property § 251. See also Charity Board v. Waterworks Co. (1900) 1 Ch. 624 (putting, rubbish on the land which impaired its value for building purposes tho it may have enriched the soil) 6. But there seems to be some doubt. Tiffany, Real Property $ 254; 13 Harv. Law Rev. 151. 7. Moore v. Townshepd (1869) 33 N. J. Law 284; Stevens" v. Rose (1888) 69 Mich. 259. But a tenant at will has never been held liable toT permissive waste. Tiffany, Real Property § 254. 8. The rule was formerly contra, see 15 Col. Law Rev. 253; 28 Harv. Law Rev. 637; Tiffany, Real Property | 254. <§! 184] REPARATION AND PREVENTION OF TORTS. 233 ting waste® to distinguish it from destructive waste which resulted in reducing the value of the inheritance. § 184. Common law and statutory actions for waste. By the early common law only tenants who were in by act of law, such as tenants in dower or by curtesy were liable for waste ; tenants who were in by act of the parties, such as tenants for life or for years were not so liable on the ground that the lessor could have pro- tected himself by a specific provision in the lease.'^ In 1267, however, the Statute of Marlbridge^ was passed making lessees liable for full damage; and in 1278 the stringent Statute of G-loucester^ provided that the person committing waste should forfeit his interest in the land and should pay besides "thrice so much as the waste shall be ta^ed at." Whether these statutes are a part of the common law of this country seems ^to be a disputed question.* Where they are not in force an action on the case in the nature of waste^ will lie for the actual damage done so that the question is im- portant practically only because of the provision in the Statute of Gloucester for forfeiture and treble damages. The forfeiture provision of the Statute has not been favored by the courts.® The common law action of waste could be brought only by one who had an immediate estate of inheri- tance.'^ Hence, if land be conveyed to A for life, B for 9. See 14 Harv. Law Rev. 226. 1. Co. Litt. 54; Tiffany, Real Property § 255. This statement which has come down from Lord Coke has been challenged by Pro- fessor Kirchwey in 8 Col. Law Rev. 425-437. 2. 52 Hen. III. c. 23 § 2. 3. 6 Edw. 1, c. 5. 4. Tiffany, Real Property § 255; 22 Harv. Law Rev. 149. In some states there are express statutes giving an action for waste. 1 Stimson's Am. St. Law § 1332, § 1343. 5. See Thackeray v. Eldigan (1899) 21 R. I. 481, 44 Atl. 689. 6. Williard v. WiUlard (1867) 56 Pa. St. 119, 129. '7. Co. Litt. 53h, 218b. Butler's note, 1 ilnes Bq. Cas. 467 note. This was apparently because it would have involved a three sided suit. 234 IffiPAEATION AND PREVENTION OF TOKTS. [Chap. Hi life, C in fee, neither B nor C could bring the common law action of waste against A during B's lifetime. The defect being only procedural, could bring the action after B's death if B should predecease A.* An action on the case was allowed, however, to any one whose estate was injured by the acts of waste.' Hence either B or C or both of them might have had an action on the ease for the damages sustained.*" § 185. Equitable remedies for common law waste. At common law the only relief which the plaintiff could get, whether he brought the old common law action of waste or an action on the case, was money damages for injuries already inflicted. A court of equity by its power to issue a command to a defendant, is able to prevent the injury and will do so where the injury threatened is so serious that the common law remedy is inadequate. And an injunction will issue whether the appropriate remedy at law would have been an action of waste or an action on the case* or if no action at.all See ante § 5. For a discussion of the additional requirement of privity see Tiffany, Real Property § 255. 8. Perrot's Case (1599) Moore 368, 387, 1 Ames Eq. Cas. 467 note. 9. Green v. Cole (1682) 2 Saund. 253 note. And see Tiffany, Real Property, § 255. 10. When the tenant was held liable in waste for unauthorized destructive acts committed by a stranger he was of course entitled to recover from the stranger in an action of trespass, not only for the damage alone to his own interest in the^ property but also for the damage to the estates in remainder or reversion. And even now, when he is no longer liable for such unauthorized acts, he Is still al- lowed to recover the full amount, being liable over for the excess. This is justified on the score of procedural convenience in anology to a recovery by a bailee against a third person. See 15 Col. Law Rev. 253; 28 Harv. Law Rev. 637. 1. See Whitfield v. Bewlt (172i) 2 Peere Wms. 240, 1 Ames Eq. Cas. 460; Anonymous (1599) Moorp 554, pi. 748, 1 Ames Eq. Cas. 467 (plaintiff did not have the immediate estate of inheritance). §. 185] REPAEATION AND PREVENTION OP TOETS. 235 would have lain.* On the other hand, an injunction will not be given if the injury threatened is merely trivial and could be conipensated in damages and a fortiori where the waste is ameliorating.^ In Doherty v. AU- •man* leases for 999 and 988 years respectively had been granted of store buildings. Some fifty years thereafter the neighborhood ceased to be a business neighborhood and the lessee was about to change the buildings so that they could be occupied as dwellings. An injunction against such changes was refused on the ground that since the store buildings were no longer 'worth anything the changes were, if waste at all, ameliorating waste. As to permissive waste, the decree sought for would obviously be an affirmative one; since this would involve the difficulties of supervision^ it would require 2. It is not clear in aU jurisdictions that there is an action on the case, but this would not deter equity from giving an In- junction; 1 Ames Eq. Cas. 4G8 note. Furthermore, equity has interfered by injunction to protect Interests of much less magnitude than estates in fee or' for life. Thus It has protected a wife's in- choate dower; Rumsey v. Sullivan (1915) 150 N. Y. Supp. 287, 28 Harv. Law Rev. 615; an interesse termini, Evans v. Prince's Bay Oyster Co. (1915) 154 N. Y. Supp. 279, 29 Harv. Law Rev. 101; and contingent future interests, 4 111. Law Rev. 428. The fact that the Interest to be protected is that of an unborn infant Is no bar to relief. Lutterel's Case (1670) Precedents in Ch. 50 (cited) 1 Ames Eq. Cas. 488. That the Incoming tenant may restrain an outgoing tenant from removing fixtures (radiators, etc.) see Pal- mer V. Young (1903) 108 111. App. 252. And a landlord may get an injunction against waste by a sub-tenant tho there is no privity of estate or contract; Peer v. Wadsworth (1904) 67 N. J. Eq. 191, 58 Atl. 379. 3. Mollineaux v. Powell (1730) 3 Peere Wms. 268 n. (F), 1 Ames Eq. Cas. 468. It was suggested in that case that the re- mainderman in fee should always be made a party because he might approve of the waste; but even If he should approve of It, this ought to be no bar to the holder of the intermediate estate getting an injunction; the latter's rights ought not to depend in any way upon the consent of the holder of the fee. 4. (1878) L. R. 3 App. Cas. 709, 1 Ames Eq. Cas. 462; 14 Harv. Law Rev. 226. 5. As to the difficulty of supervision in cases of specific per- formance of contracts see ante f 63, 236 EEPARATION AND PREVENTION OF TOBTS. [Chap, ill a jelatively serious injury to obtain equitable relief; there are few if any cases^ where relief has been granted. § 186. Exemption from liability for waste —"equitable waste." ' A tenant in fee may do with his land exactly as he pleases so long as he does not violate the rights of his neighbors. He may cut or burn the timber, destroy the buildings, and sow the land to salt if he so desires without incurring any liability therefor either at common law or equity. His own self interest is considered to be an adequate safeguard against such destructive acts. The same is true of the tenant in tail so long as there is- possibility of issue, because he may bar all the re- mainders and make his estate into a fee simple.^ In England, it became quite common for the in- strument creating an estate for life or years to provide that the tenant shall be "unimpeachable for waste" or "without impeachment of waste. "^ The effect of this at common law was to give to such a tenant the same power and immunity in dealing with the land as if he were the owner in fee simple in possession.^ Equity, however, placed a limit to this common law immunity by enjoining an unreasonable destruction of the property, and such an abuse by a tenant unimpeachable at law 6. Relief was refused In Castleman v. Craven (1733) 22 Vlner's Abridg't 523, pi. 11, 1 Ames Bq. Cas. 466 (allowing houses to go out of repair). See also Powys v. Blagrave (1854) 43 E. R. 582. 1. Savile's Case, Cases, tempore Talbot 16 (cited), 1 Ames Eq. Cas. 472 (the tenant in tail, an Infant In poor health, was proceeding to cut down a large amount of timber). See also Gannon v. Peterson (1901) 193 111. 372, 62 N. B. 210 (holder of determinable fee who was still likely to have children). 2. This was apparently done to avoid the possibility of a forfeiture of the estate under the Statute of Gloucester. The doc- trine has been fully developed in England but there are only a few American cases; Tiffany, Real Property § 252. 3. Bowles' Case (1615) 11 Coke 79. § 187] SEPAKATION AND PEEVfiNTION OF TOETS. 237 came to be known as ' ' equitable waste. ' '* The more common instances of such abuse are the cutting of orna^ mental timber,'^ or of very young timber* or of an unreasonably large amount of timber'' and the destruc- tion of buildings.^ § 187. Same— persons affected by the doctrine. The jurisdiction of equity in equitable waste was later extended so as to include not only tenants for life or years who had been expressly unimpeachable for waste but also those whose estates were considered of greater dignity than a simple life estate but whose self interest* might lead them to an abuse of the property. It thus includes tenant in tail after possibility of issue extinct,^ jointress in taiP and tenant in fee subject to an execu- 4. This Illustrates the greater flexibility of equity. The com- mon law courts would have found it difficult if they had tried, to take a middle ground between holding such a stipulation entirely Valid and entirely void; but equity could restrain abuse while allowing reasonable use. 5. Packington's case (1744) 3 Atk. 215, 1 Ames Bq. Cas. 469, note. 6. Aston V. Aston (1749) 1 Ves. Sr. 264. 7. Bishop of Winchester's case (Prior to 1638), Rolle Abrldg't, 380 (T. 3), 1 Ames Eq. Cas. 469; Robinson v. Lytton (1744) 3 Atk. 269. 8. In Vane v. Lord Bernard (1716) 2 Vernon 378, 1 Ames Eq. Cas. 470 the defendant had stripped Raby Castle of the lead, iren, glass doors and boards; the court gave specific reparation by com- pelling the defendant to restore the castle to its original condition. See also Bishop of London v. Webb (1718) i Peere Wms. 527. But where the mansion house had become undesirable for a residence and the' materials in it were used in rebuilding, relief was denied. Morris v. Morris (1858) 3 DeG. & J. 323. 1. This would most likely happen where the holder of the particular estate is unfriendly to the holder of the fee and de- sires to enrich himself or his personal representatives at the fee holder's expense. 2. Williams v. Day (1680) 2 Cases in Ch. 32, 1 Ames Eq. Cas. 478. ' 3. Skelton v. Skelton (1677) 2 Swanst. 170, 1 Ames Eq. Cas. 473. 238 'bepakation and pbevention of tokts. [Chap, iii tory devise over.* A somewhat similar jurisdiction is exercised to protect the interest of a mortgagee against a mortgagor in possession to prevent the latter from so using the land as to impair the security of the former;'' and to protect the interest of an unpaid vendor against a purchaser in possession.* A mortgagee in possession has no greater right in using the land than a simple tenant for life or years and may be enjoined from committing legal waste, the mortgagor being regarded in equity as the owner of the land. A more difficult question is presented in the case where a tenant in common out of possession seeks to enjoin his cotenant in possession from committing acts of waste.'' If the plaintiff has already brought a bill for partition of the land, equity will by injunction pre- serve the status quo till the partition suit is decided.® If the plaintiff has not brought suit for partition he can prevent an unusually destructive use of the property, 4. Turner v. Wright (1860) 2 De G., Fisher & Jones 234, 1 Ames Eq. Cas. 476. -S. Brady v. Waldron (1816) 2 Johns Ch. 148, 1 Ames Eq. Cas. 483. The jurisdiction is limited to acts which might impair the security in the particular case; if the threatened act would not injure the security the mortgagee apparently can not enjoin, no matter how destructive the act may be; King v. Smith (1843) 2 Har* 239. Nothing here turns upon whether the legal title or legal lien theory of mortgage is followed. 6. Crockford v. Alexander (1808) 1;5 Ves. 138, 1 Ames Eq. Cas. 221. The principle also protects the holder of a ground rent against acts which tend to impair his security. Crowe v. Wilson (1886) 65 Md. 479; a judgment creditor, Jones v. Britton (1889) 102 N. Ca. 166, 9 S. E. S44; and see 1 Ames Eq. Cas. 484 note. As to the right of the mortgagor or vendor to sue at law for the im- pairment of security, see 22 Harv. Law Rev. 387. There can ob- viously be no recovery after the mortgage debt or purchase price has been paid. 7. The right to sue at law was given by St. Westm. II. (1285) 13 Edw. I, c. 22. See Tiffany, Real Property § 267. 8. Hawley v. Clowes (1816) 2 Johns Ch. 122, 1 Ames Eq. Cas. 484, (injunction granted against cutting of timber except that wanted for the necessary use of the farm.) § 188] SEPABAtlON kUb tEEVENTiON OF TOETS. 239 upon the principle of equitable waste.* Whether he can get relief against legal waste without bringing suit "for partition seems to be unsettled but the better view is that he cannot.^" § 188. Basis for the doctrine. It is usually stated that the doctrine of equitable , waste is based upon the presumed intention of the creator of the estate.^ Upon this theory it has been held that if trees were intended by the testator to be ornamental the remainderman in fee may enjoin their destruction without regard to whether they were orna- mental in fact f and Lord Eldon held that if the trees were not planted or left standing for ornament, no injunction would issue tho they were in fact ornamental.' If the intent of the creator of the estate were the real basis a provision that a life tenant shall have as full and complete control of said premises as if he held the fee would deprive the remainderman in fee of equitable 9. McCord V. Oakland Quicksilver Mining Co. (1883) 64 Cal. 134, 144, 27 Pac. 863. 10. Mott V. Underwood (1896) 148 N. Y. 463, 42 N. B. 1048 (co-tenant may remove oysters from oyster bed) ; but see William- son V. Joaes (1897) 43 W. Va. 662, 27 S. B. 411 (co-tenant may not take petroleum oil); Murray v. Haverty (1873) 70 111. 318 (co- tenant may not dig coal). In the last two cases the burden is thus thrown upon the tenant in possession to bring . the bill for parti- tion if he is not satisfied. 1. Ormonde v. Kynersley (1820) 5 Maddock 369: "The pre- sumed intention of the testator that he meant an eaual benefit to all in succession." The extension of the doctrine to the holder of a fee subject to an executory devise over was also made upon the basis of the supposed intent of the testator; Turner v. Wright (1880) 2 De Gex, Fisher & Jones 234, 1 Ames Eq. Gas. 476. 2. Wombwell v. Belasyse (1825) 6 Ves. 110 a, note. 3. Coffin v. Coffin (1821) Jacob 70; but see Packington's Case (1744) 3 Atkyns 215. If the trees have been planted or the build- ings erected by the tenant, it is obviously not equitable waste for the tenant to remove them. Pevis v. Pevis (1750) 1 Ves. 621. 240 EEPAEATION AND PKEVENTION OF TORT.-. [Cliap. iu reljef; but the few decisions on the point are contra* and right, because the real basis of the doctrine is the public and social interest in the economic and beneficial use of the land.' § 189. Equitable relief after waste has been committed. After waste has been committed equity may com- pel the defendant to restore the premises to their former condition if that is feasible;^ but instances of such affirmative decrees are rare.- Where an ordinary tenant for life or years has committed waste and the plaintiff does not ask an affirmative decree by way of specific reparation of past waste or an injunction to prevent future waste, equity wiU not ordinarUy entertain the suit for compensation^ because the common law remedy is adequate. But if a tenant who is not impeachable for waste has committed equitable waste equity will entertain a suit for com- 4. Duncomlie v. Felt (1890) 81 Mich. 332; Stevens v. Rose (1888) 69 Mich. 259 ("to use and control as the lessee thinks proper, for his benefit during his natural life"). 5. In its origin it no doubt had also an ethical basis. See Mickle- thwait T. Micklethwait (1857) 1 De G. & J. 504, 524: "At law a tenant for life without impeachment of waste has the absolute power and dominion over the timber upon the estate, but this court controls him in the exercise of that power, and it does so, as I apprehend, upon this ground, that it will not premit any unconscientious use to be made of a legal power." 1. Where the waste has consisted in cutting down timber or re- moving minerals from the land, specific reparation is obviously physi- cally impossible. 2. Vane v. Bernard (1716) 2 Vernon 338, 1 Ames Eq. Cas. 470 (decree to repair and restore a partially dismantled castle) ; Klie V. Von Broock (1897) 56 N. J. Eq. 18, 37 Atl. 469 (decree that door way though partition wall be closed, and plaintiffs given the option of doing the work). 3. Lippincott v. Barton (1886) 42 N. J. Eq. 272, 10 Atl. 884; Jesus Cqllege v. Bloom (1745) Ambler 54, 1 Ames Eq. Cas. 481. Where the court does grant an injunction to stay future waste, it will, on the principle of doing complete justice, compel an account of previous waste. § 190] EEPAEATION Ind PEEVENTION OF TOKTS. 241 pensation even tho no injunction or affirmative (Jecree is asked, because the doctrine of equitable waste is not recognized at common law.* Where waste has consisted in creating chattels by- severance from the soil, equity will not enjoin their removaP from the land even tho an injunction against future severance is asked and given, unless the de- fendant is insolvent" or other special circumstances ap- pear/ § 190. The right to the proceeds af waste. Where timber has been cut under order of an equity court the proceeds of the timber become a trust fund for the benefit of the tenant or tenants for life in succession until the first tenant for life without im- peachment for waste is reached, who takes the principal.' Such a result would seem to be the most desirable in i. Lansdowne v. Lansdowne (1815) 1 Maddock 116, 1 Wmes Eq. Cas. 482 note 5. Watson v. Hunter & McClay (1821) 5 Johns Ch. 169." Ordina- rily the common law remedies of case, trover or replevin are adequate. As to equity preventing the removal of chattels generally see ante § 44, and post § 202. 6. As to the effect of insolvency in trespass cases see post § 201. Equity will also enjoin removal of goods where there would be irreparable injury to the plaintiff's business; Watson v. Sutherland (1866) 5 Wall 74, 1 Ames Bq. Cas. 531 (defendant threatened to levy upon plaintiff's stock of goods). 7. Whether a mortgagee can prevent the removal of chattels wron- fuUy severed by a mortgagor would seem to depend upon which theory of the mortgage is followed. Under the legal title theory the mortgagee has the legal title to the chattels and may prevent removal if the mortgagor is insolvent or the legal remedy is otherwise inadequate. But where the legal lien theory is followed the mortgagee can not bring trover for severed chattels; Cooper v. Davis (1843) 15 Conn. 556 and therefore can not get an injunction; Bank of Chenango v. Cox (1875) 26 N. J. Eq. 452; see 1 Ames Eq. Cas. 484 note. 1. Gent V. Harrison (1859) Johnson 517. In Bewick v. Whitfield (1734) 3 Peere Wms. 267 where there was apparently no intervening life tenant unimpeachable for waste, the court said that the proceeds of timber so cut because it was decaying should go to the owner of Eq.— 16 242 KEJPAEATION AND PEEVENTION OF TOKTS. [Chap, iil all other cases where the tenant in possession is not at fault,^ as for example, where the timber has been wrongfully cut by a stranger or has been blown down by a storm; and this principle has been recognized to the extent that if the timber is thus severed while a tenant unimpeachable for waste is in possession, the latter, not being in fault, is entitled to the timber^ just as if he had himself cut it.* But where the tenant in possession is impeachable for waste and timber is destroyed either by himself or a stranger or a storm, and there is no ground for getting into equity the proceeds' must go as a lump sum; since, therefore the estate of a succeeding tenant without impeachment may never come into possession,® the one holding the first estate of inheritance is entitled.'^ the first estate of Inheritance, subject to the right of the tenant in possession to have enough timber left for repairs and botes and to compensayon for any damage suffered. 2. If the tenant in possession has wrongfully cut down timber he should not be allowed to derive any benefit from the proceeds of such timber. Lushington v. Bolden (1851) 15 Beav. 1 (tenant for lite without impeachment of waste cut down ornamental timber). See also Lansdowne v. Lansdowne (1815) 1 Maddock ll6; the case being in an equity court the court directed that the proceeds be Invested for the benefit of those in succession. 3. Anonymous (1729) Moseley 237 (cut down by stranger); Bateman v. Hotchkin (1862) 31 Beav. 486 (timber blown down); In re Barrington (1886) L. R. 33 Ch. Dlv. 523 (coal severed by stranger). 4. A tenant unimpeachable for waste who does not abuse his privilege is entitled to keep the timber thus severed. Bowie's Case (1615) 11 Coke 79. 5. /. e., of the timber blown down or of the common law cause of action against either the tenant or the stranger. 6. That a tenant for life without impeachment may not bring trover for timber felled before his estate has come into possession, see Plgot v. Bullock (1792) IVes. Jr. 479, 483. 7. Whitfield V. Be wit (1724) 2 Peere Wms. 240, 1 Ames Eq. Cas. 460; TifCany, Real Property § 256. In Williams v. Duke of Bolton (1784) 1 Cox 72 the defendant had an ordinary life estate and a vested remainder in fee, there being some intermediate contingent estates of inheritance; the court ordered the proceeds of the waste to be paid Into court with liberty to anyone interested to apply; the court was ^ 192] REPARATION AND PREVENTION OF TORTS. 243 C. Trespass. /. Trespass to land. § 191. Common law aad equitable remedies for trespass to land. The common law action of trespass quare clausum f regit lay only in favor of one in possession of land against one who directly^ interfered with such posses- sion:^ if the land was in the possession of the holder of a particular estate and the plaintiff wished to recover damages for the injury to his reversionary interest by a stranger,^ he was compelled to bring an action on the case;* and if the land was in the possession of the de- fendant himself the plaintiff could not bring either trespass or case but must bring ejectment.** In all of the cases just outlined equity calls the act of the defendant a trespass and under some circum- stances will enjoin threatened trespasses and give specific reparation for trespasses already committed. § 192. Requiring the plaintiff to establish his right at law— early rule. Logically one would expect that courts of equity would give a remedy in all cases where the common law influenced by the fact that the holder of the vested remainder waa also the tort feasor. The ground for equity jurisdiction in the case does not appear. 1. For Indirect interference with possession — for example, acts amounting to a. nuisance — he must bring an action on the case. See 90St § 204. 2. Since trespass was used not only to recover for actual loss suffered but also to obtain a declaration or vindication of his prop- erty right, he was entitled to recover a judgment for nominal dam- ages tho he had suffered no loss. 3. If the injury was occasioned by the tenant it was waste; see ante § 183. 4. Unless he has peaceably repossessed himself, in which case he may then bring an action of trespass for mesne profits. See injra Bote 6. ' 5. After getting the judgment in ejectment the plaintiff could then bring an action of trespass for mesne profits which was in sub- stance quasi contractual. See 1 dhitty. Pleading § 215; Woodward, Quasi Contracts $ 284. 244 EEPARATION AND PREVENTION OF TOETS. [Chap, ill 1 remedy is not adequate, just as in cases of waste; but the early rule was that if the defendant disputed the plaintiff 's title or in any other way^ claimed a . right to do the act threatened, the mere fact that there was a dispute precluded equitable relief. In Pillsworth v. Hopton^ Lord Eldon said: "I remember perfectly being told from the bench very early in my life that if the plaintiff filed a bill for an account, and an injunction to restrain waste,^ stating that the defendant claimed by a title adverse to his, he stated himself out of court as to the injunction."* At that time there were two fairly adequate reasons for the rule. One was that the method of trial by deposition in equity courts was not as satisfactory for dealing with complicated questions of property or torts^ 1. For example, If he claimed an easement or profit over tlae plaintiff's land. 2. (1801) 6 Vesey 51, 1 Ames Eq. Cas. 488. In Mogg v. Mogg (1786) Dickens 170, 1 Ames Bq. Cas. 486 tke defendant had been persuading the plaintiff's tenants to cut down timber; the courc refused an injunction upon the sole ground that the defendant was a trespasser tho it did not appear that the defendant claimed any right. And in Mortimer v. Cottrell (1789) 2 Cox 205, 1 Ames Eq. Cas. 487 where the defendant kept on digging in a brick field the court said that "there was no case where this court would interfere by injunction, where the party was a mere stranger, and might be turned out of possession immediately." \ 3. The term waste is used here to mean a destructive act com- mitted by anybody; in a technical sense the term is used to mean a destructive act by one rightfully in possession; see ante § 183. 4. By the very definition of waste in the technical sense no question of title could arise because it is not waste unless the de- fendant is lawfully in possession. The only question of fact that could arise would relate to the act of the defendant; apparently no contention was ever made that such a question should be passed upon by a jury, perhaps because the jurisdiction of equity over waste became well settled comparatively early. 5. In specific performance cases questions of fact — other than those involved in the construction of the contract — were rarely com- . § 193] EBPAEATION AND PEEVENTION OP TOETS. 245 as a trial in open court which is the normal method under the common law. This has disappeared practical- ly everywhere, equity suits being tried in much the same way as common law actions are tried, the equity judge even considering himself bound by common law rules of evidence tho their existence is to be justified almost entirely by the method of trial by jury. The other was that at that time in England the Chancery court sat only at Westminster while common law courts sat in various parts of the country; hence after the method of trial had been chapged and witnesses were examined in open court it would cause a great expense to have them all come to London.® At the present time, in probably every Anglo-American jurisdiction, courts of equity are as accessible to suitors as are common law courts. § 193. Same — later development. With the disappearance of the reasons for the rule,^ the rule itself should have disappeared^ because it was plicated; and the construction of the contract was of course fov the court and not for the jury. 6. In Salvin v. North Brownspeth Coal Co. (1874) L. R. 9 Ch., App. 705 the court In discussing the appeal says that "it is im- possible not to be influenced by this consideration; that an enor- mous expense has been incurred by the trial in this court " and by bringing up the witnesses to London." This was just before the Judicature Act, which made equity practically as accessible as law in England. 1. In the United States Questions of title have been rendered less complicated than in Engfand by the registry system. 2. Query as to how far the constitutional right to trial by jury is involved here. If in 1789 the defendant had a well settled right to trial by jury in trespass cases, he may probably still claim it, but assuming such a constitutional right it would not in most jurisdictions require the submission to a jury of a question which was not doubtful even tho it were contested. And further- more it would seem that the constitutional provision would be satisfied in these cases if the equity judge should himself summon a jury to determine the disputed question. 246 BEPABATION AND PREVENTION OF TORTS. [Chap, ill not a limit upon the existence of equity jurisdiction* but merely upon its exercise as a liiatter of convenience and expediency. But the reasons for the rule were not well understood and hence the rule in modified form still persists in probably the large majority* of jurisdictions. As modified the rule is substantially as follows: If there is a bona fid6 and reasonable dispute as to title, equity will give a temporary injunction to preserve the status quo till the Ifegal right can be settled at law; if the defendant is in possession the burden will be upon the plaintiff to establish his. title by bringing ejectment and it will be necessary for him to make out a more serious case for equitable relief than if the defendant were not in possession. If the plaintiff is in possession and the defendant has actually committed a trespass the burden will be upon the plaintiff to test his lega;l right by an action of trespass quare clausum, but if the defendant has merely threatened a trespass the burden will be upon the defendant to bring eject- ment. If the holder of a particular estate is in posses- sion the plaintiff cannot, of course, bring trespass; but he can bring an action on the case if he can show an injury to his reversionary interest ; if there is an injury to his reversionary interest the burden will be upon him to establish his title by bringing such an action on the case; if there is no injury to his reversionary interest and none is threatened', he does not need an injunction. 3. Hence, if the defendant has in the court below not raised the point as to prior determining at law it is then too late, and the appeal court may determine the question. 4. In England the rule has been changed by Lord Hale's Act (1862) 25 & 26 Vict. c. 42, providing that the court of chancery in these cases in which it would ordinarily either refuse or post- pone relief until after a trial at law, should thereafter either determine the dispute'' question Itself or dirct an issue to a jury. In Lowndes v. Bettle (1864) 3 New Reports 409, 1 Ames Eq. Cas. 499 the court apparently acted under this statute in giving a per- petual injunction tho the defendant claimed title. §. 194] BEPAEATIOHr AND PEEVBNTION OF TOBTS. 247 § 194. Plaintiff in possession — (1) Trespass in the nature of waste. Wliere the plaintiff is in possession the legal remedy may be inadequate either because of the nature of the defendant's threatened conduct or because of other circumstances; and the conduct may consist of (1) physical injury to the land usually 'called trespass La the ■nature of waste, (2) repeated trespasses, (3) a continu- ing trespass or (4) an encroachment amounting to a taking of possession of part of the plaintiff's land. Where the defendant's act is such as would be en- joinable as waste if he were in rightful possession, the plaintiff's right to an injunction is fairly well established everywhere except that in most jurisdictions he wiillbe given only a temporary injunction till the right is established at law if there is a contest as to the title and the question is doubtful.^ In Kinder v. Jones* the defendant threatened to cut down ornamental trees claiming that they were on his side of the boundary line ; but he defaulted at the trial and the injunction was made perpetual. In Thomas v. Oakley* the defendant having a right to take stone from the plaintiff's quarry for use on a part of his estate, took stone for other purposes: the defendant did not claim any right to do so and the court granted a perpetual injunction. In Echelkampf v. Schrader* the plaintiff and the defendant owned a double house ; the defendant claiming that there was a mistake in the boundary line between the lots which was supposed to coinqide with the line between the two sides of the house, and desiring to re- build, threatened to cut off three feet of the plaintiff's house which he claimed yjras on his lot. On account of- the very serious damage involved an injunction was 1. As late as 1801 Lord Bldon declared flatly against any equitable relief whatever ta a plaintiff out of possession; Pillsworth V. Hopton (1801) 6 Ves. 51, 1 Ames. Eq. Cas. 488. 2. (1810) 17 Ves. 110, 1 Ames Eq. Cas. 490. 3. (1811) 18 Ves. 184, 1 Ames Eq. Cas. 491. 4. (1870) 45 Mo. 505, 1 Ames Eq. Cas. 511. 248 BEPAEATION AND PREVENTION OF TORTS. [Chap, ill granted, but since the defendant still claimed title to the three feet, it was made only temjporary till the de- fendant established his title at law by an action of ejectment." Where the physical injury is only slight, an in- junction will be refused unless the legal remedy is other- wise rendered inadequate. In Jerome v. Ross^ the de- fendant had removed rock from the plaintiff's premises for which the plaintiff had obtained judgment for twenty-five dollars. In refusing an injunction the court said: "The plaintiff speaks of the injury as irreparable because the loads of stone, t^ken from the mass of rock, cannot be replaced or restored; but he does not state that the rock was of any use to him, as proper or fit for building, fencing, etc., or that it was even desirable as an object of ornament or taste; there was no need of having the same identical fragments of stone re- placed and the injury was not, in the sense of the law, irreparable. It was siisceptible of a perfect pecuniary compensation. "'' § 195. Same^ — (2) Repeated trespasses. Whether the fact that simple trespasses have been repeated in the past and are likely to be repeated in the 5. The fact that the plaintiff's possession is not actual but only constructive, is no bar to equitable relief. King v. Stuart (1897) 84 Fed. 546; and see 7 Col. Law Rev. 65 criticising Down- ing V. Anderson (1906) 126 Ga. 373, 55 S. B, 184, contra. 6. (1823) 3 Johns Ch. 315. 7. In Gates v. Johnson Lumber Co. (1899) 172 Mass. 495, 52 N. E. 736, 1 Ames Bq. Cas. 520 the defendant had bought some ■ bricks which were on tlie plaintiff's land"; the plaintiff had given notice to the defendant to remove them within a certain time; they were not removed and the defendant later brolie in and took some of the bricks. The plaintiff, apparently thinking that failure to remove the bricks within the time limited operated to forfeit the property therein to herself, asked for an injunction against the removal of any more bricks and for damages caused by the trespass. No serious injury to the land being shown — either past or pro- spective — the injunction was refused. § 195] EEPAEATION AND PREVENTION OF TOETS. 249 future is a sufBcient basis for equitable relief seems to be an unsettled question. Where relief has been given in such cases it has usually been placed either on the ground of avoiding a multiplicity of , actions or of pre- venting the acquisition of an easement; sometimes it is placed on both grounds.^ As to preventing the ac- quisition of an easement^ it would seem that prevention could usually be accomplished either by interfering with the trespasses^ or bringing an action at law just before the close of any statutory period. As to avoiding a multiplicity of actions at law, there seems to be some confusion as to just what actions would thus be avoided. If the plaintiff were compelled to bring a separate action at law for each and every trespass* for which he wished to recover judgment, it would certainly make out a strong case for equitable interference; yet even here it might be urged that if the defendant is solvent a judgment against him in one action at law will usually t bring about a cessation of the trespasses. It seems to be settled, however, that the plaintit? may in a single action - at law recover for all the trespasses down to the date of the beginning of the action.* The real question, there- fore, is this: is the bringing of an action before the close of each successive statutory period such a multi- 1. Murphy v. Lincoln (1891) 63 Vt. 278, 22 Atl. 418. 2. In reply to this it may be argued that the plaintiff ought not to Be compelled to rely upon what is in substance self help. 3. If the plaintiff should bring separate actions for each tres- pass it would then be for the defendant and not the plaintiff to invoke the aid of a court of equity by asking for a bill of peace. See vost § 446. It is difficult to see how the plaintiff can urge as a ground for an injunction the fact that he may bring a separate action for each trespass, when he does not need to bring such separate actions. See 22 Harv. Law Rev. 371 for a failure to dis- tinguish between repeated trespasses and repeated actions for tres- passes. See also 1 Keener's Bq. Cas., 193, 198 and 201 for cases of repeated trespasses classified under bills of peace. 4. Washburn v. Miller (1875) 117 Mass. 376, 1 Ames Eq. Cas. 515 ; , it was on this ground that the court refused the injunction. In Boston & M. R. R. v. Sullivan (1900) 177 Mass. 230, 58 N. E. 689, the court seemed to think that a plaintiff would bring a 250 BEPABATION AND PREVENTION OP TOBTS. [Chap, ill plicity that a court of equity is justified in giving an injunction? If the statutory period is short and if there is no satisfactory way of compensating the plaintiff for the attorney 's f ees^ and for the trouble and vexation of bringing the frequent suits thereby made necessary it would seem that an equity court would be justified* in giving relief. § 196. Same— (3) Continuing trespass. Where a simple trespass has lasted continously for a considerable period down to the time of bringing suit, the situation presented is very similar to that of re- peated trespasses* and should be solved in a similar way.^ Since 'it is true that if the plaintiff sues at law he will probably not have the option of bringing separate actions for each day's part of the continuous process, the possibility of bringing such actions becomes important only from the standpoint of the defendant and separate action for each' trespass: ". . . every trespass would give a new right of action. Hence there would arise a great multiplicity of suits." See also Ladd v. Osborne (1890) 79 Iowa 93, 44 N. W.' 235. 5. In Boston & M. R. R. v. Sullivan supra the court says: "the amount recoverable could, not be large, in comparison with the amount expended in litigation." 6. Especially if furthermore there has been a judgment at law and the defendant is still refractory. 1. See ante §-195. 2. Cases of this sort seem to be rare. In Hale v. Burns (1905) 91 N. Y. Supp. 929 the defendant, a police captain, suspecting that gambling was going on in the plaintiff's saloon, stationed police- men there continuously day and night; an injunction was granted but upon the unimpeachable ground of conjectural damage to the ' plaintiff's business. In Phillips v. McAdoo (1905) 94 N. Y. Supp. 265 the elem«it of Injury to business seemed to be absent be- cause the property involved was a club house but the police had broken into the building and caused serious damage and the entire attention of the court seems to have been directed to the question Whether the breaking was justified; having decided that it was not,- an Injunction was granted. ^ 196] BEPAJRAWON AND FSEVBNTION O* TOETS. ' 251 then only when such actions are either brought or threatened.* A continuous trespass may consist of leaving material on the plaintiff's land; if the amount is so large that it would be very difficult for the plain- tiff to disencumber his land, equity will give relief by an affirmative decree. In Wheelock v. Noonan* the de- fendant had obtained from the plaintiff permission to place a few rocks on the plaintiff's vacant lots in New York City for a short time. Under color of this license the defendant dumped large quantities of rocks on the lots and then refused to remove them. The difficulty of finding a place to which to remove the rocks, added to the physical difficulty of removal justified the court° in ordering the defendant to effect the removal.® The most common cases of continuous trespass consist of permanent structures such as overhanging eaves or cornice of a building,'^ or water pipes under 3. See ante § 195 note 3. 4. (1888) 108 N. Y. 179, 15 N. B. 67, 1 Am^s Bq. Cas. 527. 5. The court used the argument of avoiding multiplicity of actions: "He is liable to be sued every day, die de diem, for the renewed damages flowing from a continuance of the trespass; and while ordinarily there is no sympathy to be wasted on a tres- passer, yet such multiplicity of suits should be avoided." It seems at least doubtful whether the plaintiff should be allowed to bring daily actions; but as already pointed out {ante § 195 note) this is an argument only for the defendant's getting equitable relief by a bill of peace. 6. For a similar case where an affirmative decree was awarded see Woodhouse v. Newry Navigation Co. (1898) 1 Ir. R. 161 (ballast, stones and rubbish dumped upon plaintiff's oyster beds). In Starr V. Woodbury Glass Works (1901) 48 Atl. 911 (N. J. Bq.) the plaintiff obtained an injunction against the defendant's further allowing the waste from crude oil to flow over the plaintiff's land. 7. In Wilmarth v. Woodcock (1885) 58 Mich. 482, 25 N. W. 475, relief was given against a projecting cornice. In Crocke v. Man- hattan Life Ins. Co. (1901) 31 N. Y. Misc. 687 the upper part of a wall of the defendant's building overhung the roof of the plaintiff's building. T'he encroachment was high in the air and the cost of removing the wall would be very great, with very slight benefit to the plaintiff. The court decreed that the defendant should remove the encroachment whenever the plaintiff should desire to build. For a criticlsma of this in futuro decree see 14 Harv. Law Rev. 300. 252 ■ REPARATION AND PREVENTION OF TORTS. [Chap. Ui the surface,* . or wires strung above the surf ace^— acts which are direct interferences with the plaintiff's pos- session but are still not of sufficient magnitude to con- stitute such a taking of possession that ejectment will lie.^" In such cases relief is nearly always given on the ground that to deny it would practically amount to de- priving the plaintiff of a portion of the corpus of his land," and is therefore per se an irreparable in- jury.^ ^ Practically the only cases denying relief are those where the plaintiff's land is of slight value'* and 8. Goodson v. Richardson (1874) L. R. 9 Ch. App. 221, 1 Ames Bq. Cas. 502. The same reasoning applies to a tunnel under the sur- face; Richards v. Dower (1883) 64 Cal. 62, 1 Ames Eq. Cas. 517; in City of Hoboken v. Hoboken & M. R. Co. (1908) 70 Atl. 926 (N. J. Eq.) an injunction against a tunnel was refused on the score of public convenience; see 9 Col. Law Rev. 84; and for a similar result see Rileys v. Halifax (1907) 97 L. T. 287 (puddle trench under land of little value). 9. See Phelps v. Berkshire St. Ry. Co. (1911) 210 Mass. 49, 96 N. E. 128. 10. That ejectment will not lie in such cases see Rasch v. Noth (1898) 99 Wise. 285, 74 N. W. 820; Harrington v. Port Huron (1891) 86 Mich. 116. But for a criticism of this position see 19 Harv. Law Rev. 369. 11. Whether the land owner's rights extend usque ad caelum or not, they at least extend as far above or below the surface as he can in fact control. 12. In such cases self help in disencumbering the land is often impracticable and difficult and nearly always involves a destruction of or injury to part of the defendant's property and should not be encouraged. An action for damages will usually give compenation for the damage caused by the encroachment only down to the date of bringing the action and in order to prevent the acquisition of an easement must be brought often enough to prevent the prescriptive period from fully running. (See ante § 195). If a judgment for prospective damages should be allowed, it would result in the acquisi- tion of a corresponding easement and therefore a taking of the plain- tiff's property — a sort of private eminent domain. 13. Hunter v. Carrol (1888) 64 N. H. 572, 15 Atl. 17, 1 Ames Eq. Cas. 529 (defendant because of a mistake as to a boundary line built some houses partly on the plaintiff's land; the land was almost value- less except for 'the purposes of litigation ; the court refused to order the removal of the houses but decreed that if the plaintiff would iile a quitclaim deed for a strip of the land, judgment should be entered § 197] Separation and pbevbntion of toets. 253 the doctrine of the balance of convenience is applied.'* § 197. Same— (4) Taking possession of part of plain- tiff's land. If the defendant's structure is of such magnitude and importance as to amount to a taking of possession of part of the plaintiff's land, equity will usually refuse to decree a removal of the structure of the ground that ejectment^ furnishes an adequate remedy at law. In Deere v. Guest^ the defendant falsely represented to the tenant of the plaintiff that the latter had consented to the erection of a tramway across his farm and erected the tramway before the plaintiff — ^who lived a long distance away — heard of it. Upon discovering the fact the plaintiff brought trespass — the tenant's lease having expired — and now asks a decree for the removal of the tramway. The defendant being in actual possession of the ground occupied by the structure the court refused equitable relief on the ground that to do so would allow a bill in equity t,o usurp the place of ejectment.* But if the circumstances are such that ejectment would not accomplish the purpose, equity may give such affirmative relief. In Baron v. Korn* the de- fendant had partly constructed a building which en- croached nine inches on the plaintiff's property used as an alley way. The actual clearing of the space here being very, important to the plaintiff's business, the against the defendant for fifteen dollars and costs.) MacGregor v. Silver King Mining Co. (1896) 14 Utah 47, 45 Pac. 1091 (ditch across barren, rocky, uncultivated and comparatively valueless land). And see suvra footnote 8; 9 Col. Law Rev. 84; 28 Harv. Law Rev. 209. 14. For a discussion of this doctrine, see post §§ 212-215. 1. If the facts are such as to make it doubtful whether the struc- ture does or does not amount to a taking of possession It would seem that the plaintiff should have his choice of either ejectment or a bill in equity. 2. (1836) 1 Mylne & Craig 516, 1 Ames Eq. Cks. 492. 3. See also Jones v. Jones (1817) 3 Merivale 160. 4. (1891) 127 N. Y. 224, 27 N. E. 804. 2S4 BEPAEATION AND PBEVENTIOiir OF TORTS. [Chap, ill impracticability of obtaining such relief in ejectment induced the court to give the affirmative decree asked for and thereby to place the burden of removal upon the one Ivho erected the obstruction. But where the burden of such removal would have been out of proportion to the benefit which would accrue to the plaintiff, relief was denied.* § 198. Same — (5) Legal remedy inadequate because of other drcumstances. The surrounding circumstances rather than the nature of the defendant's trespass may be the determin- ing factor in the court's giving an injunction. In London, etc. Ey. Co. v. Lancanshire, etc. Ry. Co.^ the defendant had built, partly on the plaintiff's land and partly on a public lane, a very strong barrier to prevent all access between the plaintiff's railway station and the public lane. It appeared that the plaintiff had already removed two other weaker barriers previously erected. The court ordered the defendant to remove it^ on the 5. Hall V. Rood (1879) 40 Mich. 46, encroachment of three inches; in ejectment the plaintiff could get a decrfee that he be placed in pos- session but the sheriff would not undertake the task of removing three inches of wall. The plaintiff will thus probably not be able to get effective possession until the building is removed, but he certainly ought to be able to collect from the defendant the rental value of the land until such removal. In Gimbel Bros. v. Milwaukee Boston Store (1915) 161 Wis. 489, 154 N. W. 998, the facts were similar but the refusal of relief was placed upon the ground that the plaintiff being only a lessee had no such interest as would entitle him to an injunc- tion; a less objectionable ground would have been the slight injury which the obstruction caused the plaintiff. See 16 Col. Law Rev 351. The subject of balance of convenience will be discussed post §§ 212-215. 1. (1867) L. R. 4 Eq. 174, 1 Ames Bq. Cas. 525. 2. The decree, tho affirmative in substance, was negative in form; this was because there was a notion once prevalent that a court of equity could not give an affirmative decree. Since decrees that a de- fendant execute a conveyance are affirmative decrees it seems rather odd that such a notion could have obtained a foothold. It has now all but disappeai:ed. § 199] EEPAEATION AND PEEVENTION OP TORTS. 255 ground -of the difficulty of estimating the danaage to the plaintiff's business caused thereby. In Preston v. Preston* the defendants had made repeated entries upon the plaintiff's land, defacing his old landmarks and making new ones; equitable relief was given in order to prevent the creation of a cloud upon title* and also because of the insolvency of the defendants.^ § 199. Defendant in possession. If the defendant is in possession of not only a part but of all the land involved, the plaintiff will a fortiori be unable to get possession by a bill in equity. But the conduct of the defendant while thus in possession may be so flagrant that a court of equity will give- a temporary injunction^ against acts destructive of the mheritance until the plaintiff can establish his title by getting a judgment in ejectment.^ In Neale v. Cripps* the plaijitiff having made affidavit that the defendant was cutting timber in such a manner and to such an extent as nearly to strip the land of all timber trees of any value, a temporary injunction was given until the action in ejectment already brought against the de- fendant's tenant could be determined.* But a court of equity before giving relief will ordinarily require a 3. (1887) 85 Ky. 16, 2 S. W. 501. 4. See post §§ 413-419. 5. See post § 201. 1. On the ground of the defendant's conduct being flagrant relief was granted In Dunker v. Field & Tule Club (1907) 6 Gal. App. 524, 92 Pac. 502. 2. In 1801 Lord Eldon laid it down as a flat rule that if the de- fendant was in possession claiming by an adverse title equitable relief would be refused; Pillsworth v. Hopton (1801) 6 Ves. 5i; 1 Ames Bq. Cas. 488. 3. (1888) 4 Kay & 3. 472, 1 Ames Eq. Cas. 498. 4. See also Erhardt v. Boaro (1885) 113 U. S. 537, 1 Ames Eq. Cas. 507, where a temporary injunction was given against the de- fendant's operating a mine until the hearing of an action at law; the action at law ended in favor ot tho defendant whereupon the Injunc- 256 BEPAEATION AND PEEVBNTION OF TOUTS. [Chap, ill stronger case of damage to be made out than if the defendant were conceded to be in rightful possession or than if the plaintiff were in possession — especially if the defendant's claim of title^ is obviously being made in good faith. In other words, the ordinary and reasonable use of the land will not be restrained tho it may involve acts which in a tenant would be waste. In Cox V. Douglas" the land being valuable only for timber an injunction against cutting timber was refused and in Snyder v. Hopkins'^ the broad injunction given by the court below was narrowed and modified so as to allow the "ordinary and natural use of the premises."® § 200. Plaintiff a reversioner or remainderman. Where the plaintiff's estate in the land is a re- version or a remainder with a particular tenant in possession, his remedy at law is an action on the case but in order to recover he must prove special damage to his own interest in the land. If he cannot prove such special damage he will fail not only at law but also in equity. In Cooper v. Crabtree^ the plaintiff had rented the land to weekly tenants ; the defendant, owner of the lot adjoining, put up a hoarding on poles so as to obstruct the light of one of the plaintiif 's windows. The plaintiff claimed that the structure had been erected on his own land and that his tenants were so annoyed by its rattling and creaking that they were likely to leave, and tion was dissolved; the plaintiff then obtained a reversal of the judgment and the equity court then reinstated the injunction till a decision in the new trial at law should be reached. 5. The fact that the defendant hid failed to deny the plaintiff's title under oath was a strong if not the decisive factor in the plain- tiff's getting an injunction in Nichols v. Jones (1884) 19 Fed. 855. If no claim of title is made by the defendant the plaintiff's right to an injunction ought to be the same as if the plaintiff were in posses- sion. 6. (1882) 20 W. Va. 175. 7. (1884) 31 Kan. 557, 3 Pac. 367, 1 Ames Eq. Cas. 509. 8. See also 'the cases collected in 1 Ames Eq. Cas. 511 note. 1. (1882) L. R. 20 Ch. Div. 589, 1 Ames Eq. Cas. 504. § 201] EEPAEATION AND PREVENTION OF TORTS. 257 therefore asked that the structure be ordered removed. Relief was refused on the ground that the plaintiff had not made out a case of injury to the reversion.^ The tenants were not parties to the suit; the injury to their possession was probably substantial enough to have entitled them to relief in spite of the fact that the defendant intended to keep the structure there for only a year.^ On the other hand, if there is substantial injury to the estate in reversion or remainder the holder of such an estate is entitled to an injunction on sub- stantially the same conditions as if his estate had been In possession.* § 201. Defendant insolvent. Where the plaintiff's sole • remedy at law is an action either of trespass or ease for damages, the fact that it would be impossible to collect a judgment at law because of the defendant's insolvency ^ is frequently the deciding factor in the giving of an injunction. In 2. It is at least arguable that a reasonable fear of losing tenants — tho probably not enough to satisfy the common law requirement of special damage — should be enough to warrant an injunction; esp'ecially if the premises thus vacated are likely to remain for a long time untenanted and entail not only a loss in rentals but a depreciation in rental value. 3. The fact that in England it is permissible to erect on one's own land an obstruction to prevent the acquisition of an easement ot light and air by prescription had probably an important bearing on the decision; if the defendant were forced to remove the hoarding he could place it on -his side of the line and be entitled to have i» protected there unless it should so creak and rattle as to amount to a nuisance. 4. Schnieder v. Brown (1890) 85 Cal. 205: 24 Pac. 715 (digging a ditch twenty-five feet wide across land). 1. The defendant's insolvency may be an important factor not only In the giving of an injunction in trespass but in giving equi- table relief against other threatened torts. See post §§ 235, 237. n. 7. And since other claimants against the defendant can not properly object to the defendant's being enjoined from committing Eq.— .17 258 EEPAEATION AND PBEYENTION OF TOETS. [Chap. Hi Hogdson V. Duce^ the plaintiff alleged that the de- dendant took forcible possession of the plaintiff's houses and by threats obtained money from the tenants which the plaintiff was compelled to allow in reduction of rent; and that some of the tenants gave notice to quit because of the annoyance. The defendant in forma pauperis demurred to the bill. In giving the relief asked for the court said: "It had been suggested that for these trespasses an adequate remedy might be had at law, and that consequently it was beyond the province of a court of equity to interfere. Unquestion- ably a court of law would award damages in such a case, but damages against whom? The defendant was a pauper, and as against persons in her position such a form of redress would be the merest mockery of just- ice. ' " Where the defendant is in possession his insolvency is no ground for substituting a bill in equity for eject- ment for the purpose of getting possession;* but it might well be an important factor in determining what acts the defendant may do while in possession.^ II. Trespass to chattels. § 202. Remedies at law and in equity. For a wrongful taking of chattels the plaintiff may at law bring an action of trespass or trover; in either a tort, It is not necessary to draw any distinction here between a defendant being execution proof and being insolvent, as it is in the field of specific performance of contracts. See ante § 45. 2. (1856) 2 Jurist [N. S.] 114, 1 Ames Bq. Cas. 523. 3. Musselman v. Marquis (1866) 1 Bush (Ky.) 463; see also Preston v. Preston (1887) 85 Ky. 16, 2 S. W. 601 where the giving of the injunction was placed upon the double ground of insolvency of the defendant and the prevention of a cloud on title. See ante § 198. 4. Warller v. Williams (1897) 53 Neb. 143, 73 N. W. 53y. 5. In Nichols v. Jones (1884) 19 Fed. 855 the defendants were In poss.esslon mining and removing ore; In giving an injunction against such acts till the trial of the title at law the court relied largely upon the Insolvency of the defendants. ^ 203] REPARATION AND PREVENTION OF TORTS. 259 action he will ordinarily get a judgment for the value of the chattel. If there has been merely a wrongful detention and he wishes to get back the chattel in specie he may usually do so by either detinue or the modern statutory replevin; if he wishes to get a judg- ment for its value he can usually get this by bringing trover. If the. chattel is unique and there is danger of its being secreted so that the sheriff would have difficulty finding it, equity will command the defendant to deliver it over.^ A fortiori if the defendant is threatening to seize and carry away a unique chattel, equity will enjoin such seizure.^ Where the chattels are not unique equitable relief is usually refused because of the adequacy of the con- mon law remedies.* But relief at law may be rendered inadequate either because of the insolvency of the defendant* or of other special circumstances. In Wat- son V. Sutherland^ the defendant, having a judgment against X issued execution on the plaintiff's stock of goods and threatened to have them sold. The execution sale was enjoined on the ground of the irreparable injury which would ensue to the plaintiff because of the loss of business, loss of credit, . and probable in- solvency.^ D. Private Nuisance. § 203. Definition. In order the better to secure to the owner and occupier of land its proper use and enjoyment the com- 1. See ante § 44. 2. Sanders v. Sanders, (1859) 20 Ark. 610 (slave) but Kentuc&y and North Carolina refused such relief In slave cases; Nesmereth V. Bowler (1814) 3 Bibb 487; Du Pre v. Williams (1859) 5 Jones Eq. 96. 3. Johnson v. Conn. B'k (1851) 21 Conn. 148. 4. Kaufman v. Weiner (1897) 169 111. 596, 48 N. R 479. 5. (1860) 5 Wall. 74, 1 Ames Eq. Cas. 531. 6. If the plaintiff's interest in the chattel is purely equitable — e. g. that of a cestui que trust — equity will enjoin a third party 260 EEPAEATION AND PREVENTION OF TORTS. [Chap, ill men law has recognized certain rights in addition to the mere right of possession which is redressed by the actioil of trespass. These non-possessory rights are called natural rights because, like the right of posses- sion, they exist irrespective of the consent of others.* These natural rights have been summarized as follows:^ (1) To have the air free fripm unreasonable pol- lution by disagreeable vapors^ and odors* and also free from unreasonable noise.^ (2) To. have water m a natural watercourse flow past his land without diminution,® deterioration,'^ or alteration* by acts on the part of others. (3) In some states, to discharge water on adja- cent land." from having it sdld upon an execution against the trustee. True- blood V. Hollingsworth (1877) 59 Ind. 542. See post § 315. 1. And are thus distinguished from consensual rights; ease- ments and profits are usually consensual but may bfc acquired by prescription. 2. Tiffany, Real Property p. 649. 3. Cooke V. Forbes (1867) 5 Eq. Cas. 106, ammonia fumes. 4. 111. Cent. R. R. Co. v. Grabill (1869) 50 111. 241, odor from cattle pens. 5. Soltau V. De Held (1851) 2 Sim. [N. S.] 133, bell ringing. 6. Corning v. Windslow (1869) 40 N. Y. 191, diversion of waters from their natural channel, thus interfering with plaintiff's use of water for power. 7. Lingwood v. Stowmarket Co. (1865) 1 Eq. Cas. 77, refuse of paper mill discharged into a river. 8. McCormack v. Hpran (1880) 81 N. Y. 86, dam causing flow- age over land of an upper proprietor. Where the defendant's act is direct — as, for example, where he desires the particular result — it would seem that trespass would lie; but the distinction between direct and indirect acts is a troublesome one of degree and flowage cases are apparently always classified under nuisances. Whether the tort is trespass or nuisance makes little or no difference in equity; Codman v. Evans (1863) 7 Allen (Mass) 431. See also Pixley V. Clark (1866) 35 N. Y. 520, obstruction injuring land by percolation; King v. Tiffany (1832) 9 Conn. 162, obstruction in- terfering with operation of a mill up stream. 9. McDaniel v. Cummings (1890) 83 Cal. 515. This is the rule of the civil law. For the "common law rule" contra, see § 204] EEPAEATIOlir AND PREVENTION OF TOETS. 261 , (4) In a few jurisdictions, to be free from injury by the escape of water artificially collected on another's land." (5) To have his land supported by adjacent" and subjacent^^ land. Any violation of these natural rights^* is called a private nuisance.^* § 204. Remedies. If Since a private nuisance does not involve a direct interference with possession the appropriate common law remedy is not tlie action of trespass but an action on the case;^ in this action the plaintiff ordina- Garrison v. Hargadon (1865) 10 Allen (Mass.) 106; Tiffany, Real Property § 298, page 664. 10. If the one collecting the water is negligent in allowing it to escape he is ot course liable on ordinary tort principles of negligence. In England he has been held liable at peril for the escape; Eylands v. Fletcher (1868) L. R. 3 H. L. 330, but the rule has not been followed extensively in this country, and the tendency of later English cases has been to restrict the scope of the decision. It may be questioned whether such a collecting ot water is such a private nuisance as would ever he enjoined. 11. Wyatt V. Harrison (1832) 2 Barn. & Adol. 871, Tiffany, Real Property § 301. 12. Humphries v. Brogden (1850) 12 Q. B. 739, Tiffany, Real Property § 302. 13. The reader is reminded that legal rights are historically the product of legal remedies and not vice versa; hence these natural rights exist because the law has in these cases given a remedy. 14. The word "nuisance" means literally nothing more than wrongful harm, and It is not always used in the narrow, specialized sense attached to it by Tiffany. For the sake of clearness and de- finlteness it will be used in this book in the narrow sense unless otherwise indicated. 1. The early common law remedies of assize of nuisance and quod permittat prosternere had already become obsolete by the time of BLackstone, having been superseded by the action on the case; Bl. Comm. Book III, 220. In both the early actions the plaintiff was able to get a judgment not only for damages but for abate- 262 REPARATION AND PREVENTION OF TORTS, [Chap, ill rily^ recoyers for any damage he may have suffered down to the date of bringing his action. But if the nuisance consists of a permanent structure the weight of author- ity in this country is that he not only may* but must recover prospective damages also.* This amounts, in substance, to an informal eminent domain, the plaintiff being thus paid by the judgment for an easement which the defendant thereby acquires. The common law also allows the party injured to abate it;® in case of emer- gency such a privilege is often of great importance. Altho the jurisdiction of equity for the specific reparation and prevention of private nuisance is of comparatively modern growth, it has come now to fur- nish the most usual remedy. Where the plaintiff could have recovered substantial damages at law equity will ment also, but they were much circumscribed in other particulars. Both required that the plaintiff have a freehold interest in the land damaged and the assize of nuisance lay only against the wrong- doer; the quod permittat prosternere lay also, however, against an alienee who continued the nuisance. 2. See 61 U. of Pa. Law Rev. 614. 3. In a few jurisdictions the plaintiff may elect; Danielly v. Cheeves (1894) 94 Ga. 263, 21 S. B. 524; City of North Vernon v. Voegler (1885) 103 Ind. 314, 2 N. E. 821. 4. See Sedgwick, Damages, 9th ed. § 95. For a criticism of this prevailing view see 2 Cal. Law Rev. 248-250. The points urged are briefly as follows: (1) It permits an easement to be ac- quired without formal condemnation for a private use, because a complete recovery bars all subsequent actions; (2) the easement may be created within a period less than the period of prescription; (3) in order that a subsequent purchaser shall find out the exist- ence of the easement he must search the record for actions brought by previous owners of the land; (4) the rule encourages litigation because a plaintiff whose present damage is slight will be compelled to sue because the running of the statute of limitations will bar him entirely; and a defendant is compelled to pay for a permanent injury tho he might later remove the cause of the damage; (5) it raises the difficult question of what is and what is not a permanent nuisance. See also 8 Mich. Law Rev. 227; 11 Harv. Law Rev. 277; 9 Col. Law Rev. 538. 5. He may destroy property In thus abating if it is the only reasonable and feasible method of achieving the result. Brill v. Flagler (1840) 23 Wend. 354 (dog that disturbed by Incessant § 205] KEPABATION AND PEEVENTION OF TOETS. 263 usually order the defendant to abate the nuisance.* Such a remedy is ordinarily more advantageous t^an the common law action for damages, because if the plaintiff recovers damages only to the date of the action he will be compelled to bring an action every few years to prevent the acquisition of an easement;'' and if he recovers prospective damages also his land becomes subject to an easement at once.' Moreover, the equitable remedy is preferable to private ablatement because : (1) if the injured party abates he loses his right to sue for the damage already suffered,® whereas if he gets an injunction in equity he may get as incidental thereto compensation for past damages; (2) the injured party cannot abate if the nuisance is only threatened* but such an objection would not ordinarily defeat an injunction;" (3) one who abates takes the risk of being able to show that there really was a nuisance and that in abating he did nothing which was not reasonably necessary to his pro- tection ;*^ if he fails to do this he himself becomes a tort feasor. A court of equity, on the other hand, places the burden of abating upon the defendant with no risk to the plaintiff. § 205. Essential elements — test. In order to constitute a nuisance the injury com- plained of must have been caused by the act of some barking and howling at night). But he cannot lawfuUy abate unless he can do so peaceably. Mohr v. Gault (1860) 10 Wis. 513. 6. Crump v. Lambert (1867) L. R. Eq. 409. The exceptions to this rule will be discussed post §§ 212-215. 7. Unless the recovery of the judgment at law overcomes the obstinacy of the other party and induces him to abate the nuisance. 8. Baten's Case (1611) 9 Co. Rep. 53 b, 54b. 9. Gates v. Blincoe (1834) 2 Dan. (Ky.) 158. 10. Unless it is fairly clear that the plaintiff is In no Im- minent danger; Fletcher v. Bealey (1885) 28 Ch. D. 188, vat wash emptied by the defendant into the river would not injure the plaintiff for some time. 11. State V. Moffett (1848) 1 G. Greene 247. 264 BEPARATION AND PKEVENTION OF TORTS. [Chap, ill human being; if it is the result of natural causes to which the act of man has not contributed, the plaintiff is without remedy either at law or in equity. In Eoberts v. Harrison^ a petition was filed for the re- moval of a pond that had collected on the defendant's land. Relief was denied because "the accumulation of water was due to natural causes, and the defendant 'did not, by his own act or negligence, contribute to bring about the alleged nuisance. . . . The de- fendant had done nothing to interfere with the natural drainage, and the pond was formed by the overflow of the cr^ek, due, entirely to causes over which the defend- ant had no control." Furthermore, even if the damage had been caused by the defendant's act, he may escape liability if the social interest in the doing of the act is sufficiently great to justify it and the damage caused thereby. In Middlesex Co. v. McCue^ the plaintiff asked that the defendant be restrained from filling the plaintiff's mill pond. The defendant owned and cultivated in the ordinary way land upon the side of a hill sloping down to the pond. On account of the great importance of hav- ing land cultivated relief w.as denied:^ "Liability de- pends upon the nature of the act and of the kind and de- gree of harm done, considered in the light of expediency and usage. . . . [The plaintiff] complains not that substances brought down are offensive, but that the de- fendant caused any solid substances to be brought down at all. Practically it would forbid the defendant to dig his land, at least without putting up a guard, since the surface drainage necessarily carries more of the soil 1. (1897) 101 Ga. 773, 28 S. B. 995. See 12 Harv. Law Rev. 63; Mohr V. Gault {I860) 10 Wis. 513. 2. (1889) 149 Mass. 103, 21 N. E. 230. 3. See also Giles v. Walker (1890) 24 Q. B. D. 656, cultivation of forest land caused thistles to grow and spread their seed to adjoining land. It seems fairly clear that by legislation under the police power, a duty might tie imposed upon the land occupier in such cases and perhaps even in a ease like Roberts v. Harrison, supra. § 205] KEPAEATION AND PREVENTION OF TORTS. 265 along with it if the earth is made friable by digging. . . . We are of the opinion that a man has a right to cultivate his land in the usual and reasonable way, as well upon a hill as in the plain and that damage to the lower proprietor of the kind complained of is something that he must protect himself against as best he may."* If the alleged nuisance consists of interference with health and comfort, the test is what is reasonable under all the circumstances according to the standard of people generally. In. Rogers v. Elliott^ the plaintiff complained of the ringing of a bell in a church just across from the residence of his father, with whom the paintiff lived. The latter had suffered a sunstroke and because of this he was thrown into convulsions every time the bell was rung; It was held proper to direct a verdict for the defendant: "A fundamental question is, by what standard, as against the interests of a neighbor, is one's right to use his real estate to be measured. . . . The inquiry always is, when rights are called in question, what is reasonable under the circumstances. If a use of property is objectionable solely on account of the noise which it makes, it is a nuisance, if at all, by reason of its effect upon the health or comfort of those who are within hearing. The right to make a noise for a proper purpose must be measured 4. Another case Involving the social interest in the improve- ment of land is Palloon v. Schilling (1883) 29 Kan. 292. In that case the plaintiff's petition alleged that in order to compel the plaintiff to sell to the defendant a piece of land at the defendant's price, the latter threatened to put up on his own land small tene- ment houses and to rent them to negroes, and had actually erected one. house and rented it to a negro family, to the great annoyance, etc. of the plaintiff. The demurrer to the petition was sustained on the ground that the size of the buildings was a matter fbr the defendant to determine and that "the law makes no distinction on account of race or color and recognizes no prejudices arising there- from. As long as that neighbor's family i^ well behaved, it mat- ters not what the color, race or habits may be, or how offensive personally or socially it may be to the plaintiff; plaintiff has no cause of action in the courts." 5. (1888) 146 Mass. 349, 15 N. E. 768. 266 EEPAEATION AND PEEVBNTIOHr OP TORTS, [Chap, ill in reference to the degree of annoyance which others may reasonably be required to submit to. In connection with the importance of the business from which it pro- ceeds, •that must be determined by the effect of noise upon people generally and not upon those on the one hand,- who are peculiarly susceptible to it, or those, on the other, who by long experience have learned to en- dure it without inconvenience; not upon those whose strong nerves and robust health enable them to endure the greatest disturbance without suffering; nor upon those whose mental or physical condition makes them painfully sensitive to everything about them." § 206. Damage. Where the alleged nuisance consists of an inter- ference with personal comfort no tort is proved unless substantial damage is shown.^ But where the alleged nuisance consists of an injury to land or to the benefi- cial use thereof there has been a strong tendency to re- • gard the plaintiff's right as actionable without proof of any damage. In Mann v. Willey^ the plaintiff com- plained that the defendant, an upper riparian proprie- tor, had polluted the water of Gulf Brook by discharg- ing all tht sewage from bis hotel into it. The only use to which the plaintiff had ever put the water was for bathing and turning a turbine wheel and the defend- ant contended- that since for such purposes the water was in no way injured there was no tort and the plain- tiff was not entitled to an injunction. This contention was held unsound : ' ' That the discharge of such sewage into the stream does pollute and render it unfit for domestic purposes cannot be doubted, and is, we think, established by the evidence, and even though the plain- tiff has not as yet put the water' to such a use, she had 1. St. Helen's Smelting Co. v. Tipping (1865) 11 H. L. C. 642, 650. 2. (1900) 51 N. Y. App. Dlv. 109, 1 Ames Eq. Cas. 572. 3. Most of the cases holding the plaintiff's right to be tech- nical have been cases of water rights, but Dana v. Valentine (1842) § 206] KEPAEATION AND PKEVENTION OF TOUTS. 267 the right to the stream in its natural purity. . . . And that right was not conditioned upon the beneficial user oi it. . . . And she was entitled to equitable relief against the defendant for interfering with it though the damages were merely nominal."* Wherever the natural right is thus held to be technical,® equity will prevent its violation* as the most 5 Mete. 8, -was the case of a slaughterhouse and Farley v. Gate City Gas Light Co. (1898) 105 Ga. 323, 31 S. B. 192, the plaintifE com- plained of gas and noxious vapors. 4. See contra Sturgis v. Bridgman (1879) 11 Ch. Dlv. 852. The defendant was a confectioner and for twenty-six years used on his premises pestles and mortars for breaking up and pounding hard substances. The plaintiff, a physician, built his consulting room against the defendant's wall and the noise and' vibration of operating the pestles interfered with his practice. In answer to a, suit for an injunction the defendant set up prescription but the court decided against this contention on the ground that the plaintiff had no cause of action till he suffered damage. But see Roberts v. Gwyrfai District Council (1899) 1 Ch. D. 583, adopting the prevailing American doctrine in a case of altering the current of a stream; 13 Harv. Law Rev. 142. In Howard Co. v. R. R. (1895) 130 Mo. 652, 32 S. W. 651, a distinction was taken between a case where the damage can be measured once for all at the time \of the creation of the alleged nuisance and a case where the amount of damage depends upon future events, holding, that only in the former case does the prescriptive period begin at once; see 4 Harv. Law Rev. 435. 5. The reasons given as to whether the right should be con- sidered a technical right are usually unsatisfactory. In Parley v. Gate City Gaslight Co. supra, the court gave the fictitious reason that "the law Imports damages" which is only another way -of saying that it is unnecessary to prove any damage and does not answer the question at all. The real question is a rather difficult one of balancing of Interests. In Sturgis v. Bridgman, supra: "It would be on the one hand in a very high degree unreasonable and undesirable that there should be a right of action for acts which are not in the , present condition of the adjoining land, and 6. Amsterdam Knitting Co. v. Dean (1900) 162 N. Y. 278, 56 N. E. 757, 1 Ame^ Eq. Cas. 573 (diversion of water): "Where the act complained of is such that by its repetition or continuance it may become the foundation or evidence of an adverse right, a court of equity will interpose by injunction, though no actual damage Is shown or found." 268 REPABATION AND PREVENTION OF TOKTS. [Chap, ill satisfactory method'' of preventing the acquisition of an easement by prescription.* § 207. Legalizin^^ ' nuisances. Since England has no written constitution Parlia- ment has power to legalize any nuisance whatever; but the statutory authorization of a business is not construed as legalizing a nuisance if the business can be carried on 7. But see Dana v. Valentine (1842) 5 Mete. 8: "And there seems to be no good reason to doubt, that if the plaintiffs can maintain an action ai law, they may obtain an adequate remedy without any interposition of a court of equity."' Just what the court had in mind is not clear. I'he plaintiff could, of course, prevent the acquiring of an easement by suing at law just before the expiration of any statu- tory period. 8. It seems to be well settled that no prescriptive right to main- tain a public nuisance can be acquired. Mills v. Hall (1832) 9 Wend. (N. Y.) 315. Where, however, the nuisance is a purely private one, the rules seems to be that prescription does apply; St. Helen's Smelt- ing Co. V. Tipping (1865) 11 H. L. C. 642. But, as pointed out by Wood, Nuisance § 712, where the nuisance consists of polluting the atmosphere, as in Campbell v. Seaman (1876) 63 N. Y. 568, it is very difficult to establish a user for the requisite period. 5 Continued, possibly never will be any annoyance or inconvenience to either its owner or occupier; and it would be on the other hand, in an equal degree unjust, and from a public point of view Inexpedient that the use and value of the adjoining land should, for all time and under all circumstances, be restricted and diminished by reason of the continuance of acts incapable of physical interruption and which the law gives no power to prevent." See also 22 Harv. Law Rev. 128: "The general adoption of such a rule [holding damage unnecessary] would entail a constant watchfulness by land owners for possible future damage and much accompanying litigation. And In the absence of such caution prescriptive rights would so multiply as to impair seriously the development of property." On the other hand, see 13 Harv. Law Rev. 142: "While it is hard for one who at present does not wish to use his land in a certain way to be deprived of its future use, it is harder still for one committing the nuisance to be driven out of business simply be- cause a neighboring proprietor decides to change his mode of oc- cupation. It would be in the power of the latter to destroy at his option permanent and extensive works." See 12 Harv. Law Rev. 2S4, § 208] EEPAEATION AND PREVENTION OF TORTS. 269 witliout creating one.^ In the United States such legislation is usually unconstitutional as within the prohibition against depriving a person of .his property without due process of law or against taking private property for public use without compensation.^ It has been suggested, however, that such a prohibition applies only to grave and serious nuisances, and that small nuisances may be legalized as a proper exercise of the police power of the state.^ If the statute authorizing the nuisance is valid,* both legal and equitable relief are barred. § 208. Culpability of defendant. Liability for private nuisance dates back to a time when apparently all tort liability was absolute, not de- pendent upon any culpability or blameworthiness on the part of the defendant: "He that is damaged ought to be recompensed."^ This liability at peril has veryi largely persisted where injuries to property rather than injuries to the person have been concerned, irrespective of the form o£ action involved.^ Hence a defendant may be liable for the creation of a nuisance tho done without his knowledge or consent by an independent contractor 1. Shelter v. City of London Lighting Co. (1895) 1 Ch. D. 287, 1 Ames Eq. Cas. 589: "It is clearly for the defendants to prove, it they can, the truth of their assertion that it is impossible for them to carry on their business without creating a nuisance. . . . The defendants have not proved that they cannot supply electricity properly if they multiply their stations and' diminish the power of their en- gines at each station." 2. U. S. Constitutional Amendments 5 and 14. 3. Sawyer v. Davis (1884) 136 Mass. 239: "Slight infractions of the natural rights of the individual may be sanctioned by the Leg- islature under the proper exercise of the police power, with a view to the general good." 4. See 14 Col. Law Rev. 590, 610 as to the effect of legislation and State constitutional provisions authorizing the operation of railways. 1. See Basely v. Clarkson (1681) 3 Levinz 37: "His intention and knowledge are not traversable; they cannoi be known." 2. See 59 U. of Pa Law Rev. 29&, 309, 310. 270 EEPAEATION AND PREVENTION OF TOETS. [Chap, iii who has been carefully selected.^ Where, however, the defendant is a vendee* of land upon which a nuisance has been already created^ he becomes liable only upon principles of negligence,® being entitled to a reasonable opportunity to abate the nuisance after knowledge of its existence.'^ Where the damage caused to the plaintiff by a nuisance is purely personal — ^having no reference to any injured land* — such as injuries to the health of persons 3. Storrs t. Utica (1858) 17 N. Y. 104 (constructing sewer through street). And if the structure erected by the defendant does not prove to be a nuisance until later he is not entitled to any notipe to abate; Bowner v. Welborn (1849) 7 Ga. 296: "Eo instante in which the use of his property becomes injurious to another, it is a nuisance • and he is liable in damages. This liability depends upon no other fact or circumstance — if the nuisance exists, if the damage is proven, the law, without more, attaches to him the liability." See also Vile v. Pa. R. R. Co. (1914) 246 Pa. 35, 91 Atl. 1049. 4. That the creator of the nuisan(je does not escape liability • merely by selling or leasing his hand, see Plumer v. Harper (1824) 3 N. H. 88. But a landlord is not liable for a nuisance created hy his • tenant unless he expressly or impliedly authorized it; Edgar v. Walker (1898) 106 Ga. 454, 32 S. E. 582. 5. Where the defendant has erected a nuisance on land belong- ing to a third party it is no defense that the defendant's removal of the nuisance will expose him to liability to silch third party; Thomp- son V. Gibson (1841) 7 M. & W. 456. 6. Hayes v. Brooklyn Heights R. R. Co. (1910) 200 N. Y. 183, 93 N. E. 409. 7. It is usually said that the grantee is entitled to notice to abate before becoming liable for the continuance of the nuisance; Jones V. Williams (1843) 11 M. & W. 176; Pierson v. Gtean (1833) 14 N. J. Law 36; but apparently knowledge from any source would be enough; see Leakan v. Cochran (1901) 178 Mass. 566, 60 N. E. 382. SlmHarly, where an injunction has been issued against the previous owner's maintaining a nuisance, it would seem that the vendee should not bef held guilty of contempt till he had knowledge of the injunction; 21 Harv. Law Rev. 220; criticising State v. Porter (1907) 76 Kan. 411, 91 Pac. 1073. 8. Where the damage complained of is damage to land, the plaintiff must show some interest in the land; see Miller v.' Edison Elec. Illuminating Co. (1901) 68 N. Y. Supp. 900; lodgers in hotel disturbed by vibration. On the right of a reversioner to complain of a nuisance see 19 Harv. Law Rev. 641. If the defendant has 4 209] KEPAfiATldN And tfiEVENTlON of lOBTS. 271 having no property interests affected by the. nuisance, there is a square conflict of authority as to whether the defendant's liability is at peril* or only for negligence.^" § 209. Motive of defendant— "spite fences" — percola- ting waters. Since an easement of light and air may be acquired by prescription in England and the only way of pre- venting its being thus acquired is by erecting a structure which will shut off the light and air, the erection of any structure for this purpose is permissible; the motive for such an erection can be no bar because it is a beneficial use of the property to prevent the acquisition of an ease- ment over it.^ In the United States an easement of light and air can not be acquired by prescription ; but on the question of the validity of a structure which is of no beneficial use to the one erecting it, but has been erected from motives of spite, revenge, intimidation, etc,, there is a acted intentionally or negligently in creating or maintaining a nuisance he is liable, to any one injured thereby without reference to the plaintiff's interest in any land. 9. Hosmer v. Republic Iron and Steel Co. (1913) 179 Ala. 415, 60 So. 801 (noxious vapors caused death of young child who lived with his father). And see Fort Worth etc. R. R. v. Glenn (1904) 97 Tex. 586, 80 S. W. 992 (an old well caused serious illness of young child who lived with his father) . See also 13 Col. Law Rev. 433 : "While this view presents somewhat of an extension of the strict common law conception of a nuisance, such an expansion, in order to give a reme- dy to an infaint, living with the parent on the latter's premises, seems thoroughly justifiable; for there appears to be no occasion for com- pelling an infant to leave his father's home to avoid the consequences of another's unlawful act, which is really an injury to the occupancy of the land." 10. Ellis V. Kansas City etc. R. R. (1876) 63 Mo. 131 (wife of lessee of premises made ill by nuisance) ; Holley v. Boston Gas Light Co. (1857) 8 Gray (Mass.) 123 (nine year old child injured by es- cape of gas). This view seems to be more nearly in accord with the. historical development of the law of torts; see 26 Harv. Law Rev. 760. 1. See Chandler v. Thompson (1811) 3 Campb. 80. 272 IlEPAhATION- AlfD tEEVEiSTllOlir OP TOETS. [Chap, ill conflict of authority.^ In some jurisdictions statutes have been passed making. unlawful the building of such structures beyond a certain height,^ and such statutes have been held constitutional.* If such structures are held unlawful either with or without a statute, equity will usually enjoin their erection or decree their removal, just as in other cases of private nuisance. A similar situation exists as to malicious inter- ference with percolating waters. English courts deny relief on the ground that a landowner has an absolute right to the percolating waters which he can intercept in his land and is not liable to an adjoining proprietor, regardless of the quantity of water taken, or the purpose 2. For a collection of cases on each side, see Letts v. Kessler (1896) 54 0. St. 73, 42 N. B. 765: In that case the plalntlft alleged that the defendant was erecting a high board fence on his ground which would obstruct the windows of her hotel and deprive her of light and air,, and that the fence was not being erected foi; any useful or ornamental purpose, but from motives of pure malice alone. Relief was refused. "As long as he keeps on his own prop- erty and causes an effect on her property which he has a right to cause, she has no legal right to complain as to the manner in which the effect is produced, and to permit her to do so would not be en- forcing a rule of property, but a rule of morals." But the better view and probably the_ weight of authority in this country is that one has no absolute right to erect structures on his land and does not have the right to erect useless structures on his land for the sole purpose of injuring others. Burke v. Smith (1888) 69 Mich. 380, 37 N. W. 838: "The right to breathe the air and to enjoy the sunshine is a natural one; and no man can pollute the atmosphere or shut out the light of heaven, for no better reason than that the situation of his property is such that he is given the opportunity of so doing, and wishes to gratify his spite and malice toward his neighbor." See also 12 Col. Law Rev. 633-635; 25 Harv. Law Rev. 197. Even tho the structure has been erected from spite, it is not considered unlawful It it serves a useful purpose. Kuzniak v. Kos- mlnski (1895) 107 Mich. 444, 65 N. W. 275 (building used as a wood- shed). 3. In Massachusetts, chapter 348 of statutes of 1887: "Any fence or other structure in the nature of a fence, unnecessarily ex- ceeding six feet In height maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance." 4. Rideout v. Knox (1889) 148 Mass. 368, 19 N. E. 390. § 210] " EEPARATION AND PREVENTION OF TOKTS. 273 to which it is applied.^ In this country, by the weight of authority, relief is given against such malicious inter- ference upon the same principles that underlie the spite fence cases.* § 210. Joint actors— independent actors. Where a nuisance is caused by several persons in- tentionally cooperating, each is liable for all the damage done and they may be sued separately or together either at law or in equity. Where, however, the nuisance is caused by several persons acting independently of each other, each is liable at law only for his share of the damage,^ and apparently each should be- sued separately.^ And this liability exists, even tho the separate act of each one did not amount to a nuisance;^ in this latter 5. Acton V. Blundall (1843) 7 M. & W. 324; 9 Col. Law Rev. 543. 6. Chesley v. King (1882) 74 Me. 164. See contra, Ellis v. Duncan (1855) 21 Barb. (N. Y.) 230; 9 Col. Law Rev. 543, 12 id. 633, 634. 1. Watson V. Colusa-Parrott Co. (1904) 31 Mont. 513, 79 Pac. 14, defendant's smelting plant along with those of several others polluted the water and thus injured the plaintiff, a lower riparian proprietor. As the court pointed out, the diflSculty of apportionment was no de- fence whatever to an action at law. 2. Watson v. Colusa Parrott Co., supra. 3. Thorpe v. Brumfitt (1873) 8 Ch. App. 650: "Then it was said that the plaintiff alleges an obstruction caused by several peV- sons acting independently of each other, and does not show what share each had in causing it. It is probably impossible for a person in the plaintiff's position to show this. Nor do I think it necessary that he should show it. The amount of obstruction caused by any one of them might not, if it stood alone, be sufficient to give any ground of complaint, tho the amount caused by them all may be a serious injury. Suppose one person leaves a wheelbarrow standing on the way; that may cause no appre.ciable inconvenience,, but if a hundred do so, that may cause a serious Inconvenience, which a per- son entitled to the use of the way has a right to prevent; and it is no defense to any one person among the hundred to say that what he did causes of itself no damage to the complainant." See also Lambton v. Hellish (1894) 3 Ch. 163; 4 Col. Law Rev. 367. Eg.— 18 274 REPARATION AND PEEVENTION OF TOBTS. [Chap. Ill situation, however, it has been held that the actors must be sued jointly and not separately.* In any case where the defendants* are liable to be sued jointly at law, there is, of course, no difficulty about joining them in a suit for an injunction.'. If they are liable only to separate suits at law, they are subject to separate suits in equity;* but apparently the plaintiff may, if he prefers, join the independent actors in one suit, jurisdiction being usually placed upon the ground of avoiding a multiplicity of suits.'' § 211. Whether issue at law must first be directed. As already pointed out,* the early rule was that before a plaintiff could get a perpetual injunction against a trespass he must first establish his right at law if there was a dispute in regard to it.^ This rule was later abolished in England and modified in this country; but it apparently has not disappeared tho the reasons for its existence no longer prevail.* The early rule* re- quiring that in suits to enjoin a nuisance an issue be first directed to try the question whether the nuisance alleged was in fact® such', has had much the same de- 4. Hillman v. Newlngton (1880) 57 Cal. 56, diversion of water by several upper proprietors so that the aggregate diversion caused a nuisance. 5. Hillman v. Newington supra. 6. Lambton v. Mellish supra. The English practice seems to be to bring separate suits and have them tried together. See 7 Col Law- Rev. 57, 59. 7. See Warren v. Parkhurst (1906) 186 N. Y. 45, 78 N. B. 579; 7 Col. Law Rev. 57. And see post Chap. IX, Bills of Peace. 1. See ante § 192. 2. See ante § 193 3. See ante § 192. 4. Weller v. Smeatan (1784) 1 Brown Ch. 572, 1 Ames Eq. Cas. 554; Elmhurst v. Spencer (1849) 2 MacN. & G. 45. But see Bush v. Western (1720) Precedents in Ch. 530, 1 .Ames Eq. Cas. 553. 5. Since in the narrow sense a nuisance does not involve any vio- lation of the plaintiff's possession questions of the plaintiff's title are § 212] EEPAEATION AND PKEVENTION OF TORTS. 275 velopment.® Unless the rule has been definitely repudi- ated by judicial decision, it should be abrogated by statute.'' § 212. Balance of convenience — preliminary injunctions. Where a preliminary injunction is sought against a nuisance it is well settled that in deciding whether or not to give it ttie court will balance the inconvenience to the defendant if relief should be given against the in- convenience to the plaintiff if relief should be denied. As was observed in Crowder v. Tinkler,^ "great caution is required in granting an injunction of this nature where the effect will be to stop a large concern in a lucrative tradK"^ And where the decree sought is not raised; in this respect a suit to restrain a nuisance resembles a suit to stay waste ratlier tlian a suit to enjoin a trespass; hence as a matter of logic one might have expected that there would be no re- quirement of directing an issue at law in suits to enjoin a nuisance just as there is no such requirement in suits to stay waste. But the jurisdiction of equity over nuisance is of a later development than that over waste and in the meantime the rule in trespass cases had grown up; and since nuisance is superficially more like trespass than waste it is not surprising that the trespass rule should be adopted. See 22 Harv. Law Rev. 65 reviewing 56 U. of Pa. Law Rev. 290-315: "In- junctions against Nuisances and the Rule Requiring the Plaintiff to Establish his Right at law." 6. At the present time the rule does not apply where the alleged nuisance is clearly shown; Turner v. Mirfield (1865) 34 Beav. 390, 1 Ames Eq. Cas. 409. Where the court does direct an issue, It will usual- ly give a temporary injunction to maintain the status quo till the is- sue is decided; Pollock v. Lester (1853) 11 Hare 266; Longwood Valley R. R. v. Baker (1876) 27 N. J. Bq. 166. In Soltau v.' De Held (1851) 2 Simon [N. S.] 133 it was held that the defendant Is not entitled to have an Issue directed more than once; he can not, by re- ducing the amount of noise (bell ringing) entitle himself to insist upon having a jury determine whether the ringing bell is now a nui- sance. For the present statutory rule in England see ante § 193, note 4. 7. See 56 U. of Pa. Law Rev. 290, 315. 1. (1816) 19 Ves. 617, 1 Ames Bq. Cas. 555 (suit to prevent the defendants from using a new building as a powder magazine). 2. In Baden v. Firth (1803) 1 H. & M. 573, 1 Ames Eq. Cas. 564, the court refused a preliminary injunction against the operation of a 276 REPARATION AND PREVENTION OF TORTS. [Chap, iii affirmative rather than negative it, is usuallj' considered that still more caution should be used. In Herbert v. Penn. R. R. Co.,' the defendant railroad had made such a large embarkment on its own land as to cause ir- regular upheavals of the plaintiff's adjacent lot. The court refused a preliminary affirmative decree: "A mandatory injunction should be issued interlocutorily with hesitation and caution, and only in an extreme case where the law plainly does not afford an adequate remedy. It does not with certainty appear that further injury will result to the complainant from the em- bankment or the further filling upon it. . . . In such a condition . . . the court should not, by its manda- tory injunction compel the defendant to expend thous- ands of dollars in destroying that which it Jias expended so much in building up, and under such circumstances the court should not, by its preventive injunction, stop the completion of a work upon which so much has been expended and which will be of as great public benefit as it appears this will be."* large steam hammer: "The question is, whether the balance of con- venience is in favor of or against the issue of an interlocutory in- junction. If I found any real apprehension of serious and immediate injury to health or of any pressing character of the like nature (such as the cases of stench or of apprehended inundation), I would inter-, fere to prevent such irreparable injury in the mean time; but in this case I see nothing except annoyance apprehended by the plain- tiff; and I certainly think that on the question of balance of con- venience I ought to refuse the injunction." See also Maloney v. Katzensteln (1909) 120 N. Y. Supp. 418 where such relief was re- fused because of the hardship it would cause to a defendant who had without objection carried on the alleged offensive business for nine- teen years. 3. (1887) 43 N. J. Bq. 21, 10 Atl. 872. 4. See also Robinson v. Byron (1785) 1 Brown, Chanc. Cases, 588; Longwood Valley R. R. v. Baker (1876) 27 N. J. Eq. 166. In Hepburn v. Lordan (1865) 2 H. & M. 345 the defendant was com- pelled at once to remove some damp jute because of the slight cost of such removal compared with the enormous damage which the plain- tiffs would suffer if a fire should be caused by its spontaneous combus- tion. § 213] EEPABATION AND PEEVENTION OF TOKTS. 277 § 213. Same— existence of nuisance. Unless the plaintiff is complaining of an interfer- ence with what the law regards as a technical prop- erty right,' it is jiecessary to show substantial dam- age in order to prove a nuisance;^ and unless the damage consists of a direct injury to property,* the question of the existence of a nuisance involves a con- sideration of the relative convenience of the plaintiff, the defendant and the public. The question has usually been raised in cases where the plaintiff has chosen to live in a community devoted largely to industry. In Gilbert v. Showerman* the plaintiff sought to enjoin the running of a flour mill near the building in which he lived. In denying an injunction Cooley, J. said: "The right to have such a business restrained is not absolute and un- limited, but is, and must be in the nature of things, subject to reasonable limitations which have regard to the rights of others not less than to the general public 1. See ante § 206. 2. See ante I 205. 3. St. Helen's Smelting Co. V. Tipping (1865) 11 H. L. C. 642: "It is a very desirable thing to mark the difference between an ac- tion brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought tor a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the lat- ter, namely, the personal inconvenience and interference with one's enjoyment, one's qiiiet, one's personal freedom, anything that discom- poses or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance must undoubtedly depeifd greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it Is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. . . . But when an occupation, or business is a material injury to property, then there unquestionably arises a very different consideration." It must be confessed that it is not always easy to draw the distinction which the learned jndge insists upon; see 7 Col' Law Rev. 550,. 4. (1871) 23 Mich. 448. 278 REPARATION ANtl PREVENTION OF TORTS. [Cliap. ill welfare.** . . , Tlie defendants are carrying on a business not calculated to be especially annoying, except to occupants of dwellings. They chose for its establish- ment a locality where all the buildings had been con- structed for purposes other than for residence. Families, to some extent, occupied these buildings, but their oc<^upation was secondary to the main object of their construction, and we must suppose that it was generally for reasons which precluded the choice of a more desirable neighborhood. . . . The complainant, hav- ing taken up his residence in a portion of the city mainly appropriated to business purposes, cannot complain of the establishment of any new business near him, pro- vided such new business is not in itself objectionable as compared with those already established, and is carried on in a proper manner. ' '^ 5. Rushman v. Polsue and Alflerl (1906) 1 Ch. 234: "The views that the standard of what amount of freedom from- smoke, smell and noise a man may reasonably expect will vary with the locality in which he dwells seems to me confirmed by the following passage in Lord Halsbury's judgment in Colls v. "Home & Colonial Stores (1904) A. C. 179: "A dweller in towns cannot expect to have as pure air, as free from smoke, smell and noise as if he lived in the country, and distant from other dwellings, and yet an excess of smoke, smell and noise may give cause of action, but in each of such cases it becomes a question of degree, and the question is In each case whether it amounts to a nuisance wl^lch will give a right of action." Se 19 Harv. Law Rev. 474; 6 Col. Law Rev. 458. 6. A plaintiff who is compelled, because of comparative poverty, to live outside the purely residential districts, is not, however, deprived of all protection. In Ross v. Butler (1868) 19 N. J. Bq. 294 the plaintiff sought to enjoin the erection of a pottery to burn earthenware because it would produce large amounts of smoke and cinders; one defense was that the locality was occupied principally by mechanics and laborers who used their houses and lots for business purposes. In giving relief: "I find no authority that will warrant the position that the jtart of a town which is occupied by tradesmen and mechanics for residences and carrying on their trades and business, and which contains no elegant or costly dwellings, and is not inhabited by the wealthy and luxurious, is a proper and convenient place for carrying on business which renders the dwellings there uncomfortable to the owners and their families by offensive smells, smoke, cinders, or intolerable noises, § 215]' EBPAEATIOiN- AND PREVENTION OP TORTS. 279 § 214. Same — adequacy of damages. Even the the act complained of amounts to a nuisance so that damages are recoverable at law, an in- junction is occasionally refused as a matter of discretion, taking into consideration the relative inconvenience suffered by giving or denying relief. In Swaine v. Great Northern Ry. Co.^ the plaintiff asked an injunction against the defendant's leaving manure in stacks or in ears on their sidetrack close to the plaintiff's house. In remitting the plaintiff to his remedy at law: "It is not every case that the court will interfere by injunction. . . . Occurrences of nuisances, if temporary and oc- casional only, are not grounds for the interference of this court by injunction, except in extreme cases ; there is not . . . here a sufficient case for such inter- ference. ' '^ § 215. Same — perpetual injunction. Where the act complained of is proved or admitted to be a nuisance and where furthermore, damages there- for are conceded to be inadequate, it would seem to follow logically that the plaintiff is entitled to a per- petual injunction as of right, regardless of any further question of balancing conveniences. This is probably the even if the Inhabitants themselves are artisans, who work at trades occasioning some degree of noise, smoke and cinders. . . . There is no principle . . . which should give protection to the large comforts and enjoyments with which the wealthy and luxurious are surrounded, and fail to secure to the artisan and laborer, and their families, the' fewer and more restricted comforts which they enjoy." 1. (1864) 4 DeG., J. & S. 211, 1 Ames Bq. Cas. 569. 2. See also Cook v. Forbes (1869) 5 BiJ. Cas. 166; Giotlich v. Klein & Cohn (1909) 32 0. Cir. Ct. 665 (injunction refused against the operation of hammers and heavy machinery). In Robinson v. Baugh (1875) 31 Mich. 290 the fact that the defendant's blacksmith shop was on leased ground under a short term and the machinery was easily removable made it easier for the court to give equitable relief. 280 EEPARATION AND PREVENTION OF TORTS. [Chap, ill , prevailing rule.^ But in some jurisdictions courts have / /refused injunctions in such cases because of the com- parativb.y great hardship on the defendant if an in- junction were granted, especially if there would also result hardship to the public. In Richards' AppeaP the plaintiff sought to enjoin the defendant from using soft coal in their puddling furnaces because the smoke discolored the plaintiff's fabrics in his cotton factory, and rendered his residence uncomfortable. The de- fendant's works had cost over half a million dollars, nearly a thousand persons were employed; it was practically impossible to run their furnaces without soft coal and no way had yet been found of avoiding the escape of smoke. The court denied the relief sought: "Especially should the injunction be refused if it be very certain that a greater injury would ensue by enjoining than would by a refusal to enjoin. .''. . Hence the chancellor will consider whether he would not do a greater injury by enjoining than would result from re- fusing and leaving the party to his redress at the hands- of a court and jury."^ 1. Broadbent v. Imperial Gas Co. (1856) 7 DeG., M. & G. 436, 462: "The present is not a case in which this court can go into the question of convenience or ijiconvenience, and say -where a party is substantially damaged, that he can only he compensated by bringing an action toties quoties. That would be a disgraceful state of the law; and I quite agree with the Vice-Chancellor, in holding that in such a case this court must issue an injunction, whatever may be the consequences with regard to the lighting of the parishes and districts which this company supplies with gas." See also Hennesy v. Carmony (1892) SO N. J. Bq. 616, 25 Atl., 374, 1 Ames Eq. Gas. 578; Whalen v. Union Bag & Paper Co. (1913) 208 N. Y. 1, 101 N. E. 805; 13 Col. Law Rev. 635; 14 Harv. Law Ren. 149; 22 id. 458; 18 id. 596, 613; 25 id. 474. 2. (1868) 57 Pa. 105, 1 Ames Bq. Gas. 574. 3. In Daniels v. Keokuk Water Works (1883) 61 Iowa 549, 16 N. W. 705, 1 Ames Eq. Gas. 585, emphasis was laid upon the public inconvenience which would result from an injunction. For other cases denying an injunction because of the "balance of convenience" doctrine, see 14 Harv. Law Rev. 458, 623, 22 id. 596, 613, criticising Bliss V. Anaconda Mining Co. (1908) 167 Fed. 342; 22 Harv. Law Rev, 61, criticising Somerset Water, etc. Co. v. Hyde (1908) 129 § 215] KEPABATION AND PREVENTION OP TORTS. 281 ■ The criticism of thfe prevailing view is that it allows the plaintiff to charge the defendant an exorbitant price for his property.* Unless, however, the plaintiff has bought the property with that as his sole motive, this is 'considered as one of the legitimate incidents of owner- ship.^ And the defendant can usually protect himself at the outset by buying up sufficient land to prevent the question from being raised.^ The result of the mi- nority holding is that the plaintiff is remitted to his ' legal remedy; if he recovers only for damages down to the date of bringing his action, he will be compelled to sue just before the close of each statutory period'' in order to prevent the acquisition of an easement; if he recovers prospective damages, the defendant acquires by the judgment against him such an easement at once. Ky. 402, 111 S. W. 1105; 57 U. of Pa. Law Rev. 396, critising Mc- Carthy V. Bunker Hill etc. Co. (1908) 164 Fed. 927. In City of Wheel- ing V. Natural Gas Co. (1914) 74 W. Va. 372, 81 S. E. 1067 the court refused to enjoin a gas company from supplying gas in violation of its franchise because of the inconvenience it would cause the public. 28 Harv. Law. Rev. 110. And the doctrine has occasionally been applied in trespass cases; see ante § 196; 28 Harv. Law Rev. 209. 4. See 22 Harv. Law Rev. 596, 597. 5. In Edwards v. Allouez Mining Co. (1878) 3S Mich. 46, 1 Ames Eq. Cas. 608 the defendants in 1874 had erected a copper stamp mill at a cost of $60,000. As a result of Its operations, large quantities of sand were carried down stream and deposited on bottom lands* below; it was impossible to run at a profit unless they were allowed to do this. . In 1875 the^plaintifE bought the land below, not for use, but as a matter of speculation expecting to compel the defendants to pay a large price; for this reason an in- junction was refused, and the plaintiff remitted to his rights at law But see Cowper v. Laidler (1903) 2 Ch. 337, where the plain- tiff's motive in purchasing was held no bar in a case of disturbance of an easement of light and air. 6. See 14 Harv. Law Rev. 458, 459. 7. S«e ante § 195. In Attorney General v. Council and Borough of Birmingham (1858) 4 K. & J. 528, 540, the court seemed to think that a plaintiff "would be obliged to being a series of actions one every day of his life." There seems to be no sound basis for such a suggestion. 282 REPARATION AND PRBVI>NTION OF TORTS. [Chap, ill This in substance allows tihe defendant to take the plaintiff's property by a sort of private eminent domain;* and while it can not be plausibly argued that the refusal of a court of equity to grant an injunction is a violation of the fifth and fourteenth amendments to the United States Constitutions which impliedly prohibit either the Federal or the State government from the taking of private property for private use even with compensation,* it is inconsistent with the spirit of these .amendments^" unless the public interest in the de- fendant's enterprise is so great as to make it in sub- stance a taking for a public use.^^ 8. See 25 Harv. Law Rev. 474. 9. Quaere as to whether legislation, which gives equity courts power to award damages in lieu of an injunction in order to avoid the necessity of the plaintiff's suing at law, is a violation of the letter of the amendments. See Hennesy v. Carmony (1892) 50 N. J. Bq. 616, 1 Ames E3q. Cas. 578: "And of the English cases It is proper further to observe that some of them gave damages in- stead Of an injunction, under the authority of the acts of Parliament for that purpose, called Lord Cairns and Sir John Rolfs acts. The giving of damages for continuing nuisances Is quite within the omnipotent power of Parliament, which is, competent to take private property for private purposes. In this country, under our con- stitutional system, that course is forbidden." 10. See 13 Col. Law Rev. 635, 636: "The result of the denial of an injunction In such cases Is the same whether the plaintiff is driven to pjirsue his remedy at law, or whether the legislature vests in the courts the power to exercise discretion in awarding damages instead of an injunction. It results in a fotced sale of in- dividual rights at private valuation." 11 It has been suggested that if there is such a great public interest the proper course is to require the defendant to make the proper constitutional condem-nation. See 12 Col. Law Rev. 635, 637; 57 U. of Pa. Law Rev. 396, 398; 22 Harv. Law Rev. 596, 597. But under the rather restricted notion of what constitutes a public purpose under the amendments, it Is not clear that a legislature may authorize large private industrial plants to take property by eminent domain. The best' solution to the whole dlfllculty would be to liberalize and broaden our definition of public purpose so that the legislature may authorize such proceedings. This would approximate the situation in this country to that in England where Parliament may even authorize the taking of private prop- erty for a purfely prvate use. ^ 216] REPARATION AND PBEVENHON OJF XOBTS. 283 E. Disturbance of Private Easements. § 216. Private easements distinguished from natural rights— remedies. A private easement has been defined^ as "a right in one person, created by grant or its equivalent, to do certain acts on another's land, or to compel sudh other to refrain from doing certain acts thereon, the right generally existing as an accessory to the ownership of neighboring land, and for its benefit." Easements diifer from natural rights in that they are created separately^ as distinct subjects of property, while natural rights are mere incidents to the ownership of land. For a disturbance or interference with the proper exercise of an easement,* either by the owner of the servient tene- ment or by a tliird person, the common law remedy^ is an action on the case^ for damages. Where this is not adequate equity grants relief by either a negative or affirmative decree. In most of the cases® in which equitable relief has been granted the easement disturbed has been either one of light and air, right of way or right of access to a public way. 1. Tiffany, Real Property § 304. 2. Either by voluntary act of the parties or by prescription. 3. The disturbance of a private easement is frequently referred to as a private nuisance; see 9 111. Law Rev. 278-281; Morgan v. Boyes (1875) 65 Me. 124. 4. The common law also allowed the aggrieved person to abate the obstruction; Sargent v. Hubbard (1869) 102 Mass. 380 (cut- 'tlng branch' that obstructed private way) ; but unnecessary damages must be avoided; Joyce v. Conlin (1888) 72 Wis. 607, 40 N. W. 212. As to abatement of private nuisance, see ante § 204, note 5. 5. Trespass does not lie because the occupier of the dominant tenement was not considered as being possessed of the easement. 6. Tiffany, Real Property § 304 names the following easements as most important: "rights in extension or diminution of natural rights in regard to air, water, and support; rights of way over another's land; rights as to the use of a party wall in part or 284 EEPABATION AND PREVENTION OF TOBTS. [Chap, iii § 217. Light and air. ^ The mere fact that an action at law will lie for interference with an easement of light and air^ is not a sufficient reason for an injunction.^ On the other hand, the fact that the obstruction does not interfere with the plaintiff's presient use of the premises for which strong light is not required is no defense to a suit for an injunction if the threatened obstruction would substantially interfere with any lawful business.* Nor is it material that the plaintiff bought the property as an investment without intending to occupy it him- self.* But if the obstruction is temporary and easily removable, and the premises are occupied by tenants, the landlord may fail to get an injunction because there is no damage to his interest in the land, tho the tenants wholly on another's land; rights to have light and air pass to one's windows without obstruction; pew rights in churches and burial rights in cemetries." 1. Easements of light and air are quite common in EnglaSid because they can there be acquired by prescription. This part of the English common law was rejected in America as inapplicable to a new country, and easements of light and air by grant are comparatively rare. 2. Attorney General v. Nichol (1809) 16 Vesey 338, 1 Ames Eq. Gas. 534 (affidavit did not state the amount which the plain- tiff's windows would be darkened by the obstruction). See also Jackson v. Duke of Newcastle (1864) 3 DeG., J. & S. 275. In Mar- tin V. Price (1893) 1 Ch. 276, 1 Ames Eq. Gas. 537 the defendant had pulled down a house and was in the process of erecting a new building some twenty-five feet higher. Since this would cause the plaintiff substantial deprivation of light he was given an injunction. In Home & Colonial Stores, L't'd, v. Colls (1902) 1 Ch. D. 302 the "true rule of law" was stated to be: "If ancient lights are interfered with substantially, and real damage thereby ensues to tenant or owner, then that tenant or owner is entitled to relief." 3. Yates v. Jack (1866) 1 Ch. App. 295, 1 Ames Eq. Cas. 541, semble. See 4 Harv. Law Rev. 193. 4. Wilson v. Townsend (1860) 1 Drewry & Smale 324, 1 Ames Eq. Cas. 539. § 218] BEPAEATION AND PEEVBNTION OF TOETS. 285 -themselves would have been entitled to equitable relief.^ There is, of course, more reluctance in granting affirmative than in granting negative decrees; but af- firmative relief has been frequently granted nqt only on the final decree^ but also on motion.'' If after notice that an injunction will be sought the defendant has continued erecting the obstruction, such continuance will not place him in any better situation with respect to equitable relief.^ § 218. Right of way. One who has a private right of way is entitled to equitable relief against either an actual^ or threatened 5. Jones v. ChappeU (1875) 20 Eq. Cas. 539. The. rule is similar in case of private nuisance; Simpson v. Savage (1856) 1 e. B. [N. S.] 347. 6. Smith V. Smith (1875) 20 Eq. 500, 1 Ames Bq. Cas. 543 (defendant had torn down an old wall nine feet high and erected a new one twenty-six feet high.) In Calcraft v. Thompson (1867) 15 Week'ly Rep. 387 affirmative relief was refused because the plain- tiff had failed to show that there would be a substantial depriva- tion of light. In Brande v. Grace (1891) 154 Mass. 210, 31 N. B. 633, the plaintiffs had sought to enjoin their lessor from building another room in front of the room leased and occupied by the plaintiffs as a dental office; the appeal court held that the lower court should have given the injunction but that since the work had been completed and the plaintiff's lease would soon expire, their remedy should now be confined to damages. 7. Ryder v. Bentham- (1750) 1 Ves. Sr. 543, 1 Ames Bq. Cas. 545 (scaffold ordered removed). 8. Smltii V. Day (1880) 13 Oh. D. 651; Van Joel v. Hornsey (1895) 2 Ch. 774, 1 Ames Eq. Cas. 546: "The court will not allow itself to be imposed upon by a proceeding of that kind." See also Daniel v. Ferguson (1891) 2 Ch. 27. 1. Stallard v. Gushing (1888) 76 Cal. 472, 18 Pac. 427 (stair- way placed by defendant in plaintiff's private alley) ; Shivers v. Shivers (1880) 32 N. J. Eq. 578 (gate placed by defendant across plaintiff's* right of way obtained by prescription). Most of the cases are of affirmative decrees against actual obstructions. In jurisdictions which reject the doctrine of balance of convenience (see ante § 215) the plaintiff is entitled to an affirmative decree 286 KBPABATION AND PREVENTION OF TORTS. [Chap, iii interference therewith; and where the circumstances of the case require it, an affirmative decree will be given on motion.^ Where the obstruction has been caused independent- ly by several defendants the plaintiff is entitled to a decree against all even tho the share contributed by any one would not have been enough by itself to warrant either an action at law or an equitable decree.' In some jurisdictions if the defendant disputes th^" plaintiff's right and raises thereby a reasonable doubt, an issue at law will first be directed to determine the existence of the easement unless there is danger of serious injury.* As already explained, the real reasons for such a requirement have disappeared and the re- quirement itself should be abolished.^ A reversioner is entitled to equitable relief where the obstruction causes a substantial injury to the ■ reversioner 's interest in the land.* even tho it will cause great expense to the defendant; Krehl v. Buri-ell (1878) 7 Ch. D. 551 (court ordered removal of large building obstructing passage way to the back of plaintiff's house). Con- tinuing to build after notice of the plaintiff's claim does not place the defendant in any better situation with reference to equit- able relief against him'. T'ucker v. Howard (1880) 129 Mass. 361, 1 Ames Eq. Cas. 548. 2. ■ Hodge V. Giese (1887) 43 N. J. Eq. 342, 11 Atl. 484 (decree required defendant to allow the plaintiff to pass through the defend- ant's barber shop to the furnace which supplied heat to the plaintiff's rooms on the two floors above). 3. Thorpe v. Brumfitt (1873) 8 Ch. App. 650, 1 Ames Eq. Cas. 547 (plaintiff's right of way to his inn obstructed by horses and wagons belonging to several defendants). See ante § 210. 4. , Hart v. Leonard (1880) 42 N. J. Eq. 416, 1 Ames Eq. Cas. 549. See also 10. Col. Law Rev. 355. 5. See ante §§ 192, 193 and 211. 6. Webb V. Jones (1909) 163 Ala. 637, 50 So. 887; 10 Col. Law Rev. 355, 364 (right of way to plaintiff's farm obstructed by wire fence; the farm was rented to a tenant but the plaintiff's free ac- cess to the farm was interfered with and the market value of the property diminished thereby). § 219] EEPAEATION AND PBEVBNTION OF TOETS. 287 § 219. Land occupier's right of access to public way. If the owner of land adjoining a public way owns to the middle of the way, one in possession of the land may maintain an action of trespass against the use of that part of the way in a manner not authorized by the public easement, and if trespass is not an adequate remedy, he may get relief in equity.^ But if the fee of the way is in the municipality, the adjoining land occupier has only an easement of access to the way. If this easement is obstructed he is entitled to damages in an action on the case and if damages are not adequate, he is entitled to equitable relief. In West v. Brown* the defendant had been allowing his hacks to stand for an unreasonable length of time in front of the plaintiff's hoteJ,' thus obstructing the right of access of the plaintiff and his guests, to the injury of the plaintiff's business. 1. See ante §§ 195, 196. In American Mfg. Co. v. Lindgren (1912) 48 N. Y. L. J. 19 the defendant had been making speeches ir; front of the plaintiff's factory, vilifying the owners and urging the workers to strike. The plaintiff could have brought trespass because they owned the fee of the street but such a remedy would have been obviously inadequate and therefore it was held proper to issue an injunction. 2. (1897) 114 Ala. 118, 21 So. Rep. 452, 11 Harv. Law Rev. 130. See also Ackerman v. True (1902) 71 App. Div. 413, where the defendant was compelled to remove some houses which so projected into the street as to interfere with plaintiff's access to an adjoining lot. 2 Col. Law Rev. 559. There is a tendency to confuse this right of access with the rather similar right of individuals to gef relief against the obstruction of a public easement. In Callanan v. Gil- man (1887) 107 N. Y. 310, 14 N. E. 264, the defendant had so ob- structed the sidewalk in front of the plaintiff's store as to interfere with the plaintiff's trade. In very properly giving relief the court speaks of the defendant's, act as a public nuisance tho obviously the plaintiff's injury is due to blocking his right of egress and ingress to his store. See also 28 Harv. Law Rev. 499, 500, 6 Col. Law Rev. 203. 288 EEPAEATION AND PEEVBNTION OP TOBTS. [Chap, iii Damages being obviously inadequate,* the plaintiff was given a decree.* F. Obstruction of Public Eights. § 220. Remedy of private individual at law. In order that a private individual may recover at law for the disturbance or obstruction of a public right,^ ' it is necessary that he should have suffered actual damage thereby;^ furthermore, in most jurisdictions the rule is laid down that -the damage thus suffered must be "peculiar to him and different in kind from that to which the public is' subjected."* This additional re- 3. In Herbert v. Pennsylvania R. R. Co. (1887) 43 N. J. Eq. 21, 10 Atl. 872, the defendant had made a large embankment on its own land which caused an irregular upheaval of the plaintiff's nearby lot and obstructed access. Tho damages were not adequate relief was denied on the ground that the balance of convenience was against it. &ee ante § 215. 4. Apparently the land occupier not only has a right of access to the adjacent street but also has a right to an unobstructed view of the street. Cobb v. Saxby (1914) 3 K. B. 822 (defendant's sign board projected over the street in such a manner as to obscure the view from the plaintiff's side wall, which he used for advertising). In 28 Harv. Law Rev. 499 it is suggested that such a right might be called the right of publicity and that it is more analogous to an easement of light and air than to an easement of access because only a substantial obstruction of the view should be actionable. 1. This is practically always referred to as a public nuisance. Tho the remedies of the public are the same as in case of pablic nuisances proper, the difference from the standpoint of the in- dividual is such that a separate classification and treatment was considered desirable to avoid the confusion which has crept into some of the decisions. See post § 225. 2. This seems to be assumed in all the cases, including those that reject the peculiar damage requirement; Carver v. San Pedro etc. R. R. (1906) 151 Fed. 334. See 22 Harv. Law Rev. 137, 148. 3. Harniss et al. v. Bulpitt (1905) 1 Cal. App. 140, 81 Pac. 1022; Adler v. Metropolitan Elev. Ry. Co. (1893) 138 N. Y. 173, 33 N. B. 935. See also 11 Harv. Law Rev. 66 discussing Morris v. Graham (1897) 16 Wash. 343, 47 Pac. 752 (plaintiff suffered peculiar §'221] EEPAEATIOK AND PREVENTION OF TOBTS. 289 quirement has, however, very slight, if any, justification,* and has been severly criticised.® § 221. Remedy of private individual in equity. Apparently the individual is not entitled to a remedy in equity unless he could have recovered at law.^ Whether it is sufficient in all cases that he could have re- covered at law in order to be entitled to equitable relief does not seem clear, but it would seem that it is probably enough, especially in those jurisdictions that hold the peculiar damage rule.^ damage in his occupation as fisherman). In Anglo-Algerian S. S. Co. V. Houlder Line (1908) 1 K. B. 659 the plaintiff sought to re- cover for delay due to negligently damaging a dock which was owned by a corporation but which was by statute open to all upon payment of dock rates. The court refused to follow the analogy of the obstruction of a public right and denied"' recovery; see 21 Harv. Law Rev. 544. In Wilkinson etc. Co. v. Mcllquam (1905) 14 Wyo. 209, 83 Pac. 304, the defendant excluded the plaintiff from using government lands over which the public had a right to use as a common for pasturage of stock; the plaintift failed to get relief because he suffered no peculiar damage; 19 Harv. Law Rev. 540. 4. Coke, First Institute, 56a suggested that to allow any one who was damaged to sue at law would lead to a multiplicity ol actions and clog the courts. See 15 Col. Law Rev. 5-7 for an answer* to this. 5. For an exhaustive criticism see -15 Col. Law Rev. 1-23; 142- 165; Obstruction to Public Passage, by Professor Jeremiah Smith. See also 12 Harv. Law Rev. 358 approving Plscatagua Navigation Co. V. New York etc., R. R. Co. (1898) 89 Fed. 362. The right to abate seems to be enjoyed by any one having' occasion to make use of the public right; James v. Hayward (1631) Croke, Charles, 184 (removing" gate across public way) ; or by one who suffers substan- tial damage. See Gates v. Blincoe (1834) 2 Dana (Ky.) 158, 26 Am. Dec. 440. 1. Fessler v. Town of Union (1903) 67 N. J. Bq. 14, 56 Atl. 272. See also 7 Col. Law Rev. 364; 11 Harv. Law Rev. 66; Corn- ing V. Lowerre (1822) 6 Johnson's Ch. 439. 2. The decisions seem to take for granted that an individual entitled to an, action is entitled .to equitable relief, That a plain- Bq.— 19 290 RBPAKATION AND PREVENTION OF TORTS. [Chap, ui § 222. Remedy of the public — purprestures. The remedy of the public in case of an obstruction of a j^ublic right is by indictment or injunction at the suit of the Attorney General — the same as in the case of a public nuisance proper.^ Where the obstruction of a public right takes the form of a permanent structure, such an encroachment is frequently called a purpresture. If a purpresture causes damage it is treated like any other obstruction of a public right.^ Where no damage is caused there is a tiff may have an Injunction where damages would be Inadequate Is certainly true. See Georgetown y. Alexandria Canal Co. (1838) 12 Peters, 91, 99. 1. See post § 224. In Attorney General v. Sheffield Gas Con- sumers Co. (1852) 3 DeGex, McN. & G. 304 an injunction against laying gas pipes in a highway was denied because the damage was slight. In Coosaw Mining Co. v, South Carolina (1891) 144 U. S. 550 the state succeeded in preventing the removal of phosphate rock from the bed of the Coosaw River, in State v. Ohio Oil Co. (1897) 150 Ind. 21, 49 N. E. 809, the state was given an injunction against the waste of natural gas on the ground that although the defendant's property interest in the gas was unassailable, there was a public interest against the wastage of energy which was entitled ,to protection. This is somewhat analogous to the obstruction of a public right. 2. Attorney General v. Richards (1795) 2 Anstruther 603, I Ames Kq. Cas. 615 (defendant had erected a wharf, docks and other buildings between high and lo^ water mark. Interfering with nav- igation and causing the harbor to fill with mud). In Attorney- General V. Williams (18^9) 174 Mass. 476, 55 N. B. 77, 1 Ames Bq. Cas. 619, the defendant had erected a building in Copley Square, Boston, above the limit of height prescribed by statute which was interpreted as giving rights to the public similar to rights in high- ways and navigable streams. On writ of error the decision was affirmed In (1899) 177 U. S. 190. In Fessler v. Town of Union (1903) 67 N. J.- Eq. 14, 56 Atl. 272, equitable relief was given to a private Individual against the erection of a fire bell In the public square because the ringing of the bell would damage the plaintiff's near-by property to a greater degree than it would the property farther away. § 223] EEPARATION AKD PRBVEIirTION OF TOETS. 291 conflict of authority as to whether the State may require its removal.* G. Public Nuisance. § 223. Definition. A private nuisance^ which affects a considerable portion^v of the public becomes thereby a public nuisance.^ The most common illustrations are nuisances which af- fect the health* and comfort^ of the community. In re- cent years there has been legislation in some states in protection of public morals declaring certain things to be public nuisances which would be neither private nor 3. In some jurisdictions the rule is that a purpresture is not removable until it causes damage; People v. Mould (1899) 55 N. Y. Supp. 453 (wharf in the Hudson River) ; People ex rel. v. Davidson (1866) 30 Gal. 799 (wharf in San Francisco Bay) ; At- torney General V. United Kingdom Electric Telegraph Co. (1861) 30 Beav. 287 (telegraph wires in highway.) In other jurisdictions a purpresture is removable at any time. Attorney General v. Smith (1901) 109 Wis. 532, 85 N. W. 512 (pier in shallow waters of navigable lake). See 1 Col. Law Rev. 408. 1. See ante § 203. 2. Bell ringing may be a private nuisance to those living very close but not a public nuisance because to those farther away the ringing of the bells is pleasing instead of annoying. Soltau v. De Held (1851) 2 Sim. [N. S.] 133. 3. In this subdivision will be considered public nuisances in the narrow sense, not including obstructions of a public right which are discussed ante §§ 220-'222. 4. Attorney General v. Hunter (1826) 1 Devereux (N. C.) 12, 1 Ames Eq. Cas. 621 (mill pond) ; Attorney General v. Manchester (1893) 2 Ch. Div. 87 (small pox hospital). In Everett v. Paschall (1910) 61 Wash. 47, 111 Pac. 879 a tuberculosis sanatorium was held to be a nuisance tho there was no actual danger of infection. For a criticism of the decision see 24 Harv. Law Rev. 407, 11 Col. Law Rev. 292. 5. Duke of Grafton v. Hilliard (1736) 1 Ambler 160, note (smoke from brick kiln); Cronin v. Bloemecke (1899) 58 N. J. Bq. 313, 43 Atl. 605, 1 Ames Eq. Cas. 560 (noise of disorderly crowds attracted by baseball game). 292 BBPAEATION AND PEEVENTION OF TOETS. [Chap, ill public nuisances apart from such statute.^ There has been a tendency to recognize the protection of the public morals as a legitimate field for equitable inter- ference without a statute/ and also a slight tendency thus to recognize public aesthetics.® § 224. Remedy of the public. At common law the reiiiedy of the public is by indictment.^ The equitable remedy is sought either by the state^ or by a municipality^ to which such power has been delegated. If the municipality is itself guilty of maintaining a public nuisance, the state* is obviously the proper party to ask for relief. 6. Most of this legislation has been aimed at saloons. See Littleton V. Fritz (1885) 65 Iowa 488, 22 N. W. 641, 1 Ames Eq. Cas. 31, holding such a statute constitutional. It has been held that such a statute does not authorize a private individual to abate; State V. Stark (1901) 63 Kan. 529, 66 Pac. 243; 15 Harv. Law Rev. 415. 7. These are chiefly cases of injunctions against allowing prize fights to be held; Attorney General v. Fitzsimmo'ns (Ark., 1896) 35 American Law Register 100, 1 Ames Eq. Cas. 622; Com'th v. McGovern (1903) 116 Ky. 212, 75 S. W. 261, 66 L. R. A. 280. 8. See 20 Harv. Law Rev. 35-45; 8 Col. Law Rev. 226; 21 Harv. Law Rev. 445. 1. As a matter of substantive law a public nuisance is usually not a crime in the narrow sense but a public tort. But the state has found it more convenient to use the machinery of the criminal law than to bring an action on the case for damages. Where a pub- lic nuisance involves a breach of the peace — as for example, . a prize fight — there is a crime in the narrow sense and hence in At- torney General v. Fltzsimmons supra no injunction was issued against the principals in the prize fight on the ground that the normal remedy against them was by indictment for a misdemeanor. 2. Usually through a bill filed by the Attorney General. 3. See 23 Harv. Law Rev. 645; 26 id. 371.' 4; Com'th of Pennsylvania v. East Washington (1911) 60 Pitts- burg Leg. J. 300 (city sewage plant a public nuisance.) In (Jeorgia V. Teniessee Copper Co. (1907) 206 U. S. 230 the State of Georgia, . suing in the U. S. Supreme Court was held entitled to an in- junction against the discharge of noxious gases by a Tennessee cor- § 226] EEPARATION AND PEBVENTION OF TOETS. 293 § 225. Remedy of private individual. The fact that a private nuisance is also a public nuisance because it affects a large portion of the public should not in any way diminish what would otherwise be the rights and remedies of the private individual and this seems to be the prevailing view.^ In a few cases, however, the confusion^ resulting from calling the ob- struction of a public right a public nuisance has caused the courts to require that in order to get relief from a publit; nuisance in the narrow sense the private in- dividual must show peculiar damage not suffered by the public in general.^ H. Common Law Copyeight — Stattjtoey Monopolies, i § 226. Common law copyright. For at least a hundred and fifty years^ the common law has recognized a right in the author of a literary production to keep it entirely secret or to determine at what time ajid in what manner it should be published. This right to control publication is usually called com- poration across the state Une; tho damages might have been an adequate remedy for a private person, a state was not required to part with its quasi sovereign rights for damages. See 21 Harv. J^aw Rev. 132, 144, 7 Col. Law Rev. 617. 1. Cronin v. Bloemecke (1899) 58 N. J. Bq. 313, 1 Ames Eq. Cas. 560 (base ball game). See also Bellamy v. Wells (1890) L. J. Ch. D. 156 (disorderly boxing contests). 2. For a clear statement of the distinction see Wesson v. Washburn Iron Co. (1860) 13 Allen (Mass.) 95, 90 Am. Dec. 181. 3. Cranford v. Tyrrell (1891) 128 N. Y. 341 (bawdy house). Seej also Myers v. Malcolm (1844) 6 HIU (N. Y.) 292, 41 Am. Dec. 744 (action on the case for explosion of quantity of gunpowder kept in a village). Even in cases of the obstruction of a public right, the requirement of peculiar damage has been criticised. See ante § 220. 1. Tonson v. Collins (1760) 1 W. Bl. 301; 12 Harv. Law Rev. 51, 553-556. 294 REPABATION AND PBEVENTION OF TOBTS. [Chap, ill inon law copyright.^ It is frequently referred to as a property right,* but similar protection has been ex- tended* to cases where the right was one of personality® rather than of property. It is well settled that the right comes to an end as soon as the author published or dedicates® his pro- 2. See 12 Harv. Law Rev. 436. In Palmer v. De Witt (1872) 47 N. Y. 532 the court calls it a common law right of "first pub- lication" or "copyright before publication." 3. Palmer v. DeWitt supra; Miller v. Taylor (1767) 4 Burr. 2303, 2379. 4. Protection has been given not only to practically all writings, — including unpublished dramatic works, Tompkins v. Halleck (1882) 133 Mass. 32; private letters. Gee v. Pritchard (1818) 2 Swanst. 403; and paintings, Werckmeister v. Springer Co. (1894) 63 Fed. 808 — but also to the collection of news. National Telegraph News Co. V. Western Union Telegraph Co. (1902) 119 Fed. 294; to oral lectures, Abernethy v. Hutchinson (1825) 3 L. J. Ch. [O. S.J 209; and to photographs, Corliss v. Walker (1893) 57 Fed. 434; Pollard V. Photographic Co. (1889) 40 Ch. D. 345. In Haskins v. Ryan (1906) 71 N. J. Eq. 575, 64 Atl. Rep. 436, the plaintiff had formed a plan of organizing the various white lead companies into one. He com- municated this to the defendant to secure funds from him to finance it. The defendant proceeded to carry out the plan, ex- cluding the plaintiff from participating therein. The plaintiff asked for an accounting and share of the profits but relief was denied. The case was not analogous to common law copyright because it was the execution of the plan and not the publication of it that v/as potentially valuable; or to trademark (see post § 230) be- cause the plan itself was not a commodity to be offered for sale to the public and the court was unwilling to recognize a property right in the mere idea. See 20 Harv. Law Rev. 143, 156. In Mansen v. Valley Printing Co. (1908) 1 Ch. 567 the plaintiff had several pictorial designs 'which he Intended to copyright for use in advertising. X copied the designs and sold them to the de- fendant who used them without knowing their origin. The plaintiff was nevertheless held entitled to protection. In 21 Harv. Law Rev. 634 the case is criticised on the ground that it should have been treated like cases of trade secret. See post, § 229. 5. The right of the writer of a private letter to control Its publication by the recipient is more properly classified as a per- sonal right where the letter has no literary value. See Gee v. Pritchard (1818) 2 Swanst. 403; 4 Harv. Law Rev. 198-204. 6. Whether \ such publication or dedication has taken place seems to depend upon the subject matter involved. The delivery § 227J KEPABATION AND PREVENTION OF TOETS. 295 duction to the public. After such dedication the only- right, if any, of the author is that given by the copy- right statutes^ The common law remedy for a violation of this right is an action on the case for damages.^ Where damages would be inadequate/ the plaintiff is entitled to equitable relief.^" § 227. Patents. The common law remedy for infringement of a patent right is an action on the case for damages. Unless the patent has expired or is about to expire,^ the plain - of a public lecture is not considered such a publication as to put an end to the right; Caird v. Sime (1887) 12 App. Cas. 326; neither Is the private circulation of a book; Prince Albert v. Strange (1849) 1 Mac. & G. 24; nor the distribution of ticker news among customers; National etc. News Co. v. Western Union Tel- egraph Co. supra; 2 Col. Law Rev. 549, 560; 19 Harv. Law Rev. 65; nor, in the United States, the public rendition of a dramatic! production; Tompkins v. Halleck, supra, 8 Harv. Law Rev. 280, 286. On the other hand, the exhibition of a painting in a public gallery has been held to terminate the producer's right; Pierce etc. Co. V. Werckmeister (1896) 72 Fed, 54, and so has the filing of an architect's plans with the city building department; Wright v. Bisle (1903) 83 N. Y. Supp. 887. See 17 Harv. Law Rev. 266, 280; 16 Harv. Law Rev. 226. In England, by statute, a dramatic pro- duction is held to be published on its first presentation and after such presentation it is of course too late to .take out a statutory copyright; but such a presentation in England does not operate to forfeit common law copyright in the United States. Frohman v. Farris (1909) 238 111. 430, 87 N. E. 327. 7. See post § 228. After the expiration of the statutory copy- right, the common law copyright does not revive; Donaldson v. Becket (1774) 4 Burr. 2408, 2417; Wheaton v. Peters (1834) 8 Pet. 591; see 27 Harv. Law Rev. 385. 8. Tonson v. Collins (1760) 1 W. Bl. .301. 9. Damages are usually inadequate because conjectural. 10. At the present time relief is practically always sought In equity, the plaintiS asking for an Injunction and an accounting of the profits. Most of the cases cited supra are cases seeking equitable relief. , 1. In Bragg Mfg. Co. v. Hartford (1893) 56 Fed. 292 the bill was filed only four days before the expiration of the patent; the 296 REPAEATION AND PEEVENTION OF TORTS. [Cliap. ill tiff usually prefers and is entitled^ to an injunction against the continuance of the infringement and an recounting of profits as incidental thereto.^ Since the damage caused by the infringement may be much greater than the amount of profits made by the infringer, a plaintiff who is entitled to an injunction should be allowed to choose damages instead of profits, and this is now provided for by statute in England.* There has been a tendency in doubtful cases to postpone the giving of equitable relief till after the plaintitf has established at law his legal right and the fact of infringement.' The doctrine of balance of convenience already discussed^ has been applied to the giving of" both temporary'' and permanent* relief. Where a plaintiff has already succeeded in litigation bill was held demurrable because It was impossible to give an in- junction; see also 21 Harv. Law Rev. 544. But the mere fact that .the patent expires before the suit is determined does not disentitle the plaintiff to an accounting for profits; Beedle v. Bennett, (1887) . 122 U. S. 71. In McCreery Engineering Co. v. Mass. Fan Co. (1910) 180 Fed. 115 the plaintiff was refused an injunction against county commissioners for using a patent device on the ground that • it would in substance be an injunction against the state, and was re- mitted to an action at law against the commissioners themselves; see 24 Harv. Law Rev. 155. 2. The remedy at law is usually inadequate because the amount of damage is conjectural; Reece Mach. Co. v. Earl & Wilson (1913) 205 Fed. 539. 3.' The remedy of accounting for profits is not tort but quasi contract and therefore the suit is not abated by the death of the defendant; Head v. Porter (1895) 70 Fed. 498, 1 Ames Eq. Cas. 644. 4. Bells V. De Vitre (1864) 34 L. J. Ch. 289. 5. Stevens v. Keating (1847) 2 Phillips 333, 1 Ames Eq. Cas. 627. Tlie historical reasons for this rule have already been discussed See ante §§ 192, 193. In England now by Rolfs Act 25 and 26 Vict, c. 42 such questions in patent cases must be tried in equity. 6. See ante §§ 212-215. 7. Standard Elevator Co. v. Crane Elevator Co. (1893) 56 Fed. 718, 1 Ames Eq. Cas. 633. 8. Bacon v. Jones (1839) 4 Mylne & Craig 433, 1 Ames Eq. Cas 634; McCrary v. Pa. Co. (1S80) 5 Fed. 367. § .227] EEPAEATION AND PREVENTION OF TOETS. 297 against other infringers, he is entitled to a temporary injunction upoil proving infringement by the defendant® unless the defendant is able to show new evidence of a conclusive character attacldng the validity of the patent or to show that the former suit was collusive.^" That the plaintiff has made no use of his patent may bar him from getting a temporary injunction," but is no bar to a permanent injunction.^* A plaintiff who has been guilty of acquiescence amounting to estoppel may be entirely barred from any equitable relief.^* But mere delay without any element of estoppel will merely bar relief for such acts of infringement as happened longer than the statutory period before bringing suit.^* The mere fact that infringement ceased before the suit was begun is not a sufficient ground for refusing relief where i't appears that further infringement is intended.^^ 9. Edison Elec. Light Co. v. Beacon Vacuum Pump etc. Co. (1893) 54 Fed. 678, 1 Ames Eq. Gas. 630. 10. Dlckerson v. De la Vergne Co. (1888) 35 Fed. 143. See also Warner v. Bassett (1881) 7 Fed. 468 (previous judgment was by con- sent); and Bowers Co. v. N. Y. Co., (1896) 77 Fed. 980 (appeal taken on former judgment). 11. Plympton v. Malcomson (1875) 20 Eq. Cas. 37, 1 Ames Bq. Cas. 632. 12. Continental Paper Bag Co. v. Eastern Bag Co. (1906) 150 Fed. 741; 7 Col. Law Rev. 433. For a good adverse criticism of the deci- sion on the ground that such a result is inconsistent with the spirit of the patent statutes see 20 Harv. Law Rev. 638. In England this point is taken care of by express statutory provision for compulsory licenses,; ' Terrell, Patents, 4th edition 248. 13. Lane & Bodley Co. v. Locke (1893) 150 U. S. 193. 14. Ide V. Thorlicht (1902) 115 Fed. 137, 1 Ames Eq. Cas. 642. 15. Cayuta etc. Co. v. Kennedy etc. Co. (1903) 127 Fed. Rep. 355. In Butler v. Bull (1889) 28 Fed. 754 an injunction was given to a plaintiff before he had obtained a patent; for an adverse criticism see 3 Harv. Law Rev. 50. In Fuller v. Berger (1902) 120 Fed. 274, the plaintiff succeeded in getting an injunction tho his patented device was used to guard gambling machines; for an adverse criticism see 16 Harv. Law Rev. 444, 451. 298 BBPAEATION AND PREVENTION OF TORTS. [Chap, ill A manufacturer of a component part of an article which he knows is to be used in infringing is liable as contributory infringer.^® v § 228. Statutory copyright. The common law remedy for the infringement of statutory^ copyright is an action on the case for damages. If this remedy would be inadequate equity will give an injunction^ with an accounting for profits.^ Generally speaking the rules applying to cases of infringement of patents apply here. In doubtful eases the plaintiff must usually first establish his case at law before getting relief in equity;* the doctrine of balance of convenience may prevent the giving of either temporary' or . per- manent^ relief; and a plaintiff may be barred by ac- quiescence amounting to estoppel tho not by mere delay." 16. Wallace v. Holmes (1871) 9 Blatchf. (U. S.) 65. For an ad- verse criticism of the contrary English view see 18 Harv. Law Rev. 151. On the extent of the doctrine of contributory infringement see 25 Harv. Law Rev. 641, 668, 12 Col. Law Rev. 564, discussing Henry v. A. B. Dick Co. (1912) 32 Sup., Ct. Rep. 364, which held valid a re- striction in the sale of patented mimeographs that they be used only with supplies (ink etc.), of the patentee's production. 1. For a discussion of common law copyright or th« right of first pul^lication, see ante § 226. Except dramatic productions which are held in the U. S. not to b^ published by public performances, it is diflS- cult to make beneficial use of literary property except under the pro- tection of a statutory copyright. 2. An injunction will not be given in a case where an action at law would not have lain; Walcot v. W9.1ker (1802) 7 Ves. 1 (libellous publication). 3. In England by statute of 1858 a plaintiff who gets an injunction may choose damages rather than profits; Ager v. Peninsular Co. (1882) 20 Ch. D. 637. 4. Anonymous (1682) 1 Vernon 120, 1 Ames Eq. Gas. 650. 5. McNeill v. Williams (1847) 11 Jurist 345, 1 Ames Eq. Casi 652. 6. Baily v. Taylor (1829) 1 Russell & Mylne 73, 1 Ames Eq. Cas. 654. 7. Hogg V. g'cott (1874) 18 Eq. Cas. 444, 1 Ames Eq. Cas. 655. § 230] EEPARATION AND PREVENTION OF TOETS. 299 I. Intekpekence with Trade Interests — Fraud. § 229; Trade secrets. An inventor has no absolute property in his in- vention; there is no common law patent^ right to cor- respond to the common law copyright^ in literary and similar productions. But if the defendant has con- tracted^ not to disclose the inventor's secret, he is not only liable at law but equity will usually give specific performance of the contract* by enjoining the de- fendant frorn divulging the secret.^ Equity will give similar relief against a defendant who has obtained the secret because of a fiduciary relationship® or by means of fraud.'^ Whether a bona fide purchaser from the wrong- ful procurer of the secret is protected is not clear, but the tendency seems to be to. regard the plaintiff's right as equitable instead of legal and hence to protect such a purchaser.* § 230. Trade marks. The right of a manufacturer or vendor so to identify his goods to the buying public by an exclusive trade 1. For a discussion of statutory patent rights see ante § 227. 2. See ante § 226. 3. Either with the inventor or his assignee. That the secret is assignable see Vickery v. Welch (1837) 19 Pick. (Mass.) 523. 4. Peabody v. Norfolk (1868) 98 Mass. 452. See also 19 Harv. Law Rev. 537. 5. /The common law remedy is usually inadequate because the amount of- damage is "conjectural. 6. Eastman Kodak Co. v. Reichenbach (1894) 79 Hun. 183; 10 Col. Law Rev. 559-561, 11 Harv. Rev. 262, 272. The injunction will also be issued against the third person to whom the secret has been or is about to be divulged; 19 Harv. Law Rev. 537. 7. Tabor v. Hoffman (1889) 118 N. Y. 30, 23 N. E. 12 (defendant Induced one of plaintiff's employees to make drawings of the plain- tiff's unpatented pump). "8. Stewart v. Hook (1903) 118 Ga..44o, 45 S. E. 369, 17 Harv. Law Rev. 20S. 300 EEPAKATION AND PREVENTION OF TORTS. [Chap, ill mark^ is now^ well recognized both at law and in equity. The right is usually considered to be a property^ right and is enforcible as to future conduct even against a bona fide infringer." In order to have such recognition, however, words in common use, such as geographical'' and proper'' names and descriptive words'' cannot be used. The right is not assignable apart from the business of the manufacturer or vendor,® because such an assign- ment would work a fraud on the public." 1. See Browne, Trade Marks § 87: "The mark may consist in the name of the owner, whether manufacturer or vendor of the mer- chandise (provided it be written, printed, branded, or stamped in a mode peculiar to itself); in a seal, a letter, a cipher, a monogram, or any other sign or symbol that can serve to distinguish the prod- ucts of one man from those of another. It may be any symbol or emblem, however unmeaning itself, as a cross, a bird, a quadruped, a castle, .a star, a comet, a sun; or it may, and frequently does, consist 'of a combination of various objects, copied from nature, art, or fancy; and }i such symbol or emblem comes by use to be recognized in trade as the mark of the goods of a particular person, no other trader has a right to affix it to goods of a similar description. It may be adhes- ive or non-adhesivfe. It may be put inside of the article, or on the outside. . It may be written, printed, stamped, painted, stencilled, branded, or otherwise, and either on the article itself, or on its case, covering, envelope, or wrapper." 2. Tho trademarks have probably been in use for m,any centuries the Anglo-American law on the subject is largely the product of the last hundred years; Browne, Trade Marks § 1. In Blanchard v. Hill (1742) 2 Atk. 484, Lord Hardwicke said he did not know of any in- stance of granting an injunction to restrain one trader from using the same mark with another. 3. See 12 Harv. Law Rev. 243, 244. 4. Regis V. Jaynes (1904) 185 Mass. 458, 460; 4 Harv. Law Rev. 321, 322. 5. Canal Co. v. Clark (1871) 13 WaU. 311 (no exclusive right to name "Lackawanna Coal"). 6. Merriam v. Texas Sittings Pub. Co. (1892) 49 Fed. 944 (no exclusive right to name "Webster's Dictionary"). 7. Fischer y. Blank (1893) 138_N. Y. 244, 33 N. E. 1040 (no ex- clusive right to use of words "Black Package Tea"). See 6 Col. Law Rev. 350; 16 Harv. Law Rev. 272-290. 8. Falk V. Am. West Indies Trade Co. (1905) 180 N. Y. 445, 73 N. E. 239. 9. 5 Col. Law Rev. 401. § 231] KEPAEATION AND PREVENTIOUT OF TOBTS. 301 The common law remedy for the infringement of such a right is an action on the case for damages, brought by the manufacturer or vendor;'* but the more usual remedy is by a bill in equity^' for an injunction against the continuance of the infringement and an accounting of the profits made.'^ § 231. Ca^es analogous to trade marks— unfair com- petition. Where the means used by the plaintiff to identify his goods is not of the kind in which the law recognizes that an exclusive right may be acquired by prior user, relief may still be obtained against a defendant who undertakes to palm off his goods upon the public as those of the plaintiff. '^^ In the United States relief in 10. An action in the nature of deceit; Leather Cloth Co. v. American Leather Cloth Co. (1863) 4 DeG., J. & S. 137. It Is not strictly an action for deceit because, althrough the manufacturer or vendor Is damaged by the fraud, it is the buying public to whom the fraudulent representations are addressed. Where a member of the public suffers damages by being induced to buy inferior ^oods he is entitled to an action on the case for deceit where the infringement was knowingly made but is obviously not entitled to an injunction against future deception. Conceivably a public oflScial might be given an injunction in order to protect the public generally but there seems to be no trace of this; the natural vigilance of the trade mark owner is probably a sufficient safeguard of the public interest. 11. Leather Cloth Co. v. American Leather Cloth Co. (1863) 4 DeG., J. & S. 137. 12. Saxlehner v. Eisner- & Mendelson Co. (1905) 138 Fed. 22; see 20 Harv. Law Rev. 620, 621. 1. Croft V. Day (1843) 7 Beav. 84: "No man has a right to dress himself in colors or adopt and bear symbols to which he has no pe- culiar or exclusive right, and thereby personate another person, for the purpose of inducing the public to suppose, either that he is that other person, or that he Is connected with or selling the manufacture of such other person while he is really selling his own. It is per- fectly manifest that to do these things is to commit a very gross fraud." It should be pointed out, however, that the exclusive trade- mark right evolved out of protection given against fraud; 7 Col. Law Rev. 120; and that the boundary line between^ trade mark cases and cases analogous to trademarks Is by no means a clear cut and perma- 302 REPARATION AND PREVENTION OF TORTS. [Chap, iii such cases seems to be given only against a defendant who has acted with fraudulent intent,^ whereas in England it is sufficient, in order to get injunctive relief,* to show that the defendant's conduct does have the result or is likely to have the result of deceiving customers into buying his wares for and as the plaintiff's wares.* A limited protection is thus afforded to a plaintiff in the use of descriptive words,^ geographical names* and trade names,'' including the use of one's own name.* nently fixed line of demarcation; see 16 Harv. Law Rev. 272, 274; see also 4 Harv. Law Rev. 321-332, Cases Analogous to Trade Marks, by G. D. Gushing; 10 Harv. Law Rev. 275-298, Unfair Competition, by Oliver R. Mitchell; 5 Harv. Law Rev. 139-145, Prevention of Unfair Competition in Business, by Rowland Cox. 2. Daviess County Distilling Co. v. Martinonl (1902) 117 Fed. 186, 188; 16 Harv. Law Rev. 272, 283. 3. An innocent defendant would probably not be liable even in England for suob conduct prior to notice of the plaintiff's rights; 16 Harv. Law Rev. 272, 290. 4. Millington v. Fox (1838) 3 Myl. & Cr. 338, 352, 16 Harv. Law Rev. 278. 5. Ih Waterman v. Shipman (1891) 130 N. Y. 301, 29 N. E. Ill, the plaintiff was protected against unfair competition in the use of the word "Ideal" as applied to fountain pens. In Cooke & Cobb Co. v. Miller (1902) 169 N. Y. 475, 62 N. E. 582, the plaintiff tried to estab- lish a trade mark in the word "Favorite" as applied to letter files and of course failed. Conceivably he might have succeeded in getting re- lief if he had proceeded on the ground of unfair competition. 2 Co). Law Rev. 406. See also 12 Harv. Law Rev. 349. 6. Busch V. Gross (1906) 71 N. J. Eq. 508, 64 Atl. 754 ("Metuchen Inn") ; W. R. Lynn Shoe Co. v. Auburn-Lynn Shoe Co. (1905) 100 Me. 461, 62 Atl. 499 ("Auburn-Lynn Stoes"). See also 11 Col. Law Rev. 798. 7. Cohen v. Nagle (1906) 190 Mass. 4, 76 N. E. 276 ("Keystone Cigars"); see 6 Col. Law Rev. 349, 363. The word "Keystone" was in common use as a public label and hence no exclusive copyright could be conceded. See also 7 Col. Law Rev. 120, 142 discussing U. S. Frame & Picture Co. v. Horowitz (1906) 100 N. Y. Supp. 705. 8. Nolan Bros. Shoe Co. y. Nolan (1900) 131 Cal. 271, 63 Pac. 480; 14 Harv. Law Rev. 622; Wyckoff, Seamans & Benedict v. Howe Scale Co. (1903) 122 Fed. 348, 3 Col. Law Rev. 494, ("Remington Typewrit- er") ; Fine Cotton Spinners etc. v. Harwood Cash & Co. (1907) 2 Ch. D. 184; 7 Col. Law Rev. 629. In Edison v. Edison Polyform Mfg. § 232] EEPAEATIOK AND PREVENTION OF TOETS. 303 Since relief is granted on the theory of protecting the public and the plaintiff against fraudulent simulation by the defendant, the plaintiff is not entitled to pro- tection where the public is not likely to be deceived f or where he has himself been guilty of deception of the public.^** § 232. Protection of non-commercial names. There is much conflict of opinion as to whether the protection accorded to trade names should be extended to non-commercial names. Perhaps the stronger tenden- cy has been to refuse relief/ tho an injunction has been granted in a few cases.^ It may well be urged that even tho pecuniary damage is not involved, it is desirable to give protection where the public is likely to be deceived Co. (1907) 73 N. J. Eq. 136, 67 Atl. 392, protection was given to a plaintiff wlio was not competing with the defendant. See also 12 Harv. Law Rev. 243-261, Deceptive Use of One's Own Name, by W. L. Putnam. Since a corporation in choosing a dame has a very large field from which to select, it has been contended that the protection afforded to corporate trade names should be based upon a property right and not merely upon protection from fraud; 6 Col. Law Rev. 249-258. " ' 9. Russia Cement Co. v. Frauenhar (1904) 32 N. Y. L. J. 475 ("LePage's Fish Glue"); see 5 Col. Law Rev. 63. A plaintiff whose goods are not known outside a limited territory is not entitled to an injunction covering the whole United States; Briggs v. National Wafer Co. (1913) 215 Mass. 100, 102 N. E. 87 ("Boston Wafers"); see 27 Harv. Law Rev. 190. 10. Manhattan Co. v. Wood (1883) 108 U. S. 218, 8 Col. Law Rev. 40, 236. See also 4 Col. Law Rev. 365 and 19 Harv. Law Rev. 128. Where the plaintiff's misconduct does not relate in any way to the sale of the goods, it Is no bar to an injunction; Wprld's Dis- pensary etc., Assin v. Pierce (1911) 203 N. Y. 419, 96 N. B. 738 (vio- lation of statute forbidding stock corporations to practice medicine or conduct hospitals); see 25 Harv. Law Rev. 481. 1. Most Worshipful Grand Lodge Free, Ancient and Accepted Ma- sons etc. V. Grimshaw (1909) 38 Wash. Law Rep. 130. For criticism see 23 Harv. Law Rev. 572. 2. Colonial Dames of America v. Colonial Dames of New York etc. (1899) 29 N. Y; Misc. 10 (1901) 71 N. Y. Supp. 1134, criticised in 2 Col. Law Rev. 245 and in 13 Harv. Law Rev. 685. 304 EEPAEATION AND PREVENTION Or TORTS. [Chap, ill and the work of worthy charitable organizations thereby hindered, especially when the defendant is profiting by the infringement.* § 233. Other fraudulent representations to third parties. Where the defendant's fraud consists of mis- representations to the plaintiff himself, it is obvious that the plaintiff does not need preventive relief; his right to specific reparation will be treated in a later chapter.^ In § 231, ante, relief was based upon the funda- mental ground of prevention of fraudulent representa- tions to third parties which is harmful to the plaintiff. There are a few' cases, however, which cannot be classified under that section. In DTummond v. Altemus^ the plaintiff was given an injunction against the publication of an inacurate report of his public lectures. And in Routh v. Webster* the defendant corporation was enjoined from publishing the name of the plaintiff in its prospectus as one of its trustees, because it would tend to expose him to litigation.* 3. Legal Aid Soc'y v. Wage Earner's Legal Aid Ass'n (1908) 39 N. Y. Law J. 332, 8 Col. Law Rev. 514. Where no deception of the public is likely the only basis for protecting a non-commercial name would be the recognition of a right of privacy; see Vassar College v. Loose Wiles Biscuit Co. (1912) 197 Fed. 982 (defendant used name, seal and Insignia of college for advertising purposes). See also 12 , Col. Law Rev. 745. 1. See post Chapter 6, Rescission. 2. (1894) 60 Fed. 338. 3. (1847) 10 Beav. 561. 4. See also Vanderbllt v. Mitchell (1907) 72 N. J. Eq. 910, 67 Atl. 97; the plaintiff was awarded cancellation of a birth certificate which his wife had obtained for her infant child from the attending physi- cian by fraudulently representing to the latter that the plaintiff was the father of the child. For a discussion of the cases where the false statement complained of is libellous, see post § 239. § 234] REPARATION AND PREVENTION OF TORTS. , 305 J. Interfbeence with Contract and Business Rela- tions. § 234. Compelling or inducing breach of contract. If a defendant by intimidation^ or fraud^ or bribery* prevents a third party X from performing his contract with the plaintiff; he is liable at common law in an action on the case; and if damages are inadequate,* the plaintiff may get injunctive relief in equity.^ Where peaceable persuasion only is used to induce non-performance, it would seem to be the better view* that procuring a breach of contract by such means should be held to be a prima facie torf which might be justified either by the defendant's family relationship 1. Doremus v. Hennesy (1898) 176 111. 608, 52 N. E. 924, 54 N. E.~ 524; see also 11 Harv. Law Rev. 469. 2. Van Horn v. Van Horn (1890) 52 N. J. L. 284, 20 Atl. 485. See also 22 Harv. Law Rev. 50, 61, discussing Sparry & Hutchinson Co. v. Louis Weber Co. (1908) 161 Fed. 219. 3. Angle v. Chicago R. Co., (1894) 151 U. S. 1. In Davis v. Condit (1913) 124 Minn. 365, 144 N. W. 1089 the complainant alleged that the defendant by seducing X interfered with the marriage contract then subsisting between X and the plaintiff. The com- plaint was held bad on demurrer; see 27 Harv. Law Rev. 589. See also 24 Harv. Law Rev. 397, 412, as to whether a negligent act of the defendant which interferes • with the performance of X's con- tract with the plaintiff is a tort. 4. W^ere the plaintiff is engaged in business, damages are usually inadequate because conjectural; damages are also inadequate, it has been suggested, where the defendant's credit is not as good as that of X; see 11 Harv. Law Rev. 469, 470. 5. Jersey City Printing Co. v. Cassiday , (1902) 63 N. J. fiq. 759, 53 Atl. 230. 6. Lumley v. Gye (1853) 2 Ellis & B. 216 (defendant Induced Miss Wagner not to sing ' for the plaintiff but for himself. The case was a strong one for the plaintiff because he had been able to get an injunction against Miss Wagner's singing for Gye. See ante § 72. And see 2 Harv. Law Rev. 19-27. ' 7. See 16 Harv. Law Rev. 299; 8 id. 1, 12. Eq.— 20 306 EEPAEATION AND PREVENTION OF TOETS. [Chap, ill to X* or perhaps by other circumstances.® There is, however, square conflict of authority on the point." If such conduct is held to be a tort and damages are inadequate, equitable relief will of course be given." § 235. Interference with "probable expectancies" of an eniployer — strikes and boycotts. An employer of labor — whether he makes contracts of employment with his employees or not— has obviously an interest in the freedom of the labor market; this interest has received legal recognition and some, legal protection. If a defendant — usually a former employee or an official of a labor union — interferes by intimida- tion with this probable expectancy of a plaintiff em- ployer, the latter is entitled to recover damages in an action on the case at law,* or if damages are inad- 8. For example, If a brother should peijsuade his sister to break her engagement with an unworthy fiance; see 16 Harv. Law Rev. 299. 9. That the defendant , was seeking his own economic advance- ment Is not a justification; Beattie v. Callahan (1903) 81 N. Y. Supp. 413, 3 Col. Rev.' 426; see also 12 Harv. Law Rev. 285. In England, by statute 6 Ed. 7, c. 47, Interference with contracts or employment, in furtherance of a trade dispute, is not thereby made Illegal; 20 Harv. Law Rev. 656. 10. There is a tendency to restrict recovery to cases of con- tracts of personal service; Nat'l. Phonograph Co. v. Edison — Bell Phonograph Co. (1906) 23 T. L. R. 189, 20 Harv. Law Re-j. 656; see also 16 H^rv. Law Rev. 228, 299. It is difficult to see any sound analytical basis for such a distinction. 11. American Law Book Co. v. Edward Thompson Co. (1903) 84 N. Y. Supp. 225; 17 Harv. Law Rev. 283. 1. The intimidation usually takes the form of forcible pfcketing, which seems to be always held unlawful; Murdock, Kerr & Co. v. Walker (1893) 152 Pa. St. 595, 25 Atl. 492; 15 Harv. Law Rev. 482. The imposition of a fine upon members of a union if they continued to work has been held to be unlawful as Intimidation. Martell v. White (1904) 185 Mass. 255, 69 N. E. 1085; 22 Harv. Law Rev. 234. ■^ 235] TiEPAKATION AND PEEVENTION OF TOEXS. 'SOT equate,^ to injunctive relief in equity.^ Where no intimidation is involved there is much conflict of authority as to the legality of such weapons as the strike,* the boycott^ and picketing.^ This un- settled state of the authorities is likely to continue until public opinion becomes much more nearly crystallized than it is at present.'' Where the conduct of the de- fendants in a particular case is held to" be unlawful, the 2. Damages are usually inadequate because conjectural and because the defendants are usually financially irresponsible. Avoid- ing a multiplicity of actions has also fieen suggested as a reason ■ for equity Interference; Barr v. Essex Trades Council (1894) 53 N. J. Eq. 101, 126, 30 Atl. 881. 3. IT. S. ex rel. Guaranty Trust Co. v. Haggerty (1902) 116 Fed. 510; 2 Col. Law Rev. 552. See also 10 Harv. Liaw Rev. 56; 16 id. 600. 4. The modern tendency is to regard as lawful a peaceful strike for the purpose of bettering the condition of the strikers; Kemp V. Division No. 241 (1912) 255 111. 213, 99 N. E. 389; Minasian v. Osborne (1911) 210 Mass. 250, 96 N. B. 1036. In De- Minico v. Craig (1911) 207 Mass. 593, 94 N. E. 317, a strike for the purpose of getting rid of a foreman whom the employees did not like was held to be unlawful. In Wabash R. R. Co. v. Hannahan (1903) 121 Fed. 563, an injunction was given against a peaceful strike because the strikers were employed by a public service com- pany. For criticism see 16 Harv. Law Rev. 518. 5. In Parkinson Co. v. Building Trades Council (1908) 154 Cal. 581, 98 Pac. 1027, the defendant's boycott was held to be lawful. See also Haile v. Livingstone (1891) 35 Sol. Jour. 792. On the other hand, the defendant's conduct was held to be unlawful in Schlang v. Ladies' Waist Markers' Union (1910) 124 N. Y. Supp. 289; 10 Col. Law Rev. -652, 674. See also New England Cement Gun Co. V. McGivern (1914) 218 Mass. 198, 105 N- E. 885 (secondary boycott held unlawful); and 14 Col. Law Rev. 694. 6. Peaceful picketing is usually regarded as lawful, but as pointed out in 15 Harv. Law Rev. 482, most picketings are not peaceful because the very presence of a picket usually contains a threat of violence. In Sherry v. Parkins (1888) 147 Mass. 212, 17 N. E. 307, the carrying of a banner in front of the plaintiff's shoe factory was enjoined as a private nuisance. In England there is legislation making picketing criminal and in Lyons v. Wilkins (1896) 1 Ch. 811, the injunction given was based on the statute. For a criticism of such reasoning see 12 Harv. Law Rev. 502. 7. See 11 Harv. Law Rev. 449-465; 20 ia. 253-279, 354-362, 308 EEPAEATION AND PKBVENTION OF TOETS. [Chap, ill plaintiff nearly always seeks equitable relief because damages would be conjectural in amount and the de- fendants are usually irresponsible financially.® § 236, interference with "probable expectancies" of an employee— the blacklist. Corresponding to the interest of the employer in the freedom of buying on the labor market is the interest of the employee in the freedom of selling on the labor market. Any forcible interference with the proba- ble expectancy of the employee in disposing of his labor would no doubt be tortious.^ Altho superficially a combination of employers to blacklist an employee seems analogous to a strike by employees,^ the relatively greater powers wielded by a combination of employers makes it more nearly analogous to the boycott* and is therefore usually illegal.* Where there is no combination of employers but the defendant has merely shown his list to another employer, relief is usually denied.^ Injunctive relief has been rarely sought and ap- parently never granted.® It has been argued that since boycotts are enjoined, it is only fair and equal that the employee should be given equitable relief against the corresponding weapon of the employer.'^ On the other 429-455; 17 id. 558; 18 Harv. Law Rev. 444-451, 423-443; 5 Col. Law Rev. 107-123. 8. In a few states statutes have been passed prohibiting the use of injunctions in labor disputes; 30 Harv. Law Rev. 75, 85. 1. There seems to be no case exactly in point; see 15 Col. Law Rev. 715. 2. See 17 Harv. Law Rev. 139. 3. Mattison v. Lake Shore etc. R. R. Co. (1895) 3 Ohio S. & C. P. 526. 4. In some states statutes have been passed making such blacklisting a penal offense; Martin, Modern Law of Labor Unions S 277. 5. Boyer v. Western Union Tel. Co. (1903) 124 Fed. 246; 17 Harv. Law Rev. 139. 6. Worthington v. Waring (1892) 157 Mass. 421, 32 N. B. 744. 7. Atkins v. Fletcher Co. (1904) 65 N. J. Bq. 658, 666, 55 Atl. 1074; 15 Col. Law Rev. 715. § 237] REPARATION AND PREVENTION OF TORTS. 30y hand, damages are usually adequate, because all that the laborer ordinarily wants is money.* § 237. Interference with probable expectancies of a competitor; of a non-competitor. The infliction of damage upon a trade' rival in fair competition is excused^ because of the social interest in the lowering of prices to the consumer. Competition is not considered fair, however, where the defendant employs force^ or fraud* or defamation^ or disparage- ment of goods® as a weapon. A more difficult question is presented where several combine to drive a plaintiff out of business by underselling him,'^ or where a single 8. In Worthington v. Waring (1892) 157 Mass. 421, the court argues that there was "no approved precedents in equity . . . for compelling the defendants either to employ the petitioners or to procure employment for them with other persons." This, how- ever, is not a conclusive reason why purely negative relief might not be granted against ^e combination to blacklist. See ante § 78. 1. Occasionally employees are referred to as competitors of their employers, and In a broad, loose sense this is true. More often, however, the term competition is used in the more limited riense. 2. According to modern analysis competition is not regarded as an absolute right but as a matter of justification or excuse under all the circumstances. 15 Harv. Law Rev. 444. 3. Keeble v. Hickeringill (1809) 11 East 574 note; Tarleton v. McGawley (1794) 1 Peake 205 (firing upon African natives who were about to trade with the plaintiff). And see 7 Col. Law Rev. 428. 4. Croft V. Day (1843) 7 Beav. 84 (infringement of trademark; see ante § 230). Dunshee v. Standard Oil Co. (1911) 152 la. 618, 132 N. W. 371; 25 Harv. Law Rev. 296. And see 23 Harv. Law Rev. 402, 5. Harman v. Delany (1731) 2 Strange 898. 6. Paull T. Halferty (1869) 63 Pa. 46. 7. In Mogul Steamship Co. v. McGregor (1892) A. C. 25 the defendants, owners of trading vessels, combined to offer very low shipping rates in order to drive the plaintiff out of business and offered 6% rebate to those who would ship exclusively by their ships. This was held not actionable. But in Hawarden v. Youghiogheny Co. (1901) HI Wis. 545, 87 N. W. 472 a declaration 310 REPARATION AND PREVENTION OF TORTS. [Chap, ill defendant, with a dominating desire to damage or ruin the plaintiff,* accomplishes or threatens to accomplish the same result. Where the competition is held to be unfair the plaintiff is entitled to damages in an action on the case; and, since damages are usually inadequate,* to an injunction in equity.^" The same question of what is fair competition has recently been raised between rival trade unions.^^ Where the competition is held to be unfair the plaintiff is, of course, entitled to damages.^^ Whether injunctions are likely to be given in such cases is not so clear; it may well be contended that damages are adequate because what the plaintiff wants is money for his' labor and if is fairly easy to estimate his loss. Where a defendant has intentionally^^ caused loss to alleging that the defendants — wholesale and retail dealers — agreed to trade exclusively with one another for the purpose, among others, of forcing the plaintiffs out of business, and that the purpose was accomplished, was held good on demurrer. See 15 Harv. Law Rev. 402. 8. In Boggs V. Duncan-Schell Furniture Co. (1913) 163 la. 106, 143 N. W. 482, the defendant advertised sewing machines at half price in order to drive the plaintiff out of business, but there was an element of fraud also in the case. See 18 Harv. Law Rev. 420, 27 id. 374. 9. Since damage to a business is involved, it is usually, if not always, very difficult to estimate the amount of the loss. 10. On the general subject of competition see 1% Harv. Law Rev. 427-445, Competition and the Law,, by Bruce Wyman; 16 Harv. Law Rev. 237-254, Rights of Traders and Laborers, by B. F. Mc- Clennen; 17 Harv. Law Rev. 511-532, The Combination Law and Opinion, by A. K. Dicey; 22 Harv. Law Rev. 501-519, Motive as an Element in the Law of Torts, by F. P. Walton; 18 Harv. Law Rev. 418-422, Tort because of Wrongful Motive, by Professor Ames. 11. In National Protective Ass'n v. Cumming (1902) 170 N. Y. 315, 63 N. B. 369, the plaintiffs and defendants, members of rival trade unions, had been employed by a common master; desiring to procure the discharge • of the plaintiffs and the employment of their own fellow -members in their stead, the defendants succeeded in achieving this end by threat of a strike; the court held that the plaintiffs had no right of action. See 2 Col. Law Rev. 400. 12. See London Guarantee etc. Co. v. Horn (1902) 101 111. App. 355; 16 Harv. Law Rev. 71. 13. Where the harm is caused negligently it would seem that the same reasoning should apply, but apparently there are no cases § 238] EEPAEATIOK AND PEEVENTION OF TOETS. 311 one who is not his competitor, it should be held a tort" unlGSf? he is able to show some other excuse. If no such excuse is forthcoming the plaintiff should be en- titled to legal relief and to equitable relief if the for- mer is adequate. K. Defamation — Inteefeeenge with Peivact. § 238. Disparagement of property. One who without excuse^ misrepresents to third which have allowed recovery. In Central Ga. Power Co. v. Stubbs (1913) 141 Ga. 172, 80^S. E. 636 the defendant's dam l)y backing water in the vicinity of the plaintiff's grist mill caused malaria which drove away the plaintiff's trade. It was held that the plantifti could not recover for this loss of business. For criticism, see 27 Harv. Law Rev. 689. 14. In Tuttle v. Buck (1911) 107 Minn. 145, 119 N. W. 946 the defendant, a banker and a man of wealth and influence in his com- munity established a barber shop and used his personal influence to attract customers to his shop, for the sole purpose of injuring the plaintiff, whereby the plaintiff's trade was ruined. It was held that the plaintiff had a good cause of action. It Is to be observed that the defendant was not in substance a competitor of the plaintiff because he was not seeking his own eeonomic advancement but merely the ruin of the plaintiff. See 22 Harv. Law Rev. 616. It has been argued that a retailer who advertises and sells a standard article at less than this price fixed and advertised by the manufacturer should be liable in tort to the latter where such price cutting results in serious damage to him. See 27 Harv. Law Rev. 139, 151. In Hol- brook V. Morrison (1912) 214 Mass. 209, 100 N. E. 1111 the defendant, intending to sell her land, but actuated by ill will toward the plain- tiffs, erected a large sign on the -land bearing the words "For Sale. Best Offer from Colored Family." The threatened sale was seriously interfering with the plaintiff's real estate business. tAn injunction was refused, however, because a real sale was Intended and the right to sell property is too important an incident of ownership to be Inter- fered ,with except for very weighty reasons. See 26 Harv. Law Rev. 740. 1. As to how far one may be excused who has made the false statement in good faith to protect or 'advance his own economic interests, see 13 Col. Law Rev. 13-36, 127-142 T'he Disparagement of Property, by Professor Jeremiah Smith. See also 13 Mich. Law Rev. 614. 312 EEPABATION AND PREVENTION OE TOETS. [Chap, ill persons the quality of another's property^ or disparages the latter 's title^ thereto, is liable at common law in an action on the case* for damages. Where the remedy at law is inadequate,^ there is no plausible reason why equity should not give injunctive relief since only rights of property and not of personality are involved.^ The strong tendency in this country however, has been to refuse relief, due largely to confusing the subject with that of disparagement of character.'^ 2. This is sometimes called trade libel; George v. Blow (1899) 20 N. S. W. L. R. 395; but it is not necessary that the disparagement be in writing. Sometimes it Is called disparagement of goods, but the protection is extended to land as well as chattels; Nogy v. Mani- toba Free Press Co. (1907) 16 Manitoba 616. 3. This is usually called slander of title; but it is immaterial whether the statement be in writing or oral; Malachy v. Soper (1836) 2 Bingham's N. C. 371. 4. Whether the statement be oral or in writing it is necessary that the plaintiff allege and prove that special damage resulted from the disparagement; Malachy v. Soper supra. 5. For example, if the plaintiff's business consists in selling the disparaged property, or if the defendant is primarily irresponsible, as in Shoemaker v. South Bend etc. Co. (1893) 135 Ind. 471, 35 N. E. 280. 6. For an argument against denying relief see 15 Harv. Law Rev. 735, approving Marlin etc. Co. v. Shields (1901) 68 N. Y. App. Div. 88; this decision was later reversed in 171 In. Y. 384, 64 N. E. 163. In that case the defendant, a magazine "editor, in order to compel the plaintiff to adertise his rifles in the defendant's magazine, wrote and published fictitious letters derogatory of the plaintiff's goods. See also 2 Col. Law Rev. 175. 7. In Boston Diatite Co. v. Florence Mfg. Co. (1873) 114 Mass. 69 the plaintiff's bill valleged that the defendant threatened certain persons for infringement of their patent, thus injuring the plaintiffs' business, and asked that the defendant be enjoined from making such .representations. The bill was held bad on demurrer. But see Bmack V. Kane (1888) 34 Fed. 46, a very similar case in which relief was given on the ground of the defendant's insolvency. The earlier English doctrine is shown in Prudential Assurance Co. v. Knott (1875) 10 Ch. App. 142 where the court refused to enjoin the publication of a pamphlet which charged the plaintiff insurance company with reck- less extravagance. § 239] BEPABATION AKD PKEVENTION OP TOETS. 313 § 239. Disparagement of character— libel and slander. If disparagement of character^ is in writing or other permanent form,^ the proper remedy is an action on the case for libel.* If ^ is made orally of in temporary, fugitive form* the proper remedy is an action on the case for slander.^ Logically, equity should give injunc- tive relief in all cases where the relief at law is not adequate, as it does in the case of waste, trespass and other torts; and that is now the present English rule where in consequence of. the defamation the plaintiff has suffered material damage, such as damage to his business.*^ In the United States, however, this result has not yet been reaphed but there is a tendency in this 1. A defamatory statement is one that holds a person up to hatred, contempt or ridicule, ' or tends to injure him in his office, business, trade or profession. It must be communicated to some person other than the. plaintiff and where special damage is necessary, it must be damage to the reputation, not to character or other sub- jective condition of the plaintiff. 2. It may be printed, or be by the painting, caricature, effigy or emblem. 3. It is not necessary to allege or prove special damage in case of libel, while in case of slander this is necessary unless the charge imputes a crime, a loathsome disease, or disparages a person in his^ trade, office, business or profession. 4. Hissing an actor, if defamatory, would be slander, not libel; so imitating another's walk or conveying ideas by gestures, if de- famatory, would be slander. 5. For a discussion of the historical reasons for the illogical 'distinction between the law of libel and slander see 3 Col. Law Rev. 546-573, History and Theory of the Law of Defamation, by Van Vechten Veeder. 6. The earlier English doctrine is shown in Prudential Assurance Co. V. Knott (1875) 10 Ch. App. 142 where the court refused to enjoin the publication of a pamphlet charging that the plaintiff company was managed recklessly and was Insolvent. The present English rule is shown in Hayward v. Hayward (1886) 34 Ch. D. 198 where the court enjoined the defendant from representing his firm to be the original firm of R. H. and Sons. The change in the English rule has been attributed to the Common Law Procedure Act of 1854 and the Judica- ture Act of 1873, but as pointed out by Professor Pound, these statutes were not supposed to change the substantive rules of equity; 2D Harv. Law Rev. 640, 665. 314 REPARATION AND PREVENTION OF TORTS. [Chap, ill direction.'' Where the sole damage suffered consists of an injury to personality, — i. e. the feelings of the plaintiff — there is very little authority for giving in- junctive relief,* *tho the reasons for not giving it are hardly plausible. The arguments urged against giving relief in defamation cases are the following: (1) That equity protect only property rights.* (2) That the right of free speech would be violated by giving an in- junction.^" (3) That libel is a crime and equity should not enjoin the commission of a crime." The answer to the first argument is that even tho in the past equity has found it expedient to limit its protection to property rights, it was merely a matter of expediency and there is no substantial reason to-day for any such limitation.^'^ The answer to the second argument is that the common 7. See 29 Harv. Law Rev. 640, 667. 8. There are some early English cases which seem to indicate that equity would at that time give relief against such defamation. In Du Bost V. Beresford (1810) 2 Campbell 511, Lord EUenborough held that the owner of a libellous painting which had been destroyed by a brother of the woman libelled, could recover in trespass only for the value of the canvass and paint, because the "liOrd Chancellor would have granted an injunction against its exhibition." The cases of Gee v. Pritchard ^1818) 2 Swanst. 40':; and Brandreth v. Lance (1839) 8 Paige 24 settled the rule against giving relief. Recently, however, in England there have been seme cases showing a tendency to relax the rule again. See Monson v. Tussauds (1894) 1 Q. B. 671; • 10 Harv. Law Rev. 517; 7 id. 492. 9. Gee v. Pritchard, supra. 10. Brandreth v. Lance, supra; New York etc. Soc'y v. Roosevelt (1S77) 7 Daly 188. 11. Gee V. Pritchard, supra. 12. See dictum in Vanderbilt v. Mitchell (1907) 72 N. J. Eq. 910, 919, 67 Atl. 97; "... an individual has rights other than property rights, which he can enforce in a court of equity etc." See also Dixon v. Holden (1869) 7- Eq. 488 where the court said: "What is property? One man has property in lands, another in goods, another in a business, another in skill, another in reputation." In the less complex society of a half century or a century ago, there was much less need of equitable protection of rights of personality than there is to-day; see 10 Harv. Law Rev. 517, 21 id 54. § 240] EEPAEATION AND PREVENTION OF TOETS. 315 law right of free speech and "liberty of the press" which is now guaranteed by American constitutions, goes back historically to the privilege of being free, from injunctions in the publication of political libels and is not violated by injunctions in cases of non-political libels.^* The answer to the third argument will be given in another place." § 240. Interference with privacy. I Where the interests of personality have been in- terfered with in other ways than by defamation, the most important question involved is likely to be whether there is any legal right involved. In recent years there has been much conflict of authority^ and opinion^ as to whether there is a common law right of privacy, 13. See 13 Col. Law Rev. 732 approving the giving of an injunction in Schwartz v. Edrington (1913) 133 La. 235, 62 Eo. G60, where the defendant published what purported to be a signed petition after the signers had repudiated it as having been signed under a misapprehension. See also 29 Harv. Law Rev, 640, 650-655, 10 id. 176. Where the defamation does not involve publication, — as in the case of shadowing the plaintiff by detectives so as to cause loss of credit— denial of relief is of course put upon a different ground. In Chappell v. Stewart (1896) 82 Md. 323, it was put upon the ground that the act complained of was a crime. 14. See post Chap. IV, Prevention of Crime and Criminal Pro- ceedings. 1. In Roberson v. Rochester Folding Box Co. (1902) 171 N. Y. 53&, 64 N. B. 442, the plaintiff, a young lady, asked an injunction against using her photograph In advertising a brand of flour. Relief was refused on the ground that there was no right of privacy. But see contra, Pavesich v. New England Life Ins. Co. (1905) 122 Ga. 190, 50 S. E. 68, in which recovery was allowed to a plaintiff whose photograph had been used to advertise life in- surance; 13 Harv. Law Rev. 415, 18 id. 625. 2. In favor of the existence of such a right see 4 Harv. Law Rev. 193-220, The Eight to Privacy, by Samuel D. Warren and Louis D. Brandeis. See also 5 Harv. Law Rev. 149; 9 id. 354; 12 id. 207; 22 id. 110, 111; 21 id. 54; 2 Col. Law Rev. 486; 12 id. 693-708. 3l6 fiEPAllATION AND PREVENTION OP TOKTS. [Chap, ill the present tendency^ being toward the recognition* of such a right.^ Where such a right is recognized" either with or without a statute, equity nearly always^ gives injunctive reliefs because of the obvious inadequacy of damages.® L. Inteepeeence with Domestic, Social and Political Relations. ' § 241. Interference with domestic relations. When the act of the defendant has consisted of in- terfering with domestic relations, equitable relief has rarely been given unless a property right was involved. In Hodecker v. Strieker^ where the defendant pretended 3. See 24 Harv. Law Rev. 680, discussing Munden v. Harris (1910) 153 Mc. App. 652, 134 S. W. 1076 in whleh injunctive relief was given. 4. In some states this recognition has come by statute. See New York Laws of 1903, ch. 132; Binns v. Vitagraph Co. (1913) 210 N. Y. 51, 103 iV. E. 1108; 22 Harv. Law Rev. 232. In 13 Harv. Law Rev. 415 it is suggested that this is the better solution; but see S Mich. Law Rev. 221. 5. A public character, such as la well known inventor, has no such right of privacy as would forbid the publication of a biography; see 7 Harv. Law Rev. 182. 6. Courts recognizing the right are disagreed as to whether it should be regarded as a right of personality or of property. See 24 Harv. Law Rev. 680; 7 Col. Law Rev. 533-536. 7. In Chappell v. Stewart (1896) 82 Ind< 323 where the court refused to enjoin the defendant from employing detectives to shadow the plaintlif, the court suggests that the plaintiff may have an action at law. But whether the court had in mind an action of trespasis for false imprisonment or an action on the case for slander, or an action for interfering with privacy, is not clear. In the somewhat similar case of Schultz v. Frankfort etc. Co. (19:3) 151 Wis. 537, 139 N. W. 38* recovery was allowed on the ground of . slander. See 26 Harv. Law Rev. 658 ; 13 Col. Law Rev. 336. For a criticism of Chappell v. Stewart see 37 L. R. A. 783. S See 24 Harv. Law Rev. 680. 9. Sei 29 Harv. Law Rev. 669. 1. (1896) 39 N. Y. Supp. 515. § 241] BEPAEATION AND PREVENTION OF TOKTS. 317 to be the wife of the plaintiff's husband, an injunction against such conduct was refused on the ground that there was no cause of Action. The interest violated was not one of property but of personality.^ In Ex parte Warfield* it was held that the lower court had jurisdiction to enjoin the defendant from conduct which would probably result in the complete alienation of the affections of the plaintiff's wife. It has been pointed out* that the authority of the ease is weakened by the fact that there was a statute® in Texas which has been construed as giving a wider power of grant- ing injunctions than that generally possessed by courts of equity; and also by the fact that the decision might perhaps be rested upon the husband's property right in the wife's services. In Vanderbilt v. Mitchell® the plaintiff's wife had a child by a third party with whom she had been living in adultery. She gave it her hus- band's name and by means of fraud induced the at- tending physician to certify that the plaintiff was the father. By statute this certificate was prima facie evidence of the facts set forth; and if after the plain- tiff's death such evidence should remain uncontroverted, the child would inherit considerable real estate under the will of the plaintiff's mother. The court decreed cancellation of the certificate on the ground that it constituted a cloud on title but said obiter that relief would have been granted even if no property rights had been involved.'' 2. See 29 Harv. Law Rev. 173: "The wrong sought to be enjoined was Tisurpatlon of the name to which she was entitled as the lawful wife of H. and the injury consisted in humiliation and injury to feelings and mental comfort caused by this open as- sumption of her name as well as her place by an adulteress." 3. (1899) 40 Tex. Crim. 413. 4. Professor Pound, iu 29 Harv. Law Rev. 675. 5. Rev. Stat. § 2989. 6. (1907) 72 N. J. Bq. 910, 64 Atl. 87. 7. See 21 Harv. Law Rev. 44, 58, 7 Col. Law ,R6v. 533-536, 29 Harv. Law Rev. 675. 318 EBPABiTIOlir AND PEEVENTION OF TOUTS. [Cliap. ill § 242. Interference with social relations. If a plaintiff complains that he has been or is about to be wrongfully expelled from a social club, equitable relief is usually confined to eases where the club owns property* of which the plaintiff is a co-beneficiary.^ It has been suggested^ that relief may be given on the ground of specific performance of the contract of membership. In Baird v. Wells,* however, the court said that such a contract resembled a contract for board and lodging and involved too close a personal relation for equity to undertake to enforce. As Pro- fessor Pound has suggested,^ it is not necessary to or- der the defendants to associate with the plaintiff, but merely not to keep the plaintiff out wrongfully as long as they continue the club. In most of the cases it is quite obvious that the plaintiff's chief interest is one of personality* and not of substance'' and it is to be hoped that the courts will soon frankly recognize this as the proper basis for re- 3. Rlgby T. Connol (1880) 14 Ch. D. 482. In Dawkins v. AntrotiUE! (1831) 17 Ch. Div. 615 the club owned property but the expulsion was held to be rightful because it was according to rules which were consistent with natural justice. 2. Payment of lodge dues by the plaintiff does not constitute such a property right as would authorize equitable Interference; W611envoss v. Grand Lodge etc. (1898) 103 Ky. 15, 45 S. W. 360 (de- cree that defendant be compelled to allow the plaintiff to participate In grand lodge meeting refused). 3. Krause v. Sander (1910) 66 N. Y. Misc. 601; the plaintiff was refused relief because the court found the expulsion to be regular and in accord with the contract of membership. See also Lawson v. Hewell (1897) 118 Cal. 613, 50 Pac. 763. 4. (1890) 44 Ch. Div. 661. 5. 29 Harv. Law Rev. 679. 6. Fisher v. Keane (1853) 11 Ch. D. 353; 29 Harv. Law Rev. 678 note. 7. Where the club in question is a trade union, the plaintiff's oi)portunity to earn a livelhood — an interest of substance — may be Involved. In such a case equity might very easily protect it as a species of intangible property, if — as might often happen — the common law remedy were inadequate. In Rigby v. Connol (1880) § 243] EEPAEATION AND PKEVENTION OF TOETS. 319 lief. In Baird v. Wells^ llie court solemnly said that they could not give relief against expulsion from the Pelican Club because no property right was involved; they nevertheless discussed the expulsion and pro- nounced it wrongful — which vindication was exactly what the plaintiff wanted to assuage his wounded feel- ings. § 243. Interference with political relations. The decision of purely political questions^ is not within the province of any court, whether law or "equity but is for the executive and legislative branches of the government. This has probably led courts to make the much broader statement that equity has no jurisdic- tion over political matters -generally.^ Such statements have frequently been obiter, the decisions being sustain- able on the ground that the proper remedy was by man- damus^ or other common law, or equitable remedy^ or that the relief sought would involve too much super- 14 Ch. D. 482 the denial of relief was placed on the ground that the club owned no property. The above point seems not to have been urged by the plaintiff. 8. (1890) 44 Ch. Div. 661. See 29 Harv. Law Rev. 679. 1. For example, the amount of a tax to be levied, or ^ the recognition of foreign governments. That equity will not enjoin the passage of a municipal ordinance which is legislative in character, see 23 Harv. Law Rev. 470 discussing C. R. I. & P. R. R. V. City of Lincoln (1910) 85 Neb. 765, 124 N. W. 142. 2. Fletcher v. Tuttle (1894) 151 111. 41: "nor do matters of a political character come within the jurisdiction of the court of chancery." See also In re Sawyer (1888) 124 U. S. 200; 13 Col. Law Rev. 526; 14 id. 243. 3. Fletcher v. Tuttle, supra: suit by a voter and by a candidate for election to the legislature to enjoin issuance or notices of election under an invalid apportionment act whereby a county was unlawfully excluded from the legislative district. See 13 Col. Law Rev. 528. 4. Webber t. Timlin (1887) 37 Minn. 274, 9 Col. Law Rev. 359. 320 REPAEATIQN AND PREVENTION OF TORTS, [Cliap. ill • vision.^ Where these objections do not exist there seems to be no good reason" why equity should not in- terfere to protect political rights and relations, and there are several instances where relief has been given. In People ex rel. Miller v. Tool' it was held that the Supreme Court had original jurisdiction, upon applica- tion of the Attorney General, to enjoin the judges of election and other officials from committing or permit- ting others to commit frauds at the election. In Cole- man V. Board of Education^ the levy of a county educa- tional tax was enjoined on the ground of fraud in the election by which the tax was made operative, the court holding that it could properly investigate an election collaterally if property rights were primarily involved.* 5. Winnett v. Adams (1904) 71 Neb. 817, 825, 99 N. W. 681. See also 12 Harv. Law Rev. 354 discussing Kearns v. Howley (1898) 188 Pa. 116, 41 Atl. 273 in which equity refused to restrain a chairman of a county committee of a political party from erasing from the roll of such committee the names of duly elected mem- bers. And see 17 Harv. Law- Rev. 130. 6. 14 Col. Law Rev. 243, 244. As Professor Pound points out, in many of the cases the injury is to the feelings, sensibilities and dignity and equity has the same reluctance to give relief as in other cases of injury to personality. 29 Harv. Law Hev. 681. See ante § 239. 7. (1905) 35 Col. ^25, 86 Pac. 224. See 20 Harv. Law Rev. 157. 8. (1908) 131 Ga. 643, 63 S. E. 41, 9 Col. Law Rev. 359. 9. In Patterson v. People ex rel. Parr (1913) 23 Col. App. 4C9, 130 Pac. 618 the officials at a local option election conspired to admit certain illegal votes and to exclude certain legal votes, thus changing the result of the election. In a suit by a tax payer for himself and others similarly situated to enjoin the issuance of licenses for the sale of liquor, it was decided that equity had jurisdiction to give such relief. For a criticism of the decision on the ground that the proper remedy was by mandamus to compel the election officials to ' reconvene and discharge their duties lawfully, see 13 Col. Law Rev. 526. In Giles v. Harris (1902) 189 U. S. 475, the plaintiff, on behalf of himself and 5000 , other negroes ^sked for compulsory enrollment on the voting lists of Montgomery Co., Ala.i, and for a declaration that certain sections of the State constitution fixing qualifications for registry were void as in- § 243] EEPAEATION AND PBEVENTION OF TOETS. 321 Tho political parties have now pretty generally received statutory recognition courts have been reluc- tant to subject them to control. In Walls v. Brun- didge^" the plaintiff charged that the Democratic Cen- tral Committee, constituted by statute for thfe trial of primary election contests, had fraudulently certified the name of his competftor to the Secretary of State as candidate for Governor and asked that the Secretary of State be restrained from certifying, his rival's name to the various county election commissioners. Belief was refused on the ground that no property rights were involved." consistent with the Federal Constitution. Refusal of relief was placed upon three grounds: (1) That equity will not interfere to enforce a political right; (2) that precedent to granting the plaintiff's petition the court would be compelled to declare unconstitutional the very franchise provisions under which the plaintiff asks to be registered; (3) that equity could not undertake to police the state to enforce such a decree as was asked for. See 17 Harv. Law Rev. 130; 3 Col. Law Rev. 491. 10. (1913) 109 Ark. 250, 160 S. W. 230. 11. For criticism of the decision see 14 Col. Law Hey. 243; see also 12 Harv. Law Rev. 354. In a few instances relief has been given; see 14 Harv. Law Rev. 388. Eq,— 21 CHAPTER rV. Pbevention of Cbimes and Ceiminal Pbocebdings. § 244. Prevention of crimes. In the early days of English equity, when the state was weak and unable thoroughly to enforce peace, the chancellors undertook to protect persons and property from violence.^ As the state became stronger the need for relief from this source decreased so that by the end of the fifteenth century the jurisdiction 9f equity to prevent crimes had been practically abandoned.^ The mere fact that an act was a crime, however, has not ordinarily prevented equity from giving an injunction if there are other well recognized grounds for exercis- ing jurisdiction.* Within recent years this branch of equity has grown considerably, especially in cases in- volving labor disputes,* violations of public decency' 1. "The reign of Richard II found England In a turbulent and restless state. Politically it was a time of weak sovereigns; economically it was a period of transition and reformation. Manoral authority was breaking down and the power of munici- palities and guilds was lessening. Highwaymen and rioters made trade and travel hazardous; powerful barons overawed the local courts. No sharp line was drawn between executive and judicial powers, and chancellors, prybably without stopping to analyze in what capacity, exercised the royal prerogative delegated to them by Edward III to relieve the poor and the weak." The Revival of Criminal Equity, by Edwin S. Mack, 16 Harv. Law Rev. 389, 390. 2. 1 Spence, Eq. Juris. 688, 689. 3. Especially if serious injury to property is threatened, for which the legal remedy would be Inadequeate; Spinning Co. v. Riley (1868) 6 Eq. 551. ' / 4. See ante § 235. See also U. S. v. Debs '(1895) 158 V. S. 564, in which case an injunction was granted and addressed to persons who had not been joined as defendants, restraining them (322) § 244] PREVENTION OF CBIMES AND PEOCBEDINGS. 323 or combinations in restraint of trade.* In this, history seems to be repeating itself. * One reason for the frequent calls for equitable interference in such cases has been the inefficiency of the administration of criminal law'' in the United States; this in turn has been; due in large measure to an elective judiciary and prosecuting officers and to the small power which courts exercise in the trial of crimiilal cases. And just as in the fifteenth century, there is a popular outcry against the giving of injunctions in such cases; this is true especially in labor controversies, because of the feeling that such interference favors the cause of the employer against the employee and because of the usual dis- trust and fear of one-man power. This has resulted in some states in- legislation restricting the giving of from flagrant breaches of the peace the there was no property right to be protected. See 7 Col. Law Rev. 357-359 arguing in favor of such equitable interference upon petition by the State. In Lyons v. Wilkins (1896) 1 Ch. 811 the court based its giving of an injunction against picketing on the ground that the defendant's acts had been made criminal by statute. For criticism, see 12 Harv. Law Rev. 502. , 5. Illegal saloons, 8 111. Law Rev. 19-41; 9 Harv. Law Rev. 521-533; gambling houses and brothels, State v. Patterson (1896) 14 Tex. Civ. App. 465, 37 S. W. 478, 10 Harv. Law Rev. 371; prize fights, lAtt'y Gen'l v. Fitzsimmons (1896) 35 American Law Register 100, 1 Ames Bq. Cas. 622. 6. Trust Co. of Ga. v. State (1900) 109 Ga. 736, 35 S. E. 723; 16 Harv. Law Rev. 398. 7. In Stead v. Fortner (1912) 255 111. 468, 99 N. E. 180 the bill alleged that on April 7, 1908, Shelbyville township voted to become anti-saloon territory, and two weeks later the city of Shelbyville also voted dry; on April 7, 1910, Shelbyville township voted wet but the city took no vote. On May 9, 1910 the city council passed a license ordinance and under it defendant Fortner sold liquor. The city authorities refused to Interfere. The Attorney General and State's Attorney of Shelby County ask for an injunction. In holding that the demurrer to the bill was properly overruled the court said: "... if ordinary methods are ineffective or officials disregard their duties and refuse to per- form them, the court ought to apply the strong and efficient hand of equity and uproot them." But see Powers v. Flansburg (1911) 90 Neb. 467, 133 N. W: 844. 324 PREVENTION 01? CRIMES AND PROCEEDINGS. [Chap. IV injunctions in certain classes of cases where the acts sought to be enjoined are crimes.* § 245. Prevention of criminal proceedings. The fundamental reason why equity should not at- tempt to prevent crimes as such and should be cautious in attempting to prevent crime even where other groimds of equity jurisdiction exist,^ is the preeminent appropriateness of trial by jury in criminal eases. The same reason^ applies generally to equity's prevention of ordinary common law proceedings to punish an act alleged to be criminal, and the general rule is that equity will not enjoin a criminal proceeding^ even if property interests are incidentally affected.* Where, however, there would be irreparable injury to property or business caused by the prosecution and the sole ques- tion involved is one of law, there would seem to be no valid reason why equity should not give relief and the modem tendency is to give injunctions in such cases.' 8. For an argument In favor of such legislation see 16 Harr. Law. Rev. 402-404. In support of the jurisdiction see 7 Col. Law Rev. 357-359. 1. See ante S 244. 2. In England there was perhaps another reason why equity was reluctant to interfere; since the King was a party to the prosecution the King's chancellor naturally hesitated to frustrate the operation of the King's justice; see 2 Col. Law Rev. 550. It has been suggested that equity should feel less reluctance to give relief where the proceedings have been brought ex relatione; see 17 Harv. Law Rev. 567; or under municipal ordinances; see 23 Harv. Law Rev. 469. 3. Davis V. American Society (1878) 76 N. Y. 362, 2 Ames Eq. Cas.' 104. 4. Hackrader v. Wadley (1898) 172 U. S. 148 (federal court refused to enjoin prosecution in state court.) See also City ot Bainbridge v. Reynolds (1900) 111 Ga. 758, 36 S. E. 935, discussed in 14 Harv. Law Rev. 293. 5. Manhattan Iron Works v. French (1882) 12 Abb. N. C. 446, 2 Ames Bq. Cas. 107 (enforcing Sunday closing law would ruin plaintiff's iron business). See also 26 Harv. Law Rev. 454 1^ 24:5] PEEVENTION OF CRIMES AND PEOCEBDINGS. 325 Where a question of fact is involved, only a preliminary injunction should be given pending the trial of such question by a jury.® Where no irreparable damage to property is threatened but a large nuinber of pros- ecutions have been begun, equity may enjoin all save one in order to prevent a multiplicity of actions.'^ And where a party to an equity suit seeks to try the same issue by later instituting a criminal prosecution, equity will give relief.® * It would seem that the above reasoning should also apply to the threatened prosecution of a third party which will cause irreparable injury to the plain- tiff;® and also the acts of police in appreliending real or supposed criminals.^" i criticising City of Bisbee v. Arizona Ins. Ag'y (1912) 14 Ariz. 313, 127 Pac. 722, and 20 Harv. Law Rev. 238 approving the decision in Consolidated Gas Co. v. Mayer (1906) 146 Fed. 150. 6. See 14 Harv. Law Rev. 293. 7. Third Ave. R. R. Co. v. The Mayor (1873) 54 N. Y. 159, 2 Ames Bq. Cas. 102; see post § 447. See also 23 Harv. Law Rev 469. As to enjoining the collection of an Illegal tax, see City of Chicago v. Collins (1898) 175 111. 445, 51 N. E. 907, 2 Ames Eq. Cas. 92 discussed post § 443. 8. Mayor of York v. Pilkington (1742) 2 Atkyns 302, 2 Ames. Bq. Cas. 98. 9. In Milton Dairy Co. v. Great Northern Ry. Co. '(1913) 124 Minn. 239, 144 N. W. 764 a statute forbade the shipment by any one or the receipt for shipment Dy carriers, of unpasteurized cream to be carried more than sixty five miles. PlaintiH's business depended upon such shipments and was being ruined because the farmers and railroad company were afraid to ship. Plaintiff contended that the statute was unconstitutional and sought to enjoin the railroad from refusing to accept goods consigned to him and to restrain prosecutions for breach of the statute. For a criticism of the decision refusing relief see 27 Harv. Law Rev. 668, 682. 10. In Phelps v. McAdoo (1905) 94 N. Y. Supp. 265 a number of policemen, suspecting gambling was going on inside a club house, broke into it and damaged it considerably; the plaintiff asked for an Injunction against their continued trespass and it was given on the ground that the clause of the_ city charter under which they attmempted to justify their actions was unconstitutional. See 5 Col. Law Rev. 401, 611, 616. In Delaney v. Flood (1906) 183 326 PEEVENTIOIT OV CRIMES AND PEOCEEDINGS. [Chap, iv N. Y. 323 the plaintiff was proprietor of a "Raines Law" hotel and held a liquor license. The defendant, a police captain, suspected that a disorderly house was being maintained, and stationed an officer before the establishment with orders to warn all persons about to enter that the house was likely to be raided at any time and that any one found there would be arrested. The plaintiff filed an affidavit that it was not a disorderly house and asked for an injunction. Slnee the question was one of fact rather than one of law it would seem that equity acted properly in refusing relief. See 6 Col. Law Rev. 345, 362; 1^ JIarv. Law Rev. 382. CHAPTEE V. Trusts, A. Oeigin, Histoby, and Classification. § 246. Origin and history of uses. It has been the policy of Anglo-American law that property should be freely alienable. During the twelfth century so much land had been given to religious cor- porations and thus taken off the land market that in 1217 Parliament passed the Statute of Mortmain,^ forbidding such bodies to hold land. In order to evade this statute it became the custom to convey property to a close friend of the religious body who allowed the corporation to use the property as if it were theirs. At first his obligation to allow this was only a moral one but abount 1450 courts of equity— whose chancellors were at that time usually ecclesiastics — gave a remedy against him if he did not carry out his undertaking : thus what had before been merely a moral obligation became a juridically binding one.^ The person receiving and hold- ing the legal title in this way was called the "feoffee to uses"* and the beneficiary was .called the cestui que use. Once established, uses were employed for other purposes. Since the law of forfeiture of property for treason applied only to the legal title and not to the equitable "use," it became common for the English nobility, who were frequently engaged in civil wars, to convey the legal title to some humble non-combatant, to 1. Some of the religious bodies were forbidden by their own rules to hold land. See 8 Harv. Law Rev. 127, 130. The Origin of Uses, by Professor Maitland; Tiffany, Real Property § 82. 2. Tiffany, Real Property § 83. 3. Where the conveyance was by feoffment. (327) 328 , TRUSTS. [Chap, v hold for the use of themselves and for their families and thus avoid the . loss of their property to their families in case they should be defeated in war and later tried and convicted of treason. § 247. Statute of uses and its results. The employment of uses led to many evils ; e. g. the creditors of the cestui que use could not reach his in- terest in order to satisfy their claims; his widow got no dower j conveyances were frequently made for fraud- ulent purposes and land titles became unsettled.^ Parliament again interfered in 1534 by passing the Statute of Uses, which was intended to put an end to these evils.^ Instead, however, of forbidding the con- veyance of land in use or making the use void, it pro- vided that whenever A should be seized to the use of B, the legal title should be adjudged to be in B and not in A. This was called "executing the use." The statute was effectual — at least for the time and as far as it was construed to extend — in preventing the separation of the legal title and equitable interest,^ but its most important result was the apparently unforeseen one that it was employed in the making of conveyances.* .To convey a legal title after the statute was passed it was necessary merely to create a use in the person to whom it was intended to convey the estate; the statute of uses then operated to vest the legal title in him. § 248. Uses not affected by the statute of uses— trusts. The statute was construed as not affecting uses in 1. Tiffany, Real Property § 83. 2. See 26 Harv. Law Rev. 108-127, Causes Which Shaped the Statute of Uses, by W. S. Holdsworth, who contends that the objects of the statute were (1) improvement in the King's feudal revenue, (2) a much needed improvement in the land law. And see Tiffany, Real Property § 87 for a slightly different statement of the purpose. 3. With exceptions noted infra § 248. 4. I'ittany, Real Property § 88. ^ 249] TBUSTs. 329 personal property,^ separate uses for married women^ and those uses where the conveyance imposed active duties upon the transferee to uses.* These active uses came to be called "trusts" in order to distinguish them from uses which had become so important in the law of conveyancing. Several years* after the statute was passed it was held that if land was conveyed to A to the use of B, to the use of C, the Statute of Uses could operate only once, that is, in favor of B ;^ thus the legal title was in B to the use of C. The courts recognized this second use but called it a passive trust, to distin- guish it from uses that were executed. In some juris- dictions there is legislation forbidding- the creation of passive trusts in land." The field of express trusts thus covers active trusts in both real and personal prop- erty, passive trusts in personal property which were un- affected by the Statute of Uses and passive trusts in land which have originated since the Statute of Uses. § 249. Ways in which expi'ess trusts may be created. Express trusts may be created in any of the three following ways: (1) A conveys property to B in trust for A; (2) A conveys property to B in trust for C; 1. Because technically one is riot "seised" of personalty and the words of the statute did not apply. Slevin v. Bown (1862) 32 Mo. 176 (chattels real). 2. Apparently on the theory that the one to whom the property was conveyed had a quasi-active duty to perform to protect it from the husband and bis creditors, and also because it would defeat the purpose of the conveyance to vest the legal title in the woman; Tiffany, Real Property § 90. 3. On the ground that he can not perform his duties unless he retains the legal title. Kellogg v. Hale (1883) 108 111. 164; Tiffany. Real Property § 90. 4. Apparently about a century; see 21 HarV. Law Rev. 273. 5. See 1 Sanders, Uses and Trusts 275. Similarly, If a bargain and sale be made to B to the use of C, the use declared remains un- executed. Tyrrell's Case (1557) Dyer 155a, Tiffany, Real Property § 90. 6. New York, Michigan, Wisconsin and a few other states; 1 Dembitz, Land Titles § 20; Tiffany, Real Property § 95. 330 TRUSTS. [Chap, v (3) A declares himself trustee of property for C. The one who holds the legal title in trust is called the trus- tee;^ the beneficiary of the trust is usually called the cestui que trust, in order to distinguish him from other beneficiaries, such as beneficiaries of contracts and ben- eficiaries of bailments. In every express trust, therefore, there are .pres- ent the three elements: (1) A trustee, (2) trust prop- erty and (3) a beneficiary. These and the necessity of other elements will be discussed later. § 250. Classification of trusts. According to form trusts are either express or not express, the second class including resulting and con- structive trusts. The distinction is important because the Statute of Frauds^ applies only to express trusts. A logical classification of trusts according to sub- tance or intent would result in the following divisions: (1) All actually intended trusts, whether the intention is expressed or is inferred from circumstances; (2) trusts — so called — where the obligation is imposed by equity as a remedy for a wrong, without regard to the intent of the parties and often directly contrary to such intent ; (3) a middle class in which the obligations are imposed by equity according to what would probably have been the intent of the creator of an express trust if he had thought about the state of facts which later happened.* The second class is always called "constructive trusts;" the term "resulting trusts" is usually applied to those trusts in which the obligation is imposed according to 1. The word "trustee" is sometimes used in a very broad sense, including other fiduciaries such as bailees, executors, etc., but in this chapter It •will be used in the narrow sense and the term "flduciary" meaning one In whom peculiar confidence is reposed, will be dsed when the broader meaning is intended. 1. See post § 268. 2. Compare the ao-called conditions implied in law in the field ot contracts which are imposed according to what the court thinks the parties would have intended if they had thought about it. § 251] TRUSTS. 331 either the reaP or supposed* unexpressed intention of the parties, thus including dass (3) and part of class (1). The term "constructive trusts" is sometimes used in a broader sense to include all trusts except express trusts; and sometimes to include those trusts which are covered by classes (2) and (3) sv/pra.^ In this book the term will be used in the narrowest meaning — that is, trusts imposed without regard to the intent of the parties — ^for the sake of clearness and convenience.® B. Teust Compaeed with Similab Relations. § 251. With a bailment. A trust of chattels is similar to a bailment in that both the trustee and bailee are fiduciaries; that is, they are both entrusted with or have the care of property for the benefit of another, and their duty of care is practically the same, viz., that which is exercised by prudent persons with their own property under similar circumstances.^ If A delivers chattels to B for the use of C, B is regarded as bailee and not trustee if A intended to transfer only the possession^ to B... .In such a case C 3. See post §§ 283-286, purchase money resulting trusts. 4. See post §§ 287-289. 5. See 6 Col. Law Rev. 328; 10 Harv. Law Rev. 192. 6. For an extended discussion of classification of trusts see 27 Harv. Law Rev. 437-463. 1. See infra | 321 for a more extended statement. 2. Where the person receiving the chattel is to deliver ov^r the identical thing to the beneficiary — as, for example, where the chattel is sealed up in a bag — it Is obvious that only possession was meant to pass and the transaction is a bailment and not a trust; Anonymous (1339) Y. B. 12 & 13 Edw. IH 244, Ames Trust Cas. 52. In Ashley's Admin's v. Denton (1822) 1 Littell 86, Ames Trust Cas. 52, D.'s wife, during her widowhood and before her marriage to D, entrusted certain negroes to her son for the purpose of going in search of a suitable residence for her. A did not return and kept the slaves. The plain- tiff now seeks to have a trust of the slaves declared. It was held that the court below improperly gave equitable relief because the trans- 332 TEusTs. ' [Chap, v has the common law remedy of detinue* whereby he gets the possession of the. thing itself.* Having an adequate remedy at law he cannot sue in equity. If in the above case A intended to transfer to B the title as well as the possession, B would become a trustee. Not having the title or legal right to possession C cannot bring detinue or any other common law action against B but must sue in equity to compel him to ac- count for the chattel. § 252. With relation of principal and agent. A trustee is like an agent in that each is a fiduciary. The main difference is that a third party who contracts with an agent is able at common law to hold his princi- pal on such contract even tho the latter was undisclosed ; whereas a third party who contracts with a trustee has no common law remedy on such contract against the cestui que trust even tho the existence of the latter is disclosed,^ but must reach him, if at all, by way of equitable execution.^ Hence, even if the duties remain substantially the same, an agent who receives the title action was a bailment and the proper remedy was at law. Since the defendant's duty was merely to keep and return, it was not necessary, that he should have title in order to perform such duty. 3. The reason why ■ relief at- law was given to the beneficiary of a bailment and not to the beneficiary of a charga (see post § 260), or of a contract (see post § 258), seems to be that the question arose early while common law procedure was still somewhat elastic. 4. Apparently In early law the bailor was not regarded as having title, but a mere legal chose in action against the bailee; 2 Black- stone Comm. 453; 6 Harv. Law Rev. 42, 10 id. 57, 3 id. 342, n. 1. At the present time if the obligation of the bailee is to return the chattel to the bailor, the bailor is considered as having title. Where the obliga- tion is to deliver to a third party, the title probably passes at once from the bailor to the third party,, subject to being divested if the third party, upon learning of the transaction, should disclaim. 1. Everett v. Crew (1880) 129 Mass. 150; 28 Harv. Law. Rev. 736. 2. See post § 315. In the absence of actual authorization by the cestui, the liability is probably only that of the trust property, not that of the cestui personally. '^ 253] TRUSTS. 333 to property to hold for his principal ceases to be an agent as to this property* and becomes a trustee. § 253. With a debt. A trust is similar to a debt in that the obligation of either trustee or debtor may arise upon receiving the title to property.^ One' of the important differences is that a trustee is a fiduciary, but a debtor is not. The obligation of the trustee is to hold the property for the benefit of the cestui; a debtor, on the other hand, may do as he likes with the property;^ he gets the beneficial interest as well as the legal title, and his obligation is to pay a Sxed sum of money out of his general assets in pay- ment for the property he refceived. Hence, if trust property be lost or damaged without the fault of the trustee, he will not be liable for the loss;* whereas, if the property received by a debtor be lost without his fault, the loss will fall on him and it does not lessen his liability to the creditor.* On the other hand, if a trustee should become bank- rupt or insolvent, the cestui que trust is entitled to de- mand an accounting of the property so held in trust, if it can be found, and need not come in with the general 3. Were it not for the anomalous but -well settled doctrine of undisclosed principal there would seem to be no inconsistency in a person being an agent and a trustee at the same time, the law of agency determining his rights and obligations with respect to his making of contracts and the law of trusts those with respect to his holding the property. 1. A debt which arises upon receipt of property with the under- standing that the person receiving it will pay a fixed sum therefor Is called debt upon simple contract to distinguish it from debt upon a specialty or upon a record or upon a statute. 2. In the absence of fraud or other disturbing element. 3. Morley v. Morley (1678) 2 Cas. in Ch. 2, Ames Trust Cas. 502. 4. Shoemaker v. Hinze (1881) 53 Wise. 116, 10 N. W. 86, Ames T-rust Cas. 29. 334, TBusTs. [Chap, v creditors of the trustee.^ In case a debtor becomes bankrupt, however, the creditor must share with the other creditors even tho the debtor still has the property he received from the creditor.* § 254. Same — payment of interest as a test. It is often a difficult matter to determine whether a particular obligation is that of a trustee or debtor. If interest is to be paid, however, this is properly con- sidered as showing conclusively that it is a debt and not a trust. In Pittsburg National Bank v. McMurray,* the plaintiffs had been accustomed to sending money to one Gr as their agent and attorney for the purpose of investing it, on the understanding that G was to pay in- terest thereon until he invested it. It was held that G was a debtor because "the agreement to pay interest necessarily implied the right to use the money" as his own,^ and that until he had a suitable opportunity of 5. Ifx parte Chion (1721) 3 Peere Wms. 187 note (A), Ames Trust Cas. 392. 6. Carstairs v. Bates (1812) 3 Campbell 301, Ames Trust Cas. 12 (drafts discounted become the property of the purchaser's assignee in bankruptcy). 1. (1881) 98 Pa. 538, Ames Trust Cas. 30. 2. In Ex parte Broad (1884) 13 Q. B. D. 740, Ames Trust Cas. 19, N was accustomed to accept bills drawn on him by T, to charge him interest for the amount so advanced and to credit him with in- terest on the proceeds of bills remitted by T. On April 19, 1883, T drew a three months bill for £450 on N, which N accepted. On July 13 T sent to N a sight draft for £450 on W; this was duly collected by N. On July 20 N failed. T claims that N was trustee of the draft on W and therefore trustee of the proceeds. It was held that N was not trustee but debtor because "if a man pays Interest on money he must be entitled to the use of it." In Hamer v. Sidway (1891) 124 N. Y. 538, 27 N. E. 256, Ames Trust Cas. 33, the defendants' testator X had promised his nephew Y $5000 on Y's twenty-first birthday for refraining from the use of tobacco, liquor, etc. After reaching twenty-one Y wrote X asking for the money. X answered that he "had the money in the bank for him on the day and that he should have it certain," but in- timated that he preferred that Y should not actually receive the money until he was better able to take care of it. In a postscript he § 255] . TEtJSTS. 335 investing it "lie had a right to use it in any way his convenience or necessities required.^ § 255. Same— a trust changed into a debt. If a creditor consents, the debtor may change his obligation into that o"f a trustee provided he has the money and sets it aside for the creditor.^ Likewise the trustee may, with the consent of the cestui^ change his obligation into that of debtor. This may some- times be done without the consent of the cestui. If A indorses and deposits in the X bank a draft on B for the purpose of cqllection, the X bank becomes trustee^ of the draft for A till collection f after collection, how- added "You can consider this money on interest." The court held that it was a trust and not a debt and therefore the Statute of Limitations had not run. The decision seems sound if the interest referred to .by the testator was to be paid by the bank; if it were to be paid by him- self, it Is difficult to see how there could be any trust. See 9 Harv. L. Rev. 160 criticising Roca v. Byrne (1895) 145 N. Y. 182, 39 N. E. 812, for failure to pay any attention to the obligation to pay interest. 3. Since a debtor is entitled to use as his own he cannot be guilty of embezzlement; a trustee is not entitled to use as his own and Is therefore usually Included in embezzlement statutes. Com'th V. Foster (1871) 107 Mass. 221, Ames Trust Cas. 23. 1. In Farley v. Turner (1857) 26 L. J. Ch. 710, Ames Trust Cas. 40, the first relation of creditor and debtor (depositor and banker) was changed by the banker's making a , speclflc ap- plication of some of the money deposited for the purpose of paying the depositor's debt to X. See 11 Harv. L. Rev. 202; 10 Col. L. Rev. 358. ' 2. In such cases the X bank is usually spoken of as an agent, but the law of agency determines nothing as to the kind of obligation assumed by the agent in respect to property transferred to him by his principal. As already explained, ante § 252, there is nothing logically Inconsistent between one being an agent and trustee at the same time, but because of the doctrine of undisclosed principal, it is legally inconsistent. Hence the X bank should be called a trustee bank, not an agent bank; 18 Harv. L. Rev. 300; 22 id. 150. 3. In Giles v. Perkins (1807) 9 East 12, Ames Trust Cas. 9, the plaintiffs had a banking account with D, who became - 336 TRUSTS. ' [Chap, v ever, the bank does not need to keep apart the money so collected, but may place it with its general funds and debit itself with the amount, thus making itself a .debt- or. This privilege of mingling funds is allowed to the Lank because it would cause great inconvenience to the banker and necessitate an increase in expense to the depositor of the draft if the sums so collected had to be kept separate.* § 256. Same— trustee liable also as if he were a debtor. Tho usually one is liable either as debtor or as trustee and not in both capacities at, the same time, a trustee may, of course, by express contract undertake the additional obligation of debtor.^ In some jurisdic- tions this double liability has been imposed in certain casep in the absence of contract. If A indorses to the X' bank in St. Louis a draft upon B payable in New York, the X bank will in the usual course of business indorse the draft to its correspondent bank in New York, and the latter will do the collecting; if after collection but before remitting to the X bank the New York bank bankrupt on Nov. 18. On -Nov. 12 the plaintiff had deposited in the bank three drafts indorsed by them, which were not due till the following December. Since the drafts were still uncollected at the time of bankruptcy it was decided that the plaintiffs were en- titled to get them back in specie. Even tho the bank had entered the drafts as cash to the credit of the plaintiffs, this did not necessarily mean that the bank had discounted the bills. If the bank had discounted the bills, it would then have become debtor for the purchase price of the drafts and the plaintiffs would have had only a claim to share in the general assets, like any other creditor; Carstalrs v. Bates (1812) 3 Campbell 301, Ames Trust Cas. 12. 4. Tinkham v. Heyworth (1863) 31 111. 519, 522, 9 Harv. Law Rev. 428. See also 14 Col. Law Rev. 598; 27 Harv. L. Rev. 399. 1. An, agent who sells goods on a del crederer commission — agreeing to become answerable at all events for the payment ol the selling price to his principal — retains his liability as trustee of the money received, as in the ordinary case of agency; Wallace v. Castle (1878) 14 Hun. 106, Ames Trust Cas. 25. § 257] TRUSTS. 337 should fail, the X bank is held liable in some jurisdic- tions as if it were a debtor and thus must pay in full, though it may be able to collect only a small amount or nothing from the New York bank.^ That the X bank retains its liability as trustee is shown by the fact that if it fails and the New York bank remains solvent, the (JtejDositor can recover the full amount due from the New York bank to the X bank, as in any other case where a trustee becomes bankrupt or insolvent:^ That the double liability is probably not in accord with the business understanding or business conven- ience is shown by the fact that banks usually, stipulate against it on their printed forms. § 257. Same— remedies against debtor and trustee. The early common law remedy against a debtor was debt; this was largely superseded by the action of indebitatus assumpsit^ which was Revised in order 2. Mackersy t. Ramsays (1843) 9 Clark & F. 818, Ames Trust Gas. 13 seems to be the leading case tor this view. In that case M employed R. & Co. to collect a bill of exchange drawn on X of Calcutta; R & Co. employed C & Co. of London who in turn employed A. & Co. of Calcutta. A & Co. collected, gave C & Co. credit on account and became bankrupt. The court's argument was that payment to A & Co. was payment to C & Co., and that payment to C & Co. was payment to R & Co., therefore since R & Co. had been paid, they must respond to the plaintiff M. Tlie fallacy of the argument is that even assuming the relation to be one of prin- cipal and agent, the failure of the agent to pay over money to the # principal cannot properly be said to be an "act" of the agent for which the principal can be held liable to a third person as a mat- ter of the law of agency.. The fallacy becomes the more apparent when we consider that by the weight of authority the first bank is not liable for the laches of the collecting bank in failing to make the collection. Waterloo Milling Co. v. Kuenster- & Co. (1895) 158 in. 259, 41 N. B. 906. See also 7 L. R. A. 852; 23 Harv. L. Rev. 639. In 14 Harv. L. Rev. 384, the majority view is upheld as a matter of commercial expediency because there will be only one suit instead of two. 3. See post § 449. 1. This was one of the large family of actions on the case which gradually developed after the Statute of Westminster II. Bq.— 22 338 TBusTs. [Chap, v to avoid the possibility of the defendant's waging his iaw;^ it also had the advantage that it would lie for an unascertained amount, whereas debt lay only for a sum certain. The early common law remedy against a trustee was account.* In the fourteenth and fifteenth centuries the line was drawn very closely between actions,* so that it was impossible to sue a trustee in debt® or a debtor in account." Later, however, there was a tend- ency to break down the boundary line between actions, and debt was finally allowed against a trustee,^ the reason usually given being the clumsiness and expense of the action of account.* Debt would lie, of course, only where the sum was certain,' but still later, indeb- itatus assumpsit was allowed,'" thus providing a com- mon law remedy to a' cestui where the sum claimed was unliquidated.^' Allowing debt and indebtitatus assump- sit to be brought against a trustee did not, however, change the substantive law as to trusts;'^ the trustee's 2. In the various actions on the case the plaintiff was entitled to demand a jury trial. 3. See post § 449. 4. At that time our substantive law was shaped by the forms of action. 5. Anonymous (1405) Year Book 6 Henry IV, fol. 7, pi. 33, Ames Trust Cas. 1. 6. Anonymous (1429) Year Book 8 Henry VI, fol. 10, pi. 25, Ames Trust Cas. 2. 7. Clark's Case (1612) Godbolt 210, Ames Trust Cas. 4. 8. Largely for this reason and because equity courts could ^ give commands to the defendant a suit in equity for an ac- counting has largely superseded the action of account against trustees; even where debt or Indebitatus assumpsit may be brought, a suit in equity may be brought. In most juridictions the action of account is obsolete; in a few it still exists In a simplified form. 9. Lincoln v. Parr (1671) 2 Keble 781, Ames Trust Cas. 5; Farrington v. Lee (1677) 2 Modern 268, Ames Trust Cas. 6. 10. Dale V. Sollett (1767) 4 Burr. 2133, Ames Trust Cas. 7. 11. There was also the advantage at that time of avoiding wager of law which was possible in account as well as in debt 12. Allen v. Impett (1818) 8 Taunton 263, Ames Trust Cas. 36 ■^ 258] TBUSTs. 339 obligation remained that of a fiduciary— merely a more convenient remedy was allowed to enforce it. Since the judgment in either debt or assumpsit is an uncon- ditional one for money, these remedies will not lie ex- cept where the sole duty of the trustee — by the terms of the trust or later agreement — is to pay" over money.** § 258. With contract for benefit of a third person. If A sells property to X and takes from X a prom- ise to pay the purchase price to Y* instead of to A, Y is usually called the beneficiary of the contract between A and X. If the payment of the money from X to Y would result in the payment of a debt from A to Y, Y is a payment beneficiary; if it were not in payment of any obligation from A to Y, Y is usually called a sole beneficiary, on the ground that he is the only one beneficially interested in the performance of the contract. Since in case of non-performance A would be entitled to recover at least nominal damages^ and is therefore also interested, perhaps a more appropriate term would 13. In Bartlett v. Dimond (1845) 14 M. & W. 49, Ames Trust Cas. 37, the trustee had, by the terms of the trust, a discretion as to whether he should pay over the surplus of income on Jan. 6 and July 6; it was held that indebitatus assumpsit would not lie, but he must bring his bill in equity. Only a court of equity with its power to give conditional decrees, could regulate this discretion. 14. Key v. Gordon (1701) 12 Modern 521, Ames Trust Cas. 6: "Where one receives money, and has no way to discharge himseir of it but payment over, an indebitatus will lie." Whether account would lie except where the sole duty was to pay over money — quaere. 1. This is the most common example of a contract for the benefit of a third person. 2. He can recover substantial damages by suing In quasi- contract for the value of what X has received from him on the faith of the promise. 340, TRUSTS. [Chap, v be gift beneficiary.* At the present time* about two- thirds of the American jurisdictions i allow the payment beneficiary to recover,^ the leading — tho not the earliest — ease on the subject being Lawrence v. Fox.** In about half the jurisdictions the gift beneficiary is al- lowed to recover. '^ In probably all the states the obli- gation of the promisor® would be carefully distinguished from that of a trustee and relief on the ground of a ti^u'st would be denied. The fundamental difficulty in finding a trust* in such cases is that unless and until X 3. The beneficiary of a bailment was allowed detinue probably because the question arose much earlier before procedure be- came crystallized. See ante § 251. 4. For a full discussion of the subject with " exhaustive citation of English and American cases, see an article by Professor Williston in 15 Harv. L. Rev. 767. 5. It is to be observed that the payment beneficiary was in need of a remedy only in case A, the promisee — his debtor — ^be- came insolvent; and if B did become insolvent and legal ex- ecution became impossible, the payment beneficiary would be entitled — apart from the doctrine of Lawrence v. Fox — ^to reach this asset by a creditor's bill for equitable execution. See post § 455. 6. (1859) 20 N. Y. 268. 7. If the gift beneficiary is denied a remedy against the promisor, he has obviously no remedy whatever at law; and since the promisee cannot recover full damages on the contract, it vo'ild seem to have been desirable to give the equitable remedy of specific performance to the gift beneficiary; if this had been done, the promisee would have been made a party and all three parties would have been concluded by the decree. 8. Altho the remedy given to the payment or gift beneficiary is special assumpsit and not indebitatus assumpsit, the obligation of the promisor is the same as that of an ordinary debtor — to pay out of his general assets. 9. It has been suggested that A, the promisee, is a trustee for the beneficiary. This seems unsound because there is no intent on hi!= part — either express or implied from circumstances — to become a trustee. He undertakes no positive duty whatever. The money is to be paid to the beneficiary, not to him. Where the beneficiary is al- lowed an action, the promisee must account for any payment received by him, but this is because he has violated his negative duty to keep his hands oif. As the substantive law has developed, he has no right to rescind or collect after the beneficiary assents; and before the beneficiary assents he may either rescind or he may collect and ignore § 259] TRUSTS. 34i has the money set aside, there can be no trust prop- erty.^" As soon as the money is thus set aside for the beneficiary with the assent of the promisee, the prom- isor's obligation changes at once into that of a trustee." § 259. Same — English carses. In England — probably because of the • continued re- fusal of common law courts to give any remedy to a gift beneficiary^— equitable relief has been given on the ground of a trust, thus making the English law of trusts illogical on this point. In Moore v. Darton^ Moore the beneficiary. In other words he never sues as trustee; he either has a right to sue as beneficial owner and as party to the contract, or has no right to sue at all. 10. Steele v. Clarke (1875) 77 111. 471, Ames Trust Cas. l4; "It is true that when property is conveyed or given by one person to another, to hold for the use of a third person, such a trust would thereby be created as would give equity jurisdiction to compel the application to the purpose of the trust. But such is not this case. Here was a sale of a farm by the owner in order to pay his debts among which was this debt due his brother Thomas, and which Brew- ster refused to pay . . . We fail to see in the transaction any indication of a trust to any greater extent than any ordinary assump- sit by one person for a valuable consideration, to pay a debt he owes to a third party, instead of paying to the party with whom he contracted." In In re Caplen's Estate (1876) 45 L. J. Rep. 280, Ames Trust Cas. 49 it was held that "a mere agreement on the part of the debtor to apply the money according to the direction of the creditor" was not enough to establish a trust in favor of the gift beneficiaries. 11. In In re Barned's Banking Co. (1870) 39 L. J. Ch. 635, Ames Trust Cas. 42, M had paid Into B's bank a sum of money to be re- mitted to P to take up a bill which M owed. The next day B's bank stopped payment without having made the remittance to P. The money not having been set aside it was held that B — who had later paid P — must come in with the general creditors. In Farley v. Turner (1857) 26 L. J. Ch. 710, Ames Trust Cas. 40 the relation of depositor and banker was changed by the latter's making a specific application of some of the money deposited for the purpose of paying the depositor's debt to X. See ante § 255, note 1. 1. As already explained, a payment beneficiary is in no real need of a remedy. See ante. § 258. 2. (1851) 4 DeG, & Smale 517, Ames Trust Cas. 39, 342 TRUSTS. [Chap, v borrowed £100 of Miss Darton and gave the following receipt: "Received the 22nd of. October, 1843, of Miss Darton, for the use of Ann Dye one hundred pounds, to be paid to her at Miss Darton's decease, but the in- terest at 4% to be paid to Miss Darton." This trans- action was held to create a trust "for Miss Darton dur- ing her life, and for Ann Dye after Miss Darton's death." Since interest was to be paid to Miss Darton it seems impossible to find a trust during her life time;* conceivably a trust might have arisen for Ann Dye at Miss Darton's death if it were shown that Moore at that time set aside the amount for her,* but there is nothing to show that this occurred.' § 260. With an equitable charge. If A grants land to B reserving a charge* thereon, or if he grants a charge to B, keeping the land, the charge thus .created becomes a legal incumbrance^ on the land and is usually called a legal charge. But if A should convey^ the land to B subject to a charge* in favor of C, the latter, not being a party to the trans- 3. See ante § 254. 4. And that- it was assented to by Ann Dye or that the assent of Miss Darton could be inferred from the receipt. 5. In McPadden v. Jenltins (1842) 1 Phillips 153, Ames Trust Gas. 47, W had lent £500 to defendant J to be returned in a short time. Later W sent an oral direction to J to hold in trust for plain- tiff M. J assented and paid M £10. The court held that there was a trust tho it seems quite clear that J's obligation was merely to pay out of his genei'al assets; he had not set any money aside. 1. TTie charge Is usually in the form of an annuity. 2. In a iigurative sense the land becomes a debtor; the remedy of the holder of the legal charge is to distrain. 3. Usually by will. 4. If the words are "B paying" they are usually construed as creating both a personal obligation on B* and an equitable charge on the land; Porter v. Jackson (1883) 95 Ind. 210. Tho C is really a gift beneficiary of this personal obligation — see ante § 258 — he seems to have been allowed to bring debt or indeiitatus assumpsit and was not required to bring special assumpsit; Etter v. Greenwalt (1881) § 260] TBXJSTs. 343 action, but merely a beneficiary, was denied any remedy at law; equity gave relief and hence C is said to have an equitable charge. Where property is conveyed to B "upon trust to pay C" a sum of money the situation is similar in that B has the legal title in each case and C's remedy in each case is exclusively equitable. The chief difference is that in the case of the trust B is a fiduciary, and owes positive duties toward C with respect to the property,^ whereas in the case of the equitable charge B is not a fiduciary and with respect to the property merely owes C the negative duty® not to destroy his charge by conveying it to a bona fide purchaser for value without notice.'^ 98 Pa. 422. The personal obligation is not limited In amount to the value of the property received. Porter v. Jackson, supra. And since it is to be paid- out of B's general assets and not out of any of the property received, a conveyance "to B" was construed to give him a fee and not a life estate; Walker v. Collier (1595) Croke Eliz. 379, Ames Trust Cas. 3. 5. Hence, if he should wish to buy a release of C's trust interest, it would be necessary to divulge to C all information which he had acquired by nature of his being trustee; see post § 321. Also, the Statute of Limitations will not begin to run in his favor till he repudiates the trust to the knowledge of C; Jacquet v. Jacquet (1859) 27 Beav. 332, Ames Trust Cas. 56." 6. Therefore he may deal at arms' length with C in buying C's interest; and it has been held that C has no claim upon insurance money received by B upon the destruction of a building on the land. Whitehouse v. CargiU (1896) 88 Me. 479. And since the duty of B is merely to pay and not to keep the property for the benefit of C, statutes of limitation will usually run from the moment the payment becomes due; Hodge v. Churchward (1847) 16 Simon 71, Ames Trust Cas. 55; and see 3 Col. L. Rev. 498. 7. Apparently he may freely alienate the property if he informs the prospective purchaser of the existence of the equitable charge; see 26 Harv. L. Rev. 559; but it Is a breach of trust for a trustee to alienate trust property to any one without the assent of the cestui or an order of court. See post § 328. 34:4 TRUSTS. [Chap, v § 261. With the assignment of a chose in action. If A assigns a non-negotiable^ chose in action to B, B does not get the legal title^ unless the obligor as- sented to the transfer, agreeing to pay B instead of A;*" the legal title remains in A but B has the beneficial interest.* If instead of assigning the chose in action to B, A had declared himself trustee of it for B, the case would be similar in that A has the legal title and B has the beneficial interest. The chief difference between the two cases is that in the case of the assignment A is not a fiduciary; he has no positive duties to perform but is under the negative duty not to interfere with B's beneficial in- 1. If the chose In action is negotiable, the obligor assents m advance to the transfer and hence title passes. 2. A chose in action being a relation between obligee and obligor, it can not be fully and completely transferred — apart from statute— except by consent of both. There is such a statute in England, which provides for the passing o£ legal title at the time written notice is given to the obligor; Eng. Jud. Act, 37 Vict. c. 66, Sec. 25, subsec. 6. It has been contended, however, that the substantive law has so evolved as to give the assignee legal title instead of merely a power of attorney to collect. 29 Harv. Law Rev. 816-837; 30 id. 449-485 Alienability of Choses in Action, by W. W. Cook. But see 30 Harv. Law Rev. 99, Is the Right of an Assignee of a Chose in Action Legal or Equitable, by Samuel Williston. 3. This is transfer by novation. Unfortunately the transaction is called an assignment whether the obligor does or does not assent. 4. The assignment of a non negotiable chose in action is fre- quently called an "equitable" assignment. This is because the right of the assignee was first recognized in equity. In Squib v. Wyn (1713) 1 P. Wms. 378 the court states that "choses in action are assignable in equity but not at law" as if it were then well settled. The common law courts, jealous of the growing jurisdiction of chancery, overcame their scruples as to maintenance and gave relief to the assignee by employ- ing a device borrowed fr^m the Roman Law — a power of attorney for the attorney's own benefit. About 1800 equity abandoned its jurisdic- tion — Hammond v. Messenger (1838) 9 Simon 327, Ames Trust Cas. 59 — so that it is no longer accurate to call it an "equitable" assignment, but the term persists and tends to confuse the subject; see 3 Col. Law Rev. 581. As to choses in action which are not assignable because' the obligation is something else than the payment of money, see 7 Col. Law Rev, 34. § 262] TRUSTS. 345 terest. In the case of the trust, however, A is the proper person to collect^ the chose in action* and B has' no remedy directly or indirectly against the obligor as long as A performs hi^ duty as trustee.'' In the case of the assignment A's duty is not to sue the ob- ligor but to allow B to sue as his representative and keep the money collected. Before it was changed by statute,^ B was compelled to sue in the name of A; now he is generally allowed to sue in his own name but he still sues as the representative of A. He has no remedy in equity unless A threatens to collect from the obligor or there is some other special circumstance re- quiring equitable interference.^ In the case of the trust the obligor will be pro- tected in paying the trustee unless he knows that the trustee is about to commit a breach of trust ;^" while in the case of the assignment the obligor will not be protected in paying the assignee unless he was ignorant of the assignment. § 262. Same— partial assignments. It is a fundamental principle of all systems of law that a cause of action shall not be split up into parts so 5. And in the receipt given by the trustee to the obligor he need not add the word "trustee" after his name; Thomassen v. Van Wyngaarden (1885) 65 Iowa 687, 22 N. W; 927, Ames Trust Cas. 68. 6. Roberts v. Lloyd (1840) 2 Beav. 376, Ames T'rust Cas. 66. In this case the obligee did not declare himself trustee of the chose iu action but assigned it in trust; hence the trust property was the power of attorney to collect the chose in action. 7. If the trustee fails or refuses to collect, the cestui que trust may sue him for breach of trust and If the obligor is within the jurisdiction the latter may be enjoined so as to settle it all In one suit; Fogg V. Mlddleton (1837) 2 Hill (Ct^.) 591, Ames Trust Cas. 65. See post § 326. 8. These statutes usually provide that actions shall be brought in the name of the real party in Interest. For a discussion of the effect of these statutes see 4 University of Missouri Law Bulletin 3-38. 9. Hammond v. Messenger (1838) 9 Simon 327, Ames Trust Cas. 59. 10. See post § 278. 346 ^ . TRUSTS. [Chap, v as to subject the obligor to more than one suit unless he consents to such a division. The result of this is that if the obligee sues on a part only of a cause of action and takes judgment thereon, he cannot sue later to recover the remainder.^ If the obligee attempts to assign a part of the cause of action the rule forbidding that a debtor be harassed by more than one suit against his consent would prevent the bringing of two suits,* one by the part assignee and the other by the obligee. On the other hand, the attempted division ought not to result in the debtor's escaping liability. The rule is settled everywhere, therefore, that an attempted part assignment has no effect at common law^ unless the obligor agrees,* and hence the assignor may recover as if no partial assignment had been attempted. In equity, however, the partial assignee is given the right^ to sue the other two parties® and the result is that from the moment the obligor has notice'' of the part assignment, 1. Ewart, Estoppel (4th ed.) 182 note. The rule applies even tho the failure to sue for the entire demand was the result of mistake; Wickersham v. Whedum (1863) 33 Mo. 561. Perhaps it might be urged that the obligor should make his objection at the beginning of the suit and not later, but the rule as stated in the text seems well settled. 2. The power of attorney device does not help here, because it the obligee can bring only one suit, he cannot authorize the partial assignee to bring a suit and at the same time retain for himself the right to sue; see 7 Hary. Law Rev. 313. 3. See 4 Cyc. 27; Love v. FairHeld (1850) 13 Mo. 300. 4. The debtor may consent to the division, In which case sepa- rate suits may be brought; Gordon v. Jefferson City (1904) 111 Mo. App. 23, 85 S. W. 617. Only the debtor may object to the part assign- ment; Johnson Co. v. Bryson (1887) 27 Mo. App. 341. 5. See 4 Cyc. 27-35; 4 Cent. Dig. 1196-1203. Missouri and possibly a few other states deny this relief; Bennett v. Crandall (1876) 63 Mo. 410. 6. The obligor is the only one who could conceivably object to this; he might properly object if the suit in equity Imposes a greater burden on him than an action at law. While it may have been true that the burden was heavier a century and a half ago when an equity trial was by depositions and not in open court. It is no longer worthy of consideration because in practically all jurisdictions the procedure and trial in equity do not differ substantially from a trial at law. 7. It has sometimes been held that notice is essential to the V § 263] TRUSTS. 347 he is under obligation not to pay the whole amoun^ to the obligee. While justice requires that he shall have only one suit to defend, it is no substantial increase in his burden to require him to separate what he owes into two parts, paying part to the obligee and part to the partial assignee. • Tho equity takes jurisdiction* in partial assignment cases an obligee who has made a partial assignment is not a trustee;' his sole duty toward the partial as- signee is the negative one of not interfering with the latter 's collecting his part of the chose in action. § 263. With an executorship. The executor of a will is like a trustee in that he is also a fiduciary ; • his duty is to deal with the prop- erty^ of the deceased for the benefit of the creditors^ and the legatees of the testator ; as executor he has no beneficial interest in the property.* If a will directs that the person appointed as executor shall do other things than an executor is under obligation to do, he assignment and is not merely for the purpose of protecting the par- tial assignee from the obligor's paying the obligee. For a criticism of this see 3 Col. Law Rev. 581, 590, 4 id. 302. 8. Equity jurisdiction is based upon the inability of a common law court to deal >with a three-sided suit; see ante § 5. 9. If the obligee should declare himself trustee of the chose In action partly for the benefit of B and partly for the benefit of himself, the obligee would of course become a trustee; if instead he should assign the entire chose in action to B upon trust partly for the benefit of the obligee, and partly for the benefit of^ B, the assignee would become a trustee. Either of these devices may be used in a jurisdiction like Missouri which refuses equitable relief to the partial assignee. 1. The executor primarily deals only with the personal' estate, but where that is not sufficient to pay debts, modern statutes provide that he may have enough of the real estate sold to make good the deficiency. 2. Scott V. Jones (1835) 4 Clark & P. 382, Ames Trust Cas. 70 3. Tke rule was formerly otherwise in England, where he was the residuary legatee. 348 TBusTS. [Chap, v becomes a trustee* as soon as such duties are under- taken.^ i The legatee's remedy against the executor is in the probate court; but if the executor has become a trustee he becomes liable, like other trustees, to a suit in equity® and the legatee must look for payment to the sum set aside'' and not to the general assets of the deceased. The executor holds adversely to the creditors and the legatees because the duty of the executor is to settle up the estate as promptly as the circumstances will permit ; hence the creditors and legatees may be barred by the running of the Statute of Limitations tho they did not even know of the existence of their respective claims against the estate. But if the executor becomes trustee, this Statute of Limitations does not apply to his ob- ligation as such trustee,* and the Statute of Limitations in reference to a trust will not begin to run till the trustee has repudiated to the knowledge of the cestui, because his duty is to continue to hold the property for the benefit of the cestui and the latter is entitled to 4. Hence a person may be both executor and a trustee at the same time, with refererice to different parts o£ the estate, his duties in the two capacities remaining entirely distinct. If the executor should die the better view is that the administrator de bonis non does not succeed to the trust duties; 20 Harv. Law Rev. 151. 5. If the executor can not legally pay over a legacy because of the infancy or other disability of the legatee, he becomes trustee as soon as he has the amount ready to pay over and is bound by the ordinary duties of a trustee, such as investment (see post § 322); In re Smith (1889) 42 Ch. D. 302, Ames Trust Cas. 72. But "see 19 Harv. L. Rev. 383 placing In re Smith on the ground of the Conveyancing Act. 6. Parsons v. Lyman (1863) 32 Conn. 566. 7. Brougham v. Poulett (1854) 19 Beav. 119. 8. Tyson v. Jackson (1861) 30 Beav. 384. The creation of a trust to pay debts wiU not, however, affect the application of the Statute of Limitations as to debts where the property was already legally liable therefor. In the United States this includes both real and personal estate, but only personal property in England. Scott v. Jones (1838) 4 Clark & F. 382, Ames Itust Cas. 70. § 265] TETjfeTs. 349 notice if the trustee decides to claim the property for himself.® § 264. With relation of vendor and purchaser. A vendor of land under a specifically enforcible contract^ is frequently spoken of as a constructive trus- tee;^ the relation is similar to that of a trust in that the vendor has the legal title and the purchaser the equitable interest in the property.* If the* purchase money has been paid or secured according to the con- tract the vendor is under an obligation to turn over the property to the purchaser, but this is not a con- structive obligation but one which the common law im- poses and for which equity gives specific redress ac- cording to the intention of the parties. The obligation is closely analogous to that of an express passive trus- tee whose duty is merely to convey, but it is not exactly that because there is no intention to become a trustee. Where the purchase money has not been paid or se- cured it is still farther from being an express passive trust because the vendor has an interest in holding the propei'ty as security which is not quite consistent with his being a trustee. *» C. Essentials to the Creation and Existence of the Trust Relation. § 265. Language necessary to creation of a trust. If one who attempts to create a trust uses the phrase "upon trust" or words of command, the attempt will ordinarily be successful, if the property conveyed has been properly described and there are no conditions 9. See 9 Col. Law Rev. 89 approving Russell v. Huntington Nat'I Bk. (1908) 162 Fed. 686; see also 7 Harv. Law Rev. 439. 1. See ante § 83. 2. See 1 Col. Law Rev. 1, 6. 3. See ante §§ 83, 109, note 5. 350 TRUSTS. [Chap, v imposed upon the transferee which would be inconsis- tent with a trust — such as the payment of interest. ^ If only precatory words are used — such as "wish," "hope," "desire," "entreat," etc., — there is some un- certainty as to whether they are sufficient to impose a trust oJjligation on the transferee of the property. Formerly the weight of authority was that such words, if used in a will, were sufficient provided the subject matter and object of the trust be clearly designated.^ The tendency of modem cases, however, is against con- struing such words as creating a trust, requiring that the language used be strong enough to show an intent to impose a legally binding instead of a merely honorable obligation.^ 1. See ante § 254. 2. In Harding v. Glyn (1739) 1 Atkyns 469, Ames Trust Cas. 78, one N. H. gave by will "to Elizabeth, his wife, all his estates, leases and interest in his house in Hatton Garden and all the goods plate, . . but did desire her at or before her death to give such leases, house, furniture, goods and chattels, plate and jewels unto and amongst such of his own relations as she should think most deserving and approve of." It was held that the widow took as trustee and got no beHeflcial interest. In Palmer v. Scribb (1713) 2 Eq. Cas. Abridged 291, pi. 9,' Ames Trust Cas. 77, no trust was construed because the words of the will covered property of the wife other than that received from the husband. In Wynne v. Haw- kins (1782) 1 Browns Ch. Cas. 178, Ames Trust Cas. 81, "not doubt- ing that she will dispose of what shall be left at her death to our two grandchildren" was not construed to impose a trust because "it was uncertain what property was to be given and to whom." In Malim v. Keighley (1749) 2 Ves. Jr. 333, Ames Trust Cas. 83, "recommending It to her to dispose of the same after her own death to" certain persons was construed to impose a trust. A partial explanation of this atti- tude of the courts is that they thought a testator would be unlikely to use words of command towards a wife or neat blood relative; and that the wish of a testator, like the request of a sovereign, was equiva- lent to a command; see 11 Harv. L. Rev. 261, 482. 3. In In re Dlggles (1888) 39 Ch. Div. 253 Mary Ann Diggles bequeathed all her real and personal estate to her daughter, F. E., "and it is my desire that she allow to my relative and companion, Anne Gregory, now residing with me, an annuity of £25 during her life." This was held not to create a trust. See also Lambe v. Eames (1871) 6 Ch. App. 597, Ames Trust Cas. 85; Stead v. Mellor (1877) 5 Ch. Div. §^ 266] TRUSTS. 351 § 266. Consideration — the law of uses. It was the law of uses before the Statute of Uses' was passed that a consideration was necessary to create or "raise" a use.^ If A conveyed property* to B, for the use of C, the receipt of the property by B was consideration* for his obligation to hold it to the use of C.^ If A desired to create a use in C without making any conveyance of the legal title, his having the property could not be consideration for raising the use because he already had the property® and therefore unless A received something of value, such as money, etc., in exchange for his promise to hold to C's use, such a promise was wholly ineffectual. After the Statute of Uses was passed and uses be- came important in the law of conveyancing'' the rule requiring consideration was so modified, that one might create a use in favor of a near relative^ by blood or 225, Ames Trust Ca§. 91. If a testator wishes to give full power of disposition to X and yet give what is left of the property at X's death to Y, he should give X a life estate with a general power of appointment, but in default of appointment, over to Y. } 1. See ante | 247. 2. Doctor & Student (1523) Dialogue II, Chapters 22, 23, Ames Trust Cas. 107. 3. If the conveyance was by feoffment, no consideration was necessary for the validity of the feoffment; Ames Trust Cas. 108. i. The essential idea involved in consideration is that of exchange. In the law of conveyancing, the consideration for the conveyance is that which is given in return for the property; See Doctor & Student, supra. !j. Once a use was created or "raised" — i. e. once the bene- Hcial interest was separated from the legal title — the use could be tranbf erred freely by way of gift; that is, without consideration. 6. That so called "past" consideration was not sufficient, see Anonymous (1545) Ames Trust Cas. 109. 7. See ante § 247. 8. This was a strict requirement. There could be no covenant to stand seized to the use of a bastard child. Frampton v. Gerrard (1601) 2 Roll's Abridg't 785 (K) pi. 4, 791, pi. 1 Ames Trust Cas. 121. In case of a covenant to stand seized to the use of a near relative for life, remainder to a stranger, the re- 352 • TRUSTS. [Chap, v marri^ge-v-sucli as son, daughter, son-in-law, daughter- in-law — by a mere declaration under seal^ without re- ceiving anything in exchange. The Statute of Uses would then operate to transfer the legal title to the relative in whom the use had been thus created. Such a conveyance is called a covenant to stand seised; the near relationship upon which it is based is usually referred to as "good consideration." Strictly speaking, however, there is no consideration in the true sense of exchange; sometimes consideration in the latter sense is called "valuable" consideration to distinguish it from the so called "good" consideration. Where a use ' is raised by a valuable consideration," the conveyance is called a bargain and sale. § 267. Same— the law of trusts. Until 1811 a valuable consideration was essential to the creation of a trust.^ In that year it was decided^ that if A declare himself trustee for X, this mere declara- tion is sufficient to make A trustee and to vest the equitable interest in X even tho X be a stranger. It has long been the law as to gifts that in order to t malnder was void; Anonymous, 2 Roll's Abridg't 78, Ames Trust Cas. 122. And a recital of relationship is not sufficient, the a recital of a valuable consideration is sufficient to make a good bargain and sale. Taylor v. Vale (1889) Croke, Bliz. 166, Ames Trust! Cas. 117. 9. In the leading case of Sharington r. Strotton (1565) Plowden 298, Ames Trust Cas. 109, the promise was under seal, but the court laid no stress on the fact. But in Callard v. Callard (1596) Moore 687, pi. 950, Ames Trust Cais. 117, it was decided that a seal was necessary. 10. Apparently . it is the recital of consideration rather than the fact of consideration that is the most important thing in a bargain and sale; Taylor v. Vale supra. 1. See 9 Harv. Law Rev. 213. ' 2. Ex parte Pye (1811) 18 Ves. 140, Ames Trust Cas. 123. In that case the giving of a power of attorney was construed as a declaration of trust. On that point the decision would probably not be followed. See infra note 6. § 267] TRUSTS. 353 V transfer the legal title the donor must either deliver the property^ or make a conveyance by deed or will; a mere promise or declaration of intention, no matter how clear, will not suffice. After it was held that a mere declaration, of trust was enough, it was natural that the donee of every imperfect gift would try to in- duce \the court to construe the transaction to be a declaration of trust,"" which for most purposes would be as satisfactory to the donee as the legal title would be. In a few English cases* the donees were successful, but the great weight of authority and the better view is th^t the. doctrine of Ex parte Pye"^ is applicable only , to cases where there is a clear intent to become trustee^ and therefore does not apply to imperfect gifts.® An exception, however, has grown up in the United States. Apart from statute, a husband can not convey property to his wife; an attempt to do so has no legal effect. In many jurisdictions in the United States, 3. Irons v. SmaUpiece (1819) 2 B. & Aid. 551; 4 Harv. L. Rev. 140. If the chattel is already in the hands of the donee as bailee oral words of gift are enough; See 20 Harv. Law Rev. 306. 4. Morgan v. Malleson (1870) 10 Eq. 475, Ames Trust Gas. 129; Richardson vl Richardson (1868) 3 Bq. 686, Ames Trust Gas. 156. 5. Richards v. Delbridge (1874) 18 Eq. 11, Ames Trust Gas. 130. See 9 Harv. Law, Rev. 213. ^ 6. Many of the cases of imperfect gifts are of choses in action, which are, of course, Incapable of delivery because intan- gible. As already pointed out, ante § 261, legal title can be trans- ferred only by novation, so that the device of a power of attorney for one's own benefit was resorted to in order to transfer the bene- ficial interest. This power of attorney is held to be irrevocable in case the chose in action is sold, but the law as to gifts is not so well settled. If a legal chose in actioh is evidenced by a doc- ' ument — such as a life insurance policy, bond, savings bank book-r- the production of which is essential to enable a plaintiff to re- cover thereon against the obligor, and this document has been transferred by deed or delivery to the donee, Xhe power of attorney is held to be irrevocable in this country; Grover v. Grover (1835) 24 Pick. 261, Ames Trust Gas. 159, 145 note. In England this seems to be true only in case of gifts mortis causa; Edwards v. Jones (1836) 1 Mylne & Craig 226, Amea Trust Gas. 140; except perhaps as to life insurance policies; Fortescue v. Barnett (1834) 3 Mylne & Keen 36, Ames Trust Gas. 136. Where there is no such document the few de- Eq. — 23 354 TRUSTS. [Chap, v however, these attempts to convey to the wife have been upheld in equity as valid declarations of trust.'' These decisions are usually explained as being based upon the husband's obligation to make a provision for the wife and therefore as having a meritorious con- sideration; tho not logical they are probably justified in the United States on grounds of policy, because the wife is not usually provided for upon her marriage as she is in England.* § 268. The Statute of Frauds. Apart from statute, a trust either of real or per- sonal property may be created orally and may be proved by oral' evidence. In a few states the Statute of Frauds provides that trusts in land shall be created in writing.* But by the English Statute of Frauds,* which has been substantially copied in many States, the requirement is that "all declarations or creations of trust or con- fidences of any lands, tenements or hereditaments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trusts. . . . " The statute by its terms does not apply to cislons are in conflict; Colman v. garrel (1789) 1 Ves. Jr. 50, Ames Trust Cas. 133, 163, note. In case of equitable choses in action, where, of course, there is no such document, mere words of transfer seem to be enough; Donaldson v. Donaldson (1854) Kay 711, Ames Trust Cas.' 146; Sloane v. Cadogan (1808) Sugden, 3 Vendors & Purchasers (10th Ed.) Appendix, 66, Ames Trust Cas. 135. 7. Walker v. Walker (1857) 25 Mo. 367, Ames Trust Cas. 175 note. 8. The modern English view is shown in In fe Breton's Estate (1881) 17 Ch. D. 416, Ames Trust Cas. 171, refusing to construe a trust In the case of an attempted gift from husband to wife. There were some earlier cases contra: Slanning v. Style (1734) 3 P. Wms. 334, Ames Trust Cas. 164, Baddeley v. Baddeley (1878) Ames Trust Cas. 170.- 1. See Rev. Stats, of Alabama (1886) § 1845. 2. (1676) Statutes at Large 406. § 268] TBUSTS. - 355 personal chattels;* and resulting and constructive trusts are expressly excepted.* Unless the statute expressly requires that the crea- tion of the trust shall be in writiAg, the writing is not necessary to the creation but merely to the enforce- ment of the tru'st; that is, the statute gives a defense. The memorandum is thus .sufficient if made at any time before suit is brought to enforce the trust and is effect- ual even if made after the trustee's bankruptcy pro- vided' that the trust was created before the bankruptcy.^ If A conveys property to B upon trust for C, A may comply with the statute by expressing the trust in the instrument of conveyance. If he f^ils to do this, however, only B can then comply with the statute, since he is the party to be charged with the trust.^ If A declares himself trustee of land for C, the only party who can ever comply with the statute is A. 3. Danser v. Warwick (1880) 33 N. J. Eq. 133, Ames Trust Cas. 186 (bond and mortgage; the tact that the mortgage was on land was not material because it was incident to the debt). 4. See ante § 250. 5. In Gardner v. Rowe (1825) 2 Simon & Stewart 346, Ames Trust Cas. 179 the bankrupt trustee attempted to perform by conveying; the invalid deed was held to be a sufficient memorandum to comply with the statute; see 14 Harv. Law Rev. 156. In Lockren v. Rustan (1899) 9 N. D. 43, 81 N. W. 60, X for the purpose of defrauding his creditors conveyed land to his son upon an oral trust for himself. In order to get the property out of the reach of his own creditors, the son reconveyed to X. This re- conveyance was held valid as against the son's creditors, tho X could not have compelled it; see 13 Harv. L. Rev. 608. As to how far the performance of an oral ante-nuptial contract by the husband to convey property to the wife in consideration of marriage is good against the husband's creditors see 11 Harv. L. Rev. 417, 12 id. 219, 15 id. 239. 6. In Tierney v. Wood (1854) 19 Beav. 330, Ames Trust Cas. 182, W bought land and caused it to lie conveyed to the plaintiff; later he delivered to the plaintiff a writing signed by himself as follows: "I desire that the property be held for the benefit of my wife. . . ." The court treated the case as if a question of complying with the Statute of Frauds was involved and stated that the holder of the beneficial interest was the proper party to 356 TRUSTS. [Chap, v § 269. The subject matter of a trust. Tho most trusts are of land, movable chattels and choses in action^ may also be held in trust. The cestui' s interest itself being an equitable chose in action, may be held in trust.^ In short, practically everything- of which one may predicate property may be held in trust:* Purely personal rights, such as peerages* and offices, cannot be assigned to others and therefore cannot be held in trust for others. In Graves v. Graves* the testator devised his homestead Gravesend to his wife for life: "And I do hereby declare it to be my earnest wish and desire that my said sister shall reside at Gravesend with my dear wife during her life." The sister aisked for a declaration of her right to reside at Gravesend and to be boarded by Mrs. Graves. The court held that there was no trust property and hence no trust obligation. The homestead itself was evidently not meant to be held in trust and the right to' live at Gravesend being conditional upon the sister being able to live on friendly terms with the widbw, was obviously not enforcible.^ sign the memorandum. The explanation of the case Is that there was a purchase money resulting trust (see post § 282.), the proof of which did not involve the Statute of Frauds; see ante § 250. The beneficial interest being effectually vested in W, the writing operated as an assignment of that interest; obviously the holder of the beneficial interest is the proper party to assign the interest. 1. Fogg V. Middleton (1837) 2 Hill Ch. 591, Ames Trust Cas. 65. 2. Goodson v. Ellison (1827) 3 Russ. 583, Ames Trust Cas. 451. 3. That the property is not in existence at the time the trust is created is not material; see Pratt v. Tuttle (1883) 136 Mass. 233, Ames Trust Cas. 32, where the trust property was one half of the net profits to be made in a business. 4. Buckhurst Peerage^ (1876) 2 App. Cas, 1. 5. (1862) 13 Irish. Ch. 182, Ames Trust Cas. 192. 6. A direction by the testator to his executors to employ a certain solicitor in settling up the estate cannot be sustained as a § 270] TRUSTS. 357 § 270. The cestui que trust — public or charitable trusts. Any person capable of holding the legal title to property may be a cestui que trust} h. charity has been defined as anything which tends to the improvement of mankind^ in general, including schools, churches, lodges, hospitals, libraries, etc. The rules as to charitable trusts differ in two important re- spects from the rule as to private trusts : the cestuis que trust need not be definite,^ and the trust may last forever. A devise of property to X upon trust to apply the income each year for the benefit of the worthy poor of Z county is valid, tho it is obvious that the parties to trust because there is no trust property; Foster v. Blsley (1881) la Ch. D. 518, Ames Trust Cas. 191. Another objection to It is that the necessity for co-operation between client and attorney makes it undesirable to attempt to enforce it; 28 Harv. Law Rev. 530. In a somewhat less degree the same objection would apply to employments other than that of legal services; see Jewell v. Barnes Adm'r (1901) 110 Ky. 329, 61 S. W. 360. 1. At one time it was held that an alien could take, but not hold property as cestui que trust. King v. Sands (1669) Freem. Ch. 129, Ames Trust Cas. 354. This has been almost entirely abrogated by statute. Nor could a slave be a cestui; Craig v. Beatty (1879) 11 S. Ca. 375. 2. See 3 Col. L. Rev. 269-273, quoting Jackson v. Phillips (1867) 14 Allen 539, 556. In Jones v. Palmer (1895) 11 The Times Law Rep. 519 the bequest of a fund to a yacht racing association to apply the income to purchase each year a cup etc., was held not to be a charity. In Kelly v. Nichols (1893) 18 R. I. 62, 25 Atl. 840, a devise for hospitality was held not be a charity; 7 Harv. L. Rev. 125. Sim- ilarly a society for the benefit of members Irrespective of poverty is not a charity; 22 Harv. L. Rev. 610. But the suppression of vivi- section is a charitable object because the advancement of human morals is Involved; 9 Harv. L. Rev. 224. As to patriotic trusts, see 20 Harv. L. Rev. 67. 3. The rule in New York and a few other states formerly was otherwise; Tilden v. Green (1891) 130 N. Y. 29, 28 N. B. 880, 887. T^he failure of this trust because the property was devised to a corpora- tion not yet in existence caused much criticism — 5 Harv. L. Rev. 389 —and led to corrective legislation. See Acts 1893, ch. 701. See 2 Col. L. Rev. 10; 11 id. 559. 358 TRUSTS. [Chap, v be benefitted are not specified and tbo the income is to be applied perpetually. In fact, it is one of the essential features ^r a charity that the persons to be ultimately benefitted thereby should not be specified because it must be for the benefit of the public* If a charitable corporation^ is named as the immediate cestui, it is the proper party to enforce the trust; otherwise the state will enforce it — usually through the Attorney General.* § 271. Same— private trusts. If a trust is for a private purpose, it is a fatal objection if the application of the income is to last indefinitely .1 In Mussett v. Bingle^ a direction that the income from £200 be used in keeping up a monument was held bad for this reason. If the trust had been limit- ed to a period of years — say jtwenty^ — it might have 4. See 12 Col. L. Rev. 356, 379, a devise "to provide shelter, necessaries of life, education, general or specific, and such other financial aid" as might seem fitting to the trustees was held valid. 5. Where ithe devise or bequest is to an unincorporated society, the trust should be held valid, but the" law is unsettled; see 19 Harv. L. Rev. 202; 2 Col. 1,. Rev. 58. 6. In two other respects a charitable trust differs from a private trust: (a) The rule of respondeat superior does not apply to a cor- poration engaged in a charitable purpose; Arkansas Midland R. R. Co. V. Pearson (1911) 98 Ark. 399, 135 S. W. 917 (charitable hospital); see also 25 Harv. L. Rev. 83, 16 id. 530. (b) If it becomes Impossible or highly difficult to carry out the original charitable purpose and the main obsect of the bequest was a general charitable purpose, the property will be devoted to some similar charity. See 8 Harv. L. Rev. 69-92, 11 Col. L. Rev. 773, 12 id. 356. This is called the doctrine of cy pres. ^ 1. This is a perpetuity in th'e strict and literal sense. It is bad because it would tend to withdraw property from proper and normal economic uses. A provision that will result in property being rendered entirely useless even for only a limited period is bad; Brown v. Burdett (1882) Weekly Notes 134, Ames Trust Cas. 204 (direction that a house be bricked up for twenty years.) 2. (1876) Weekly Notes 170, Ames Trust Cas. 201. 3. Pirbright v. Salway (1896) Weekly Notes 86, it was held that a trust for keeping up an inclosure in a burial ground was valid for ^ 271] TRUSTS. 359 been held valid.* The fact that there is no cestui capable of enforcing a private trust in not objectionable, provided the pur- pose of the trust is definite. A direction to apply the income of £750 for fifty years^ towards the maintenance of the tes.tator's horses and hounds if they should live so long® and a bequest of £300 upon trust to erect a monument to the first husband of the testator's wife'' were both held valid tho it is obvious that there is no one to hold the trustee responsible for refusing to carry out the trust.* Where, however, the object of the trust is indefinite, the. trust is invalid, tho the trustee is willing to carry out the testator's wishes and the purpose is not illegal. at least twenty one years from the testator's death. In In re Cean, infra, the court suggests the "limits fixed by the rule against perpe- tuities." , 4. There is much confusion between the real rule against per- petuities (supra, note 1), and the so called rule against perpetuities which is really a rule forbidding the postponment of the vesting of contingent interests beyond a certain period — usually twenty one years after lives in being at the creation of the interest. Because of this con- fusion a trust would probably be held valid if it should be limited in duration to a period not longer than twenty one years after lives in being at the creation of the trust. For a discussion of this and re- lated questions see 10 Mich. Law Rev. 31-41, Unenforcible Trusts and the Rule Against Perpetuities. 5. No objection was raised to the length of the period; conceiv- ably the animals might have lived longer than twenty one years after lives in being at the death of the testator. See Gray, Rule Against Perpetuities § 906, 10 Mich. Law Rev. 40. 6. In re Dean (1889) 41 Ch. D. 552, Ames Trust Cas. 205. 7. Mussett V. Bingle, supra. See also Reichenback v. Qulnn (1888) 21 Law Rep. Irish 138, Ames Trust Cas. 209 (bequest for masses); 11 Harv. Law Rev. 331. In Ross v. Duncan (1839) Freeman, Ch. 587, Ames Trust Cas. 212, a jaequest of slaves to be set free in Liberia was hel4 to be valid, tho unenforcible. 8. As will be pointed out later (see post § 286) the trustee could not profit by such refusal, but would be bound to account for the property to the next of kin of the testator. If the £750 had been directed to be spent for the benefit of a horse and hound hospital in- stead of for the testators' particular horses and hounds, it would have been a charity and enforcible by the State. See ante S 270. 360 TRUSTS. [Chap, v In the leading case of Morice v. Bishop of Durham,* one A bequeathed her personal estate to the defendant upon trust to pay debts and legacies "and to dispose of the ultimate residue to such- objects of benevolence and liberality as the Bishop of Durham shall most ap- prove." The words, "benevolence and liberality" being broader than "charity" the gift could not be upheld as a charity. The Bishop was willing to carry out the terms of the will, but the court held the trust invalid'" for indefiniteness and declared a resulting trust for the next of kin of the testator. The testator might have ac- complished the result he desired by bequeathing the property to the next of kin, subject to a power of ap- pointment in the Bishop of Durham among such objects of Jaenevolence and liberality as he should most approve. § 272. The trustee— appointment and removal. Apparently the creator of a trust may validly ap- point any one a trustee; e. g. an infant,^ a lunatic, a bankrupt^ or an alien.^ It was at one time thought that 9. (1805) 10 Ves. 521, Ames Trust Cas. 195. 10. The soundness -of the decision and the validity of any dis- tinction between this case and the cases of the monuments and animals and slaves (see supra, notes 3, 5) has been frequently attacked. See 5 Harv. Law Rev. 389-402, The Failure of the Tilden Trust, by Profes- sor Ames; see also 9 id. 426, 11 id. 331. On the other hand, see 15 Harv. Law Rev. 509-530, Gifts for a Non-Chafitable purpose, by Pro- fessor Gray, defending the decision. 1. Jevons v. Bush (1685) 1 Vernon 342, Ames Trust Cas. 217. An infant trustee would not be liable for such breaches of trust as consist in mere failure to act — 'in analogy to the non-liability of an infant for breach of contract. But if the breach of trust consisted in wasting the trust property by positive acts of misconduct, it would seem that he would be liable therefor, in analogy to his common law liability for his torts." 2. Scott V. Carron Co, (1853) 18 Beav. 146. Tho the appointment of a lunatic or bankrupt would be valid, the court would probably remove him; see post § 273. That the creator of a trust may appoint as trustee a person whom the court would not itself appoint see In re Earl of Stamford (1896) 1 Ch. 288, 299. 3. The early rule was that an alien could take but not hold as trustee; King v. Boys (1569) Dyer 283b, Ames Trust Cas. 216 This § 272] TRUSTS. 361 a corporation could not be a trustee for the same reason that it could not commit a crime, viz, that it had no conscience or soul, but it is well settled now to the contrary;* in fact, it is very common foj- a corporation to be a trustee.^ If for any reason a trusteeship should become vacant the duty usually devolves upon the court to ap- point a new trustee.^ In performing this duty the court will endeavor to appoint one who ^v^ill be capable of managing the trust estate and who will likely be fair to all the cestuis. Hence a . court, in the exercise of its discretion would never appoint a lunatic or infant as trustee and would not appoint a non-resident of the State,^ a married woman,^ an insolvent* or one of the ce'stuis^^ unless there should be exceptional circum- disability was removed in England by St. 33 Vict. c. 14 § 2 and has not prevailed to any large extent in this country. ' 4. Att'y Gen'l v. Lauderfield (1743) 9 Mod. 286, Ames Trust Cas. 216. 5. It has the practical advantage over an individual in that its trusteeship is not interrupted by death. 6. Unless the creator of the trust makes some other provision for filling the vacancy. 7. In In re Hill (1874) Weekly Notes 228, the court appointed an alien as trustee of English property because the beneficiaries were also aliens. ' ^ 8. In In re Campbell's Trust (1802) 21 Beav. 176, Ames Trust Cas. 220, the court's reluctance to appoint an unmarried woman was perhaps due to a fear that she might marry. That a feme covert is not incapable of being a trustee, see Still v. Ruby (1860) 35 Pa. 373, Ames Ttust Cas. 219. One objection to appointing a married woman — that her husband must join in any conveyance of trust property — has been almost, if not entirely, removed by recent legislation; Claussen v. La Franz (1855) 1 Iowa 226. 9. In In re Barker's Trusts (1875) 1 Ch. D. 43, Ames Trust Cas. 223, the court removed a trustee because he had become a bankrupt and part of the property could easily be made way with; see post § 313. 10. In Ex. parte Conybeare's Settlement (1853) 1 Weekly Rep. 458 such an appointment was made because all the persons in- terested favored it, and there were other trustees; see 25 Harv. Law. Rev. 482. In Re Hattat's Trusts (1870) 18 Weekly Rep. 416, Ames Trust Cas. 221, the husband of one of the cestuis was 362 TRUSTS. [Chap, v stances favoring such an appointment. In England it seems objectionable to have a relative of any of the cestui appointed,^^ but such appointments are common in this country. . If the trustee is guilty of serious misconduct, or is for any reason incapable of performing the trust duties, it is, of course, desirable that he should be removed. In the absence of statute, the proper equity court will accomplish this removal by commanding the trustee to convey the trust property to a person designated by the court to be the new trustee. If, however, the trustee is an infant or lunatic,^^ a transfer by him, even if made under order of court, would be voidable. In such a case equity will not order a transfer but will issue an injunction against the trustee's further interfering with the trust property, and will appoint a conservator who will manage the trust property but will not, of course, have title. In England and in many States in this country, statutes have been passed^* which enable a court of equity to vest the title in a new trustee without a transfer by the old trustee.** § 273. Same— disclaimer. No one is under any obligation to accept the office of trustee. If a conveyance be made to T upon trust for C, the title passes as soon as the conveyance is. made,* without waiting for the consent of T; but if T appointed a trustee upon his undertaking to apply immediately to the court for the appointment of a new trustee in case of his be- coming the sole trustee. 11. Wilding V. Bolder (1855) 21 Beav. 222, Ames Trust Cas. 221. 12. In Pegge v. Skynner (1784) 1 Cox, Eq. 23, Ames Trust Cas. 218 one of the defendants in a specific performance case was a paralytic; the order was that he should execute the conveyance, when he should become capable. 13. Trustee Act of 1850, 12 & 13 Vict. c. 74, § 7; Rev. St. of Mo. (1909) §§ 11919, 11920. 14. Such legislation ought to cover speclflc performance cases as well. 1. Doe V. Harris (1847) 16 M. & W. 517. §273] TBUSTs. 363 upon learning of the conveyance refuses to accept, such refusal or disclaimer relates back to the time of con- veyance and operates to place the title back in the transferor or his representatives, just as if the con- veyance had never been made.^ If T once accepts, it is then too late to disclaim.* Although a transferee by deed or will can thus rid himself of the legal title to property by disclaimer, the heir of the decedent creator of the trust can not thus escape; he is, howevei*, entitled to his costs in being relieved, because not in fault. Neither disclaimer by th^ trustee nor refusal to act after acceptance* will defeat the interest of the cestui. 'Equity will not allow a trust- to fail for want of a trustee but will appoint some one wl?o is willing to serve. The cestui' s interest is likewise saved where the person or corporation is forbidden by law to take the legal title,® or where the person named dies be- 2. Adams v. Adams (1874) 21 Wall 185, Ames Trust Cas. 227. A similar rule, applies to the equitable interest of C; It vests with- out his knowledge, subject to disclaimer. In Massachusetts and New York, however, a peculiar doctrine has grown up with reference to money deposited in a savings bank In trust for C; It requires that notice be given to C So that if the creator of what is there- fore only a tentative trust dies without notifying C, the tentative trust ceases. Clark v. Clark (1871) 108 Mass. 522, Ames Trust Cas. 232; In re Totten (1904) 179 N. Y. 112, 71 N. E. 748; 4 Col. L. Rev. 502, 516; 7 id. 294, 11 id. 692; 13 Harv. Law Rev. 63; 18 id. 70. It has been suggested as an explanation that these decisions represent a reaction from the extreme liberality of Ex parte Pye. See ante § 267. 3. See Conyngham v. Conyngham (1750) 1 Ves. Sr. 522. As to whether a cestui may accept after disclaimer, see 26 Harv. L. Rev. 660. 4. Adams v. Adams supra (husband refused to act as trustee for wife after divorce). 5. Sonley v. Clock Makers Co. (1780) 1 Brown Ch. 81, Ames 'Trust Cas. 225. 364 THUSTS. [Chap, v fore the testator,* or where the conveyance is upon trust but no trustee has been named.^ D. Nature of Cestui 's Interest. § 274. Remedies of - cestui against trustee and vice versa. If by the terms of the trust, or by the trustee's stating an account to the cestui the sole duty of the trustee is to pay over money, the cestui may^ bring debt or indebitatus assumpsit.^ Where the duty of the trustee is to do anything else, the cestui must proceed in equity in order to enforce it.* In Norton v. Ray* the cestui brought contract* against the trustee for the value of the trust property which the trustee had wrong- fully conveyed to X; the court held that the cestui must proceed in equity. If it had been the duty of the trustee to sell and convey the property and hand over the proceeds to the cestui, then the latter would be able to maintain his common law action as soon as the trustee received the proceeds and became legally bound to pay them over. If the trustee should execute an instrument under seal agreeing to carry out the trust, the cestui may, if • he prefers, sue the trustee in the common law action of covenant.® If the promise to perform the trust is not 6. Attorney Gen'l v. Hickman (1732) W. Kelyng 34, Ames Trust Cas. '224. 7. Dodkln v. Brunt (1868) 6 Eq.' 580, Ames Trust Uas. 226. 1. But lie need not proceed at law if he prefers to sue in equity. 2. See ante § 257. And see 6 Harv. L. Rev. 321. 3. This was largely due to the clumsiness of common law pro- cedure and the inability of common law courts to issue commands to the defendant and enforce them ; see ante § 5. 4. (1885) 139 Mass. 230, Ames Trust Cas. 239. See -10 Harv. L. Rev. 317, 5 Col. L. Rev. 479. 5. The statutory equivalent of indebitatus assumpsit. 6. Turner v. Wardle (1836) 7 Sim. 80. In Holland v. Holland (1869) 4 Ch. App. 449, Ames Trust Cas. 236 it was decided that the § 275] TRUSTS. 365 under seal, special assumpsit would logically be al- lowed against the trustee wherever there was con- sideration for his undertaking the trust ;^ but the juris- diction of equity over express trusts was so well set- tled before the action of special assumpsit came into general use that tli,e latter action was practically never brought.* Since the legal title is in the trustee and the cestui's interest is not recognized at common law,^ the trustee may recover against the cestui in ejectment for trust land^o or in trover or detinue for triist chattels." The cestui's only remedy is to get a decree in equity forbidding the trustee to continue with his action at common law. In some jurisdictions, however, by statute, a cestui has been allowed to plead his equitable in- terest in common law courts^^ and a resort to equity is ■ made unnecessary. § 275. Same — situs of trust property not important. If a cestui wishes to sue his trustee it is not neces- sary that the court in which the suit is brought shall have jurisdiction of the trust property. It is enough that the trustee be subject to the jurisdiction of the court by being served with process or by entering a mere fact that the trustee was a party to and executed the deed hy which he was appointed trustee did not make the cestui a specialty creditor of the trustee's estate. 7. In such a case all the essentials of a contract are present. 8. In Megod's Case (1585) 4 Leonard 225, Ames Trust Cas. 235, the action was allowed. But see contra, Barnadiston v. Soame (1676) 6' How. St. Trials 1063, 1098. 9. With the exception noted supra note 2. 10. Weakly v. Rogers (1789) 5 East 138, note (a), Ames Trust Cas. 241. Similarly, the trustee may recover against the cestui in trespass guare clausum; Anonymous (1464) Year Book 4 Edward IV. folio 7, pi. 9, Ames Trust Cas. 240. 11. Gun V. Barrow (1850) 12 Ala. 743. 12. See 36 & 37 Vict. c. 66 § 24. And see cases collected, Ames Trust Cas. 242 note. 366 TRUSTS. [Chap, v voluntary appearance.^ Furthermore, not only may the cestui sue his trustee wherever he can get jurisdiction of him, he- must do so there if at all ; apart from statute, jurisdiction of the property alone is not enough. This frequently works a hardship on the cestui^ and in some jurisdictions there has been legislation giving to the equity court of the situs of the property the power to coniiscate in such cases the trustee's title and to vest it in a new trustee.* Such legislation is quite beneficial ; but it should be broad enough in its terms to include other than trust cases.* § 276. Direct and indirect remedies of cestui against third persons — laches of trustee. Where the trust property has been wrongfully in- terfered with by a third person so as to give rise to a common law action, it is the trustee and not the 1. This Is true generally as to the enforcement of equitable rights. See ante § 9. In Earl of Kildare v. Eustace (1686) 1 Vern. 405, 416, Ames Trust Cas. 244, the defendant was trustee for the plaintiff of land in Ireland; the defendant being In Eng- land, the plaintiff sued him in an English court. It was held that the court had jurisdiction, since the decree of a court of equity was in the nature of a command to the defendant and only affected the trust property through the carrying out of such command. 2. Fon example, if X should fraudulently induce the trustee and refuses to perform his trust duties. 3. In Felch v. Hooper (1875) 119 Mass. 52, Ames Trust Uas. 246, the suit was for specific performance of a contract to sell land located in Massachusetts, the defendant vendor b^ing a citizen of Maine. The court gave relief, holding that the case came within the provision of the Massachusetts statute "that when a person seised of an estate upon a trust express or implied, is out of the commonwealth, or not amenable to the process of any court therein having equity powers, this court shall have power to order a con- veyance to be made thereof in order to carry into effect the object of the trust, and may appoint some suitable person In place of the trustee to convey the same in such manner as it may require." 4. This would avoid the necessity of such a strained construc- tion as the court was compelled to make in Felch v. Hooper, supra. For the differences between a vendor and a trustee see ante § 264. § 276] TBusTS. S67 cestui who should bring the appropriate proceeding against the third person for such interference.' Sim- ilarly, if the wrong done to the trust property is of such a nature that the proper remedy against him is in equity, the proper person to bring the equity suit is the trustee.^ But tho the cestui as such has no direct remedy against the third person, yet if he is in posses- sion of the trust property, he may bring the proper remedy for a violation of such possession.* "Where the trust property consists of a chose in action, the trustee is the proper party to bring action to collect it. In Bailey v. New England Life Insurance Co.,* the defendant had agreed to pay to the insured, his executors, etc., "for the benefit of the widow, if any." The widow sued on the policy but the court gave judgment for the defendant because the action should have been brought by the executor.® 1. Lancaster v. Conn. Co. (1889) 92 Mo. 460, 5 S. W. 23 (in- jury to land); Chambers v. Mauldin (1842) 4 Ala. 477 (detinue for slaves); McRaeny v. Johnson (1849) 2 Fla. 520 (trespass for beating slave); Lincoln v. French (1881) 105 U. S. 614 {cestui fails in ejectment because of the outstanding title in the trustee). In Doe V. Pegge (1785) 1 Term Rep. 758 note (a), Ames Trust Cas. 252, Lord Mansfield gave relief to a plaintiff in an ejectment action tho the legal title was outstanding in a trustee; the judg- ment was necessarily conditional like an equity decree. The de- cision was no doubt Influenced by Lord Mansfield's training in the civil law of Scotland where the same courts administered both law and equity. His decision was soon afterward overruled; see Ames Trust Cas. 255 note. . ^ 2. For example, if X should fraudulently induce the trustee to convey trust land to him, the trustee would be the proper party to bring a bill for a reconveyance. 3. Cox V. Walker (1847) 26 Me. 504 (trespass to land); How- ard V. Snelling (1859) 28 Ga. 469 (trover for chattels). See Ames Trust Cas. 251 note; 19 Harv. Law Rev. 307. 4. (1873) 114 Mass. 177, Ames Trust Cas. 256. 5. If the promise had been to pay to the widow, the latter would not have been a cestui que trust but the beneficiary of a contract and entitled in most jurisdictions to recover in-special assumpsit. See ante § 258. §6S • i&usis. [Cliap. V Since the trustee is the proper party to sue for wrongs to the trust property and for -the collection of other claims due to the trust estate, it is. obviously his duty to do so. If he should refuse to perform this duty it is a breach of trust and the cestui' s remedy is to sue the trustee therefor and get a decree from a court of equity, commanding him to bring the" appro- priate action at law or suit in equity. If the third person is without the jurisdiction of the court where the cestui brings his bill against the trustee, the cestui may have the third person Joined with the trustee as a co-defendant and have both suits settled in one. The cestui cannot, however, sue the third person without joining the trustee, unless there is a good' excuse for not joining him — for example, being beyond the juris- diction of the court.® On the other hand, where the trustee is properly performing his duties by bringing t^ie action against the third person, it is not necessary that the cestui be made a party plaintiff.^ And if the trustee is barred by delay in bringing the suit, the cestui is also barred. In Wyeh V. East India Co.,* X had a claim against the defend- 6. See Morgan v. Kansas City Ry. Co. (1882) 15 Fed. Rep. 55, Ames Trust Cas. 258: "Lewis, being the trustee. ... is tlie proper party plaintiff in a suit of this character, and some good reason must appear of record why he does not sue as plaintiff; and in such case he must -be made defendant. .... The aver- ment as to the request to Lewis to bring suit ... Is not proved on the part of the plaintiff. It would be necessary to prove it even though Lewis were served, with process or appeared. It is not alleged in the bill that he is beyond the jurisdiction of the court nor is that fact proved." See also Anon. (1387) Bellewe's Cases 11, Ames Trust Cas. 264. There are a few bank collection cases where a depositor — who was in the position of a cestui — was allowed to recover directly against the so called sub-agent collecting 'bank; First Nat'l Bank v. First Nat'l Bank (1881) 76 Ind. 561. The explanation may lie in the fact that they are not recognized as trust cases. See ante § 256. 7. Carey v. Brown (1875) 92 U. S. 171, Ames Trust Cas. 260 (action on note.) 8. (1734) 3 P. Wms. 309, Ames Trust Cas. 271. § 277] ^ TRUSTS. 369 ant and died leaving as his heir the plaintiff who was an infant of tender years. A was appointed adminis- trator and as such was substantially in the position of a trustee for the plaintiff.' A failed to bring suit on the claim before the Statute of Limitations had run. The plaintiff within a short time after reaching major- ity brought suit ; but, it was held that since the trustee was barred the plaintiff was also barred^" and could not take advantage of the exception in the Statute of Limitations in respect to suits brought by obligees after reaching majority." § 277. Same— remedy of trustee against a confederate. In Wetmore v. Porter^ the plaintiff trustee in breach of his trust conveyed the trust property to the defendant, both intending to defraud the cestui. To a suit brought by the trustee to get back the trust prop- erty the defense set up was that the trustee himself was a wrongdoer and hence was not entitled to main- tain the suit. The court refused to sustain the defense holdijig that the trustee ^yas "entitled to his locus penitentiae and an opportunity to repair the wrong which he may have committed."^ This right of the trustee to repent and get back the trust property would be lost if before bringing 9. See ante § 263. 10. Conversely, if the trustee is an infant, he may take ad- vantage of the exception in the Statute of Limitations for the benefit of a trustee even tho the latter is sui juris; Clayton v. Rose (1882) 87 N. C. 106. But see post § 280. 11. The -rule is apparently not applied where the defense is estoppel instead of delay; Volmann v. Michel (1905) 96 N. Y. Supp. 309. See 19 Harv. Law Rev. 545, approving this on the ground that estoppel is in its nature equitable and hence should not defeat the cestui's prior equity. But see' 21 Harv. Law Rev. 52, 64, criticising Capell v. Winter (1907) 2 Ch. 376. 1. (1883) 92 N. Y. 76, Ames Trust Cas. 263. 2. Obviously the trustee has no right to get back the property except for the benefit of the cestui; if the cestui is willing to allow the trustee to act for him, the confederate can hardly object. Eq.— 24. 370 TEXTSTs. [Chap, v suit against his confederate the cestui should sue the trustee for the breach of trust or should himself sue the confederate to have a constructive trust declared of the property.* And this independent right of the cestui to proceed directly should not be prejudiced in any way by the fact that the trustee may repent and sue. For example, if the trustee has waited so long before suing that he is barred, it ought not to operate as a bar to the cestui's suit.* The rights of the con- federate can rise no higher than those of the trustee and the Statute of Limitations should not begin to run against the cestui till he has knowledge of the breach of trust.® § 278. Same — discharge of obligor by trustee and cestui— payments to trustee by obligor. Since the trustee is the proper party to sue for claims due to the triast estate it follows that he alone can give to the obligor a release which will be valid and effectual at common law.* If such a release is given in fraud of the cestui's rights, the latter is en- titled to enjoin the obligor against taking advantage^ of it, unless the obligor is a bona fide purchaser for value without notice.' 3. See post § 301-305. The cestui does not need here to sue through the trustee because whatever rights the confederate has have been derived from the trustee. 4. See 11 Col. Law Rev. 686, approving of such a decision in EUlott V. Landis Machine Co. (1911) 236 Mo. 546, 139 S. W. 356 aiid 12 Harv. L. Rev. 132 criticising a decision contra In WiUson V. Louisville Trust Co. (1898) 102 Ky. 522, 44 S. W. 121. 5. See ante § 263; and also see 9 Col. L. Rev. 89. 1. Gibson V. Winter (1833) 2 L. J. [N. S.] 130, Ames Trust Cas. 267, (release by trustee good answer to an action at law brought by the cestui in the name of the trustee). See also Parker v. Tenant (1561) Jenkins, Century Cas. 221, pi. 75, Ames Trust Cas. 266 (marriage of the obligor and cestui was held not to discharge the bond, tho it would have operated as a discharge if the cestui had been the obligee in the bond). 2. See Gibson v. Winter, supra; 11 Harv. L. Rev. 479. 3. See post § 301. §^ 278] TRUSTS. ' 371 A release by the cestui, tho no bar at common law, will be effectual in equity if the cestui was sui juris. In jurisdictions where law and equity are administered in separate courts* the obligor will take advantage of such a release by getting an injunction against the trustee's bringing or further pressing his common law action on the claim. Such an injunction is given in order to avoid circuity of action; that is, if the trustee were allowed to recover against the obligor, it would be the former's duty to pay the amount of recovery over to the cestui; the latter having released the ob- ligor would be bound to refund to him the amount so received; as a consequence the parties would be in substantially the same position as when they started. In order to avoid this useless circuity equity enjoins the first suit." As already pointed out,* it is safe for an obligor to pay a trustee unless he knows or has reason to suspect that the trustee is about to commit a breach of trust.'' There was formerly an exception to this rule which required that a purchaser of trust property from a trustee with power to sell Should see that the pur- chase money was properly applied by the trustee for 4. In other jurisdictions the defense is in the nature of an equitable plea at law. 5. A difficult question arises where T, the trustee of a non- negotiable claim against O assigns the claim to A who takes with- out notice of the trust and then pays C the cestui, neither knowing of the assignment. If there were no trust involved a payment to the assignor without notice of the assignment would be good against the assignee, so that if O had paid T it would have been a good defense. On the other hand, if there had been jxo as- signment involved, a payment by to C would be a good equitable defense. In the case supposed, should A be allowed to compel to pay again? Seymour v. Smith (1889) 114 N. Y. 481, 21 N. E. 1042 (assignment of a judgment by T) held that must pay but the opinion is unsatisfactory in that it assumes that A got legal title Tc the judgment. Of course, if legal title passed A's legal right should prevail over O's merely equitable defense. 6. See ante § 261. 7. American Nat. B'k. v. Fidelity etc. Co. (1907) 129 (3a. 126, 372 TBusTs. [Chap, v the benefit of the cestui.^ This proved so inconven- ient in practice that it has apparently been phanged everywhere by statute or decision. § 279. Remedies of third person against trustee and cestui— set-off. Suits, whether at law or in equity, brought by a third person with respect to the trust property are , properly brought against the trustee alone.* For ex- ample, unless the taxing statutes provide otherwise, the trustee and not the cestm is personally liable for the taxes on the trust property; and in case of per- sonal property,^ it is usually taxable at the domicile of the trustee, not of the oestui,^ and the trustee is also liable for the damage caused to a third person by a nuisance on trust land.* In entering into contracts with third persons in the performance of his duties as trustee he may by 'express stipulation, however, limit his liability to the amount of trust funds in bis hands. ^ The right of the trustee to indemnity and exoneration against the trust estate will be discussed later.^ At the early common law if A sued B on one cause of action and B had another cause of action against A, 58 S. B 867 (bank paid out trust funds to the trustee knowing that the trustee was committing a breach of trust by improper with- drawal of the funds). See 8 Col. Law Rev. 54 and 10 id. 162. 8. Lewin, Trusts, 9th ed. 502. 1. Kerrlson v. Stewart (1876) 93 U. S. 155, Ames Trust Cas. 261 note. Where the suit is to foreclose a mortgage on the trust property some cases have held that the cestui should be made a co-defendant in order that he shall be given every opportunity to protect his interests and prevent a foreclosure; Mavrich v. Grier (1867) 3 Nev. 52. 2. Latrobe v. Baltimore (1862) 19 Md. 13, Ames Trust Cas. 278. 3. See 6 Col. Law Rev. 127; Perry, Trusts § 331. 4. Schwab v. Cleveland (1882) 28 Hun 458, Ames Trust Cas. 280. See 11 Harv. Law Rev. 420. 5. Shoe and Leather National Bk. v. Dix (1877) 123 Mass. 148, 25 Harv. Law Rev. 482. 6. See post § 315. § 279] TRUSTS. 373 B could not use this in any way as a defense but was compelled to bring a separate suit. In order to remedy this inconvenience statutes have been passed in most, if not all, jurisdictions, allowing B in such a case to set off his claim against A's claim'' and thus settle both cases in the one litigation. Where a trustee of a cause of action sues thereon the obligor may set off against it a claim which he has against, the trustee, because set-off statutes have -been construed to apply to parties to the record and not to the real parties in in- terest who are ultimately to be benefitted.* Equity, however, protects the interest of the cestui by giving the cestui an injunction against the obligor's relying on. such a set-off unless at the time that he became bound to the trustee he was ignorant of the trust.® If the obligor's claim had been one against the cestui instead of against the trustee, he could not have set-off at common law because the cestui is not a party to the record.^" But in equity the obligor is usually allowed to take advantage of such a claim, by what is known as equitable set off.^^ 7. There has heen a tendency in set off statutes to limit their operation to claims for liquidated amounts. But In the meantime the common law courts without statute have allowed the defendant to counterclaim for an unliquidated amount arising out of the same transaction as the original claim, or to use such a claim by way of recoupment of damages in order to reduce the amount of the plaintiff's recovery. 8. Forster v. WHson (1843) 12 M. & W. 191, 203. 9. Nat'l Bk. V. Ins. Co. (1881) 104 U. S. 54. Compare the doctrine of Bona ''Se purchaser for value without notice, post i_301. 10. Wake v. Tinkler (1812) 16 East 36. 11. Wright V. Cobleigh (1851) 23 N. H. 32. Quaere as to whether an obligor, who did not know of the trust at the time he became bound to the trustee, may have equitable set off again the cestui in addition to having set off against the trustee. The set off statutes above referred to are merely the' procedural statutes, which were passed to limit the number of actions and not the set off statutes dealing with insolvency or bankruptcy of the parties; Forster v. Wilson, supra. 374 TEusTs. [Chap, v § 280. Is the cestui's substantive right in personam or in rem? It is clear that from the standpoint of procedure the right of the cestui is that of a claimant against the trustee. It is not, however, a mere right in personarh, such as the right of an ordinary creditor against his debtor but a right in personam ad rem; i. e.,- a right to compel the truste;e to account for specific property and to hold it for tte cestui's benefit. Since substan- tive rights are derived from procedural rights, it has been the orthodox view to- regard the cestui's substan- tive right as also in personam — a confidence imposed ■ in the trustee and not an interest in the trust property.^ Within the last century— partly due to the extensive merging of law and equity procedure— there has grown up a tendency to regard the cestin as having an interest in the property itself good against everyone but a bona fide purchaser of the legal title.^ The square adoption of this view rather than the other would lead to a different result in three classes of cases: (1) A cestui would not be bound by the laches of his trustee in fail- ing to collect a chose in action belonging to the trust estate.^ (2)- A cestui would be protected against a bona fide purchaser for value of the cestui's equitable 1. See 18 Harv. Law Rev. 53. 2. See 28 Harv. Law. Rev. 507; Willoughby, The Legal Es- tate, chapter 1, reviewed by Professor Pound in 26 Harv. Law Rev. 463; Huston, the Enforcement of Decrees in Equity, 87-154. Ac- cording to this view the trustee is treated as an agent with the power to cut off the right of the cestui que trust by a transfer to a bona fide purchaser for value without notice. The analogies usually cited are the sale of chattels in England in market overt and the cutting off of an unregistered legal title by a conveyance and registry under the American registry system. 3. See ante § 276; 28 Harv. Law Rev. 510, note 24. Similarly, a disseisor in whose favor the Statute of Limitations has run against a trustee might, on the in rem theory, still be liable to a cestui who is not yet barred by the statute because of a disability, like infancy. See post § 309. § 281] TEUSTS. 375 interest.* (3) In case of successive assignments by a cestui the first assignee would be protected regardless of notice.® E. Resulting and Constettctive Trusts. § 281. Distinction between resulting and constructive trusts. The distinction between resulting and constructive trusts^ is frequently i*ot of great practical importance.^ But there are at least two differences worth noting. Since a constructive trust is imposed without regard to the intentions of the parties, as a specific remedy for a wrong done or threatened, it is obvious that no stat- ute of frauds or registry act would ever be construed as applying to them because they are in their nature in- capable of having a written memorandum of their crea- tion or of being recorded.^ On the other hand, resulting trusts — especially thpbe which are based upon the actual and not merely upon the presumed intent of the parties — ^might reasonaljly be required by statute to have a memorandum or to be recorded.* Another point of difference arises in the field of conflict of laws. Whether a resulting trust arises in a particular case depends properly upon the law of the 4. See post § 304. See also Brown v. Fletcher (1914) 235 U. S. (interest of cestui not a chose In action within the meaning of a statute fixing jurisdiction. "The beneficiary here had an Interest in and to the property that was more than a bare right and much more than a chose In action.") 5. See post § 306. 1. For a logical classification of trusts according to substance, 3ce ante § 250. 2. This is probably the reason for the loose and indefinite use of the terms. 3. See 12 Harv. Law Rev. 64 criticising Robertson v. Rentz (1898) 71 Minn. 489, 74 N. W. 138. 4. See 7 Harv. Law Rev. ,379 discussing Gunnison v. Erie Dime Savings Bank (1893) 157 Pa. 303, 27 Atl. 747. 376 TRUSTS. [Chap, v jurisdiction where the property is situated, regardless of where the parties live or where the transaction took place or where the suit was brought.^ On the 'other hand, whether a constructive trust will / be declared will depend entirely upon the place where the remedy is sought® — that is, where suit is brought— and nothing will turn upon the location of the property. 1. Purchase money resulting trusts, § 282. Origin of the rule. ^ During the century prior to the passing of the Statute of Uses, most of the land in England was held in use.^ It was natural, therefore, for a purchaser of land to have the title conveyed to some one to hold for the use of the purchaser; and so general was this 5. In Acker v. Priest (1894) 92 Iowa 610, 61 N. W. 235, A had conveyed Kansas land to his son-in-law, X, at the request of X's wife, Y; X later sold the land and Invested the proceeds In Iowa land. The law of Kansas did not recognize the doctrine of resulting trusts, while the law of Iowa did. It was held that sines the trust must have arisen. If at all, with respect to the Kansas land, the Kansas law governed and hence there was no resulting trust to Y, tho suit was brought in Iowa. See 17~Harv. L. Rev. ;23. 570. 6. Where a court of State A declares a constructive trust of land in State B in a case where by the law of State " B no such constructive trust would be imposed, no interest in the foreign land will arise till the transfer is made according to the decree. In Lord Cranstown v. Johnston (1796) 3 Ves. 170 the defendant committed a tort on the plaintiff by having the plaintiff's land in the island of St. Christopher sold without notice to the plaintiff, the defendant bidding it in at the sale. The English court having jurisdiction of the defendant decreed that the defendant should hold the land as constructive trustee for the plaintiff, according to the remedy given by English law. Title having passed by the law of St. Christopher not subject to an equity, the plaintiff will get, no interest in the land till the defendant conveys to him in accordance with the command of the English court. See .20 Harv. Law Rev. SS4. • 1. See ante § 246. ,§ 283] TRUSTS. 377 practice that even if the use were not expressed at the time of the conveyance, there was a presumption that such a conveyance was for the use of the one who furnished the purchase money. When the Statute of Uses was passed, it executed these uses^ and thus de- stroyed them as intereS/ts separated from the legal title.' Later, when the niodern passive trust arose/ the same presumption was applied ® to passive trusts which had been applied to uses, though in the meantime the con- veyaiicing customs had changed and it was not the usual thing for land to be held in trust; hence the only argument for the modern presumption is that a' purchaser is more likely to intend' the stranger to hold in trust for him than he is to make the stranger a gift.* § 283. Extent ajid limitations of the rule. In order that a resulting trust may arise, the pur- chase money must be furnished not later than the time of the conveyance;^ if it is furnished later, the rule as to express trusts applies and there must not only be affirmative proof of intent to create a trust but if the property is land^ there must be a memorandum in writing to satisfy the Statute of Frauds. This require- ment is satisfied if the person seeking to have the trust declared binds himself to pay the purchase money; the 2. See c.niti § 247. 3. Tiffany, Real Property § 88. ' 1. See ante § 248. 5. Where the conveyance was taken in the name of a stranger — 1. e. a 'person not dependent upon the purchaser. 6. Whether this is a sufficiently strong probability upon which to base a presumption, quaere. See post § 286. 1. .Tacksonville Nat'l B'k v. Eeesley (1895) 159 111. 120, i'^ N. E. 164 (arrangement whereby the plaintiff was to become part ownei of land bought by the defendant if she could dispose of her land). 2. The rule as to purchase money resulting trusts applies to personal property also; Briggs v. Sanford (1914) 219 Mass. 572, 107 N. B. 436. 378 TRUSTS. [Chap, v later payment of the purchase money which he is obli- gated to pay is not a later furnishing of the purchase m-oney.^ Hence if A borrows from B the money where- with to buy the land and has the land conveyed to B, there is a presumption of a resulting trust /of the equity of redemption, B being entitled to hold the land merely as .security for the repayment of the loan.'* It is well settled that if A furnishes an aliquot share of the purchase money — such as one half, one third, etc. — and title is taken in the name of B who furnishes the rest, there is the presumption of a result- ing trust as to a, proportional undivided interest in the property. Thei^e has been an odd tendency, however, to limit the application of the rule to cases where an aliquot share^ has been furnished.* The better view is that the rule should apply where any definite frac- tional part has been furnished.'' Since a purchase money resulting trust is one that "results from the fact that one man's money has been 3. See 1 Harv. Law Rev. 185-190, Subsequent Payments under Resulting Trusts, by C. E. Grinnell. 4. McDonough v. O'Niel (1873) 113 Mass. 92. While tne bur- den of proving that no trust was intended is upon the grantee, the latter does not have the burden of showing that the plaintiff did not really furnish the purchase money; Phillips v. Phillips (1913) 81 N. J. Eq. 459, 86 Atl. 949 (grantee introduced evidence to show that the money was loaned to her to buy for herself.) 5. In McGowan v. McGowan (1859) 14 Gray ,119 the _ court said it should be either an aliquot share "or for a particular in- terest, as a' life estate, or tenancy for years or remainder, in the whole." The court does not explain what fractional part would be necessary to be paid for the various Interests named. It wouia seem that such a result could only be reached by an express ar- rangement and that the law of resulting trusts is inapplicable. 6. In Skehlll v. Abbott (1903) 184 Mass. 145, 68 N. E. 37 the rule laid down in McGowan v. McGowan supra, was relaxed so as to declare a resulting trust of two-fifths. 7. Currence v. Ward (1897) 43 W. Va. 367, 27 S. E. 329. In Becker v. Vining (1849) 30 Me. 121, 127, where the shares were undefined the court refused to declare a resulting trust, but in Enwards v. Edwards (1861) 39 Pa. St. 369 the court presumed the shares to be equal. See 18 Harv. Law Rev. 573. § 284] TRUSTS. 379 invested in land and the title taken in the name of another" it is not necessary that the grantee have any knowledge of the transaction;* and not only is.it therefore unnecessary that there be any promise on his part to hold in trust,® but evidence of an oral promise by him would seem to be admissible only if an attempt were made to show that a gift was intended, and then only to show intent and not for the purpose of en- forcing the promise. The fact that the grantee did make such an oral promise should not prevent the trust from arising.^" If A buys land and has the conveyance made to B in order to defraud A's creditors, A is prevented by the fraud from taking advantage of any resulting trust.^^ This does not, however, bar the creditors of A from having a resulting trust declared for themselves to the extent of their claims against A.*^ § 284. Rebutting the presumption — conveyance to a ^ dependent. Where the conveyance is taken in the name of one not dependent, the presumption of a resulting trust 8. Froemke v. Marks (1913) 259 m. 146, 102 N. B. 192. If the grantee disclaims, the title will revert to the grantor subject to the resulting trust in favor of the purchaser. 9. See 10 jHarv. Law Rev. 192 criticising Nashville Trust Co. V. Lansom'g Heirs (1896) 36 S. W. 977 (Tenn. Ch. App.). 10. Long V. Mechem (1904) 142 Ala. 405, 38 So. 262. 11. Demaree v. Driskell (1832) 3 Blackf. 115. In Miller v. Davis (1872) 50 Mo. 572, X had entered forty acres of public land in the name of his Infant son because he was not entitled to enter the tract in his own name. The court held that no trust resulted because the entry was against public policy. Apparently the son may keep unless the United States should proceed to avoid the TRUSTS. [Chap, v the payment of his dehts, is void.' Oft this point equity- has followed the law where the cestui' s interest is in fee.* Where the cestui' s interest is only for life, there is a conflict of authority. In England" and in a minority of states in this country* the same rule is applied as in case of legal estates and of equitable . estates in fee; but in perhaps the majority of juris- dictions in this country where the question has been raised, such a provision with reference to equitable life estates has been held valid.'' The arguments in favor of such a decision are, briefly, that the creator of the trust ought to be allowed to do what he pleases with his own property,® and that it ought to be possible to Alienation §§ 31-45; 24 Harv. Law Rev. 584. If the attempted re- straint Is unqualified as to persons the weight ot authority holds It void, tho It is limited as to time; Potter v. Couch (1890) 141 U. S. 296, 315; contra Prazier v. Combs (1910) 140 Ky. 77, 130 S. W. 812; 24 Harv. Law Rev. 245. 3. There is no objection, however, to granting an estate to A for life or until he should attempt to alienate It or should become bankrupt, and then over to B; for In such a case as soon as he should attempt to convey or should become bankrupt, his life estate would come to an end, and the creditors or transferees of A would get nothing because- there would be nothing left; Gray, Restraints on Alienation § 78. 4. Gray, Restraints on Alienation § 105. It is true that equity upheld provisions which prevented the alienation of equitable fees for the separate use of married women; but In such a case the only power to alien which the married woman had was given by equity courts because such separate estates were entirely the product Of chancery; hence there could be no objection to equity upholding a provison taking away the power of transfer; Gray, Restraints on Alienation § 275. Whether such a provision is valid in a conveyance made by the married woman herself see Gray, Restraints on Alienation § 277a; 12 Harv. Law Rev. 53. .- 5. Brandon v. Robinson (1811) 18 Vesey 429, Ames Trust Gas. 394. 6. Gray, Restraints on Alienation § 178; Tilllnghast v. Bradford (1858) 5 R. I. 205. 7. Bl'oadway Bank v. Adams (1882) 133 Mass. 170. 8. Broadway Bank v. Adams, supra: "The founder of the trust was the absolute owner of his property. He had the entire right to dispose ot it, either by an absolute gift to his brother, or by a gift ^ 315] ■ TRUSTS. 423 protect spendthrifts — i. e. persons who, tho sane, are incompetent to take care of their property — in much the same way as it is possible to protect' married women and infants.* In some jurisdictions the matter is now regulated by statute, limiting the amount of property that may thus be placed beyond the reach of. creditors to a reasonable provision for their education and sup- port.*" In no jurisdiction may the owner of property makp such a settlement upon himself.**' Where the trust instrument provides that the trustee shall have an uncontrolled discretion in applying the income for the maintenance of the life cestui, the latter has no present vested interest in the property and there is nothing which the creditors can reach. *^ VI. By act of creditors. § 315. Creditors of the trustee. Since the trustee has the legal title to the trust with such restrictions and limitations, not repugnant to law, as he saw fit to Impose . . . The power of alienation in advance is not a necessary attribute or incident of such an estate or interest, so that fixe restraint of such alienation would introduce repugnant or inconsistent elements." For an answer to this, see Gray, Restrainta on Alienation §§ 257, 259: "If equitable estates are to be distinguished from legal estates, why confine the difference to etjuitable life estates? A testator may give such rights ot property as he pleases, provided they are rights which the law sanctions; but inalienable rights of property the law has never sanctioned, for they are inconsistent with the ready transfer of property which is essential to the well being of a civilized community, and especially of el commercial republic." See 11 Col. Law Rev. 765, 766. 9. See 11 Col. Law Rev. 767. 10. Gray, Restraints on Alienation §§ 280-296. 11. Gray, Restraints on Alienation §§ 90-100, 23 Harv. Law Rev. 649. Nor may he settle the property upon himself until bankruptcy and then over;|' Gray, Restraints on Alienation §§ 91-96. 12. In re Bullock (1891) L. J. R. 341. Ames T'rust Gas. 401; Gray, Restraints on Alienation § 167, 167f. As to the rights of the assignee of such a cestui, see ante § 100, Gray-, Restraints on Alienation § 167j. See also 6 Col. Law Rev. 348, 368. 424 TRUSTS. [Chap, v property, it is liable at common law for all his debts/ whether incurred in the management of the trust property^ or not, and the creditors may levy thereon and have it sold on execution. But unless the trustee has some beneficial interest in the property equity will usually,^ at the suit of the cestui* enjoin the creditors^ from levying thereon. If no injunction is asked and the property is sold to a bona fide purchaser for value at the execution sale,® the cestui' s equity is of course CUt'Off.^ If the creditors' claim against the trustee is for property or services of which the trust estate has re- ceived the benefit, and the trustee is non-resident or insolvent, it is clear that there should be some way of making the trust property liable. There are "two possible plans upon either of which the creditors should be allowed to proceed: (1) He should be allowed to levy upon the trust property and then defeat the cestui' s suit for an injunction by showing that the trust estate has received the benefit of the creditor's property or services and that therefore the cestui is not justly en- 1. Stith V. LookabiU (1874) 71 N. C. 25, Ames Trust Cas. 40(i. But see Baker v. Copentarger (1853) 15 111. 103. ' > 2. That the burdens incident to the management of the trust estate fall upon the trustee, see § 279. 3. The reason for this modification is given infra. 4. If the cestui does not object, no one else can; Stith v. Lookabill, supra. 5. A creditor is not a Tjona fide purchaser for value because he does not get title and pays no value; Whitworth v. Gaugain (1844) 3 Hare 416, Ames Trust Cas. 408; see ante § 301. 6. . According to the better view a judgment creditor who buys at the sale is as much entitled to the protection of the doctrine of tona fide purchase for value as is a stranger; see ante § 301; and see 7 Harv. Law Rev. 125. 7. If a debtor assigns his property in trust to pay debts the creditors are cestuis of this trust and may enforce it by what is usually called a creditor's bill; see post § 455. In England, however, such a transfer is treated as being merely for the convenience of the debtor and the creditors are not entitled to proceed in equity; see Worrall V. Harford (1802) 8 Ves. 4, Ames Trust Cas. 415. § 316] TRUST^. 425 titled to the injunction. (2) He should be allowed to reach, by equitable execution, the claim which the trustee has for exoneration against having to pay out of his own pocket the expenses properly incurred in the management of the trust estate.* The chief advantage of (1) is that the creditor would not take subject to claims in favor of the trust estate against the trustee.* Another advantage is that it throws upon the cestui the burden of initiating the equity proceeding. In England no recovery is allowed to a creditor against the trust estate unless the trust is one to carry on a trade, ex- pressly provided for in the trust instrument." § 316. Creditors of the cestui. Since the cestui' s interest from the standpoint of procedure was only a chose in action against the trustee,' it could not be reached by an ordinary common law levy any more than could a legal chose in action;^ apart from statute a sheriff could sell only tangible property, possession of which could be delivered over to 8. This was the hasls for allowing recovery in Norton v. Phelps (1877) 54 Miss. 567; Ames Trust Cas. 420; 15 Am. Law Rev. 449. 9. In Manderson's Appeal (1886) 113 Pa. 631, 6 Atl. 893, the creditor was allowed to recover tho the trustee was a defaulter to the trust estate. In In re Johnson (1850) 15 Ch. D. 548, Ames Trust Cas. 426 the creditor was barred because the trustee was In default. For a very thorough discussion of the whole subject see 28 Harv. Law Rev. 725-741, Liabilities in the Administration of Trusts, by Austin W. Scott. See also 2 Col. Law Rev. 344. 10. Upon this basis, recovery was allowed in Fairland v. Percy (1875) 3 Prob. & Div. 217, Ames Trust Cas. 423; but denied in Strick- land V. Symons (1884) 26 Ch. D. 245, Ames Trust Cas. 418. 1. See ante § 280. 2. Scott V. Scholey (1807) 8 East 467, Ames Trust Cas. 441 (equitable interest in term for years). In Dundas v.. Dutens (1790) 2 Bail & Beatty 233, Ames Trust Cas. 443 the creditor sought by equitable execution to reach shares of stock held in trust for the benefit of his debtor. Relief was denied because at that time the stock itself was not subject to either common law or equitable execu- tion. In practically all jurisdictions shares may now tie reached by 426 TRUSTS. "^ [Chap, v the purchaser.^ To remedy this defect in common law procedure equity allows a creditor who can not get satisfaction through common law execution* to *file a bill against his debtor asking that enough of the latter 's intangible property be assigned to the plaintiff to pay the plaintiff's claim; the creditor can then collect the chose in action as the assignee of the debtor. If the obligor of the chose in action sought to be reached happens to b^ within the jurisdictioh of the court, he may be joined as a co-defendant and then settle the whole matter in the one equity suit. Such a bill is called a creditor's bill for equitable execution'' and enables a creditor to reach both legal and equitable choses in action. Hence if a creditor of a cestui is unable to get complete satisfaction at law out of tangible property of the cestui, he may file a bill in equity asking that the cestui's trust interest be subjected to the payment of his claim. By statute in some juris- dictions equitable interests in land have been subjected to common law ^execution.* Where the statute does not apply, however, the creditor may still fall back upon his equitable remedy .'' At common law creditors who levied upon the property of an _ insolvent debtor, were entitled to preference according to the time of their respective levies ; it was a race of diligence.* Equity here follows the law with respect to creditors' attempting to reach creditors and the fact that they are held in trust makes only the dif- ference that a double assignment may be necessary: of the cestui's claim against the trustee and of the trustee's claim (shares) against the corporation. 3. A' patent right is another example of intangible property not subject to common law execution. See 23 Harv. Law Rev. 150. 4. Tlie creditor must either show that his judgment at law was returned unsatisfied or that it was obviously futile to get a judgment or levy execution. 5. See post §• 455. 6. See Statute 29 Chas. II, Chap. 3. §§ 10 & 11. 7. Kirkby v. Dillon (1824) Cooper 504, Ames Trust Cas. 439. 8. Rockhill V. Hanna (1853) 15 How. 189. ■^ '317] TRUSTS. 427 the debtor's equitable interest by giving preference according to the time of filing their respective bills in equity® for equitable execution.^" Where a valid spendthrift trust has been created or a trust for the separate use of a married woman, the creditors cannot get equitable execution against such interests.^* G. Extinguishment of a Trust. § 317. Methods of extinguishment. A trust may be completely extinguished in any one of four ways: v (1) By revocation, where by the terms of the creation of the trust a power to revoke has been re- served.' In the absence of such a reservation the 9. Freedman's Co. v. Barle (1883) lid U. S. 710, Ames Trust Cas. 436. In England, tho real estate wa^ not subject to the payment of debts one could biHd his land by giving a bogid naming his heir; in such case the heir was bound to the extent of the value of property received from the ancestor. Equity here also followed the law by allowing the ancestor to bind equitable Interests in land by such a bond; see Lord Grey v. Colville (1678). 2 Rep. in Chancery 143, Ames Trust Cas. 433; Bennett v. Box (1603) 1 Ch. Cas. 12.. 10. Where a decedent who owned property which was not at law subject to 'the payment of his debts, directed in his will that such property be applied to the payment of his- debts, the maxim that equality was equity was applied so as to make all the creditors share ratably without priorities. Since the right of such creditors existed only in equity, such assets were called "equitable assets," without regard to whether the property Involved was legal or equitable prop- erty. On the other hand, property which was subject to the pay- ment of debts at common law were called "legal assets" even, tho the Interests were equitable, such as a trust or equity of redemption; see Creditors of Sir Charles Cox (1734) 3 Peere Wms. 341, Ames Trust Cas. 438, overruled by Sharpe v. Scarborough (1799) 4 Ves. 538. In this country land is everywhere made subject to the payment of debts by statute so that the distinction between legal and equitable assets Is of no consequence. 11. See ante § 314. X, Dlclcerson's Appeal (1886) 115 Pa. 198, 8 Atl. 64, 428 TEusTs. [Chap, v creator of the trust cannot, ordinarily,^ put an end to the trust^ unless he can show fraud or mistake.* In several jurisdictions if the creator of the trust received no consideration there is a presumption^ that the reser- vation of a j)ower of revocation was omitted by mistake. (2) By merger of the equitable interest into the legal title. This may happen: (a) by transfer of the legal title from the trustee to the cestui; (b) by release of the equitable interest by the cestui or cestuis^ — ^if sui juris — to the trustee; (c) by the cestui inheriting the legal title from the trustee^ or by the trustee inheriting the equitable interest from the cestui. (3) In some jurisdictions, by statute, where the purposes of the trust have been accomplished and the trust becomes a dry or passive trust, the title of the 2. In New York and Massachusetts, however, and perhaps a few other states, a deposit of money in a savings bank by A in trust for B is revocable by A during his life time. This anomalous doctrine was based upon the fact that many such deposita were made merely in order to evade some'rule of the bank and not to benefit B. For a discussion of these "tentative trusts" see 9 Col. Law Rev. 70, 77; 6 id. 57; 11 id. 692; 13 Harv. Law Rev. 63: 18 id. 70. 3. Gray v. Union Trust Co. (1915) 171 Gal. 637, 154 Pac. 30G, discussed in 4 Cal. Law Rev. 354-356; N. J. Trust Co. v. Parker (1915) 84 N. J. Eq. 351, -93 Atl. 196. Of course if the creator of the trust becomes the sole cestui he may put an end to the trust by getting a conveyance from the trustee. 4. As to equitable relief against fraud and mistake, see post Ch. VI and VII. 5. See Garnsey v. Mundy (1873) 24 N. J. Bq. 243; 10 Harv. Law Rev. 443; 63 U. of Pa. Law Rev. 816. But see'Keyes v. Carleton (1886) 141 Mass. 45, 6 N. B. 524. 6. No merger results merely because the trustee is one of sev- eral cestuis: Rankine v. Metzger (1902) 69 N. Y. App. Div. 264; or merely because the cestui is one of several trustees; Robertson v. De Brulatos (1907) 188 N. Y. 301. See 10 Col. Law Rev. 488. Nor is there any merger of any part of an equitable fee into a legal life estate or of an equitable life estate into a legal fee; In re Moore's Estate (1901) 198 Pa. St. 611, 48 Atl. 884; 29 Harv. Law Rev. 345. 7. In Goodright v. Wells (1780) 2 Douglas 771, Ames Trust Cas. 447, S had contracted to buy some land and had paid for it but died before a conveyance, having devised it to his wife in trust for his son. After S's death the widow received the conveyance and died -^ 318] TRUSTS. 429 trustee is passe^ by operation of law to the cestui.^ , (4) By accidental destruction of the entire trust property. If the trustee is responsible for the destruction or dissipation of the trust property there is not a complete extinguishment of the trust^ because the obligation of the trustee still remains. On the' other hand, putting an end to the obligation of the tfustee^" is not an extinguishment of the trust as long as the trust property remains. H. Duties of a Trustee. I. As to conveyance of the trust property. § 318. The general rule. If the cestui is sui juris the trustee inust ordinarily convey the trust estate at his direction^ — either to the leaving the son as her heir. At the death of the son without issue the question was raised as to whether his paternal or maternal heirs were entitled. The latter were successful, because altho the son had received the equitable interest as purchaser- — i. e. not by descent — from the father, he received the legal title by descent from the mother and the equitable interest was at once merged in the legal title; the last purchaser of the' legal title being the mother, the maternal heirs were entitled. 8. This amounts substantially to a reenactment of the Statute of Uses, but with reference to passive trusts. 9. In such a case the cestui will ordinarily be compelled to come in as an ordinary claimant against ' the trustee's estate if the latter is insolvent. See ante § 297. 10. For sufficient cause, such as illness or removal from the jurisdiction or by consent of parties, a trusteer'may be relieved from the performance of his trust duties; even tho no trustee was appointed by the creator of the trust, the trust comes into existence, the appro- priate court of- equity appointing trustees to carry out the trust. ' 1. If he wrongfully refuses and the cestui is compelled to sue for a conveyance, the trustee will be liable for the costs of the suit; Watts V. Turner (1830) 1 Russell & IVJylne 634, Ames Trust Cas. 453. If the trustee was doubtful about his duty to convey he' should have 430 TRUSTS. [Chap, v cestui himself* or to a third party. If there are several cestuis, however, they must all concur in order to be entitled to a conveyance ; the trustee is not bound to con- vey less than the entire property.* If some of the cestuis have conveyed their trust interests in trust for another of the cestuis, it is apparently not necessary that such sub-trustee be joined in a suit by the cestuis against the trustee holding the legal title.* "Where the instrument creating the trust directs the trustee to convert the money into land or the land into money, the cestui or cestuis, if sui juris ' may object to the proposed conversion and compel the trustee to convey. the property in its original form.® This is called the doctrine of iequitable reconversion.* Where the donee of a power to appoint the trust interest in property apjpoints such property to trustees for the ultimate beneficiaries, the question arises as to which set of trustees is entitled to the title and control of the property. There seems to be no fixed rule on the I applied to the proper equity court for instructions; see 8 Col. Law Rev. 671. 2. In Onslow v. Wallis (1849) 1 Hall & TVell 513, Ames Trust Cas. 462, S had conveyed certain land to the defendant in trust for Louisa S; the latter died, having devised all her lands to the plain- tiffs upon trust to sell and pay certain debts and legacies given by her in a certain memorandum marked "A." This memorandum could not be found. It was held that the plaintiffs were entitled to hold the residue beneiicially, if the Inemorandum should never be found. See ante § 308. 3. In Goodson v. Ellison (1827) 3 'Russel 583, Ames Trust Cas. 451, the defendant was trustee for eight cestuis, one of whom trans- ferred his interest to the plaintiff who asked for a conveyance«of the legal title to one eighth of the property. The court refused, saying: "Has not a trustee a right to say 'If you mean to divest me of my trust, divest me of it altogether and then make your conveyances as you think proper'?" See also Russell v. Grinnell (1870) 105 Mass. 425: an equitable lif^ tenant is not entitled to conveyance of legal life estate. 4. Head v. Lord Teynham (1783) 1 Cox 57, Ames Trust Cas. 450 5. Re Browne's Will (1859) 27 Beav. 324, Ames Trust Cas. 458. 6. See post § 449. ^ 319] TRUSTS. 431 subject, but the extent of the power is probably an im- portant element in guiding tbe court's discretion J § 319. Provision postponing cestui 's right to a con- veyance. Though ordinarily a sole cestui is entitled to a con- veyance of the trust estate as soon as he becomes sui juris,^ a provision in the trust instrument that the corpus of the estate shall not be transferred to the cestui till some time after reaching majority has been held valid in a few jurisdictions.^ Altho^the purpose of such a provision is similar to the purpose of creating a spendthrift trust — namely, to prevent persons of slight business ability froip wasting the property^ — it is to be noted that the mere postponement of control does not 7. In Re Phllbrick's Settlement (1865) 34 L. J. Ch. 368, Ames Trust Cas. 459, where the court directed a conveyance to the new trustees, the donee had a general power of appointment by will; while In Busk v. Aldam (1874) 19 Eq. 16, Ames Trust Cas. 460 where the old trustees were left In control, the power 'was merely a special power to appoint among the donee's children. 1. See ante J 317. 2. The leading case holding such a provision valid Is Claflin v. Claflin (1889) 149 Mass. 19, 20 N. E. 454, Ames Trust Cas. 455. Gray, Restraints on Alienation § 124, 1241. See also Wagner v. Wagner (1910) 244 111. 101, 91 N. E. 66; 5 HI. Law Rev. 3).8. In Eng- land, however, and the great majority of American jurisdictions such a provision is held invalid; Saunders v. Vautier (1841) 4 Beav. 115, Ames Trust Cas. 454\ See 24 Harv. Law Rev. 224. 3. In Claflin v. Claflin supra, the court refers to the fapt that Massachusetts had already refused to follow the English courts by holding spendthrift trusts valid and continue^: "And we are unable to see that the directions of the testator to the trustees to pay the money to the plaintiff when he reaches the age of twenty-five and thirty years, and not before, are against public policy, or are so far inconsistent with the rights of property given to the plaintiff that they should not be carried into effect. It cannot be said that these restrictions upon the plaintiff's possession and control of the property are altogether useless, for there is not the same danger that he will spend the property while It is in the hands of the trustees as there would be if It were In his own." \ 432 TRUSTS. [Chap, v make the property inalienable.* It has been urged that there should be some limit to the length of time that such a postponement will be allowed to continue, but the point is not yet settled;^ and the whole doctrine has been severely criticised,® upon much the same ground as are spendthrift trusts.''' 7/. As to possession, information and custody. § 320. Right of life cestui to possession. The cestui for life has obviously no right to call upon the trustee of the fee for a conveyance of a legal life estate.^ Nor has he any right to demand ■ / 4. Claflin v. Claflln supra; 24 Harv. Law Rev. 224. But see Boston Safe Deposit & Trust Co. v. Collier (1915) 222 Mass. 390, 111 N. B. 163, criticized in 29 Harv. Law Rev. 557. In that case the testator had devised property to trustees to pay the income to his son for life and thereafter to his son's children till the eldest should reach forty* at which tipie the property was to be divided equally among them. There was also a spendthrift trust pr'ovlsion. At the time of distribution one of the son's children had become bankrupt and his assignee claimed his share but was unsuccessful. See also Wagner v. Wagner (1910 )> 244 111. 101, 91 N. E. 66, for a combination of spend- thrift trust with postponement of control; 5 111. Law Rev. 318. 5. See 19 Harv. Law Rev. 604, 20 id. 202, suggesting that it should be limited to twenty-one years after lives in being at the death of the testator. 6. Gray, Restraints on Alienation §§ 105-124. It has been pointed out that if a transferee or creditor of the cestui in Claflin v. Claflln. takes free from the provision, it will be easy for the cestui to evade it by an assignment and reassignment; whereas if the creditor or transferee takes subject to the proviso, It will be difficult for the cestui to dispose of his interest_at a fair value; 24 Harv. Law Rev. 225. On ,the other hand. Professor Ames has shown that it is comparatively easy in any jurisdiction for th^ creator of the trust to accomplish postponement of control by giving to the trustee or some third person in whom he has confidence, a small beneficial in- terest in the property; not being the sole cestui in such a case, there is no right to a conveyance; Ames Trust Cas. 455 note. 7. See ante § 314. 1. See ante § 318. T'he holder of an equitable fee is entitled to demand possession of the land: Att'y Gen'l v. Gore (1740) 145, 150. § 322] TKUSTS. 433 possession of the land unless it is clear from the trust instrument^ or from special circumstances^ that the creator of the trust intended him to have possession.^ § 321. Extent of duty to give information, A trustee is under a duty to keep clear and accurate accounts of the trust property and to produce them for the inspection of the cestui;^ he must also produce all deeds and documents relating to the trust property.^ But where there are several cestuis, he is not bound to give to one cestui any information as to the shares of the others unless it is necessary to do so in giving information to the former.* If he procures opinions of counsel to guide him in the administration x)f the trust, he must produce them for the benefit of the cestui.* § 322, Duty of custody. Like otBer fiduciaries a trustee, while he is properly performing the duties of his trust, is liable only for 2. For example, where the property in question was the family residence. 3. Tidd V. Lister (1820) 5 Haddock 429, Ames Trust Cas. 465. If mere . personal occupation had been sought and not the manage- ment of the property, the decision might conceivably have been different. The rule of Tidd v. Lister has been changed in England by the Settled Land Acts, the effect of which has been to raise a presumption in favor of the equitable life tenant; West v. Wythea (1893) 2 Ch. 369, 374. 1. Blauvelt v. Ackerman (1873) 23 N. J. Bq. 495 (com- missions disallowed because accounts negligently kept). 2. Bugden v. Tylee (1856) 21 Beav. 515. 3. In re Tillott (1893) 1 Ch. 86, Ames Trust Cas. 468. 4. Wynne v. Humberston (1859) 27 Beav. 421. But not if they have been obtained for the purpose of defending himself against proceedings by the cestui; Brown v. Oakshoot (1849) 12 Beav. 252; but see Re Postlethwaite (1887) 35 Ch. D. 722, aliter, where fraud is charged against the trustee; Ames Trust Cals. 470 note. Eq.— 28 ^ 434 TRUSTS. [Chap, v due care' of the trust property; he is not liable as an insurer. Hence if the trust property is lost Jay robbery or theft,^ or is destroyed, or depreciates while it is rightfully in his custody, he is not liable unless he was negligent.^ Nor is he liable for such loss if he has rightfully placed the property in the hands of another.* It is frequently his duty not to keep personal charge of trust funds; it would not usually be due care for him ■ to keep large sums of trust money at his residence. He should deposit the money in a reputable bank at his earliest opportunity and if he fails to do so he will be liable if the money is stolen or destroyed.® By the weight of authority a public ofBcer who has charge of public funds is liable not merely for lihe care of a prudent man but as an insurer® against everything 1. It is sometimes said that a trustee must keep as his own; Jones v. Lewis (1750) 2 Ves. 240, Ames Trust Cas. 502. The better view, especially now that trustees nearly everywhere receive compensation, is that the strandard of care should be an abstract, extrinsic one — that care which men of ordinary prudence use in their own affairs under similar circumstances; see Fahnestock's Appeal (1883) 104- Pa. St. 46. 2. Mosley v. Mosley (1678) 2 Cases in Ch. 2, Ames Trust Cas. 502 (theft of trust money by trustee's servant). 3. In Ex parte Ogle (1873) 8 Ch. App. 711, Ames Trust Cas. 504 the defendant, an assignee upon trust for c^reditors, allowed the debtor to remain in pjjssession of some wine and brandy which the defendant should have taken and disposed of for the benefit of the creditors; while thus in the debtor's possession most of it was consumed; the trustee was held liable. 4. Jones v. Lewis (1750) 2 Ves. 240, Ames Trust Cas. 502 (goods stolen from .the trustee's solicitor to whom the goods had been properly delivered). See also Field v. Field (1894) 1 Ch. 425, Ames Trust Cas. 505 (trustee in placing title deeds in hands of solicitor must act reasonably). 5. Cornwell v. Deck (1876) 8 Hun 122 (money kept I^ bedroom for nearly a year; nearest bank twelve miles away). 6. See 10 Harv. Law Rev. 126; 11 id. 271; 13 id. 415; 9 Col. Law Rev. 639. See also Mechem, Public Officers §§ 298-303, arguing against the exceptional liability. In most of the cases the loss was due to the unexpected failure of the bank in which the public funds were deposited^ But in Smythe v. U. S. (1903) 188 U. S. 156 the § 3231 TRUSTS. 435 except perhaps an act of God or the public enemies.'' Th& reason given for this heavy liability is usually the great public interest in preserving public funds.® The weight of authority also holds that he mu&t account for the interest received on public funds, just as any private trustee must account for interest on private funds.* 777. As to investment, collection and payment. § 323. Standard of care— investments authorized by the creator of the trust. Tho courts differ in their application of the ' stand- ard of care of trustees in regard to investments, they are agreed that the standard should be such care as prudent men would exercise in the management of their own affairs, not with a view to speculation,^ but i officer was held lia|)le for the accidental destruction by fire of treasury notes even tho the plaintiff (the United States) could have avoided the loss by issuing new notes; see 16 Harv. Law Rev. 524; 3 Col. Law Rev. 354. 7. This modification is suggested in Tillinghast v. Merrill (1896)^151 N. Y. 135, 45 N. B. 375; drawing the analogy, of course, from the rule as to common carriers; see 10 Harv. Law Rey. 386. 8. In State v. Copeland (1896) 96 Tenn. 296, 34 S. W. 427 the court in holding the defendant liable only for due care was in- fluenced by the countervailing public interest in not discouraging the better class of men from accepting public office when the liabilities are so onerous. ^ 9. Adams v. Williams (1910) 97 Miss. 113, 52 So. 865; 10 Col. taw Rev. 677. 1. A prudent man might speculate with a small portion of his own funds, especially if he has besides an ample amount for the support of himself and family and his earning capacity is large, but he has no right to treat trust funds In this way. It is therefore inaccurate to say that a trustee is bound to use only that care which he would use with his own — especially now that trustees practically everywhere receive compensation. Such a state- ment is inaccurate also because it does not mention the requirement of prudence. See In re Salmon (1889) 42 Ch. 351, Ames Trust Cas. 436 TRUSTS. [Chap. v. with a view to preserving^ the corpus of the fund.^ If the creator of the trust directs the trustee to malce or continue certain investments, the trustees will be jilstified in following such direction?, even tho the investments would not — in the absence, of such author- ization — be allowed by courts of equity.* But where the testator gave full power to invest "in any security, real or personal, which they may ddem for the benefit of my estate," it was held that, while this authorized the trustees to make investments which a court of equity would not otherwise approve, it did not justify \the trustees in investing in the stock of a manufacturing business.'' § 324. Investments authorized by courts of equity. At the present time investments in government securities or investments secured by first mortgage on real estate^ are everywhere regarded as proper. In 487; Dickinson, Appellant (1890) 152 Mass. 184, Ames Trust Cas. 478; "A prudent man possessed of considerable wealtli, in in- vesting a small part of his property, may wisely enough take risks which a trustee would not be justified in taking." 2. It is sometimes said that the trustee's chief duty is to invest securely, and this is substantially true unless there is competition between an equitable life tenant .and remainder-man; in such a case the duty of the trustee is to invest with a view to productivity in order to take care of the interests of the life tenant; see Kinmonth v. Brigham (1862) 87 Mass. 270, 278: "They are equally bound to preserve the capital of the fund for the benefit of the remainder-man, and to secure tlie usual rate of income upon safe investments for the tenant for life; and to use a sO'und discretion in reference to each of these objects." 3. Harvard College v. Amory (1830) 9 Pick. 446. 4. Arnould v. Grinstead (1872) Weekly Notes 216, Ames Trust Cas. 488. .. / 5. Matter of Hall (1900) 164 N. Y. 196, 58 N. E. 11; 14 Harv. Law Rev. 392; 28 ia. 216. 1. Investments in real estate mortgages should have some margin in order to avoid loss through depreciation , and expenses of foreclosure. There is, apparently, no hard and fast rule as to the § 324] TRUSTS. 437 England, formerly, only government securitifis were allowed,^ but by statute^ first mortgages on real estate have been authorized. In England, New York* and perhaps the majority of states in this country these are practically the only investments authorized by equity courts.^ But in Massachusetts^ and a minority of juris- dictions there is no such limitation and a trustee may, in the exercise of a sound discretion, invest a part of the trust funds in the stocks and bonds of business corpora,tions. But even in jurisdictions having this more liberal rule, there are certain investments which would not be approved; for example, unless authorized by the creator of the trust, loans on personal security only,'^ the purchase of land,® of chattels,^ loans on a amount of, margin required. Roughly, a margin of one-third in case of agricultural land and a margin of one-half where the chief value lies in buildings, is required for safety; In re Salmon (1889) 42 Ch. 351, Ames Trust Cas. 487. 2. fea; parte Cathorpe (1785) l;Cox. Eq. Cas. 182, Ames Trust Cas. 484. 3. 22 & 23 Vict. c. 35, § 32. 4. King V. Talbot (1869) 40 N. Y. 76, Ames Trust Cas. 472 (breach of trust to Invest part of trust funds in railway stock). 5. In a few jurisdictions the matter, is now regulated by statute. See Bowen v. Wright (1869) 39 Ga. 96; Ames Trust Cas. 486, note. 6. Dickinson, Appellant (1890) 152 Mass. 184, 25 N. E. 99, Ames Trust Cas. 478: "Trustees . . . are penmitted to invest portions of trust funds in dividend-paying stocks and interest- bearing bonds of private corporations, when the corporations have acquired, by reason of the amount of their property and the prudent management of their affairs, such a reputation that cautious and' intelligent persons commonly invest their own money .in such stocks, and bonds as permanent investments." In the hands of a capable trustee the Massachusetts rule is better; but If the trustee is not thoroughly ' capable and prudent, the New York rule is preferable. 7. Holmes v. Bring (1788) 2 Cox Eq. Cas. 1, Ames Trust Cas. 471. But see Barney v. Parsons (1882) 54 Vt. 623. •8. Williams v. Williams (1882) 35 N. J. Eq. 100. 9. Campbell v. Miller. (1868) 38 Ga. 304, 438 TEUSTS. [Chap, v contributory^** or participating mortgage," loans on second mortgages/^ loans on leasehold mortgages,^' and investments where there is a large element of speculation." Loans outside the state are generally disapproved in jurisdictions following the New York rule^' but are sometimes allowed under the more liberal view.^' If the property placed in trust by the creator of the trust is invested in unauthorized securities, the trustee should convert it, within a reasonable time, into authorized securities in the absence of any direction by the creator.^'^ 10. The objection to a contributing mortgage . Is that the trustee does not have entire control and the rights of the cestuis are involved with those of strangers. Webb v. Jonas (1888) 39 Ch. D. 660. 11. A participating mortgage is one in which the trustee of several unrelated trusts combines them in '' one investment; the objection here is that there is danger of conflicting duties to the several cestuis. McCuUough's Bx'rs v. McCullough (1888) 49 N. J. Eq. 313, 14 Atl. 642; 28 Harv. Law Rev. 335. 12. Gilmore v. Tuttle (1880) 32 N. J. Eq. 611. 13. Fyler v. Fyler (1841) 3 Beav. 551; unless the leaseholds are for a very long term at a low rental; Macleod v. Armesley (1853) 16 Beav. 600. See Trustee Act. 1893 c. 53 § 5; Ames Trust Cas. 485 note. 14. Dickinson, Appellant supra. 15. Unless there are special circumstances, such as the pro- tection of other interests of the trust. Ormlston v. Olcott (1881) 84 N. Y. 339. The reason for the rule , is the inability of the court or trustee to look after the trust res properly; see 4 Col. liEW Rev. 444. 16. Thayer v. Dewey (1904) 185 Mass. 68, 69 N. E. 1074; 17 Harv. Law Res. 578; 9 Col. Law Rev. 89. 17. Brown v. Gellatly (1867) 2 Ch. App. 751; Ames Trust Cas. 489. In other cases of changing investments the trustee should get an order of court unless the creator of the trust has authorized the change or unless there is an emergency; for example, where the investment has become insecure and an applcatiqn to the court would make it still wors^. On the subject of investments, see Lorinp's Handbook for Trustees, § 325] TRUSTS. 439 § 325. Depositing trust money in a bank. If the trustee has , trust ■ money in his hands for which he cannot find a proper and desirable investment, he should deposit it in a reputable bank temporarily, in his name as trustee. ^ There is, of course, no ob- jection to such a deposit drawing interest, but the deposit i should not be for a fixed time because the trustee must be able at any time to get the fund for a permanent investment.^ It is also a breach of trust if the fund is left in the bank for an unreasonable time and the trustee is liable for loss if the bank fails.^ If the deposit is made without adding after his name the word "trustee"* or in some other way indicating his fiduciary position, it is a breach of trust and he is liable for loss if the bank fails^ and is perhaps liable also for interest from the time of such breach.* The reason for such a strict rule is that if the bank is not informed of his fiduciary obligation it will be justified in giving him personal credit on the security of such a deposit and thus become entitled to the rights of a bona fide mortgagee for valUe.^ 1. In such a case he Is not liable if the bank unexpectedly falls; Johnson v. Newton (1853) 11 Hare 160. 2. Baer's App. (1889) 127 Pa. 360, 18 Atl. 1. 3. Cann v. Cann (1884) 33 Weeklr Kep. 40, Ames Ijrust Cas. 481 (money left in bank for fourteen months). 4. This does not make the deposit a special deposit in the sense that the bank must keep the money separate and apart from its general assets, but merely i lows that the general deposit thus made is of trust funds; see 61 U. of Pa. Law Rev. 197-199 criticizing Smith v. Fuller (1912) 86 Ohio 57, 99 N. B. 214. 5. And this is true even if the trustee had no money of his own in the bank; In re Arguello (1893) 97 Cal. 196, 31 Pac. 937, Ames Trust Cas. 482. 6. Mulholland's Estate (1896) 175 Pa. 411, 415, 34 Atl. 735. s 7. See ante § 302. Apparently the rule does not require him to disclose the names of the beneficiaries; nor does it prevent him from mingling several sjnall trusts fuuds in one deposit. 440 TRUSTS. * [Chap, v § 326. Collecting debts due the trust estate — payments. The trustee should ordinarily collect debts due the trust estate as soon as they become due; if loss occurs because of unreasonable delay, he must answer for it.^ It is no defense that it would have ruined the debtor to press him for payment, even where a good business might • have delayed or even where the creator of the trust would have granted indulgence. He may, however, excuse himself by showing that more was probably to be realized on the claim by temporary indulgence than by prompt legal proceedings;^ or if he can show* that there were no reasonable grounds for believing that anything could be realized by suing.* Where it is the duty of the trustee to make pay- ments out of the trust funds he has been held liable not ■only for , due care > in the matter but liable at peril if - he should pay to the wrong person;^ in such cases he should, if doubtful as to ' his duty, ask the court for instructions.® § 327. Extent of trustee's liability for breach. If the trustee is guilty of misconduct — whether in making investments and collections or otherwise — and the trust funds are thereby wholly or partially lost, he 1. Lowson V. Copeland (1787) 2 Brown, Ch. Cas. 156, Ames Trust ^as. 493. See 21 Harv. Law Rev. 441. ^ 2f. Torrence v. Davidson (1885) 92 N. Ca. 437. 3. Apparently the trustee has not merely the burden of going forward and explaining but the burden of establishing; Re Brogden (1883) 38 Ch. D. 546, 572. It would seem that the burden of ■jstablishing should be on the cestui because there is no breach of trust if the trustee has acted reasonably. 4. Mitchell v. Trotter (1850) 7 Gratt. (Va.) 136. If the trustee compromises with the debtor he must show that it was a reasonable settlement of the claim; Moulton v. Holmes (1881) 57 Cal. 337. 5. Owings V. Rhodes (1886) 65 Md. 408 (no defence that he acted under advice of counsel). 6. Ro Wylly's Trusts (1880) 28 Beav. 458; 19 Harv. L-aw Rev, 308: 15 id. \753, § 328] • TBUSTs. 441 is generally liable, for the amount thus lost with simple interest;^ and this seems to be the general rule in the United States, whether the misconduct was active,* negligent^ or innocent.* In England, however, a trustee who is guilty of active misconduct is liable for 5% while one who is merely negligent is liable for only 4%.^ If an investment wrongfully made by the trustee should be successful, the cestui has the option of taking the investment and calling upon the trustee for an accounting of the profits.^ And if the trustee has wrongfully invested in trade he is chargeable with com- pound interest unless the trustee can prove that profits to that amount were not realized.'' Where the trust is for accumulation he is chargeable with compound interest® and in a few cases, compound interest has been imposed on the ground of misconduct.^ IV- As to delegating trust duties. § 328. Right of transferee to office of trustee. No one is bound to accept the office of trustee, but after once accepting it he cannot, by merely conveying the trust property to another, rid himself of any part 1. Robinson v. RoWnson (1851) 1 D. Gex, McN. & G. 247, Ames Trust Gas. 495. 2. Brr'ant v. Craig (1847) 12 Ala. 354. 2. Ames v. Scudder (1884) 83 Mo. 189. 4. MjComb V. Frink (1892) 149 U. S. 629. Therj are ? few cases, however, holding that where the trustee has acted Innocently, no interest should be charged against him; Saltmarsh v. Barnett (1862) 31 Beav. C49 (payment to wrong jerson by mistake)- Southern Ry. Co. v. Glenn's Adm'r (1904) 102 Va. 529, 46 S. E. 776; (extra commissions retained by trustee under decree of court which was later reversed); 18 Harv. Law Rev. 70. 5. See Mousely v. Carr (1841) 4 Beav. 49. 6. Robinett's Appeal (1860) 36 Pa. 174. 7. Cruce V. Cruce (1884) 81 Mo. 676, 684. 8. Knott V. Cottee (1852) 16 Beav. 77. 9. Salsbury v. Colt (1875) 27 N. J. Eq. 492 (failure to invest for several years). See also Bryant v. Craig (1847) 12 Ala. 354. 442 TRUSTS. tChap. v of his trust duties. If he wishes to be relieved he must either get the consent of the cestuis — which will be effectual only if they are all sui juris^ — or else secure a release from the proper equity court which will then appoint a substitute trustee.^ While artrustee's transferee is bound by the trust — unless he . is , a bona fide purchaser for value without notice^ — he is not entitled by the transfer to perform the duties of the trustee's office. This applies not only to a transferee inter vivos but usually applies also to the heii;s, devisees or executor of a decedent trustee.* The creator of the trust may, however, appoint the suc- cessors to' the first appointees or provide that the first appointees shall choose their own successors.® Where property was vested in A "^nd his heirs" it was held that this amounted to the appointment of A's heir as A^'s successor upon A's death, at least until the cestui objected;* and if the property is conveyed to A, f'his heirs and assigns, A's devisee has been held entitled to act,'' but not an assignee inter vivos.^ In several juris- 1. In Anon. (1819) 3 Swanst. 79, N. (a), Ames Trust Cas. 508 one who was trustee for a woman and children assigned the property to X with the consent of the woman, and was held liable for X's breach of trust. 2. Generally speaking, the substituted trustee succeeds to all the powers and duties of his predecessor; but where it is clear from the trust instrument that the creator of the trust intended certain powers to be exercised only by his appointee, such powers do not pass to the substitute appointed by the court; see 8 Col. Law Rev. 417 discussing Smith v. Floyd (1908) 108 N. Y. Supp. 775; see also 23 Harv. Law Rev. 59, 70. 3. See ante § 301. 4. Mortimer v. Ireland (1847) 11 Jurist 721, Ames Trust Cas. 508 (heir or executor); Cooke v. Crawford (1842) 13 Simons 91, Ames Trust Cas. 509 (devisee). 5. In re Morton and Hallett (1879) 15 Ch. D. 143. 6. In re Morton and Hallett, supra. 7. Titley v. Wolstenholme (1844) 7 Beav. 425. 8. Whittelsey v. Hughes (1866) 39 Mo. 13; 23 Harv. Law Rev. 59. Apparently the reason for this distinction is that it is not to be supposed that the creator of the trust meant his appointee to § 329] TEXJSTs. 443 * dictions, upon the deatk of a sole trustee the title vests by statute in Ms personal representative or in the court.® # § 329. Action by less than all the trustees. In a private trust all the trustees must concur in order that their acts may be valid ; no one of them can delegate his discretion to the others. Hence, if one of several trustees becomes insane,^ or is unable to agree with the rest,* the court should appoint a substitute. A majority of trustees is not competent to act for all unless the trust instrument so provides ;* and if a •majority attempts to act without the consent of the minority, the latter should ask for an injunction against such action,* because their mere refusal to concur will not excuse them from liability for a breach of trust com- mitted by the majority.® Where several trustees are appointed but some disclaim, those who accept are competent to perform the trust ;^ and apparently, where one of several trustees dies the survivor or survivors may execute the trust in the absence of an express provision in the trust instrument.'^ give up his office voluntarily, not having provided specifically for the appointment of successors. 9. See ante § 272. 1. In tl»e Matter of Wadsworth (1847) 2 Barb. Ch. 381, Amea Trust Cas. 511. 2. Doily V. Sherratt (1735) 2' Eq. Abridg't 742, Ames Trust Gas. 511 (one of two trustees refused to act). 3. Swale v. Swale .(1856) 22 Beav. 584, Ames Trust Cas. 512; or unless it is implied from the peculiar nature of the trust; Sloo V. Law (1856) 3 Blatch. 459. 4. Sloo V. Law, supra. 5. See Katz v. Miller (1912) 148 Wis. 63, 133 N. W. 1091; 74 Cent. Law J. 117 (inactive trustee bound by act of the other) ; Dix V. Burford (1854) 19 Beav. 409 (trustee liable for default of co- 4ruste6). 6. Long V. Long (1883) 62 Md. 33. See ante § 273. 7. Lane v. Debenham (1853) 11 Hare 188, Ames Trust Cas. 513 (power to raise £2000 by sale or otherwise can be executed by 444 ' TRUSTS. Chap, v On the other hand, in trustg for a public purpose,, a majority of the trustees may act unless the trust in- strument provides otherwise*? § 330. Permissible employment of agents. While a trustee may not delegate to another an act which requires discretion — such as the supervision of an auction sale of real estate^, or the purchase of a mortgage security^ — he may employ subordinates to perform. mechanical duties which require technical skill -rather than discretion, such as advertising the sale,' auctioneering etc.^ Furthermore, if in selling trust personalty* or in making investments of trust funds in public securities' it is the usual course of business to employ a broker the trustee may do so and will not be liable for loss if he uses due care in selecting the broker. And apparently he may employ an agent to surviving trustee virlthout direction of the court). See Perry, Trusts §§ 493, 505. , 8. HiU V. Josselyn (1850) 21 Miss. 597; Sloo v. Law, supra. 1. In Graham v. King (1872) , 50 Mo. 22, Ames Trust Cas. 515, the trustee was not present at the sale but left the matter in the hands of his son, a minor. The . cestui asked for and ob- tained an injunction against making a deed to the purchaser because the property sold for greatly below its value. "He must in person supervise and watch over the sale, and adjourn it, if necessary, . to prevent a sacrifice of the property, and no one can do it in his stead, unless empowered thereto in the instrument creating the trust." If there are several trustees apparently all must supervise the sale; See Brennan v. Willson (1877) 71 N. Y. 502. 2. Bostock V. Ployer (1805) L. R. 1 Eq. 26. . 3. See Powell v. Tuttle (1850) 3 N. Y. 396; Gillespie v. Smith, (1863) 29 111. 473. And a trustee about to invest on a mortgage security is entitled to employ an attorney to examine the title. See Hopgood v. Perkin (1870) 11 Eq. 74, criticised in In re Weall (1889) 42 Ch. D. 674, 678. 4. Ex parte Belchier (1754) Ambler 218, Ames Trust Cas. 516 (trustee eniployed broker to sell tobacco; the broker sold it,- received the money and died insolvent ten days later). 5. Speight V. Gaunt (1883) 22 Ch. D. 727, Ames Trust Cas. 518 (trustee empowered by will to invest in certain securities em- .^ 330] , TRUSTS. Mb collect trust funds if they are to be collected in small amounts, such as rents.® ployed a broker to obtain them; later the broker said he had obtained them, showed what purported to be a bought note and asked for payment. The trustee gave him his check for the amount; the broker used the money for himself and absconded). There is this difference between a broker who deals in real estate and one who deals in stock; the trustee can kno^ where the land is but usually does not know where the stock will come from. 6. See In re Brier (1884) 26 Ch. D. 238; Donaldson v. Allen (1904) 182 Mo. 626, 81 S. W. 1151; Fesmire v. Shannon (1891) 143 Pa. 201, 22 Atl. 891. CHAPTEE VI Refoemation^ of , Instkuments. A. In General. § 331. Ijavulnerability of written instruments at corn- men law. At common law if a contract^ or conveyance' were made in writing or if a contract were at first- made orally or informally and later reduced to a written in- strument, the written instrument was conclusive* as to the terms of such contract or conveyance. This was 1. "Rectification" or "restoration" would be preferable, but "re- formation" seems to be the generally accepted term. 2. At common law tbere was no requirement that contracts be In writing; the Statute of Frauds, passed in 1675, required that in order to bring actions on certain classes of contracts there should be a memo- randum of the contract, but this did not require that the contract itself be reduced to writing. 3. At common law oral conveyances of land by livery of seisin were common; at the present time practically all conveyances of inter- ests in land are by deed. Transfers of personalty may or may not in- volve a' deed, ' 4. This is usually called the parol evidence rule. It is not a rule of evidence, but a rule of substantive law as to what constitutes the legal transaction. For a careful and exhaustive analysis of this sub- ject see Wigmore, Evidence Sec. 2400-2478, especially Sec. 2425. That part of the so-called parol evidence rule with which we are most con- cerned, is thus formulated by Professor Wigmore. "\v hen a legal act is reduced into a single memorial, all other utterances of the parties (446) § 332] EEJFOKMATION OP INSTRUMENTS. " 447 especially true of instruments under seal/ whether contracts or conveyances. The social interest in the security of transactions required that much importance be attached to thesei instruments but on the other hand to hold them absolutely invulnerable resulted in much injustice, if the instrument did not express the actual intent of the parties thereto. In order to relieve from this injustice an equity court will rectify or correct the written instrument so "as to make it conform to the actual intent ;° and having taken jurisdiction for this, purpose will give whatever further relief is necessary to settle the whole ease.'' § 332. Standard for rectification. Apparently all instruments except wills* are sub- ject to reformation. But the standard by which the instrument is corrected depends upon whether the in- strument involved 'was executed in pursuance of a bilateral or business transaction in which there was a bargain between two or more parties or whether the transaction was a voluntary, unilateral transaction re- quiring nothing more than a mere assent on the part of the donee. In the former class of cases the standard on that topic are legally immaterial for the purpose of determining what are the terms of their act." 5. See Wigmore, Evidence Sec. 2426 for the early history of seals. 6. Besides the parol evidence rule there was still another ob- stacle to getting reformation at common law: namely, the lack of power of a common law court to issue a command to a litigant. While there are a few cases in which equity courts have assumed the power to give their decrees of reformation an in rem effect, (see post § 361), reformation is more usually accomplished hy ordering the defendant to execute a conveyance or contract. That a common law, court will not give reformation, see Ivinson v. Hutton (1878) 98 U. S. 79. 7. See ante § 24. 1. See post S S51. 448 • REFORMATIOlir OF INSTRUMENTS. [Chap, iv of rectification is the bargain of the parties; in the latter, it is the intent of the donor, B. BiLATEEAL TeANSACTIONS. § 333. Mutual mistake. If, on account of a mistake common to both parties to a bilateral transaction the written instrument dojBS not express the true agreement of the parties, equity will generally correct the instrument so as to conform to the actual bargain. Perhaps the most common in- stance is that of a conveyance which, because of a mis- take of tl^e scrivener not discovered by either party, describes two much or too little property. And where the mistake has been innocently repeated in successive conveyances, the right to reformation and the cor- responding obligation to submit to such rectification passes to the respective grantees. In Cole v. Ficket^ A bargained to convey lots X and Y to B ; by mistake of the scrivener the deed described oiily X. B went into possession of X and Y and later sold them to the plain- tiff, but. the conveyance repeated the original mistake; the plaintiff went into possession of X and Y. A later bargained to convey lot Z to D, but by mistake the deed described both Y and Z ; D went into possession of lot Z" only; D died and the property descended to the defend- ant. It was held that the plaintiff was entitled to ref- ormation not c*ily against D who had paid nothing for • lot Y but also against the defendant who likewise had paid nothing for it. § 334. Same^ — correction of price. In Paine v. Upton^ the defendant sold to the plain- tiff a farm supposed to contain 220 acres at a little less than $150 an acre. It was later found that the 1. (1901) 95 Me. 265, 49 Atl. 1066, 2 Ames Bq. Cas. 178. 1. (1882) 87 N. Y. 327, 2 Ames Bq. Cas. 213. § 334] talFOBMATION OF INSTRUMENTS. 449 farm contained only 206 acres. The plaintiff asked for and was given a proportional abatement of the price. However, the error did- not consist in the description of the land covered by the conveyance, but in' the acreage of the land conveyed; and since the price of the land was fixed upon the basis of acreage there was an error in the price. If the land had been sold for a lump sum, it would have required a miich greater dis- crepancy than that in the principal case to obtain relief.^ It may well be urged that even though the price was fixed according to acreage that the seller might have been unwilling to sell or the buyer to buy if he had known the real acreage and therefore that rectifying the price is an unwarranted interference with the parties' agreement. But if in Paine v. Upton no deed whatever had been made the purchaser could have obtained specific performance with compensation for 2. For example, because the sale was by th-e tract and not by tie acre, relief was denied in Capshaw v. Fennell (1848) 12 Ala. 780 where the percentage ol deficiency was practically that in Paine v. Upton (282 instead of 300 acres) ; whereas relief was given in Smith v. Fly (1859) 24 Tex. 345, the discrepancy being very much greater (385 instead of 500 acres). In Harrison v. Talbott (1834) 32 Ky! 258, 266 the court made the following analysis: "Sales in gross may be subdivided Into various subordinate classifications: 1st; Sales strictly and essentially by the tract, without reference, in the negotiation or in the consideration, to any estimated or designated quantity of acres. 2nd, sales of the like kind, in which, tho a supposed quantity by estimation is mentioned or referred to in the contract, the reference was made only for the pur- pose of description, and under such circumstances, or in such manner as to show that the parties intended to risk the contingency of quantity, whatever it might be, or how much soever it might execute or fall short of, that which was mentioned in the contract. 3rd. Sales in which, it is evident, from extraneous circumstances of locality, value, price, time, and the conduct and conversations of the parties, that they did not contemplate, or Intend to risk more than the usual rates of excess or deficit in similar cases, or than such as might be reasonably calcu- lated on as within the range of ordinary contingency. 4th. Sales which, though technically deemed and denominated sales in gross are in fact, sales by the acre, and so understood by the parties. Contracts belong- Eq.— 29 450 EEFORMATION OF INSTRUMENTS. [Chap. IV the 14 acres deficiency;' it would therefore be incon- sistent with the doctrine of specific performance with compensation to refuse to rectify the price merely be- cause a deed has been made. If the default of the vendor is relatively slight either the vendor or the purchaser may have specific performance with compensation; but if the default is relatively large the purchaser has frequently been al- lowed specific performance with compensation, or res- cission at his option.* It would seem to follow, there- fore, that if the conveyance has been made and the discrepancy is large, a purchaser should be given the option* of having the price corrected or having the whole transaction rescinded. § 335. Plaintiflf's mistake caused innocently by the de- fendant. Sii^ce the plaintiff is usually entitled to have an instrument reformed where the error has been . due to a mistake common to both parties, the plaintiff stands in at least as strong a position as where the defendant has innocently caused the mistake. In Snell V. Atlantic, etc. Insurance Co.,' one Keith, a member of the firm of Snell, Taylor & Co., applied to the defend- ant for fire insurance on cotton on behalf of the firm and the defendant agreed to insure ; the policy was made out in Keith's name, the defendant's agent assuring Keith that the firm's rights were thus fully protected. A ing to either of the two first mentioned classes, whether executed or executory, should not be modified by the chancellor when there has been no fraud, . . . But in sales of either of the latter kinds, an un- reasonable surplus or deficit, may entitle the injured party to equitable relief, unless he has by his conduct waived or forfeited his equity." 3. See ante § 122. 4. See ante § 122. 5. Lawrence v. Staigg (1866), 8 R. I. 256, 2 Ames Eq. Cas. 220. 1. (1878) 98 U. S. 85. § 336] REFORMATION OF INSTRUMENTS. 451 loss having occurred the court rectified the policy so as to protect the interests of the firm.^ § 336. Defendant cognizant of plaintiff's mistake. If at the time the plaintiff thinks he is making a bargain with the defendant the latter knows that th,e plaintiff is suffering under a misapprehension as to the terms of his offer of acceptance, the defendant's fraudu- lent conduct entitles the plaintiff to have the contract or conveyance rescinded on the ground that there was not a real bargain; for this very reason that there was not a real meeting of the minds, reformation is obviously impossible because there is no prior bargain to restore. In Grun V. McCarthy^ the plainti^ had executed a lease of certain premises at an annual rental of £33 10s. The trial court was of opinion that the figures £33 10s in the plaintiff's offer were a mistake on the part of the plaintiff's agent for £53 10s or some higher rent and that the defendant knew it was a mistake; on the other hand, it was not shown that the defendant ever entered into any agreement to take the premises at £53 10s or at any other rent than £33 10s. In refus- ing to . give reformation the court said : "To reform implies a previous agreement; but when the evidence shows that there was no agreement to which both parties assented, but only a mistake on one side and not a common mistake, in my opinion it is impossible to support a suit to reform, whatever equity the party 2. See accord, Kyle v. Fehley (1892), 81 Wis. 67, 51 N.' W. 257, ■where an omission in a conveyance was brought about by the repre- sentation of the attorney of the party against whom reformation was sought. 1. (1883) L. R. Irish 13 Ch. D. 304, 2 Ames Eq. Cas. 238. 452 REFORMATION OF INSTRUMENTS. [Chap, iv who has made the mistake may have in certain cases to rescind the conveyance." § 337. Same— option of reformation or rescission. Logically, neither party should have the option of reformation or rescission.' "Reformation is an affirm- ance of the bargain as, it was actually made. Rescis- sion, on the other hand, is a disaffirmance of the bar- gain itself. It is the antithesis of reformation. Con- sequently, a mistake which is ground for reformation will not justify rescission in any ordinary case; while a mistake which is ground for rescission will not justify reformation, since it strikes at the bargain which must serve as the standard for reformation.'" Nevertheless in, a few cases when the defendant probably knew of the plaintiff's mistake at the time of entering into the transaction, the option has been given to the defendafit' of rescinding or rectifying the instrument so as to correspond to the plaintiff's under- standing. If a plaintiff has in his bill asked in the alternative for rectification or rescission, there would seem to be no great objection to such a decree; this was the reason given by the court in Paget v. Marshall* and perhaps influenced the court in Garrard v. Frankel.° 1. The case already discussed (ante § 334) of allowing a purchaser the option of rescission or reformation of the price is as anomalous as the doctrine of specific performance with compensation, to which it is related. See ante § 122. 2. Mistake of Pact as a Ground for Equitable Relief, by Edwin H. Abbott, Jr. 23 Am. Law Rev. 608, 610. See also Gun v. McCarty (1883) 13 Ch. D. Irish; 304, 2 Ames Eq. Cas. 238, discussed ante § 336. 3. When the evidence is clear that the defendant knew of the plaintiff's jnistake, it may be suggested that It is the plaintiff who should have the option; but to give the plaintiff the option to compel rectification to his own intent which has never been concurred in by the defendant would be in the nature of affirmatively penalizing the de- fendant for his fraudulent conduct and also an unwarranted inter- ference with freedom of contract. 4. (1884) L. R. 28 Ch. D. 255. 5. (1862) 30 Beav. 445. The case was followed in Bloomer v. § 338] EEFOBMATION OF INSTBtTMENTS. 453 A court might also be justified in giving the defendant the benefit of the doubt where there is conflicting evi- dence as to the existence of a prior agreement." But the mere fact that the blunder was that of the plaintiff^ would seem to be no justifiable reason for allowing the defendant to speculate on the plaintiff's blunder* without fear of loss to himself." § 338. Fraud in performance of a contract or in re- ducing a bargain to writing. If a bargain has actually been entered into, the fraud of the defendant either in reducing the bargain to writing or in performing the contract, will not pre- vent the plaintiff from getting reformation. In Lee & Jameson v. PercivaP action had been brought on a promissory note; the defendants asked that the note be reformed so as to bind only the corporation of which Spittle (1872) L. R., 13 Eq. 427, 2 Ames Eq. Gas. 309 where the option was given to the defendant apparently because of the plaintiff's delay of four years, conflicting evidence as to whether there was a prior agree- ment and the fact that the plaintiff asked for rectification. 6. There is a suggestion of this in Garrard v. Frankel, supra. 7. Such was the reason given" in Brown v. Lamphear (1862) 35 Vt. 252, 2 Ames Eq. Cas. 203. 8. To illustrate: In Garrard v. Frankel the plaintiff in leasing premises to the defendant inserted £ 130 as the rental Instead of £ 230; as long as the rental value does not go below £ 130 the defendant cannot lose; if it goes below £ 230 but not below £ 130 he can elect to rescind and thus escape loss, whereas If the value of the lease in- creases beyond £ 230 he can be sure of this benefit by electing to ac- cept rectification. 9. It seems that if reformation has become impossible rescission may be granted as a substitute therefor. In Abbot v. Dow (1907) 133 Wis. 533, 113 N. W. 960, the written agreement for the purchase of a lot described lot Y itistead of lot X: before the mistake was discovered the vendor conveyed lot X to an innocent, purchaser for value so that reformation became impossible. The plaintiff was therefore given rescission with the return of that part of the purchase price already paid. i: (1892) 85 Iowa 639. 454 REFORMATION OF INSTRUMENTS. [Chap, iv they were officers and not themselves individually. It was held that reformation should be given because the other party "must have known the intent with which the note was signed, and must have believed that it was the note of the company only, or else they received it fraudulently, knowing of the mistake of the defend- ants and intending to profit by it. ' ' In HitcKins v. PettingilP the plaintiffs bought a farm of the defendants and paid for it; by the fraud of the defendants ten acres of the farm was omitted from •the deed. Reformation was given by requiring the de- fendants to convey the omitted parcel. In Cleghom v. Zumwalt' the conveyance purported to convey "all my interest." At the time of contract both parties thought that the grantee had 1/5 interest but it turned out that she had 3/5 interest. It was held that the grantee was entitled to have the deed corrected so as to convey one-fifth only, whether at the time of the delivery of the deed the defendant did or did not know of the mistake.* § 339. Plaintiff alone mistaken, defendant innocent. If in making the bargain the plaintiff has made a mistake but the defendant is ignorant thereof, reforma- tion is obviously impossible because there is no previ- ous agreement to. restore. In several such cases refor- mation has been sought and refused. In Page v. Higgins^ the grantor did not suppose that the con- .2. (1876) 58 N. H. 3, 2 Ames. Eq. Cas. 307. 3. (1890) 83 Cal. 155, 23 Pac. 294, 2 Ames Eq. Cas. 197. 4. For a similar case see ICersten v. Myers (1888) 115 Ind. 312. In Palmer v. Hartford Fire Ins. Co. (1887) 54 Conn. 488, 9 Atl. 248, the previous agreement rested largely upon implication. The plaintiff asked the defendant to renew an insurance policy: the defendant's agent wrote a policy and placed in it a co-insurance clause which was not in the original policy, but did not notify the plaintiff of the change. The court held that the plaintiff was entitled to reformation whether the defendant's conduct was due to mistake or fraud. 1. (1889) 150 Mass. 27, 22 N. E. 63, 2 Ames Eq. Cas. 188. § 340] REFOftMAMOir OP iNSTfiUMENtS. 455 veyance which he executed included a certain piece of land; reformation was denied because the grantee did not share the mistake. And in Daniel v. Commercial Fire Ins; Co." where a fire insurance policy was mis- takenly taken out in the name of the owner's wife, reformation was denied because there was nothing to show that the defendant's agents knew anything about the ownership of the property.' § 340. Mistake as to ooUateral matter. Eeformation has sometimes been sought in cases where there was no mistake in the instrument but where the bargain would not have been made if there had not been a mutual mistake as to some collateral or ex- trinsic fact. In Whittemore v. Farrington^ the plain- ■ tiff accepted a quitclaim deed from the defendant in place of a warranty, both parties thinking there was no incumbrance, and that therefore a quitclaim was as good as a warranty. Eeformation wag^ properly re- fused because there was no mistake in the quitclaim deed itself but merely a mistake as to its value. Similarly in Hunt v. Rousmaniere^ the plaintiff had deliberately chosen a power of attorney as a more satis- factory security than a mortgage; he was therefore not entitled to have a mortgage substituted for the power of attorney merely because the latter turned out to be unsatisfactory. In Barrow v. Barrow* a fund was left out of a 2. (1881) 34 N. J. Bq. 30, 2 Ames Bq. Gas. 237. 3. In Mackenzie v. Coulson (1869) L. R. 8 Eq. Cas. 368, the plaintlfl insurance company issued to defendant a policy with the phrase "average recoverable as customary," by mistake for "free from particu- lar average." Relief was refused becatfse the defendant was not mis- taken and did not know of the plaintiff's mistake. 1. (1879) 76 N. Y. 452, 2 Ames Eq. Cas. 208. 2. (1828) 1 Peters 1, 2 Ames Eq. Cas. 258. 3. (1854) 18 Beav. 529, 2 Ames Bq. Cas. 199. *56 . REFORiVTATION OF ISfSTRUMENTS. [Cliap. IV marriage settlement because the parties thought it was unnecessary to include it. There having been no previ- ous agreement that it should be included reformation was of course denied, the mistake going merely to the motive of the parties in making the omission. It is not always easy to determine whether the mistake is as to quantity or as to value. In Okill v. Whittaker* the plaintiff sold to the defendant the rest of a lease of twenty-one years, thinking that over twelve years had elapsed, whereas only a few days had ex- pired. After the grantee had been in possession for ten years the grantee asked for reformation— that the defendant be held entitled to only the eight years of the lease which the parties erroneously thought re- mained. Relief was denied on the ground that it was a mere mistake as to the value of the lease, but it is difficult to agree with such reasoning.^ Unless the plain- tiff's delay were inequitable it would seem that he should have the relief he, asked, unless it were important to Vhe defendant to have the last end of the lease so as to have the privilege of renewal; in the latter case the defendant should have the option to keep the lease upon paying a proportional price therefor.^ If the mistake as to a collateral fact has no real bearing upon the transaction it is obviously no ground 4. (1^47) 2 Phillips 338; 2 Ames Eq. Cas. 201. 5. Tlie court attempts to liken the case to a sale of a, farm for a lump sum, the farm turning out to have 250 acres instead of 200. But the difference between eight years and twenty-one years is much more serious. 6. In Webster v. Stark (1882) 10 Lea 406 the plaintiff made a written contract to buy a mill from the defendant. The plaintiff suu- posed that the mill was entirely on lot 19 but wishing extra space he bargained for lot 21 also; it turned out that the mill was partly on lot 17 and the plaintiff now wishes to have "21" changed to "17." One ' of the grounds for refusing relief was that the mistake was as to an extrinsic fact. § 342] REFORMATION OF INSTRUMENTS. 457 for reformation. In Jeakins v. Frazier'' the plaintiff sold and conveyed to the defendant a one-half interest in his deceased wife's estate, hoth parties supposing that the plaintiff owned only one-half. As a matter of fact the plaintiff owned 8/14 and the defendant asks for reformation by a conveyance of the other 1/14. If the plaintiff had offered a proportional price for the extra 1/14 he might perhaps have been entitled upon the same principles as are involved in cases giving reformation of price;* but having made no such offer reformation was properly denied either upon the ground that there was no prior agreement for 8/14 but merely for 1/2, or that the mistake as to the plaintiff's owner- ship of another 1/14 had at most only a slight bearing on the transaction.^ C. Unilateral or Voluntary Transactions. § 341. The intent of the donor. In bilateral or business transactions reformation is impossible in the nature of things unless there is a previous agreement to' which the written instrument is to be conformed. In unilateral transactions, on the other hand, since the donee needs at most to give a mere assent to the gift, the donor's intent is the im- portant factor and reformation is made, if at all, to such intent. § 342. Relief to the donor. If the donor conveys more to the donee than he intended he is entitled to have the instrument so recti- fied as to convey only that which he did intend. In 7. (1902) 64 Kansas 267, 67 Pac. 854, 2 Ames Eq. Cas. 268. 8. See ante § 334. 9. If It be suggested that the defendant might not wish to he a co-owner with the plaintiff, the answer is that he could probaMy avoid this by paying pro rata lor the extra 1/14, 458 KEPOEMATION OF INSTBUMENTS. [Chap, iv Andrews v. Andrews^ the plaintiff by mistake conveyed to his mother a fee instead of a lif^ estate. It did not appear whether the mother knew of. the mistake or not, nor was such fact mentioned. Reformation was granted against the heirs of the mother, the latter having died before the suit was begnn. § 343. Relief against donor — who are volunteers. If the conveyance conveys less than was intended by the donor or if the conveyance is defective and therefore conveys nothing, a mere volunteer can not as against the donor himself get reformation of the deed any more than he could get specific performance of the promise to make the gift before any conveyance was attempted by the donor.^ A creditor, however, though he could not have com- pelled his debtor to give him security for his debt, is usually given equitable relief where the debtor has given security but by mistake has conveyed less than he intended to convey.^ In other words, the courts here have recognized the existence of a specific equity of 1. (1859) 12 Ind. 348, 2 Ames Eq. Cas. 245. 1. Eaton V. Eaton (1862) 15 Wise. 259; 2 Ames Eq. Cas. 244: "It is well settled that equity will not interfere to enforce a voluntary con- tract to convey. A defective attempt to make a voluntary conveyance stands upon the same ground. Judicial tribunals act to enforce legal obligations, not to compel parties to carry into execution mere benevo- lent intentions, which they may once have entertained, but have sub- sequently abandoned. So far as giving is concerned, they are allowed to say, as Falstaff did of reasons, that they will not give upon compul- sion." 2. In Hoyt v. Oliver (1875) 59 Mo. 189 the court in giving relief said: "While it is true that courts of equity will not rectify a voluntary deed unless all the parties thereto consent: yet the one under consider- ation cannot be thus regarded as the existing indebtedness of the grantee was a valuable and sufficient consideration for making the deed to secure such indebtedness." § 344] REFORMATION OF INSTRUMENTS. 459 reformation^ as distinguislied from reformation as a mere means of enforcing specific performance or a constructive trust.* And the same reasoning has been applied where the debtor has attempted to make a con- veyance in payment of a pre-existing obligation." Where a husband has attempted to make a convey- ance to the wife, the wife has been given reformation even in the husband's lifetime,* /on the ground that the husband's obligation to provide for her saved her from being a mere volunteer. § 344. Reformation against representatives of deceased. If a creditor or wife could have obtained refor- mation in the lifetime of the debtor or husband, similar relief will, of course, be given after the donor's death.^ In some cases, however, when the donee or intended 3. Of course if there is a specifically enforcible contract to give security, there is no difficulty about giving reformation. Welton v. Tizzard (1864) 15 Iowa 455. See ante § 51. 4. It is interesting to note that the creditor's equity is not enforced to the same extent as the ordinary equity of reformation: see post § 360; equitable relief being usually refused as against other creditors equally menitorious. Knight v. Bunn (1850) 7 Iredell Eq. 77; 2 Ames Eq. Cas. 242. 5. Comstock v. Coon (1893) 135 Ind. 640, 35 N. E. 909, (attempted conveyance to wife for pre-existing debt.) See also Rea v. Wilson (1910) 112 Iowa 517, 84 N. W. 539. 6. Stewart v. Brand (1867) 23 Iowa 477.- Cf. ante § 267 where a conveyance to the wife which was Inoperative at law was upheld as a valid declaration of trust for the wife. Whether a promise under seal to convey land to the wife in the future would be speciiically enforced in equity, quaere. 1. In Welch's Adm. v. Welch (1892) 13 Ky. Law. Rep. 639, the husband had taken out a policy on his own life with the assurance of the defendant's agent that the money would go to his wife and also that since the wife was not present the policy could not legally be made payable to her. After his death his widow was held entitled to refor- mation as against his creditors; this would lead us to suppose that the equity existed before the husband's death, but the court does not discuss the point. 460 REFORMATION OF INSTRUMENTS. [Chap, iv donee would have been denied relief during the donor's lifetime as being a mere volunteer, reformation has been granted after the donor's death. In McMechan v. War- burton^ the court, in giving relief, said: "If the donor were living it would have, of course, been competent for him to consent^ to such rectification or to dissent from it. If the latter, it could not be reformed against his will, for a volunteer must take the gift as he finds it; but after his death, and in the absence of any prool of intention it cannot be assumed that he would have dis- sented,* and it might even be presumed that he would not dissent . " The doetri^ne has been criticized^ and there are cases to the contrary.' If it is to be justified at all it must be upon the ground that as between volunteers it is better to carry out the intention of the decedent than to allow it to be defeated for failure of rectification, it being now too late for the donor himself to correct the error. There would seem to be little difference whether the parties against whom reformation is sought received the property from the donor by descent or devise or by the conveyance in which the mistakes occurred ; possibly the latter is the stronger case for relief because the donor himself had an equity of reformation at the time of his 2. (1894) L. R. Irish 1 Ch. D. 435. See also Huss & Morris (1869) 63 Pa. W. 367. 3. Quaere as to whether such assent would be good as against his own creditors. 4. If his attention had been called to the errors and he had ex- pressed an intent not to correct it, it would seem clear enough that reformation should be refused. 5. 23 Harv. Law Rev. 608, 620: "Bilt if the donee had no equity against the donor in the donor's life time, it is hard to see how the death of the donor can raise one against those who take what the donor left." 6. See Shears v. Western (1896) 110 Mich. 505, 68 N. W. 266. Re- lief is sometimes denied, where reformation would result in an inequita- ble distribution of the late donor's property. Hout v. Hout (1870) 20 0. St. 119. § 345] REFORMATION OP INSTRUMENTS. 461 death. In Wyche v. Greene''' A intended to convey some slaves to his daughter P for life with remainder in fee to her issue. The conveyance was so drawn, however, as to convey the entire interest to P. After the death of both, A and P, the children of P ask that the deed he so reformed as to give the slaves to them instead of to their father, the husband of P. Logically relief should be granted to the donor's personal representatives against the husband but since it is now too late for the donor to correct the error, no great harm is done by allowing re- lief to the intended donees instead.* D. Mistake op Law. § 345. Historical development of the subject. As a matter of principle, no distinction should be drawn between mistakes of fact and mistakes of law,^ and such apparently ^as the very early rule. In Simp- son V. Vaughan,^ reformation was given where a bond was drawn up so as to bind the parties jointly only in- stead of jointly and severally; the mistake was quite evidently one of law because the court remarks that "Baker, one of the obligors, who filled it up, is only a tradesman, and entirely unacquainted with the common forms of bonds, when money is lent to two persons." In -1802 came Lord EUenborough's unfortunate decision 7. (1854) 16 Ga. 49, 2 Ames Eq. Cas. 289. 8. The foUowing is a somewhat similar situation: If A devises property to B upon an oral trust for C and B learns of A's intention before A's death, C is entitled to the property and not A's heirs. See ante, § 292. This holding can be justified only upon the practical reason given in the text. 1. See § 166 : Mistate of Law as a Defense to Specific Performance. 2. (1739) 2 Atk. 31. For a still earlier case when reformation was granted tlio the mistake was apparently one of law, see Peake v. Peake (1577) Choyce Cases in Chancery 116, where words of inheri- tance had been omitted. 462 BEFOEMATION OF INSTRUMENTS. [Chap, iv in Bilbie v. Lumley' that one who has paid money in ignorance of law can not recover it back, because ' ' every man must be taken to be cognizant of the law ; otherwise there is no saying to what extent the excuse of ignorance might be carried. It would be urged in almost every case." In Lowrie v. Bourdieu* money paid under a mere mistake of the law was endeavored to be recovered back ; and there Butler, J. observed that "ignorantia juris non excusat." Lord Mlenborough evidently regarded the statement that ' ' every man must be taken to be cognizant of the law" as substantially the equivalent of the maxim that ignorance of the law does not excuse. It has been pointed out repeatedly,^ both by courts and text writers that the maxim implies delinquency of some sort — either the commission of a crime or tort or the breach of a contract — and cannot properly apply, either in law or equity, to one who has done no wrong but merely seeks to prevent loss to himself. In spite of this, however, Lord EUenborough's notion has so far prevailed both ■ in law and in equity that the rule is usually stated that equity will give no relief against mistakes of law.* § 346. Present state of the law. There are very few actual decisions which can properly be counted as precedents against giving ref- 3. (1802) 2 Bast 469. It is not without significance that Lord EUenborough's legal experience had been chiefly in the field of criminal law where the phrases "ignorance of the law is no excuse" and "every one is presumed to know the law" are practically coterminous, because in a criminal prosecution it would be almost invariably the defendant who would urge ignorance of law. But even in criminal law it is not always true that ignorance of law does not excuse. If due to such ignorance one claimed as his own the chattel of another he would not be guilty of larceny. 4. (1780) 2 Dougl. 468. 5. Woodward, Quasi Contracts § 36; Culbreath v. Culbreath (1849) 7 Ga. 64. 6. Fowler v. Black (1891) 136 111. 313, 26 N. E. 596. And see 8 Col. Law Rev. 211. ^ 346] EEFOEMATION OF INSTRUMENTS. 463 ormation because the mistake was" one of law. In Hunt V. Eousmaniere^ the court's refusal to substitute a mort- gage for a power of attorney was not really because it was ignorance of the law that was involved but because the mistake was one as to the relative -value of the two forms of security; even if the mistake as to value had been due to an erroneous assumption of fact instead of law, relief would have been refused.^ So numerous are the decisions^ giving reformation for mistakes of law that one is not surprised to find it judicially declared* that ' ' the rule has .no application to mistakes in the lan- guage of a contract or in the choice of the form of an in- strument whereby it has an effect different from the intentions of the parties." In some cases the courts in giving relief have emphasized the fact that the plaintiff's mistake was due to the defendant's representations,* whereas in others they have said flatly that "whether 1. (1828) 1 Peters 1, 2 Ames Bq. Cas. 250. 2. See ante § 340. 3. Canedy v. Marcy (1859) 13 Gray 373, 2 Ames Eq. Case 258 (parties supposed that the words "except the widow's right of dower" would reserve also the reversionary interest of the heirs) ; McNaughton V. Partridge (1845) 11 Ohio 223, 2 Ames. Eq. Cas. 279 (bond was In- tended to hind a partnership hut bound only one partner) ; Blakeman V. Blakeman (1872) 39 Conn. 320 (mistake as to the effect of "privileges and appurtenances" in a deed); Pitcher v. Hennesy (1872) 48 N. Y. 415 (mistake as to effect of "risks of navigation"). See also 7 CoL L. Rev. 362. 4. Stafford v. Fetters, (1881) 55 Iowa 484. In that case an ordinary indorsement was made thinking that it was the proper method of making an indorsement without protest. A similar position was taken by the court in Dinwiddle v. Self (1893) 145 111. 290, 33 N. E. 892, where "bodily heirs" was put in a deed instead of "heirs." See also 24 Harv. Law Rev. 394, 395; "especially in the matter of reformation the general rule has been much relaxed." 5.' Snell V. Insurance Co. (1878) 98 U. S. 85 (policy taken out In name of one partner instead of in the name of the firm) ; Kyle v. Fehley (1892) 81 Wise. 67, 51 N. W. 257 (deed omitted to state that the con- veyaace was made subject to a lease). 464 BBFOKMATION OF INSTRUMENTS. [Chap, iv the mistakes now in question be regarded as one of law or one of fact, is not of much consequence."" Refor- mation has been refused in a few cases where the courts have felt bound by precedent and where they could find no plausible reason for an exception.' E. Kind and Amount op Pkoof Eequired. § 347. The so-called parol evidence rule. As already stated/ if at common law a contract or conveyancef were made in writing or if a contract were at first made orally or informally and later reduced to a written instrument, the instrument thus produced fixed the terms of the contract or conveyance. This rule is a rule of substantive law but since it is usually called in question by one of the parties wishing to introduce ex- trinsic evidence^ to show what the transaction was, it has come to be miscalled "the paroP evidence rule". If the rule had been applied as rigidly in equity as it is at common law, it is obvious that very little of the equi- table subject of reformation of instruments woi^ld have come into existence. As the court said in Tabor v. Cil- ley:* "The objection of the defendants that parol testi- 6. Park Bros. v. Blodgett & Clapp Co. (1854) 64 Conn. 28. For a statement of the history of the rule and an argument for the sound doctrine see 7 Col. Law Rev. 498-518. 7. Fowler v. Black (1891) 136 111. 363, 26 N. B. 596, 2 Ames Bq. Cas. 293, bill to reform deed by substituting "children" for "heirs." The court took the position that because it was a "mere naked mistake of law, unattended by special circumstances" no relief could be given. But in the cases cited supra there seem to have been no special cir- cumstancesl 1. See ante § 331. 2. And since further the evidence thus offered is usually oral. 3. "Parol" may have any one of three meanings. In the early law it meant merely "not under seal," whether in writing or not; at the present time it is more likely to mean "oral," but in the so-called parol evidence rule It properly means anything extrinsic to the instru- ment in question. In the great majority of cases the extrinsic evi- dence thus offered is oral. 4. (1881) 53 Vt. 487, 2 Ames Bq. Cas. 231. § 34-7] REFORMATION OF INSTRUMENTS. 465 mony is not admissible to show that the actual contract was different from that expressed in the deed, we think, is not well taken. The jurisdiction of a court of equity to reform a contract and make it conform to the actual agreement of the parties, is well established; and from the nature of the case, when the written contract ex- presses a different agreement, the actual and oral con- tract can only be proved by parol evidence. ' '° The only proper effect of the so-called parol evidence rule upon the subject of reformation of instruments is to require more than a mere preponderance of the evi- dence in proving the mistake,* but in a few cases relief has been refused apparently upon the ground that the rule was as effective as at common law. There is a tend- ency, however, to confuse the rule with the Statute of Frauds so that it is difiScult to tell whether the court is relying upon the one or the other. In Woolam v. Hearn' the plaintiff asked to have reformed an agreement for a lease by substituting £60 rental for £73 10s rental and for specific performance of the agreement as reformed. In refusing r.elief the court said: "By the rule of law, independent of the statute, parol evidence cannot be re- ceived to contradict a written agreement. To admit it for the purpose of proving that the written instrument does not contain the real agreement would be the same as receiving it for every purpose. It was for the pur- pose of shutting out that inquiry that the rule of law was adopted . . . Thus stands the rule of law. But when equity is called upon to exercise its peculiar jurisdiction 5. See also Baker v. Paine (1750), 1 Ves. Sr. 456 in which Lord Hardwicke said: "How can a mistake in an agreement be proved ex- cept by parol evidence?" And see Park Bros. & Co. v. Blodgett& Clapp Co. (1894) 64 Conn. 28; "he was thereby entitled to the parol evidence: for in no other way ordinarily can the mistake be shown." 6. I^slie V. O'Neil (1913) 108 Ark. 607, 156 S. W. 1017. 7. (1802) 7 Ves. .211, 2 Ames Eq. Cas. 297. Eq.— 30 466 BEFOBMATION OF INSTRUMENTS. [Chap, iv by decreeing specific performance, the party to be charg- ed is let in to show that under the circumstances the plaintiff is not entitled to have the agreement specif- itally performed . . . But this evidence is offered, not for the purpose of resisting but of obtaining a de- cree : first to falsify the written agreement ; and then to substitute in its place a parol agreement, to be executed by the court. Thinking, as I do, that the statute has been already too much broken in upon by supposed equit- able exceptions, I shall not go further in receiving and giving effect to parol evidence than I am forced by pre- cedent. ' ' Were it not for the mention of ' ' the statute ' ' in the last sentence, one would suppose that the court was thinking of the so-called parol evidence rule and not of the. Statute of Frauds. In Macomber v. Peckham* the court said: "The doctrine of the English Chancery Courts is that oral testimony is not admissible for the purpose of reforming an executory contract in writ- ing and then enforcing it, no matter whether the con- tract be within the statute or not." § 348. Statute of Frauds— English rule. The so-called parol evidence rule applies only where the parties have — usually voluntarily^— reduced their transaction to a single memorial.^ The Statute of Frauds, on the other hand, does not require any such formal document^ but does require that the evidence be in writing. Just how far, if at all, English equity has refused to give effect to oral evidence in reformation 8. (1889) 16 R. I. 485, 17 Atl. 910. 1. Sometimes integration is required either by common law or statute; Wigmore, Evidence §§ 2450-2453. 2. Theoretically the rule would apply when the act was embodied In oral form; Wigmore, Evidence § 2426. 3. The memorandum may be quite informal and be scattered through many writings such at letters, telegrams, etc.. § 348] REFORMATION OF INSTRUMENTS. 467 ' eases it is difficult to say.* In May v. Platt^ an action was brought by a purchaser for breach of his vendor's covenant for title. The defendant by way , of counter- claim sought reformation on the ground that the plot involved had been included in the conveyance by mistake. Reformation was refused, the court saving: "In a suit for rectification, parol evidence of mutual mistake is of course admissible to show that the completed deed° is not in accordance with the true agreement of the parties ; but when such agreement is itself in writing and is plain and unambiguous and in exact accord with the deed, it is obvious that the person claiming rectification must first rectify the agreement.'^ But what does that in- volve? In a case like the present, where the vendor" counterclaims for rectification only, he necessarily im- plies that he desires the transaction to stand as rectified, or in other words, starting de novo with the contract he first asks the court to rectify it and then to grant specific performance of the contract as rectified.^ This 4. In Atty Gen'l v. SltweU (1835) 1 Y. & C. 559, Baron Alderson said: "I cannot help feeling that, in the case of an executory agreement, first to reform and then to decree an execution of it would be virtually to repeal the Statute of Frauds." 5. (1900) 1 Ch. D. 616, 2 Ames Eq. Cas. 300. 6. In Johnson v. Bragge (1901) 1 Ch. 28 a marriage settlement was rectified so as to conform to a previous oral agreement. - 7. Is this really obvious? It is difficult to see how the existence of a prior written agreement should have any other effect than per- haps to require stronger proof of the mistake. Is it really necessary to reform the written agreement? Why not reform the deed and ignore the written agreement if the proof is sufficiently cogent? 8. The court here seems to assume that if before making the deed the parties have attempted to reduce their oral bargain to writing, that in such a case if rectification is sought there is involved the giving of specific performance, whereas if no such attempt had been made, specific performance would not have been involved. It is difficult to follow such reasoning. Perhaps it should be added here that in May v. Piatt the deed conveyed too much instead of too little and therefore involved principles of constructive trust instead of specific perform- ance. 468 REFORMATION OF INSTRUMENTS. [Chap, iv , is contrary to the well settled practice, established by such cases as Woolam v. Hearn,' that a plaintiff cannot have specific performance of a contract with a parol variation. ' ' Considering .May v. Piatt in connection with Johnson V. Bragge" it is obvious that the real basis for the de- cision in May v. Piatt is not the Statute of Frauds be- cause it is impossible to see how the attempted reduction of the bargain to writing could have any bearing upon the question whether the statute is to be applied so as \ to deny, affirmative effect to the oral bargain. On the other hand, it is difficult to explain the two cases on the ground of the parol evidence rule, because that rule would logically apply to a deed whether preceded or not by a written contract. The English rule may therefore be summed up thus : Equity will disregard both the Statute of Frauds and the parol evidence rule if only a deed is involved, but will refuse to give reformation if between the oral bargain and the deed there has intervened an erroneous written contract. It is difficult to see any justification for such a rule. § 349. Same^-minority view in the United States. Where, because of a mistake, a deed has conveyed too much^ to the defendant, the latter stands in the position of a constructive trustee in respect to such ex- cess, and therefore the Statute of Frauds — usually by 9. See ante § 347. 10. See supra, footnote 6. 11. The language of the court seems to indicate that they had In mind the parol evidence rule and not the statute of frauds; the only thing that could possibly be construed as a reference to the statute is the citation of Woolam v. Hearn, which, as has already been indicated, makes only an unexpected reference to the statute. See ante § 3.47. 1. Either too many acres or too great an interest. And the same reasoning applies to contracts. § 349] REFOBMATIOlir OP INSTEUMENTS. 469 its express terms — does not apply to a suit for refor- mation because the reformation is only one means of en- forcing the constructive trust: instead of having the deed corrected it would be usually equally effective to compel the defendant to convey back the excess. This is the rule practically everywhere.^ But when by mistake the deed has conveyed too little, or when the written contract for the conveyance describes less than did the real bargain/ there is a minority of states in this country that refuse to correct the error if the evidence of such error is oral. In Glass V. Hiilbert* the plaintiff asked to have a deed so reform- ed as to inclnde a portion of land that had been orally bargained for but was omitfed by mistake. The court refused relief on the ground that as to the omitted tract the Statute of Frauds had no more been complied with than if there" had been a separate oral contract for the omitted tract and the vendor had refused to convey, saying: "Such a reformation not only requires a de- scription of the subject matter of the sale different from the express terms of the oral contract, but would enlarge the effect and operation of the deed as a conveyance. It involves the transfer of the legal title to land not covered by the deed already given. It requires a new deed t^ be executed and delivered by the defendant to the plaintiff. Whether that deed shall embrace the en- tire subject of the alleged contract of purchase, with a corrected description to make it conform to facts and 2. It Is another .criticism of the decision in May v. Piatt that the reformation sought in that case was to limit the scope of the convey- ance and hence the Statute of Frauds was clearly inapplicable; the de- fendant was not really asking for specific performance but to have a constructive trust declared as to whatever excess was conveyed by the deed. See ante § 348. 3. Davis V. Ely (1889) 104 N. C 16, 10 S. B. 138; Macomber v. Peckham (1889) 16 R. I. 485, 17 Atl. 910. 4. (1819) 102 Mass. 24, 470 BEJPOBMATIOM- OF INSTRUMENTS. [Cliap. iv abuttals as they were represented to be, or merely convey the seventeen acres omitted from the deed already given, the order for its execution will enforce the specific per- formance of a contract for the sale of lands, for which there exists no memorandum, note or other evidence in writing signed by the party to be charged therewith. As to the seventeen acres in dispute, the obligation to convey them rests solely in the oral contract. The de- fendant denies any contract which includes them. The plaintiff seeks to establish such a conti'act by parol evidence and enforce it. The deed itself furnishes no means of making- the correction sought for and no evi- dence of the contract relied on for this purpose: nor is it in any sense an acknowledgment of the substance of the alleged oral agreement." § 350. Same — prevailing American view. By the great weight of authority in this country courts in reformation cases are not influenced any more by the Statute of Frauds than they are by the parol evidence rule, paying no attention to whether the scope of the contract or conveyance is sought to be enlarged or restricted. In Noel's Ex'r v. Giir the court stated the majority view as follows: "Whether the parol evi- dence offered to correct the writing on account of fraud or mistake shows the verbal contract to be broader than the written instrument, covering more or a different subject matter, or enlarging the terms or is narrower than the written instrument, either in the terms or the subject matter of the contract, courts of equity will grant the relief by reforming the contract so as to prevent fraud or mistake. The Statute of Frauds, in granting such relief, is not violated, but 'is uplifted' that it may not perpetrate the fraud that the legislature designed it to prevent." And the court explains the origin and growth of the minority view thus: "The courts of the 1. (1886) 84 Ky. 241. § 350] REFOBMATION* OF INSTRUMENTS. 471 States that now put the most stress on this doctrine had no general equity jurisdiction, but only such limited equity jurisdiction as the statutes of the State^ conferred upon them. A few other states, however, with general equity jurisdiction followed in the same line of thought." As a matter of strict logic there is much to be said for the minority view,' especially in those jurisdictions which have rejected entirely or have a very limited doctrine of part performance as taking a suit for specific performance out of the operation of the Statute of Frauds.* But in those states which have a liberal part performance rule the fact that some conveyance or writ- ten contract has been made would seem to be quite as satisfactory a reason for "uplifting" the statute as the taking of possession by the purchaser or lessee.^ In a state which holds the minority view but also has a part performance rule, reformation will, of course, be 2. The court has in mind Massachusetts and Maine. 3. In approval see 12 Col. Law Rev. 645. In Elder v. Elder (1833) 10 Me. 80, the court said: "A deed conveys one farm where it may he proved hy parol that it should have conveyed two. Here equity cannot relieve without violating the statute. To do so would be to enforce a contract in relation to the farm omitted, without a memorandum In writing." 4. Massachusetts does have a limited doctrine and North Carolina has entirely repudiated it. See 1 Ames. Eq. Cas. 284-288. 5. In urging that reformation he regarded as a subject distinct from specific performance and not as merely an occasional means ot giving specific performance the court in Gonaway v. Gore (1880) 24 Kan. 389 said: "If a parol contract were sought to be enforced, the arguments and authorities of counsel would be in point. But the re- formation of a deed already made, — the correction of a contract already in writing — involve very different considerations ... It is not the substituting of acts in part for the written contract; but it is making the written the expression ef the oral contract . . . The re- formation implies the existence of a written contract. It corrects that which exists and does not seek to avoid the necessity of that which Is not." . 472 EE^OB]VtATION OF IfTSTEUMENTS. [Chap, iv given if the purchaser or lessee has been placed in pos- session of the omitted premises." In jurisdictions which have adopted the prevailing view as to reforming land contracts, a similar rule prevails as to other sections of the Statute of Frauds and to other similar statutes. In Neininger v. State' the recognizance in a bastardy suit called the complain- ant Margie Hyne instead of Margie Cross; the State asked for reformation against the surety in the recognizance. The defence set up was that section of the Statute of Frauds relating to sureties, but the court held that since the Statute of Frauds was no bar to the reformation of land contracts and conveyances, it was equally no bar to reforming a contract as against a surety. In Hath- away V. Brady* action was brought on a note asking that the note be reformed by inserting "per month" after "2%." There was a statute requiring that agree- ments to pay more than 10 per cent be in writing, but the desired relief was given, the court saying: "The power of a court of equity to correct mistakes in con- tracts which the statute requires to be in writing — such as conveyances of real estate — and to permit such mis- takes to be proved by parol evidence, is as well es- tablished as in cases where the contract is not required to he in writing. In fact, the greater class of cases in which this relief has been granted, has 'been that of conveyances of real estate, which the law requires to be in writing." § 351. Statute of Wills. It seems to be generally agreed that although courts of equity or of probate will go very far in construing 6. Metr. Lumber Co. v. Lake Sup. Ship Co., (1894) 101 Mich. 577; Beardsley v Duntley (1877) 69 N. Y. 577. 7. (1893) 50 0. St. 394, 34 N. B. 633. 8. (1863) 23 Cal. 121, 2 Ames Bq. Cas. 299; ■^ 35l] EEFORMATlOli' OF iitSTBUMJlNTS. 473 wills where there is a mistake apparent on the face of the will,^ they will give no relief where in order to make the will conform to the real intent of the testator they are compelled to give effect to extrinsic evidence of his intent by making it a part of the will.^ Some- times the reason given for denying reformation is that the persons seeking such relief are volunteers.^ That this reason alone is not entirely adequate is shown by the fact that if by mistake a deed of gift does not convey as much as the donor intended and the donor is now dead,, the intended donee may in many jurisdictions get reformation against the heirs or personal represent- atives of the donor.* The reason more usually given is that of the court in Hunt v. White :° "It is not proposed to call in ex- trinsic evidence to enable the court to arrive at the meaning of the testator's language, used in the will itself, but to introduce into the will an intention not apparent upon its face, aijd different from that which the language used imports, by the proof of other lan- guage not contained in the will: in effect, to make a new devise for the testator, which he is supposed to have omitted, and not quite consistent with that he has made. 1. And in order to arrive at the meaning of the words of the will, they will admit extrinsic evidence., See Wigmore, Evidence §§ 2467, 2477. 2. There seems to be only one case where the court purported to reform a will. In Wood v. White (1850) 32 Me. 340 a bequest was corrected by substituting "George Wood" for "J. Wood;" but since the evidence showed that the testator had been accustomed to address letters to George Wood as J. Wood, it seems a case of interpretation rather than reformation. 3. 34 Cyc. 924; Sherwood v. Sherwood (1878) 45 Wis. 757. Of course a devisee or legatee is not always a volunteer; but if the testa- tor had made a prior contract to devise to the plaintiff, it would be treated substantially like other specific performance cases. See ante § 89. 4. See ante § 344. 5. (1860) 24 Tex. 643. 474 RKFOEMATION OF INSTRUMENTS. [Chap, iv The effect of the admission of such evidence would be that the will, though made and executed with the re- quisite legal solemnities by the testator in his life-time, would really and in fact be made by the witnesses after his death. It is unnecessary to advert to the danger of admitting such evidence. It is sufficient that there is no authority for it in the law; that it would destroy all the guards intended to be secured by the statute of frauds, and the statute concerning wills, for the pre- vention of frauds and perjuries ; and the statute would contravene the clearest and best established prmciples and rules of law." This second reason by itself can hardly be deemed conclusive, because there is no apparent reason way courts of equity might not just as well have "uplifted" the statutes with reference to wills as the statutes re- lating to deeds and contracts, with the same safeguard of requiring clear, cojivincing proof of the mistake. The real explanation of the flat rule denying relief seems to be that at the time that equity was acquiring its jurisdiction of rectification, wills were under the jurisdiction of the ecclesiastical courts: and when later courts of equity might have extended their jurisdiction they were in a more conservative mood and perhaps felt bound by their tradition of non-interference. The rule is now' so thoroughly settled that a statute would be necessary to change it. § 352. Amount of proof required. In giving reformation equity courts are nearly al- ways compelled to disregard either the parol evidence rule of the Statute of Frauds or both; they therefore require aS a counterbalance that the mistakes be proved by more than a mere preponderance of the evidence.^ Thus it has been said that "the proof must be of the 1. Leslie V. O'Neil (1913) 108 Ark. 607, 156 S. W. 1017. § 353] EEPORMATION OF INSTRUMENTS. 475" most convincing character'"; that it must be "clear, strong and satisfactory'"; that "the evidence must be clear, unequivocal and decisive, not evidence which hangs equal or neavlj equiUbrio."* In a few cases the phrase "beyond a reasonable doubt" has been used, but in Southard v. Curley® it was held, after considering a great many cases, that it was not error to refuse to charge that "the burden of proof is on the defendant to satisfy the jury beyond a reasonable doubt that there was a mutual mistake" on the ground that the courts which had used the phrase had not meant it in the technical sense of the criminal law. It would seem that the question is largely an academic one since in the great bulk of reformation cases there is no jury trial and the difference in the phrases discussed above is not likely to have much influence on a court. F. Belief fok and Against Third Persons. § 353. Analogy to other equities. In general the equity of reformation, like the equity of specific performance^ is freely assignable by the owner. The most usual case of assignment occurs where the mistake is repeated in later transactions. In Cole V. Fickett^ A bargained to convey lots X and Y to B; by mistake of the scrivener the deed described only X. B went into possession of both lots and later sold them to the plaintiff, but the conveyance repeated the original mistake. B put the plaintiff in possession of both lots. The plaintiff was entitled to reformation because his bargain with B for lot Y not only created an equitable right to the lot as against B, but since an equity court 2. Park Bros. v. Blodgett Ins. Co. (1894) 64 Conn. 28, 29 Atl. 133. 3., Altro V. Gowland (1904) 90 N. Y. Supp. 796. 4. U. S. V. Munroe (1830) 5 Mason 572. 5. (1892) 134 N. Y. 148, 31 N. E. 330. 1. See ante § 8^. 2. (1901) 95 Me. 265, 49 Atl. 1066, 2 Ames Eq. Cas. 178. See ante 333. '476 REPORMATIOJT OF INSTEUMENTg. [Chap. IV is always ready to do complete justice wherever possible, the bargain entitles him to have all previous mistakes corrected.^ If the mistake had been discovered before the bargain and the conveyance to the plaintiff, it would ordinarily require an express assignment of the equity; a mere conveyance of lot X would in such a case not be sufficient.* Like other equities, reformation may be had against all but bona fide purchasers for value,"' including dev- isees,° attaching creditors,^ judgment creditors and purchasers with notice' and beneficiaries of a life in- surance policy." § 354. Reformation against a married woman. At common law a married woman could, not make a binding contract and therefore specific performance could not be enforced against her.^ She could, however, convey her land by a deed in which her husband joined. If such a deed should be reformed It would, therefore, be 3. Altho In substance the bargain is an assignment of B 's equity of reformation to the plaintiff, B. himself may still sue for reformation. Tillis V. Smith (1895) 108 Ala. 264, 19 So. 374. 4. See dictum in Blackburn v. Randolph (1878) 33 Ark. 119. 2 Ames Eq. Gas. 183. 5. That it is not enforcible against a bona-fide purchaser, see Seeley y. Brumble (1862) 6 Jones (N. C.) 295. 6. Christman y. Colbert (1885) 33 Minn. 509, 24 N. W. 301. 7. BuUoek v. Whipp (1885) 15 R. I. 195, 2 Atl. 309. 8. Berry, Demovllle & Co. v. Sowell (1882) 72 Ala. 14. In Citi- zens' National Bank v. Judy (1896) 146 Md. 322, 43 N. B. 259, a peculiar distinction was taken. In a mortgage given to secure a pre-existing debt some land was omitted by mistake. It was held that tho a pre- existing debt was not such consideration as to cut off prior equities yet the mortgagee was entitled to reformation as against subsequent pur- chasers or judgment creditors with notice. 9. Gray v. Supreme Lodge, Knights of Honor (1888) 118 Ind 293, 20 N. B. 833. 1. See ante i 179. § 355] EEFOBMATION OF INSTRUMENTS. 477 another instance of a specific equity of reformation'' as distinguished from reformation as a means of giving specific performance. Where the mistake has consisted of an error in the description of the property^ or in the omission of the name of the husband or wife from the body of the deed/ there has been a tendency to give relief. But where the deed is defective because the husband has not been joined in the deed relief has been denied.^ The question has now become largely aca- demic because of legislation making the married women capable of binding themselves by contract. G. Plaintiff's Conduct as a Defense. § 355. Lapse of time. The effect of lapse of time upon a suit for refor- mation varies much ac^cording to circumstancQS. If the plaintiff has all the time been in undisturbed pos- session of the tract which was mistakenly omitted from the conveyance, no length of delay will bar him.^ In 2. See post § 360. 3. In Hamar v. Medsker (1878) 60 Ind. 413, 2 Ames Bq. Cas. 228 the court said, in giving relief: "A deed has been executed by the wife, in conjunction with her husband, for the land intended to be conveyed. This satisfies the requirement of the statute, and the title r of the purchaser ought not to be defeated by the mistake in the descrip- tion of the land Intended to be thereby conveyed." See contra, McRey- nolds V. Grubb (1899) 150 Mo. 352, 363. 4. Parish v. Camplin (1894) 139 Ind. 1, 37 N. E. 607. In Cannon V. Beatty (1897) 19 R. I. 524, 34 Atl. 1111 the decision contra seemed to be based upon the court's notion that such an omission was a fail- ure to comply with a statutory requirement. 5. Gebb v. Rose (1874) 40 Md. 387. Much emphasis was laid upon the fact "that a statute required the husband to join. 1. Wykle V. Bartholomew (1913) 258 lU. 358, 101 N. E. 597; Ruekerman v. Cory (1888) 129 U. S. 387: "Laches are rather to be imputed to the defendant who, although claiming to have been the absolute owner of the lands since 1862, took no action against the l.ilaintift till this ejectment suit was instituted." 478 REl'OEMATION OF INSTRUMENTS. [Chap, iv cases where the statute of limitations is applied by way of analogy, the statutory period is usually considered as beginning when the plaintiff found out the mistake or could have discovered it by the exercise of ordinary care." In applying the equitable doctrine of laches the courts in reformation cases as in other equity cases will take into consideration the entire facts of the case in determining whether, on the whole, the delay of the plaintiff has been such as to render the giving of refor- mation inequitable to the defendant.' Unreasonable delay, independently of any statute of limitations, con- stitutes a defence in a court of • equity.* § 356. Negligence in failing to discover mistake. It seems to be assumed as well settled that a plain- tiff may be barred from reformation because of his failure to detect the mistake in the instrument. Cases where this was the controlling factor seem to be rare,^ but there are many eases where it is one of several factors in causing the denial of relief." On the other 2. Breen v. Donnelly (1887) 74 Col. 301, 15 Pac. 845. DuvaU v. Simpson (1894) 53 Kan. 291, 36 Pac. 330, 2 Ames Equity Cases 311 note. 3. In Sable v. Maloney (J880) 48 Wis. 331, 4 N. W. 479, 2 Ames Eq. CaS. 310, the plaintiff failed because of delay and acquiescence for fifteen years. In Daggett v. Ayer (1888) 65 N. H. 82, 18 Atl. 169, 2 Ames Eq. Cas. 232, the mistake was discovered in 1871 but suit was not brought till 1883; this delay was one of the grounds for refusing relief. In Bloomer v. Spittle (1872) L. R. 13 Eq. 427, 2 Ames Eq. Cas. 309, a delay of four years was an element in inducing the court to give the option .to the defendant of rescission instead of reformation. See 2 Ames Eq. Cas. 311 note for collection of cases where relief was granted after long delay. 4. Sable v. Maloney (1880) 48 Wis. 331, 4 N. W. 479, 2 Ames Eq. Cas. 310. 1. Eldridge v. Dexter etc. R. R. Co. (1895) 88 Me. 191, 33 Atl. 974 (failure to read a deed). There are several rescission cases on the point. See Brown v. Fagan (1880) 71 Mo. 513. See post § 377. 2. See Bloomer v. Spittle (1872) L. R. 13 Eq. 472, 2 Ames Eq. Cas. 309; "It is the bounden duty of the purchaser, when he pur- § 357] KEFOBMATION OF IJSTSTEUMENTS. 479 hand the influence of the plaintiff's failure may be neutralized or overcome by other circumstances, such as the plaintiff's illiteracy' or the nature of the instru- ment in which the mistake occurred.* If the defendant has acted fradulently in the performance of the oral bargain or in reducing it to writing,^ the plaintiff's failure to discover the error should ordinarily not bar ' relief.' § 357. Fraud on third persons— illegality. In Tabor v. Cilley^ the plaintiff mortgagee asked to have his mortgage reformed so as to include four notes which he alleged were omitted by mistake. One ground for denying relief was that the plaintiff* had the mortgage so drawn as to lull the other creditors into security and avoid proceedings in insolvency. It does not appear whether there was a prior agreement to secure the omitted notes; if there were such prior agreement the plaintiff was properly barred by his fraudulent conduct from what would otherwise be a clear right to reformation. If there were no such chases land, to look at his conveyances and see what it Is that he has got." 3. Kinney v. Ensminger (1888) 87 Ala. 340, 6 So. 72. 4. In Palmer v. Hartford Insurance Co. (1887) 54 Conn. 488, 9 Atl. 248, the failure of the plaintiff to read over a fire insurance policy was held to be no bar to reformation even after loss occurred!"^ 5. See ante § 338. 6. Hitchins v. Pettingill (1876) 58 N. H. 3, 2 Ames Bq. Cas. 307. The court laid no particular emphasis on the fraud, however. "The rule caveat emptor applies to the making of the contract of pur- chase, the negotiations, the agreement, the inducements upon which the minds of the parties met, but not to the formal clerical process of giving the purchaser written evidence of the completed bargain." See also Ward v. Spelts (1894) 39 Neb. 809, 58 N. W. 426; Albany City Saving Inst'n. v. Burdick (1881) 87 N. Y. 40. 1. (1881) 53 Vt. 487, 2 Ames Eq. Gas., 231. 2. The language of the court indicates that the plaintiff at least shared this fraudulent intent. 480 BEFORMATION OF INSTBtrMENTS. [Chap, iv prior agreement the mortgagee's right — as has been already pointed out* — is merely against the mortgagor and not against other creditors. In Henderson v. Dickey,* the defendant's ancestor had conveyed lot "H" to "W", the plaintiff's assignor, omitting lot "E" by mistake; reformation was sought but refused on the ground that W's husband had con- veyed lots "H" and "E" to T in fraud of the grantee's creditors. It would seem, however, that the creditors would be entitled to reformation. That the transaction was tainted with illegality may bar reformation. In Hawkins v. Pearson® the plain- tiff asked to have a mortgage reformed but relief was denied because it appeared that there was usury in the mortage contract and the plaintiff had not offered to do equity in releasing his claim to all interest on the debt. § 358. Compromise. If there is a doubtful question of either fact or law and a compromise is fairly entered into, the social in- terest in the security of transactions demands that the compromise shall stand. In Naylor v. Winch^ the court said: "If a party acting in ignorance of a plain and settle^^rinciple of law is induced to give up a portion of his indisputable property to another under the name of compromise, a court of equity will relieve him from the effects of his mistake. But where a doubtful ques- tion arises, such as the question of construction upon the will of the testator, it is extremely reasonable that parties should terminate their differences by dividing the stake between them in the proportions which may 3. See ante § S43. 1. (1864) 35 Mo. 120, 2 Ames Eq. Cas. 185. 5. (1892) 96 Ala. 369, ll' So. 304. 1. (1824) 1. Simons & Stuart Ch. 555. § 360] KEPORMATION OF INSTEUMENTS. 481 be agreed upon . . . It is enough to support this deed, that there was a doubtful question and a com- promise fairly and deliberately made upon consideration : and the actual rights of the parties, whatever they might be, cannot affect the question..'" § 359. Ratification— election of remedies. If the plaintiff has ratified the mistake it is too late to ask for reformation.^ Such ratification some- times consists in having brought an action at law upon the basis of the uncorrected instrument. In Washburn V. Great Western In?. Co.,- the plaintiff asked to have an insurance policy reformed by striking out a printed clause of warranty. In defense it was shown that the plaintiff had already sued at law alleging compliance with the warranty and had failed. In denying relief the court said : ' ' His bill . . . proceeds on grounds wholly inconsistent with those maintained by him in the action at law, and seeks to show that his contract with the defendants was essentially different from that which he alleged, and submitted to the final judgment of the court in that action . . . Any decisive act of the party, with a knowledge of his rights and of the fact, determines his election, in the case of conflicting and inconsistent remedies. ' " H. Miscellaneous. § 360. Reformation as an independent equity. In a large number of cases where reformation is granted the plaintiff has either a right to specific per- formance or a right to have a constructive trust "de- 2. See also Rogers v. Ingham (1876) L. R. 3 Ch. D. 351. 1. Rogers v. Ingham (1876) 3 Ch. D. 351. 2. (1873) 114 Mass. 175. 3. See also Steinbach v. Relief Fire Ins. Co. (1879) 77 N. Y. 498; Caird v. Moss. (1888) 33 Ch. D. 22. Eq.— 31 482 befoemation of instruments. [Chap, iv clared;^ and in some jurisdictions there has been a tendency to consider reformation as a mere means of enforcing such other equities." There are, however, several instances in which equity has recognized a distinct and independent equity of reformation, some of which have already been dis- cussed. A wife may have as against her husband re- formation of a voluntary deed^ tho she could not get specific performance of a voluntary promise to provide for her. Similarly, a creditor may get reformation against his debtor of an instrument executed by way of security or payment of a pre-existing debt, tho he could not have compelled the execution of the instru- ment.* In some jurisdictions a mere volunteer may get reformation against the representatives of a deceas- ecji donor.* Under the prevailing American view of the effect of the statute of frauds, a deed which con- veys too little will .be reformed so as to convey the omitted part" tho the sole evidence of the error is oral, and the plaintiff would be without remedy if no deed whatever had been executed. And lastly, equity will reform a note'' or bond* where of course no question of specific performance or of constructive trust could possibly arise. 1. In Cole V. Ficket (1901) 95 Me. 265, 49 Atl. 1066, 2 Ames Bq. Cas. 178, one deed conveyed too little and another conveyed too much; hence both specific performance and constructive trust are involved. 2. This is usually the position taken in those jurisdictions that refuse to give effect to oral evidence to enlarge the effect of a deed or contract. Davis v. Ely (1889) 104 N. C. 16, 10 S. B. 1Z8, discussed in § 349 ante. 3. See ante | 343. 4. See ante § 343. 5. See ante § 344. 6. See ante § 350. 7. Hathaway v. Brady (1863) 23 Cal. 121, 2 Ames Eq. Oas. 299. 8. Griswold v. Hazard (1891) 141 U. S. 260, 2 Ames Eq. Cas. 259. 4 361] REFORMATION OF INSTRUMENTS. 483 § 361. Form of relief. If by mistake a deed conveys too much an effective way of rectifying the mistake is to compel the grantee to reconvey the excess f- or if the deed conveys too little, to corrpel the grantor to convey the omitted part.' or to have the old deed changed and then re-executed by the grantor. Merely changing the old deed under order of court, whether the deed conveys too much or too little or needs alteration in other respects — is effective only if the equity court assumes the power to give an in r^em effect to its decrees.* It is interesting to note that courts have sometimes done this.* In some cases such a power is necessary in order to give complete relief \nd should be provided for by statute if a court feeh prevented by precedent; for example, if the party agai.ast whom relief is sought is an infant," or is otherwise incapable of executing the conveyance or contract. As a practical matter, 'if the property involved is within the jiris- diction of the court, the mere correction of the inistru- ment may be made effective by enjoining* the defendant from interfering with the property. 1. As in Andrews v. Andrews (1889) 81 Me. 337, 17 Atl. 166. See also Brown v. Lamphear (1862) 35 Vt. 252, 2 Ames Eq. Cas. 203 where a reservation of a water right was omitted. 2. Hitchins v. Pettengill (1876) 58 N. H. 3; 2 Ames Bq. Cas. 307. 3. In Malmeshury v. Malmesbury (1862) 31 Beav. 407 the court refused to do this and required a re-execution. 4. In Stock V. Vining (1858) 25 Beav. 235, the court merely or- dered stricken out the words erroneously introduced into the marriagn settlement, added his initials, and ordered his decree to be endorsed on the instrument. The procedure was similar in Smith v. IllifCe (1875) L. R. 20 Eq. Cas. 666. 5. White V. White (1872) L. R. 15 Eq. Cas. 247, 2 Ames Eq. Cas. 235. 6. An injunction was used as a means of rectiflgation of a bond in Griswold v. Hazard (1891) 141 U. S. 260, 2 Ames Eq. Cas. 259: (bill to reform bond so as to make sureties liable merely for appear- ance of debtor and not for performance of decree; since the debtor ■was dead, re-execution of the bond was impossible, so an injunction 484 EBFORMATION OF INSTRUMENTS. [Chap, iv § 362. Execution sales — statutory formalities! — fore- closure of mortgage. In Young v. McGown^ the plaintiff asked for re- formation of a levy which by mistake described the property of X instead of that of the judgment debtor, asking that the defendant be compelled to convey to him the land intended to be levied upon. The court's denial of relief was placed upon several grounds. One was that the proceedings were in invitum, the mistake was' entirely that of the creditor or sheriff, not of the debtor and therefore there should be no reformation as against the latter. Since a donor who has conveyed too much may get reformation to his own intent against the donee^ who would otherwise be unjustly enriched, it is difficult to see why the fact that the judgment debtor, has no intent in the matter should prevent the judgment creditor from getting reformation to his in- tent against a debtor^ who may otherwise escape the payment of his debt. A somewhat sounder basis* for the decision is that the proceedings were under a statute which required particular formalities, there being a tendency to hold that such statutes are binding in equity as at law.' The proper remedy in Young v. ■was given against suit on the bond). See also Waldron v. Letson (1862) 15 N. J. 126 y 2 Ames Eq. Cas. 223 where reformation of a fore- closed mortgage was effected by an injunction. 1. (1873) 62 Me. 56, 2 Ames Bq. Cas. 247. 2. See ante § 342. 3. Oddly enough, the court mentions the fact that a donee cannot get reformation against a donor as if they considered such a situa- tion analogous. It is difiBcult to see any analogy. 4. The third ground given by the court was the negligence of the plaintiff in making the mistake. See ante §. The fourth was that to give relief "would render the registry of deeds of little value." The answer to the fourth ground is that liie other equities, reformation will not be enforced against one who has relied on the registry. See ante | 353. 5. Ex^parte Bulteel (1790) 2 Cox Eq. 243 (mortgage of ship failed § 362] KBFORMATION OF INSTRUMENTS. 485 McGown was to move the court to grant the ofBcer leave to amend his return. In Waldron v. Letson" a mortgage omitted by mis- take a lot of land used in connection with a tanyard. The mortgage was later purchased and the premises sold to the plaintiff who went into possession of the omitted promises. The mortgagor's son sued in ejectment and the equity plaintiff sued to reform the mortgage and the sheriff's deed. The court said that they could not give reformation because the sheriff's deed' corresponded to the mortgage and the mortgage could not be reformed because it had been extinguished by the decree; but the court gave exactly equivalent relief by an injunction against the law plaintiff. The decision is to be commend- ed because the mortgagor had evidently received the value, of the omitted premises and the equity plaintiff apparently had no other remedy. If the land had been mistakenly advertised so that the purchaser did not think he was buying the omitted tract, the foreclosure, and sale should be set aside, the mortgage reformed and a new foreclosure and sale ordered.^ to comply with Ship Registry Act). This is certainly justifiable if the Statute provides a way of correcting the error as in Hall v. Klep- zig (1889) 99 Mo. 83, 12 S. W. 372 (incomplete execution of sheriff's deed). See also Rogers v. Abbott (1871) 37 Ind. 220. 6. (1862) 15 N..J. Eq. 126, 2 Ames Eq. Gas. 223. 7. In some states there is reluctance to reform a sheriff's deed on foreclosure on the ground that the statute requiring .certain formali- ties is binding on equity courts. Armstrong v. Short (1883) 86 Ind. 81; but in other jurisdictions reformation is freely given; Quivey v. Parker (1859) 37 Col. 165: "But it is said that mortgage cannot now be reformed, because it has become merged in the judgment of fore- closure, and that it is not competent for a court of equity to reform the judgment and the sheriffs deed. We have been referred to no au- thorities in support lOf this proposition, and, on principles of reason and justice, we do not perceive why a court of equity may not reform mistake, in judgments or decrees, in like manner as in written instru- ments." 8. Conyers v. Mericles (1881) 75 Ind. 443. A similar situation is presented where there is no mistake in the mortgage Isut the fore- closure proceedings fail to describe the right lan4. Unless there is a common law or statutory method of correcting the error, equity should either reform or set aside the foreclosure depending upon whether the sale had been at a fair price for the mortgaged land. See 25 Harv. Law Rev. 478. CHAPTER VII. KESCISSION. A. In Generaij. § 363. Rescission distinguished from reformation. The main distinction between reformation and rescission/ as has already been pointed out,* is that reformation is an affirmance of the bargain^ as it was actually made, while rescission is a disaffirmance of the bargain itself. In order that reformation may be given there must have been a previous agreemeift* which the court may use as a standard for the correction of the erroneous instrument; in order that there be rescission such previous agreement i§ not only un- necessary but its existence would ordinarily prevent rescission.® The effect of reformation, therefore, is to rectify the transaction, while rescission cuts off or removes the attacked transaction leaving the parties in the same position as they were before such transaction took place.® § 364. Rescission in equity and at law. Reformation of instruments is exclusively a matter of equity jurisdiction.^ And so. is rescission where it is 1. Literally the word means a cutting away, a removal. 2. See ante § 337.. 3. In unilateral transactions, an a£Srmance of the donor's intent. 4. In unliteral transaction, a previous intent of the donor. 5. See ante § 337. 6. Except in reinstatement case, see post § 367, the parties are left without any affirmative legal relations. 1. See ante § 331. (4«6) §. 366] RESCISSION-. 487 desired to have instruments cancelled or where for other reasons it is necessary to have the court issue a command to the defendant in order to obtain adequate relief. In other cases, the principles of rescission have been adopted at common law^ so that in such cases it is not only unnecessary to go into 6quity but equity courts will frequently refuse to take jurisdiction be- cause of the adequaney of the remedy at law. The bulk of this chapter will therefore deal with the rescission of instruments, tho some nf the cases discussed will be common law cases decided upon equitable principles of rescission. § 365. Rescission and specicific performance. As already pointed out,^ a court may refuse specific performances to one party to a transaction and at the same time refuse rescission to the other. In other words it requires a stronger case of mistake, mis- representation, etc., to induce a court to give affirmative relief by way of rescission than it requires merely to deny specific performance. This leaves a neutral zone in which neither party can get equitable relief, each being left to whatever remedy he may have at law. B. Mistake. § 366. Intrinsic and extrinsic or collateral facts. Gnerally speaking reformation is properly given only where the mistake is in the expression or in the performance of the real transaction;^ rescission lies 2. For rescission in the sale of chattels, see Williston, Sales §§ 655, 656. 1. See ante § 156; and see Bates v. Delavan (1835) 5 Paige 299. 1. "A mistake which justifies reformation is one that occurs, not in the bargain itself, but subsequent to the bargain; it is a mistake in reducing to writing the contract of the parties;" 60 U. of Pa. Law Rev. 589. See ante § 333. 488 BEsoissioN-. [Chap, vii where the mistake is other than in the expression or performance. In order that mistake shall be ground for rescission it must, of course, be a mistake as to a material matter.^ In addition to this there seems to be a requirement that the mistake must be as to some- thing intrinsic such as mistake as to the existence of the subject matter of the transaction. If the mistake is as to something extrinsic or collateral such as the quality or characteristic of such subject matter rescission is refused. In Sample v. Bridgeforth* an action was brought on a note against the maker and indorseri; the indorser showed that the parties to the sale of the note mistakenly thought that the note was secured by a first trust deed on the maker's stock. In denying the validity of this defense the court said: "They both mis- took an important fact, collateral to the transaction. They thought the note, so bought and sold, was secured by a first trust deed on the maker's stock; and they were both innocently mistaken. . . . The defendant acquired exactly what he intended to get but what he would not have purchased if he had been fully informed. . . . It is well settled that this will not afford ground for a rescission of the contract." Assuming the line of division between intrinsic and collateral it is sometimes difficult to tell where the line should be drawn because it is not always easy to separate " an article from its attributes. In Hecht v. Batcheller* the defendant sold a note to the plaintiff; two. hours before the sale the makers of the note had made a general assignment for the benefit of creditors. Plaintiff sued in quasi contract to recover back the amount paid. In denying relief: "The makers of the note had made an assignment for the benefit of their 2. See ante § 365. 3. (1894) 72 Miss. 293, 16 So. 876, 2 Ames Eq. Gas. 207; Kowalke V. Milwaukee Elec. Light Co. (1899) 103 Wis. 472, 79 N. W. 762 (re- lease of action for personal injuries given ■while plaintiff mistakenly thought she was not pregnant). 4. (1888) 147 Mass. 335, 17 N. E. 651; 2 Ames Eq. Cas. 212. § 366] RESCISSION. 489 creditors, but this did not extinguish the note or destroy its identity. It remained an existing note, capable qi being enforced, with every essential attribute going to its nature as a note which it had before. Its quality and value were impaired but not its identity. The parties bought and sold what they intended and their mistake was not as to the subject matter of the sale but as to its quality."® It might well have been urged in the foregoing case that the business understanding of the parties was that the subject matter of the sale was not merely a note but a commercial instrument and that there was no longer a commercial instrument after the general assignm^t; similarly, in Sample v. Bridgeforth it might have been urged that the business - understanding was that the note assigned was a secured note. Such an argument is especially cogent in cases like the foregoing where the quality involved is much more important than the note itself. It would seem, therefore, that instead of applying the test of intrinsic or collateral mechanically it would be better either to apply it so as to niake it accord with business understanding or so to modify the rule as to provide that mistakes of characteristics or quality be ground for rescission if so important as to go to the root of the transaction.® 5. In Dambman v. Schulting (1878) 75 N. Y. 55 the plaintiff had given for $5,000 a release under seal of, his claim for $10,000 against the defendant, mistakenly supposing that the defendant was insolv- ent. Rescission was refused because the defendant's financial con- dition was considered to be an extrinsic fact. 6. In a few cases relief has been given in accordance with this, suggestion. In Sherwood v. Walker (1887) 66 Mich. 568, 33 N. W. 919 the defendant contracted to sell for about $80 a cow which both parties supposed to be barren; when the defendant later found out that the .cow was with calf he refused to deliver heri the plaintiff brought replevin. In holding that the defendant was entitled to rescind the sale the court said: "The mistake or misapprehension of the parties went to the whole substance of the agreement. If the cow was a breeder she was worth at least $750; if barren, she was not worth over $80 ^ . . It is true that she is now the Identical animal that they thought her to be when the contract was made; 490 RESCISSION. rChap. vii § 367. Mutual Mistake. In order to obtain rescission for mistake in bilateral transactions it is necessary to show either (1) that the mistake was mutual or common to both parties; or (2) that the defendant innocently caused the plaintiff's mistake; or (3) that the defendant was cognizant of the plaintiff's mistake; or (4) that the parties misunder- stood each other. If the plaintiff alone was. mistaken and the defendant did not cause the mistake and did not know of it, rescission is ordinarily refused. It is well settled that mutual mistake as to the existence of the subject matter of the transaction is ground for rescission. In Riegel v. American Life Ins. Co./ the plaintiff had taken out a policy of $6000 on the life of his debtor L; later he surrendered the policy in exchange for a paid up policy of $2500, both parties acting upon the assumption that L was still alive. The plaintiff asked for and was awarded cancel- lation of the new policy and a reinstatement of the old on the ground that the basis of the transaction was the then existence of L and that since L had already died and the old policy had become due, the plaintiff was entitled to be restored to his former position.^ there is no mistake as to the Identity of the creature, yet the mistake was not the mere quaUty of the animal but went to the very nature of the thing." See also Griffith v. Sebastian Co. (1886) 49 Ark. 24, 3 S. W. 886; rescission was given of a conveyance of land tho the mis- take was as to a collateral matter, namely, as to whether the county seat had been moved. 1. (1893) 153 Pa. St. 134, 25 Atl. 1070. 2. See also Scott v. Coulson (1903) L. R. 2 Ch. D. 249, 2 Ames Eq. Gas. 195. In that case the plaintiH assigned to the defendant a policy of insurance on the life of D; at the time of the contract both parties mistakenly thought that D was alive but the defendant knew the truth at the time of the assignment. Even if the defendant had not found out the fact the plaintiff would have equally been en- titled to a rescission. In Gould v. Emerson (1894) 160 Mass. 438, 35 N. E. 1065, the plaintiff being Indebted to the amount of |10,000 to his partnership In the settlement ' of affairs, gav§ a note for that amount to his partner the defendant, instead of giving the note to the § 368] RESCISSION. . 491 Mutual mistake as to the ownership of the subject matter of the transaction is equally ground for res- cission. In Hitchcock v. Giddings^ the defendant thinking that he had an estate tail in certain land contracted to sell half of it to the plaintiff for £5000; later he executed a conveyance of it and the plaintiff having given a bond, paid £250 interest. The entail had al- ready been barred. In awarding to the plaintiff can- cellation of the bond and the return of the £250 the court said: "Suppose I sell an estate innocently, which at the time is actually swept away by a flood, without my knowledge of the fact; am I to be allowed to receive £5000 and interest because the conveyance is executed and a bond given for that sum as the purchase iponey, when, in point of fact I had not an inch' of the land, so sold, to sell? That was precisely the case with the present defendant; and it would be hard, indeed, if a court of equity could not interfere to relieve the purchaser.* § 368. Plaintiff's mistake innocently caused by the de- fendant. Whether the defendant himself is mistaken^ or not, if he has innocently caused the plaintiff to make afi intrinsic mistake the plaintiff is entitled to rescission. firm or making the note to the defendant $5,000 in amount. Reclssion was granted the he had paid $6,000 on the note. 3. (1817) 4 Price 135, 2 Ames Eq. Cas. 192. As to risk of loss by fire, see ante § 119. 4. See also -Turner v. Turner (1680) 2 Reports in Ch. 154, 2 Ames Eq. Cas. 263, where rescission was given to a plaintiff who supposed that he was not entitled, as executor, to a mortgage held by his testator. 1. If the defendant, being himself mistaken, has caused the plaintiff's mistake, it makes even a stronger case for rescission than the ordinary case of mutual mistake. In Bingham v. 'Bingham (1748) 1 Ves. Sr. 126, 2 Ames Eq. Cas. 264, J. B. conveyed by will to his eldest son D in tall, remainder in fee to J. B.'s own heirs. D di9d without issue and l«ft th^ estate to the plaintiff in fe«. Tlie 492 RESCISSION. [Chap, vii In Torrance v. Bolton^ the plaintiff bought land at an auction thinking it was free from incumbrances. There is nothing to show that the mistake was shared^ by the defendant, but rescission was given because the plaintiff's error was brdught about by the ambiguous way in which the property was advertised for sale. § 369. Defendant cognizant of the plaintiff's mistake. A defendant who at the time of the transaction is aware that the plaintiff , is acting under a mistake is certainly in no stronger position to resist a- decree of rescission than if he had shared in the mistake; in fact it is a stronger case for rescission because the defendant's conduct in such a case is fraudulent. In Haviland v. , Willets'^ the plaintiff did not know the rule in the law of wills that if a legatee dies before the testator his legacy lapses and does not go to his representatives; supposing, therefore, that he was not entitled to the lapsed legacy he made a settlement of his rights under the will on that basis. The defendant at first shared his mistake but discovered the truth before the transaction was entered into. In giving rescission the court laid emphasis upon the defendant's fraud in thus taking advantage of the plaintiff's mis- take.^ defendant erroneously persuaded the plaintiff that D could not devise in fee and induced the plaintiff to buy the estate for £80; rescission was given. See also Gee v. Spencer (1681) 1 Vernon 32. 2. (1872) L. R. 14 Bq. Cas. 124. 3. The court called it a common mistake but the facts given do not justify it. The difference is, however, of no legal importance here. 1. (1894) 141 N. Y. 35; 2 Ames Eq. Cas. 273. 2. See also Broughton v. Hutt (1858) 3 De Gex and Jones 501 (plaintiff thought that shares in a land company were realty and de- fendant knew that the plaintiff was mistaken) ; Paget v. Marshall (1884) 28 Ch. Div. 255 (defendant knew that the plaintiff had mis- takenly included too much in a lease). § 370] - RESCISSION. 493 § 370. Misunderstandings. If the 'written instrument does not correspond with the actual intent of either party thereto, but each party has made a different mistake, the situation has been called a misunderstanding.^ It is impossible, of course, to give reformation because there is no previous agree- ment by which the written instrument may be rectified.^ And since the instrument does not correspond with the intent of either party it can not be regarded as the agreement even at law;^ hence in cancelling the in- strument equity is really enforcing the common law. In Crowe v. Lewin,* the defendants thought they were conveying X which they owned, whereas the deed described Y which they did not own; the plaintiff expected to get Y but supposed that the defendants owned it. The plaintiff sought rescission and return of the land he had conveyed to the defendants. In holding it proper to give the relief sought, the court said: "In this case the minds of the parties never met. The contract in form was not a contract in fact. 1. See IX Col. Law Rev. 208, 320, 321. The article mentions two other kinds of misunderstandings: (1) where the offer and acceptance apparently agree but there is an equivocation because of which. the minds do not meet; (2) where the offeree performs or attempts to perform upon a misapprehension of the terms of the offer. The lead- ing case of (1) is Raffles v. Wichelaus (1864) 2 H. & C. 906; the parties agreed to buy and sell cotton to arrive "ex Peerless from Bombay." There were two ships of that name sailing from the same . port at different times; each party had in mind a different ship and apparently did not know of the existence of the other. Since the language equally applied to both ships neither party could insist upon having it construed according to his understanding and hence there was no contract. Since neither party asked for cancellation or any other equitable relief, the question was litigated and decided at law.- 2. See ante § 339. 3. At common law even where the parol evidence rule does not apply, the test applied is objective rather than subjective; in deter- mining the existence of a contract the test is not whether there was an actual meeting of the minds but whether there was an expression of mutual assent. 4. (1884) 95 N. Y. 423. 494 RESCISSION. ^ [Chap, vii It originated in mistake and that mistake was not mutual and about the same thing, but different on the part of each. . . . The defen(Jants' mistake was that they conveyed what they did not own and did not mean to sell. The plaintiff's was that he bought what he meant to buy but without the as- serted title in his grantors.. What one meant to sell the other did not mean to buy and what one meant to- buy the other did not mean to sell."^ § 371. Plaintiff alone mistaken — defendant innocent. If the plaintiff alone was mistaken — the defend- ant neither causing the mistake nor being cognizant of it — equity will ordinarily not give him affirmative re- liefs on the ground that it would be unfair to deprive an innocent defendant of the benefit of the transaction. On the other hand, it may be argued for the plaintiff that equity should relieve him from a transaction which he did not really intend to make, at least if compensation be made to the defendant for the damage actually suffered^ by having entered into the trans- action. Such is the doctrine of the civil law* and it has apparently been substantially adopted in Califor- 5. See also Clowes v. Hlgginson (1813) 1 V. & B. 526: "In such a case . . . the oae not intending to sell ■what the other meant to buy the court, feeling, the injustice of giving to either a performance" upon terms to which the other never agreed has come to the conclif- sion that there is no contract between them; that they did not rightly understand each other; and therefore it is not possible without consent to compel either to take what the other has offered." 1. Moffett & Co. V. City of Rochester (1898) 91 Fed. 28; 18 Harv. Law Rev. 624. And specific performance will usually not be decreed against him; see ante § 162. 2. Not usually including 'the loss of the bargain but merely such as to place the defendant in statu gup. 3. The doctrine is called "culpa in contrahendo," i. e. fault in" connection with the making of a contract. § 372] RESCISSION. 495 nia by statute.* In Goodrich v. Lathrop^ the plain- tiff, knowing that the defendant had a certain lot for sale went to examine it with a view to purchase but by mistake looked at a different lot from the one the defendant had for sale. . Being satisfied with the one she examined she entered into a written contract with the defendant to buy it; upon finding out her error she gave notice of rescission and sued to recover back the money she had paid under the contract. The court held that if the property could be returned by the ven- dee in substantially the same condition as when he re- ceived it, rescission could be granted under the code, awarding proper compensation to the defendant. § 372. Rescission of unilateral transactions. If the erroneous transaction was such as to in- volve the act of the plaintiff only and the effect of the transaction would be the unjust enrichment of the defendant, the plaintiff is entitled to have the transaction rescinded tho he was the only party mis- taken. In Banta v. Vreeland^ the plaintiff mortgagee cancelled the mortgage thinking that the mortgage debt had been satisfied; he now seeks to have the mortgage reinstated and foreclosed. In giving relief the court said: "The complainant received no consideration for the act — the defendant gave none. The complainant entered into no engagement from which he asks relief. Under a mistaken impression that the mortgage was satisfied he consented to, its cancellation. It is clearly against conscience that the defendant should avail him- 4. See Cal. Civil Code § 3408. "On adjudging the rescission of a contract, the court may require the party to whom such relief is granted to make any compensation to the other which justice may require." ,^ 5. (1892) 94 Cal. 56, 29 Pac. 329. ,, 1. (1802) 15 N. J. Eq. 103, 2 Ames Eq. Cas. 308. 496 RESCISSION. [Chap, vii self of the mistake to escape the payment of an honest debt."^ § 373. MistaJse of law — historical development. The historical development of this topic in the subject of reformation has already been traced;^ its development in the subject of rescission is similar. In early times, apparently no distinction was drawn be- tween mistakes of law and mistakes of fact.^ Later, due at least partly to Lord EUenborough 's unfortunate language in Bilbie v. Lumley,^ the rule came to be stated* that equity \ ould not grant rescission where the mistake was one of law.^ § 374. Same — present state of the law. On the whole, the rule has not been popular with the courts;^ some have apparently thrown the rule 2. See also Gerdine v. Menage (1889) 41 Minn. 417, 43 N. W. 91, 2 Ames Bq. Cas. 286, where the mortgagee cancelled the mortgage thinking he had acquired title under foreclosure proceedings; and Swedeshoro Loan etc. Ass'n v. Gans (1903) 65 N. J. Eq. 132, 55 Atl. 82. 1. See ante § 345. 2. Merrick v. Harvey (1649) Nelson 48; general release was set aside because it was not intended to release a certain bond. See also Turner t. Turner (1680) 2 Reports in Chancery 154, 2 Ames Eq. Cas. 263, where the plaintiff did not know that he had title as executor; and Bingham v. Bingham (1748) 1 Ves. Sr. 126, 2 Ames Eq. Cas. 204, mistake of law as to title. But see 8 Col. Law Rev. 485, 486, arguing that the early equity gave no relief for mistake of law. 3. (1802) 2 East 469; see ante § 345. 4. In Swedesboro Loan etc., Ass'n v. Gans (1903) 65 N. J. Eq. 132, 55 Atl. 82, the court attributes much Influence in this country to Chancellor Kent's remarks in the early case of Lyon v. Richmond (1816) 2 Johns Ch. 51, 60. 5. Dupre v. Thompson (1848) 4 Barb. 279, citing 1 Story's Eq. Juris. §§ 137, 138. 1. Apart from the lack of either logical or practical justifica- tion in denying rescission because the mistake was one of law § 374] RESCISSION. 497 overboard entirely,^ while others have beep so astute in drawing distinction as to leave very little of the rule. Thus, in practically all jurisdictions to-day, the rule does not apply where the mistake was as to the ownership of property, either upon the ground that such a mistake is one of fact^ or upon the ground that the rule applies only to mistake of a general rule of law and not to mistakie of a private right. In Cooper V. Phibbs* the court's argument was as follows: "lb is said, Ignorantia juris haud excusat; but in that maxim the word 'jiis' is used in denoting general law, the ordinary law of the country. But when the word 'jus' is used in the sense of denoting a private right, that maxim has no application. Private right of owner- ship is a matter of fact: it may be the result also of matter of law;^ but if parties contract under a mutual mistake and misapprehension as to their relative and respective rights,* the result is that that agreement is liable to be set aside as having proceeded under a common mistake." there is sometimes a considerable difficulty in determining whether a mistake is of law or fact. This is not surprising because law is merely a particular kind of fact. , 2. See Lansdowne v. Lansdowne (1730) Mosely 364; Broughton V. Hutt (1858) 3 DeG. & J. 501. 3. Swedesboro Loan etc., Ass'n v. Gans (1903) 65 N. J. Eq. 132, 55 Atl. 82: "The mistake was in respect to the ownership of the property upon which the cancelled mortgage was an incumbrance, and the English cases treat such a mistake as one of fact." 4. (1867) 3 H. of L. 149, 2 Ames Eq. Cas. 266. See also 17- Harv. Law Rev. 138 and Pusey v. Desbourrie (1734) 3 P. Wms. 315; GofC V. Gott (1858) 5 Sneed 562, 2 Ames Eq. Cas. 281 (mis- take of title of horse due to ignorance of the law of bona fide purchase for value). 5. What the court probably meant was that mistake of private ownership may or may not be due to mistake of law; if it is due to a mistake as to where the survey fixed the boundary line, it is due to a mistake of fact; but if it is' due to a mistake of the legal meaning of the word "children" In a deed or will, then It is due to a mistake of law. 6. If the suggested exception were applied liberally it would go far toward negativing the rule because most mistakes of law may be Eq. — 32 498 RESCISSION. '[Chap, vii In a few jurisdietions a distinction has been at- tempted between ignorance of law and mistake of 1-aw, denying relief for the former but not for the latter.'' While perhaps there may be something said for this* on the score of offering a premium to those who at- tempt to find out the law, it is much too fine a dis- tinction for everyday use, and gives no sufficient rea- son for denying relief for ignorance of law.® The tendency to evade the rule is also shown in such cases as Jordan v. Stevens^" where an exception was made because the parties were' not on equal terms ; and in Grriffith v. Sebastian Co." where the court held that since the mistake as to the location of the county seat was a mistake of fact, it was not material that it was induced by a mistake of the law which fixed the county seat. If a court still holds to the rule and construed as mistakes as to the legal rights of one or both of the parties. 7. Culbreath v. Culbreath (1849) 7 Ga. 64: "Tliere is a clear and practical distinction between ignorance and mistake of the law. Much of the confusion in the books, and in the minds of profes- sional men, upon this subject, has grown out of a confounding of the two. It may be conceded, that at first oyiew, the distinction is not apparent; but it is insisted that upon close inspection it be- comes quite obvious. . . . Ignorance implies passiveness; mis- take implies action. Ignorance does not pretend to knowledge, but mistake assumes to know. Ignorance may "be the result of laches, which is criminal; mistake argues diligence which is commendable." 8. Might it not be plausibly urged that one who has actively tried to find out and who has assumed to know is deserving of less consideration than one to whom no doubt has arisen, upon the ground that he chose to act upon such investigation knowing that a legal question was involved and thus undertook the risk of error? The application of such a distinction to the facts would often be no easy matter. 9. Since the rule denying rescission for mistake of law is so objectionable, perhaps any limitation of the rule, even if illogical, should be welcomed in the interests of justice, but the making of Ujoglcal exceptions is not the ideal way to correct anomalies in the law. 10. (1863) 51 Me. 78. 11. (1886) 49 Ark. 24, 3 S. W. £86. '§. 375] RESCISSION. 499 is unaWS^ to find any ground for an exception, which it considers satisfactory, rescission will be refused.^ ^ If a court cannot see its way to abrogate the rule en- tirely, relief must be had by legislation.^* § 375. Same— change of judicial decision. In Kenyon v. Welty^ the defendant bought a piece of land in Sacramento at a sheriff's sale; shortly afterward the California Supreme Court held that the court issuing the execution process did not have juris- diction outside San Francisco. Thereupon the plain- tiff and defendant made an agreement with reference to the land upon the assumption that the levy and sale were invalid. Still later, in another case, the Supreme Court reversed itself and held that the court did have jurisdiction. The plaintiff then asked for rescission on the ground of mutual mistake but relief was refused apparently upon the ground that it was a pure mistake of law. The decision is to be com- mended because the social interest in the security of the transaction such as that in this ease should not be upset merely because the -Supreme Court decides a later case differently.^ But was there really any mistake at all?- This depends upon whether the first decision really was the law of California till overruled^ or whether it was a mistake on the part of the Supreme Court, and that the later decision was the law all the 12. Eldrldge v. Dexter etc. R. R. Co. (1895) 88 Me. 191, 33 Atl. 974 (mistake of legal effect of deed) ; Williams v. Thwing Electric Co. (1896) 160 111. 526, 43 N. E. 595 (mistake as to Illinois law of incorporation); Proctor v. Thrall (1850) 23 Vt. 262, Z Ames Eq. Cas. 270 (mistake as to the legal effect of a bond). 13. In a few states this has been done; see 8 Col. Law Rev. 484-486. 1. (1862) 20 Cal. 637, 2 Ames Bq. Cas. 283. 2. If rescission were given to the plaintiff in Kenyon v. Welty what would happen if the Supreme Court should reverse its second opinion ,and restor^ the first? 3. See 21 Harv. Law Rev. 120-129, arguing for this view. 500 RESCISSION. [Chap, vii time but merely failed to be earlier discovered and declared by the Supreme Court. If we adopt the second view, then there was a mistake of law and it may be plausibly argued that this is a case where the a:ule denying rescission because a mistake is one of law operated beneficially;* but if we adopt' the first view — which more nearly corresponds to what ac- tually takes place — then there was no mistake of any kind and hence no basis for rescission. § 376. Lapse of time. No general rule can be laid down as to the effect of the plaintiff's delay in bringing suit for rescission, much depending upon other circumstances of the case.. In Simmons v. Palmer^ the bill was to rescind a con- veyance on the ground that the wrong lot had been conveyed through mistake. The plaintiff had dis- covered the mistake very soon after the conveyance and promptly pointed out the error to the defendants; but altho he demanded back his money and bonds, he did not tender back the deed and did not sue for rescission until about two years later. In denying relief the court said: "In the meantime he had held the deed and was in a position to profit by the transaction had the lots continued to enhance in value ; and he now seeks to be released from the purchase when the situation has so changed that the other parties can not be restored to their former position. The application for relief in such cases must be made with due diligence, and what constituted due diligence is to be determined by refer- ence to the facts attending the particular case in judg- 4. Even If we should adopt this view as to the effect of judicial decisions upon law and should at the same time abrogate the rule denying rescission for mistake of law, the case of Kenyon V. Welty would make a logical exception to such a rule, because of the social interest in the security of transactions. 1. (1896) 93 Va. 389; 25 S. B. 6. <§! 377] KBSOissiON. 501 ment." On the other hand in Hall v. Otterson^ the court rescinded a deed of trust after twenty-eight years where it appeared that there was a relation of confidence between the parties and that the plaintiff's vigilance had been put to sleep by assurances.* § 377. NeghVence in failing to discover the mistake. Where either before or at the time of a bilateral transaction the party asking rescission could have dis- covered the mistake by the exercise of ordinary care* and the other party has since so changed his position as to make it inequitable to give rescission, relief is properly refused upon the ground of estoppel.^ On the other hand, if the transaction was a unilateral one, the plaintiff's negligence is rightly held to be no bar to relief.* In some bilateral transactions in which there 2. (1894) 52 N. J. Eq. 522; 28 Atl. 907. 3. In Barkley v. Hibernia Savings and Loan Society (1913) 21 Cal. App. 456, 132 Pac. 467 it was decided not to be error for the trial court to dismiss the suit for an unexplained delay of three years. In Lumley v. Wabash Ry. Co. (1895) 71 Fed. 21 where a delay of five years was held fatal the court said that poverty was no, excuse for such delay. 1. Or where after discovering the error he falls to notify the other party; Haviland v. Willets (1894) 141 N. Y. 35, 35 N. E. 958, 2 Ames Eq. Cas. 273. 2. Grymes v. Sanders (1876) 93 U. S. 55. 3. Banta v. Vreeland (1862) 15 N. J. Bq. 103, 2 Ames Bq. Cas. 308: "It Is urged on the part of the defendant that to entitle a party to relief on the ground of mistake, it must be of such a fact as he could not by reasonable diligence have obtained knowledge of. If otherwise, It is culpable negligence, against which equity will not relieve. The principle Is usually applied In relieving against contracts entered Into under a mistake, tho it is doubtless susceptible of a wider application. The present case, however, does not fall withiff the operation of the principle. The complainant ' received no consideration for the act — the defendant gave none. The complainant entered into no engagement from which he asks relief. Under a mistaken impression that the mortgage was satis- fied, he consented to its cancellation. It Is clearly against con- 502 RESCISSION-. LChap. vii was apparently no change of position or any pther cir- cumstances making rescission inequitable, relief has been refused* upon the ground that the giving of relief would encourage carelessness.'' Such reasoning is of doubtful validity.® If the facts were obvious and open to observation'' a court may well require very strong proof that the plaintiff really did not see, but to lay down a hard and fast rule that negligence alone is a bar to rescission seems to inflict unnecessarily a penalty on the plaintiff.* science that the defendant should avail himself of the mistake to escape the payment of an honest debt." But see Conner v. Welch (1881) 51 Wise. 431 where the plaintiff was denied reinstatement of mortgages which he had mistakenly satisfied of record; perhaps there had been a change of position in reliance upon the cancella- tion, but it does not appear. 4. See Dillet v. Kemble (1874) 25 N. J. Bq. 66. Perhaps the most common case is that of failure to read an instrument which the plaintiff has executed. Placer Co. Bk. v. Freeman (1899) 126 Cal. 90, 58 Pac. 388, instrument was a draft instead of a receipt; Bldridge v. Dexter etc. R. R. Co. (1895) 88 Me. 195, 33 Atl. 974: "No great reliance is placed on the allegation that the deed was executed without being read. The deed was left with one of the complainants to procure the signature of the other. If it was not read by them, it was their own fault. They were not misled in any way as to its contents." 5. Conner v. Welch (1881) 51 Wise. 431: "It is infinitely better that men should be held to the consequences of their own cul- pable carelessness than that courts of equity should undertake to relieve therefrom. . . . The abrogation of the rule would tend to .encourage and to introduce uncertainty and confusion in all business transactions." 6. That one has been negligent in making a mistake Is no bar in an action in quasi contract. Woodward, Quasi Contracts § 15. 7. For example, where the plaintiff purchaser says he did not notice that an abandoned shaft was not within the boundaries; Grymes V. Sanders (1876) 93 TJ. S. 55. 8. Such seems to be the position taken by the court in Seeley V. Bacon (1896) 34 Atl. 139 (N. J. Eq.) : "Where, however, no one is injured by the mistake but the party himself, and no one has chang- ed his position by reason of the act executed through the influ- ence of the alleged mistake, I see no reason why the mistake should not be corrected, although the highest debtee of vigilance has ijot been ?x§rcise4," § 379] EEscissioN. 503 § 378. Ratification — compromise. If the plaintiff after learning of the mistake has expressly or by his conduct^ ratified the transaction, it is then too late to ask for rescission.^ Similarly, one who has entered fairly into a compromise of a dis- puted question of law or fact is barred from equitable relief by such inconsistent conduct. In Hall v. Wheeler' there was a disputed question as to whether the time for redemption from a tax sale had expired; the plaintiff and the defendant entered into a transaction compromising the matter; later it was judicially de- cided that the time had not expired and the plaintiff -then asked for rescission. In denying relief: "As there was no fraud, no misrepresentation, nor mistake of fact, and as the parties had equal means of ascer- taining what their respective rights were, the courts must uphold any compromise of such right, altho a judicial decision should afterwards be made showing that these rights were different from what they sup- posed them to be, or showing that one of them really had no rights at all, and so nothing to forego." § 379. Placing the defendant in statu quo. Acting upon the equitable principle that a party who seeks equitable relief should be required as a con- dition thereto to do equity to the other party,^ one who asks rescission is usually required to place the other party in statu quo." Tho occasionally there is a 1. In Simmons v. Palmer (1896) 93 Va. 389, 25 S. B. 6, Implied ratification was an element in denying relief. 2. One method of ratification is to pursue to judgment an action which is an affirmance of the transaction after knowledge of the mistake. For an analogous case where rescission for fraud was sought, see Sanger v. Wood (1818) 3 Johns. Ch. 416. See post § 393. 3. (1887) 37 Minn. 522, 35 N. W. 377, 2 Ames Bq. Cas. 288. 1. See ante § 29. 2. Grymes v. Sanders (1876) 93 U. S. 55. In Okill v. Whlttaker (1847) 2 Phillips 338, 2 Ames Eq. Cas. 201, the court said briefly: 504 RESCISSION. [Chap, vii tendency to apply the principle mechanically by deny- ing relief if such restoration is for any reason im- possible, the better view is that the principle never requires more than substantial restoration^ and that the impossibility of giving even substantial restoration may be excused by countervailing circumstances.* C. Fraud. § 380. Does fraud alone give equity jurisdiction? One case where rescission is given for fraud has already been discussed, namely, where one party know- ingly takes advantage of the mistake of the other.* The most_common kind of fraud, however, is that which consists in knowingly causing the error of another party — usually the other party to the transaction;^ "The plaintiffs do not ask to rescind the transaction altogether: nor could they; for after ten years occupation and expectation of the benefit of renewal. It would be Impossible to restore the purchaser to his original situation." See also Anderson v. McDaniel (1893) 15 Ky. Law Rep. 151, 22 S. W. 647; 8 Col. Law Rev. 123-125. 3. Mather v. Barnes (1906) 146 Fed. 1000, 1019; 6 Cyc. 306. 4. Grymes v. Sanders (1877) 93 V. S. 55: "lA court of equity is always reluctant to rescind, unless the parties can be put back in statu quo. If this cannot be done it will give relief only where the clearest and strongest equity demands it." 1. See ante § 369. 2, When the term fraud is used alone, this is the class of cases _ usually indicated. This is true in the following analysis of the differ- ence between accident, mistake and fraud, in 23 Harv. Law Rev. 608: "As a ground for affirmative relief, mistake is often placed in the same category with accident and fraud. All these have the commoa characteristic that each, when established in the legal sense, creates an inequality between the parties which will move the discretion of the Chancellor to action. Moreover, there is no bright line which divides mistake from either fraud or accident. Yet mistake is dis- tinguishable from both. Accident creates a change in the actual situation of the parties — as destruction of the subject matter of a bargain by the act of God. It contains no mental element. Mistake, on the other hand, leaves the actual facts untouched. It involves af- firmative action by the human mind. It consists in forming an in- correct mental picture of the situation. If this incorrect picture is § 380] RESCISSION. 505 and there is also the large class of cases of fraud upon creditors which rarely contain any element of misrepre- sentation. ' Courts have wisely refrained, however, from at- tempting to define fraud because even tho they should succeed in framing a definition which would cover all the adjudicated cases on the subject, it might later be a handicap to giving relief in a new case not falling within the definition.* Fraud is one of the earliest subjects of equity jurisdiction and until the action on the case* for de- ceit was devised the sole relief seems to have been in equity. Upon the principle that having once acquired jurisdiction of a certain field equity will not usually abandon the jurisdiction even tho the common law later gives a complete and adequate remedy,^ English caused by the unlawful representations or unlawful silence of another human being, the case passes from the realm of mistake into the realm of fraud. The presence of the mental - ingredient, then, is the strik- ing difference between accident and mistake. Fraud, on the other hand, consists of mistake plus a further element, the unlawful caus- ing of the error by some person different from the person who labors under the mistake. Broadly speaking, then, if the error is the work of the party who labors thereunder the case is one of mistake. But, if the incorrect t mental picture be due to the unlawful silence or the unlaful representations of some third (sic) party this further ele- ment of third (sic) party causation makes the case one of fraud. For this reason eq,uity is slower to relieve from mistake than from fraud. The fact that the party who sets up the mistake is the party respon- sible therefor makes it necessary for him tfo show special and peculiar grounds for relief." 3. Lawley v. Hooper (1745) 3 Atk. 278: "The court very wisely hath never laid down any general rule beyond which it will not go, lest other means of avoiding the equity be found out." 4. Tile action on the case grew out of the Statute of Westminster II, 1285, .which required the clerks in Chancery to issue new common law writs based upon analogy to those already in use. Since the writ in trespass was apparently the most adaptable of the old writs, it was used as a basis for the new writs, so that the new actions came to be called "trespass on the special case," "trespass on the case," "action on the case," or "case." At the present time probably ninety percent of common law rights are redressed by some action on the case, or its code equivalent. 5. See ante § 16. 506 EEscissioN. [Chap, vii courts apparently regard all cases of fraud as entitling the party defrauded to equitable relief.® In this coun- ' try, on the other hand, the prevailing view seems to be that where the party defrauded may get an ad- equate remedy at law the court of equity has no juris- diction/ In a minority of jurisdictions equity will grant such peculiar relief as it can alone give even tho the remedy at law is adequate.® § 381. Action at law for fraudulent representation. If only money compensation is sought for damage caused by fraudulent representations made to the plain- tiff, the remedy at law is an action on the case for de- ceit. In order to succeed in this action the plaintiff must allege and prove the following: (1) The defendant made a representation to the plaintiff. (2) The representation was not true in fact. (3) The defendant did not believe that the repre- sentation was true in fact. (4) The defendant expected the plaintiff to act in reliance upon it. (5) The plaintiff did so act, and was damaged thereby. If in similar cases relief is sought in equity, the requirements for obtaining relief are in some respects less stringent* In the following sections the respective attitudes of law and equity toward these various essen- tials will be compared. § 382. (1) Representation made to the plaintiff— prom- ise— opinion— intention. Altho a representation is usually made in words — 6. Colt V. WoUaston (1723) 2 P. Wms. 154 (mere money judg- ment asked). 7. Skinner v. Bailey (1829) 7 Conn. 496. g. See 6 Mich. Law Rev. 330-333 and cases cited. ^ 382] RESCISSION. 507 either oral or written — it may also be made by conduct.* It may be made to the plaintiff directly or it may be made to a third party with intent that it be communi- cated to the plaintiff;^ if there is no such intent the plaintiff can get neither common law nor equitable relief.^ It may be made by the defendant himself or by his agent or the defendant may procure it to be made by a third party.* A representation can only be as to a fact:^ in the nature of things there can be no representation as to anything in the future. Hence an action for deceit will not lie for a mere breach of promise to do some- thing in the future;® rescission may be given in such a case,'' but not on the ground of fraud. 1. De Brampton v. Seymour (1386) Selden Soc'y Select Cases in Ch. No. 2: "J. S. maliciously and falsely scheming to deceive the said J. B., showed him twenty marks in gold in his hand and de- manded from him the said release, which J. B. gave him, hoping to have received the twenty marks etc." See also Croyle v. Moses (1879) 90 Pa. 250; a horse known by seller to he a "crib biter" was short hitched so as to hide the fault. 2. Davis V. Louisville Trust Co. (1910) 181 Fed. 20; represen- tations as to credit made to a commercial agency; plaintiff was al- lowed rescission tho he was not a subscriber to the agency; see 24 Harv. Law Rev. 327. 3. Hunnewell v. Duxbury (1891) 154 Mass. 286, 28 N. B. 267; false representation In a certificate filed with the commissioner of corporations, stating that the amount of the capital stock had been paid in; the plaintiff, relying upon the statement, bought notes of the corporation. "The certificate was made and filed for the definite purpose, not of influencing the public bijt of obtaining from the state a specific right [to do business within the state] wh^ch did not affect the validity of its contracts, but merely relieved its agents in Massachusetts of a penalty. It was not addressed to' or intended for the public, and was known to the plaintiff only from the search of his attorney." 4. Whittingham v. Thomburgh (1690) 2 Vernon 2; 3; defendant procured one H to represent that one E. H. was healthy and thereby induce others to underwrite E. H.'s life. 5. I. e., something done or accomplished. A future fact is a contradiction in terms. 6. Long V. Woodman (1870) 58 lie. 49 (promise to give a bond to reconvey). 7. See post § 403. 508 EESCISSION-. [Chap, vii The mere giving of an opinion* which does not accord with the facts is not in itself deceit,^ hecanse there is no representation as to the facts themselves but the giving of an opinion necessarily includes a representation that one does have such an opinion; if he lies as to his opinion he is subject to an action of deceit or to having the transaction rescinded in equity just as if he had lied as to any other fact.^** Lying as to one's intention should be treated in the same way,^* but there has been some reluctance to recognize this as a basis for an action of deceit ;^^ equity courts, however usually regard this as fraud and give rescission therefor.^^ 8. The difference between fact and opinion is shortly this: fact ,Is generally a matter of sensation in which persons usually agree; opinion is a matter of Judgment in which persons are likely to differ. 9. Sawyer v. Pickett (1875) 86 U. S. 146. 10. In Pasley v. Freeman (1789) 3 Term Rep. 51 the defendant represented that one P was a person safely to be trusted; in Smith v. Land Corporation (1884) L. R. 28 Ch. D. 7, 16, that the property was let to a most desirable tenant. 11. In Edgington v. Fitzmawrice (1882) 29 Ch. Div. 459 where the defendants lied as to what they intended to do with money they borrowed from the plaintiff, the court said: "There must be a mis- statement of an existing fact; but the state of a man's mind is as much a fact as the state of his digestion. It is true that it Is very difficult to prove what the state of a man's mind at a particular time is but if it can be ascertained it is as much a fact as anything else. A misstatement as to the state of a man's mind is, therefore, a mis- statement of fact." 12. In Swift V. Rounds (1896) 19 R. I. 527, 35 Atl. 45, the court overruled a demurrer to a declaration in deceit which alleged that the defendant did not at the time intend to pay for goods \yhich he bought of the plaintiff. But see contra. Smith v. Smith, Murphy & Co. (1853) 21 Pa. St. 307. 13. Wampler v. Wampler (1878) 30 Grattan 454, representa- tion that defendant intended to support the plaintiff; Adams v. Gillig (1910) 199 N. Y. 314, 99 N. E. 670; representation that ho intended to put improvements upon real estate. See 11 Col. Law Rev. 477, « ^ 383] • KBScissioN. 509 § 383. (2) Representation not true in fact— suppres- sion. — concealment— non-disdosure. In determining whether the defendant's representa- tion is true or false, it is not conclusive that everything the defendant stated was literally true. In Newall v. KandalP the defendant stated to the plaintiff that he had $3300 invested in business; the representation was couched in language calculated to negative the idea that this was merely the gross amount of his assets. As a matter of fact he owed debts to the extent of two- thirds of that amount. It was held that suppression of such a material fact, under these circumstances, was fraud.^ The test in these cases seems to be this: Is the suppression such that the withholding of that which is not stated make that which is stated false? Defendant's conduct may also be made fraudulent by the active concealment of a material fact. In Broth— erton Bros. v. Reynolds* the court in awarding to the plaintiffs rescission of a contract to buy timber relied partly upon the fact that the defendant had in- structed his servant to show the plaintiffs over only the best part of the 1000 acres of timber and not to show them that part which had been cut.* Whether mere non-disclosure is fraudulent depends .largely upon the relative situation of the parties. If one party to a transaction is under a fiduciary obliga- 1. (1884) 32 Minn. 171, 19 N. W. 972. 2. See also Kidney v. Stoddard (1843) 7 Mete. 252 (defendant in writing a letter of recommendation of his son, asking plaintiff to give him credit, omitted to state that the son was a minor. In Torrance v. Bolton (1872) 8 Ch. App. 118 the advertisement ol an auction described property as the "absolute reversion" when In fact it was subject to several mortgages. The plaintiff was awarded rescission of the contract of purchase. And in Brown v. Montgomery (1859) 20 N. Y. 287 the failure of the seller of a check to make known the drawer's insolvency was held to be fraudulent. 3. (1894) 164 Pa. St. 134, 30 Atl. 234. 4. See also Croyle v. Moses (1879) 90 Pa. St. 250, where the vendor of a horse short-hitched him so as to conceal the fact that he was a "crib biter." 510 BBsoissioN. • [Chap, vii tion to the other with respect to the subject-matter of the transaction, he is under a duty to disclose every material fact within his knowledge;' but if there is no such relationship so that the parties deal at arms' length, a failure to disclose is ordinarily not fraudulent. Thus, a seller of land is not entitled to have the con- tract rescinded merely because the purchaser knew the real value of the land and the sefUer did not:* or be- cause the purchaser had made an oral contract to re- sell the land at a profit.'' Nor can the seller of chattels rescind merely because the buyer failed to discose his insolvency.^ § 384. (S) Defendant's disbelief in representation- negligent and innocent misrepresentation. In order that an action of deceit should lie it is ordinarily necessary that the defendant should not be- lieve the representation to' be true; if he had a positive belief therein, he is not so liable.^ On the other hand, positive knowledge that the representation is false is not essential; it is sufficient if he had no belief in its truth; that is, if he made it recklessly without caring whether it was true or false.^ Where accurate knowl- edge as distinguished from mere opinion is possible, the defendant may be liable in deceit for representing his belief as knowledge.^ But if the subject matter of 5. See ante § 157. 6. Harris v. Tyson (1855) 24 Pa. 347; Neill v. Shamburg (1893) 158 Pa. 263, 27 Atl. 992 (oil land); or the value of the seller's interest therein, Pennybacker v. Laidley (1890) 33 W. Va. 624, 11 S. E. 39. 7. Dolman v. Nokes (1855) 22 Beav. 402. 8. Hotchkin v. Third Nat'l Bank of Malone (1891) 127 N. Y. 329, 27 N. E. 1050. 1. Mahurin v. Harding (1853) 28 N. H. 128. 2. Derry v. Peek (1889) 14 App. Gas. 337, 368. 3. Cabot V. Christie (1869) 42 Vt. 121 (defendant stated that of his own knowledge the farm contained 130 acres; it was held no defense that he honestly believed there were 130 acres). § 384] • RESCISSION. 511 the representation is such that aecutate knowledge is impossible or very difficult to ob1|iin, a representation that he had knowledge is not actionable if the defend- ant honestly believed the statement to be true. In Hay- craft V. Creasy* the defendant had made the following representation to the plaintiff 's son : ' ' Your father may credit Miss Robertson with perfect safety: for I know of my own knowledge that she has been left a con- siderable fortune lately, etc." In holding the defendant not liable Grose, J., said: "It is true that he asserted his own knowledge upon the subject: but consider what the subject matter was of which that knowledge was predicated : it was concerning the credit of another, which is a matter of opinion. When he used these words, therefore, it is plain that he only meant to con- vey his strong belief of her credit, founded upon the means he had of forming such an .opinion ,and belief. . . . And taking the whole together, I think the evdence goes no further than his asserting that, to his firm belief and conviction, she was deserving of credit; and that the defendant was himself a diipe to appear- ances." ,' If the defendant honestly believed the statement to be true but was negligent in so believing, an action on the case for deceit will not lie, but an action on the case for negligent misrepresentation should be sus- tained upon the same principles and with the same limitation as are other actions on the case for negli- gence.® The rule as to rescission is more liberal to the plaintiff than is the action for deceit. Since equity will rescind for mutual mistake as to an intrinsic fact the plaintiff's case is merely made stronger if it be shown that the defendant innocently caused the plain- 4. (1801) 2 East 92. 5. Liability for Negligent Language, by Professor Jeremiah Smltb, 14 Law Rev. 184-199. See also Liability for Honest Mis- representation, by Professor Samuel Wllliston, 24 Harv, Law Rev. 415, 427. 512 EEsoissioN. [Chap, vii tiff's mistake.® And even where the defendant's in- nocent misrepresentation was as to an extrinsic fact, there is a tendency to grant rescission.'' § 385. (4) Defendant's intent that plaintiff act upon representation. In order to maintain an action at law for deceit it is necessary to show not only that the defendant in- tended the representation be communicated to the plain- tiffs but also that he intended the plaintiff to act in re- liance upon it. In Wells v. Cook^ the defendant sold to the plaintiff, as agent for the plaintiff's brother 0. W. a herd of sheep falsely representing them to be free from disease; later the plaintiff bought the sheep from his brother. The plaintiff failed in his action because there was nothing to show that the defendant intended any one except the plaintiff's brother to act upon the representation.* But it is not necessary either that the defendant 6. See ante § 368. 7. In Smith v. Bricker (1892) 86 Iowa 285, 53 N. W. 250: "It does not appear that defendant had actual knowledge of the quality and value of the land when he made the representations. In other words, there is no evidence of what is called the "scienter" wnich is usually necessary to sustain an action at law for fraud and deceit in the sale or exchange of property. But this is a suit in equity and there may he a decree rescinding a contract for false representations, without proving that the party making the representations knew them to be false. Smith v. Richards (1839) 13 Peters 26. And even if the party innocently misrepresents a fact by mistake. It is equally conclusive for its operates as a surprise and imposition on the other party." 1. See ante § 381. 2. (1865) 16 Ohio St. 67. 3. Whether the plaintiff could rescind the transaction with his brother would depend upon whether there was an implied warranty as to the freedom of sheep from disease and further, whether there may be recission for breach of warranty; see Williston, Sales §§ 603, 608. §. 386] EESoissioN. 513 be a party to a contract with t|ie plaintiff* or that he receive any benefit from the deceit,® or even that he be actuated by any motive of gain for himself.* And so far as the essentials of fraud are concerned, these are just as unessential in equity as "at law. But in this country, where fraud alone is not a sufficient basis for equity jurisdiction,'' a plaintiff will rarely succeed in equity unless he is asking that the defendant be de- prived of some of the fruits of the fraudulent trans- action. § 386. (5) Plaintiff's reliaJice upon representation — damage therefrom. If the plaintiff did not act in reliance upon the defendant's representation the defendant is not liable in deceit because in such case the representation is not the cause of the plaintiff's damage.^ But the representation need not be the sole or even the pre- dominating cause of the plaintiff's action; it is enough that it be any material part of the cause.^ 4. See Wells v. Cook, supra; Pasley v. Freeman (1789) 3 Term Rep. 51 seems to be the first case so holding. 5. Pasley v. Freeman supra. 6. Foster v. Charles (1830) 7 Bing. 105; defendant recom- mended one J to the plaintiff as an excellent young man and worthy of credit; he was held liable tho it was obvious that he did not expect to profit by the plaintiff's acting on the representation. See also Polhill v. Walter (1832) 3 Barn. & Ad. 114, where the defendant without authority signed one H's name to a bill of ex- eha^ige thinking he was merely saving trouble and delay in get- ting the bill accepted. 7. See ante § 380. 1. In Nye v. Merriam (1862) 35 Vt. 438: "If the plaintiff did not recollect the false statement — did not know and could not tell what the balance due for the butter was, according to the original falsehood, nor what the figures were which indicated the false weight, but claimed a balance sufficient to. cover the whole and true weight, and received it on settlemeiit, we are at a loss to see how he can claim to have been defrauded." 2. Matthews v. Bliss (1839) 22 Pick. 48, Eq.— 33 514 EEScissioN. [Chap, vii The rule in equity is similar. In Famsworth v. Dnffner,^ the plaintiff failed to get rescission of a con- tract to purchase land because "he did not act on their representations that the title was good, but brought his own counsel from home to examine those records, and acted upon his own judgment of the title." In some cases, however, it is said that the defendant has the burden of proving that the plaintiff was not misled.* While the law of deceit requires that the plaintiff allege and prove special damage to himself,* the rule in equity is more liberal to the plaintiff; it is unneces- sary for the plaintiff to allege damage,® and he may get rescission if any damage whatever is proved.'' Furthermore, even if the plaintiff suffers no damage whatever, he has been allowed rescission because of the damage to third parties. In Brett v. Cooney* the plaintiff had made without consideration an oral agree- ment with his neighbor not to sell his summer residence to any one who would use it for an improper purpose. To carry out this moral obligation, he refused to sell 3. (1891) 142 U. S. 43. 4. Torrance v. Bolton (1872) 8 Ch. Aipp- 118. 5. In most cases of deceit the special damage consists of a property loss, but in a few cases the plaintiff has been damaged by suffering personal injuries; Langridge v. Levy (1837) 2 M. & W. 519 (plaintiff injured by explosion of gun fraudulently repre- sented by defendant). 6. Wainscott v. B'ld'g & Loan Ass'n (1893) 98 Cal. 253, 33 Pac. 88: "He who would recover damages In a court of law must set forth in an orderly manner the facts showing the right to recover, and the amount to which he is entitled to the exclusion of every presumption to the contrary. In such an action the damages are the essential thing. In an action to rescind, upon the ground of fraud, the fraud is the essential thitig, and while it must be cou- pled with loss, injury, damage, the precise amount of such damage is of secondary importance." 7. Wilson V. Carpenter's Admln'rs (1895) 91 Va. 183, 21 S. E. 243: "The court does not inquire with any care into. the extent of the prejudice. It is sufficient if the party misled has been very slightly prejudiced — if the amount is at all appreciable," 8. (1902) 75 Conn. 338, 53 Atl. 729. ^ 387] EEscissioN. 515 to the defendant. The latter then employed an agent who fraudulently represented to the plaintiff that he wished to buy for an unobjectionable third person; he obtained a deed and conveyed to the defendant. Tho the plaintiff suffered no damage the neighbor did and thus the court's giving of rescission may well be justified.* And even tho no one was damaged a few oases have given rescission.^* § 387. Non-actionable representations—intention as to price — ' ' puffing ' * — price paid. Where parties stand in the relation of vendor and purchaser and deal on an equal footing some represen- tations are regarded as not actionable tho all the es- sentials of deceit are present; If a vendor should ^falsely represent that he did not intend to take less than a certain price or a purchaser that he did not in- tend to give more than a certain price, such representa- tions would not be actionable even tho made with intent to deceive.^ And representations made by a vendor by way of puffing his wares fall within the non action- 9. See ante § 160._ fO. "Harlow v."L,a~Brun "(1897) 82 Hun' 292; plaintiff induced by fraud to enter into partnership with the defendant; Williams V. Kerr (1893) 152 Pa. 560, Atl. 618: "The appellants undertook to show that they paid all the land was worth and now say that fraud without dama,ge is no ground for relief in either law or equity, and because, in the estimation of others, Mrs. Williams sustained no pecuniary damage, she is not entitled to relief. It is quite true that fraud without the concurrence of injury affords no ground for relief in equity. But It is such injury as will be re- dressed to obtain from an owner, by a false representation of a fact which he deems material, property which he would not other- wise have parted with upon the terms which he is thus induced to accept." But see contra, Lynch v. U. S. (1903) 13 Okla. 142, 73 Pac. 1095, where the court refused to grant rescission of a patent obtained from the U.. S. by fraud, but for which the full price was paid; see 17 Harv. Law Rev. 204; 60 tJ. of Pa. Law Rev. 205. 1. Vernon v. Keyes (1810) 12 East 632; Ripy v. Cronan (1909) 131 Ky. 638, 115 S. W. 791. 516 BEscissioN. [Chap, vii able class, for the same reason, namely, that it is "imderstood, the world over, that such statements are to he distrusted."^ The exception of "puffing" does not, by the weight of authority, and the better view, cover false statements as to price paid at a previous sale,* or as to rental.* Nor does it apply where the parties have not dealt on an equal footing, afe for example where the facts are peculiarly within the defendant's knowledge® or where the defendant has thrown the plaintiff off his guard.* And apparently the plaintiff can deprive the defendant of the privilege of puffing by expressly telling him that he will rely on the former's judgment and not on his own.'' The rule in equity seems to be substantially the same as at law. § 388. Representations of law. It is usually stated to be the rule that an action for deceit will not be sustained for a false representation of law, because "every one is presumed to know the 2. Deming r. Darling (1889) 148 Mass. 604, 20 N. E. 107, representation that the bond was of the very best and safest, an A 1 bond, and that the mortgage was good security for it; Gordon v. Parmelee (1861) 2 Allen 212, representation that the land was pro- ductive and adapted to stock raising. 3. Fairchild v. McMahon (1893) 139 N. Y. 290, 34 N. E. 779. In a few jurisdictions this is regarded as "puffing," bringing about the peculiar result that a vendor is not liable in such a case but a third party who makes such a representation is not so protected; Medbury v. Watson (1843) 6 M|Btc. 246. 4. Bkins V. Tresham (1664) 1 Levinz 102 (representing that premises were let at £ 42 per annum when they were really let at only £32). 5. CooB V. lAtwell (1866) 46 N. H. 510 (representations as to tlie amount of hay produced by a fai;m)". 6. Stover's Adm'rs v. Wood (1875) 26 N. J. 417 (defendant told the plaintiff to satisfy himself elsewhere). In Smith v^ Richards (1839) 13 Peters 26 the defendant's letter, "I, however, sell it to you for what it is, gold or snow balls etc.," probably had the effect of throwing the plaintiff oft his guard. 7. Keen v. James (1885) 39 N. J. Bq. 527. § 388] teEsCissioir. . 517 law" and therefore the plaintiff could not have relied upon the representation.^ The fallacy underlying this argument has already been pointed out in discussing reformation^ and rescission for mistake of law.* That , the rule is unpopular is shown by the willingness of courts to make exceptions to the rule.* All that was said in criticism of refusing relief in equity for mistake of law applies,^ of course, with even greater force to cases where the defendant has made a fraudulent representation of the law. But altho the rule is unpopular^ in equity courts, it has apparent- ly not been thrown overboard.'^ ' 1. Gormeley v. Gymnastic Ass'n (1882) 55 Wis. 350, 13 N. W. 242: "The appellant was just as muoli bound to know that the li- cense of the respondent would not protect him in the sale of liquors, etc., as the respondent was." 2. See ante §§-345, 346. 3. See ante § 373. 4. If the parties are on an unequal footing or if the plaintiff is thrown off his guard, relief is usually given; Decker v. Hardin (1819) 5 N. J. L. 579. 'And questions of ownership are usually treated as questions of fact; Alton v. Nat'l Bk. (1892) 157 Mass. 341, 343, 32 N. E. 228. 5. See ante § 373. 6. For example, note the distinction taken in Moreland v. Atchi- son (1857) 19 Tex. 303; the defendant sold Texas land to the plain- tiff, representing that he was an old settler in Texas, that he was familiar with the land laws aijd that he had a good title to the land. The court held that while ordinarily rescission would not he granted for representation of law, the plaintiff was entitled to relief because the parties were not on an equality, and the defendant took advantage of his superior knowledge; and also because the plaintiff not being a Texan, the law of Texas was foreign law and should be considered as fact. TTiis is certainly an odd application of the rule of evidence that judicial notice will not be taken of foreign law but that the latter must he proved just as other facts are proved. The decision is, of course, to be commended. 7. Grone v. Economic Life Ins. Co. (1911) 80 Atl. 809 (Del. Ch.) ; 25 Harv. Law Rev. 94. 518 KEsoissioN. [Chap, vii § 389. Representations to third parties. In Benton v. Pratt^ S and W of AUentown had verbally agreed to buy of the plaintiff some hogs provided they were delivered within a specified time, and S and W were not previously supplied. While the plaintiff was driving his hogs to AUentown, the defendant overtook him with a drove of hogs going to Easton; he learned that the plaintiff was going to AUentown, represented to S and W that plaintiff was driving his hogs to Easton and induced S and W to buy from the defendant; the plaintiff was compelled to drive further and sell at a loss. The plaintiff was properly allowed to recover in an action on the case, but it was not an action of deceit because no false represen- tation was made to the plaintiff, but only to S. and W. In this case the defendant acquired nothing from the plaintiff by his false representations to S. and W. and in this country,^ at least, the plaintiff could have obtained no relief in equity.^ But if by fraudulent representations to a third party the defendant pro-\ evSres something which the plaintiff is equitably entitled to have surrendered up and cancelled, such relief will be given. For example, if the defendant has fraudu- lently induced the testator to make a will in his favor and the remedy of the probate court is inadequate, the defendant will be held as constructive trustee of what he has received by his fraud.* There is conflict of authority upon the question whether a plaintiff is en- titled to an injunction against a judgment obtained by perjury, but the better view is that relief should be 1. (1829) 2 Wend. 385. 2. See ante § 380. 3. Apparently S. & W. could have rescinded their purchase from the defendant on the ground of the damage to the plaintiff: see ante § 386. But It is difficult to see how the plaintiff could compel S. & W., who are innocent, to rescind so that they might buy of the plaintiff. 4. Smith V. Boyd (1901) 127 Mich. 417, 86 N. W. 953; 14 Col. Law Rev. 544. i 390] EEScis§ioN. 519 given with proper saJfegimrds as to jBrst exhausting his legal remedies and furnishing clear proof of the per- jury.' In a fairly recent case a plaintiff was awarded cancellation of a birth certificate which had fraudulently been procured by the defendant from the attending physician for her illegitimate son.® § 390. Representations by third parties. A defendant is made responsible by the law of agency for fraudulent representations made by his servant or agent withia the apparent scope of his au- thority.^ And even if the fraudulent representation be made by a stranger, the defendant is under an obliga- tion to return to the plaintiff any benefit which he may have received unless he is a bona fide purchaser there- of for value; if he is a bona fide purchaser he is, of course, entitled to protection.^ Whether a corporation is entitled to such protection as against subscribers to stock who have been induced to subscribe by a promoter's fraud has been questioned; but the better view and the weight of authority* is that rescission should be denied except in the quite unusual case of the corporation's having knowledge of the fraud at the time of acceptance.* 5. Boring v. Ott (1908) 138 Wis. 260, 119 N. W. 865; 22 Harv. Law Rev. 600-S02. The objections to giving relief in such cases are (1) that it would result in a flood of litigation; (2) each defeated party may charge the other with perjury in the last suit, so that liti- gation would never terminate. 6. The defendant was the plaintiff's wife but had been living in adultery; Vanderbilt v. Mitchell (1904) 72 N. J. Eq. 910, 67 Atl. 97; see also 21 Harv. Law Rev. 54, 58, 7 Col. Law Rev. 533, 6 Mich. Law Rev. 6. 1. If authority is expressly given to one not an agent or servant the liability is the same; see ante § 382, note 4. 2. See ante % 301. 3. Oldham v. Mt. Sterling etc. Co. (1898) 103 Ky. 529. 45 S. W. 779; contra, McDermott v. Harrison (1890) 9 N. Y. Supp. 184 4. For an argument for rescission see 36 Amer. Law Rev. 855; o20 EEscissiosr. [Chap, vii § 391. Negligence in failing to discover the fraud. It is sometimes broadly stated that the failure of plaintiff to use ordinary care to discover the falsity of the defendant's representation is a bar to legal re- lief.^ Thus stated the mle is open to two just criti- cisms: (1) that since deceit is an intentional tort, it is illogical to allow what is practically contributory negligence to be a defense^ and (2) that it ought to be the i)olicy of the law to protect the weak and credulous — ^to protect the fool against the knave. There is a class of cases, however, where it is arguable that the plaintiff should be barred," not exactly because of contributory negligence, but on the ground that he can not be believed when he says that he re- lied — ^namely, where the facts were open to his im- mediate observation, where the parties were on an equal footing and the plaintiff was not thrown off his guard.' But even this suggestion is open to the criticism that if the defendant actually intended to deceive, he should not be able to say to the plaintiff that the latter was a fool to believe him, even if the facts were obvious.* and for a criticism thereof see 16 Harv. Iiaw ReT. 380; see also 24 Harr. Law Rev. 747. 1. Sherwood v. Salmon (1805) 2 Day (Conn.) 128: "The maxim caveat emptor applies forcibly in this case. The law redresses those only who use doe diligence to protect themselyes; snch diligence as prudent men ordinarly use." See 17 Harv. Law Rev. 421. 2. Steinmetz v. Kelly (1880) 72 Ind. 442: 8 Harv. Law Rev. 365. 3. Anon. Y. B. 11 Edw. VI. pi. 6: "If a man sells a horse and guarantees he has two eyes and he has not, there will be no action of deceit, because I could have discovered this myself at the beginning of the transaction." Slaughter's Adm'r t. Gerson (1871) 13 Wall. 379, 383: "A court of equity will not undertake, any more than a court of law, to relieve a party from the consequences of his own inattention and carelessness. Where the means of knowledge are at hand, and eqnally available to both parties and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means and opportunities, he will- not be heard to say that he has been deceived by the vendor's misrepresentations." 4. Pomeroy v. Benton (1874) 57 Mo. 531, 542; 8 Harv. Law Rev. 385. ^ 392] RESCISSION. 521 A failure to observe the distinction between im- mediate observation and later investigation is no doubt responsible for much of the confusion on the subject.^ If a somewhat extended investigation is necessary to detect the falsity, the tendency both at law* and in equity'^ is to give relief. And whether the rule be stated broadly or narrowly,* relief will be given to a plaintiff where he has been thrown off his guard* or where the parties were on an unequal footing.^" § 392. Lapse of time. , What has already been said as to the effect of lapse of time in cases of reformation of instruments^ and rescission for , mistake^ substantially applies to rescis- ion for fraud. Unless the statute of limitations is ap- 5. It is not always easy to determine whether observation or in- vestigation is required tho the general distinction is clear. For ex- ample, the difficulty the courts have had with the failure of a plain- tiff to read a document; of. Wallace v. Chicago etc. Ry. Co. (1883) 67 Iowa 557, 25 N. W. 772 and Ward v. Spelts (1894) 39 Neb. 509, 58 N. W. 426. 6. Savage v. Stevens (1879) 126 Mass. 207: "The farm respect- ing which the representations were made was situated ... far distant from the place of the bargain, no certain knowledge could be obtained by the plaintiff respecting it, except by visiting the estate. Negligence cannot be imputed to the plaintiff as a matter of law in failing to visit a place so distant." 7. Brotherton Bros. v. Reynolds (1894) 164 Pa. 134 (1000 acres of timber on hilly ground). 8. See 16 Harv. Law Rev. 303 for a suggestion that It should he a question of fact under all the circumstances as to whether the de- frauded party was inexcusably .negligent. 9. Starkweather v. Benjamin (1875) 32 Mich. 365 (plaintiff was induced not to measure land by defendant's positive assurances that it was not worth while). 10. Cottrill V. Krum (1890) 100 Mo. 397, 13 S. W. 753; plaintiff was a stranger to the enterprise whose stock was the subject of ^ale while the defendant was the originator and promoter of the enterprise and as its business manager was fully conversaat with Its history and present conditions. 1. See ante § 355. 2. See ante S 376. 522 REsoissioN. [Ciiap. vii plied by way of analogy, it is a separate question in each case as to whether under all the circumstances the plaintiff's delay in discovering the error after the transaction occurred^ or his delay in suing after dis- covery* is such as to make the giving of rescission in- equitable to the defendant. If the defendant has changed his position, for example, by making improve- ments,® this will help to show the, lapse of time to be inequitable; on the other hand, if the defendant has taken active measures to prevent the fraud from being discovered, it is at least a circumstance in favor of the plaintiff.® Furthermore, if the fraudulent representa- tions have been made by the defendant's agents without his authority or sanction — ^he being made responsible therefor by the rules of the law of agency — the plain- tiff's positiQn is much weaker than if the defendant himself were personally tainted with the fraud.'^ 3. In Bostwick v. Ins. Co. (1902) 116 Wis. 392, 92 N. W. 246, the plaintiff signed an application for a life insurance policy, beinf fraudulently induced by the defendant's agent to believe that it called for a policy different from that for which it really did call. He re- ceived the policy called for and paid the first premium. Upon examin- ing the policy four months later he discovered the fraud. For this delay rescission was refused; see 16 Harv. Law Rev. 363. 4. In Parsons v. McKlnley (1894) 56 Minn. 464 a delay of six months after discovery of the fraud was held a bar to rescission of a stock subscription; see 12 Col. Law Rev. 463. 5. Foley v. Holtry (1894) 41 Neb. 563, 59 N. W. 781; delay of eight months and valuable improvements was held a bar. 6. See ante § 383. 7. Tho there seems to be no express judicial recognition of this distinction, it has apparently had considerable Influence on the deci- sions. It will go far toward explaining some apparent contradictions. Judge Northlngton no doubt had in mind personal fraud in Alden v. Gregory (1764) 2 Eden 280, 285; "The next question is, in effect, whether delay will purge a fraud? Never — while I sit here. Every delay adds to its Injustice and multiplies its oppression." On the other hand, the cases where a short delay has been held a bar have usually been cases where the representations have been made by agents of an innocent principal. Por example, see Bostwick v. Ins. Co., supra and Tait's Case (1867) L. R. 3 Eq. 795 where relief was refused after only four weeks delay. §> 394] RESCISSION. 523 § 393. Ratification — election of remedies. If after full knowledge^ of the fraud the plaintiff ratifies the transaction, it is then too late to ask for rescission. Ratification is rarely express ;^ it is usually implied from conduct of the plaintiff inconsistent with his asking for rescission;^ and long acquiescence has been held a sufficient basis for an inference of ratifi- cation.* If the plaintiff pursues to judgment an action at law for breach of contract after knowledge of the fr^ud, this is an affirmance of the contract and a rati- fication of the transaction and it is then too late to ask for rescission.^ § 394. Putting defendant in statu quo. .What has already been said on this topic in the subject of rescission for mistake^ applies to cases where the plaintiff is asking rescission for fraud. There is the same occasional tendency to apply the principle 1. There can be no ratification without full knowledge; Roches- ter Distilling Co. v. Devendo (1893) 25 N. Y. Supp. 200; 7 Harv. Law Rev. 311; Crowe v. Ballard (1790) 1 Ves. 215. 2. In Rogers v. Ingham (1876) 3 Ch. D. 351 there was apparently express ratification. 3. Bedier v. Reaume (1893) 95 Mich. 518, 55 N. W. 3G6; vendor barred because she had sold her mortgage; Dennis v. Jones (1888) 44 N. J. Eq. 513, 14 Atl. 913; vendees barred because they dealt with the property as owner. But in Montgomery v. Pickering (1874) 116 Mass. 227 the execution of a deed in accordance with the plaintiff's contract was held no bar to rescission because "it was re- quired by the tertns of the original contract, and there is nothing to show an intention to forgive the fraud. To have effect as a con- firmation such deed must appear to have been given with that in- tention by one who was not under the influence of the previous trans- action." 4. Parsons v. McKinley (1894) 56 Minn. -464, 57 N. W. 1134. 5. Sanger v. Wood (1818) 3 Johns Ch. 416; 7 Harv. Law Rev. 311. 1. See a,nte § 379. 524 EEsoissioN, [Chap, vii mechanically by denying relief where for any reason restoration has become impossible;^ and, as in mistake cases, the better view and prevailing tendency is that nothing more than substantial restoration is ever re- quired,* and that, lack of this may be excused.* If what the plaintiff has received from the defendant has clearly become valueless, it is unnecessary to return it.^ Since an equity court may make a conditional decree it is not indispensable that the plaintiff should tender restitution at or before suit;® and in some cases of rescission at law the plaintiff — not having tendered restitution — ^h'as been allowed to recover with a de- 2. Laguras Nitrate Co. v. Laguras Syndicate (1899) 2 Ch. Div. 392. See criticism 13 Harv. Law Rev. 410. 3. Niblett v. McFarland (1875) 92 U. S. 101; 28 Harv. Law Rev. 315-317. 4. For example, if the defendant's own act prevents restoration; Hammond v. Pennock (1874) 61 N. Y. 145; Brown v. Norman (18881 65 Miss. 369, 4 So. 293: "Prom the very moment of the execution of the contract it was impossible for the defendant to he placed in statu quo either by the act of complainant or by both his act and the consent of the defendant. The defendant had been a member of a partnership, and his act of selling his Interest therein was a dissolution of the firm; he could not again become a member with- out the assent of Magnum and Butler, over whom neither the de- fendant nor the complainant had control. By his own act, therefore, a restoration of the status quo was impossible." 5. Kent v. Bornstein (1866) 12 AUen 342 (countereit bill); Martin v. Home Bank (1899) 160 N. Y. 190, 54 N. B. 717 (worthless check). But in Carlton v. Hulett (1892) 49 Minn. 308, 51 N. W. , 1053, the court ordered the reconveyance of a worthless tax title .be- cause "there may be some collateral rights or interests which will be protected or made available thereby." 6. Reynolds v. Waller's Heir (1793) 1 Washington (Va.) 164; Brown v. Norman (1888) 65 Miss. 369, 4 So. 293. In Thackrah v. Haas (1896) 119 U. S. 499 the defendant had fraudulently extorted from the plaintiff $80,000 worth of mining stock by harassing him for a debt of $1,200. Thje plaintiff asked rescission but had no means of raising $1,200 except the mining stock. The court took care of this in the final decree. In the somewhat similar case of Rigdon v. Walcott (1892) 141 lU. 649, 31 N. E. 158, the court refused to excuse tUe tender, dealing with the matter in a mech^ical way. §. 395] RESCISSION. 525 duetion made for the amount of money wMcli he is under obligation to restore.'' There is one anomalous exception to the rule re- quiring restitution hy the plaintiff, namely, where res- cission of a life insurance policy is asked^ for by the insured; in such cases he has been allowed to recover the full amount of the premiums paid tho the policy was binding upon the company and therefore the plain- tiff had received benefit* from the insurance. Whether this anomaly has been due _to a confusion with cases where the policy was not binding on the company or to a failure to see that a live plaintiff has really re- ceived any benefit, is not clear.^ § 395. Rescission at law —trover — replevin— assumpsit. If the effect of the defendant's fraud is to benefit the defendant the 'plaintiff is not limited at law to an action on the case for deceit. If the plaintiff has been induced to part with money he may recover in indebita- tus assumpsit based upon the quasi contractual ob- ligation to make restitution for the unjust enrichment.^ If he has been induced to part with chattels other than money he may recover either iu: trover for the value of the chattels^ or replevin for Iflie chattels' themselves.' 7. Page Belting Co. v. Prince & Co. (1914) 77 N. H. 309, 91 Atl. 961, 28 Harv. Law Rev. 317. See also Woodward, Quasi Contracts § 265. In Farwell Co. v. HUton (1898) 84 Fed. 293, the defendant had made a payment on account and then sold part of the goods to a 'bona fide purchaser. The plaintiff was allowed to replevy the goods still retained by the defendant without tendering hack the money re- ceived on account. Unless the amount paid greatly exceeded tha value of the goods sold by the defendant the case seems thoroughly sound; see 12 Harv. Law Rev. 65. 8. Heddon v. Griffin (1883) 136 Mass. 229. 9. Sfee 22 Harv. Law Rev. 134. And see Woodward, Quasi Con- tracts § 265. . \ 1. Brown v. Montgomery (1859) 20 N. Y. 287. 2. Thurston v. Blanchard (1839) 22 Pick. (Mass.) 18. 3. Hotchkin v. Third Nat. Bk. of Malone (1891) 127 N. Y. 329; 16 Harv. Law Rev. 159. 526 RESCISSION, [Chap, vii The common explanation of this is that the plaintiff can, by rescinding the sale, place title back in himself;* but since this right is cut off by a transfer to a bona fide pu'rchaser for value' it is clear that the right is equitable rather than legal; and it would therefore be more accurate to say that trover and replevin are being used to redress ,the equitable right to get back the chattel.® If the chattel has been sold by the defendant the plaintiff also has his election to recover for the amount received by the defendant on the saleJ As already stated,* the prevailing view in the ITnited States is that equity courts will not give relief in' fraud cases where the common law remedy is now adequate; hence in the cases discussed in this section the plain- tiff must content himself with an action at law. § 396. Conveyances in fraud of creditors. Fraudulent conduct does not require the making of representations. If a debtor conveys away his property with intent to prevent his creditors from levying upon the property for the satisfaction of their claims, this is fraud, and while the debtor himself is unable to attack 4. See Williston, Sales § 649. 5. In an analogous way the action of ejectment might logically have been used to redress the equitable right to get back land from a fraudulent vendee; the obstacles preventing this were probably the registry system of land trnsfers and the fact that while the prevail- ing method of transferring chattels inter vivos is by delivery, the al- most universal method of transferring land is by deed ; only a court of equity could compel the defendant to execute a deed of reconveyance. 6. Thurston v. Blanchard (1839) 22 Pick. (Mass.) 18; FarweU Co. v. Hilton (1898) 84 Fed. 293. 7. Woodward, Quasi Contracts § 278. Even tho the defendant has not sold the goods he should be liable in indebitatus assumpsit for the value of the goods, but on this point there is a conflict of au- thority; Woodward, Quasi Contracts § 273. 8. See ante § 380. § 397] KESCissioN. 527 the transaction,^ his creditors may do so,^ unless the transferee has paid value in good faith without notice of the debtor's fraudulent intention.^ Very early this remedy seems to have been entirely in equity but the Statute of Elizabeth* provided that the creditor might proceed with his common law remedies as if no trans- fer had been made. The statute apparently did not take away the equitable remedy and if the creditor is in any doubt as to being able to prove the fraud, it is safer to proceed in equity ;^ if he proceeds at common law and is unable to prove the fraud, he becomes liable in tort ~to the transferee. § 397. Proof of fraud. If the plaintiff brings an action on the case for deceit he must allege and establish the essentials there- for already discussed.^ Generally, the rule is the same in equity.* But where the situation of the parties was such that it seemed very likely that fraudulent means were used equity courts have held that the burden of proof shifted to the defendant. Whether this means the burden of establishing or merely the burden of going forward and explaining, is not clear.* There are usually two of the following three elements present in 1. The debbtor is barred by his illegal conduct; Kirby y. , Raynes (1903) 138 'Ala. 194, 35 So. 118; Wllllston, Sales § 651. 2. Henney Buggy Co. v. Ashenfelter (1900) 60 Neb. 1, 82 N. W. 118. / 3. Copis V. Middleton (1817) 2 paddock's Ch. 410. In Thomas V. Beals (1891) 154 Mass. 51 the only fraud chargeable against the grantee was the payment of an inadequate price; a reconveyance was ordered upon repaying the price to the grantee. 4. Statute 13 Eliz. 15 (1570). 5. This Is one of the three kinds of creditor's bills; see post § 455. 1. See ante § 381. 2. Or in other common law actions, such as trover, replevin or assumpsit; see ante § 395. 3. See Wigmore, Evid. § 2503. 528 RESCISSION. [Chap, vii such cases: (1) the plaintiff in financial distress;* (2) sale at an inadequate price;" ' (3) defendant a fiduciary* or possessing some other advantage over the plaintiff.^ If only one of the three elements is present, rescission will usually be refused.* D. Duress and Undue Ineluenck § 398. Duress on the plaintiff. If instead of using deception to attain his ends the defendant uses constraint to induce the plaintiff to part with property^ or to enter into an obligation,^ equity will just as readily give rescission as in fraud cases. Even in early common law duress was recog- nized as a defense to contracts, but the notion of duress was limited to peril of life or limb; this was later extended so as to include such threats as would put in fear a person of ordinary firmness.* T!ie equity rule is at least as liberal to plaintiffs.* For example, in 4. The plaintiff's need of money was a large element in Earl of Ardglasse v. Muschamp (1684) 1 Eq. Cas. Abridged c. pi. 1, 169 (ex- pectant heir); Summers v. Griffiths (1866) 35 Beav. 27 (plaintiff an illiterate woman), 5. Inadequacy of price was an element in Butler v. Haskell (1816) 4 Desaussure 650; Summers v. Griffiths, supra, and see 13 Col. Law Rev. 648 on inadquacy of price in judicial sales. 6. Butler V. Haskell, supra. 7. Plaintiff an illiterate old woman, Summers v. Griffiths, supra. 8. For example,, the mere fact that the defendant knew the value of the land and the plaintiff did not, is not a sufficient basis for rescission; Harris v. Tyson (1855) 24 Pa. St. 347; nor is the mere fact that the plaintiff was necessitous; Batty v. Lloyd (1882) 1 Vernon 141. 1. Brown v. Pierce (1868) 7 WaU. 205. 2. Thomas de York v. Thomas de Crop (1337) Selden, Select Cases in Chancery No. 134. 3. V. S. V. Huckabee (1872) 16 Wall. 414. 4. Since In duress cases the defendant is actually desiring the plaintiff to 'act, there seems to be no reason why the objective stand- ard should be applied; even if the plaintiff Is not a person of ordi- ^ 399] RESCISSION. 529 Morse v. Woodworth,^ rescission was given because of threats of imprisonment for embezzlement. But fear of financial ruin,* fear of delay in collection of a claim against the defendant,'^ and threat of civil action* have been held an insufficient ground for rescission.' § 3997 Duress on third persons. Ordinarily duress on a third person affords a plain- tiff no basis for relief. But where the relationship between the plaintiff and the third person is very close so that the plaintiff is really constrained to enter the transaction because of the duress, equity will grant rescission. Most, if not all, of the cases are cases where there is a close family relationship;^ thus res- cission has been given to a parent because of duress on a child,^ to a wife for duress on her husband,^ to a nary firmness, he ought to he given relief If he actually was unlaw- fully constrained; see 22 Harv. Law Rev. 53. 5. (1891) 155 Mass. 233, 27 N. E. 1010, 29 N. E. 525. 6. Hackley v. Headley (1881) 45 Mich. 569, 8 N. W. 511. 7. Secor v. Clark (1889) 117 N. Y. 350, 22 N. E. 754. 8. Dunham v. Griswold (1885) 100 N. Y. 224, 3 N. B. 76. 9. Submitting to a new and different contract because of need of money was held iHSuflBcient in Silliman v. U. S. (1879) 101 U. S, 465; and in Girty v. Standard Oil Co. (1896) 37 N. Y. Supp. 369, the threats of the, plaintiff's husband to commit suicide- were held not to constitute duress; see 10 Harv. Law Rev. 62. 1. Tho the existence of some family or blood relationship la not enough in Itself to show that the plaintiff was really influenced. 2. In Neilson v. McDonald (1822) 6 Johns. Ch. 201 the defend- ants caused the plaintiffs personal • property to be sold at execution at small prices, demanding specie, in order to induce the plaintiff to give a mortgage assuming the debts of his insolvent son. In York V. Hinkle (1891) 80 Wise. 624, 50 N. W. 895, the defendants threatened to prosecute the plaintiff's son for forgery if the plain- tiff would not assume the son's debt. 3. City Nat'l. Bank of Dayton v. Kusworm (1894) 88 Wise. 188, 59 N. W. 564 (husband very 111). Eq.— 34 530 BEscissioN. [Chap, vii sister for duress on her brother* and to an aunt for duress on a nephew to whom she was much attached.' § 400. Undue influence. Even if neither fraud nor duress is used by a defendant a transaction may be rescinded because of "v^hat is ordinarily called undue influence.^ The rule has been thus stated:^ "Any undue influence brought to bear upon a person entering into an agreement, or consenting to a disposal of property, which, having regard to the age and capacity of the party, the nature of the transaction and all the circumstances of the case, appears to have been such as to preclude the exercise of free and deliberate judgment." Most of the cases are cases of gifts to persons who because o" close family or fiduciary relationship are in a position to exercise strong influence on a donor who is very old,^ or diseased,* or very young.' Where these circum- stances are shown it is usually said that the defendant must prove ttat no undue influence was exerted.® Gifts 4. Kronmeyer v. Buck (1913) 258 Atl. 586, 101 N. E. 935, (threat to. send brother to jail). 5. Town of Sharon v. Gager (1878) 46 Conn. 189. 1. Occasionally it is included under a widened meaning of duress; Williston, Sales § 659. 2. Wald's Pollock, Contracts, (3rd. Ed.) 732. 3. Haydock v. Haydock (1881) 33 N. J. Eq. 484 (gift from in- firm husband of seventy-five to wife of fifty-five) ; Greene v. Roworth (1889) 113 N. Y. 462, 21 N. E. 165 (gift from infirm father of seventy-six to sons between forty-five and fifty). 4. Morley v. Loughman (1893) L. R. 1 Ch. 736 (gift from epileptic to one who had acquired religious influence over him). 5. Ashton V. Thompson (1884) 32 Minn. 25, 18 N. W. 918 (gift from daughter to mother and uncle who had been her guard- ians, made fourteen months after her majority.) 6. In Knox v. Singmastfer (1888) 75 Iowa 64, 39 N. W. 183, the defendant, who had received property from his daughter shortly after her majority, was able to convince the court that mo uudu^ in- fluence had been used. '^ 401] BESCISSION. 531 from clients to attorneys are closely scrutinized and are usually set aside if the client did not have in- dependent professional advice.'' E. ImxjALiTy. § 40"1. In general— unlawful cohabitation. The effect of illegality^ upon rescission varies; much turns upon the seriousness of the illegality, upon whether the transaction has been completed or not, and upon whether the parties are in pari delicto; if illegality consists in the violation of a statute, courts will give or refuse relief depending upon the funda- mental purpose of the statute. A number of the cases where the plaintiff seeks rescission in equity of a transaction tainted with illegality are cases which involve unlawful cohabitation. If property has been transferred in consideration of future cohabitation, equity will not cancel the deed or order a reconvey- ance^ unless it be shown that the plaintiff at once 7. Dunn v. Dunn (1886) 42 N. J. Eq. 431, 7 Atl. 842; Llles V. Terry (1895) L. R. 2 Q. B. 679 (gift to wife of attorney by a spinster of seventy-seven). 1. For a discussion of the effect of illegality upon contracts for the sale of chattels, see Williston, Sales § 663 — 681. As to the recovery in quasi contract by a plaintiff who has misrelied on an Illegal contract, see Woodward, Quasi Contracts §§ 132-153. 2. Batty v. Chester (1842) 5 Beav. 103; the plaintiff formed an illicit connection with the defendant, a woman of immoral conduct, and executed a deed making a permanent provision for her; the plaintiff asks cancellation because the defendant left the plaintift^ to live with another man. See also Smyth v. Griffin (1843) 13 Simons 245; the plaintiff cohabited with M. S., a married woman, and in consideration of future cohabitation granted to her an annuity to begin at his death, marriage, or withdrawing his protection; and to secure the annuity he executed a warrant of attorney to enter up judgment. The plaintiff married and M. S. sued on the judgment. The plaintiff asked that the deed and bond be cancelled. In an- other case which might well have been decided on the ground of illegal conduct of the grantor, equitable relief was refused on 532 EEsoissioN. [Chap, vii abandoned' the immoral purpose.* If a bond has been executed in consideration of future cohabitation, equity- might either give cancellation on the ground that it is thus merely enabling the plaintiff to make good his common law defense to the bond* or it might deny cancellatien on the same grounds that it denies can- cellation of a conveyance of property.® Where the bond is voluntary, the fact that the obligee is a prosti- tute is legally immaterial.* § 402. Gambling — ^marriage brocage. If the loser in a gambling transaction gives to the winner a check for the amount lost, it would seem that public policy would be best served by allowing the loser to stop the payment of the cheek and by awarding him cancellation thereof; this is because he is in substance a defendant until payment of the check is actually made; hence cancellation simply preserves and in- the ground of laches; Ayerst v. Jenkins (1873) 16 Eq. Cas. 275. In this case H induced the defendant, who was his deceased wife's Bister, to cohabit with him under color of a fictitious marriage. Two days before the marriage ceremony H conveyed shares to trustees for the defendant. H lived only four months and the de- fendant had remarried without a settlement. The plaintiff argued unsuccessfuly that relief should be given in order to discourage such marriages. 3. Sismey v. Eley (1849) 17 Simons 1: "Now it does not ap- pear that the plaintiff has done any illegal or immoral act in eon- sequence of the promise and expectation made and held out to him by the defendant: but, on the contrary, it appears that the con- nection between him and the defendant terminated on the execution of the deed; and therefore I do not see why this court should not interfere in his behalf." 4. See dictum in Whaley v. Norton (1687) 1 Vernon 483. See post § 408. 5. This would leave the bond in existence but the holder thereof ordinarily unable to realize thereon; the former is the better doctrine. 6. Hall v. Spncer (1767) Ambler 641. §- 403] RESCissioK. 533 sures to him his common law defense.^ Belief has, however, occasionally been refused,^ on the very artifi- cial and mechanical ground that the plaintiff must al- lege the illegal transaction in order to make out a prima facie case.^ A bond given in a marriage brocage contract is not enforcible and hence equity will ordinarily cancel the bond in order to preserve the obligor's common law defense.* And some courts have gone still further and allowed recovery of property or money paid on the ground that the prohibition is aimed at the defendant alone and that public policy will be best served by giv- ing full protection to the paintiff.® F. Bkbach of Conteaot;. § 403. In general— conveyance of land for support. Whether a grantor of land may get the land back because of the failure of the grantee to perform his part of the agreement would seem properly to depend upon the fundamental question of the adequacy of the common law remedy. If the grantee merely promised to pay money, the seller is considered as having an ad- equate remedy in an action for the purchase price.^ 1. Newman v. Franco (1795). 2 Anstruther 519; 2 Ames Eq. Cas. 120. And see Woodward, Quasi Contracts § 152. 2. Kahn v. Walton (1889) 46 O. St. 195, 20 N. E. 203 (suit to enjoin bank from paying the checks.) 3. For a criticism of this test see Sampson v. Shaw (1869) 191 Mass. 145, 151. As pointed out by Professor Keenw, 3 Keener's Equity Cases, 869, such a test would practically eliminate such. cases since the plaintiff nearly always must show the illegal transaction. 4. Hall V. Potter (1695) Shower's Parliament Cases 76; 5 Col. Law Rev. 550. And for a statement of the question of public policy, see Cole v. Gibson (1750) 1 Ves. Sr. 503, 506. 5. Duval V. Wellman (1891) 124 N. Y. 156, 26 N. B. 343; Woodward, Quasi Contracts § 151. 1. In a minority of jurisdictions the vendor is given an 534 RESCISSION. , [Chap, vii But where the promise of the grantee was to do some- thing else than to pay money and, the common law remedy for breach would for any reason be inadequate equity properly gives rescission and orders a recon- veyance. The most common illustration is that of a conveyance of land by an aged person in exchange for support during the rest of the grantor's life.^ In such a case not only are the damages conjectural be- cause of the uncertainty of the duration of the gran- tor's life, but if the homestead has been conveyed, there are additional reasons of sentiment for giving rescission. If the grantor has received benefit by part performance the grantee should, of course, be compen- sated therefor.^ Similarily if the defendant's promise was to convey land in exchange and he is unable to do so, the plaintiff is entitled to rescission.* § 404. Rescission to a grantee. Ordinarily a grantee who accepts a conveyance of land^ is not entitled to rescission for mere breach of equitable Hen for the purchase price, which enables him to have the land sold in order to satisfy the lien. In the majority of Juris- dictions he must bargain for security if he wishes it. 2. Lowman v. Crawford (1901) 99 Va. 688, 40 S. E. 17; 15 Harv. Law Rev. 581; 22 id. 62; 14 id. 319 note 2; 12 id. 559. 3. Rescission was also' given in Savannah etc. Ry. Co. v. Atkinson (1894) 94 Ga. 780, 21 S. B. ^1010, where defendant rail- road's promise was to construct its road; in Michel v. Hallheimer (1890) 56 Hun 416 where defendant had promised to build tenement houses; and in Pironi v. Corrlgan (1891) 48 N. J. Bq. 607, 23. Atl. 355 where the defendant had promised to secure a separation for the plaintiff from the plaintiff's husband. In Brewster v. Lanyon Zinc Co. (1905) 140 Fed. 801 the plaintiff leased gas and oil rights to the defendant who neglected to develop production. The plaintiff asked for and obtained cancellation of the lease under a forfeiture clause; see 6 Col. Law Rev. 467. 4. Bell V. Hutchings (1891) 86 Ga. 562, 12 S. B. 974. • 1. If he has not accepted the deed he may rescind for failure of title; Stanton v. Tattersall (1853) 1 Sm. & G. 529; unless the failure Is so small as to entitle the vendor to specific performance wJtli compensation. S?e ante | 121. '^ 404] EEscissioK. 535 warranty of title;* he must content himself with an action at law for damages. But if a judgment for damages would be inadequate because of the insolvency of the grantor, rescission will be granted.^ Similar reasoning applies to other promises made by the grantor. In Eackeman v. Eiver Bank Improve- ment Co.* the agent of defendant land company sold and conveyed a lot to the plaintiff, agreeing without authority to sell no lots at a smaller price. The de- fendant later sold lots to others at a smaller price and the plaintiff, offering to reconvey, asked rescission of the transaction and a cancellation of his notes and mortgage. It was held that the company must reject or ratify the transaction in its entirety and the breach of the promise entitled the pla'intiff to the desired re- lief; it is obvious that in such a case damages would be inadequate because conjectural.^ 2. Gale v. Conn (1830) 26 Ky. 538; Edwards v. McLeay (1815) George Cooper's Chancery 308. 3. Matthews v. Crowder (1902) 111 Tenn. 737, 69 S. W. 779; 16 Harv. Law Rev. 224. 4. (1896) 167 Mass. 1, 44 N. B. 990; 10 Harv. Law Rev. 315. 5. A somewhat similar case Is presented In the field of in- surance. In Black V. Sup. Council, Amer. Legion of Honor (1902) 120 Fed. 580, the plaintiff had taken out a life insurance policy in a mutual benefit association for $5000. Some years later the company partly repudiated their contract by passing a by-law making $2000 the maximum amount payable on any policy. Res- cission was allowed without any compensation to the Insurance company for the risk which they had undergone. Tho the case rep- resents the weight of authoriey on the point of compensation, it is not the better view; see 16 Harv. Law Rev. 600; ante § 394. CHAPTER VIII. Bills Quia Timet and to Remove Cloud on Title. A. Cancellation of Contracts; § 405. Scope of bills quia timet. The literal meaning of the phrase quia timet is "because he fears;" hence taken literally, without any- modifying words, bills quia timet would include many bills in equity which are never thought of as quia timet; for example, in bills for specific performance it may truthfully be said that the plaintiff fears that the defendant will not perform his promise.^ It would certainly include cases where the plaintiff is seeking to prevent- injury to his property through a threatened trespass or nuisance, and occasionally the term is thus used.^ In a narrower sense of fearing litigation it would still include bills of interpleader and bills of peace, but the latter are usually treated separately, as in this book.^ It is quite common to use the phrase to include bills to remove cloud on title;* but since the 1. Apparently the phrase is never applied to any specific per- formance cases, but it might very appropriately be used where be- fore the time set for performance the plaintiff reasonably fears that the defendant will convey the property to a hona fide purchaser and asks that he be enjoined; see ante § 89. 2. Fletcher v. Bealey (1885) 28 Ch. D. 688; in refusing an in- junction against the defendants allowing vat waste to get into the river the court said: "I think there is not sufficient on this part of the case to sustain a quia timet action." 3. See post Chap VIII and IX. 4. Professor Ames has so classified it; 2 Ames Eq. Gas. Chap. VIII. See also Contee v. Lyons (1890) 19 D. C. 207. "This was a bill quia timet in which the complainant sought to have an alleged cloud on their title removed." (536) ^ 406] BIIiLS QTJlA TIMET, ETC. 537 injury sought to be redressed in such a bill is usually, if not always, a present inju'ry to marketability and not merely a threatened future injury, it seems clearer to classify it separately.® In the most narro-wf sense bills quia timet include only those bills which seek relief against the effect of a possible loss of evidence in an existing or threatened litigation, or against the trans- fer of a negotiable instrument. § 406. Equitable defenses arising at inception of con- tract. In the previous chapter were discussed' not only the rescission of transfers of property but also the rescision and cancellation of contracts which the plain- tiff had executed because of fraud, illegality, etc. This was because originally one who had executed a sealed contract but had a defense of fraud, or of illegality not appearing on the face of the instrument was jUst as much in need of equitable relief as if he had been in- duced by fraud to convey property.^ Having at that time no common law defence to an action on the con- tract, his sole relief was to get a perpetual injunction against the enforcement of the contract and as an in- cident thereto, the court would order the contract to be delivered up and cancelled in order to make the relief complete.^ As to contracts not under seal, ap- parently the defences of fraud and illegality could always be, shown at common law; but equity extended its jurisdictions of cancellation — probably unconsciously — to include them.* And furthermore, even if the 5. See Sharon v. Tucker (1892) 144 U. S. 533. 1. Specialty Contracts and Equitable Defenses, by Professor Ames, 9 Harv. Law Rev. 48-59. 2. As to Illegality not apparent upon the face of ■ the instru- ment, see Law v. Law (1735) 3 P. Wms. 391; as to fraud, see Gale V. Linds (1687) 1 Vernon 474. 3. Newman v. Franco (1795) 2 Anstruther 579, 2 Ames Eq. Cas. 120 (bill of exchange for money won at play) ; Buxton v. Broad- 538 BILLS QUIA TIMET, ETC. [Chap, viii defenses of fraud and illegality may now be shown at law* in an action on a sealed contract, equity still retains its jurisdiction of cancellation,^ without re- gard to the existence of quid timet grounds for relief. § 407. Equitable defenses arising after inception of con- tract. The^ history of defenses arising after the inception of a sealed contract — such as payment, failure of con- sideration, discharge of a surety,^ etc., is substantially the same as that of defences arising at the inception.'' But for some apparently unexplained reason, the equitable jurisdiction of cancellation was not extended as to such defenses to instruments not under seal. In Brooking . v. Maudslay* the plaintiff had insured the defendant's cargo machinery, and both ship and cargo • were lost ; the plaintiff asked that the insurance policy be cancelled on the ground that the ship was sent to sea in an unseaworthy condition. In denying relief: "If the policy were liable to be completely avoided, as, for example, if it had been obtained by misrepresenta- tion, a court of equity would have jurisdiction to direct the delivery up and cancellation of the instrument. . . . On the other hand, where the policy cannot be so avoid- way (1878) 45 Conn. 540; 2 Ames Eq. Gas. 115 (nonnegotiable note obtained by fraud). 4. As to illegality the rule was changed by Collins v. Blantem (1767) 2 Wils. 341. As to fraud the rule was changed In England by the Common Law Procedure Act of 1854. 5. Andrews v. Berry (1795) 3 Anst. 634. In Pacific Mutual Life Ins. Co. v. Glaser (1912) 245 Mo. 377, 150 S. W. 549 an in- sured Innocently but falsely warranted that he had never been refused insurance; the effect of this was that the company never became bound by the policy and hence the giving of cancellation on the ground of mistake seems unsound; but the decision is justified on quia timet grounds; see 26 Harv. Law Rev. 366. 1. See 9 Harv. Law Rev. 48, 52. 2. See ante § 406. 3. (1888) 88 Ch. D. 636; 2 Ames Eq. Cas. 128. ■^ 408] BUXS QUIA TIMET, ETC. 539 ed, but there is a gixod legal defence to an action upon it (as, for example, deviation) a court of equity cannot make a decree for cancellation,"* § 408. Real defenses to contracts — ^jurisdiction quia timet. EeaP defenses, such as forgery, have always been available at law even in actions on sealed con- tracts; such contracts are usually called void, as distinguished from contra^cts with personal or equitable defenses arising at the inception of the contract, which have already been discussed;^ the latter are called voidable contracts. When the contract is void on its face so that the supposed obligor will have no difficulty in making out his defense whenever action may be brought against him, he does not need the aid of a court of equity* unless the contract is a cloud upon the title to some of his property i* But where the contract, tho void, is apparently valid on its face the supposed obligor may need equitable relief; for example, if no action has been brought at law and the Statute of Limitations has a long period to run, he may be in very real peril of being unable to prove his defense if the holder of the instrument should delay suing for a long time. Where, under all the circumstances, there is a reason- able fear of thus losing the benefit of one's defense, 4. See also Thornton v. Knight (1848) 16 Sim. 509. 1. As distinguished from personal or equitable defenses discussed in the two preceding sections. 2. See ante § 406. These defenses are called personal because they are not available against every person, since a bona fide purchaser for value before maturity is protected. In this sense infancy and coverture are not personal defences but real defences. Infancy is a personal defence only in the sense that it can not be taken advantage of hy any one else. 3. Simpson v. Howden (1837) 3 Mlyne and Craig 97, 2 Ames Bq. Cas. 124; (agreement illegal and void on its face). 4. See post §§ 413-419. 540 SILLS QUIA TiMEf, ETC. [Chap, viii equity should cancel,^ but the courts have not yet fully come 'to that position.® The fact that cancellation of voidable instruments has been given as a matter of course without reference to possible quia timet grounds''' has apparently blinded the courts to the need of cancel- lation of void instruments where there are quia timet g^^ounds for relief. § 409. Inadequacy of bill to perpetuate testimony. In many of the cases whe^e the cancellation of void instruments has been refused tho there were apparently quia timet grounds, the suggestion is made that the plaintiff has an adequate remedy in a bill to per-' petuate testimony or its statutory equivalent.* While '5. In FuUer v. Percival (1879) 126 Mass. 381, 2 Ames Eq. Cas. Ill, the plaintiff's intestate and defendant G. Percival had heen part- ners; G. P. gave negotiable notes in the name of the partnership without the authority of his partner. In awarding cancellation to the plaintiff: "The notes are in the possession of a fraudulent holder who has demanded payment of the plaintiff; they are negotiable, and although overdue may be sued by such holder, or by others to whom he may hereafter transfer them, to the embarrassment of the plaintiff, and no suit at law has yet been commenced upon them. . . . The plaintiff cannot try the question of partnership liability at law until such time as John P. T. Percival (the holder) may see fit to bring his action. . . . And, upon the whole, we are of opin- ion that the plaintiff is entitled to the relief he seeks. It is more ef- fectual than it can be at law, because it is more speedily afforded, and enables the plaintiff to protect himself before the evidence is lost." 6. See 16 Harv. Law Rev. 222, criticising the refusal of relief in Vanatta v. Lindley (1902) 198 111. 40, 64 N. B. 735. 7. Occasionally courts use the quia timet argument in cases where equity has retained its historical jurisdiction; McHenry v. Hazard (1871) 45 N. Y. 580, 2 Ames Bq, Cas. 118; note procured by fraud: "The defendants could not, at their election, postpone the liti- gation of the question, and subject the plaintiff to the vexation of a litigation at a distant period, when the means of defence might be lost or impaired, and when he might be disabled from contesting the validity of the claim with the same ability as at the present time." 1. Allerton v. Belden (1872) 49 N. Y. 373, 2 Ames Bq. Cas. 113; the plaintiff asked cancellation of a usurious note upon which he was an accommodation indorser; in denyiilg relief: "The only facts upon <§ 410] BILiS QUIA TIMET, ETC. 541 the perpetuation of testimony would in . some cases not only be valuable but effective, it can hardly be reasonably contended that such evidence — which is us- ually read by the court stenographer — is an adequate substitute for the testimony of the witnesses them- selves.^ Nor can it be reasonably contended that an equity court should not by compelling an immediate trial take away the right of the holder to wait till the Statute of Limitations has almost run before bringing his action. It is doubtful if he has any such right to wait; but even tho he has, equity may very properly prevent him from using such right vexatiously or op- pressively. § 410. Injunction against transfer of negotiable in- struments. If the instrument is negotiable and not yet due and the defense is^ merely personal, the equity plaintiff needs not only cancellation but also an immediate in- junction against its transfer so as to prevent his de- fense from being cut off by the instrument getting into the hands of a bona fide purchaser.^ Tho the doctrine which the plaintiff bases his claim to relief are that the defendant Belden refuses to bring an action and that the witnesses to prove the usury may die, and also that the property which is mortgaged to the plaintiff as indemnity is deteriorating in value. There is nothing in these allegations showing any occasion for an action of this descrip- tion. If the complaint is true the plaintiff has no need of indemnity. If he is apprehensive that his witnesses may die, he may perpetuate their testimony under the provision of the Revised Statutes. If the danger of death of witnesses were a sufficient ground for an action for relief, every case of usury where the lender has not sued at law may be brought by the borrower into a court of equity." 2. The fact that for a long time trial in all equity cases was by deposition — and that therefore there was little or no advantage in that respect of cancellation over the perpetuation of testimony — no doubt has contributed to the slowness of the courts in fully recog- nizing quia timet grounds for cancellation. 1. Moeckly v. Gorton (1889) 78 Iowa 202, 42 N. W. 648 (note given to avoid prosecution). In Smith v. Aykwell (1747) 3 Atk. 566, 2 542 BILLS QUIA TiMBT, BTO. [Chap, vlii of lis pendens does not apply to negotiable instru- ments^ yet the fear of being punished for contempt of court, together with the publicity connected with the giving of the injunction will usually prevent the loss of the plaintiff's defense. If a bona fide purchaser would not be protected either because the note is overdue or because the defense is a real defense,* but there are quia timet grounds for cancellation, a preliminary in- junction against transfer might well be given in order to expedite the plaintiff's suit for cancellation.* But courts that refuse to cancel on quia timet grounds will in such' cases of course refuse an injunction.' § 411. Effect of pendency of an action at law. If the, holder of the instrument has already brought an action at law thereon Jand the law defendant may prevent him from dismissing^ there is no real need of Ames. Eq. Cas. 132, a negotiable note had been given by the plaintiH to the defendant to procure the plaintiff a marriage. The plaintiff was given, on motion, a temporary injunction against the transfer of the note; the report of the case in 3 Atkyns says that the plaintiff asked for and was refused an injunction against any action at law on the note but in the report of the same case in Ambler 66, (sui nom. Smith V. Haytwell) there is nothing of this. No reason appears why the plaintiff might not have had upon the final hearing cancellation upon historical grounds, the illegality not appearing on the face of the note; see ante § 406. 2. Winston v. Westfeldt (1853) 22 Ala. 760. '3. Or because the instrument was a non-negotiable one. 4. The only danger is that the equity plaintiff might be unable to find out who the transferee is; if a transfer is made pending his suit for cancellation, he may at once have the transferee made a party. - 5. Reilly v. Tolman (1894) 58 111. App. 588 (note usurious and past due). 1. In the Federal courts a plaintiff does not have an absolute and unqualified right to dismiss; Stevens v. The Railroads (1880) 4 Fed. 97. This seems to be the explanation of the decision in Grand Chute V. Winegar (1872) 15 Wall. 373, 2 Ames Eq. Cas. 116, in which the equity court refused cancellation of bonds obtained by fraud because an .action at law had already been brought; "A judgment against § 411] BILLS QUIA TIMET, ETd. 543 cancellation; but if he cannot be so prevented and the law defendant can show that there is reasonable fear of such dismissal, then the previous bringing of such action at law should be no bar to cancellation.^ If the action at law is brought after the suit in equity has been begun, the equity court might either enjoin the action at law and give cancellation on the ground that the court which first takes jurisdiction is entitled to keep it; or it may, as a matter of con- venience, merely suspend the giving of relief till it be seen whether the law plaintiff will prosecute his action diligently. The latter seems to have been the situation in Hoare v. Bremridge^- where the court refused to enjoin the action but apparently did not dismiss the plaintiff's bill. At that time trial in an English equity court was still by deposition;* at the present time, when trial in Wlnegar in the suit brought by him would be as conclusive upon the invalidity of the bonds, would as effectually prevent all future vex- atious litigation, would expose the fraud, and prevent all future decep- tion as thoroughly and perfectly as would a judgment in the equity suit." 2. In Buxton v. Broadway (1878) 45 Conn. 540, 2 Ames Eq. Cas. ' 115 : "If the petitioner could compel the respondent to prosecute to fiaal judgment the suit he has commenced on the note in question, then it might be said with truth that he has adequate remedy at law for the grievances set forth in his bills. But the petitioner has no such power over the respondent or the suit; neither does the law furnish him any means of acquiring it. The suit is under the en- tire control of the respondent who may withdraw it at any time be- fore the verdict of a jury or the finding of facts by the court; and, abiding his time, he may take an unconscionable advantage of the petitioner when his witnesses are dead or have been scattered to parts unknown, or when the facts with regard to the fraud shall have faded from their memory." In McHenry v. Hazard (1871) 45 N. Y. 580, 2 Ames Bq. Cas. 118, there T^as the additional reason for giving relief that the equity plaintiff had been sued by three different persons each claiming to be the owner of the instrument; for a discussion of bills of peace, see post Chap. X. 3. (1872) 8 Ch. App. 22, 2 Ames Bq. Cas. 121. See also 17 Harv. Law Rev. 408, 417. 4. "In this case the balance of convenience appears to me clearly to be in favor of the trial at law. It is admitted that it will be more Bpeedy; as far as I can judge, it would be less costly; and also 544 BILLS QUIA TIMET, ETC. [Chap, viii equity is in open court there seems to be no sub- stantial reason • for ' thus suspending the giving of equitable relief. § 412. Conflict between State and Federal decisions. In Town of Venice v. Woodruif ^ action was brought to have certain bonds issued by the supervisor and rail- road commissioners of the Town of Venice, delivered up and cancelled, and in the meantime to restrain transfer. The referee found that the bonds had been issued with- out the requisite consent of two thirds of the taxpayers. According to New York decisions* the bonds were void even in the hands of a bona fide holder, but the plain- tiff argued^ that since the Federal courts had held that a bona fide holder would be allowed to recover on the bonds the plaintiff should be protected against the possibility of the bonds reaching the hands of a non-resident bona fide holder.* The court attempted to evade the argument by suggesting' that the Federal that which very properly adverted to hy the learned vice chancellor in his judgment, the present course of procedure at law, as compared with that In equity gives an advantage which in cases of this kind 16 of the greatest value — the advantage of having all the evidence orally taken, and all the cross examination without rehearsal of any kind." Hoare v. Bremridge, sujira. 1. (1875) 62 N. Y. 462, 2 "Ames Bq. Cas. 133. 2. Strain v. Genoa (1861) 23 N. Y. 439. 3. The court definitely refused to recognize ordinary quia timet grounds as a basis for cancellation, citing Allerton v. Belden (1872) 40 N. Y. 373, 2 Ames Eq. Cas. 113. 4. A resident tona fide holder might change his residence for the purpose of suing in the Federal courts; The Garland (1883) 16 Fed. 283, 288. 5. "But where the effect of a transfer is not to change in any respect the rights or equities of the parties, I am not prepared to hold that the allegation that the transferee might resort to a tribunal in which a rule of decision prevails, or may prevail, dlfEering from that of the court which is asked to enjoin the transfer is sufiScient to' justify the interference asked. The wrong sought to be prevented by such a proceeding is not any wrongful act of any party, but a de- cision of another court. . . . If it is a wrong In this case it § 413] BILLS QUIA TIMET, ETC. , 545 court might not protect a bona fide holder; but if it should not, it is difficult to see how the present equity plaintiff could be legally damaged by enjoining the the transfer. If the New York court had felt great confidence m the correctness of its own rule in not protecting bona fide holders in such cases, it might well have given the relief sought and would probably have doiie so. Since they refused relief it seems a fair inference that they did not feel sure that the Federal rule was wrong and hence did not feel justified in preventing the bonds from being sued on in the Federal courts. This is one of several instances of unfortunate embarrassment arising from our double system 'of courts. B. Bills to Remove Cloud on Titi>b. § 413. In general. In sorhe cases an equity plaintiff may be entitled to cancellation not only on historical^ and quia timet'' grounds but also because the instrument casts a cloud on his title to some property.* But just as the exist- ence of the historical jurisdiction has .tended to obscure must be on the assumption that the federal court vill render a de- cision at variance with the decision of this court. I am of opinion that such an apprehension is not a legitimate ground for the action of a court of equity in restraining a transfer or directing the can- cellation of the instrument." 1. See ante §§ 406, 407. 2. See ante § 408. 3. In Martin v. Graves (1863) 5 Allen 601, 2 Ames Eq. Cas. 137, all three grounds were present. In that case residuary devisees brought a bill against the grantees of land by the testator alleging that the defendants had procured the conveyance by fraud and undue influence; the defendants were not in possession because their interest under the deed was subject to a life estate In the testator's widow who was In possession. Since the deed had been procured by fraud fhere was historical jurisdiction; see ante § 406; there was quia timet juris- diction because the plaintiffs could not sue the defendants at law till the death of the widow, by which time they might lose their evidence Eq.— 35 546 BILLS (juiA TiMEtr, ETC. [Chap, viii quia timet grounds for cancellation,* so the existence of the historical jurisdiction and the partial recognition of quia timet jurisdiction' has apparently made it difficult for courts always to differentiate this third ground for cancellation. The origin of giving relief because of cloud on title has been traced to the decision of Lord Eldon in Hayward v. Dimsdale;® the existence of the jurisdiction has come to be fairly well recognized but there has been much conflict in the decisions as to the extent of it. § 414. What constitutes a cloud on title. This conflict has chiefly centered about the question as to what constitutes a cloud on title.^ The correct view, which has been recognized in some jurisdictions,^ is that any claini which actually does affect market- ability by depreciating the market -value of the property is a cloud on title, even tho the court which orders the cancellation can easily see that the claim is bad. In o£ the fraud; and sinc^' the deed purported to convey the plaintiffs land, it was a cloud on?their title thereto. In Sharon v. .Hill (1884) 20 Fed. 1, 2 Ames Eq. Cas. 161, there were both quia timet and cloud on title grounds for cancellation. That was a suit in equity to cancel a forged marriage contract by virtue of which the defendant claimed a wife's interests in the plaintiff's property worth several millions. There were quia timet grounds for relief because there was no way in a law court to contest the defendant's claim till the plaintiff's death; and it Is obvious that a claim of dower immediately interfered with the marketability of his land and thus became a cloud on title. 4. See ante §§ 406, 407. 5. See ante § 408. 6. (1810) 17 Ves. Ill; see 5 Col. Law Rev. 609. 1. A cloud on title has been judicially defined as "the semblance of a title, either legal or equitable, or a claim of an interest in lands, appearing in some legal form, but which is, in fact, unfounded, or which It would be Inequitable to enforce." See Rigdon v. Shirk (1889) 127 111. 411, 19 N. E. 698. 2. Day Co. V. State (1887) 68 Tex. 526, 4 S. W. 865; Jones v. Perry (18X6) 10 Yerg. (Tenn.) 59; Linnell v. Batty (1891) 17 R. L 241, 21 Atl. 606. ^ 414] BILLS QUIA TIMET, EaXJ. 547 other words the test should be the mind of the average purchaser rather than the mind of one learned in the law.^ Unfortunately, however, the prevailing view is much less liberal to the equity plaintiff; under this view he will fail if the defend^t's claim is invalid on its face, or if, altho valid on its face it would fail in an action brought upon it through evidence which the defendant would be compelled to introduce in order to make out his case.* The practical difficulty of this lies in the fact that purchasers of land are actually frightened away by the prospect of any litigation, no matter what the chances for winning are. In a few jurisdictions the rule has become, if possible, even more mechanical and artificial, by making the test of getting cancellation depend upon whether it would be neccessary for the plaintiff in an action by the claimant, to offer any evidence to overthrow the latter^s claim.® 3. In Missouri reliief will be given against instruments whose defects are discoverable only by legal acumen; Merchants' Bank v. Evans (1873) 51 Mo. 335. 4. In Washburn v. Burnham (1875) 63 N. Y. 132, 2 Ames Bq. Cas. 150, A purporting to act as agent for the plaintiff had executed a contract for a conveyance of the plaintiff's land to the defendant. In refusing cancellation: "It is an imperfect, incomplete agreement, and an action brought for a specific performance of it could not be maintained without proof to establish that the attorneys claiming to act on behalf of the principal had power and authority to execute the instrument. ... He would not make out a cause of action with- out proof of authority of the attorneys, and in attempting to show , this, the alleged want of authority will be made manifest. If authority is shown then clearly there is no cloud. If there is a failure to show it, then there is no cloud." In Bockes v. Lansing (1878) 74 N. Y. 437, 2 Ames Eq. Cas. 152, relief was denied because the plaintiff's record title was superior to the defendant's and therefore the de- fendant would be compelled to attack the plaintiff's title. See also Scott V. Ond^rdonk (1856) 14 N. Y. 9, 2 Ames Bq. Cas. 147; in that case there had been a purported sale of the plaintiff'^ lots not vaUdly assessed; the deed was cancelled but upon the single ground that a statute had made such deeds "prima facie evidence of the facts therein recited and set forth." 5. Lytle v. Sandefur (1890) 93 Ala. 396, 9 So. 260; Pixley v. 548 BILLS QUIA TIMET, ETC. [Chap, viii Either statement of the rule leads to the surprising result of a defendant arguing that his claim is invalid and that he should therefore be left in possession of it.® Apparently the only relief from such a situation is in legislation.'' § 415. Requirements of title and possession. Apart from statute cancellation on the ground of removing cloud on title is limited to one holding legal title.^ There seems to be no good reason why one whose interest in property is equitable should not have similar relief under similar circumstances, and in some states statutes have been passed extending the scope of the remedy.^ If a plaintiff is in possession it is obvious that he cannot bring ejectment against the claimant and the only adequate relief against the cloud is in equity.^ Huggins (I860) 15 Cal. 127; 2 Ames Eq. Cas. 153 (semble). For a criticism of this see 18 Harv. Law Rev. 527, 528: "The unfortunate result of such a distinction can best be shown by an illustration.' If the plaintiff and the defendant both claim under a deed from the same grantor, the defendant's deed, tho subsequent to that of the plaintiff, is a cloud, because the plaintiff, were his title attacked, would have to introduce evidence of the record. But if the defend- ant's deed is a forgery, or proceeded from a person outside the chain of title, the instrument, altho valid upon its face, would not be a cloud, because these facts must necessarily appear and destroy the claimant's case without any proof on the, part of the plaintiff. Since one may detract as much as the other from the value of the plaintiff's property, such a rule must often work injustice." And see 5 Col. Law Rev. 609, 610. 6. 3 Pom. Eq. Jur. § 1399, cited in Bishop v. Moorman (1884) 98 Ind. 1, 2 Ames Eq. Cas. 156. 7. For an anomalous exception to the anomalous prevailing rule see Bishop v. Moorman, supra, where relief was given because the instrument was a sheriff's deed, "under color of official, authority." 1. Frost V. Spitley (1887) 121 U. S. 552; Wood v. Nicholson (1890) 43 Kan. 401, 23 Pac. 587. 2. Oliver v. Dougherty (1902) 8 Ariz. 65, 68 Pac. 553, citing Rev. St. 1887, § 3132. 3. DuU's Apipeal (1886) 113 Pa. St. 510, 6 Atl. 504. "^ 416] BILLS ClXJIA TIMET, ETC. 549 It is freq[uently said that a plaintiff must have posses- sion as well as legal title,* but this is not strictly true. If the defendant is in possession and the plaintiff claims to be entitled immediately to possession, there is no reason for the interference of equity^ because ejectment is ordinarily adequate.* But if for any reason ejectment could not have been brought, either because the plaintiff is a reversioner'^ or remainder- man,* or mortgagee not entitled td possession,® or is a mere warrantor of title without any possessory right,^" or because neither party is in possession,!^ then cancellation is the proper remedy. In some states statutes have been passed making possession wholly immaterial.!^ § 416. Inadequacy of other remedies. In Scott v.. Onderdonk^ the court implied|y suggest- ed that the plaintiff might bring an action for slander of title. But this remedy would not lie except in comparatively rare cases where the claimant has acted in bad faith or officiously;^ furthermore, even in cases 4. Frost V. Spitley, supra. 5. Keane v. Kyne (1877) 66 Mo. 216, 2 Ames Eq. Cas. 144; Moores v. Townshend (1886) 102 N. Y. 387, 7 N. E. 401. 6. In Kruczlnske v. Newendorf (1898) 99 Wis. 264, 270, 74 N. W. 974, 1119, the court gave cancellation because "ejectment would merely secure the title and possession, leavin-g the outstanding deeds and mortgages as clouds on the title." It would seem, however, that the judgment in ejectment would be sufficient protection to the plain- tiff; see 3 Col. Law Rev. 357. 7. Keyes v. Ketrick (1903) 25 R. I. 468, 56 Atl. 770. 8. Worthlngton v. Miller (1901) 134 Ala. 420, 32 So. 748. 9. Horn v. Garry (1880) 49 Wis. 464, 5 N. W. 897. 10. Pier V. Fond du Lac Co. (1881) 53 Wis. 421, 10 N. W. 686. 11. O'Brien v. Creitz (1872) 10 Kan. 202; 2 Ames Eq. Cas. 146; 10 Col. Law Rev. 671. See contra, by statute, Randle v. Daughdrill (1905) 142 Ala. 490, 39 So. 162; Ala. Code, 1896, §§ 809, 814. 12. Casey v. Leggett (1899) 125 Cal. 664, 672, 58 Pac. 264, Code Civ. Proc. § 738. 1. (1856) 14 N. Y. 9, 2 Ames Eq. Cas. 147. 2. Andrews v. Dashler (1883) 45 N. J. Law 167; 13 Col. Law Rev. 23-25. 550 BILLS QUIA TIMET, ETC. [Chap, viii where it did lie, damages would be inadequate because conjectural; and a judgment in the plaintiff's favor would not necessarily clear the plaintiff's title*, or convince purchasers. In Loggie v. Chandler* the court in refusing cancel- lation suggested that the plaintiff might perpetuate the evidence.^ The discussion of the perpetuation of testimony" in connection with cancellation of contracts* applies equally here. But the plaintiff not only has a right to be in a position where he may vindicate his title in any future litigation, but also a righf^ to market his property at any time; this latter right is practically not protected at all by the perpetuation of testimony because the result of such a proceeding would probably not reach and almost certainly would not convince prospective purchasers. § 417. Title by adverse possession— prevention of cloud. The fact that the plaintiff's title has been gained by adverse possession for the statutory period is generally held to be no bar to giving cancellation even against the former owner who holds the record title.^ Conceivably, a court of equity might have refused re- lief to a plaintiff who had not acted in good faith, on the ground that one who comes into equity should come with clean hands, but there seems to be no trace of 3. For example. If the slanderer did not claim title in himself but in a third person not a party to the action. 4. (1901) 95 Me. 220, 49 -Atl. 1059, 2 Ames Eg. Cas. 140. 5. That the mortgage had been paid; since the defease arose af- ter the inception of the mortgage, there was not historical jurisdic- tion and the court failed to recognize quia timet grounds as sufiBcient basis for cancellation. See ante § 408. S. See ante § 409. 7. The right is assumed at common law, but inadequately pro- tected. 1. Arlington v. Llscom (1868) 34 Cal. 355, 2 Ames Eq. Cas. 142. 2. See McCormack v. Sllsbee (1889) 82 Cal. 72, 22 Pao. 874. ■^ 418] BIUL^ QUIA TIMET, ETC. 551 such a distinction in the cases, the value of the Statute of Limitations as a statute of repose being recognized in'vequity as well as at law.'' Where a cloud on title is not yet in existence but is, likely to be created, equity will interfere to prevent its creation;* but relief will be refused as long as its creation is improbable." § 418. Cloud on title to personalty— oral and written claims. > That the property involved is personalty instead of realty should logically be no bar to a suit to remove cloud on title.^ Even tho it be .argued^ that adverse claims usually do not. so rhuch impair the value of personalty as of realty, it is hardly a satisfactory reason for denying relief where the plaintiff shows a real injury to marketability. That the claim made to the property is not evi- denced by any written instrument would seem to be no 3. In McCoy v. Johnson (1889) 70 Md. 490, 17 Atl. 387, reUef was refused because the question whether the plaintiff had acquired title hy adverse possession was one for the determination .oi> a court of law and the constitutional guaranty of trial by jury was involved. In Contee v. Lyons (1890) 19 D. of C. 207 the court confused suits to quiet title in the sense of a bill of peace — see post § 445 — with suits to remove cloud on title, and denied relief because the plaintiff was not being disturbed; see 18 Harv. Law Rev. 147. 4. King v. Townshend (1894) 141 N. Y. S58, 36 N. E. 513. 5. Clark v. Davenport (1884) 95 N. Y. 477. 1. Relief was given in Sherman v. Fitch (1867) 98 Mass. 59, 2 Ames Eq. Oas. 141, (mortgage given by corporation now insolvent). See also Stebbins v. Perry Co. (1897) 167 111. 567, 47 N. B. 1048, and Homrich v. Robinson (1915) 221 Mass. 308, 108 N. E. 1082; 14 Mich. Law Rev. 76 (chattels stolen from the plaintiff in the hands of the police). See contra, State ex rel. Kenamore v. Wood (1899) 155 Mo. 425, 446, 56 S. W. 474. In Perry v. Young (1916) 133 Tenn 522, 182 S. W. 577 a cloud on the title to a chose in action was removed; 16 Col. Law Rev. 520, 521. 2. 20 Harv. Law Rev. 421, 422. It is also suggested that "this somewhat extraordinary remedy might be invoked In too many petty 552 BILLS QUIA TIMET, ETC. [Chap, viii sufficient reason for denying relief because a mere oral claim might conceivably interfere seriously with the marketability of the property." In one case* the court gave the curious reason that there was nothing to to cancel. Such an objection merely goes to the form of relief; a decree enjoining the further assertion of the claim would be proper in' such a case and might be of great value to the plaintiff. In Leeds v. Wheeler^ tho there was no instrument "which upon its face is, or with the aid of extrinsic facts may be, some evidence of a' right adverse to the plaintiff's,"** the defendant had made his claim in writing and had it recorded. The court was quite right in saying that since the registry statute did not provide for the recording" of such a writing it should not have been recorded.'^ But the average purchaser is not an expert on the extent and operation of the registry system* and is likely to be considerably influenced by the record of such a claim.® controversies." This seems a rather fanciful objection. If the cir- cumstances are such that the owner may easily remove the chattel and escape the effect of, the claim, he will almost certainly do so rather than litigate. 3'. Apparentfy all the cases deny relief. In Parker v. Shannon (1887) 121 111. 452, 13 N. E. 155, 2 Ames Eq. Cas. 160, the court sug- gests that it must be an instrument of record which casts doubt upon the record title. 4. Ashurst v. McKenzie (1890) 92 Ala. 484, 9 So. 262:' "nothing could be delivered up and cancelled under the decree of the court un- dertaking to remove a cloud." 5. (1892) 157 Mass. 67, 31 N. B. 709, 2 Ames Eq. Cas. 159 6. Nickerson v. Loud (1875) 115 Mass. 94, 97. 7. In Nickerson v. Loud supra, the court suggests that the plain- tiff's remedy is by an action at law for damages for unlawfully re- cording, but does not say whether it would be against the recording officer or against the defendant. It is at least doubtful whether a judgment in such an action would convince purchasers. 8. TTio the doctrine of constructive notice does not apply to a writing thus unlawfully recorded, prospective purchasers are very likely to get actual notice thereof. 9. Relief was given in Sanxay v. Hanger (1873) 42 Ind. 44, § 419] BILLS QUIA TIMET, ETC. 553 § 419. Form of relief— pendency of ejectment action. "The form of relief will always be adapted to the obstacles to be removed."^ If the plaintiff has the record title it will usually be sufficient to require the defendant to deliver up the offending instrument that it may be cancelled or destroyed;^ but if the instru- ment itself has been recorded, complete relief would seem to require that the defendant be compelled to execute and have recorded a release of the interest claimed thereby. And if the apparent record title is in the defendant, the plaintiff having acquired title by adverse possession,* a conveyance of the title to the plaintiff and the recording thereof would seem to be the proper decree.* In any case an injunction against the further assertion of the claim would be appropriate, but where there is no instrument to cancel, it is the only way in which relief can be given.^ Legislation giving the decree removing the cloud on title an in rem effect and directing that the decree it- self be recorded iii the registry of titles would be highly beneficial, as would also legislation giving equity courts jurisdiction in rem in cloud on title cases, so as to reach non-resident claimants.® What has been already said'' as to the effect of the pendency of an action at law upon a bill for the can- where the defendant's recorded claim that the plg,intiffl had no ease- ment had made the plaintiff's land practically unmarketable. 1. Sharon v. Tucker (1892) 144 U. S. 533. 2. As was done in King v. Townshend (1894) 141 N. Y. 358, 36 N. E. 513; and in Hamilton v. Cummings (1815) 1 Johns Ch. 517. 3. See ante § 417. 4. But in Sharon v. Tucker, supra, the court contented itself with a declaration that the plaintiff's title by adverse possession was complete and with giving an injunction against the defendant's fur- ther assertion of title. • 5. See ante § 418. 6. Statutes of this sort are fairly common. See Title & Document etc. Co. V. Kerrigan (1906) 150 Cal. 289, 88 Pac. 356; 7 Col. Law Rev. 284. 7. See ante § 411, 554 BILLS QUIA TIMET, ETC. [Chap, vui cellation of a contract should apply also to the effect of the pendency of an ejectment action upon a bill to remove cloud on title, but there seem to be very few .decisions.? C. Other Quia Timet Belief. § 420. The perpetuation of testimony. Tho the perpetuation of testimony is not an adequate substitute for the cancellation of a contract^ and practically no substitute at all for the removal of a cloud on title,^ it may be of considerable value. In 8. In Wnson v. Miller (1905) 143 Ala. 264, 39 So. 178 the de- fendant had instituted an action of ejectment relying on a forged deed and the plaintiff had then asked for cancellation and an injunc- tion against the action at law. There was a demurrer to the bill. At first the court was of the opinion that the demurrer was properly overruled because — citing Lehman v. Shock (1883) 69 Ala. 493 — "the remedy by ejectment at law is not full and adequate. A court of law is incompetent to sweep away the deed which clouds com- plainant's title, so long as it remains in the hands of the defendants uncancelled." On rehearing, however, this opinion' was reversed on the I ground that the claimant could not properly be deprived of his right to trial by jury and that the bill shoulid be dismissed until the plaintift had successfully defended the action at law. It would seem that a judgment in the plaintiff's favor in the action of eject- ment against him would ordinarily be adequate because it is an ad- judication that the deed was invalid and would usually convince pur- chasers; and since tfiere was nothing to show that the claimant was likely to dismiss the action, the final decision seems correct; see 8 Col. Law Rev. 55. 1. See ante §409. 2. See ante § 416. In Duke of Dorset v. Girdler (1720) Prece- dents in Chancery 531, 2 Ames Eq. Cas. 166, the plaintiff alleged that he had a sole right of fishery, that the defendant pretended a sole right of fishery in himself and threatened to disturb the plaintiff after all the plaintiff's witnesses should be dead; the demurrer to the bill for the perpetuation of testimony was overruled. At that date a bill to remove cloud on title was still unknown — see ante § 413; but since the plaintiff probably did not wish to sell his sole right ot fishery, the remedy given may have been adequate. ^ 422] BIIiB QUIA TIMET, BTO. 555 order to sustain his bill the plaintiff must allege^ there- in the existence of a legal right* which he fears may be injured in some way in some future litigation by loss of proof; and also that he is not in a position to sue immediately at law." § 421. Taking testimony de bene esse. After action has begun^ either party may securfe the examination of aged or infirm witnesses or of a single witness who may die before the trial.^ If the litigation is in a court of law the plaintiff must proceed by bill ; but if in an equity court he ' may proceed by motion. The matters in this and the preceding section are now regulated almost everywhere by statute. § 422. Bills to secure rights of future enjoyment. Where one has possession of chattels with only a limited interest therein, the one having the interest in remainder, either vested or contingent, could formerly 3. The proceeding seems to be substantially ex parte because the allegations are taken to be the whole truth, the defendant having no opportunity to contest it; Langdell Summary Eq. P'd'g. (2nd Ed.) 237. 4. Because he failed to allege a legal right the plaintiff failed in Sackville v. Ayleworth (1682) 1 Vern. 105, 2 'Ames Eq. Cas. 165. In that case one A had made a will devising to the plaintiff and then became lunatic; the plaintiff brought his bill against the presumptive heir but since the will was ambulatory till the testator's death, the plaintiff had no right or title till that time. 5. In Parry V. Rogers (1686) 1 Vern. 441, 2 Ames Eq. Caa. 165 the plaintiff failed because he could at once try his right at law. A fortiori, he will fail if the suit has already been begun; in such a case he is entitled only to take testimony de bene esse; Earl Spen- cer V. Peek (1867) 3 Eq. 415; 2 Ames Eq. Cas. 170. 1. It is not sufficient that an action is about to be begun; An- gell V. Angell (1822) 1 Simons & Stuart 83, 2 Ames Eq. Cas. 168. 2. In a bill to perpetuate testimony, all the testimony may be taken; Earl Spencer v. Peek, supra. 556 BILLS QUIA TIMET, ETC. [Chap, viii in all cases require that the holder of the particular interest give ihim security for the forthcoming of such chattels at the end of such interest.^ But for nearly two centuries security has been required to be given^ only where some real danger of loss* is shown; in other cases the holder of the particular interest is merely required to sign an inventory to be deposited with an officer of court.* Likewise a legatee who is either certainly or contingently entitled to the payment of a legacy in the future may compel the executor either to give security or to appropriate money therefor.^ And where property has been contracted to be devised by A to X and then conveyed by A to Y who is not a bona fide purchaser for value, X is entitled to a decree that Y shall hold the property subject to X's contract during the life of A and then convey to X.* 1. (1695) Note, Freeman Chancery 206, 2 Ames Eq. Cas. 173. 2. Lyde v. Taylor (1850) 17 Ala. 270, 2 Ames Eq. Cas. 174 (slaves claimed absolutely by the life tenant). 3. The chief dangers are that the chattels may be wasted, se- creted -or removed; if the tenant is pecuniarily Irresponsible, the danger Is often very great; Langworthy v. Chadwick (1838) 13 Conn. 42. 4. Bill v.'Kinaston (1740) 2 Atk. 82, 2 Ames Eq. Cas. 173. 5. Especially if the executor is insolvent; Rous v. Noble (1691) 2 Vern. 248; or has threatened not to pay. Batten v. Earnley (1723) 2 P. Wms. 163; tho no such fact is essential; Johnson v. Mills (1749) 1 Ves. Sr. 232. In Nutter v. Vickery (1874) 64 Me. 490, se- curity was' required from legatees who held property subject to an annuity. And in Flight v. Cook (1755) 2 Ves. Sr. 619 security was required of a defendant who had contracted to place £200 in such a situation as to be forthcoming at his death if the plaintiff should be then alive, danger of loss having been shown. 6. Van Dyne v. Vreela,nd (1858) 12 N. J. Eq. 142. At page 157 the court points out that such a bill is primarily a bill quia timet, the decree for specific performance being only incidental thereto. See ante § 89. CHAPTER IX. Bills op Interpleader. § 423. In general. Whatever the literal meaning of the term inter- pleader/ it is commonly used to designate a pro- ceeding devised to enable a person who is ready to per- form a duty but is unable to determine^ to whom such duty is owed, to compeF the adverse claimants* to such performance to litigate the matter between them- selves and thus relieve him from the suits which have been or which might otherwise be brought against him. The earliest interpleader in Anglo-American legal history is in the early common law courts.^ Later— perhaps because of the introduction and development of the jury system — common law interpleader became obsolete and the matter was taken over entirely into equity. It is at least partly due to this common law 1. "Literally the term means, to discuss or try a point inci- dentally happening as it were between, before the principal cause can be determined." Maclennan, Interpleader, 1, citing Jacobs Diet. (1732). 2. Broadly speaking, interpleader is a quia timet remedy, the applicant fearing thai he will be doubly vexed and perhaps doubly charged for one liability. 3. The verb "interplead" is used both transitively and intransi- tively: it is sometimes said that the applicant is allowed to inter- plead the claimants and sometimes that he is allowed to compel them to interplead. 4. Since the one who asks for interpleader is substantially a defendant, and the persons against whom he asks interpleader are in substance plaintiffs it is clearer to use the terms applicant and claim- ants rather than plaintiff and defendants. 5. Maclennan, Interpleader 5- It seems to have been allowed only in real actions and in detinue. (557) 558 BILLS OF INTEEPLEADEE. [Ghap. ix origin that the subject has not received the liberal treatment it deserves. As will be pointed out in the following sections, many of the essentials which are still required in many jurisdictions* savor of the narrowness of common law technical rules rather than of the broad remedial spirit of equity. § 424. Applicant must show a reasonable doubt. It is well settled that the applicant must establish not only that adverse claims have been made but that such claims have a reasonable foundation, and that there is a reasonable doubt as to whether the applicant would be safe in satisfying either claim ;^ hence if one claim is a mere pretext,^ interpleader will be refused. The applicant will likewise fail if he shows that one claimant is without doubt entitled.* But if at the time the bill of interpleader was filed there was a reasonable doubt, it is of no importance that one of the claims is later adjudged invalid.* If the applicant has a personal defense against one of two claimants it may be argued that in such a case he does not need interpleader, because there is no seriouSj danger of double vexation: but a recent 6. The present English law of interpleader has been made sat- isfactory by statutes passed in 1831, 1860, 1873, and 1883. There has been some legislation in this country but probably no state has gone as far as England in abolishing artificial reauirements; Maclennan, Interpleader 13-20. 1. Post V. Emmett (1889) 40 N. Y. App. Div. 477. 2. In Baltimore & Ohio R. R. v. Arthur (1882) 90 N. Y. 234, 2 Ames Eq. Gas. 13, one of the alleged claimants had written to the applicant: "although I am not prepared to say you should pay me, but I caution you against paying any one but me, for upon the ad- justment of the transactions. ... I may be found entitled to re- ceive payment, in which event I shall require it made to me." 3. Crass v! Memphis etc. R. R. Co. (1892) 96 Ala. 447, 11 So. 480: "When, from the complainant's own showing, there can be no doubt in the case, the party entitled to the debt or duty claimed is not to be subjected to the delay and expense of a chancery suit." 4 Crane v. McDonald (1890) 118 N. Y. 648, 23 N. E. 991. ^ 426] BILLS or INTEKPLEADBB. 559 ease* took the more liberal view that if the applicant wished to waive the defense the other claimant could not validly object in any way and hence interpleader was given. § 425. Must one claimant be entitled? If the applicant is in a position where he may safely defy all claimants — as in the case of an illegal transaction — the applicant stands in no need of inter- pleader and relief is properly refused.^ But if the applicant is or may be under a legal obligation to some one — as in the case of the offer of a reward — the fact that none of the adverse claimants may prove to be entitled should be no bar to relief.^ If none of the claimants succeeds, the res should be returned to the applicant. § 426. No collusion with either claimant. In order to obtain relief it must appear that the applicant has not colluded or allied himself with either claimant.^ Thus, if he has contracted with one claim- ant to do what he can to defeat the claim of the 5. Grell v. Globe etc. Co. (1900) 55 N. Y. App. Dlv. 612;. the applicant insurance company had a complete defense against one claimant because he brought his action more than a year after the loss; 14 Harv. Law Rev. 622. 1. Applegarth v. Colley (1842) 2 Dowling N. S. 223, 2 Ames Bq. Cas. 3; stakeholder in an Illegal wager. , 2. Fargo v. Arthur (1872) 43 How. Pr. 193. But in CoUis v. Lee (1835) 1 Hodges 204, 2 Ames Eq. Cas. 3, relief was refused. 1. And the applicant must file an aiBdavit to this effect or his bill will be demurrable; Wing v. Spaulding (1891) 64 Vt. 83, 23 Atl. 615. But it is not necessary for him to make an affidavit that the bill is filed at his own expense; Metcalf v. Hervey (1749) 1 Ves. 248. Furthermore, the court will not admit an affidavit to the contrary; Stevenson v. Anderson (1814) 2 Ves. & Beames 407, 2 Ames Eq. Cas. 43. 560 6ILLS 6i' iiLjEADEfi. [Chap, ix other claimant, interpleader will be denied.^ And the result is the same if he has given up all or part of the goods to one of the claimants.* § 427. Applicant's interest in the res. If the applicant himself claims to he entitled to all the res, he may perhaps he entitled to a bill of peace^ but not to a bill of interpleader.^ On the other hand if he claims merely a limited interest in the res — such as a lien — and his claim is admitted by all the claimants, this should be no bar to equitable relief. Even if one or both parties refuse to admit his claim, there would seem to be no substantial objection to allowing the applicant to bring the res into court and later litigating his claim with the winner,* but the pre- vailing rule is not so liberal.* Where the applicant is willing to waive his lien even after he has judicially asserted it, it ceases to be a bar to interpleader.^ If the claimants claim different amounts it is arguable that the applicant is interested because it will be financially beneficial to him if the one who claims the lesser sum should win, and this argument 2. Murietta v. South American etc. Co. (1893) 62 L. J. Q. B. [N. S.] 396. 3. Bralne v. Hunt (1834) 2 Dowl. 391. Relief was also denied in Burnett v. Anderson (1816) 1 Merivale 405 the the goods were perishable and the claimant to whom the goods were thus delivered had undertaken to pay the value of the goods into court, the Chancellor arguing that the true claimant was entitled to have his goods specifically. The result seems unfortunate and the point should be taken care of by legislation, if necessary. 1. See post § 439. 2. Or it he denies any liability whatever to either claimant. 3. This seems to be the English rule under the Interpleader Act; Cotter v. Bank (1834) 2 Dowl. 728. 4. Mitchell V. Hayne (1824) 2 Simons & Stuart 63, 2 Ames Bq. Cas. 12 (applicant claimed commission as auctioneer against one claimant but not against the 'other). 5. Jacobson v. Blackhurst (1802) 2 Johns & H. 486. ■^ -4'28] BTLLS OF INTERPLEAJ>EE. 561 has sometimes been used against him.® But the liberal and better view is that he should not be barred by this if he is willing to bring into court the larger amount elaimedJ Many of the cases of this sort are cases where the applicant has been assessed for personal taxes in two counties or cities each claiming him as a resident. The denial of relief in these cases may very well go upon the public interest in the prompt collection of public revenue;* but some cases have allowed relief, apparently considering that such public interest is not sufficiently involved.® § 428. Other relief inadequate. An applicant is not entitled to interpleader if there is other adequate relief. Thus if he may settle the matter by an action of ejectment^ or by merely moving off the land of which he is in possession as a 6. Murletta v. South American, etc. Co. (1893) 62 L. J. Q. B. [N. S.] 396: "But he does possess this very substantial Interest In it that If one party succeed he will have to pay . . . $100,000; whilst if the other party succeed, he will have to pay very much less, perhaps . . . $80,00!)t' Thereforej to the extent of the difference between these sums, he is 'very much interested In the subject matter, because in the event of one party succeeding he is entitled to a large amount which he may keep for himself." 7. If the claimant who claims the less sum wins, the excess should, of course, be returned to the applicant, tho it is suggested in 11 .Col. Law Rev. 580, 581 that this can not properly be done because the applicant has renounced all interest in the fund. 8. Macy v. Inhabitants of Nantucket (1876) 121 Mass. 351; Welch V. City of Bostons (1911) 208 Mass. 326, 94 N. B. 271, 35 L. R. A. [N. S.] 330; the question is fully discussed in 25 Harv. Law Rev. 174 and 11 Col. Law Rev. 580. 9. Thompson v. Ebbets (1824) Hopkins Ch. 272, 2 Ames Eq. Cas. 16; Dorn v. Fox (1874) 61 N. Y. 264. 1. In Klllian v. Ebbinghaus (1884) 110 U. S. 568, 2 Ames Eq. Cas. 47, E brought a bill averring that he was trustee of certain land; that two sets of defendants whom we will call X and Y each claim to be the beneficiaries of the trust, and that X had already received the rents and profits of the property. The bill prays an accounting of the rents and profits and for an Injunction against X and Y bringing Eq.— 36 562 BILLS OP iNTERi'LEADEii. [Chap, is squatter,^ he does not need equitable relief. In Fitts v. Shaw^ the property involved was two trunks and their contents which formerly belonged to the ap- plicant's testatrix; both trunks were claimed by the residuary legatee, the other two claimants each claim- ing one trunk as a gift from the testatrix. Interpleader was denied because "a suit at law by one of the donees against the executor would conclude not only the executor but the residuary legatee as well, and no suit for these specific chattels would lie in favor of the residuary legatee against the executor."* A suit for an accounting will lie, however, and he may not be willing to postpone his suit till after the donee's action is decided; hence there may be double vexation and inter- pleader might well have been allowed.^ The fact that one claimant had sued the applicant in equity and could have joined the other applicant'' but did not do so is no bar to interpleader ;'' nor is the fact that a plaintiff in another proceeding may suit against E. X filed an answer denying that E was trustee; T's answer admitted all the averments of the bill. In denying relief: "But the complainant is out of possession; he has no rents in his custody. He is therefore in no jeopardy from the conflicting claims of the defendants and cannot call on them to interple-^d. Instead of admitting title in the two sets of claimants, and asking the court to decide between the two, he sets up title in himself for the benefit of one set and seeks relief agaisst the other . . . The fatal ob- jectibh to the suit is that it is in fact an attempt by the party claim- ing the legal title to use a bill in equity in the nature of a bill of interpleader as an action of ejectment." 2. Metcalf v. Hervey (1749) 1 Ves. 248. 3. (1900) 22 R. I. 17, 46 Atl. 42, 2 Ames Eq. Cas. 7. 4. Double recovery is not possible because the executor would be protected as against the residuary legatee by showing that the property had been taken away from him by the judgment. 5. The court suggested that if the questions of fact had been less complicated they would have treated the bill as one by a trus- tee for instructions and given interpleader relief on that ground. See post § 436, on bills in the nature of a bill of interpleader. 6. And thus settle the whole matter; see ante § 24. 7. Prudential Assurance Co. v. Thomas (1887) 3 Ch. App. 74. ^ 4'29] BILLS OP INTEBPLEA0EK. 563 make a motion that the applicant pay the money into court.* § 429. Part of the claimants non-resident. If interpleader is awarded to the applicant the court at once enjoins all other proceedings which have been or are likely to be brought against the applicant by any of the claimants^ either at law or in equity.^ And if the claimants have all been personally served with process or have voluntarily submitted themselves to the jurisdiction of the court, this decree would in- clude any future proceeding in any jurisdiction.^ Since without an enabling statute equity courts ordinarily refuse to act except upon personal juris- diction,* one would expect to find them refusing inter- pleader where part of the claimants are non-residents who have not been served with process or appeared voluntarily. But English courts very -early found a way of giving partiaP relief.- In Stevenson ,v. Ander- son:* "It was objected that the Goodalls and the at- 8. Warrington v. Wheatstone (1821) Jacob 202. 1. Warrington v. Wheatstone (1821) Jacob 202. 2. Prudential Assurance Co. v. Thomas (1867) 3 Ch. App. 74. 3. The decree awarding interpleader to the applicant should be a good defense to him everywhere. 4. See ante § 9. 5. The decree would not protect the applicant from a suit in a foreign Jurisdiction; Cross v. Armstrong (1886) 44 O. St. 613, 10 N. B. 160. 6. (1814) 2 Vesey & Beames 407, 2 Ames Eq. Cas. 43. In that case the applicant's bill stated that Anderson had ordered goods from Goodalls his correspondents in Scotland and to indemnify them sent them bills of exchange indorsed by liimself. One Dick, of Scotland, a creditor of Anderson, garnisheed the Goodalls in a Scotch court. The applicant held the bills in England for col- lection and filed this bill of interpleader against Anderson, Dick and the Goodalls, alleging that Anderson had demanded the re- turn of the bills from the Goodalls and from the pl^ntifC and bad sued the apjilicaiit in trftTer. 564 BIULiS OP INTERPLEADER. [Cliap. ix taching creditor are out of the jurisdiction; and as there is only one creditor within the jurisdiction, a bill of interpleader cannot be filed. Upon the authori- ties that proposition cannot be maintained; as a person out of the jurisdiction may threaten and bring an action; and tho he should never come within the juris- diction, there is a familiar mode of concluding him. . . . The plaintiff in a bill of interpleader against persons within and without the jurisdiction is bound to bring them all within the jurisdiction'^ in a reason- able time; if he does not, the consequence is that the only person within the jurisdiction must have that which is represented to be the subject of competition; and the plaintiff must be indemnified against those who are out of the jurisdiction when they think proper to come within it and sue at law or in this court. If the plaintiff can show that he has used diligence' to bring persons out of the jurisdiction to contend with those that are within it, and they will not come, the court upon that default, and their so abstaining from giving him the opportunity of relieving himself, would, if they afterward came here and brought an "action, order service on their attorneys to be good service, and en- join that action forever."^ 7. This seems now to be superseded by a service of a statutory notice of the proceeding; Credits Gerendeuse v. Van Weede (1884) 12 Q. B. Div. 171. 8. In this country it is difficult to state what the prevailing rule is. Tn Freeland v. Wilson (1853) 18 Mo. 380 the court did not seem to grasp the difficulties: "If a fund is in the hands of an agent of our law (administrator) which is claimed by two non- residents,, and one of them makes a demand in this state on the agent, under circumstances otherwise appropriate, we see no ob- jection to a bill of interpleader, or a proceeding of that nature by the agent, for the purpose of compelling the claimants to litigate their rights. In such a proceeding, upon a decree against a non- resident, on notice by publcation only, o* by service beyond the limits of the state, he would, under the statute regulating the proceedings in chancery, have an oppertunlty of contesting the validity on the merits." ^ 4'30] BILLS OP INTERPLEADER. 565 In order that full and complete relief be given against a nonresident claimant, courts must have and exercise jurisdiction in rem. A decree given in such a proceeding would protect the applicant everywhere.* § 430. Claims mutually exclusive — independent liabil- ity. ^ Generally speaking, interpleader will be denied unless the claims mutually exclude each other. If the applicant is under an admitted liability to one of the claimants which is in no way dependent upon his liability or non-liability to the other, interpleader will not reduce the amount of litigation. He should satisfy the admitted liability to one of the claimants and litigate with the other claimant.^ Even where the If the foreign claimant has already begun his action In a for- eign court, relief is usually refused in this country; see Orient Ins. Co. V. Sloan (1888) 70 Wis. 611, 36 N. W. 388. And if action has been begun in a federal court a state court will not award inter- pleader; 22 Harv. Law Rev. 294, 306. 9. With rare exceptions such jurisdiction exists only by virtue of a statute; in order that the decree be recognized as valid every- where, the statute must provide for due publicity so that the non- resident claimant will have a reasonable opportunity to come in and litigate. The requirement jn Stevenson v. Anderson supra, that the applicant use diligence to get In the non-residents is some- what similar. 1. Bassett v. Leslie (1890) 123 N. Y. 396, 25 N. E. 386: "un- doubtedly the plaintiffs are exposed to the hazard of paying the sum claimed of them twice. But that hazard does not spring out of their liability to pay Alcock & Co., but out of the question whether Miss Leslie is a iona fide holder of the draft for value; and whether she is or not is a matter solely between them and her." See also Lindsey v. Barron (1848) 6 Com. B. 291, 2 Ames Bq. Cas. 39; B the applicant's Intestate was depository of plate belonging to M; he obtained money from L to be loaned to M on M's note and the plate, and gave a writing to that effect. M claims that B bad no authority to pledge the plate. Since the apiplicant was ap- parently bound at all events to M on the contract of lending, it would seem that interpleader was properly denied, 566 BILIiS OF INTERPLEADEK, [Chap, ix independent liability to one of tlie claimants is not admitted but where it is possible that the applicant may be thus legally liable to both, interpleader has — in the absence of statute — usually been refused. In Crawshay V. Thornton^ the applicants were wharfingers; Raikes and Co. had deposited iron with them; Eaikes and Co. then pledged the iron to Thornton and notified the applicants of the pledge and the latter thereupon acknowledged that they held for Thornton; Then Daniloff notified the applicants that he claimed the iron and that Raikes and Co. had no power to pledge. In denying interpleader: "Mr. Thornton may, from the acts of the plaintiffs themselves, have a right against the plaintiffs, independently of the question whether Mr. D'aniloff be or be not entitled to the iron. This is a right which cannot be the subject of litigation be- tween the defendants, and what ground can there be of depriving Mr. Thornton of that right by injunc- tion?" This argument still prevails in the United States:* but in Engliand the rule has been so relaxed by 2. (1837) 2 Mylne & Craig 1, 2 Ames Eq. Cas. 18. 3. In National Life Ins. Co. v. Pingrey (1886) 141 Mass. 411, 6 N. B. 93, 2 Ames Eq. Cas. 37, a policy on the life of the insured payable to his mother Had been surrendered and a new one pay- able to the wife of the insured was taken out without the consent of the mother. In refusing interpleader to the insurance company: "The questions arising between the plaintiff and the different de- fendants cannot all be tried in an issue between the two defend- ants alone. ... By issuing these two policies, the plaintiff has exposed itself to both of these claims, and must meet them as best it may. The difficulty of maintaining the bill of interpleader is not technical, but fundamental. In this form of proceeding, we cannot inquire whether the plaintiff has incurred a double liability. That result is possible. The plaintiff ought to be in a position to be heard upon the question; but on a bill of interpleader which assumes that the plaintiff is merely a stockholder, the, plaintiff cannot be heard. The plaintff cannot have an order that the. defend- ants interplead when one important question to be tried is, whether, by his own act, he is under liability to each of them." ^ 430] BIULS OF INTEEPL^ADEB. ~ 567 statute* that even the admitted existence of an in- dependent liability is no longer an absolute bar to re- lief. If the court thinks that under the circumstances the burden of the litigation should be borne by the claimants rather than the applicant, and if furthermore the whole matter may be settled by the success of the claimant who also claims the independent liability, interpleader may be awarded. In In re Mersey Docks and Harbor Board^ one NichoUs had stored- tobacco with the applicants, wharfingers, and then pledged it to the Union Credit Bank; by some manipulation NichoUs again got control of it and pledged it to the North and South Wales Bank. Both ba,nks claim the tobacco and the North and South Wales Bank also claim that the applicants were estopped by a letter to it. The trial court granted interpleader and the .appeal court held that even tho there was estoppel it was a proper exercise of the court 's discretion : "It is argued that to grant such relief under the circumstances is i-ot just. I do not think that is so. There is a dispute be- tween these two banks as to the property in these goods, and a substantial and difficult question has to be fought which depends on what the action of NichoUs in the mat- ter ^has been. Who prima facie ought to fight that ques- tion? Ought the Mersey Docks and Harbor Board, who hold merely as wharfingers, and who really have no interest in the matter, to fight that question, or ought it not rather to be fought out between the two banks who are respectively asserting a title to the goods? There is this further reason. . . If on the trial of the issue directed the North and South Wales Bank prove their title to the goods, then there is an end of the matter. If on the other hand, the Union Credit Bank succeed in establishing their title to the goods, then will arise the question whether, as the North and 4. See Rules of Court (18-83), order LVII. Apparentl7 no American legislation has taken this step. 5. (1899) 1 Q. B. D, 546, ? Ames Eq. Cas. 40, 568 BlUCiS OF INTEBPLEADEB. [Chap. IX South Wales Bank contend, although the goods are in truth not theirs, but the property of the Union Credit Bank, nevertheless they have a claim against the Mersey Docks and Harbor Board by reason of an estoppel arising from the letter of October 12. I think • they ought not to be shut out by the order from as- serting any claim they may have on that letter, -and therefore we propose to enlarge the terms of the order so as to leave it open to them to do so, if they are defeated on the issue." Since giving interpleader in such cases may thus result in a double litigation for the one claiming the independent liability, the relief should be given with caution. § 431. The same debt, duty or thing. It is quite obvious that interpleader would ac- complish nothing and therefore be inappropriate, if the things demanded are entirely different and unrelated; if, for example, one claimed a car load of coal and the other a yoke of oxen, through an entirely unrelated transaction. If interpleader were asked' in such a case it would properly be denied upon the simple ground that the claims do not mutually exclude each other ;^ the applicant may be liable to both claimants. It is true, therefore, that the claimants must claim the same debt, duty or thing, but the requirement should have a liberal interpretation and be considered satisfied il the claims are mutually exclusive ; the mere fact that the claimants must bring different actions or claim in different capacities ought to be held immaterial if their claims are substantially the same. A narrow interpretation of the requirement is responsible for some inequitable^results and much confusion of thought. In Slaney v. Sidney^ the applicant had agreed to buy tea from Y, the warrants therefor having been made 1. See ante § 430. 2. (1845) 14 M- & W. §00, 3 Ames Eq. Cas, U, •^ 4'31] BII^LS OP INTE&PLEADEfe. 569 out in Y's name. Before time of payment arrived X notified the applicant that the tea warrants had been obtained wrongfully from X and asked the applicant not to pay the price to Y. X brought an action of tro- , ver for the value of the tea and Y brought an action of debt for the purchase price. In denying relief: "The parties cannot interplead here for they do not claim the same thing; the one seeks to have the benefit of a contract, the other claims the value of the chattel which is the subject matter of it. The plaintiff in this action [Y] claims the price agreed to be paid for the tea, which may be ten times its real value; while the plaintiffs in the other action [X] only claim its real value, in the shape or damages for its conversion."^ As already explained,* the difficulty as ,to the difference in the amounts claimed can be met by requiring the applicant to pay in the larger amount. The claims were mutually exclusive;^ the fact that different forms of action were brought against the applicant should have been considered an immaterial matter of procedure, the claims being in substance the same. An illustration of the broader and more liberal interpretation is seen in those cases which have given relief to an applicant who has been assessed for person- al taxes in different cities or counties each claiming him 3. In Johnson v. Atkinson (1797) 3 Anstruther 798, 2 Ames Bq. Cas. 10, one S had devised coal mines to trustees for S's relatives; the trustees leased the premises to the applicants. A and his wife received for a time their proportionate share Under the will but later commenced an action for use and occupation of the premises claiming that the devise and lease were void. In denying inter- pleader against the trustees and A and wife the court gave as one of its reasons that the things demanded were different. While it is true that the trustees claimed the rent reserved and A and wife claim?a in a different form of action the unliquidated value of the use and occupation, in substance the claims v?ere the same and mutually exclusive. 4. See ante § 427. 5. There is nothing to show that any contention was made that the applicant might be legally liable to pay both. 570 BILLS OF INTEKPLEADEK. [Chap, ix as a resident.® In a narrow sense it is not the same tax;^ but since the applicant has only one legal res- idence the claims are miitually exclusive. § 432, Privity between clainaalits— land- It is frequently stated as a requirement for inter- pleader that there be privity between the adverse claimants which means either that one claim shall be derived from the other or that both claims shall be derived from a common source.' This supposed re- quirement can be traced back as far as the case of Dungey v. Angove.^ In that case one D was in the possession of premises belonging to A under a twenty- one year lease ; he paid rent for eight or nine years till notice of ejectment was served on him under a title of H, adverse and paramount to that of A. The eject- ment action was not pressed but D refused to pay any more rent and filed a bill of interpleader. Relief was properly denied because it appeared that the ejectment action was a sham and that there was really n6 danger of double vexation,* but the , court also rested their decision on the ground that it would be an "alarming consequence for a tenant in possession whose duty it is to stand by and defend the possession for the land- lord to become the instrument to betray him" and that it would be "a monstrous thing if it was in the power of the tenant to make the landlord, at law the defendant in the ejectment, disclose his title by an interpleading bill."* The rule above referred to of precluding the tenant 6. See ante § 427, note 9. 7. See 11 Col. Law Rev. 500. 1. Maclennan, Interpleader 122. 2. (1794) 2 Vea. Jr. 303. 3. See ante § 424. 4. The court also said it would be "as pernicious a practice, and as dangerous to the landed property of the kingdom as ever came before the court." ^ 4.33] BILLS OF INTERPLEADER. 571 from denying the title of his landlord^ has been criti- cised;® but even assuming its, validity and soundijcss at common law, it would seem that equity might very easily have overcome the objection as to forcing the landlord to show his title, by the simple expedient of imposing the burden of proof as to title upon the claimant making the paramount claim.^ If the claim of the other claimant arises subsequent to the lease, he is in privity with the landlord and unless the tenant is barred by some other unfulfilled requirement he is clearly entitled to interpleader.^ § 433, Same — property other than land. According to the early law, a bailee of a chattel 5. This is usually stated in terms of estoppel; 9 Col. Law Re-v. 252, 253; but Tiffany, Landlord and Tenant, 441, has shown that while this term is appropriately used where ejectment is brought by the landlord, it is not applicable in connection with a claim for rent; but that the true, reason for the preclusion in the latter case is "merely that the law does not recognize a lack of title in the lessor, not result- ing in any interference with possession under the lease, as a ground for the repudiation of the contract," Tiffany thus places the genial of interpleader in land cases not on the ground of lack of privity a? such but because the landlord and the adverse claimant do not claim the same thing and because the landlord has a claim for rent inde- pendent of the state of the title. Tiffany, Landlord and Tenant 1828. See also Maclennan, Interplea-der 24. These grounds for denying interpleader have already been considered. See ante § 430 and § 431. 6. Tiffany, Landlord and Tenant 475. 7. Tiffany suggests that common law courts might deal similarly with the question by requiring that the tenant who disputes his land- lord's title to assume the burden of proof. Tiffany, Landlord and Tenant 476. 8. In Indiana, a statute allows a tenant to interplead his land- lord and a paramount claimant; Hall v. Craig (1899) 125 Ind. 523; 25 N. E. 538; R. S. § 274. 9. Cowtan v. Williams (180a) 9 Ves. 197, 2 Ames Bq. Cas. 8. See also Jew v. Wood (1841) Craig & Phillips 185: "after the. death of the person to whom the occupier became the tenant, the tenant may require the person claiming under the original lessor to prove his title under such original lessor." 572 Bixts OF iNtEfepLiEAtoER. [Chap, is was precluded from denying his bailor's title^ and he*ce at that , time stood in substantially the same position with regard to interpleader as a tenant toward his laijdiord; the discussion in the previous section would therefore apply.^ At the present time, however, there seems to be no such rule of preclusion,^ and hence unless the bailee has specifically entered into an in- dependent liability toward his bailor,* the fact that the third person claims a paramount title should not prevent interpleader. In spite of this, however, there is still much talk of privity in*bailment cases and the lack thereof is frequently relied upon in denying equitable relief. In First National Bank v. Binninger,'' one B deposited bonds with the applicant by way of indemnity; C claimed the bonds by virtue of a judgment against B and a seizure and sale of the bonds under it. Mrs. B claimed that the bonds were hers and that B had no interest in them. The chief argument* in denying relief was that there was no privity between the two claimants. If the applicant is neither tenant nor bailee there is not even a historical justification for the privity doctrine, but even in such cases the requirement is 1. See 17 Harv. Law Rev. 489. 2. See ante § 432. Similarly the' objection as to compelling the bailor to prove his title could be met by giving the paramount claimant the laboring oar; and the whole doctrine when analyzed reduces it- self to this: that the bailor had a claim against the bailee independ- ent of the question of "title. As already explained — ante § 430 — this need not be an absolute bar and is not now- in England. 3. Crawshay v. Thornton (1837) 2 Mylne & Craig 1; 2 Ames Eq. Cas. 18: "In the case of simple bailment there is no personal under- taking, and not liability or right of action beyond that which arises from the legal consequences of the bailment." 4. In Crawshay v. Thornton supra, this was the reason for deny- ing interpleader; see ante | 430. 5. (1875) 26 N. J. Eq. 345, 2 Ames Eq. Cas. 24. 6. The court also speaks of the applicant as being "a wrongful possessor, if he should, after notice withhold the property from the rightful owner." But in every case where interpleader is given, tin-' applicant is a technical tort feasor to the rightful owner. § 433] BII>LS OP INTERPLEADER. 573 frequently insisted upon. In Third National Bank v. Skillings Lumber Co.,'^ B had delivered a draft to applicant bank for collection ; the draft had been collect- ed and the amount placed to the credit of B. The S. Co. contended that the draft was its property because B was acting merely as its agent; B's executrix claimed that the proceeds belonged to B's estate. Interpleader was denied because the S Co. did not claim the fund in the hands of the plaintiff through any privity* with Bab- son, but by, a title paramount and adverse to his. On the other hand, there are many cases where the requirement of privity has been ignored or explained away.® It has been suggested^" that where the applicant is a debtor — the property thus .consisting of a chose in action — there is always privity because "the claimants must necessarily claim through the obligation itself, which ensures privity." Perhaps any escape from the requirement should be welcomed,^^ but the only satisfactory way of dealing with the matter is by legislation. The English statute** provides that inter- 7. (1882) 132 Mass. 410, 2 Ames Eq. Cas. 27. 8. It might be suggested that there really was privity here be- cause B had title to the draft and hence the S. Co. is claiming through B as trustee. 9. In Platte Valley Bank v. National Live Stock Bank (1895) 155 111. 250, 40 N. E. 621, 2 Ames Eq. Cas. 29, one Halsey sold coffee that had been mortgaged to the Union Stock Yards National Bank and deposited the money in the applicant bank; Halsey then assigr his claim to the Platte Valley Bank for value. Both the Union Stocli Yards Bank and the Platte Valley Bank claim the deposit. Inter- pleader was allowed tho the only basis for contending that the Union Stock Yards Bank claimed through Halsey and his assignee would be by recognizing the doctrine of constructive trust as applying to the proceeds of the sale. The court found privity in that both claimants claimed through the deposit made by Halsey. 10. Platte Valley Bank v. National Live Stock Bank supra; 17 Harv. Law Rev. 489. 11. That privity was not an essential in the old common law interpleader is shown by the fact that the finder of a lost chattel could interplead several claimants. 12. Common Law Procedure Act of 1860, 23 & 24 Vic. c. 126, § 12. gn^ ItOCK 574 BILLS OF iNTBatPLEABER. [Chap, ix pleader should lie tho the titles of the claimants to the money, goods, or chattels in question, or the proceeds, or value thereof, had not a common origin, but were adverse to and independent Of one another. In a few states in this country there is similar legislation.** § 434. Applicant a tort feasor. The old English doctrine in regard to sheriffs was that if a sheriff levied upon property which was later claimed by a stranger, interpleader should be denied because the sheriff must admit that "as to some of the defendants he is a wrongdoer."* This was remedied in the English act of 1831^ which made an express provision for sheriffs. In Child v. Maun* the statute apparently did not apply because the sheriff had been notiied of the bankruptcy of the judgment debtor be- fore he sold the goods; but the court nevertheless gave relief because it had ordered the sheriff to make the return and therefore felt obliged to protect him. In this country some states have passed statutes;* in the absence of statutes, decisions are conflicting.* When it is remembered that in every case of inter- pleader the applicant is a technical wrongdoer in with- holding from the true claimant,* it would seem that a sheriff who acts in good faith in making the levy and sale should not be denied relief on that ground. ^ 13. Maclennan, Interpleader 125 and appendix. 1. Slingsby v. Boulton (1813) 1 Ves. & B. 334; 2 Ames Bq. Oaa. 33. 2. 1 and 2 Wm. IV., ch. 58, § 6. 3. (1867) 3 Bq. 806, 2 Ames Eq. Cas. 35. 4. Maclennan, Interpleader 42. 5. See Qulnn v. Fatten (1811) 2 Ired. Eq. 48 refusing reMef; and Lawson v. Jordan ,(1858) 19 Ark. 297, giving relief. 6. See First National Bank v. Binninger (1875) 26 N. J. Bq. 345, 2 Ames Eq. Cas. 24, where the same argument was made against a bailee's getting interpleader; and see 15 Harv. Law Rev. 61, 63. "^ 43G] BIIAS OF IKTEKPLEADER. 575 §.435. Judgment or verdict against applicants— laches. It is sometimes laid down as a hard and fast rule that if either or both claimants have obtained a judg- ment or verdict against the applicant/ interpleader will be denied. This is sometimes put on the ground that ' it would amount to an indirect appeaP but courts of equity do not in other fields feel themselves bound by a judgment,^ much less by a verdict. It has also been suggested that it is beea,use the claimants are no longer claiming the same debt or duty;^ and that it is because the claims are not mutually exclusive* but it is difficult to see how t^e reducing of a claim to judg- ment could change the substance of the situation. The better view seems to be that there should be no ab- solute rule on the point, but that allowing a claimant to get a judgment or verdict is merely evidence of laches, more or less conclusive,^ according to other circumstances. Even tho no judgment or verdict be obtained, the right to interplead -may be lost by un- reasonable delay.* § 436. Miscellaneous — bills in the nature of a bill of interpleader. Where interpleader is granted there are really two stages in the suit, the applicant dropping out entirely from the second stage,^ in which each claimant contests 1. Victoria Ins. Co. v. Bethune (1877) 1 Ont. App. 398, 407; Yarborough v. Thompson (1844) 11 Miss. 291; or a ijill for a new trial, Larabrie v. Brown (1857) 26 L. J. Eq. N. S. 605. 2. See ante § 14. 3. Maclennan, Interpleader 84. For a discussion of the merits of this objection see ante § 431. 4. See 22 Harv. Law Rev. 294. 5. Lozler's Ex's v. Van Saun's Admr's (1835) 3 N. J. Eq. 325; 18 Harv. Law Rev. 315. 6. .U. S. V. Bussey (1889) 27 N. Y. St. Rep. 185; 7 N. Y. Supp. 495; Maclennan, Interpleader 47. 1. Except that under the present English practice where inter- pleader is given in spile of one of the claimants claiming an Inde- 576 BlliS OF INTEKPLEADBB. [Chap, ix for the res. Hence the applicant is not allowed to ap- peal in behalf of. the losing claimant^ and if the ap- plicant dies after interpleader has been granted, no revivor is necessary.^ It is a hard and fast rule that a claimant cannot interplead* or compel the stakeholder to do so.^ That this limitation is not a necessary one is shown by its absence in Scotland" and other countries having the civil law. Thus far, however, there is no legislation in common law countries attempting to widen the scope of interpleader at this point. Before an injunction will issue against any present or future actions against the applicant, he must bring the subject matter of the interpleader suit within the control of the court; if it is money, it may be paid to the clerk of the court; if it is land, he should have the deeds executed and ready to deliver to the success- ful claimant; but if no objection is taken by demprrer the court will take care of the matter by its decree.'^ If the applicant is unable to satisfy the require- ments for a strict bill of interpleader, he can .still get interpleader relief if there is some other ground for getting the case into equity, such as cloud on title,' trust,® mortgage,^" bill of peace," etc' In such a pro- pendent liability: if the other claimant succeeds, then the applicant must litigate the question of the independent "liability; see ante § 430. 2. St. Louis Life Ins. Co. v. Alliance Ins. Co. (1876) 23 Minn. 7. 3. Anonymous (1685) 1 Vern. 351, 2 Ames Eq. Cas. 2. 4. Hathaway v. Pry (1867) 40 Mo. 540. 5. Harrison v. Poster (1836) 4>Dowl. 558. 6. Maclennan, Interpleader 37. " 7. Parley v. Blood (1854) 30 N. H. 354, 2 Ames Eq. Cas. 4. 8. Down V. Pox (1874) 61 N. Y. 264. 9. A bill by a trustee or executor for instructions is a frequent basis for incidental interpleader relief; Sprague v. West (1879) 127 Mass. 471; Osbourne v. Taylor (1885) 12 Gratt. 117; and see 17 Harv. Law Rev. 573. 10. Koppinger v. O'Donnell (1883) 16 R. I. 417. 11. In Aleck v. Jackson (1892) 49 N. J. Eq. 507, 23 Atl. 760, 2 Ames Eq. Cas. 46, C had contracted with to construct some brick §436] BILLS OF intebpi;bader. 577 eeeding be need not be disinterested/^ and need not deny collusion.^* The. fact that equity takes this liberal view in giving interpleader relief incidentally is in itself an argument against the mechanical and arbitrary limitations upon interpleader proper. Because of the liberal practice in England it is less necessary there to resort to a bill in the nature of interpleader than it is in the United States.^* buildings; O sougtit to interplead C and ttie materialmen, alleging that he owed C $3593 and that the materialmen's claims aggregated $4597. C filed an answer claiming that owed him $4893. This dis- pute between C and prevented the bill from being maintained as a strict bill of interpleader, but relief was given because O was being subjected to numerous law suits by the various materialmen; see 23 Harv. Law Rev. 405. In Supervisors v. Deyoe (1879) 77 N. Y. 219, 2 Ames Et. Cas. 51, M, county treasurer, having authority to issue notes to the extent of $20,800 had issued notes to the extent of $138,631. Thirty-one holders of notes had sued the county and twenty others were about to do so. The county asked that, it all be settled in one suit, not being able to detect which are the valid and which the invalid notes without litigation." It may not be a case of interpleader strictly, or which meets all the definitions of a bill of peace, nor a case which could be maintained solely as one for the cancellation of written instruments, but it combines to a greater or less extent ele- ments of jurisdiction in each of these cases." The requirement lack- ing for a strict bill of interpleader, in the mind of the court, was probably privity between the claimants; see ante § 433. 12. Groves v. Sentell (1894) 153 U. S. 465, 486; Supervisors v. Deyoe, supra. ' 13. KoppiHger v. O'Donnell (1889) 16 R. I. 417, 16 Atl. 714. But he must not act in a partisan manaer; Hinckley v. Pfister (1892) 83 "Wis. 64, 85, 53 N. W. 21. 14. Maclennan, Interpleader 338. Eq.— 37 CHAPTER X. Bnis OF Peace. § 437. Purpose amd scope. The purpose of a bill of interpleader is to prevent double vexation to one "^bo admits liability to someone and also to prevent unnecessary litigation by settling in one suit the question as to who is the rightful claimant.^ The purpose of a bill of peace is to prevent useless litigation by settling in one equity suit a question which would be common to many actions at law or in equity — either repeated actions between one plaintiff and one defendant or, numerous actions be- tween several plaintiffs and one defendant or between one plaintiff and several defendants. One who seeks in- terpleader is substantially in the position of a defendant at law asking relief against two or more plaintiffs ;^ a bill of peace may be sought either by plaintiff or de- fendant.* One who seeks interpleader must be a stake- holder ;* and is ordinarily not interested in the litigation except to get his discharge from the court;* one who seeks a bill of jpeace is not a stakeholder and is always interested in the final outcome of the litigation either to fix liability on the other party or to escape it him- self. 1. Bee ante Chap. IX. 2. See ante § 423. S. Where It is sought by one who Is substantially in the position of a defendant, the jurisdiction may properly be classified broadly as quia timet; see ante § ^405. In case of a bill of peace to prevent repeated actions, the bill apparently may be brought only by the law defendant. 4. See ante § 427. 5. This is not always true; if the amounts claimed are difEerent, he is, in a broad sense interested in having the claimant of the les- (578) ^ 438] BILLS OF PEACE. 579 Since it is highly desirable to eliminate useless litigation, bills of peace have deserved a liberal treat- ment at the hand of the courts; but unfortunately they have been hedged about by artificial and mechanical restrictions in much the same way as have bills of interpleader.® For the sake of convenience, the cases of numeij'ous actions between one and many will be discussed sepa- rately from the cases of repeated actions between one and one. A. To Avoid oe Prevent Numerous Actions Between- One AND Many. § 438. Joinder distinguished. At the outset it is important to note that if two or more cases may be brought separately in equity, the question of their joinder may not involve any ques- tion of bill of peace, but merely a question of equity pleading. Thus, if each of several plaintiffs might separately maintain a suit to enjoin the continuance of a nuisance, all may join therein,^ having a common in- •terest in the subject matter of the bill. A'' multiplicity of ser amount win; see ante § 431. And under the EngUsh practice, where interpleader is allowed in spite ot the possibility of there be- ing an independent liability, he Is interested in having that claim- ant win whe is also relying on the independent liability; see ante § 430. 6. See ante § 423. ' 1. Cadigan v. Brown (187S) 120 Mass. 493: "The bill shows that each ol the plaintiffs owns a lot abutting on the passageway, by a separate and independent title. They derive their titles from dif- ferent grantors. Undoubtedly in a suit at law for the nuisance, they could not properly join. But the rule in equity as to the joinder of parties is more elastic. Generally, when several persons have a common Interest in the subject matter of the bill, and a right to ask for the same remedy against the defendant, they may properly be joined as plaintiffs." And see cases collected, 2 Ames Eq. Cas. '66, note. 580 BILLS or PEACE. Chap, x suits is in this way avoided without involving any ques- tion relative to a bill of peace. A similar joinder may be made where each of several plaintiffs might sue for a breach of trust and accounting f or for cancellation.* On the other hand, where rules of equity pleading do not allow the joinder of equity suits — as in cases, of suits for injunctions against several and independent tort feasors — it is necessary to invoke bill of peace jurisdiction in order to have the cases consolidated into one.* § 439. Claim of an exclusive property right. Probably one reason for the conservatism of the courts toward bills of peac^ is that the facts of the early cases made strong claims for relief and the courts since then have been reluctant to go much be- yond these early decisions, regarding them as determin- ing not- only the principles but also the limits of the remedy. In How V. Tenants of Bromsgrove^ there was a bill by the lol-d of the manor against his tenants, 2. In Smith v. Bank of New England (1897) 69 N. H. 254, 45 Atl. « 1082, 2 Ames Bq. Gas. 79, some seventy-eight cestuis que trust sued the trustee for mismanagement of the trust and for an accounting. Since each plaintiff might have sued separately for a breach of trust, there was merely a question of joinder. The court suggested that each plaintiff might have sued the trustee at law for negligence; if that is true and the seventy-eight plaintiffs had brought separate actions at 4aw, and the defendant had asked the equity court to set- tle all in one suit, that would have raised a question of a bill of peace. In speaking of the suit as a "bill In the nature of a bill of peace" perhaps the court meant that It had the same effect as a bill of peace would have Jn cutting down useless litigation. 3. N. Y., N. H. & H. R. R. v. Schuyler (1858) 17 N. Y. 592. 4. Thus, in Dilly v. Dolg (1794) 2 Ves. Jr. 486, 2 Ames Eq. Gas. 58, and in Foxwell v. Webster (1863) 2 Drewry & Smale 250, 2 Ames Eq. Gas. 58, the rules of equity pleading did not permit joinder but conceivably the principles of bills of peace might have allowed con- solidation. ' , 1. (1681) 1 Vern. .22, 2 Ames Eq. Gas. 55. ^ 439] BlliS OF PEACE. 581 claiming that he had a grant of free warren. Besides the question whether he had a free warren there was was also the question whether, if there was a free warren, there was sufficient common left to the tenants. Both these questions were triable at law, but the bill was sustained as a bill of peace. It is to be observed that the plaintiff claimed an exclusive property right of a very definite character against all the defendants ; and also that the defendants all claimed the same property right and the interests of all were dependent upon proof of the same facts. No stronger ease for a bill of peace could be put than this.^ Some fifty years later the jurisdiction was ex- tended to cases where the defendant's claim was not in common but in severalty. In Mayor of York v. Pilk- ington* the plaintiff city claimed for a large tract^ of land the sole fishery in the river Ouse; the defend- ants claimed either as lords of manors or as occupiers of the adjacent land. The demurrer to the bill was overruled, tho the defendants did not claim in common but in severalty and hence might have several defenses.* But since the plkin tiff's claim is of an exclusive prop- erty right agqinst all the defendants, there is one question common to all the separate actions which would otherwise be necessary to bring at law against each of the defendants, namely, whether the city had such a right of fishery as it claimed. The determina- 2. The bill in the principal case being proba;bly by the law plain- tiff, the object was to avoid bringing multiplicity of actions against the tenants. It la also settled that the tenants — the law defendants — might have brought a bill of peace in order to prevent the bringing of a multiplicity of actions against them; Powell v. Earl of Powia (1826) 1 Y. & J. 158. The appropriate common law action would be 3. (1737) 1 Atkyns 282, 2 tAmes Eq. Cas. 55. 4. At the first hearing Lord Chancellor Hardwicke gave. his opiu- lon against the bill: "There is no privity at all in the case, but so many distinct trespassers in this separate fishery; besides, the de- fendants may claim a right of a different nature, some by prescriptio^n, others by particular grants, etc." 582 BiEiLs OF PEACE. Chap. X tion of this common question would almost certainly result in a distinct saving of litigation, tho each of the defenses must later be separately litigated if the plain- tiff succeeds in establishing his rights; and it would certainly do so if the plaintiff failed because that would settle all the cases at once. Where the determination of the -claim of an ex- clusive property right is relatively unimportant and would therefore go only a slight way toward solving the whole litigation a bill of peace would accomplish nothing substantial and should be denied. This would justify the decision of Dilly v. Doig,^ tho the case was not put on that ground. In that case the owner of the copyright of a book brought a bill to enjoin a book- seller from selling copies of a spurious edition; later he moved to amend the bill by making another book- seller a party. The rules of equity pleading did not allow joinder because the booksellers were charged with wholly separate and independent torts; but if there had been a great many booksellers, all disputing the plaintiff's copyright, it would be difficult to dis- tinguish the case from York v. Pilkington, supra. It seems quite likely, however, that the defendants were not disputing the plaintiff's right,* and therefore the determination of this point would be of almost neg- ligible value, especially since only two defendants were involved. The above argument does not, however, justify the decision in Foxwell v. Webster.'^ There the plaintiff tad filed 134 bills against 134 defendants to restrain •the infringement of a patent; 77 defendants ask that the suits be consolidated in order to determine the validity of the patent, each to reserve to himself the 5. (1794) 2 Ves. Jr. 486, 2 Ames Eq. Cas. 58. 6. Keyes v. Little York etc. Co. (1875) 53 Cal. 724, 732, in dis- cussing Dilly V. Doig: "In that case there was no allegation in the bill of a claim of right on the part of the defendants to sell copies of the spurious edition of the book, and, from the nature of the circum- stances detailed, there could have been no such allegation." 7. (1863) 2 Drewry & Smale 250, 2 Ames Eq. Cas. 58. § 440] BILLS OP fs;a.ce. 583 question of infringement. Relief was denied on the ground that since the plaintiff must Sue each individual infringer in a separate suit, the defendants cannot insist upon being joined. The court was right, of course, on the point of equity pleading as to joinder, but since a large number, of the defendants are here disputing the plaintiff's right to the patent, it would seem that either the plaintiff or defendants should have. been allowed to. invoke bill of peace jurisdiction, to settle this one important question common to them all. / § 440. No claim of exclusive property right. The only significance of the claim of an exclusive property right would seem to be that there is in such cases a common question the settlement of which may be so important as to justify a bill of peace. There has been a strong tendency, however, not to give re- lief unless there is either a common property interest in the many^ — as in How v. Tenants, supra — or at least an exclusive property right in the one, such as in How V. Tenants and Mayor of York v. Pilkington. A case on this point which has attracted nluch attention is that of Tribette v. Illinois Central R. R. Co.^ In that case a number of different owners of property in the town of Terry, destroyed by fire fromr sparks emit- ted" by an engine of the railroad company, severally sued at law for damages. While these actions were pending the railroad company brought its bill in equity averring that the loss was not due to its fault but to the fault of others; that the plaintiffs in the several actions were wrongfully seeking to recover damages, and that the several actions all depend for their solu- tion upon the same state of facts; wherefore the rail- 1. To require strictly a common property rigkt among the many would restrict the scope of bills of peace almost to a vanishing point, especially In the U. S. where there is very little of rights of commen. 2. (1S92) 70 Miss. 192, 12 So. 32, 2 Ames Eq. Cas. 74. 584 BILLS OP PEACE. Chap, x road company asked that the actions at law be en- joined and the controversies settled in the one equity- suit. It was held error to overrule the demurrer to the bill because "there must be some recognized ground of equitable interference, or some community of in- terest in the subject matter of the controversy, or a common right or title involved, to warrant the joinder of all in one suit; or there must be some common pur- pose in pursuit of a common adversary, where each may resort to equity, in order to be joined in one suit; and it is not enough that there is a community of interest merely in the question of law or of fact involve^, etc., as stated by Pomeroy."^ Practically all of the opinion is devoted to com- batting Pomeroy's suggested rule, by showing that the cases* cited as authority therefor involved merely the equity pleading question of the joinder of suits which had other bases for equity jurisdiction, and by showing what he considered to be a horrible result of the rule.' Unfortunately Pomeroy's rule was stated 3. Pomeroy's Equity Jurisprudence, 1st Ed., § 269; the fuU text Is as follows: "Under the greatest diversity of circumstances, and the greatest variety of claims arising from unauthorized, public acts, private tortious acts, invasion of property rights, violation of con- tract obligations, and notwithstanding the positive denials by some American courts the weight of authority is simply overwhelming that the jurisdiction may and should be exercised either on behalf of a numerous body of separate claimants against a single party, or on be- half of a single party against such a numerous body, although there is no "common title" or "community of right" or "interest in the subject matter" among these individuals, but where there is and be- cause there is merely a community of interest among them in the questions of law and fact Involved in the general controversy, or in the kind and form of relief demanded and obtained by or against each individual member of the' numerous body." 4. With the exception of Carlton v. Newman (1885) 77 Me. 408, 1 Atl. 194, a case where the collection of an illegal tax was enjoined which the court said appeared "to be exceptional, and to rest on pe- culiar grounds, not applicable to the case before us." 5. "It it is true as stated by Pomeroy . . . that mere com- munity of interest in natters of law and fact makes it admissible to § 440] BILLS OF PEACE, 585 as if it were to be mechanically applied,® and this presented a vulnerable point of attack; but instead of urging this criticism and then dealing with the merits of the case before them, the court assumed that any rule must be mechanicalj and contented, itself with showing that the mechanical application of the rule would lead to undesirable results. Whether the sup- posed "absurd" case put by the court* really was a horrible result would depend — just as in the principal case — upon the circumstances of the particular case. If the main question in each action was whether the defendant was negligeht or whether its negligence was the proximate cause of the damage, a bill of peace might well be justified.^ But if these two ques- tions should be • relatively unimportant, then a bill of peace would accomplish nothing and should be refused; it should likewise be denied if the consolidation would so confuse the issue and bring so many questions or* bring all into one suit in chanfcery, In order to avoid multiplicity of suits, all sorts of cases must be subject to the principle. Any limi- tation would be purely arbitrary. It must be of universal application and strange results might flow from its adoption. The wrecking of a railroad train might give rise to a hundred actions for damages, In- stituted in a dozen different counties, under our law as to the venue of suits against railroad companies, in some of which executors or administrators, or parents and children might sue for the death of a passenger, and, in others, claims would be for divers injuries. If Pomeroy's test be maintained, all of these numerous plaintiffs, hav- ing a commuity of interest in ' the questions of fact and law, claim- ing because of the same occurrence, depending on the very same evidence, and seeking the same kind of relief (damages) could be brought before a chancery court in one suit to avoid multiplicity of suits! But we forbear, surely the learned author would shrink from the contemplation of such a spectacle; but his doctrine leads to it and makes it possible." 6. Itis has been taken care of by adding § 251% and § 251% to the third edition. 7. See note 5 supra: "Any limitation would be purely arbitrary." 8. See note 5 supra. 9. For a criticism of the Tribette case see 14 Harv. Law Rev. 611. See also 12 Col. Law Rev. 370 ; 22 Yale Law J. 53; 24 Yale Law J. 642-648; 25 Harv. Law Rev. 559. 586 BILLS OF^ PEACE, Chap, X varied interests into a case as to work a practical de- nial of trial by jury.^" § 441. Same— tort cases giving relief, Tho it may be difiScult to agree with Pomeroy's statement as to the weight of authority/ there are a great many cases in which a bill of peace has been granted, but which do not comply with the narrow con- ditions set forth by the court in Tribette v. Illinois Central E. E. Co.^ In Sheffield Water Works v, Yeo- mans,^ the bill alleged that the plaintiff's reseryoir had burst and caused loss of life and property, that under an act of Parliament commissioners were appointed to inquire into the damages and to issue certificates to claimants ; that costs were to be payable by the plaintiff at the expiration of six months after the issue of such certifi- cates, and if not paid within a further period of twenty- eight days the certificates were to have the effect of a judgment for such costs ; that there was a difference of opinion as to whether the powers of the comimission had expired and 1500 certificates which the plaintiffs claimed to be invalid werp delivered by some of the commis- sioners to the defendant Yeomans, the town clerk. The bill further alleged "that unless the court interfered, '^the defendant John Yeomans, and other persons by his permission, would produce these invalid certificates and have them taxed, whereupon judgment would be issued, and such proceedings would seriously prejudice the plaintiff, by compelling them to defend themselves on very numerous improper taxations, occasioning them very large costs and expenses. That the question whether these certificates were valid or invalid was the 10. 62 U. of Pa. Law Rev. 453, 455: "Every man has a right to try his case with its Issue clear and well defined, but if a consolida- tiBn can be had without interfering with his right, it should be granted in a proper case: if it cannot be so had, it should be denied." 1. See ante § 440, note 3. 2. See ante § 440. 3. (1866) 2 Ch. App. 8, 2 Ames Eq. Cas. 67. § 441] BILI^ OF PEACE. 587 same as to all of them, and that the parties named therein were too numerous to be made defendants,* but were properly represented by five of them who were named as defendants." It was held that the demurrer to the bill was properly overruled because -the ease wa^ within the principle of a bill of peace.^ In National Park Bank v. Goddard® the plaintiff levied an attaohmient on L. & Co. 's stock of clothing and other property for a debt due the plaintiff. Other ven- dors who had sold to L. & Co. claimed to rescind for fraud and sued in replevin, those who had sold- only buttons or linings or trimmings claiming whole gar- ments. The plaintiff sued them all to protect his lien and to have adjudicated in one suit all the adverse and conflicting claims. It was held that "it was a mere 4. In England therg are no constitutional restrictions and hence if the number of defendants is inconveniently large, It is enough to sue a few as representing and binding the ■whole, unless they have spe- ■ cific interests in or liens upon some specific property or fund; Ameri- can Steel etc. Co. v. Wire Drawers' Union (1898) 90 Fed. 598, 605; Ayres V. Carver (1854) 17 How. 591. The rule of the Federal courts provides that "the court in its discretion may dispense with making them all parties, and may proceed in the suit, having sufficient parties before it to represent all the adverse Interests of the plaintiffs and defendants in the suit properly before it. But, in such cases the decree shall be without prejudice to j;he right and claims of the absent parties." The result is that parties can be enjoined by general description and must obey if they they have notice, but they may come in and litigate the question at any time; Federal Eq. Rules 48, Street's Fed. Eq Prac- tice, p. 1679; Cape May etc. R. R. Co. v. Johnson (1882) 35 N. J. Eq. 422. Where the equity court is exercising jurisdiction in rem, their decree binds every one interested in the res regardless of notice, provided the proceedings have had the requisite amount of publicity; Appl€$on Water Works Co. v. Central Trust Co. (1889) 93 Fed. 288, 288. 5. In Washington Co. v. Williams (1901) 111 Fed. 801, the con- verse question was presented whether holders of county bonds could maintain a bill of peace to establish the validity of the bonds and relief was denied; see 2 Col. Law Rev. 181. Wherever the law de- fendant may prevent a multiplicity of suits against him by numerous plaintiffs, the latter should be able to avoid the necessity of the bring- ing of such actions. / 6. (1891) 62 Hun 31, 2 Ames Eq. Cas. 82. 588 BILLS OF PEACE. Chap., X exercise of discretion of the court to prevent the dis- sipation of this property and to take possession of the same itself until the determination of these rival claims and the ascertainment of the rights and interests of each." There- was no claim of an exclusive property right by the plaintiff and the claims of the defendants were independent of each other, but there was one im- portant common question, namely, whether D. & Co. had intended to defraud their vendors.'' § 442. Sam© — ^tort cases densring relief. In Jones v. Haroy^ the bill alleged that the plain- tiff's agent Hardy had, without authority, made sales of the plaintiff's crops- and used the proceeds; the bill was brought against Hardy, his vendees and a sub- vendee. Belief was denied on the grotmd that "the causes of suit are entirely separate and distinct from each other and depend for their adjustment on no com- mon or connected right, relation or necessity." This reasoning has already been criticised;^ but the decision may have been justified on the ground that the common question of the fact of agency was probably much less important than the questions which were not common, namely, the authority as to each item sold, whether there was a sale in each case, whether there was es- toppel or pajonent, or satisfaction, etc. In Lehigh Valley E. E. Co. v. McFarlan^ the plain- tiffs, operating a canal which crossed a river, main- 7. In Ballou v. Hoplilnton (1855) 4 Gray 324, the bUl alleged that the various defendants, being upper proprietors were threatening to draw off water from the reservoir and that this would damage the plaintiff's mills. The demurrer to the bill was overruled on the ground of preventing multiplicity of suits, but it is riot clear whether it was a bill of peace or merely was a joinder of equity suits as a matter of /pleading; see ante § 438. . 1. (1899) 127 Ala. 221, 28 So. 564, 2 Ames Eq. Cas. 91. 2. See ante § 440. 3. (1878) 30 N. J. Eq. 135, 2 Ames Eq. Cas. 85. § 443] BILLS OF PEACE. 589 tained a dam on the river. One of the defendants had brought an action at law against the plaintiff for nn-, lawful flowage of the land and the other three defend- ants had brought actions for diversion of the water. The plaintiff then brought his' bill against all of them to 46termine whether the dam was lawful. Belief was denied properly because there was really no common question; if there was plenty of water the use of the water by the plaintiff would not be wrongful whereas any flooding by the plaintiff of the land of the first mentioned defendant would be wrongful. If the plain- tiff bad sued only the three defendants there would have been raised practically the same question as was raised in Tribette v. Illinois Central R. R. Co. supra; the common question of wrongful diversion would prob- ably have been relatively important and the only sound justification for refusing relief would have been that there were only three defendants and therefore there would not be much saving of litigation.* ^ § 443. Collection of void taxes. If any one taxpayer is allowed to enjoin the col- lection of an illegal tax^ several taxpayers may join in the suit as a matter of equity pleading.^ If a sin- gle tax payer is not thus allowed to sue, equity may — ■ and perhaps by the weight of authority does — take 4. Even if there are only two parties against one there may well be a bill of peace; but if the number is small courts may properly, as a matter of discretion, refuse relief unless the litigation which would thus be saved would be relatively complicated and expensive; see 20 Harv. Law Rev. 325. 1. As, for example, to prevent or remove a cloud on title to land; Lockwood v. St. Louis Bk. (1856) 24 Mo. 20. In New Eng- laiid states — perhaps because of the early limited equity jurisdiction— apparently no equitable relief is given in such cases to one tax payer; Brewer v. Springfield (1867) 97 Mass. 152. On the other hand, in some jurisdictions equity will relieve the single taxpayer the no cloud on title is involved ;j Vieley v. Thompson (1867) 44 111. 9. 2. See ante % 438. , 590 BILLS OF PEACE. Chap. X jurisdiction on bill of peace grounds at the suit of sev- eral tax payers. In McTwiggin v. Hunter^ the bill alleged that the tax was invalid because the assessors had intentionally omitted the property of the G. . Company from the as- sessment list. The demurrer to the bill was overruled: "While it is true that equity will not enjoin the collection of a tax at the suit of an individual taxpayer on the ground of illegality when the illegality affects him alone, . . . yet, when the illegality extends to the whole t^x so that the question involved is the validity of the whole tax and its assessment on, every person taxed, equity may properly take jurisdiction at the suit of one or more of the taxpayers suing in be- half of all the taxpayers as well as in his or their own behalf, since the rights of all persons interested may be more conveniently and speedily determined by its decree in one suit than by leaving them to work out their rights by individual suits, and a multiplicity of suits will thereby be avoided."* 3. (1895) 18 R. I. 776, 30 Atl. 962, 2 Ames Eq. Cas. 71. For an extended discussion of the point see 10 Col. Law Rev. 564-566. In German Alliance Insurance Co. v. Van Cleave (1901) 191 111. 410, 61 N. E. 94, numerous insurance companies were allowed to unite in a bill to refund the amount of a tax on premiums paid under protest. 4. In City of Chicago v. Collins (1898) 175 111. 445, 51 N. E. 907, 2 Ames Eq. Cas. 92, three hundred and seventy-three residents and taxpayers of Chicago, suing in behalf of themselves and all others similarly situated filed a bill to enjoin the city from enforcing a wheel tax ordinance affecting three hundred thousand owners of vehicles, on the ground that the city had no power to pass such an ordinance. It was held that the plaintiffs' bill was maintainable because "their grievance is precisely the same and arises from the same cause. The various parties aggrieved, altho not jointly in- terested, are allowed to sue together for the express purpose of avoiding a multiplicity of suits and to have the controversy settled in one hearing." The further ground upon which the court rested their decision — namely, the breach of a public trust by the munici- pality — is of course untenable, because a municipality is not a trustee in the narrow sense. See ante Chap. V. "^ 444] BILiS OF PEACE. " 591 In the somewhat similar case of Dodd v. City of Hartford'' relief was refused partly on the ground of the public interest in the speedy collection of taxes and partly because "no property, right or franchise held by the petitioners in common" is claimed to be affected by the proceedings of the city." The court further contends that the remedy at law of each petitioner is adequate because "the multiplicity of suits which the petition seeks to avoid does not affect injuriously any . one of the petitioners. No one of them has occasion to expect any such multiplicity affecting himself. One suit is all that any one of them has to fear," There are two answers to this last argument: (1) If the amount of the assessment to each person is so small as barely to cover the attorney's fees, the remedy at law can hardly be considered adequate; (2) the avoid- ance of bringing several actions by many petitioners r has usually been regarded as much the object of a bill or peace as the prevention of several actions against one petitioner.'' § 444. Contra-ctual and statutory pecuniary obligations. There seem to be only a few instances in the books where a creditor has sought to maintain a bill of peace against several debtors,^ a few where a debtor has tried 5. (1856) 25 Conn. 232, 2 Ames Eq. Cas. 69. In that case over three hundred petitioners sought to join in a suit to restrain the collection of a sewer assessment claimed to be illegal. 6. See ante § 440 for a criticism of this requirement. 7. See ante § 437. 1. See Best v. Drake (1853) 11 Hare 371, note, telling of the following bill of peace in the time of Lord Nottingham: "A bill in the Chancery was this term preferred by a widow against 500 persons, to answer what moneys they owed her h-usband; the bill was above 3000 sheets of paper, to the wonder of most people; but the'Lord Chancellor looking on it as vexatious, for it would cost each defendant a ~£100 the copying out, he dismissed the bill and ordered Mr. Newman the councellor, whose hand was to it, to pay the Defendant the charges they have been at." For a modern in- 592 BILLS OP PEACE. Chap, x to maintain such a bill, against several creditors (or vice versa^) and very few where several debtors have succeeded against one creditor;^ but the enforcement or noil-enforcement of pecuniary obligations imposed by statute has frequently been sought in equity on bill of peace grounds. Although a few cases have given relief, the tendency has been to refuse it; in many of the cases, howeve-r, relief has been properly refused 'be- cause of the comparative unimportance of the common question. In Tompkins v. Craig* the plaintiff, receiver of at insolvent bank, brought a bill against all the stockholders to collect an assessment of 50% levied under an Iowa statute. Eelief was denied "because the statute does not impose a joint but a several liability upon the defendants and they have no common in- terest in the decree asked for by the bill. . . . Each defendant may desire to put up a different defense. One stockholder may have paid his assessment in whole .or in part; another may seek to raise the question whether the Iowa court had jurisdiction to make the levy; a third may wish to attack the amount of the V stance where the bill was allowed to the assignee of an insolvent corporation against stockholders to recover unpaid balances of stock subscriptions, see Cook v. Carpenter (1905) 212 Pa. 165, 61 Atl. 799; 19 Harv. Law Rev. 213. 2. In Smith v. Bank of New England (1897) 69 N. H. 254, 45 Atl. 1082, 2 Ames Bq. Cas. 79 the obligatio'n might, perhaps, be classed as contractual, but only a question of equity pleading was involved in the joinder because equity had jurisdiction in each case on the grounds of trust; see ante § 438. In Washington Co. V. Williams (1901) 111 Fed. 801, several holders of county bondF tried unsuccessfully to join in trying the validity of their bonds; see 2 Col. Law Rev. 181. ^^. In Home Co. v. Va. Co. (1902) 113 Fed. 1, several insurance companies had insured the same property with stipulations as to apportionment of loss; each claimed to have been deceived by the same false statement as to the value of the property insured; their bill of peace was held good on demurrer because the "insurance companies have a common interest in defeating the claims of the insured." See 10 Col. Law Rev. 265; 23 Harv. Law Rev. 480, 640. 4. (1899) 93 Fed. 885, 2 Ames Eq. Cas. 87. §. 445] BHiLs OF PEACE. 593 assessment; another may aver that his subscription was void from the beginning; and still other defenses, which need not be specified, are readily conceivable." The decision was quite sound because the only common question had already been passed upon by an Iowa court,® namely, whether all the stockholders were liable to assessment and the percentage of assessment. As the court pointed out, a proceeding to determine merely how large the assessment should be is properly sus- tainable as a bill of peace;* in such a case the only question to be passed upon is a common question.'' B. To Avoid oe Pbevekt Numerous Suits of One Against One. § 445. Bill to quiet title^— ejectment. An action of ejectment was unlike other common law actions in that the person named as plaintiff there- 5. In state v. Union etc. Bank (1897) 103 Iowa 549, 70 N. W. 752. 6. Bailey v. Tillinghast (1900) 99 Fed. 801. 7. In Marsh v. Kaye (1901) 118 N. Y. 196, 2 Ames Eq. Cas. 89, a statute had made directors of certain corporations personally liable for the debts contracted on behalf of the corporation, payable within one year; a creditor filed a bill on behalf of himself and others similarly situated, against the receiver, seventeen directors and fifty creditors of the Ladies' Deborah Nursery & ■ Child's Pro- tectory, to enforce the directors' liability and to (distribute the amount recovered among those entitled. If the liability of the directors had been limited, equity would have taken jurisdiction on the ground that the fund to accrue from such liability was a trust fund to be distributed ratably If not enough to satisfy all their claims; Weeks v. Love (1872) 50 N. Y. 568, 571. The bill was not main- tainable as a bill of peace because the only common question — whether the corporation was within the terms of the statute — was probably greatly outweighed in importance by the many questions not common, namely, whether each creditor's claim was a debt of the eoriwration, whether the particular debt was payable within a year, etc. It is to be noted that there were numerous parties on each side — a fact likely to be productive of a great many questions. 1. Bills to remove cloud on title are frequently spoken of as Eq.— 38 594 BiuiiS OF PEACE. Chap, x in was fictitious; hence if the defendant succeeded in getting the verdict and judgment, the matter^ did not become res judicata because the real plaintiff need only to name another fictitious lessor as plaintiff and begin again, ad infinitum. The sole relief of the law defend- ant was a bill in equity to enjoin the bringing of further ejec]tment actions. In Lord Bath v. Sherwin^ the law plaintiff had thus sued in ejectment five times, the law defendant gaining a verdict each time. The law defendant thereupon brought a bill in equity asking for a perpetual injunction to stay the law plaintiff from bringing any more ejectments. In giving relief: "As to the objection that the common law having fixed no bounds to the number of trials in ejectment persons were at liberty to prosecute in that way as often as they pleased, and therefore a court of equity ought not to restrain their right, it was answered that the method of trying the title to inheritances by ejectment was of no very long standing, for the ancient way of trying such rights was in real actions; and there the wisdom of the common law had fixed proper limits to such prosecutions for preventing vexations and endless con- tests ; and, as so great an inconvenience, and even abuse of th« law was practiced in this case, it was highly reasonable that a court of equity should interpose." In many jurisdictions a plaintiff sues in ejectment in his own name and therefore a judgment in favor of the law defendant in one action would logically be con- clusive ; but the notion that a plaintiff was not thus . barred had apparently become so firmly fixed* that a plaintiff is not limited unless by statute* or equity. bills to quiet title; this sometimes produces contusion, because the bases for jurisdiction aj-e different. See ante §§ 413-419 for bills to remove cloud on title. 2. (1706) Precedents in Chancery 261; ?1709) 4 Brown's Cases In Parliament (Tomlin's Ed.) 373, 2 Ames Eq. Gas. 95. 3. And the reason for its existence in the first place was for- gotten. 4. In Pennsylvania, for example, there is a statutory limitation to two actions; see Dishong v. Pinkbiner (1891) 46 Fed. 12. § 446] BILiS OP PEACE. 595 Where there is no statute equity should give an in- junction if there has been a fair adjudication of the controversy.^ § 446. Same— repeated actions of trespass. Tho a judgment on the merits for the defendant in an action of trespass quure clausum is final and conclu- sive as to the particular act of trespass alleged by the plaintiff, it does not prevent the latter from bringing another action for another alleged act of trespass on the same land,- raising the identical property questions as the first action ; and there is no limit to the number oi actions which may thus be brought if, the law plain- tiff . remains unconvinced. In these circumstances, if there has been a fair adjudication of the merits of the case at law, equity should interfere just as in ejectment cases,^ in order to prevent vexation and endless litiga- tion. Equity will not interfere until there has been such adjudication.^ Where the equity plaintiff complains not of re- peated actions of trespass but of repeated acts of tres- pass, relief has sometimes been granted on the ground of avoiding the necessity of bringing a multiplicity of actions at law.* But since the plaintiff is not under the necessity of bringing a separate action for each act 5. BJven one successful verdict in favor of the law defendant may be enough; Peterson Co. v. Jersey City (1853) 9 N. J. Eq. 434; or an adjudication of the title in a previous equity proceeding; Pratt v. Kendig (1889) 128 lU. 293, 298, 21 N. E. 495. In Thompson's Appeal (1884) 107 Pa. 559 the vexatious institution and- abandon- ment of repeated actions was held to warrant an injunction, the court suggesting that this tended to create a cloud on title; see 22 Harv. Law Rev. 371. 1. See ante § 445. 2. Lord Tienham v. Herbert (1742) 2 Atkyns.483, 2 Ames Eq. Casr 97; "But where a question about a right o£^ iishery is only betweMi two lords of manors, neither of them can come into this court till the right is first tried at law." 3. See ante § 195. 596 BILLS OF PEACE, Chap. X of trespass* it is obvious that the multiplicity of actions thus avoided is of a much milder type than that where the equity plaintiff has been subjected to repeated actions of ejectment or trespass. Such actions seem hardly to deserve the name of bill of peace ; but if they are so called, the distinction "between the two types of cases should not be overlooked.^ § 447. Numerous criminal prosecutions. Where the equity plaintiff is being subjected to numerous prosecutions for alleged infractions of a statute 'or ordinance and the equity plaintiff insists either that he has not committed the acts alleged or that the statute or ordinance is invalid, equity will usually interfere to prevent such vexation and oppres- sion. In Third Ave. E. E. Co. v. The Mayor, etc., of N. Y.^ the city of New York had brought seventy-seven penal actions in a justice's court against the plaintiff for running a fiassenger car within certain specified limits of the city without a license. If the actions had been brought in a court of record the court would have had power to consolidate them,^ but a justice court had 4. He may reduce the number of actions at law by waiting till just before the close of the statutory period of limitation. If the statutory period is short and there is no satisfactory way of compensating the plaintiff for attorney's fees etc., equity should give relief; see ante § 195. Where the trespasser is insolvent, an injunction is usually givep; see ante § 201. But see Mechanics' Foundry v. Ryall (1888) 75 Cal. 601, 17 Pac. 703. 5. The distinction between repeated acts and repeated actions was apparently lost sight of in 22 Harv. Law Rev. 371. ^ 1. (1873) 54 N. Y. 159, 2 Ames Eq. Cas. 102. 2. This preserves the right of trial by jury which is .of par- amount importance in criminal and penal cases Involving questions of fact. Where the question involved is one of law, a perpetual in- junction against all the prosecutions may be given. In City of Hutchinson v. Beckham (1902) 118 Fed. 399 the city of Hutchinson had passed an ordinance imposing a license tax of $1200 a year on jobbers who did business in the city but did not maintain their principal place of business therein. ITie plaintiffs, jobbers of Kan- §, 447] . BILIS OF PEACE. 597 no such power.* The plaintiff did not ask "to restrain the defendants from obtaining a decision* by the jus- tice's court on the question involved in the actions pending therein ; but the continuance of the prosecution of one of them is suffered and permitted and an injunc- tion to restrain and forbid the proceedings in the others of them is only asked until that which shall be pro- ceeded in can 'be finally heard and determined. ' ' Since the question to be dec^ided in all the suits was the same and a \ single one, depending on the same facts, the relief asked for was given, the court pointing out that it was substantially what would have been obtained if the actions had beeii brought in a court of record, by a consolidation of them. sas City, Mo., insisting that tlie ordinance was invalid, refused to pay the license whereupon the city caused the arrest of their agents and were threatening to make further like arrests. The plaintiffs thereupon asked that the court declare the ordinance void and perpetually enjoin the defendants from enforcing it. The bill was held good on demurrer because of the probable delay in determining the validity of the ordinance and the annoyance of defending a multiplicity of actions causing daily interruptions to their business. See ante § 245. 3. In Galveston etc. Ry. v. Dowe (1888) 70 Tex. 6, 7 S. W. 368, the law plaintiff brought sepai;ate actions in a justice court on a nuniber of time checks issued by the law defendant and to which the latter insisted that it had a good defense. The justice court had power to consolidate the actions but refused to do so because if consolidated the amount involved would be over f20 and he would lose jurisdiction. It was held error to dismiss the bill of the law defendant asking that further actions be enjoined. 4. A decision against the law defendant in an inferior court is not necessarily a bar to a bill of peace. In Skinkle v. City of Covington (1885) 83 Ky. 420 there was a city ordinance imposing a penalty for each 24 hours any person should hold possession of any of the streets, commons etc. of the city. The plaintiff usea and claimed as his own property a certain river bank which the city also claimed; numerous warrants had been Issued against him and he had been tried and fined in the mayor's court from which there was no appeal. It was held error for the court below to re- fuse relief. CHAPTER XI. Miscellaneous Topics. § 448. Equitable conversion. Where there is a peremptory direction in a will or deed that land shall be sold or money invested for the benefit of certain beneficiaries, equity regards — especial- ly for purposes of devolution — the prospective sale or investment as if it had taken place at the time the will^ or deed^ took effect; this is usually called the doctrine of equitable conversion. Historically, the adoption of such a rule owed much to the influence of the maxim that equity regards that as done which ought to be done;* were it not for this maxim equity might very well have regarded the right of the beneficiaries as being realty till the sale actually took place or as per- sonalty till the investment actually took place,* just as 1. In Scudamore v. Scudamore (1720) Precedents in Chancery 543, money was bequeathed by S to her daughter, to be invested in land upon certain trusts; the daughter died without having made the investment. It was held that the money should go to the heir of the beneficiary and not to his next of kin. In Morris v. Griffiths (1884) 26 Ch'. D. 601 the direction to the executors to sell real estate was con- strued to be imperative and hence the share of a deceased beneficiary went to his next of kin and not , to his heir though the real estate remained unsold at the time of his death. 2. In Clarke v. Franklin (1858) 4 Kay & Johnson 257 the direction to sell contained in a deed was held to operate in equity as a conversion- of the property into personalty from the time the deed was delivered. 3. See ante § 20; § 112 note 8; § 318; see also Moncrief v. Ross (1872) 50 N. Y. 431. 4. Where the beneficiaries are all sui juris and agree to do so, they may — before the conversion actually takes place — elect to take the property in its original form, because the trustees in such a case must obey the beneficiaries rather than the directions of the creator of the trust; thls^ is usually referred to as the doctrine of equitable (598) § 448] MISOELIANEOUS TOPICS. 599 in the ease where the direction to sell is not imperative.' By strict logic equity — in following the maxim — should have regarded the conversion as taking place at the time that the trustees should have converted it;* but unless there was a time fixed for such conversion, it would he the duty of the trustees to make the sale or the investment within a reasonable time and it would be obviously undesirable to have the question of the coming into existence of equitable property rights open to such an uncertainty as the lapse of a reasonable time.'' Hence courts were compelled— consciously or unconsciously — to fall back upon the certain time of the taking effect of the will or deed. ' reconversion. See ante § 318; 14 Mich. Law Rev. 252; Tiffany, Real Property § 107. Where the beneficiaries are not all sui juris or where they cannot all agree to reconvey the property, It may be suggested that the beneficiaries have really no right to the property In its un- converted form and that therefore the doctrine of equitable conversion in such cases was a necessity; in substance, however, they do have a right to the property in its unconverted form, even though they can enforce it only by compelling the trustees to carry out the terms of the trust with reference to it. The rule is probably of value in help- ing to make certain the carrying out of the intention of the creator of the trust. 5. In Hovey v. Dary (1891) 154 Mass. 7, 27 N. B. 659, the executors were empowered and authorized but not directed to sell real estate; it was held that the beneficiaries' rights should be considered as realty till the sale actually took place; hence upon the death of a beneficiary before such sale his share passed to his heir and not to his next of kin. See also Darlington v. Darlington (1894) 160 Pa. 65, 28 Atl. 503; 9 Col. Law Rev. 81. Nor is it suflScient that a testator express the wish that the land shall be treated as money or vice versa; Att'y Genl v. Mangles (1839) 5 M. & W. 120. It is not necessary, however, that there be a direction in terms inperative; in Lent v. Howard (1882) 89 N. Y. 169 the power of sale was held to be imperative because the sale was necessary to carry out the testator's scheme; see 6 Col. Law Rev. 56. That the trustees have no power to bring about an equitable conversion without such direction, see Earlom v. Saunders (1754) Ambler 241. 6. See ante § 20. ■^7. See ante § 118 note 10. Apparently the weight of authority Is that the doctrine applies, however, even if a time is fixed for the conversion; Handley v. Palmer (1900) 103 Fed. 39 (direction to sell 600 MISCELLANEOUS TOPICS. [Chap, xi Since the rule is at least dependent upon if not caused by the right of the beneficiaries to compel the trust be carried out, it is usually limited in its operation to the carrying out of the purposes of the trust.? Hence, if the trust comes to an end because of the death of all the beneficiaries without issue, so that there is a result- ing trust to the representatives of the creator of the express trust, the rule does not apply to the resulting trust;® and the same reasoning has been applied where there has been only a partial failure of the trust if created by will,^" but not where the trust was created by deed.^^ The rule does not apply so as to change the at the end of twenty years); 21 Harv. Law Rev. 288; Tiffany, Real Property § 106. And where a life estate in land was given to a widow and the trustees were directed to sell after the widow's death, it was held that altho the widow's life estate was realty, the right of the beneficiary should be considered as personalty from the death of the testator; Allen v. Watts (1892) 98 Ala. 584, 11 So. 646. See also Welsh V. Crater (1880) 32 N. J. Et[. 177. / 8. In England transfer taxes are determined with reference to the doctrine. See Atfy Gen'l v. Mangles (1839) 5 M. & W. 120. See also Mellon v. Reed (1888) 123 Pa. St. 1, 17, 15 Atl. 906, holding that the statute of frauds does not apply to an oral contract by a heneficia,ry to sell his interest because, stjrictly speaking, he had no interest in the land but only In the proceeds. 9. Curteis v. Wormald (1878) 10 Ch. D. 172; "[the rule] does not affect the rights of the persons who take by law independent oi the will." 10. In Ackroyd v. Smithson (1780) 1 Brown Ch. 503, there was a devise of land to trustees to sell and pay debts and legacies and to divide the remainder between fifteen legatees; two of these legatees died before the testator. It was held that these lapsed shares went to the testator's heir and not to his next of kin. For a thorough discus- sion of the effect of this decision see 19 Harv. Law Rev. 1-20. Similar- ly, if there is a sale directed for a purpose which does not exhaust the entire beneficial Interest, such surplus will go to the testator's heir if the latter died before the sale; Dixon v. Dawson (1825) 2 Sim. & St. 327; but if he died after the sale it goes to his next of kin because at the time of his death he had no real estate; Graham v. Dickinson (1848) 3 Barb. Ch. (N. Y.) 169; 21 Harv. Law Rev. 630; 22 Harv. LaV Rev. 451. 11. Clarke v. Franklin (1858) 4 K. & J. 257 (direction to turn over part of the proceeds of sale to a charity was void; the lapsed share was treated as personalty). § 449] MISCELLANEOUS TOPICS. 601 requirement that all the trustees shall execute a deed of realty ;i2 but as to whether it prevents the attach- ment of a judgment lien on land before the actual sale takes place there is a conflict of authority.^* The better view is that the rule does not apply to deprive a widow of her dower right. ^* The doctrine of equitable conversion has also been applied wherie an unconditional direction to sell has proceeded from a court of competent authority and the owner dies before the sale actually takes place.^^ And where the property of one who is not sui juris has ac- tually been sold or invested by order of court dui^ing such disability, it is usually held that equity will pro- tect the interests of such incompetent and his represen- tatives by regarding his property right as if no con- version had taken place, till such disability is removed.^'' § 449. Account. A strict bill for an account — as distinguished from a bill of equitable assumpsit^ and from an accounting which ie incidental to ajQ equity suit brought on other 12. wilder v. Ranney (1884) 95 N. Y. 7. 13. That It does, see Beaver v. Ross (1908) _ 140 la. 154, 118 N. W. 287, discussed in 9 Col. Law Rev. 179; that It does not, see Eneberg V. Carter (1889) 98 Mo. 647, 12 S. W. 522. 14. Hutehihgs v. Davis (1903) 68 O. St. 160, 67 N. E. 251, dis- cussed in 3 Col. Law Rev. 590. 15. In re Estate of Stlason (1910) 1 Ir. 13 (next of kin held , entitled). 16. Wetherill v. Hough (1894) 52 N. J. Eq. 683; 29 Atl. 592. 17. For a much more exhaustive discussion of equitable con- version, see Langdell, Brief Summary of Equity Jurisdiction, 260-303; 18 Harv. Law Rev. 1-22'; 83-104. For a discussion of equitable (con- version by contBact see ante §§ 83, 108-119; 19 Harv. Law Rev. 81-85; 13 Col. Law Rev. 369-388; 12 id. 155. 1. See infra. For a discussion of strict bills of account see Langdell, Brief Summary of Equity Jurisdiction 73-98; 2 Harv. Law Rev. 241-267. For a discussion of bills of equitable assumpsit see Langdell, Brief Survey 99-124; 3 Harv. Law Rev. 237-262. 602 MiscELiANBOus TOPICS. [Chap, xi grounds^ — lies against a fiduciary who is under a com- mon law duty^ to account for property which he holds for the henefit of the plaintiff. This common law obligation was imposed upon guardians,* bailiffs,^ and receivers,® and the common law remedy was the action of account which was gradually superseded by debt and indebitatus • assumpsit^ and by a bill in equity for an account. Such a bill will not lie against a bailee^ or against a debtor.* 2. For example, In a suit to enforce a trust there is nearly always a reference to a master to take an account of the trust property; for this reason a bill to enforce a trust is frequently spoken of as a bill for an account though the obligation may be one which is purely equitable; see ante § 274. In bills to foreclose a mortgage and to wind up a partMership there is frequently an incidental accounting. 3. The basis for equity jurisdiction here was the inadequacy of the common law action of account due to its clumsiness, delay, and expense. ' 4. In this country guardians usually settle their accounts in the probate court* see 2 Harv. Law Rev. 259. 5. This Includes stewards and such agents as factors, commission merchants, auctioneers, stock brokers, etc. Such agents are more common in England than in this country, having charge ' of large landed estates; see 2 Harv. Law Rev. 260; Mackenzie v. Johnston (1819) 4 Maddock 37a, 1 Ames Eq. Caf 445; Makepeace v. Rogers (1865) 4 DeG., J. & S. 649. 6. Apparently a receiver Is substantially a trustee whose sole duty is to pay over money; see ante § 274. 7. Wells V. Ross (1817) 7 Taunt. 403. And see ante § 257 as to the development of procedure allowing indebitatus assumpsit against a common law trustee. 8. See ante § 251; detinue is usually an adequate remedy against a bailee. 9. Dinwiddle v. Bailey (1801) 6 Ves. 136, 1 Ames Eq. Cas. 442 (claim of Insurance broker against his principal). See also Pad wick V. Stanley (1852) 9 Hare 627: "the right of the principal rests upon the trust and confidence reposed- In the agent, but thg agent reposes no such trust or confidence In the principal." Since the ordinary bank deposit creates a debt, account will not lie against the bank; Foley V. Hill (1848) 2 H. of L. 28, 1 Ames Eq. Cas. 446. For a similar holding as to the effect of a tontine Insurance policy, see Uhlman v. N. Y. Life Ins. Co. (1888) 109 N. Y. 421. If a vendee of property agrees to turn over to his vendor a portion of the profits of his business he becomes as to such funds a fiduciary and a strict bill of account § 450] J MISOEULANEOUS TOPICS. 603 A bill for an equitable assumpsit, however, will lie against a debtor if the accounts between him and his creditors are so complicated that the court in its discre- tion'" deems it unwise to submit the matter to a jury.^^ Failure to note the distinction between this and a strict bill for account has led to some confusion in the deci- sions. § 450. Subrogation. One who stands in the position of a surety^ is equit- will lie; Pratt v. TvUtle (1884) 136 Maes. 233, Ames Trust Cases. 32; see also Channon v. Stewart (1882) 103 111. 541 (one-half of profits to be paid to -plaintiff for services as manager); 13 Col. Law Rev. 166. But if it Is to be paid by way of royalty, there is no fiduciary relation and a strict bill of account does not lie; Preston v. Smith (1895) 156 111. 359, 40 N. E. 949; 23 Harv. Law Rev. 304. 10. The mere fact that accounts are complicated is not enough; Uhlman v. New York Life Ins. Co. supra. Though the matter is properly one within the sound discretion of the court — 1 Col. Law Rev. 321 — there has been a tendency for courts to make the rule mechanical. Thus, in Phillips v. Phillips (1852) 9 Hare 471, 1 Ames Bq. Cas. 449 it was said that unless the accounts were mutual equity would not take jurisdiction; but since there is no necessary connection between mutuality and complication, the notion did not long survive; Hemings V. Pugh (1863) 4 Giff. 456, 458;'Fluker v. Taylor (1855) 3 Drew, 183. In Haywood v. Hutchins (1871) 65 N. Ca. ^74, 1 Ames Eq. Cas. 459 the court suggested that it would be enough if the accounts were mutual, but this position seems equally untenable. 11. TafE Vale Ry. Co. v. Nixon (1847) 1 H. of L. Ill, 1 Ames Eq. Cas. 454; Harrington v. Churchward (1860) 29 L. J. Rep. Ch. 521, 1 Ames Eq. 457. Where a strict bill of account is brought the burden is upoh the plaintiff to establish only that the defendant is under an obligation to account, just as if he l^ad brought a common .law action of account; in a bill of equitable assumpsit, on the other hand, the burden is upon the plaintiff throughout, just as If he had brought indebitatus assumpsit at law. 1. In subrogation cases the term surety has received a very ;wide Interpretation. Thus a fire insurance company which has paid a fire loss is entitled to be subrogated to the right of the insured to recover against the tort feasor responsible for the loss; Chicago & Alton R. R. v. Glenny (1898) 175 111. 238, 51 N. E. 896. But an officious inter- meddler is not entitled; 13 Harv. Law Rev. 297 discussing Brown v. 604 MiscELLANEotrs TOPICS. [Chap, xi ably^ entitled, upon paying the creditor in full,* to an assignment of all the securities* for the debt which the creditor has obtained from the principal debtor or from co-sureties.^ The basis of equity jurisdiction is sub- stantially that of constructive trust: since the creditor has been paid he is not entitled to hold or enforce the securities for his own benefit ; since the principal debtor has not paid he is not entitled to have the securities delivered up and cancelled; obviously, therefore, the surety, who has paid is best entitled to them even tho Rouse 125 Cal. 645, 58 Pac. 267; 24 Harv Law Rev. 161; 9 Col. Law Rev. 6a-66. As to the right of an insurance company to be subrogated to the right of the Insured to enforce specific performance against a vendee of the premises, see 1 Col. Law Rev. 113, ante § 118, note 7. Tfliere has been an unfortunate tendency to extend the doctrine — or at least the terminology — of subrogation to cases where there is no relation of suretyship; see 25 Harv. 725, discussing In re Beavan (1912) 1 Ch. 196 (recovery of money advanced to a lunatic). 2. Since subrogation involves commanding the creditor to assign his rights to the surety, such a right cannot be eilforced at common law; see ante § 5. 3. The right does not arise till after the creditor is paid in full because it , might embarrass the principal debtor to compel a part assignment of the creditor's claim; see ante § 262. It might also prejudice the creditor's right of recovery against the principal debtor if a surety upon paying^ part were allowed thus to compete with himy Musgrave v. Dickson (1896) 172 Pa. 629, 33 Atl. 705; 8 Col. Law Rev. 147. 4. Logically he should be entitled also to an assignment of the main debt itself; i. e. he should be entitled to all the rights the creditor had the moment before payment; or, to put it difterentlj', payment by a surety should be regarded not as a payment but as a purchase of the claim. But the Statute of Anne providing that pay- ment should extinguish a debt was held to apply to payments by a surety; Copis v. Middleton (1823) Turner & Russell 224. This was ' later changed by Statute 19 & 20 Vict. c. 97, § 5, which placed the surety automatically in the shoes of the creditor. In this country the matter is usually dealt with by holding that in equity the claim Is kept alive for the benefit of the surety; Hill v. King (1891) 48 O. St. 75. 5. As against co-sureties the surety who pays can recover only a proportional share based upon the number of solvent sureties within the Jurisdiction; Preston v. Preston (1847) 4 Grattan 88. <^ 451] MISCELLANEOUS TOPICS, 605 he did not bargain for the right* and did not know that any seeurities were held. ,The right to be subrogated — ^which is always purely equitable — should be carefully distinguished from the rights of the creditor against the principal or co-sure-, ties to which the surety becomes subrogated; the latter may be either legaP or equitable.* A failure to note this distinction has led to much confusion and some in- justice. Thus, the surety should not be barred by the statute of limitations in enforcing the claims to which he is subrogated until the creditor would have been • barred,® the creditor holding the claim and securities therefor solely as a fiduciary for the surety from the moment of payment by the latter.^" But in some juris- dictions the statute applying to obligations founded upon unwritten contract claims has been held to be^n to run against the surety from the moment of pay- ment ;^i in others, the statute as to general equitable relief has been held to apply." § 451. Indemnity or reimbursement. » In addition to the equitable right to the assign- ment of all the creditor's rights against the principal 6. New York State B'k v. Fletcher (1830) 5 Wend. 85. See also Chicago & Alton R. R. v. Glenny supra. 7. As examples of legal rights see Pulkerson v. Brownlee (1879) 69 Mo. 371 (right to bring ejeeitment) ; Bittick v. Wilkins (1872) 7 Heiskell 307 (judgment); Com'th v. Straton (1831) 7 J. J. Marshall 90 (hond of Indemnity). * 8. As examples of equitatile rights see Goddard v. Whyte (1860)^ 2 Giffard 449 (right to foreclose mortgage); Uzzell v. Mack (1843) 4 Humphrey 319 (vendor's lien) ; Pierce v. Holzer (1887) 65 Mich. 263, 32 N. W. 431 (right to trace trust fund). 9. This is the majority view; Smith v. Swain (1854) 7 Richard- son, Eq. (S. C.) 112. 10. And therefore no statute of limitations should apply to the right to be subrogated unless and until the creditor repudiates his fiduciary obligation to the knowledge of the surety. See ante § 263; 13 Harv. Law Rev. 309. 11. Harrah v. Jacobs (1888) 75 la. 72, 39 N. W. 187. 12. Nea], v. Nash (1872) 23 0. St. 483; 13 Harv. Law Rev. 309, 606 MiscBLiiAiirEOTJS TOPICS. [Chap, xi debtor as soon as lie has paid the entire debt/ the surety has also the right to proceed directly against .the principal debtor for reimbursement/ as soon as he has paid any part* of the debt. This right was first recognized in equity* but later common law courts allowed an action for money paid to the defendant's use;* and altho it was at first regarded as quasi con- tractual — to prevent the principal debtor from being unjustly enriched at the surety's expense— it has become so well settled and understood that it has developed into a genuine implied contract arising at the moment the surety becomes bound/ tho of course no cause of action arises thereon till payment.'' The better view and the trend of modern authority allows reimburse- ment to a morally innocent tort feasor against his joint tort feasor who is not morally innocent / and in some 1. See ante § 450. 2. This term is preferable to indemnity because the latter Is sometimes used to mean exoneration. 3. There is apparently no requirement that he pay all, the obligation of the principal debtor being construed as an obligation to reimburse him for any amount that he is compelled to pay. The statute of limitations therefore begins to run at the moment of\paying' any part, as to that part; Davies v. Humphreys (1840) 6 M. & W. 153. 4. See Layer v. Nelson (1687) 1 Vern. 456. Before that time It was necessary for the surety to take a counterbond from his principal. 5. Decker v. Pope (1757) 1 Selw. N. P. 76 n. 6. Appleton v. Bascom (1841) 3 Mete. 168. If the obligation were regarded as quasi contractual, it would nof.arise till payment. 7. The right of subrogation is usually more valuable than the right of reimbursement because the latter gives no right to securities of any sort; but sometimes the right of reimbursement is valuable while the right of subrogation is worthless; e. g. where 1«he creditor's right is barred by lapse of time as against the principal debtor but not as against the surety; Sibley v. McAllaster (1836) 8 N. H. 389. 8.. For example, if an agent, in obedience to the orders of his principal, innocently commits a tort against a third person, th6 principal is bound to reimburse him for the liability he incurs, since as between the two the principal should ultimately bear the loss; Greene v. Goddard (1845) 9 Met. 212; 22 Harv. liaw Rev. 131; Wood- ward, Quasi Contracts § 258. § 452] MISCELIANEOUS TOPICS. 607 of these tort cases it is practically impossible to work out any contractual basis for the plaintiff's right.* § 452. Contribution. In addition to the equitable right to stand in the creditor's shoes as to all the latter 's rights against the co-sureties/ the surety has a direct right to compel con- tribution from them as soon as he has paid more than his share of the debt.^ This right was first recognized in equity^ and then later at law;* but the equitable remedy is frequently m'ore advantageous because the surety may join the co-sureties in one suit* and may re- cover according to the number of solvent sureties within the jurisdiction,® while at law he can recover only the 9: In the case of the innocent agent against his principal, supra, it would not be difficult to" regard such an ohligatlon as a part of the principal's contract with his servant; but where there is no such contractual relation — as where a municipality is allowed to recover against the owner of land for damages which it- has been compelled to pay to one who has suffered personal injuries from a negligently kept sidewalk — it is obviously necessary to fall back upon the quasi contractual basis. See Washington Gas Light Co. v. Dis- trict of Columbia (1896) 161 U. S. 316. 1. See ante § 450. 2. And therefore the statute of limitations begins to run at that^ time; Davles v. Humphreys (1840) 6 M. & W. 153. 3. Fleetwood v. Charnock (1629) Nelson 10. Before this time it was necessary to take counter bonds. The jurisdiction is usually traced to the influence of the maxim that equality is equity; see ante i 25. 4. Cowell v. Edwards (1800) 3 B. & R. 268. The basis for relief at law is sometimes quasi contractual, sometimes contractual; see Woodward, Quasi Contracts, § 254. Since contribution is allowed between persons who are entire strangers to each other, it is obvious that in such cases relief can not be based upon contractual grounds. 5. At law he must sue each co-surety separately; Powell v. Mathis (1843) 26 N. C. «3. 6. Hitchman v. Stewart (1855) 3 Dewey 271. The result of this is that the burden of possible loss due to the insolvency or absence of some of the co-sui'eties is shared by all the other co-sureties equally with the plaintifi:. -- - 608 MisoBUL/ANEOTJS' TOPICS. [Chap, xi proportion fixed by the number of sureties who became liable.'^ In order to be entitled to contribution it is not necessary that the sureties should have signed the same instrument or should have known of each other;® and the better view and the tendency of the authorities is to allow contribution between joint tort feasors who are morally innocent.* § 453. Exoneration. In order that a surety be entitled to subrogation, reimbursement or contribution, he must have paid either all or part of the debt.^ If the surety has plenty of ready money with which to do this these remedies are ordinarily adequate;^ but where he does not have the ready money and would suffer irreparable injury by being compelled to raise the amount by a sale or incum- brance of his own property, or by withdrawing it from his business, these remedies are not adequate and he is therefore* entitled in equity to a decree against the 7. Batard v. Hawes (1853) 2 Ellis & B. 287. This was at least partly due to the lack of elasticity In common law procedure; see ante § 5. 8. Deering v. Wlnchelsea (1787) 2 B. & P. 270; 4 Col. Law Rev. 432; the important thing is that they should be equally liable for the same burden, tho not necessarily for equal shares. 9. For example, where several parties under an honest mistake as to title levy upon property belonging apparently to their debtor; Acheson v. Miller (1853) 2 Ohio St. 203. See Woodward, Quasi Con- tracts §§ 255-257; 17 Harv. Law Rev. 345; 12 id 176-194; 21 id. 242. 243. 1. See ante §§ 450-452. 2. Because he is entitled to recover costs, Interest and attorney's fees against the principal debtor; Pierce v. Williams (1854) 23 L. J. Bxch 322; Hare v. Grant (1877) 77 N. C. 203; and a proportionate share thereof against the co-sureties; Davis v. Emerson (1840) 17 Me. 64. 3. Whether the right is limited to cases where the other remedies are not adequate is not clear from the cases, but such Inadequacy is frequently mentioned; Tankersley v. Anderson (1809) 4 Desaus. (S. C. Eq.) 47; Woljnerhausen v. Gullck (1893) 2 Oh. 414; "if a man were surety with nine others ior £10,000 it migh be a ruinous hard- ship if he w«re compelled to raise the whole £10,000 at once and per- § 453] MISCELLANEOUS TOPICS. ,609 principal that he exonerate the plaintiff entirely from having to pay,* and to a decree against his co-sureties that they exonerate him except as to his own share." The right arises as soon as the debt matures; the surety need not wait till he is sued.^ ,But the enforce- ment of the right must not in any way hinder or em- barrass the creditor; he may, notwithstanding the suit for exoneration by the surety, proceed to judgment and execution against him.^ Hence realization upon the right is dependent upon the inaction of the creditor* against the surety.® Tho the most satisfactory basis for the right is the inadequacy of other surety remedies, it has been placed on quia timet grounds;^" and where there is an actual contract to exonerate it is properly' based on specific performance of contracts. ^^ haps to pay interest on the £9,000 until he eould recover the £9,000 hy actions or debtor summonses against his co-sureties." Another ad- vantage of a bill to exonerate is to clear up any doubt as to whether the plaintiff is surety or principal. 4. Dobie v. Fidelity & Casualty Co. (1897) 95 Wise. 540, 70 N. W. 482. Apparently the right belongs to any one who occupies substan- tially the position of a surety; Medsker v. Parker (1880) 70 Ind. 509. 5. Wolmerhausen v. Gulick supra. In such' a case the plaintiff must, of course, be ready to pay his share. G. West V. Chasten (1818) 12 Pla. 315. 7. Roberts v. Amer. Bonding Co. (1899) 83 111. App. 464. 8. Tho in most of th& cases the point is not raised it would seem that the creditor should be made a party in order that he may be at hand to receive the money and he bound by the decree, and thus avoid the possible peril to the principal of having to pay twice; the creditor would not, of course, be liable for any costs; see Moore V. Topliff (1883) 107 111. 241; 9 Mich. Law R«v. 237-239. 9. The decree of exoneration may be enforced against the prop- erty of the principal or co-sureties in the same way as any other money decree. AS to enforcing such decrees in otlier jurisdictions see Bullock v. Bullock (1895) 57 N. J. Law 508, 31 Atl. 1024; 17 Mich. Law Rev. 527-552. 10. MacFle v. Kilauea Co. 6 Hawaiian 440; Tankersley v. Anderson, supra: "It would be hard on sureties If they were compelled to wait till judgment against them, or they paid the debt, before they could have recourse to their principal, who might waste his effects before their eyes." 11. See ante § 55. Bq.— 39 610 MiscBULANEOtrs TOPICS. [Chap, xi § 454. Marshalling. If A, a creditor of D, has a mortgage or lien on two parcels of property, X and Y, and B has a subsequent mortgage or lien on Y only, it is obviously to B's ad- vantage that A should, in enforcing payment of his claim, first exhaust X before resorting to Y; and since it is undesirable . that the amount which B may realize from his security should depend upon A's whim in the matter, the equitable doctrine of marshalling provides that if A should first exhaust Y and there is still some or all of X left after A's full satisfaction, B is entitled to the assignment of A's mortgage or lien on X.^ Whether the right arises at the time the subsequent incumbrance is made* or at the time that A begins fore- closure proceedings,' there is a square conflict of author- ity ; and the whole doctrine has been criticised as unfair to the unsecured creditors.* § 455. Creditors' bills. The term creditors' bill is applied to three different types^ of bills for equitable relief: (1) A bill to enforce 1. Aldrlch V. Cooper (1802) 8 Ves. 382, 394. It is to be care- fully noted that the right is in substance one against the debtor and not against the other creditor; Detroit Bank v. Truesdail (1878) 38 Mich. 430, 439; 22 Harv. Law Rev. 447. Cf. exoneration § 453 Un- fortunately the term "subrogation" is sometimes applied to the doc- trine, but it is better to coniine that term to the right of a surety. See ante § 450. This has led to some confusion; 14 Col. Law Rev. 453. 2. This seems to be the prevailing view in the United States;" and it is therefore I held that the right is enforcible against all except harm fide purchasers for value without notice and that later pur- chasers of X are bound by a registry of the two Incumbrances; Robe- son's Appeal (1887) 117 Pa. St. 628; 18 Harv. Law Rev. 453; 14 Col. Law Rev. 332. 3. This is the English view; hence if X has been later mortgaged to C before foreclosure proceedings, A's mortgage is paid ratably from X and Y; Barnes v. Racster (1842) 1 Y. & Coll. 401. 4. See 1 Harv. Law Rev. 69, 70. 1. The term might also be aptly applied to a bill to enforce the marshalling of securities; see ante § 454; and to a bill by a creditor ^ 456] MISCELLANEOUS TOPICS. 611 a trust for the payment of creditors, equity jurisdiction being based upon the existence of a trust.- (2) A bill to set aside a conveyance in fraud of creditors, equity jurisdiction being based upon the fraud and the desire to get specific relief.* (3) A bill for equitable execution to reach assets of a debtor which conamon law execu- tion is too clumsy to reach.* In order to be entitled to this relief he must usually show that he has ex- hausted* common law execution;® equity will thereupon command the debtor to assign to the creditor his legal and equitable choses in action and such other assets as are beyond the reach of the sheriff.'' § 456. Equitable mortgages. At early common law a 'mortgage was a convey- ance of the legal title by A, the mortgagor, to B, the to reach securities given by a principal debtor to a surety. The rule allowing the latter relief rests upon what now appears to have been a dictum in Maure v. Harrison (1692) 1 Eq. Cas. Abridg't 93; it has since been discredited in England; Royal Bank of Scotland v. Com- mercial Bank of Scotland (1882) 7 App. Cas. 366. Though it prob- ably still represents the prevailing view in this country, it has been vigorously assailed as having no proper basis, there being no satis- factory grounds for declaring a constructive trust; 1 Col. Law Rev. 271; 13 id. 333, 359. Of course, if the debtor creates an actual trust for the creditor there is no reason why relief should not be granted. 2. See supra; also ante § 263. 3. See ante § 396. Though the conveyance is usually made by the debtor, relief will be given where an insolvent debtor has bought property and it has been conveyed at his direction to a third person to defraud creditors; Dewey v. Long (1853) 25 Vt. 564; 2 Col. Law Rev. 421. 4. See ante § 39S; also §§ 115, 238, 315. 5. By showing that he has obtained a judgment, that he has had an execution levied thereon and that the levy has been returned nulla tona. 6. Or that to do so would obviously be futile and therefore a useless expense. 7. For example, patent rights; Pacific Bank v. Robinson (1881) 57 Cal. 520; 23 Harv. Law Rev. 150. Also contingent interests in land or chattels; Alexander v. McPeck (1904) 189 Mass. 34, 75 N. E. 88; 25 Harv. Law Rev. 171, 197. 612 MiscELLANEotrs TOPjcs. [Chap, xi mortgagee, subject to the condition that if, on a pre- scribed day, A should pay B a sum of money, the legal title should revest immediately in A. If A should allow ■ the day to pass without payment or tender of the' amount due, B's estate would become absolute and A's rights entirely forfeited. The harshness of this result in case of the slightest default caused equity to inter- fere, by, giving to the debtor ar^ equity of redemption,^ and still later gave the creditor the remedy of fore- closure of the equity of redemption.^ In many states in this country it is held that the mortgagee get only a legal lien, and hence the mortgagor's rights in those states are legal rather than merely equitable, tho the term "equity of redemption" may still be used.* Where the conveyance to the mortgagee is defective so that he is compelled to come into equity to have the error corrected, such an attempted conveyance is usually called an equitable mortgage;* the term is also em- ployed where the debtor has made a specifically enforci- ble contract to give security,* and where title deeds have been deposited by way of security, thus creating an equitable lien on the land.* 1. Equity courts —influenced by the maxim that equity regards substance rather than form^nslsted that the substance of the trans- action was that the mortgagee should be paid his debt with interest and hence he could not properly complain if the payment were not made exactly on the day set for payment. See ante § 19. 2. This was necessary in order to protect the mortgagee. 3. The subject of mortgages is too large to be treated In this book. See Jones on Mortgages. See also 4 Harv. Law Rev. 1-14, The Story of Mortgage Law, by H. W. Chaplin. 4. For example, if the name of the grantee Is omitted from the Instrument; Dulaney v. Willis (1898) 95 Va. 606, 29 S. E. 324; or where a seal has been omitted by mistake; Dunn v. Raley (1874) 58 Mo. 134; 12 Harv. Law Rev. 140. Relief in such cases may usually be rested upon specific performance of contracts or upon reformatieu of instruments; see ante §§ 51, 333-339, 360. g. See ante § 51. 6. This is properly held only in those jurisdictions, like England, where the possession of title deeds is an important matter; Russel V. Russel (1783) 1 Bro. C. C. 269. In this country, where the possession of title deeds has been rendered of slight importance because of the § 457] MISCELLANEOUS TOPICS. 613 Where an absolute conveyance is made but upon an oral or written understanding that it is for the purpose ot' security, equity will hold such a conveyance to be in substance a mortgage;'' in such a case the rights of the grantor are solely in equity and the transaction is occasionally called an equitable mortgage. § 457. Penalties and forfeitures. Two important fields of early equity jurisdiction were the prevention of the forfeiture of the estate of a mortgagor who failed to pay on the day,^ and the pre- vention of the enforcement of penalties in bonds.^ At the present time common law courts have adopted this equitable principle and generally refuse to enforce such stipulations.* But in many cases relief must stiU be sought in equity, as in the case of covenants in leases providing for forfeitures,* and in the case of judgments obtained through fraud, mistake or accident.^ Altho it is often said® that equity will never enforce a forfeiture, a valid exception has been made where forfeitures are justly enforcible but the legal remedy'' registry system, the doctrine would seem to have no place; see 12 Harv. Law Rev. 509, discussing Parker v. Carolina Sav'gs B'k (1898) 53 S. C. 583, 31 S. E. 673. 7. See 4 Harv. Law Rev. 11, 12; see also ante § 291. 1. See ante § 456. 2. It was quite common to provide for a penalty of double the amount of the debt; equity interfered upon the ground that sub- stantial justice required only compensation to the obligee. See ante § 19. 3. If a stipulation is construed to be liquidated damages and not a penalty, common law courts will enforce it. As to whether a stipulation is in the nature of a penalty is a matter to be determined upon a consideration of all the circumstances; Jaquith v. Hudson (1858) 5 Mich. 123; 16 Harv. Law Rev. 304; 13 id. 60. 4. See 20 Harv. Law Rev. 640. 5. See 23 Harv. Law Rev. 484; 22 id. 600; 18 id. 395; 15 id. 410. 6. Livingston v. Tompkins (1820) 4 Johns Ch. 415. 7. That equity will not interfere to enjoin a just forfeiture, see Hill V. Barclay (1810) 16 Ves. 402; 20 Harv. Law Rev. 640. 614 MiscBiaANEOTJS TOPICS. [Chap, xi is inadequate.^ Where contracts for the sale of land expressly provide that time shall be of the essence of the contract equity courts have too often acquiesced in and indirectly enforced an unjust forfeiture of the vendee's interest by refusing specific performance after payment of a large proportion of the purchase money by the vendee.® § 458. lufaats, idiots and lunatics. The filing of a bill in equity relative to an infant's person or property makes the infant a ward of the cdurt.^ This jurisdiction seems to have grown out of the transfer by the Crown to the chancellor of the super- vision theretofore exercised by the king as parens patriae/^ and extends to the guardianship of his person, the supervision of his marriage* and to the control of his personal property and the income from his real estate.* Tho the jurisdiction is still important in Eng- land, the matter has been largely regulated by statute in this country and much of the jurisdiction given to courts of probate. 8. For example, where the lessee under a gas and oil lease de- faults in developing the property so that very serious injury would result to the lessor; Gadbury v. Gas Co. (1903) 162 Ind. 9, 67 N. E. 259; 6 Col. Law Rev. 467. See also 7 id. 13S, discussing Llndeke v. Ass'n Realty Co. (1906) 146 Fed. 630 (failure of lessee to erect build- ings) . 9. See ante § 151. 1. Lloyd V. Kirkwood (1884) 112 111. 329. 2. Losey v. Stanley (1895) 147 N. Y. 560, 569, 42 N. B. 8. Chan- cery also protected married women by Inventing the married woman's separate estate; see ante § 314. 3. Any interference with the ward's person or property, such as marrying him without the consent of the court is a criminal contempt of court; Butler v. Freeman (1756) Ambler 301. In 7n re H's Settle- ment (1909) 2 Ch. 260 the court imprisoned the ward himself for contempt for having married without its consent, but see criticism in 23 Harv. Law Rev. 222. 4. In some states the jurisdiction has been extended to the in- fant's estate in the land; King v. King (1905) 215 111. 100, 74 N. B, S9 (sale of land advantageous to Infant); but not In Bngland; Cal- § 459] MISCELLANEOUS TOPICS. 615 The power to determine whether an alleged idiot or lunatic was in fact such was exercised by the English Chancellor as representative of the king as parens patriae and never transferred to the court of chancery,' tho the supervision over the person and property of an adjudged idiot or lunatic seems to have been within the jurisdiction of the court.® In this country. the matter everywhere is regulated by statute.'^ § 459. Ademption and satisfax^tion. Where a testator after executing a will giving a legacy to X, to whom he stands in loco parentis, makes a gift during his lifetime to X, the gift is presumed to have been meant in ademption of the -legacy ;^ the pre- sumption may, however, be rebutted by showing a con- trary intent, and no presumption arises if the legacy and the gift are not of the same kind of property.^ Nor is there any presumptiorn where the testator does not stand in loco parentis to X.* vert V. Godfrey (1843) 6 Beav. 97. See also Rhea v. Shields (1904) 103 Va. 305, 49 "S. E. 70, 23 Harv. Law Rev. 473. 5. In re Hell (1748) 3 Atk. 634. But equity courts will protect the property of an alleged lunatic, at the suit of , a next friend, against fraud; Light v. Light (1858) 25 Beav. 248; 10 Harv. Law Rev. 249. 6. See 22 Cyc. 1120. 7. In Delaware, for example, jurisdiction over an alleged lunatic from the moment proceedings begin has been given by statute to the equity courts; In re Harris (1893) 7 Del. Ch. 42, 28 Atl. 329; 7 Harv. Law Rev. 496. 1. Carmlchael v. Lathrop (1896) 108 Mich. 473, 66 N. W. 350; 10 Harv. Law Rev. 52. 2. Bellasls v. Uthwatt (1737) 1 Atk. 426: "Land^ls not to be taken In satisfaction for money nor money for land." 3. See 20 Harv. Law Rev. 72; 11 id. 416. The doctrine of ademp- tion originated in the dislike which courts felt for double portions and their assumption that a father Intended to deal With all his children alike. It has been criticized as operating to the disadvantage of legitimate as compared with illegitimate children. See 10 Harv. Law Rev. 52. And see Roper on Legacies, Ch. VI. 616 MISCELLANEOUS TOPICS. [Chap, xi Where a testator, being indebted to Y, gives him by- will a legacy equal to or greater than the amount of the debt, the legacy is presumed to be meant in satis- faction of the debt;* the presumption may, however, be rebutted by showing an intent to the contrary .* The doctrine has not been popular with the courts and there has been a- tendency to lay hold of any circumstance upon which to ground an exception.® § 460. Lis pendens. One who acquires an interest in land involved in litigation takes subject to the final judgment or decree, even tho he pays value and has no notice of the suit.^ The doctrine is frequently referred to as an equitable one based upon constructive trust and constructive notice,^ but the better view is that it is founded upon the necessity of both equity and common law courts of keeping the subject of the litigation before the court and of preventing the frustration of the court's judgment or decree.* In case of negotiable paper not yet due, however, this judicial necessity yields to the social in- terest in favor of the free operations of commerce;* and there is square conflict of authority as to whether it ap- plies to chattels,'' and as to whether the courts of a 4. Fowler v. Fowler (1735) 3 P. Wms. 353. If the legacy is less than the debt there Is no presumption of part satisfaction; Graham V. Graham (1749) 1 Ves. Sr. 263. 5. Haynes v. Mico (1781) 1 Bro. C. C. 131. 6. See 2 Williams, Executors pp. 609-615; Strong v. Williams (1815) 12 Mass. 391; see ante § 21, note 4. 1. Murray v. Ballon (1815) 1 Johns Ch. 566. 2. Wor'tley v. Birkhead (1756) 2 Ves. Sr. 571. 3. Bellamy v. Sabine (1857) 1 De G. & J. 564; 7 Col. Law Rev. 282; 12 id. 82, 361; 20 Harv.Law Rev. 488; 22 id. 455; 16 id. 225. 4. Leitch v. Wells (1872) 48 N. Y. 585; 20 Harv. Law Rev. 488; 22 id. 455. 5. In England it does not apply to chattels personal; Wigraai V. Buckley (1894) 3 Ch. 483; but the weight of authority in the U. S. is probably contra; see Reid v. Sheffy (1897) 75 111. App. 136; 16 Harv. Law Rev. 225; 12 Col. Law Rev. 361. ■^ 460] misceIaLAneous topics. ' 617 /' sister state are bound by the full faith and credit clause to give the doctrine extra-territbrial effect.* Tho usual-, ly invoked by plaintiffs it applies also to protect de- fendants.'^ 6. That they are, see Fletcher v. Perrel (1840) 9 Dana 372; con- tra, Shelton v. Johnson (1857) 4 Sneed 672. 7. Garth v. Ward (1741) 2 Atk. 174; 7 Col. Law Rev. 282. INDEX [References are to sections.] ABANDONMENT OF JURISDICTION BY EQUIIT, 16, 52. ACCIDENT, 380, 457. ACCOUNT, 449. ADEMPTION, 459. ADMINISTRATION OF EQUITY, G. AFFIRMATIVE CONTRACTS, 42-65. partly affirmative, 72-81. AFFIRMATIVE DECREES, acts abroad, 14, 70. in trespass, 196, 198. In waste, 189. AGENCY, COMPARED WITH TRUST, 252. ALTERNATIVE PERFORMANCE, 40. ANNUITIES, CONTRACTS FOR SALE OF, 50. ARBITRATION, CONTRACTS FOR, 64. ASSIGNABILITY OF CONTRACTS, 82. ASSIGNABILITY OF SPECIFICALLY ENFORCIBLB OPTION, 87. ASSIGNMENT OF CHOSES IN ACTION, 261, 262. partial assignments, 262. ASSUMPSIT, BILLS OF EQUITABLE, 449. AUXILIARY JURISDICTION, 34. AWARDS, SPECIFIC PERFORMANCE OF, 64. BAILMENT, beneficiary of, 90. coBspared with trust, 251. (619) 620 INDEX. [References are to sections.] BALANCE OP CONVENIENCE, 15. In private nuisance cases, 212-215. BANKRUPTCY, . of cestui, 314. of purchaser, 88. of trustee, 313. of vendor, 88. BENEFICIARY OF CONTRACT, RIGHT TO SUB IN EQUITY, 90, 103. distinguished from cestui que trust, 258, 259. BEQUEATH, CONTRACT TO, 89. BLACKLIST, INJUNCTION AGAINST, 236. BONA FIDE PURCHASE FOR VALUE, 85, 301, 305. as affected by recording acts, 97, note 2. BOYCOTTS, INJUNCTIONS AGAINST, 235. BUILDING CONTRACTS, devolution of property rights created by, 110. specific performance of, 59. BUILDING SCHEMES— EQUITABLE SERVITUDES, 103. CANCELLATION OF CONTRACTS [see Quia Timet], 405-412. CERTAINTY, REQUIREMENT OF FOR SPECIFIC PERFORMANCE, 41. CESTUI QUE TRUST, bankruptcy of, 314. creditors of, 316. death of, 308. discharge of obligor by, 278. marriage of, 311, 312. nature of Interest of, 274-280. remedies against trustee, 274, 275. remedies against third person, 276. remedies of third person against, 279. whether right is in rem, 280. CHARGE, BENEFICIARY OF EQUITABLE, 90'. CHATTELS, equitable servitudes upon, 106. specific performance of Contracts to sell, 37, 44, INDEX. 621 [References are to sections.] jCHOSES in action, assignment op, 261, 262, 303. CIRCUITY OP ACTION, AVOIDING, 23, 67. CLASSIFICATION, of equity, 34. of trusts, 250. CLEAN HANDS, MAXIM, 30. CLOUD ON TITLE, BILLS TO REMOVE, 413-419. chattels, cloud on title to, 418. form of relief, 419. inadequacy of other remedies, 416. oral claims, 418. pendency of ejectment action, 419. preventing cloud, 115, note 9, 417. requirements of title and possession,. 415. title by adverse possession, 417.! what constitutes cloud, 414. COMMON LAW, DEFECTS IN, 5. COMPETITION, PROMISE NOT TO COMPETE WITH PLAINTIFF, 68. CONCEALMENT, by fiduciary, 157. by non-fiduciary, 159. CONCURRENT JURISDICTION, 34. CONDITIONS IMPLIED IN LAW, 120, 250. CONJECTURAL DAMAGES A^ BASIS FOR SPECIFIC PERFORM- ANCE, 49-53. CONSIDERATION, adequacy of, 128. in specific performance of contracts, 126, 127. in specific performance of options, 127. in uses and trusts, 125, 266, 267. meritorious, 127. CONSTRUCTIVE SERVICE, 12. CONSrauCTIVE TRUSTS, 84, 85, 291-300. ancestor killed by prospective heir, 294. distinguished from resulting trusts, 250, 281, fiduciary taking renewal of lease, 299. fiduciary with authority to sell or to buy, 300. 622 INDEX. [References are. to sections.] CONSTRUCTIVE TRVSTS— (continued) . gratuitous coBveyanoe by deed on oral trust, 290, 291. gratuitous conveyance by will on oral trust, 292. mingling of funds, 297, 298. purchase of property' by trustee or other fiduciary, 295. purchase of property by converter or disseisor, 296. testator killed by devisee or legatee, 293. tracing trust funds, 297, 298. CONTINUANCE PERFORMANCE, CONTRACTS FOR, 56-62, 75. CONTRACTS, breach of as ground for rescission, 403, 404. compelling or inducing breach of, 234. for the benefit of another, compared with trust, 258, 259. specific performance of [see Specific Perfobmance]. CONTRIBUTION, 452. CONVERSION, EQUITABLE, 109, note 11, 448. CONVERTER, purchase of property by, 296. remedy of cestui against, 309. COPYRIGHT, common law, 226. contracts to sell, 47. statutory, 228. COVENANT NO^ TO SUE, 67. COVENANTS RUNNING WITH THE LAND AT LAW, 93. COVENANTS RUNNING WITH THE LAND IN EQUITY [see Equita- TABLE SEEVITUDES]. CREDIT'ORS' BILLS, 455. CRIMES, PREVENTION OF, 244. CRIMINAL PROCEEDINGS, INJUNCTIONS AGAINST, 245. CRYSTALLIZATION OF EQUITY, 48. CURTESY, right of cestui's widower, 311. right of purchaser's widower, 113. right of trustee's widower, 310. right of vendor's widower, 114. INDEX. 623 [References are to secticma.] DAMAGES, ADEQUACY OF, 53. in lieu of equitable relief, 104, note 2. conjectural, as basis for specific performance, 49, 53. DBARLB V. HALL, 306. DE BENE ESSE, TAKING TESTIMONY, 421. DEBT, action of allowed against trustee, 257. distinguished from trust, 253-257. DECREES, IN REM, STATUTES GIVING POWER TO RENDER, 12. DEFAMATION, disparagement of character, 239. disparagement of property, 238. DEFAULT OF PLAINTIFF, breach by plaintiff justifiably acted upon by defendant, 148. effect of upon equitable servitudes, 107. effect of on suit for specific performance, 143, 145. DEFECTS IN THE COMMON LAW, 5. DEFINITION OF EQUITY, 33. of waste, 183. of natural rights, 203. DISSEISOR, bound by equitable servitudes, 97. purchase of property by, 296. remedy of cestui against, 309. DIVIDENDS AGAINST BANKRUPT ESTATE, SPECIFIC PERFORM- ANCE OF SALE OF, 250. DIVORCE, ENJOINING FOREIGN, 14. domestic relations, interfering with, 241. DOWER, rights of cestui's widow, 311.' rights of purchaser's widow, 113. rights of trustee's widow, 310. rights of vendor's widow, 114. DURESS As BASIS FOR RESCISSION, 398, 399. EASEMENTS, ORAL AGREEMENTS FOR, 139. [See Pkivatb Easements]. 624 INDEX. [References are to sections.] EQUITABLE CHARGE, COMPARED WITH TRUST, 2C0. EQUITABLE CONVERSION, 109, note 11, 448. EQUITABLE EXECUTION, 116, 315, 316, 455. EQUITABLE SERVITUDES, 70, .94-106. basis of plaintift's rights in I'ulk v. Moxhay, 95, 96. effect of plaintiff's acquiescence, 107. effect of plaintiff's default, 107. failure of purpose of restriction, 104. formality essential, 101. in gross, 98. mutual covenants in building schemes, 103. on a business, 100. on after acquired property, 99. public policy against enforcing, 105. rights in another's land at common law, 93. whether affirmative action may be required, 102. whether damage necessary, 98, note 3. who are bound by, 97. who may enforce, 98. with reference to chattels, 106. EQUITABLE WASTE, 186-188. basis for the doctrine, 188. persons affected by doctrine, 187. EXECUTION IN PERSONAM, 9, 10. EXECUTION IN REM, 9. EXECUTION PROOF, DEPENDANT, 45. EXECUTORSHIP COMPARED WITH TRUST, 263. EXERCISE OF JURISDICTION DISTINGUISHED FROM EXIS- TENCE OF JURISDICTION, 58, 75. EXONERATION, 453. contracts to exonerate, 55. trustee's right to, 279. EXTINGUISHMENT OF TRUST, 317. FORECLOSURE OP PURCHASER'S PROPERTY RIGHT, 155. PORPEIT'URES, 457. FRAUD, as ground for rescission [see Rescission J, 380-397. INDEX. 625 [References are to sections.] FRAUD — ( continued) . as bar to specific performance [see Repeesentation], 156-160. conveyances In fraud of creditors, 397. fraudulent representation to third parties, 233. In performance of contract as ground for reformation, 338. in reducing bargain ,to writing as ground for reformation, 338. plaintiff's fraud on third parties as bar to reformation, 357. FRAUDS, STATUTE OF, as a defense to suit for reformation, 348-350. as a defense to suit for specific performance, 130. fraud, 141-142. part performance, 131-137. FUTILE DECREE, EQUITY WILL NOT RENDER, 32, 64, 76, 89, 104. FUTURE ENJOYMENT, BILLS TO SECURE, 422. GIFT, oral promise to make, 1S8-140. relief solely in equity, 140. HARDSHIP AS- DEFENSE TO SPECIFIC PERFORMANCE, 168-170. ' as sole ground, 168. coupled with mistake, 164. foreseen as a risk, 170. on others than defendant, 169. HISTORY OF EQUITY, 1-4. IDIOTS, 458. ILLEGALITY AS GROUND FOR RESCISSION, 401, 402. as defense to suit for reformation, 357. INADEQUACY OF DAMAGES, 8. hard and fast rule as to land contracts, 42. INCIDENTAL PROMISES, 75. INDEMNITY, 451. INFANTS, 458. INJUNCTIONS, against disturbance of private easements, 216-219. against Interference with contract or business relations, 234-237. against obstruction of public rights, 220-222. against private nuisances, 204, 212, 215. against public nuisances, 224, 225. Ea.— 40 626 INDEX. CReferences are to sections.] INJUNCTIONS— ( continued ) . against trespass, 191, 194-201, 202. against waste,- 185, 186. enforcement of equitable servitudes [see Equitable Sebvitudes], 95-107. enforcement of negative contracts, 67-81. enjoining acts abroad, 13. enjoining foreign nuisance, 14. enjoining suits abroad, 13. "mandatory injunctions" [see Atfibmative Decrees]. INSOLVENCY OF DEPENDANT, as basis for relief in trespass cases, 201. as basis for relief in waste cases, 189. as basis for specific performance, 45. INSOLVENCY OF PLAINTIFF AS BAR TO EQUITABLE RELIEF, 147. INSTALLMENT CONTRACTS, 53. INSURANCE— CONTRACTS IX) INSURE, 52. INTENT, REPRESENTATION AS TO, A BAR TO SPECIFIC PER- FORMANCE, 146. INTERPLEADER, BILLS OF, 423-436. adequacy of other relief, 428. bill in nature of bill of interpleader, 4?6. claims mutually exclusive, 430. debt, duty or thing, the same, 431,. independent liability, 430. Interest of applicant, 427. judgment against applicant, 435. laches, 435. must one claimant be entitled, 425. no collusion with either claimant, 426. non-residence of part of claimants, 429. privity between claimants, 432, 433. reasonable doubt necessary, 424. tort feasor, applicant a, 434. verdict against applicant, 435. INTOXICATION AS DEFENSE TO SPECIFIC PERFORMANCE, 171. IRREPARABLE INJURY, as basis for specific performance, 54-57. as taking a case out of statute of frauds, 136. JUDGMENT IN PERSONAM, 9, 10. INDEX. 627 [References are to sections.] JUDGMENT IN REM, 9. JURISDICTION— EXERCISE OF DISTINGUISHED FROM EXIS- TENCE OF, 58, 75. JURISDICTION, AFFECTING PROPERTY OUTSIDE, 11. JURISDICTION IN PERSONAM, 8. JURISDICTION IN REM, 8, 12. LACHES, as defense to specific performance, 149-152. delay coupled with otker circumstances, 150. in general, 31. time of the essence, 151, 152. LACK OP MUTUALITY OF OBLIGATION, 173. LACK OP MUTUALITY OF PERFORMANCE, 78, 79, 181. LACK OP MUTUALITY OF REMEDY, 78, 79, 174-180. complete performance, ■ 177. contract procured by fraud, 176. contract with a fiduciary, 176. contract with one who conveys property in fraud of creditors, 176. contract with wife and hushand, 179. failure of vendor to get title, 179. infancy, 175. options, 178. statute of frauds, 175. LEND, CONTRACTS TO LEND MONEY, 63. LESSOR, TRANSFER OF LAND BY, 86. LIBEL, INJUNCTIONS AGAINST, 239. LIQUIDATED DAMAGES, 40. LIMITATIONS ON EQUITY JURISDICTION, 8. LIMITATIONS, STATUTES OP, 31. specific performance and trusts, 154. LIS PENDENS, 460. LOSS, RISK OF ACCIDENTAL IN CONTRACTS TO CONVEY LAND, 118, 119. 628 iNDEx. [References are to sections.] LUMLBY V. WAGNER, 72-81, 180. affirmative promise not specifically enforclble, 73. an express negative promise, 80. both promises broken by defendant, 76. defendant's services unique, 81. lack of mutuality, 78, 79, 180. negative promise Incidental to affirmative, 75. BO separate consideration for negative promise, 74. plaintiff damaged by both breaches, 77. LUNATICS, 458. MANDATORY INJUNCTIONS, 70. [See Affirmative Decrees]. MARKETABLE TITLE, IN SPECIFIC PERFORMANCE, 129. MARSHALLING, 454. MAXIMS, 17-32. a rule of equity will never be applied to reach an inequitable result, 32. between equal equities the first in order of time prevails, 28. between equal equities the law will prevail, 27. equality is equity, 25. equity acts specifically and not by way of compensation, 22. equity aids the vigilant, 31. equity delights to do justice and not by halves, g4, 52. equity follows the law, 26. equity imputes an Intent to fulfill an obligation, 21. equity prevents a multiplicity of suits, 23. equity regards substance rather than form, 19. ■equity regards that as done which ought to be done, 20. he who comes Into equity must come with clean hands, 30. he who seeks equity must do equity, 29. nature and value of maxims, 17. wkere there is a right there is a remedy, 18. MINGLING TRUST FUNDS, 297, 298. MISTAKE AS DEFENSE fO SPECIFIC PERFORMANCE, 161-166. ambiguity — surprise, 167. coupled with hardship, 164. coupled with sharp practice, 163. mistake caused innocently by plaintiff, 162. mistake of law, 166. negligent mistake, 166. INDEX. 629 [References are to sections.] MISTAKE AS GROUND FOR REFORMATION, 333-346, [See Reformation of Instruments], , MISTAKE AS GROUND FOR RESCISSION, 366-379. [See Rescission]. MORTGAGEE, DISTINGUISHED PROM VENDEE, 109, note 5, 155. MORTGAGES, EQUITABLE, 20, 456. i MULTIPLICITY OF SUITS, AVOIDING, 23, 43. MUTUAL COVENANTS IN BUILDING SCHEMES, 103. MUTUALITY AS BASIS FOR GIVING RELIEF, 48, 132, 172. [See Lack op Mutuality]. NATURAL RIGHTS, DEFINED, 203. NECESSARY ARTICLES PROCURABLE ONLY FROM THE DEFEND- ANT, 56. NEGATIVE CONTRACTS, 67-81. an express negative, 80. partly aflBrmative contracts, 72-81. NOTICE [See Bona Fide Purchase fob Value], 301-395. NUISANCE, ENJOINING FOREIGN, 14. [See Pbivate Nuisance, Public Nuisance]. OPTIONS, consideration in options cases, 127. devolution of option holder's rights. 111. devolution of rights of other party, 112. failure to comply with terms of, 144. lack of mutuality In, 178. option of purchaser to take partial performance with compensa- tion, 122. rights of creditors ©f option holder, 116. PAINE V. MBLLER, criticised, 119. PAROL EVIDENCE RULE, 331, 347. PARTIAL PERFORMANCE WITH COMPENSATION, 120-124. criticism and limitations, 123, 124. suit by purchaser, 122. suit by vendor, 121. 630 INDEX. [References are to sections.] PART PERFORMANCE AS TAKING CASE OUT OF STATUTE OP FRAUDS," 131-142. attempts to explain doctrine, 135. continuance in possession, 133. irreparable injury, 136.' payment of purchase money, 131. taking possession, 132. taking possession and improvements, 134. PARTNERSHIP, CONTRACTS TO FORM, 65. PATENTS, CONTRACTS TO SELL, 47. equitable protection of, 227. PEACE, BILLS OF, 437-447. ^ bills to quiet title in ejectment cases, 445. bills to quiet title in trespass cases, 446. collection of void taxes, 443. contractual obligations, 444. criminal prosecutions, numerous, 447. exclusive property right, claim of, 439. exclusive property right, no claim of, 440-442. joinder distinguished, 438. purpose and scope, 437. statutory pecuniary obligations, 444. PENALTIES AND FORFEITURES, 457. PENALTY, EFFECT ON SPECIFIC PERFORMANCE, 40. PERPETUATION OF TESTIMONY, inadequacy of, 409, 416. scope of, 420. PERSONALITY, INJURIES TO, 239-243. PERSONALTY— [See Chattels]. PERSONAL SERVICES, contracts for, 62. for promise to devise, 137. PLEDGE, CONTRACTS TO,' 51. POLITICAL RELATIONS, INTERFERENCE WITH, 243. POWER DISTINGUISHED FROM RIGHT, 39. PRIVACY, INTERFERENCE WITH, 240. INDEX. Q31 [Retefences are to sections.] PRIVATE EASEMENTS, DISTtTRBANCE OP, 216-219. access to public way, 219. distinguished from natural rights, 216. light and air, 217. remedies, 216. ■way, right of 218. PRIVATE NUISANCE, 203-215. abatement of, 204. balance of convenience, 212-215. adequacy of damages, 214. existence of nuisance, 213. perpetual injunction, 215. > preliminary injunctions, 212. culpability of defendant, 208. damage, 206. definition of natural rights, 203. essential elements of, 205. independent actors, 210. joint actors, 210. legalizing nuisances, 207. motive of defendant, 209. natural rights, 203, 216. percolating waters, 209. remedies, 204. spite fences, 209. trying legal right first, 211. whether right technical, 206. PROBABLE EXPECTANCIES, INJUNCTION AGAINST INTERFER- ENCE WITH, of a competitor, 237. of an employee, 236. of an employer, 235. of a non-competitor, 237. PROCEEDINGS IN PERSONAM, 9. PROCEEDINGS IN REM, 9. PROPERTY OUTSIDE JURISDICTION, DECREE AFFECTING, 11. PROPERTY RIGHT, CREATION OF IN PURCHASER, 83. PUBLIC INTEREST, against enforcing equitable servitudes, 105. as an element in specific performance cases, 60. 632 INDEX. [References are to sections.] PUBLIC NUISANCE, 223-225. definition, 223. distingulslied from obstruction of public rights, 225. remedy of private individuals, 225. remedy of public, 224. , PUBLIC RIGHTS, OBSTRUCTION OF, 220-222. purprestureg, 222. remedy of private individual at law, 220. remedy of private individual in equity, 221. remedy of public, 222. PUBLIC TRUSTS, 270, 329. PURCHASERS, creation of property right. In, 83. devolution of rights and obligations of, 108. voluntary and involutary transfer of purchaser's rights, 116. PURPRESTURES, 222. QVIA. TIMET, BILLS, 405-412, 420-422. conflict between state and federal decisions, 412. effect- of pendency of action at law, 411. equitable defenses arising after inception of contract, 407. pquitable defenses arising at inception of contract, 406. future enjoyment, bills to secure, 422. historical jurisdiction to cancel, 406, 407. Injunction against transfer of negotiable instruments, 410. perpetuation of testimony, 420. perpetuation of testimony, inadequacy of, 409. real defenses to contract, 408. scope of, 405. taking testimoney de iene esse, 421. QUIET TITLE, BILLS TO, in ejectment cases, 445. in trespass cases, 446. REFORMATION OF INSTRUMENTS, 331-&62. amount of proof required, 352. bilateral transactions, 333-340. correction of price, 334 defendant cognizant of plaintiff's mistake, 336, 337. fraud in performance of contract, 338. fraud in reducing bargain to writing, 338. mistake as to collateral matter, 340. mutual mistake, 333, 334. INDEX. 633 [References are to sections.] REFORMATION OF INSTRUMENTS— (contiwited). option of rescission, 337. plaintiff alone mistaken, defendant inno'cent, 839. plaintiff's mistake caused innocently, 335. distinguished from rescission, 363. execution sales, 362. foreclosure of mortgage, 362. form of relief, 361. in general, 331. kind of proof required, 347-351. parol evidence rule, 347. statute of frauds, 348-350. statute of wills, 351. mistake of law, 345, 346. plaintiff's conduct as defense, 355-359. compromise, 358. election of remedies, 359. fraud on third persons, 357. illegality, 357. lapse of time, 355. negligence in failing to discover mistake, 356. ratification, 359. reformation against married women, 354. reformation as an independent equity, 360. standard for rectification, 332. statutory formalities, 362. unilateral transactions, 341-344. donor's intent, 341. relief against donor, 343. relief against representatives of decedent, 344. relief to donor, 342. volunteers, who are, 343. REIMBURSEMENT, 451. REMOVAL OF CLOUD ON TITLE, 413-419*. [See Cloud on Title]. REPAIR, CONTRACTS TO, 61. REPRESENTATION [See Fbaud, Rescission]. as to intent, a bar to specific performance, 146. by a fiduciary, a bar to specific performance, 157. by a non-fiduciary as a bar to specific performance, 158. innocent third persons injured, 160. RESCISSION, 363-404. breach of contract, 403, 404. 634 INDEX. [References are to sections.] RESCISSION— (confiwMe(i) . conveyance of land for support, 493. rescission to k grantee, 404. distinguished from reformation, 363. duress, 398, 399. duress on plaintiff, 398. duress on third persons, 399. fraud, 380-396. action at law for fraudulent representation, 381. concealment, 383. conveyances in fraud of creditors, 396. damage caused by, 386. defendant's belief, 384. defendant's Intent that plaintiff act, 385. election of remedies, 393. innocent misrepresentation, 384. intention as to price, representation of, 387. intention, representation of, 382. lapse of time, 392. ' negligence in failing to discover, 391. negligent misrepresentation, 384. non-actionable representations, 387. non-disclosure, 383. opinion, representation of, 382. placing defendant in statv, quo, 394. promise, breach of, not, 382. proof of, 397. puffing, i%l. ratification, 393. reliance by plaintiff, 386. representation by third parties, 390. representation of law, 388. representation to third parties, 389. rescission at law, 395. suppression, 383. ' whether fraud alone gives equity jurisdiction, 380. illegality, 401, 402. gambling, 402. marriage brocage, 402. unlawful cohabitation, 401. mistake, 366-379. change of judicial decision, 374. collateral facts, 366. compromise, 378. defendant cognizant of plaintiff's mistake, 369. lapse of time, 375. INDEX. 635 [References are to sections.] RESCISSION— ( continued ) . mistake Nof law, 373, 374. misunderstandings, 370. mutual mistake, 367. negligence in failing to discover, 376. placing defendant in statuo quo, 379. plaintiff alone mistaken, defendant innocent, 371. plaintlfC's mistake caused innocently by defendant, 368. ratification, 378. unilateral transactions, 372. specific performance and, 156, 161, 365. undue infiuence, 400. RESTRICTIVE AGREEMENTS, 70. [See Equitable Seevitudes] RESULTING TRUSTS, distinguished from constructive trusts, 250, 281. failure of intended trust, 286. gratuitous conveyance by deed upon oral trust, 289. property not exhausted by intended trust, 287. purchase money resulting trusts, 282-285. conveyance to a dependent, 284. ' extent of rule, 283. legislative changes, 285. origin of rule, 282. transferror received pay for property, 288. RIGHT TO BREAK A CONTRACT, IS THERE? 39. RIGHTS, DEDUCTIONS FROM REMEDIES, 83, note 1. RISK OP ACCIDENTAL. LOSS IN CONTRACTS TO CONVEY LAND, 113, 119. ROMAN LAW CONTRASTED WITH ENGLISH LAW, 2, 3. SATISFACTION, 21, 459. SCOPE OF EQUITY JURISDICTION, 7. SECURITY, CONTRACTS TO GIVE, 51, 91. SENTIMENTAL VALUE, CHATTELS OF, 46. SERVITUDES, EQUITABLE, 70, 94-106. [See Equitable Servitudes]. SHARES OF STOCK, CONTRACTS FOR, 57. 636 INDEX. [References are to sections.] SHARP PRACTICE AS DEFENSE TO SPECIFIC PERFORMANCE, 163. SITUS OF TRUST PROPERTY NOT IMPORTANT, 9, 275. SLANDER, 2S9. SLANDER OF TITLE, 238. SOCIAL RELATIONS, INTERFERENCE WITH, 242. SPECIFIC PERFORMANCE OF CONTRACTS, 35-181. as to property outside jurisdiction, 11. at law, 37. contracts to sell chattels, 37, 44-47. or specific reparation? 38. primary right in, 36. rescission and, 156, 161, 365. scope of the subject, 35. to the seller — ^mutuality, 48. SPENDTHRIFT T-RUSTS, 314. SPITE FENCES, INJUNCTIONS AGAINST, 209. STRIKES, INJUNCTIONS AGAINST, 235. SUBROGATION, 450. SUPERVISION, DIFFICULTY OF, 58. TENDER OF PERFORMANCE BY VENobR, WHETHER NECES- SARY, 153. TESTIMONY, PERPETTJATION OF, 409, 416, 420. TIME [See Laches]. expressly made of the essence of contract, 151. made of the essence by other circumstances, 152. TORTS, SPECIFIC REPARATION AND PREVENTION OF, 182-243. analogy to specific performance of contracts, 182. [See Waste, Trespass, Dis'tubbance of Basements, etc.]. TRADEMARKS, 230-232. cases analogous to, 231. non-commerclal names, 232. TRADE, PROMISE NOT TO COMPETE WITH PLAINTIFF, 68. I-RADE SECllETS, PROMISE NOT TO REVEAL, 69. . equitable protection of, 229. INDEX. 637 [References are to sections.] TRANSFER BY VENDOR OR LESSOR, 86. TRANSFER OF TRUST PROPERTY, 304-316. iona fide purchase for value, 301-305. getting title, 302-304. paying value, 301. transfer of choses in action, 303. transfer of equitable interests, 304. without notice, 305. death of cestui, 308. death of trustee, 307. marriage of cestui, 311, 312. marriage of trustee, 310. right of transferee to ofiBce of trustee, 328. transfer by cestui, 306. TRANSFEREE OP PURCHASER, SPECIFIC PERFORMANCE AGAINST, 92. TREES, CONTRACTS FOR THE SALE OF, STANDING, 42. TRESPASS, 191-202. affirmative decrees in, 196, 198. common law remedies for, 191. continuing trespasses, 196. damage in, 200. defendant in possession, 199. defendant insolvent, 201. -^ plaintiff a remainderman, 200. repeated actions for trespass, 195. repeated trespasses, 195. requiring plaintiff to establish his right at law, 192, 193. taking possession of part, of plaintilf's land, 197. trespass in nature of waste, 194. trespass to chattels, 202. TRUSTEE, appointment and removal of, 272. , bankruptcy of, 313. creditors of, 315. death ofj 307. discharge of obligor by, 278. duties of, 318-330. action by less than all the trustees, 329. as' to collecting debts due trust estate, 326. as to conveyance of trust property, 318, 319. as to custody, 322 as to delegating trust duties, 328-330. 638 INDEX. [References are to sections.] TRUSTEE — (continued). as to depositing in bank, 325 as to employment of agents, 330. as to information, 321. as to investment, 323-325. as to payments made by trustee, 326. as to possession, 320. extent of trustee's liability for breach, 327. laches of, 276. marriage of, 310. remedies against cestui, 274. remedies against confederate, 277.' TRUSTS, 84, 246-330. classification of, 250. compared with agency, 252. compared with assignment of chose in actlott, 261, -262. compared with a bailment, 251. compared with a contract, 258, 259. compared with a debt, 253-257. payment of interest, 254. remedies against debtor and trustee, 257. trust changed into a debt, 255. trustee liable as if debtor, 256. compared with equitable charge, 260. compared with executorship, 263. compared with relation of vendor and purchaser, 83, note 6, 109. note 5, 264. essentials to creation and existence of, 265-273. appointment of trustee, 272. '' charitable trusts, 270. consideration, 266, 267. disclaimer by trustee, 273. language necessary, 265. private trusts, 271. public trusts, 270, 329. removal of trustee, 272. statute of frauds, 268. subject matter, 269. extinguishment of, 317. TULK V. MOXHAY, 94-105. [See Equitable Servitudes] UNDUE INFLUENCE AS GROUND FOR RESCISSION, 400. UNFAIR COMPETITION. 331. INDEX. 639 [References are to sections.] UNILATERAL TRANSACTIONS, reformation of, 341-3<4. rescission of, 372. UNIQUE CHATTELS, 46, 47. UNIQUE SERVICES, 81. UNJUST ENRICHMENT A.S BASIS OP TULK V. MOXHAY, 95. USES, origin and history of, 246. statute of, results of, 247. uses not affected by statute, 248. USES, STATUTE OF, 247. VALUATION, CONTRAf^T FOR, 64. VENDOR, devolution of rights and ohligations of, 109. distinguished from mortgagee, 109 note 5, 155. distinguished from constructive trustee, 109 note 5. , distinguished from trustee, 83 note 6, 109 note 5, 264. rights of vendor's creditors, 115. transfer of land by, 86, 115. voluntary and involuntary transfer of vendor's rights, 115. VOLUNTEERS, WHO ARE, in reformation cases, 343. in trust cases, 267. WASTE, 117, 183-190. affirmative decree, 189. common law actions for, 184. definition of, 183. equitable remedies for common law waste, 185. "equitable waste" [See Equitable Waste], 186, 188. liability of vendor or purchaser for, 117. right to proceeds of, 190. statutory actions for, 184. WILLS, gratuitous conveyance by will upon oral trust, 291, 292. statute of wills as defense to suit for reformation, 351. ' PREFACE The preceding pages have been written primarily for the student engaged in preparing himself for the practice. It is hoped, however, that it may be helpful also to practitioners — especially those who have re- tained something of the attitude of the student; and in order to make it still more helpful to Missouri prac- "titioners this appendix of notes on .Missouri cases is how added. While considerable effort has been made to make the appendix both accurate and complete, there are probably some inaccuracies and omissions. The author will be glad to have his attention called to any that are important, so that correction may be made in later editions. Columbia, Mo. G. L. C. Jan..l, 1920. (641) Eq.— 41 MISSOURI APPENDIX APPENDl'X OF MISSOURI NOTES Vol. 1 — 274 MissouEi Reports. Vol. 1 — 199 MissouBi Appeal Eepobts. Chapter I. Introductory. ". A. Bbiep History of Equity. § 6. Administration of eciuity. See Rev. St. 1909 § 1727: "There shall be in this state but one form of action for the enforcement or protection of private rights, and redress or prevention of private wrongs, which shall be denominated a civil action." The fundamental distinctions between courts of law and equity still remain, the judges exercising both law and equity jurisdiction; Potter V. Whitten (1911) 161 Mo. App. 118, 128, 142 S. W. 453. See also Maguire v. Vice (1855) 20 Mo. 429, 431 (allegation of legal title not satisfied by proof of equitable title); Richardson v. Means (1856) 22 Mo. 495, 497 (cestui que trust not entitled to sue third person at law). See Close v. Gravel Co. (1911) 156 Mo. App. 411, 138 S. "W. 81; a purely equitable right arising out of an assignment of future wages can not be enforced in the court of a justice of the peace ber cause such a court has no equity jurisdiction. See dictum in Staed v. Rossier (1911) 157 Mo. App. 300, 313, 137 S. W. 901: "While it is true that this is an action at law and not one seeking equitable relief, it is to be borne in mind that even in the determination of actions at law, the abolition of the distinction be- tween the two systems of practice is so complete In our state, as to tend to cause us. In an endeavor to arrive at the very justice and (643) 644 MISSOURI APPENDIX fairness of the case, to mingle the two;" and see Wlntergerst v. Court of Honor (1914) 185 Mo. App. 373, 395, 170 S. W. 346: "The only reason for preserving the distinction between an action at law and one in equity, under our code, is in order that either party may de- mand and have a jury if the case be one at law;" Gill v. Safe Co. (1913) 170 Mo. App. 478, 482, 156 S. W. 811; see also Humphreys v. At- lantic Milling Co. (1889) 98 Mo. 542, 548, 553, 10 S. W. 140. Tho neither party has a right to a trial by jury in an equity case, Shelton v. Harrison (1914) 182 Mo. App. 404, 167 S. W. 634; the trial court may take the advice of a jury; Taylor v: Perkins (1913), 171 Mo. App. 246, 157 S. W. 122. If a petition in equity shows on its face that there is an adequate remedy at law no cause of action is stated and the objection may be taken on the record without a bill of exceptions; Benton Co. v. Mor- gan (1901) 163 Mo. 661, 678, 64 S. W. 119; Schloss v. Dattilo (1917) 197 Mo. App. 656, 658, 198 S. W. 1137 (dictum) ; Janney v. Sped'den (1866) 38 Mo. 395 (bill in equity not proper remedy to recover pos- session of lands). Tho the code allows the joinder of legal and equitable causes of action, separately stated, they can not be blended in the same trial; and the plaintiff may be compelled to elect on which cause of action he will proceed; Bobb v. Woodward (1868) 42 Mo. 482, 488. § 7. Possibilities of equity jurisdiction. Loose statements that wherever remedy at law is not adequate equity will give relief: Byers v. Weeks (1903) 105 Mo. App. 72, 78, 79 S. W. 485: "But the principle is clear enough that when no legal remedy exists, equity will afford one in the interest of justice. There being no legal remedy, in the very nature of things equity affords a remedy." See Joyce v. Growney (1899) 154 Mo. 253, 263, 55 S. W. 466. § 8. Iiimitations on the existence of equity jurisdiction. . 2. Heman v. Skrainka (1884) 14 Mo. App. 577. That equity will not ordinarily entertain jurisdiction where the remedy at law has always been plain, adequate and complete, see Cad- walader v. Atchinson (1826) 1 Mo. 659 (the plaintiff failed to show that he could not have used his evidence in defence to an action at law against him) ; Cabanne v. Lisa (1826) 1 Mo. 683 (damages for breach of covenant adequate) ; Thias v. Slener (1890) 103 Mo.' 314, 15 S. W. 772 (debt an adequate remedy); Abnutt v. Leper (1871) 48 Mo. 319 (creditor must first recover judgment for his claim against decedent's estate before being entitled to set aside conveyance by decedent as in fraud of creditors). But see the odd remark in Humphreys v. Atlantic Milling Co. (1889) 98 Mo. 542, 553, 10 S. W. 140, that "under our practice act, the plea of remedy at law in a suit in equity is unknown." MISSOURI APPENDIX 645 Where law and equity exercise concurrent jurisdiction a party need not exhaust legal relief before availing himself of equitable re- lief; West V. Wayne (1831) 3 Mo. 13 (defendant need not set up fraud to £tn action at law on a bond, but may later sue in equity to enjoin the enforcement of the law judgment). But such a case can not arise under the code. § 9. Equity acts in personam, not -in rem. A judgment for dower is in rem but binding only the parties to the suit, not the whole world; Barbero v. Real Estate Savings Bank (1881) 10 Mo. App. 76, 79. § 10. Decree of equity court does not affect the legal right. An equity court will not undertake to issue an injunction against a judicial oflBcer of a common-law court but only against a party or a ministerial officer; Ostman v. Prey (1910) 148 Mo. App. 284, 128 S. W. 257. A decree that a surety who ha^ paid the creditor is entitled to stand in the creditor's shoes so as to enforce a mortgage against the principal debtor does not put the title in the surety but merely au- thorizes him to have the mortgage foreclosed as the creditor might have done; Wolfe v. Dyer (1888) 95 Mo. 545, 549, 8 S. W. 551; see post § 450, § 11. Commanding an act within the jurisdiction which affects prop- erty outride. 1. See accord, Olney v. Baton (1877) 66 Mo. 563, 567 (land in Kansas). See also State ex rel. v. Homer (1912) 164 Mo. App. 334, 355, 145 S. W. 497, holding that a writ of prohibition should not issue against the St. Louis circuit court's entertaining a suit to en- force a covenant in regard to switching cars in Grariite City, 111., because the court had jurisdiction of the parties and the subject matter and it did not appear that it would be necessary to go into Illinois to enforce obedience to the court's decree. In State ex rel. V. Grimm (1912) 243 Mo. 667, 148 S. W. 868, the plaintiff asked to have cancelled as a cloud on his title to Virginia land, a deed pro- cured from him by the fraud of the defendant; relief was denied because the land was in Virginia and the deed had been recorded there, the majority of the court apparently losing sight of the fact that the difference between an i actual cancellation and a reconvey- ance is only formal; the minority opinion seems right, that the court should have ordered the defendant to reconvey the land. See post § 419. 646 MISSOURI APPENDIX § 12. Statutes giving jurisdiction in rem. R. S. 1909 §§ 1770-1778 give jurisdiction in rem in equity cases and provide for so called constructive service by publication upon non-residents. Tho the statute reads that "service of process in con- formity with this section shall be as effectual within the limits of this state as personal service within this state, etc.," it has been very properly held that such so called service upon non-residents will not support a personal judgment; Moss v. Fitch (1908) 212 Mo. 484, 111 S. W. 475 (no decree for alimony against non-resident); see also Hedrix v. Hedrix (1903) 103 Mo. App. 40, 77 S. W. 495. R. S. 1909 § 2109 gives power to render decrees in rem: "In all cases where judgment is given for the conveyance of real estate or the delivery of personal property, the court may, by such judg- ment, pass the title of such property, without any act to be done on the part of the defendant." The dictum in Henderson v. Dickey (1872) 50 Mo. 161, 165, that "this is simply declaratory of the old chancery practice and enunciates no new rule" is erroneous. In Bank v. Poole (1911) 160 Mo. App. 133, 141 S. W. 729, it was held that the statute was self-enforcing and hence in case of corporate shares it was not necessary that any act be done on the part of the corporation. R. S. 1909 § 2154 provides for the recording of such decrees as affect real estate; if no such record be made, a bona fide purchaser of the land is protected; Heffernan v. Ragsdale (1906) 199 Mo. 375, 97 S. W. 890. See Otto v. Young (1909) 227 Mo. 193, 217, 127 S. W. 9 where the court in a specific performance case decreed that the title of defendants be vested in the plaintiff and that a copy of the decree be recorded. ^R. S. 1909 § 3071 provides for the conveyances of land of persons not sui juris where such land is needed by a railroad company. § 13. Enjoining acts abroad; suits abroad. 7. The Wabash Western Ry. Co. v. Siefert (1890) 41 Mo. App. 35. In Wyeth Hardware & Mfg. Co. v. Lang (1893) 54 Mo. App. 147, relief was refused because tlie plaintiff failed to show that it would not be completely protected by the litigation in Kansas which sought, to hold the plaintiff as garnishee. § 14. Decrees involving affirmative acts abroad. 1. See State ex rel. v. Homer (1912) 164 Mo. App. 334, 356, 145 S. W. 497: "We cannot anticipate what decree or judgment the cir- cuit court of the city of St. Louis may make in the case. It will hardly undertake to operate the road in Illinois." MISSOUEI APPENDIX 647 § 15. Bule and discretion. Importance of discretion in equity. While at law the costs abide the event of the suit, the taxation of costs in equity cases is within the discretion of the court; Supreme Council V. Wldelet (1900) 85 Mo. App. 283. "Specific performance of a contract is not awarded by a court of equity as a matter of right, but rests In the sound discretion of the court and whether it will be granted or withheld in a given case must be determined by the facts of that case;" Dazey v. Laurence (1910) 153 Mo. App. 435, 441, 134 S. W. 85, and cases cited. And see Fishing Club v. Hackman (1913) 172 Mo. App. 549, 571, 156 S. W. 791. But see Sell v. West (1894) 125 Mo. 621, 631, 28 S. W. 969: "a court of equity has no more right to steer its course by crude notions of what Is right in a particular case than has a court of law." § 16. Equity will not be ousted because law courts have adopted an equitable remedy. 2. See Clark v. Henry (1845) 9 Mo. 336, 338 (iurisdlctlon over executors and administrators) ; Pratt v. Clark (1874) 57 Mo. 189, 192; Stewart v. Caldwell (1874) 54 Mo. 536, 539. 3. Harrington v. Utterback (1874) 57 Mo. 519, 521; Baldwin v. Dalton (1901) 168 Mo. 20, 25, 67 S. W. 599. Dingle v. Pollick (1892) 49 Mo. App. 479, 484 (equitable jurisdiction to set aside a judgment for fraud ousted by the giving of relief at law). And see Brandon V. Carter (1893) 119 Mo. 572, 581, 24 S. W. 1035. In Van Frank v. Brooks (1902) 93 Mo. App. 412, 425, 67 S. W. 688, it was held in the somewhat converse case that the plaintiff was not entitled to avail himself of an equitable remedy in the Fed- eral courts which had been devised after a state statute had been passed giving similar relief ' (intervention by railroad employees in foreclosure suit). § 18. Where there is a right there is a remedy. 5. Byers v. Weeks (1903) 105 Mo. App. 72, 76, 79 S. W. 485; the statute providing for the settlement of decedent's estates failed to provide for the appointment of an administrator de bonis non where the regular executor or administrator had made a final settlement and received his discharge; it was held that the next of kin was entitled to sue in equity for an accounting of the partnership estate of the firm composed of the decedent and the defendant: "The prin- ciple is clear enough that when no legal remedy exists, equity will afford one in the interests of justice. There being no legal remedy in the very nature of things equity affords a reinedy." 648 MISSOTJKI APPENDIX § 19. Equity regards substance rather than form. See Pomeroy v. Benton (1874) 57 Mo. sai, 551; St. L. & S. F. Ry. Co. V. Gracy (1894) 126 Mo. 472, 485, 29 S. W. 579 (mere irregularities in tax proceedings no basis for injunction.) § 20. Equity regards that as done which ought to he done. 1. Frederick v. Frederick was cited by the court in Martin v. Martin (1913) 250 Mo. 539, 550, 157 S. W. 575, in which the court held that the plaintiff was entitled to inherit from the decedent because the latter had 'contracted with the plaintiff's mother to adopt the plaintiff, who was her illegitimate son. See also Thomas v. Maloney (1909) 142 Mo. App. 193, 197, 126 S. W. 522. And see Police Relief Ass'n v. Tlerney (1905) 116 Mo. App. 447, 470, 91 S. W. 968 where the maxim was used to make effective the designation of a beneficiary by a member of a mutual benefit association where the rules of the association had not been strictly complied with. 6. See also Kinney v. Matthews (1879) 69 Mo. 520, 523 (if for value one gives a mortgage in fee but has only a life estate, the mortgage is effectual in equity to bind the life estate. § 24. Equity delights to do justice and not by halves. 1. Clem V. German Ins. Co. (1888) 29 Mo. App. 666, 675 (bill to reform a fire insurance policy: loss having occurred, the equity court gave a decree for the amount of the loss); Quest v. Johnson (1894) 58 Mo. App. 54, 60; Holland v. Anderson (1866) 38 Mo. 55; Newman v. Friedman (1911) 156 Mo. App. 142, 152, 136 S. W. 251 (rescission refused because impossible to restore the property, and compensation awarded in lieu thereof); Paris v. Haley (1875) 61 Mo. 453, 462 (specific performance refused because terms of contract uncertain; equity gave rescission though plaintiff's remedy at law would have been ample); Trimble v. Bank (1897) 77 Mo. App. 477, 484; Newton v. Rebenack (1901) 90 Mo. App. 650, 670 (in suit for breach of trust, decree given that trustee make whole the trust fund and that the beneficiary who induced the breach of trust should re- imburse the trustee); Anable v. Land Co. (1910) 144 Mo. App. 303, 315, 128 S. W. 38; Hagan v. Bank (1904) 182 Mo. 319, 346, 81 S. W. 171 (redemption of pledged property impossible because it had passed into hands of a bona fide purchaser for value; the court gave a judgment for the value of the property sold, less the amount of the debt); Heron v. Peisch (1911) 240 Mo. 221, 225, 144 S. W. 413 (com- pensation in lieu of specific performance when land has been con- veyed to bona fide purchaser); Real Estate Sav. Inst. v. Collonious (1876) 63 Mo. 290, 295 (sale on partition); McDaniels v. Lee (1866) 37 Mo. 204, 207; Purdy v. Gault (1885) 19 Mo. App. 191, 202; Growney V. O'Donnell (1917) 272 Mo. 167, 179, 198 S. W. 863 (plaintiff asked MISSOURI APPENDIX 649 that deed be cancelled as a cloud upon her title to 120 acres; partial relief given by cancelling it as to 20 acres). "But the doctrine does not go so far as to say that a court of equity having acquired jurisdiction of one cause of action will extend its jurisdiction to embrace other subjects of litigation of different character and between different parties;" Fulton v. Fisher (1911) 239 Mo. 116, laS, 143 S. W. 483. Ryan v. Dunlap (1892) 111 Mo. 610, 620, 20 S. W. 29 (suit by purchaser ' for specific performance; relief denied because of inability of vendor to give title; purchaser entitled to damages where suit was commenced in good faith without knowledge of such inability); Mississippi Valley Trust Co. v. McDonald (1898) 146 Mo. 467, 479, 48 S. W. 483 (reformation of deed of trust and foreclosure). § 26. Equity follows the law. 1. Capen v. Garrison (1904) 193 Mo. 335, 341, 92 S. W. 368; Dazey v. Laurence (1910) 153 Mo. App. 435, 441, 134 S. W. 85. And injunctions properly issue against a party, not against a court; Vitt V. Owens (1868) 42 Mo. 512, 514. 2. Morris v. Parry (1904) 110 Mo. App. 675, 683, 85 S. W. 620 (equity will not attempt to force the admission of incompetent tes- timony) ; Powell v. Adams (1889) 98 Mo. 598, 605, 12 S. W. 295 (the better practice in equity cases tried by the court to admit all evi- dence not clearly inadmissible, even tho the court may later exclude it, so that any difference of opinion between the trial and appellate courts may not necessitate delay and expense of a new trial) ; Henry v. Sneed (1889) 99 Mo. 407, 421, 12 S. W. 663 (equity will not allow a party to take advantage of his own wrong in urging the rule re- specting confidential communications between a husband and wife in order to prevent the proof of the party's fraud). 4. Boyd V. Buchanan (1913) 176 Mo. App. 56, 61, 162 S. W. 1075. See also Stevens v. De La Vaulx (1901) 166 Mo. 20, 27," 65 S. W. 1003, (equity court bound by statute of wills) ; Wabash Ry. Co. v. Bowring (1903) 103 Mo. App. 158, 167, 77 S. W. 106 (equity will usually follow the exemption statutes); Miller v. Bernecker (1870) 46 Mo. 194 (no relief against failure of plaintiff's counsel to assign errors in appealing case at law). § 27. Between equal equities the law will prevail. 1.' Gallagher v. Hunter (1838) 5 Mo. 507, 510. § 28. Between equal equities the first in order of time prevails. See also Davis v. Briscoe (1883) 81 Mo. 27, 35 (the equity of re- formation prior in time to the equity of a creditor to have a con- veyance set aside as being in fraud of creditors) ; Sensenderfer v. Kemp (1884) 83 Mo. 581, '588. 650 MISSOURI APPENDIX § 29. He who seeks eoLuity must do eauity. 1. Bradshaw v. Yates (1877) 67 Mo. 221, 233 (deed set aside for undue influence; plaintiff required to pay defendant for increase in value caused by improvements). See Lanyon v. Chesney (1904) 186 Mo. 540, 555, 85 S. W. 568: if the defendant purchaser wishes to take advantage of the failure of the vendor to tender a proper deed, he must offer to restore possession of the land. In Steckman v. Harber (1893) 55 Mo. App. 71, 80, the plaintiff was held entitled to subrogation against the defendants only upon condition that the plaintiff should do equity by conveying to the defendants land upon which the plaintiff had secretly foreclosed the mortgage and which they had bought in at the foreclosure sale. See also Phillips v. Phillips (1872) 50 Mo. 603, 608; Corby v. Bean (1869) 44 Mo. 379 (before being entitled to reformation of a mortgage given to secure a usurious note plaintiff must produce the note and rebate the usury); Rutherford v. Williams (1867) 42 Mo. 18, 35 (equity will aid a borrower at usurious interest only upon condition of his paying what is really due); Long v. Abstract and Loan Co. (1913) 252 Mo. 158, 169, 158 S. W. 305 (do.); Cravens v. Moore (1875) 61 Mo. 178, 184; Kline v. Vogel (1886) 90 Mo. 239, 245, 1 S. W. 733, 2 S. W. 408; Woodward v. Mastia (1891) 106 Mo. 324, 362, 17 S. W. 308. Smith v. Estes (1880) 72 Mo. 310, 314; Johnson v. Buer (1892) 115 Mo. 366, 379, 21 S. W. 800 (before being entitled to enjoin col- lection of a general tax plaintiff must tender sum justly due) ; Black V. Early (1907) 208 Mo. 281, 311, 106 S. W. 1014 (do). It is not necessary that the plaintiff should in his petition offer to do equity, because the court may make a conditional decree; Ruppel v. Mo. Guar. S. & B. Ass'n (1900) 158 Mo. 613, 622, 59 S. W. 1000, Burnham V. Rogers (1901) 167 Mo. 17, 24, 66 S. W. 970. In Nichols v. Russell (1909) 141 Mo. App. 140, 144, 123 S. W. 1032, the owner of land seeking to cancel an invalid tax title was not compelled to refund the taxes paid by the defendant because the latter had acted fraudulently in entering into an arrangement which eliminated competition among bidders at the tax sale. 3. See Shroyer v. Nickell (1874) 55 Mo. 264, awarding compen- sation to a defendant who lost in an ejectment suit. Estoppel: Evans v. Snyder (1877) 64 Mo. 516, 518; Guffey v. O'Reiley (1885) 88 Mo. 418, 429; Goode v. St. Louis (1892) 113 Mo. 257, 279, 20 S. W. 1048; Zehnder v. Stark (1912) 248 Mo. 39, 56, 154 S. W. 92. Where estoppel by silence is relied upon it must be shown that the party knew what his rights were; Harrison v. McReynolds (1904) 183 Mo. 533, 550, 82 S. W. 120. See also Hereford v. National Bank (1873) 53 Mo. 330, 333; Sensenderfer v. Smith (1877) 66 Mo. ' 80, 89; Highley v. Barron (1871) 49 Mo. 103, 107; Melton v. Smith (1877) 65 Mo. 315, 324. 5. Rice V. Bunce (1872) 49 Mo. 231, 235. MISSOURI APPENDIX 651 But the doctrine does not require that one who brings a bill to set aside a conveyance in fraud of creditors should reimburse the fraudulent grantee what the latter paid the debtor grantor for the land; Allen v. Berry (1872) 50 Mo. 90. Betterment Statute: Russell v. Def ranee (1867) 39 Mo. 506, 512; McClanahan v. Smith (1882) 76 Mo. 428, 431. § 30. He who comes into equity must come with clean hands. 3. Louthan v. Stillwell (1881) 73 Mo. 492, 500 (contract in violation of the bankrupt law). In Wilson v. Mercantile Co. (1912) 167 Mo. App. 305, 326, 149 S. W. 1156, the court denied relief when it seems that it should merely have required the plaintiff to do equity. 4. Feld v. Roanoke Investment Co. (1894) 123 Mo. 603, 27 S. W. 635 (plaintiff not entitled to rescission of contract made by him with defendant corporation on ground that it was ultra vires); Heath v. Tucker (1910) 153 Mo. App. 356, 373, 134 S. W. 572 (cestui que trust had previously refused rescission of contract with the trustee and now the trustee has changed his position) ; Ryan v. Miller (1911) 236 Mo. 496, 522, 139 S. W. 128 (plaintiff barred because he knew the defendant corporation expected to engage in gambling) ; Modern Horse Shoe Club v. Stewart (1912) 242 Mo. 421, 423, 146 S. W. 1157. 5. McNear v. Williamson (1901) 156 Mo. 358, 365, 66 S. W. 160; Stillwell V. Bell (1912) 248 Mo. 61, 65, 154 S. W. 85; Taylor v. Von Schraeder (1891) 107 Mo. 206, 229, 16 S. W. 675 (dictum). See also Morrison v. Juden (1898) 145 Mo. 282, 300, 46 S. W. 994 (property transferred by plaintiff in order to escape punishment for leasing it for a brothel); Ward v. Hartley (1903) 178 Mo. 135, 139, 77 S. W. 302 (partnership money used unlawfully to pay election expenses of one partner); Gilmore v. Thomas (1913) 252 Mo. 147, 155, 158 S. W. 577 (plaintiff executor bought at his own sale and had title conveyed to his son); Peltzer v. Gilbert (1914) 260 Mo. 500, 524, 169 S. W. 257 (tax payers denied injunction against paying money out of county treasury because real motive was to aid the accused in a criminal case) ; Marre v. Marre (1914) 184 Mo. App. 198, 212, 168 S. W. 636 (suit to annul a marriage); Miller v. Kelsay (1905) 114 Mo. App. 598, 604, 90 S. W. 395 (plaintiffs barred of subrogation because th^ey had attempted to defraud defendant of his homestead rights); Little v. Cunningham (1905) 116 Mo. App. 545, 550, 92 S. W. 734 (injunction against call bell and private telephone denied because after verdict and before decree the plaintiffs sought the same relief by force); Primm v. White (1911) 162 Mo. App. 594, 606, 142 S. W. 802; Houtz v. Hellman (1910) 228 Mo. 655, 671, 128 S. W. 1001 (specific performance denied because plaintiff was a straw man, the real purchaser keeping concealed). In Versteeg v. Wabash R. R. (1913) 250 Mo. 61, 79, 156 S. W. 689 both plaintiff and defendant had unclean hands. That the in- 652 MISSOUBI APPENDIX equitable conduct of the plaintiff must affect the equitable rights which the plaintiff seeks to enforce, see Johnson v. Ewald (1899) 82 Mo. App. 276, 285, Hingson v. Montgomery (1906) 121 Mo. App. 451, 462, 97 S. W. 202; Baum Mercantile Co. v. Levin (1915) 189 Mo. App. 237, 251, 174 S. W. 442. And where the alleged inequity consisted in overvaluing his own property, it is no bar to rescission of an ex- change of property because of the defendant's fraud, since the de- fendant was obviously not affected in any way thereby; Sohroeder V. Turpin (1913) 253 Mo. 258, 271, 161 S. W. 716. That the maxim will be applied by the court without its being pleaded see Houtz v. Hellman (1910) 228 Mo. 655, 671, 128 S. "W. 1001; Gilmore v. Thomas (1913) 252 Mo. 147, 156, 158 S. W. 577. § 31. Equity aids the vigilant. 2. Kline v. Vogel (1886) 90 Mo. 239, 248, 1 S. W. 733, 2 S. W. 408 (plaintiff barred from having sale under deed of trust set aside by a delay of a less period than that fixed by the statute of limita- tions) ; and see Pike v. Martindale (1886) 91 TWo. 268, 285; 1 S. W. 858; Hand v. St. Louis (1900) 158 Mo. 204, 213, 59 S. W. 92. That laches need not be pleaded but that the court may of its own motion deny relief on that ground, see Dexter v. McDonald (1906) 196 Mo. 373, 403, 95 S. W. 359 (death of other party an element in determining laches); Stevenson v. Smith (1905) 189 Mo. 447, 466, 88 S. W. 86. That the Statute of Limitations now bars equitable as well as legal actions in Missouri, see R. S. 1909 § 1899; but where the relief sought is based upon an equitable right, a court of equity may refuse relief when there has been laches, even tho the period may not have run; Loomis v. Mo. Pac. Ry. Co. (1901) 165 Mo. 469, 495, 65 S. W. 967; Kline v. Vogel (1886) 90 Mo. 239, 248, 1 S. W. 733, 2 S. "W. 408; Hoester v. Sammelmann (1890) 101 Mo. 619, 624, 14 S. W. 728; Kroenung v. Grehr (1892) 112 Mo. 641, 649, 20 S. W. 611 (laches not usually imputable to infants); White v. Pendry (1887) 25 Mo. App. 547; Burgess v. St. Louis Ry. (1889) 99 Mo. 496, 508, 12 S. W. 1050; Troll V. St. Louis (1914) 257 Mo. 626, 661, 168 S. W. 167 (suit to quiet title). In the following cases the plaintiff was barred by delay: Morris V. Parry (1904) 110 Mo. App. 675, 686, 85 S. W. 620 (delay of ten years, suit to remove cloud on title); Bucher v. Hohl (1906) 199 Mo. 320, 330, 97 S. W. 922 (married woman barred by laches tho not affected by statute of limitations) ; Perry v. Craig (1834) 3 Mo. 516, 527 (statute of limitations applied by way of analogy to pledgor's right to redeem); Smith v. Washington (1882) 11 Mo'. App. 519, 525, 88 Mo. 476 (delay coupled with action by other party) ; Reel v. Ewing (1879) 71 Mo. 17, 29 (suit to compel redemption barred by two years delay during panic of 1873); Lenox v. Hanson (1885) 88 Mo. klSSOUEI APPENDIX 663 491, 497 (barred from relief for fraud by delaying suit till after the death of the person against whom fraud Is charged); Murdock V. Lewis (1887) 26 Mo. App. 234, 244 (delay of three years coupled with evidence of acquiescence); Hatcher v. Hatcher (1897) 139 Mo. 614, 626,. 39 S. W. 479 (suit to set aside deed for fraud barred by acquiescence for some years during which the land Increased greatly in value); Miller v. Kelsay (1905) 114 Mo. App. 598, 604, 90 S. W. 395 (plaintiffs barred of subrogation because they had attempted to defraud defendant of his homestead rights); Heath v. Tucker (1910) 153 Mo. App. 356, 373, 134 S. W. 572 (cestui que trust barred of res- cinding contract with trustee because he had previously refused rescission and later the trustee changed his position) ; Davis v. Petty (1898) 147 Mo. 374, 385, 118 S. W. 944 (large increase in value of land). In the following cases the plaintiff was not barred by delay: Haarstlck v. Gabriel (1906) 200 Mo. 237, 243, 98 S. W. 760 (delay of thirty years no bar to suit to quiet title where land had not been in the actual possession of any one); Blackford v. Heman Con- struction Co. (1908) 13^ Mo. App. 157, 112 S. W. 287 (delay of two years no bar to getting injunction against a nuisance). § 34. Classification of equity. 7. In Gill V. Cramer Safe Co. (1913) 170 Mo. App. 478, 483, 156 S. W. 811 the court seems to assume that where the primary right is legal the jurisdiction of equity is exclusive If the remedy is ex- clusively equitable. Chaptek II. Specific Peefoemance of Conteacts. A. In Gbnebal. § 37. Specific performance not exclusively an equitable remedy in all jurisdictions. In Potato Growers' Ass'n v. Produce Co. (1914) 185 Mo. App. 1, 5, 171 S. W. 584, the court seemed to say that there was no right at common law to the price unless the title had passed. But in Dehner V. Miller (1912) 166 Mo. App. 504, 510» 148 S. W. 953 the court seems to hold squarely that a vendor may recover the price (of baled straw) where the purchaser refuses to accept title; see also Koenig V. Truscott etc. Co. (1910) 155 Mo. App. 685, 700, 135 S. W. 514, where stress was laid upon the fact that the boat ordered by the defendant had been entirely completed before notice of defendant's repudiation. That the vendor of land cannot recover the price at law unless title has passed, see Scudder v. Waddingham (1879) 7 Mo. App. 26, 28, See also Ridgley v. Stillwell (1859) 28 Mo. 400,^404 (justice of the peace has no jurisdiction to award specific performance). 654 MISSOURI APPENDIX § 40. Alternative performance — liquidated damages — ^penalty. 2. Wills V. Forester (1909) 140 Mo. App. 321, 331, 124 S. W. 1090. § 41. The requirement of certainty. 1. Huse & Loomis Ice Co. v. Heinze (1890) 102 Mo. 245, 250, 14 S. W. 750; Lapham v. Dreisvogt (1889) 36 Mo. App. 275, 281 (uncer- tainty in the evidence) ; Huff v. Shepard (1874) 58 Mo. 242, 247 (terms uncertain — "such terms as may be agreed upon.") See also Wendover v. Baker (1893) 121 Mo. 273, 290, 25 S. W. 918. In Shelton V. Church's Admrs. (1847) 10 Mo. 775, 777 relief was refused because there was no contract to convey any specific tract of land but any land which might be owned by the vendor five years from 'the date of the contract, of such value as would make the lands formerly sold equal in value to $3200. 3. Chouteau v. Union Ry. Co. (1886) 22 Mo. App. 286, 298; Mastin V. Halley (1875) 61 Mo. 196, 201 (contract to build). 4. Melville v. Waring (1911) 159 Mo. App. 395, 399, 141 S. W. 12; (contract to convey letters patent) ; Hill v. Cheatham (1895) 129 Mo. 71, 75, 31 S. W. 261; Kirk v. Middlebrook (1906) 201 Mo. 245, 289, 100 S. W. 450; Underwood v. Underwood (1871) 48 Mo. 527, 530; Collins v. Harrel (1908) 219 Mo. 279, 301, 118 S. W. 432; Porrister v. Sulli- van (1910) 231 Mo. 345, 373, 132 S. W. 722; Oliver v. Johnson (1911) 238 Mo. 359, 373, 142 S. W. 274; Sutton v. Shipp (1877) 65 Mo. 297; Tedford v. T'rimble (1885) 87 Mo. 226; Teats v. Flanders (1893) 118 Mo. 660, 24 S. W. 126 (contract to adopt); Alexander v. Alexander (1899) 150 Mo. 579, 597, 52 S. W. 256; Dawkins v. Griffin (1905) 195 Mo. 430, 437, 94 S. W. 525; Land & Lumber Co. v. Blackman (1906) 202 Mo. 296, 308, 106 S. W. 1049 (no land specified) ; Lambert v. R. R. (1908) 212 Mo. 692, 723, 111 S. W. 550; Davis v. Wheeler (1908) 215 Mo. 605, 114 S. W. 1199 (land not described) ; McQuinn v. Moore (1909) 225 Mo. 36, 46, 123 S. W. 858. See also Wallace v. Figone (1904) 107 Mo. App. 362, 369, 81 S. W. 492 (terms of the sale to be fixed later); Paris v. Haley (1875) 61 Mo. 453, 461 (suit by vendor); Cherbonnier v. Cherbonnier (1891) 108 Mo. 252, 265, 18 S. W. 1083 (contract vague and indefinite) ; Strange v. Crowley (1886) 91 Mo. 287, 294, 2 S. W. 421; Veth v. Glerth (1887) 92 Mo. 103, 4 S. W. 432; 'Mo. Pac. Ry. Co. v. McCarty (1888) 97 Mo. 214, 222, 11 S. W. 52; Rogers v. Wolfe (1890) 104 Mo. 1, 10, 14 S. W. 805; Taylor v. Van Schraeder (1891) 107 Mo. 206, 225; 16 S. W. 675; Kinney v. Murray (1902) 170 Mo. 674, 700, 71 S. W. 197 (oral contract to devise); Goodin v. Goodin (1902) 172 Mo. 40, 48, 72 S. W. 502; McKee v. Higbee (1903) 180 Mo. 263, 308, 79 S. W. 407 (contract to devise—' letter lost); Russell v. Sharp (1905) 192 Mo. 270, 285, 91 S. W. 134; MISSOUEI APPENDIX 655 Loewenberg v. DeVoigne (1909) 145 Mo. App. 710, 123 S. W. 99 (con- tract to form a corporation); Walsh v. St. Louis Trust Co. (1910) 148 Mo. App. 179, 191, 127 S. W. 645 (if certain in terms, defects of form not a bar); Lackawanna Coal & Iron Co. v. Long (1910) 231 Mo. 605, 611, 133 S. W. 35. B. Afpiemative Contracts. I. Contract for sale and, purchase of interests in land. § 42. Hard and fast rule as to inadeoiuacy of damages. 4. Shelton v. Church's Admin's (1847) 10 Mo. 775, 777 (semhle). 5. Klrkpatrick v. Wiley (1906) 197 Mo. 123, 172, 95 S. W. 213; Hardy v. Matthews (1868) 42 Mo. 406, 410. 10. In Bunch v. Wheeler (1907) 210 Mo. 622, 630, 109 S. W. 659, where a grantor In a deed reserved a right of way over the land conveyed, the grantee was decreed to indicate the location of the passage way and to erect gates at each terminus. Though a con- tingent interest is not assignable at law, equity will compel the vendor to assign it after it becomes vested; Lackland v. Nevins (1877) 3 Mo. App. 335, 338. II. Contracts relating to property other than land. § 44. Ordinary chattels. 1. See O'Neill v. Webb (1898) 78 Mo. App. 1, 5. 11. That equity will not enforce only a part of an entire con- tract see Hill v. Rich Hill Coal Mining Co. (1893) 119 Mo. 9, 27 29 S. W. 223 (two tracts of land covered by one contract). § 45. Defendant vendor execution proof or insolvent. 1. In Lasar v. Baldrldge (1888) 32 Mo. App. 362, 366 there Is a dictum that the mere insolvency of a defendant furnishes no in- dependent ground of equity jurisdiction in any case. § 46. Chattels haying sentimental value — unique chattels. 6. See Johnson v. Corley's Adm's (1913) 175 Mo. App. 223, 235 157 S. W. 876 (contract of stenographer to file original transcript with referee). § 47. Unique chattels continued — patents and copyrights. 1. Electric Secret Service Co. v. Gill Alexander Mf'g Co. (1894) ^125 Mo. 140, 156, 28 S. W. 486; Butler v. Murphy (1904) 106 Mo. App. 287, 301, 80 S. W. 337, (contract to assign half interest In patent if plaintiff would form a company to own and operate the patented device). 656 MISSOURI APPENDIX § 48. Specific performance to the seller — mutuality. 3. Dover v. Kennerly (1866) 38 Mo. 469; Paris v. Haley (1875) 61 Mo. 453, 457. 141/2. See Otto V. Young (1909) 227 Mo. 193, 219, 127 S. W. 9 (an action for damages filed after a suit for specific performance and dismissed before jifdgment is no bar to specific performance) ; McCall V. Atchley (1913) 256 Mo. 39, 49, 164 S.. W. 593 (petition with two counts, one asking for specific performance and the other for damages, upon the same facts, is defective). III. Specific performance given because damages at law are conjectural. § 49. In general. See also Springfield Ry. Co. v. Springfield (1885) 85 Mo. 674, 677 (franchise contract with city) ; Hall v. Getman (1906) 121 Mo. App. 630, 637, 97 S. W. 607 (personal services of peculiar value rendered by the plaintiff in taking care of infirm, aged persons). § 51. Contracts to give security. - 2. Even if the specified property is not in esse; Rutherford v. Stewart (1883) 79 Mo. 216, 217 (brick to be manufactured) ; Prance V. Thomas (1885) 86 Mo. 80, 84 (subseauently acquired hotel fur- niture). 5. Vanstone v. Goodwin (1890) 42 Mo. 39, 46; but see Birch Tree State Bk. v. Brown (1910) 152 Mo. App. 589, 598, 133 S. "W. 860 (agreement to pledge stock in the hands of a prior pledgee held to create an equitable lien). § 52. Contracts to insure. 1. Hawthorne v. Brooklyn Life Ins. Co. (1878) 5 Mo. App. 73. 4. Baile v. St. Joseph etc. Co. (1881) 73 Mo. 371, 384. IV. To avoid irreparable injury to the plaintiff. § 57. Shares of stock. 1. Dennison v. Keasby (1906) 200 Mo. 408, 412, 98 S. W. 546 (none of the stock on the market); Baumhoffl v. St. Louis etc. R. R. (1907) 205 Mo. 248, 263, 104 S. W. 5 (value not provable) ; Wood v. Kansas City Telephone Co. (1909) 223 Mo. 537, 551, 123 S. W. 6 (stock not listed on the market and closely held) ; Whiting v. Enterprise Land & Sheep Co. (1915) 265 Mo. 374, 380, 177 S. W. 589. 4. In O'Neill v. Webb (1898) 78 Mo. App. 1, 5, the fact that the shares contracted for would- give the plaintiff control of the corpora- tion seems to have been the sole basis for giving relief; while in . MiasauEi APPENDIX 657 Hagan v. Continental Bank (1904) 182 Mo. 319, 335, 81 S. W. 171, the stock also had no market value. In Wilson v. Torchon etc. Co. (1912) 167 Mo. App. 305, 149 S. W. 1156, a contract by a corporation to repurchase stock sold to it by the plaintiff was held not to be specifi- cally enforcible because it was an ultra vires contract. v. Contracts for continuous performance. § 58. Difficulty of supervision. 4. In Chouteau v. Union Ry. Co. (1886) 22 Mo. App. 286, 298 there is a dictum that specific performance will not be given where the duties sought to be enforced are continuous, even tho clear and well defined. In Sedalia Brewing Co. v. Sedalia Water Works Co. (1888) 34 Mo. App. 49, the court gave specific performance of an agreement to supply water by a decree negative in form, following Lane v. New- digate (1804) 10 Ves. 192, In this respect. That there is no magic in such a form of decree is now recognized in England and should be recognized everywhere. § 59. Contracts to build. 3. Powell V. Santa Fe R. R. (1908) 215 Mo. 339, 353, 114 S. W. 1067 (defendant railroad compelled to erect an undergrade crossing because of great hardship on the plaintiff); Hubbard v. Kansas City etc. R. R. (1876) 63 Mo. 68, 71 (establishing depot) ; Blair v. St. Louis etc. R. R. (1901) 92 Mo. App. 538, 557 (construction and maintenance of passway for cattle and a water gate) . In Owens v. Carthage etc. R. R. (1904) 110 Mo. App. 320, 85 S. W. 987 the court pointed out the distinction between a building to be erected on the plaintiff's land and a building to be erected on the defendant's land. In Mastin V. Halley (1875) 61 Mo. 196, 201 the plaintiff failed because the terms of the contract to erect a house were not certain enough). In Sloan V. Wilkinson (1886) 21 Mo. App. 562 specific performance of a contract by a lessee to erect a house and set out a hedge fence and orchard was refused. In Pomeroy v. FuUerton (1892) 113 Mo. 440, 457, 21 S. W. 19 the court held that although a promise by a pur- chaser to erect houses of brick or stone or brick and stone, of good substantial character and condition was not specifically enforcible because too indefinite yet it was no defense to a suit for specific per- formance brought by the purchaser, the contract providing that the covenant be placed in the deed, with clause of forfeiture for non fulfillment. T'his is sound because with such a covenant the vendor woTild be adequately protected. See post § 181. Bq.— 42 658 MISSOXTEI APPENDIX § 60. The public interest a possible element. 3. In Chouteau v. Union Ry. (1886) 22 Mo. App. 286, 300 the , public interest against giving specific performance was discussed but was not made the basis of the decision. § 63. Contracts for personal service. J. See Beach v. Bryan (1910) 155 Mo. App. 33, 50, 133 S. W. 635. 6. In Jones v. Williams (1897) 139 Mo. 1, 36, 39 S. W. 486, 40 S. W. 353, though the decree was negative in form it was affirmative in substance, the contract being for employment as manager of the defendant's newspaper; the court emphasized the fact that since the plaintiff had a reputation to sustain, damages were wholly inadequate. In State ex rel. v. Lucas (1911) 236 Mo. 18, 30, 139 S. W. 348, an in- junction was given against discharging employees of the city water- works; this obviously amounted to an affirmative decree in substance. Contracts to adopt: Personal services may or may not be involved in contracts to adopt; in Healey v. Simpson (1892) 113 Mo. 340, 347, 20 S. W. 881 a written contract to adopt was enforced by the adopted parson's heirs against the representatives of the adopting person, the adopted person having fully performed, the court saying that dam- ages for having been taken from her family were not adequate. Even where oral, such contracts are usually enforced in Missouri just as are contracts with adults for personal services in exchange for a promise to devise; see post § 137. See Fisher v. Davidson (1917) 271 Mo. 195, 208, 195 S. W. 1024 (oral contract made with ■four year old plaintiff's grandparents); Thomas v. Maloney (1909) 142 Mo. App. 193, 197, 126 S. W. 522 (will failed to mention plaintiff) ; Buck V. Meyer (1916) 195 Mo. App. 287, 190 S. W. 997 (contract to adopt natural daughter enforced against intestate decedent's estate). Apparently the plaintiff is not entitled to any greater rights than the adopting parent's own child and hence may be expressly dis- inherited; Sharkey v. McDermott (1884) 16 Mo. App. 80, 87. In Beach V. Bryan (1910) 165 Mo. App. 33, 60, 147 S. W. 1094 suit for specific performance was brought by the adopting parents against the mother of the child but relief was refused because of failure of proof of the contract. VI. Miscellaneous Gases. § 64. Awards — Contracts for arbitration or valuation. 3. King V. Howard (1858) 27 Mo. 21, 25; St. Louis v. St. Louis Gaslight Co. (1879) 70 Mo. 69, 104 (defendant refused to appoint arbitrators); Bales v. Gilbert (1900) 84 Mo. App. 675, 679; Ferrell v. Ferrell (1913) 253 Mo. 167, 173, 161 S. W. 719. In Arnot v. Alexander (1869) 44 Mo. 25, 27 where the defendant lessee agreed to give "as MISSOUEI APPENDIX 659 much as any other responsible party will agree to give" specific performance was decreed at the market value. And in Hug v. Van Burkleo (1874) 58 Mo. 202 the court refused specific performance but retained jurisdiction on the ground of an accounting for the value of improvements. 5. Black V. Rogers (1882) 75 Mo. 441, 449 (Settlement of dis- puted boundary line a mere incident). 6. Str'ohmeier v. Zappenfield (1877) 3 Mo. App. 429, 434. In Blddle V. Ramsey (1873) 52 Mo. 153, 158, the bill alleged that the de- fendant always appointed partial assessors so that it was impossible to get a unanimous decision and had occupied the premises for several years without paying any rent; the bill was properly held good on demurrer on the ground of fraud and hardship but the court also mentioned account and avoiding a multiplicity of suits. In Biddle V. McDonough (1884) 15 Mo. App. 532, 537 where the contract ex- pressly provided for successive appointments of appraisers till the valuation should be arrived at, equity refused relief where only two efforts had been made to get valuers who would act. See R. S. 1909, §§ 868-895 on the subject of arbitration. C. Negative Contracts. I. Defendant's promise entirely negative. § 67. Covenant not to sue — circuity of action. 1. See Russell v. Berkestresser (1883) 77 Mo. 417, 426 (agree- ment to cancel notes in consideration that maker surrender the land for which the notes were given). § 68. Promise not to compete with the plaintiff. 1. Gill V. Pavrie (1884) 82 Mo. 156, 157 (hardware business) ; Gordon v. Mansfield (1900) 84 Mo. App. 307, 373 (medical practice). In McGinnis v. Hardgrove (1912) 163 Mo. App. 20, 26, 145 S. W. 512, the plaintiff sued at law and found much diflSculty in proving the amount of damage he had sustained. See also Counts v. Medley (1912) 163 Mo. App. 546, 146 S. W. 465. § 69. Promise not to reveal trade secre'ts. 2. The diflBculty of estimating damages was the ground for giving relief in Pope-Turnbo v. Bedford (1910) 147 Mo. App. 692, 698, 127 S. W. 426 where the defendant had agreed not to mention having learned a particular method of treating the hair except In connection with the use of the plaintiff's remedies. //. Defendant's undertaking partly affirmative. 660 MISS0X7EI APPENDIX § 73. (1) Affirmative promise specifically enforcible. 2. If a purchaser cannot compel his vendor to convey to him, he can not enjoin him from conveying to a third person: Lackawanna Coal & Iron Co. v. Long (1910) 231 Mo. 605, 133 S. W. 35. § 78. (6) Lack of mutuality of remedy— lack of mutuaUty of perform- ance. I. In Jones v. Williams (1897) 139 Mo. 1, 36, 39 S. W. 846, 40 S. W. 353, and in State ex rel v. Lucas (1911) 236 Mo. 18, 30, 139 S. W. 348, employees were given relief which was affirmative in substance tho only negative in form. See ante § 62, note 6. § 80. (7) An express negative promise. II. Form of decree: there Ure some Missouri cases in which decrees affirmative in substance were put in negative form, the court apparently forgetting temporarily that equity looks at the substance not the form; see Sedalia Brewing Co. v. Sedalia Water Works Co. (1888) 34 Mo. App. 49, 55, citing Lane v. Newdigate. § 81. (8) The defendant's services were unique. 4. Jaccard Jewelry Co. v. O'Brien (1897) 70 Mo. App. 432, 436 (relief denied because services of jewelry salesman not unique). , D. Relief Fob and Against Third Persons. § 82. Assignability of contracts at law and in equity. 5. But P's assignee gets no greater right. In Ficklin v. Stephen- son (1863) 33 Mo. 341, 346, A contracted to sell to B; B agreed to sell to C who paid in full, receiving a bond for a conveyance. A then conveyed to B, B giving a deed of trust for a part of the purchase money still unpaid. C then sued for specific performance but it was held that C got no greater rights than his assignor and could get relief only by paying the rest of the purchase money which B owed A. The assignee of V has a right to specific performance against P; Randolph v. Wheeler (1904) 182 Mo. 145, 155, 81. S. W. 419. § 83. Creation of a property right in purchaser. 5. Blivis V. Franklin Inv. Co. (1917) 197 Mo. App. 369, 375, 194 S. W. 1078 (purchaser bound to pay street assessment levied after date of giving bond for title). And if in possession at the time of assessment of ordinary taxes, he must pay them; Anderson v. Harwood (1891) 47 Mo. App. 660, 664. A purchaser in possession can main- tain trespass; Watts v. Loomis (1883) 81 Mo. 236, 240; but if not in possession he cannot; Mo. Lumber & Mining Co. v. Zeitinger (1891) 45 Mo. App. 114, 118. MISSOURI APPENDIX 661 I In Long V. Joplin Mining Co. (1878) 68 Mo. 422, 429 a purchaser at an administrator's sale who had paid the full purchase price was held to acquire, upon approval of the sale, an equitable interest which was a sufficient defense to an action of ejectment brought by the grantee of the heirs of the deceased. 8. But the purchaser does have some fiducia)ry obligation; thus, he is not entitled to buy in an outstanding title and use it against his vendor; Ash v. Holder (1865) 36 Mo. 163, 167. § 86. Transfer of land by vendor or lessor. 1. Truesdell v. Callaway (1840) 6 Mo. 605, 621; Thompson v. Henry (1885) 85 Mo. 451, 456; Barksdale v. Brooks (1879) 76 Mo. 197, 201; Eggert v. Heer Dry Goods Co. (1890) 102 Mo. 512, 519, 15 S. W. 65; Lemp Fishing etc. Club v. Cottle (1913) 172 Mo. App. 574, 578, 156 S. W. 799 (defendant takes subject to palintiff's right to a renewal of his lease). And it makse no difference whether the holder of the legal title acted fraudulently or innocently; Hedrick v. Beeler (1892) 110 Mo. 91, 97, 19 S. W. 492 (issue of patent by U. S.). In Williams v. McGuire (1875) 60 Mo. 254, one McGuire contract- ed to convey to Phillips who paid the full purchase price of $1600 and received a title bond; Phillips later contracted to sell to Williams who paid the full purchase price of $2600 and received a deed from Phillips; McGuire refused to convey either to Phillips or Williams, but conveyed to D. and H. who took with notice. It was held that Williams was entitled to a conveyance and if Phillips had, before sell- ing to Williams, sold to one Taylor who later returned his deed with- out recording it, it was no defense, T'aylor making no claim. § 88. Bankruptcy of vendor; of purchaser. 6. Jasper Co. v. Tavis (1882) 76 Mo. 13, 17 (assignee of pur- chaser takes subject to the equities between the purchaser and the original vendor). § 89. Contract to devise or bequeath property. 1. Be;rg v. Moreau (1906) 199 Mo. 416, 436, 97 S. W. 901 (against devisee); Wright v. Tinsley (1860) 30 Mo. 389, 397; Sharkey v. Mc- Dermott (1887) 91 Mo. 647, 655, 4 S. W. 107. 2. Sutton V. Hayden (1876) 62 Mo. 101, 109; Alexander v. Alex- ander (1899) 150 Mo. 579, 597, 52 S. W. 256;- Koch v. Rebel (1888) 32 Mo. App. 103, 110 (or promisee may recover at law for damages against the executor) ; Sharkey v. McDermott, supra; Collins v. Harrell (1908) 219 Mo. 279, 285, 118 S. W. 432; Heron v. Peisch (1911) 240 Mo. 224, 225, 144 S. W. 413 (semble) ; Hiatt v. Williams (1880) 72. Mo. 214 (no bar that the intestate attempted to carry out Ills contract with plaintiff by making a will which was invalid). 662 MISSOURI APPENDIX ' 4. In Fuchs v. Fuchs (1891) 48 App. 18, 24, the right of specific performance with compensation had been cut off hy a transfer to a tiona fide purchaser; there was no right to complete performance because plaintiff's father had died after supporting the intestate for thirteen years, the intestate surviving thirteen months longer. 8. Bower v. Daniel (1906) 198 Mo. 289, 321, 95 S. W. 347 (con- tra9t to make mutual wills enforced). And see Wanger v. Marr (1913) 257 Mo. 482, 489, 165 S. "W. 1027, where specific performance of an agreement to make mutual wills failed because of lack of proof of the contract. In Scott v. Royston (1909) 223 Mo. 568, 587, 123 S. W. 454 the court said that the jurisdiction of the probate court is practically exclusive. § 90. Bight of a beneficiary of a contract to sue in equity. 8. Practically all the contracts for adoption are made with the child's parents but the child is entitled to enforce the promise; No- wack V. Berger (1895) 133 Mo. 24, 37, 34 S. "W. 489; "Wright v. Tinsley (1860) 30 Mo. 389, 397; Healey v. Simpson (1892) 113 Mo. 340, 347, 20 S. W. 881; Martin v. Martin (1913) 250 Mo. 539, 546, 157 S. W. 575 (contract with mother to adopt illegitimate child); Grantham v. Gossett (1904) 182 Mo. 651, 670, 81 S. W. 895; Sutton v. Hayden (1876) 62 Mo. 101, 109. § 91. Specific performance given to protect purchaser's right to se- curity. 2.- See Majors v. Maxwell (1906) 120 Mo. App. 291, 297, 96 S. W. 731. § 93. Kights in another's land at common law. In Baker v. St. Louis (1879) 7 Mo. App. 429, 433, 75 Mo. 671 there was a covenant to reconvey when the land should cease to be used for a market; apparently this ran at law and was enforcible in equity by the transferee of the dominant tenement. § 94. Bights in another's laud in equity. 3. In Missouri the more common term is "equitable easements;" Miller v. Klein (1913) 177 Mo. App. 557, 573, 160 S. W. 562; King V. Union Trust Co. (1909) 226 Mo. 351, 365, 126 S. W. 415. See Zinn V. Sidler (1916) 268 Mo. 680, 689, 187 S. W. 1172 the court said: "to create the limitation on the fee herein contended for, a covenant must have been created, and it is not material whether it is termed an equitable easement * * * or a servitude or a restrictive covenant." § 96. Beal basis for plaintiff's right in Tulk v. Moxhay. \ 1. See Sanders v. Dixon (1905) 114 Mo. App. 229, 252, 89 S. W. 577. 4. Hall V. Webster (1879) 7 Mo. App. 56, 62 (cow stable en- joined though no damage to the plaintiff, whose residence waa a MISSOURI APPENDIX 663 quarter of a mile away). See also Kenwood Land Co. v. Hancock In- vestment Co. (1913) 169 Mo. App. 715, 722, 155 S. W. 861; Sanders V. Dixon (1905) 114 Mo. App. 229, 240, 89 S. W. 577. § 97. Who are bound liy equitable servitudes. 2. Miller -v. Klein (1913) 177 Mo. App. 558, 160 S. W. 562 (ap- parently record notice) ; Semple v. Schwarz (1908) 130 Mo. App. 65, 72, 109 S. W. 633. 3. Hisey v. Presbyterian Church (1908) 130 Mo. App. 566, 574, 109 S. W. 60. § 98. Who may enforce equitable servitudes. 1. In Coughlin v. Barker (1891) 46 Mo. App. 54, 59, one Carpen- ter conceived the idea of establishing a residential section out of property owned by himself and several other proprietors; .while he had this idea in mind he sold some lots with restrictions; one of the lots later came to be owned by the plaintiff and the other by the de- fendant. It appeared that his intention in inserting the restrictions was to retain control of the mode of building with the view of carry- ing out the scheme of improvement; having been compelled to aban- don the scheme because unable to get the cooperation of some of the other proprietors, the restrictions were considered as having come to an end. 2. See Doerr v. Cobbs (1909) 146 Mo. App. 342, 350, 123 S. W. 547. 3. That the plaintiff need not show that the breach caused any damage to his own land in the vicinity, see Hall v. Webster (1879) 7 Mo. App. 56, 62: "The objection may be founded on the merest whim." See also Kenwood Land Co. v. Hancock Investment Co. (1913) 169 Mo. App. 715, 722, 155 S. W. 861; Sanders v. Dixon (1905) 114 Mo. App. 229, 240, 89 S. W. 577. § 101. The formality essential to the creation of equitable servitudes. 6. That in the absence of an express provision it becomes a question of construction for the court under all the circumstances, see Kitchen v. Hawley (1910) 150 Mo. App. 497, 503, 131 S. W. 142; Ken- wood Land Co. v. Hancock Inv. Co. (1913) 169 Mo. App. 715, 722, 155 S. W. 861. But where there is doubt as to whether a restriction was intended to be created it should be resolved in favor of the free use of property; Sanders v. Dixon (1905) 114 Mo. App. 229, 252, 89 S. W. 577; Whittaker v. Lafayette Realty Co. (1917) 197 Mo. App. 377, 387, 196 S. W. 109 (a line marked "building line" on the recorded plat was to apply only to such lots as the trustees might determine). In Reed v. Hazard (1915) 187 Mo. App. 547, 549, 174 S. W. Ill, a restriction that there were not to be more than two dwellings front- 664 MISSOURI APPENDIX ing on Thirty-ninth Street was construed to mean that no buildings except residences could he built there. In Zinn v. Sidler (1916) 268 Mo. 680, 187 S. W. 1172, one Wright had laid out and platted thirty-one acres in lots, acknowledged the plat and had it recorded; across the lots and blocks on this plat checked or broken lines were drawn designated as "building lines"; the court held that this was insuflficient evidence of Wright's intention to impose restrictions, evidently agreeing with the defendant's con- tention that the lines constituted merely a suggestion to the future owners of property in the addition. For a comment upon this case see 15 Law Series, Missouri Bulletin, 19. In Sanders v. Dixon (1905) 114 Mo. App. 229, 254,- 89 S. W. 577, a covenant in a deed that the grantee should not erect "more than one dwelling house on each lot" was held to be violated by the erection of a double two story building with a division wall running through it on the middle line from front to rear and from cellar to roof. But in Pank v. Eaton (1905) 115 Mo. App. 171, 178, 89 S. W. 586, a similar restriction was held not to be violated by the erection of a two-story flat. In Hisey v. ■ Presbyterian Church (1908) 130 Mo. App. 566, 574, 109 S. W. 60, a provision that "the covenants and restrictions referred to in this paragraph may be varied by said party of the first part as occasion may require" was held to entitle the vendor to make changes to suit changed conditions, such as the cost of building, 'but not to annul the restriction. 10. Meriwether v. Joy (1900) 85 Mo. App. 634, 639 (no express reference to a general plan for a uniform building line but since the grantor retained no property in the vicinity after the sale, it was construed to operate in favor of previous transferees). § 102. Whether equitable servitudes may require aflrmative action. 2. The question of giving affirmative relief may also arise where the defendant has already violated the restriction by erecting a build- ing before the plaintiff asks for relief; if the removal of the building would cause damage to the defendant wholly disproportionate to the damage caused to the plaintiff by the breach, the court will exercise its discretion in refusing such relief. In Kenwood Land Co. v. Han- cock Investment Co. (1913) 169 Mo. App. 715, 155 S. W. 861. the de- fendant had violated a restriction by building a duplex house; the court held that the proper relief was not to order its removal but to decree that it should be occupied by only one family until the re- striction should expire at the end of fifteen years. In Sanders v. Dixon (1905) 114 Mo. App. 229, 254, 89 S. W. 577, the court held that the defendant should have the opportunity to alter the building so as to make it a single residence before ordering him to remove it: and in TOiompson v. Langan (1913) 172 Mo. App. 64, 154 S. W. 808. an order for the removal of a building erected for a hotel was denied if it MISSOUEI APPENDIX 665 could be so changed as to comply with the restriction. In Porsee y. Jackson (1915) 192 Mo. App. 408, 182 S. W. 783, the defendant had erected a building with a bay window extending nine inches beyond the building line; an affirmative decree for the removal of the bay window was denied because of the great damage it would cause to the defendant. In such a case, it would seem that the court should have given to the plaintiff, In lieu of the injunction, compensation for the plaintiff's equitable property right which is thus confiscated. § 103. Mutual covenants in general building schemes. 2. Even if there is no general scheme the restrictions may be mutual, if it can be shown from some other source that the vendor intended the covenant to bind each lot for the benefit of all the rest; Doerr v. Cobbs (1909) 146 Mo. App. 342, 351, 123 S. W. 547. 6. In Doerr v. Cobbs, supra, the court held that if a senior gran- tee wished to enforce a restriction against a junior grantee, stronger evidence of intention to benefit him was necessary than in the case where the parties were reversed. "A difference in principle can be discerned between the case of a grantee holding premises under a subsequent conveyance from the common source of title and seeking to enforce a covenant restricting the use of nearby premises, contained in a deed of prior date, from the case of a man who, holding title under a prior grant, seeks to enforce a covenant contained in a deed later than the one under which he claims. The junior grant is sup- posed to have been made for a consideration enhanced by the cir- cumstance that the use in obnoxious ways of property adjacent to or in the neighborhood of that conveyed had been restrained in previous conveyance; or, to borrow the pungent phrase of Lord Hatherly, in Child v. Douglas, Kay 560, the later grantee 'must be said to have bought the benefit of the former purchaser's covenant.' And, as no in- justice to the former purchaser will be occasioned by holding him to the observance of the restriction in his deed, it is reasonable to allow any property-owner who bought later from the same vendor, and who will be damaged by a breach of the restriction, to restrain a breach. But the same reasoning does not obtain as widely in favor of permitt- ing a, senior grantee of one lot to insist on a restrictive covenant in- serted in a later conveyance of another lot, inasmuch as the covenant to be enforced, was not in existence when the senior grantee bought, and the presumption that he bought in reliance on its protection does not arise naturally. In such an instance it must appear in some man- ner from the deed to the senior grantee, or dehors said deed, that the vendor intended the covenants to bind himself and those who there- after should derive title from him to property in proximity to the com- plainants." If there had been a general building scheme, however, there would have been no occasion for making the above distinction because the general scheme would supply the evidence of intention 666 MISSOUKI APPENDIX to benefit each lot as against every other lot, regardless of the time of sale. § 104. Failure of purpose of restriction. 1. There seems to be an unfortunate tendency in Missouri to deal with this question in a mechanical way. In Thompson v. Lan- gan (1913) 172 Mo. App. 64, 83, 154 S. W. 808, the court said: "But It is claimed that the. general plan upon which Hamilton Place was laid out and the general object of its creation had been abandoned and that conditions in the neighborhood had changed, and that there- fore, all of the restrictions fell in. We considered both of these ques- tions in Spahr v. Cape (1909) 143 Mo. App. 114, 122 S. W. 379, arid again in Noel v. Hill (1911) 158 Mo. App. 426, 138 S. W. 364. In the last named case, as here, it was in evidence that on, adjoining streets, and across the same street, there were no restrictions, that there were stores and shops across that and on streets running to the north of and bordering on the restricted locality, the restricted section cover- ing but one city block; in short, that outside of the restricted dis- trict, business had grown up and the neighborhood had changed. We held in each of the cases, as in others referred to, that these facts did not put an end to the restrictions. We hold, on the application of those principles to the facts here, that the restrictions here in- voked are not removed by reason of any change of conditions." See also Bolin v. Tyrol Investment Co. (1913) 178 Mo. App. 1, 160 S. W. 588. If the restricted district is small and surrounded by unrestricted territory which is given over to business buildings, it seems of doubt- ful propriety to continue the enforcement of the restrictions. On the other hand the court is quite right in saying that the mere fact that the restricted lot has become more valuable for business than for residential purposes is not a sufficient reason for denying an in- junction. Noel V. Hill (1911) 158, Mo. App. 426, 450, 138 S. W. 364; Spahr V. Cape (1909) 143 Mo. App. 114, 122 S. W. 379. In Fate v. Foerstel (1911) 159 Mo. App. 75, 88, 139 S. W. 820, it was held that the fact that the original owners of the subdivision had later abandoned that part of it which lay beyond the railroad tracks and had sold it as acre property, did not affect the rights which purchasers of lots in the other part of the subdivision acquired by their, deeds. 2. In Sanders v. Dixon (1905) 114 Mo. App. 229, 256, 89 S. W. 577, the defendant contended that the time limit for the restrictions, had expired. The court said: "If, in truth, the restrictions have lapsed, there is no cause to alter the building as it stands for it might immediately be converted into a flat without violating the covenant. ... If the restrictions have lapsed, the plaintiffs may be entitled to redress for damages sustained from the construction and maintenance of the flats — redress which a court of equity would have power to award as essential to complete justice, in the present case wherein the plaintiffs have shown an equity." MISSOURI APPENDIX 667 § 105. Public policy against enforcing restrictions. 2. Whether, in order to be valid, restrictions must be reasonable can hardly be said to be settled in Missouri. In Compton Hill Im- provement Co. V. Trauch (1911) 162 Mo. App. 76, 87, 141 S. W. 1159, the court suggest that they must; also in Kenwood Land Co. v. Han- cock Investment Co. (1913) 169 Mo. App. 715, 722, 155 S. W. 861. On the other hand, in Miller v. Klein (1913) 177 Mo. App. 557, 571, 160 S. W. 562, the court said: "It it conceded by both parties that it is not necessary lor the plaintiff to make any showing that the restric- tions as originally contained in the deeds are reasonable or in the opinion of the court desirable." The latter case is an illustration of the unfortunate tendency to deal with equity questions in a formal, mechanical way. It is at least doubtful whether the economic inter- est of vendors will prove to be a suflBcient safeguard against imposing undesirable restrictions. 3. In Noel v. Hill (1911) 158 Mo. App. 426, 443, 138 S. W. 364, the defendant contended that the restriction against the carrying on of business violated the so-called rule against perpetuities which' in substance requires that interests in property must vest within twenty- one years after lives in being at the creation of the interest. The court's holding the contention invalid was proper because the inter- ests of both the dominant and servient tenants are vested at once, just as in the case of the creation of a common law easement. The reason given by the court for the decision on this point was that there were persons In being who could convey an absolute fee in pos- session; while this is true It does not really state an adequate rea- son; the mere fact that there are persons who could convey an ab- solute fee does not prevent a future interest from being bad within the so-called rule against perpetuities. § 107. Effect of plaintiff's default or acquiescence. 3. In Hall v. Webster (1879) 7 Mo. App. 56, 63, there is a dic- tum that if the plaintiff had known that the defendant was erecting the buildings he might have been estopped, "in Miller v. Klein (1913) 177 Mo. App. 557, 572, 160 S. W. 562, the court held that mere sileiice and inaction in allowing other persons to erect flats on adjoining land did not amount to an estoppel unless it amounted to a fraud on the plaintiff. And in Thompson v. Langan (1913) 172 Mo. App. 64, 86, 154 S. W. 808, the court took the position that permitting violations by others might show abandonment but not estoppel. See also Yeo- mans v. Herrick (1914) 178 Mo. App. 274, 280, 165 S. W. 1112. 4. In Compton Hill Improvement Co. v. Strauch (1911) 162 Mo. App. 76, 141 S. W. 1159, several plaintiffs sued for an injunction; one of them had violated the restriction but the others had not; it was held that those who had not violated the restriction were enitled to the Injunction. C68 MISSOUEI APPENDIX 6. This is probably what the court had in mind in Thompson V. Langan (1913) 172 Mo. App. 64, 86, 154 S. W. 808, when it said that such a defense amounted to abandoment and not to estoppel; that is, that if the object of the restrictions had thus been defeated, it was not necessary to show that the defendant had changed his posi- tion in reliance upon the plaintiff's implied representations. In Schar- er V. Pantler (1907) 127 Mo. App. 433, 105 S. W. 688, the grantor sold several lots with a building line restriction of twenty-five feet. Soon afterward the grantor and the grantees erected buildings on a fifteen foot line. It was held that this was an abandonment, not a modification, and that the defendant could not be enjoined from erect- ing a building only five feet from the street. E. Consequences op Right of Specific Performance. § 108. Devolution of purchaser's rights and obligations. , 5. Healey v. Simpson (1892) 113 Mo. 340, 348, 20 S. W. 881 (con- tract to adopt). § 109. Devolution of vendor's rights and obligations. 1. Rogers v. Wolfe (1890) 104 Mo. 1, 13, 14 S. W. 805 (infant heirs of purchaser must be made a party to a cross action for specific performance brought by defendant in ejectment suit) ; Scott v. Davis (1897) 141 Mo. 213, 226, 42 S. W. 714. 10. Where the contract to convey is in writing, R. S. 1909 §. 177 provides that suit shall be brought against the executor or ad- ministrator who is empowered to execute a deed; where the contract is not in writing the statute does not apply and suit must be brought against the heir also; McQuitty v. White (1908) 218 Mo. 586, 596, 117 S. W. 730; Schulter v. Bockwinkle (1854) 19 Mo. 647. § 110. Devolution of ectuitable real property rights created in contracts to build. 5. See contra, Langston v. Canterbury (1902) 173 Mo. 122, 137, 73 S. W. 151. § 111. Options — Devolution of option holder's rights. 3. Montgomery v. Hundley (1907) 205 Mo. 138, 153, 103 S. W. 527: "It has likewise been held, in cases of options upon real estate, that even before the acceptance of the terms of the option, but during the life of the option, the offeree had an equitable title to the premises . . . Many cases including Mers. v. Insurance Co. (1878) 68 Mo. 127, 130 are to the contrary, and we think the doctrine of these last mentioned cases is the better doctrine. . The cases above mentioned are real estate options. All we have in the case under consideration is an admitted option upon personal property. We find MISSOURI APPENDIX • 669 no case declaring the interest of the offeree in such property prior to the acceptance." In Mers v. Insurance Co., supra, the decision was that one who had an option to buy property was not the absolute owner within the meaning of an insurance policy which required the insured to state what his interest in the property was. This seems a fair construction because there is, of course, no risk of loss on the option holder except the loss of the profit which the exercise of the option by acceptance might bring him. , § 113. Eights of purchaser's widow or widower. 1. R. S. 1909 § 345: "Every widow shall be endowed of the third part of all the lands whereof her husband, or any other person to Ms use, was seised of an estate of inheritance, at any time during the marriage. . . ." Bavis v. Green (1890) 102 Mo. 170, 179, 14 S. "W. 876. In Worsham v., Callison (1872) 49 Mo. 206, 209 it was held that if the purchase money had not been fully paid and the purchaser's equitable interest had been sold upon execution before his death, his widow is not entitled to dower. The reasoning Is not satisfactory. In Hart v. Logan (1871) 49 Mo. 47, 51 and in Duke v. Brandt (1873) 51 Mo. 221, 226 the widow was held entitled to dower though the pur- chase money had not been fully paid. 3. See Hart v. Logan, supra. § 115. Voluntary and involuntary transfers of vendor's rights. 2. Leberge v. Chauvin (1829) 2 Mo. 179. 4. Jones v. Howard (1897) 142 Mo. 117, 125, 43 S. W. 635. 6. In Brueggeman v. Jurgensen (1856) 24 Mo. 87 the court held that even if the vendor should convey to one not a iona fide purchaser for value, the purchaser is not entitled to maintain a suit for specific performance against the vendor alone. 9. Parks v. People's Bank (1888) 97 Mo. 13, 133, 11 S. W. 41. § 116. Voluntary and involuntary transfers of purchaser's rights. 1. No particular formality is necessary to the conveyance of the purchaser's interest; Atkison v. Dixon (1879) 70 Mo. 381, 393 (even tho defective because of misdescription, conveyance good as against the attaching creditor of the assignor). 3. Rev. Stat. 1909 § 2192: "The following property shall be liable to be seized and sold upon attachment and execution issued from any court of record; . . . fifth, all real estate whereof the defend- ant, or any person for his use, was seized, in law or equity . . ." The statute does not cover equitable interests in personal prop- erty; see Woodson v. Carson (1896) 135 Mo. 521, 527, 37 S. W. 197. In Brant v. Robertson (1852) 16 Mo. 129, 149 the court in dis- cussing the effect of the statute said: "When parties have bound themselves by agreement to convey land and to pay for it, equity 670 * MISSOXJEI APPENDIX recognizes an interest In the land as already in the purchaser, and the case is the stronger when the purchaser has actually paid in whole or in part; and in either case, the interest of the purchaser may be sold on execution, upon the principle that the vendor Is to be re- garded as seized in equity to the use of the purchaser. But if no money has been paid, and if the person who may become the pur- chaser is not actually under any obligation to pay, then there is no seizin in the seller, even in equity, to the purchaser's use, and there is no interest in the land in him, which is liable to sale on execution." T'he court seems mistaken in placing emphasis upon the purchaser's obligation to pay; the important fact is whether he has a specifically enforcible right to the land. See Morgan v. Bouse (1873) 53 Mo. 219, 223: "whenever a party is in such a situation with regard to -the land as to be entitled to a decree for specific performance, he then has such an interest therein as may be transferred by an execution sale." See also Block v. Morrison (1892) 112 Mo. 343,* 351, 20 S. W. 340; Neef V. Seely (1872) 49 Mo. 209 (oral contract with part performance). In Quell V. Hanlin (1884) 81 Mo. 441, 445, A contracted to buy land from X, using B's money; it was held that A had no interest in the land subject to execution. The purchaser at such an execution sales takes only what the original purchaser is equitably entitled to; hence he takes subject to an agreement that no deed should be executed till the original purchaser had refunded money advanced to enable him to build a house on the land; Rosenberger v. Jones (1893) 118 Mo. 559, 565, 24 S. W. 203. See also Burke v. Seeley (1870) 46 Mo. 334, 336 (contract abandoned by purchaser). § 117. Liability of vendor or purchaser for waste. 2. Crothers v. Acock (1890) 43 Mo. App. 318, 323 (action for compensation); Kalback v. Mathls (1903) 104 Mo. App. 300, 305, 78 S. W. 684 (injunction). § 118. Benefit of accruing profit and risk of accidental loss. 3. See Ranck v. Wickwire (1913) 255 Mo. 42, 61, 164 S. W. 460, where the plaintiff vendor was unable to make good title and there- fore failed to get specific performance and thus throw the loss on the purchaser; see also Moseley v. Ins. Co. (1904) 109 Mo. App. 464, 468, 84 S. W. 1000 where the contract was not enforcible by either party because of the Statute of Frauds. 14. Snyder v. Murdock (1872) 51 Mo. 175; Walker v. Owen (1883) 79 Mo. 563, 569 (defendant had taken case out of Statute of Frauds by part performance). In Tufts V. Wynne (1891) 45 Mo. App. 42, 45 it was properly held that where chattels are sold under a conditional sale, reserving title by way of security for the purchase price, the purchaser must MISSOUBI APPENDIX 671 pay the full price tho the chattels are lost hy fire; the court said that the rule as to executory contracts to sell real estate was analogous hut this seems unsound because the purchaser was liable at law for the purchase price, there having been a sale and not a mere contract to sell. § 119. Risk of loss — criticism of prevailing rule. 7. In Manning v. Insurance Co. (1900) 123 Mo. App. 456, 462, 99 S. W. 1095, the court in denying relief to the vendor in an action against the insurance company said: "What right, in morals or law, has this plaintiff to the money for which he sues ? He sold the in- sured property to Molesworth and has received the full purchase price. Is he entitled to anything more than that? And even if he had not received the purchase price, the land stood as security for it. It is true that a vendor who sells real estate and has not received pay- ment of the purchase money, had an insurable interest, yet it is an interest which he must insure. He cannot rely upon a contract of insurance made on totally distinct considerations, and within the terms of which he no longer stands." 8. Manning v. Insurance Co., supra: "It seems clearly to be the law, without reference to a provision of the nature we have quoted from this policy, that if property is destroyed by fire between the contract of sale and the deed, the vendor may recover the amount of the loss on his contract of insurance, yet he will hold it for the benefit of his vendee. And, doubtless, if the vendee owed on the purchase money, he could claim the amount of the insurance collected by the vendor as diminishing the indebtedness to that extent. But no such right can exist under the contract contained in the policy in suit, for it is aflarmatively provided therein that a change of interest in the property, without the consent of the company, should avoid the policy." E. Pabtial Pektoemance with Compensation. § 121. Effect of breach by vendor upon his suit for specific performance. 2. In Rector v. Price (1823) 1 Mo. 373, 381, the vendor was barred because he could make title to only 62 out of 476 acres; in Grefflet v. Willman (1892) 114 Mo. 106, 122, 21 S. W. 459 specific per- formance was refused because of an outstanding dower interest. 4. McPherson v. KIssee (1911) 239 Mo". 664, 670, 144 S. W. 410. And see Kennedy v. Koopman (1901) 166 Mo. 87, 95, 65 S. W. 1020 (purchaser not bound to accept deed in which vendor's husband does not join). See also Greffet v. Willman, supra. § 122. Suit by purchaser for specific performance with compensation. 1. Luckett V. Williamson (1860) 31 Mo. 54, 58; Hart v. Handlin (1869) 43 Mo. 171, 175 (purchaser not bound to rescind). In McGhee 672 MISSOUEI APPENDIX V. Bell (1902) 170 Mo. 121, 135, 70 S. W. 493 the vendor was guilty of fraud in misrepresenting the boundaries of his farm and on this ground alone would have been barred from specific performance with compensation. See also Lanyon v. Chesney (1904) 186 Mo. 540, 556, 85 S. W. 568. 3. In Barthell v. Engle (1914) 261 Mo. 307, 312, 168 S. W. 1154, the vendor escaped a decree for specific performance of his one fifth by showing that his undertaking was to sell only if the other heirs were willing to sell their shares. Where a part of leased premises have been taken by eminent do- main, the lefesee is entitled to file a bill in equity to have the rent ap- portioned; Kingsland v. Clark (1856) 24 Mo. 24, 26. § 123. Same — Criticism of the doctrine. 2. In Missouri the measure of damages is the loss of the bargain; Hartzell v. Crumb (1886) 20 Mo. 629, 637, 3 S. W. 59. § 124. Iiimitatious of the doctrine. 1. In Aiple-Hemmelman Real Estate Co. v. Spelbrink (1908) 211 Mo. 671, 694, 111 S. W. 480, compensation for a dower interest was refused, Lamm, J. dissenting, p. 716. This was overruled by Tebeau v. Ridge (1914) 261 Mo. 547, 571,' 170 S. W. 871, the amount of com- pensation being computed according to mortality tables. G. Defenses. § 126. Consideration necessary in specific performance. 2. Where there is not even a seal, equity will obviously not give specific performance of a promise to convey gratuitously; Brevator v. Creech (1904) 186 Mo. 558, 571, 85 S. W. 527 (promise to convey four hundred acres of land in gratitude for services already rendered) ; Anderson v. Scott (1888) 94 Mo. 637, 643, 8 S. W. 235 (promise to make a gift); Tucker v. Bartle (1884) 85 Mo. 114, 120; Brownlee v. Penwick (1890) 103 Mo. 420, 428, 15 S. W. 611; Wallace v. Figone (1904) 107 Mo. App. 362, 81 S. W. 492. § 127. Same — options — meritorious consideration. 1. So, if the option is based upon consideration: Aiple-Hemmel- man Real Estate Co. v. Spelbrink (1908) 211 Mo. 671, 692, 111 S. W. 480. In Davis v. Petty (1898) 147 Mo. 374, 382, 48 S. W. 944, the so- called option was not binding because there was no consideration. § 128. Adequacy of consideration. 1. Berg V. Moreau (1906) 199 Mo. 416, 425, 97 S. W. 901 (services in taking care of an old man were of less monetary value than the land; — no bar to specific performance). MISSOURI APPENDIX 673 , 3. Bean v. Valle (1829) 2 Mo. 126, 132; Harrison v. 'Town (1852), 17 Mo. 237, 244. II. Title not Marketable. § 129. Development of the doctrine. 2. Mastin v. Grimes (1885) 88 Mo. 478, 490; Rozier v. Graham (1898) 146 Mo. 352, 361, 48 S. W. 470; Scannell v. American Soda Fountain Co. (1900) 161 Mo. 606, 619, 61 S. W. 889 (title good be- yond all reasonable apprehension) ; Green v. Ditsch (1897) 143 Mo. 1, 12, 44 S. W. 799: "He should have a title which would enable him, not only to hold his land, but to hold it in peace, and if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value"; Mltchner v. Holmes (1893) 117 Mo. 185, 212, 22 S. W. 1070 (title held marketable) ; Luckett v. Wil- liamson (1860) 31 Mo. 54, 57: "The court will never compel the purchaser to take a title, where the point on which it depends is too doubtful to be settled without litigation, or where the purchase would expose him to the hazard of such proceedings. It will not compel a man to buy a law suit;" Kennedy v. Koopman (1901) 166 Mo. 87. 95, 65 S. W. 1020 (purchaser not bound to accept deed in which vendor's husband does not join); Gerhart v. Peck (1890) 42 Mo. App. 644, 652 ("a perfect title is one which is perfect and safe to 'a moral cer- tainty"); Ives V. Kimlin (1909) 140 Mo. App. 293, 301, 124 S. W. 23; Hymen v. Branch (1879) 6 Mo. App. 511: "and though the court entertain an opinion in favor of the title, yet, if it is aware that this opinion may fairly be questioned by competent persons, it will re- fuse a decree." * Kling V. Realty Co. (1912) 166 Mo. App. 190, 195, 148 S. W. 203 "a title which a reasonable purchaser, well informed, as to the facts i and their legal bearing willing and anxious to perform his contract, would, in the exercise of that prudence which business men ordinarily bring to bear upon such transactions would be willing to accept and ought to accept." It is no objection that the grantor in the deed tendered him is the vendor's wife; Greffet v. Willman (1892) 114 Mo. 106, 121, 21 S. W. 459. See also Ranck v. Wickwire (1913) 255 Mo. 42, 59, 164 S. W. 640; Edwards v. Watson (1914) 258 Mo. 631, 645, 167 S. W. 1119 (a ven- dor must remove real defects in title or explain apparent defects). In Munyon v. Hartman (1914) 262 Mo. 449, 453, 171 S. W. 61, it was held that bringing a suit to quiet title was an admission that the title was not good. 5. At the present time in Missouri there seems to be no difference between the rule at law in equity; but see Kent v. Allen (1856) 24 Mo. 98, 106: "The doctrine of marketable titles is purely equitable. Courts of law being the proper and peculiar tribunals for the decision Eq.— 43 674 MISSOUEI APPENDIX of all legal 'questions, doubtful titles are not recognized. . . . Tills being a suit at law, and the validity of the title arising, the question must be determined whether it is good or bad." 8. Long V. Lackawanna etc. Co. (1910) 233 Mo. 713, 740, 136 S. W. 673. A purchaser is not entitled to insist that a fiduciary vendor (trustee, executor, etc.) shall make any covenant in the conveyance except against acts and Incumbrances done or suffered by himself; Barnard v. Duncan (1866) 38 Mo. 170, 183. § 130. Statute of Frauds. 1. See Rev. St. 1909 § 2783; it is substantially like the Eng- lish statute with the following sentence added: "and no contract for the sale of lands made by an agent shall be binding upon the prin- cipal, unless such agent is authorized in writing to make said con- tract." The memorandum must give a reasonably accurate description or designation of the land; Meramee etc. Co. v. Kreis (1914) 261 Mo. 160, 169, 168 S. W. 1148. 3. See post § 137: Russell v. Sharp (1905) 192 Mo. 270, 285, 91 S. W. 134. 4. Beckman v. Mepham (1902) 97 Mo. App. 161, 163, 70 S. W. 1094; Sursa v. Cash (1913) 171 Mo. App. 396, 403, 156 S. W. 779. 5. Curie v. Eddy (1856) 24 Mo. 117; O'Neill v. Capelle (1876) 62 Mo. 202, 209; Bender v. Zimmerman (1894) 122 Mo. 194, 202, 26 S. W. 973 (oral agreement that land already mortgaged should stand for further security) ; Bryan v. Jamison (1841) 7 Mo. 106 (promise to make good title to purchaser at execution sale); Tapley v. Ogle (1901) 162 Mo 190, 197, 62 S. W. 431 (agreement not to claim property as a homestead); Wendover v. Baker (1893) 121 Mo. 273, 297, 25 S. W. 918 (agreement to cancel mortgage notes in consideration of mortgagor's surrendering premises); Rosenberger v. Jones (1893) 118 Mo. 559, 566, 24 S. W. 203 (sale of equitable interest in land). § 131. Payment of purchase money. 3. Devore v. Devore (1896) 138'Mo. 181, 185, 39 S. W. 68 (pay- ment of $200; specific performance refused but equitable lien given); Bean v; Valle (1829) 2 Mo. 126, 135; Parke v. Leewright (1854) 20 Mo. 85; Mine etc. Lead Co. v. White (1904) 106 Mo. App. 222, 231, 80 S. W. 356; Galway v. Shields (1876) 1 Mo. App. 546, 549 (his- torical statement) . 6. Nowack V. Berger (1895) 133 Mo. 24, 40, 34 S. W. 489. § 132. Taking possession by purchaser or lessee. 1. Young V. Montgomery (1859) 28 Mo. 604; Rosenberger v. Jones (1893) 118 Mo. 559, 566, 24 S. "W. 203 (sale of equitable in- MISSOUEI APPENDIX 675 terest); Price v. Hart (1859) 29 Mo. 171, 173; Hasenbeck v. Hasen- beck (1904) 111 Mo. App. 38, 42, 85 S. W. 916. The possession must be actual and not merely constructive; Charpiot v Sigerson (1857) 25 Mo. 63, 64. In White v. Watkin (1856) 23 Mo. 423, 429 the purchaser went into possession and abandoned it after two or three weeks; this was held insufficient because: "There is nothing in the evidence which shows that the plaintiff will be In a situation which Is a fraud upon him unless the agreement is performed." In Parke v. Leewrlght (1854) 20 Mo. 85, 86 the court refused relief because within eight days after taking possession the vendor repudiated. In Goodman v. Crowley (1900) 161 Mo. 657, 662, 61 S. W. 850, the plaintiff had taken possession but failed to prove a contract. 3. Tatum v. Brooker (1872) 51 Mo. 148; Walker v. Owen (1883) 79 Mo. 563, 570; Reynolds v. Reynolds (1891) 45 Mo. App. 622, 6.28; but see contra, Luckett v. Williamson (1866) 37 Mo. 388, 397: "but this doctrine of part performance does not apply to the vendor;" Townsend v. Hawkins (1870) 45 Mo. 286, 288 (no fraud on vendor); Luckett v. Williamson (1860) 31 Mo. 54, 58. 5. Cockerell v. Mclntyre (1900) 161 Mo. 59, 69, 61 S. W. 648; Bean v. Valle (1829) 2 Mo. 103, 135 (burden is pn the plaintiff to show that vendor consented to taking possession) ; Ellis v. Pac. R. R. (1873) 51 Mo. 200, 204 (taking possession' must be solely under belief and expectation that the oral contract will be specifically per- formed). § 133. Continuance in possession. 1. Shacklett v. Cummins (1916) 270 Mo. 496, 499, 193 S. W. 562. 2. Emmel v. Hayes (1890) 102 Mo. 186, 193, 14 S. W. 209, overruling Simmons v. Headlee (1888) 94 Mo. 482, 7 S. W. 20; Taylor V. Von Schrader (1891) 107 Mo. 206, 228, 16 S.'W. 675. 3. Spalding v. Conzelman (1860) 30 Mo. 177, 183 (improvements should be of such marked, and important character as to be not naturally reconcilable with the old relation.) In McCune v. Graves (1917) 273 Mo. 584, 201 S. W. 894, the plaintiff's wife promised him that if he would build a house on her tract of land and would buy an adjoining tract and have it conveyed to them as tenants by the entirety, she would convey her land to the plaintiff and herself as tenants by the entirety; the plaintiff having performed was held en- titled to specific performance after the wife's death. 4. See Orr v. McCurdy (1889) 34 Mo. App. 418, 423. § 134. Taking posession and improvements. 1. In the following Missouri cases there was not only a taking of possession but the erection of valuable improvements: Cape Gir- ardeau etc. R. R. V. Wingerter (1907) 124 Mo. App. 426, 431, 101 S. W. 1113 (full performance by vendor and action by vendor at law); 676 MISSOUBI APPENDIX Johnson v. McGruder (1852) 15 Mo. 365 (also payment of purchase money); Despain v. Carter (1855) 21 Mo. 331 (also part payment of purchase money) ; Johnson v. Hurley (1893) 115 Mo. 573, 579, 77 S. W. 492 (also payment of purchase money to authorized agent who absconded). 2. In Lambert v. St. 'Louis etc. R. R. (1908) 212 Mo. 692, 709, 111 S. W: 550, the purchaser had not only entered into possession but had paid the full purchase price. In Webb v. Toms (1885) 86 Mo. 591, 593 the purchase price consisted largely in erecting a house on the land; see also Hays v. K. C. etc. R. R. (1891) 108 Mo. 544, 548, 18 S. W. 1115 (complete performance by railroad company in building tracks and station); Caffee v. Smith (1890) 101 Mo. 229, 233, 13 S. W. 1050 (purchaser's equity prior to that of a subsequent creditor of vendor). § 135. Modern attempts 'to explain doctrine of part performance. 1. This ground is relied on in the following cases; Price v. Hart (1859) 29 Mo. 171, 173; Underwood v. Underwood (1871) 48 Mo. 527, 529; Bmmel v. Hayes (1890) 102 Mo. 186, 194, 14 S. W. 209; Alexander v. Alexander (1899) 150 Mo. 579, 597; Collins v. Harrel (1908) 219 Mo. 278, 301, 118 S. W. 432, 52 S. W. 256; Forrister v. Sullivan (1910) 231 Mo. 345, 373, 132 S. W. 722; Charpiot v. Sigerson (1857) 25 Mo. 263, 266; Sitton v. Shipp (1877) 65 Mo. 297, 302; War- field V. Hume (1901) 91 Mo. App. 541, 547. In Gibbs v. Whitwell (1901) 164 Mo. 387, 391, 64 S. W. 116, relief was denied because the acts were not referable solely to a contract to convey land, because rent was being paid for the use of the land. In Kinney v. Murray (1902) 170 Mo. 674, 701, 71 S. W. 197, relief was denied because the act of taking the plaintiff into the family of the decedent was not referable solely to a contract to make the child his heir. 3. This ground is frequently relied on in Missouri cases: Nowack V. Berger (1895) 133 Mo. 24, 42, 34 S. W. 489; Russel v. Sharp (1905) 192 Mo. 270, 285, 91 S. W. 134; Kirk v. Middlebrook (1906) 201 Mo. 245, 289, 100 S. W. 450; School District v. Holt (1909) 226 Mo. 406, 416, 126 S. W. 462; White v. Watkins (1856) 23 Mo. 423, 528. In Oliver v. Johnson (1911) 238 Mo. 359, 372, 142 S. W. 244, the court says that there must be both this ground and that relied on in the cases cited in note 1; see also Walker v. Bohannon (1912) 243 Mo. 119, 147 S. W. 1024. 4. In Townsend v. Hawkins (1870) 45 Mo. 286, 288 specific per- formance was denied to the vendor because there was no fraud on the vendor; see also Luckett v. Williamson (1860) 37 Mo. 388, 397. MISSOURI APPENDIX 677 § 137. Personal services for promise to devise. 3. Hall V. Harris (1898) 145 Mo. 614, 622, 47 S. W. 506; Berg v. Moreau (1906) 199 Mo. 416, 433, 97 S. W. 901; Sutton v. Hayden (1876) 62 Mo. 101; Alexander v. Alexander (1899) 150 Mo. 579, 599, 52 S. W. 256; Kinney v. Murray (1902) 170 Mo. 674, 700, 71 S. W. 197 (proof of contract failed) ; Asbury v. Hicklin (1904) 181 Mo. 658, 677, 81 S. W. 390 (proof failed); Hiatt v. Williams (1880) 72 Mo. 214; Gupton V. Gupton (1870) 47 Mo. 37, 48; Carney v. Carney (1888) 95 Mo. 353, 358, 8 S. W. 729 (also change of possession) ; Sharkey v. McDer- mott (1887) 91 Mo. 647, 652, 4 S. W. 107; Teats v. Flanders (1893) 118 Mo. 660, 669, 24 S. W. 126; Koch v. Hebel (1888) 32 T^. App. 103, 110; Fuchs v. Fuchs (1891) 48 Mo. App. 18, 23 (partial relief de- creed for partial performance); Grantham v. Gossett (1904) 182 Mo. 651, 670, 81 S. W. 895; Hasenheck v. Hasenheck (1904) 111 Mo. App. 38, 85 S. W. 916; McQuinn v. Moore (1909) 225 Mo. 36, 46, 123 S. W. 858 (proof failed) ; Rosenwald v. Middlehrook (1904) 188 Mo. 58, 100, 86 S. W. 200 (proof failed). 5. See McQuitty v. Wilhite (1912) 247 Mo. 103, 172, 152 S. W. 598 (services of peculiar value for over forty years rendered by an old colored woman to a widower). In Missouri, however, the doc- trine has become so well settled that the plaintiff may — if he prefers — recover at law the value of the land contracted to be devised; Koch V. Hebel (1888) 32 Mo. App. 103, 110. § 138. Oral promise to make a gift. 1. Bowles V. Wathan (1873) 54 Mo. 261; Hagar v. Hagar (1880) 71 Mo. 610, 61*3; Anderson v. Pemberton (1886) 89 Mo. 61, 66, 1 S. W. 216; Anderson v. Shockley (1884) 82 Mo. 250, 255; West v. Bundy (1883) 78 Mo. 407, 410; Hubbard v. Hubbard (1897) 140 Mo. 300, 308, 41 S. W. 749. Mere taking possession is not enough; Anderson v. Scott (1888) 94 Mo. 637, 644, 8 S. W. 235. And see Brownlee v. Fenwlck (1890) i03 Mo. 420, 428, 15 S. W. 611 (not even change of possession). In Goodin v. Goodin (1902) 172 Mo. 40, 48, 72 S. W. 502, relief was denied because the value of Improvements did not equal the rental value of the land. 2., West V. Bundy, supra; Hubbard v. Hubbard, supra; Dougherty V. Harsel (1886) 91 Mo. 251, 268, 3 S. W. 583; Dozier v. Matson (1887) 94 Mo. 328, 332, 7 S. W. 268; White v. Ingram (1892) 110 Mo. 474, 482, 19 S. W. 827. 5. See Hagar v. Hagar (1880) 71 Mo. 610, 613; Anderson v. Shockley (1884) 82 Mo. 250, 255 and cases cited; White v. Ingram (1892) 110 Mo. 474, 482, 19 S. W. 827. § 140. Belief of plaintiff solely in equity. 1. Ridgeley v. Stilwell (1859) 28 Mo. 400, 424 (justice of the peace has no jurisdiction). And see Nally v. Reading (1891) 107 Mo. 678 MISSOUEI APPENDIX 350, 355, 17 S. W. 978; Reigart v. Coal & Coke Co. (1908) 217 Mo. 142, 164, 177 S. W. 61. 2. Lee v. Howe (1858) 27 Mo. 521, 524; Gupton v. Gupton (1870) 47 Mo. 37, 48; McCullough v. McCuUough (1860) 31 Mo. 226, 229. But see Cape Girardeau R. R. v. Wlngerter (1907) .124 Mo. App. 426, 432, 101 S. W. 1113 where the doctrine of part performance was recognized in an action at law against the vendor; Koch v. Hehel (1888) 32 Mo. App. 103, 110 (action at law allowed against personal representative of vendor); Hall v. Getman (1900) 121 Mo. App. 630, 636, 97 S. W. 607. Of course if title has passed to the purchaser, the vendor prop- erly recovers at law even tho the original contract was oral; Smith V. Davis (1902) 90 Mo. App. 533, 538. IV. Plaintiff's default or laches. § 143. Conditions precedent in bilateral contracts. 1. See Cockrell v. Bopp (1904) 106 Mo. App. 555, 559, 80 S. W. 313 (express condition as to payment of purchase money). 3. Hug V. Van Burkleo (1874) 58 Mo. 202. 4. Biddle v. Ramsey (1873) 52 Mo. 153; Bales v. Gilbert (1900) 84 yo. App. 675, 679. 6. Strohmaler v. Zappenfeld (1877) 3 Mo. App. 429. 7. Arnot v. Alexander (1869) 44 Mo. 25, 29 (lessee to pay "what responsible parties would agree to give for the use of the premises" construed to mean the highest rentable value). § 144. Failure to comply with terms of option. 1. HoUman V. Conlon (1897) 143 Mo. 369, 378, 45 S. W. 275, (agreement construed as one of option to purchase within ten days) ; Mason v. Payne (1871) 47 Mo. 517, 519. 2. See headnote to Curtis v. Sexton (1909) 142 Mo. App. 179, 125 S. W. 806. § 145. Plaintiff's breach of his own promise as a bar. 1. Ackerson v. Ply (1903) 99 Mo. App. 116, 120, 72 S. W. 706 (only small amount of services rendered); Gloeckner v. Kittlaus '(1905) 192 Mo. 447, 490, 91 S. W. 126; Kavanaugh v. Traction Co. (1907) 127 Mo. App. 265, 277, 105 S. W. 278 (change by plaintiff in method of running its cars); Broaddus v. Ward (1843) 8 Mo. 217, 233 (promise to erect dwelling house within two years) ; Southworth V. Hopkins (1848) 11 Mo. 331 (promise to support the vendor); GIvens V. Cobb (1884) 83 Mo. 189 (abandonment by purchaser a bar); Clay V. Mayer (1904) 183 Mo. 150, 159, 81 S.-W. 1056 (failure to pay off a mortgage). MISSOURI APPENDIX 679 § 149. Effect of mere delay l)y plaintiff. 1. See Russell v. Geyer (1836) 4 Mo. 384, 415 (unexplained delay a bar). 2. Mastln v. Grimes (1885) 88 Mo. 478, 485; Scannell v. American Soda Fountain Co. (1900) 161 Mo. 606, 622, 61 S. W. 889; Lipscomb V. Adams (1905) 193 Mo. 530, 546, 91 S. W. 1046; Walker v. Owens (1887) 25 Mo. App. 587; "a court of equity, under such circumstances will not regard time of the essence of the contract, especially so where the parties have not so treated it"; Melton v. Smith (1877) 65 Mo. 315, 321. § 150. Effect of i!lalntiff's delay coupled with other circumstances. 3. Davis V. Petty (1898) 147 Mo. 374, 385, 48 S. W. 944 (valuable improvements made by vendor); Brown v. Massey (1896) 138 Mo. 519, 532, 38 S. "W. 939 (suit by vendor, depreciation) ; Pomeroy v. Fullerton (1895) 131 Mo. 581, 594, 33 S. W. 173 (suit by purchaser, increase in value); O'Fallon v. Kennerley (1869) 45 Mo. 124, 128 (increase in value). In Wendover v. Baker (1893) 121 Mo. 273, 291, 25 S. W. 918, an agreement was made to cancel notes upon surrender, of land mort- gaged to secure them; specific performance was denied because of a delay of six years coupled with the death of the attorney of the other party through whom the contract was alleged to have been made. § 151. Time expressly made of the essence. 1. McQuarry v. Mo. Land Co. (1910) 230 Mo. 342, 300, 130 S. W. 335. 3. Scannell v. American Soda Fountain Co. (1900) 101 Mo. 606, 622, 61 S. W. 889 ("without delay and not later than the first of July next"); McQuarry v. Mo. Land Co. supra, at p. 368. 5. Davis V. Barada-Ghio Co. (1905) 115 Mo. App. 327, 340, 92 S. W. 113 (relief not refused where purchaser has made large pay- ments). In Robberson v. Clark (1913) 173 Mo. App. 301, 308, 158 S. W. 854, the requirement was held to have been waived. ^ § 152. Time made of the essence by nature of property or other cir-, cumstances. 1. See Heuer v. Rutkowski (1853) 18 Mo. 215, 219 (purchaser at sale under deed of trust must tender cash within a reasonable time) ; Glass V. Rowe (1890) 103 Mo. 513, 538, 15 S. W. 334 (property fluctuating in value an element). § 153. Tender of performance by vendor. 3. Isaacs v. Skrainka (1888) 95 Mo. 517, 525, 8 S. W. 427; Bales v. Roberts (1905) 189 Mo. 49, 65, 87 S. W. 914 (tender of conveyance 680 MISSOUEI APPENDIX at trial sufficient); but see Lanyon v. Chesney (1904) 186 Mo. 540, 553, 85 S. W. 568 (tender of deed by vendor necessary, equity thus adopting the common law rule). In any event, no tender would be necessary if it is obvious that it would be futile; McManus v. Gregory (1885) 16 Mo. App. 375, 382. § 155. Foreclosure of purchaser's property right. 2. Mastin v. Grimes (1885) 88 Mo. 478, 487 (ten days too short); See Russell v. Geyer (1836) 4 Mo. 384, 414; Glass v. Rowe (1890) 103 Mo. 513, 538, 15 S. W. 334. y. Fraud, misrepresentation and concealment. § 157. Active misrepresentation or concealment by fiduciary. 2. McBlroy v. Maxwell (1890) 101 Mo. 294, 307, 14 S. W. 1 (fraudulent representation by former pastor to an illiterate and feeble old woman). In Evans v. Evans (1906) 196 Mo. 1, 23, 93 S. W. 969, it was held that the fact that the plaintiff had been agent of the defendants had no influence upon the making of the contract of sale, the parties dealing at arms' length. 3. See Barnard v. Duncan (1866) 38 Mo. 170, 186 ("the vendor must disclose all material facts of which he knows the vendee to be ignorant"). § 158. Misrepresentation by a non-fiduciary. 3. In Hickey v. Drake (1871) 47 Mo. 369, 371, the fraudulent rep- resentation as to boundaries entitled the purchaser not only to pre- vent specific performance but to get rescission. § 159. Non-disclosure or concealment by non-fiduciary. 6. See dictum in Bean v. Valle (1829) 2 Mo. 126, 131, that if the vendee had known of valuable mines and concealed the fact from the vendor, it would be a bar And see Barnard v. Duncan (1860) 38 Mo. 170, 186. 7. That the cause of action for the tort does not pass, see Lan- caster V. Conn. Mut. Co. (1887) 92 Mo. 460, 467, 5 S. W. 23. TI. Mistake — Sharp Practice. § 162. Mistake of defendant caused innocently by plaintiff. 3. Isaacs v. Skrainka (1888) 95 Mo. 517, 425, 8 S. W. 427; Toler V. McCabe (1892) 52 Mo. App. 532, 534. § 163. Mistake combined with sharp practice of plaintiff. 3. Durretts v. Hook (1844) 8 Mo. 374, 381 (purchaser wished to pay in notes against vendor which he afterward bought up for the purpose, vendor being insolvent); Gottfried v. Bray (1907) 208 MISSOUEI APPENDIX 681 Mo. 652, 661, 106 S. W. 639 (Inducing defendant, who could not read, to sign contract). § 165. Whether defendant may set up negligent mistake. 2. Evans v. Evans (1906) 196 Mo. 1, 24, 93 S. W. 969 (failure of defendants to visit the land counted against them). § 166. Mistake of law. See Jasper Co. Electric Co. v. Curtis (1899) 154 Mo. 10, 20, 55 S. W. 222. YII. Hardship. § 168. Hardship on defendant as sole ground. 1. Sease v. Cleveland Foundry Co. (1897) 141 Mo. 488, 497, 42 S. W. 1084; Skinkle v. Vickery (1899) 156 Mo. 1, 15, 55 S. W. 456; Taylor v. Williams (1869) 45 Mo. 80, 84; Lemp Hunting Cluh v. Hackman (1913) 172 Mo. App. 549, 571, 156 S. W. 791. That hardship is no defense to an action at law, see Wilbur Stock Food Co. V. Bridges (1911) 160 Mo. App. 122, 130, 141 S. W. 714. § 170. Hardship foreseen as a risk. 2. Evans v. Evans (1906) 196 Mo. 1, 24, 93 S. W. 969 (plaintiff was undertaking certain risks as to land values caused by drought of 1901). IX. Lack of mutuality. § 173. Lack of mutuality as a basis for denying relief. I. Lack of mutuality of obligation. In Warren v. Castello (1891) 109 Mo. 338, 344, 19 S. W. 29, the plaintiff was a married woman and besides had stipulated that she was not to be bound; hence there was no contract. In Campbell v. Han- dle Co. (1905) 117 Mo. App. 19, 24, 94 S. W. 815, there was no con- tract because the terms were not suiBciently deiinite; the court says there was "no mutuality of contract." See also Mastin v. Halley (1875) 61 Mo. 196, 200 (contract to erect "a certain building"; the court says that the contract is not mutual). In Houtz v. Hellman (1910) 228 Mo. ;655, 670, 128 S. W. 1001, the plaintiff was a straw man for an undisclosed principal and specific performance was properly denied because of unclean hands, but there is a reference to lack of mutuality. In Ford v. Gebhardt (1892) 114 Mo. 298, 21 S. W. 818, the court very properly avoided the use of the term mutuality; see also Lipscomb v. Adams (1905) 193 Mo. 530, 545, 91 S. W. 1046; Jones V. Williams (1897) 139 Mo. 1, 88, 39 S. W. 486, 40 S. W. 353, dis- senting opinion. 682 MISSOUEI APPENDIX In Glass v. Rowe (1890) 103 Mo. 513, 539, 15 S. W. 334, relief was denied because there had been no expression of mutual assent and hence no contract; also, because by the terms of the contract sought to be established by the plaintiff purchaser, the plaintiff could escape liability upon payment of $200. On the second point see post § 178. § 174. II. Lack of mutuality of remedy. 1. In Mastin v. Halley (1875) 61 Mo. 196, 201 the court says that "the doctrine here asserted is as thoroughly settled as any in equity jurisprudence." In Russell v. Geyer (1836) 4 Mo. 384, 414; "a bill for specific performance will not be sustained if the remedy be not mutual, or where one party only is bound by the agreement." See also the dissenting opinion of Sherwood, J., in Jones v. Williams (1897) 139 Mo. 1, 87, 39 S. W. 486, 40 S. W. 353. § 175. (1) Plaintiff has defense of Statute of Frauds. (2) Plaintiff an infant at time of contract. 1. Ivory V. Murphy (1865) 36 Mo. 534; Neef v. Redmon (1882), 76 Mo. 195, 199; Smith v. Wilson (1900), 160 Mo. 657, 665, 61 S. W. 597; Mastin v. Grimes (1885) 88 Mo. 478, 484. 3. See Aylor v. Mclnturf (1914) 184 Mo. App. 691, 701, 171 S. W. 606; Luckett v. Williamson (1866) 37 Mo. 388, 396 (defendant does not lose his right to plead Statute of Frauds by admitting in his answer that he made the oral agreement). § 177. (6) Complete performance by plaintiff. 2. Berg V. Moreau (1906) 199 Mo. 516, 97 S. W. 901. In McCall v. Atchley (1913) 256 Mo. 39, 56, 164 S. W. 593, relief was refused be- cause of lack of mutuality tho the personal services had been per- formed, the contract being to convey one fourth of what the defendant should recover in certain litigation, and the defendant had compro- mised the suit at an early stage. § 178. (7) Options. 2. Aiple-Hemmelman Real Estate Co. v. Spelbrink (1908) 211 Mo. 671, 682, 111 S. W. 480; Tebeau v. Ridge (1914) 261 Mo. 547, 563, 170 S. W. 871; Quinlivan v. English (1868) 42 Mo. 362, 366. 4. For a somewhat similar position see dictum in Glass v. Rowe (1890) 103 Mo. 513, 539, 15 S. W. 334; if plaintiff purchaser could escape liability upon forfeiting the $200 paid for the thirty day option, there was no mutuality and relief should be refused. In Davis V. Petty (1898) 147 Mo. 374, 383, 48 S. W. 944, it is not clear that there was any consideration for the option and the plaintiff was clearly barred by laches, but the court talks about mutuality. MISSOUEI APPENDIX 683 § 179. (8) Failure of vendor to get title — (9) Contract with wife and husband. 3. In Neef v. Redmon (1882) 76 Mo. 195, 198, one Hazell con- tracted to sell land to Mary Neef, a married woman who paid $5 down; later Hazell was induced by Redmon to convey the land to Redmon, the latter knowing of the transaction with Mrs. Neef; later Hazell conveyed to Mrs. Neef who now seeks to have the deed to Redmon ■ set aside. The court held that although she could not have com- pelled the conveyance to herself and although Hazell might perhaps have been entitled to rescind upon repayment of the money which she paid, no offer of return was made and therefore she was entitled to relief. The court says that "until the return of the money re- ceived In part payment for the property, from a married woman, by one who has contracted with her, she has an equitable interest in the land bargained for, and any one purchasing with notice of her contract does so at his peril." It is very difficult to see how she could have any equitable interest in the land except possibly an equi- table lien upon It for the amount of the part payment and therefore difficult to see how Redmon could be bound except to that extent. In Davis v. Petty (1898) 147 Mo. 374, 383, 48 S. W. 944, it is not clear that there was any option contract and even if there was the plaintiff was clearly barred by laches, but the court talked about mutuality. There is now a statute in Missouri enabling a married woman to bind herself by contract; Rev. St. 1909, § 8304; under this statute she may be compelled to perform specifically even as to land inherited by her before the passing of the statute; Clay v. Mayer (1904) 183 Mo. 150, 158, 81 S. W. 1066. Apart from statute, there could of course be no specific performance because no contract; Gwin v. Smurr (1890) 101 Mo. 550, 14 S. W. 731; Rush v. Brown (1890) 101 Mo. 586, 590, 14 S. W. 735; Warren v. Castello (1891) 109 Mo. 338, 344, 19 S. W. 29 (suit by the married woman). Chapter III. Specific Eepaeation and Prevention of Torts. A. In General. § 183. Common law definition of waste. 4. "Cutting timber for the purpose of cultivation, if it did not lessen the value of the inheritance, is a privilege following a tenancy for life, when it was necessary for the proper and reasonable en- joyment of his estate, and as long as he only acts in doing so in con- formity to good husbandry, regard being had to the situation of the country and the comparative value of the timber;" Davis v. Clark (1890) 40 Mo. App. 515, 521 (cutting for railroad ties not allowed) ; Hill V. Ground (1905) 114 Mo. App.. 80, 87, 89 S. W. 343 (tenant for 684 MISSOUKI APPENDIX life has no right to open mines) ; Deltenre v. Deltenre (1910) 152 Mo. App. 515, 521, 133 S. W. 632 (severance of new grape plants not waste because no injury to the inheritance) ; First National Realty Co. V. Mason (1914) 185 Mo. App. 37, 40, 171 S. W. 971 (removal of buildings and fences). 7. Boefer v. Sheridan (1890) 42 Mo. App. 226, 229. § 185. Equitable remedies for common law waste. 2. That common law waste will be enjoined, see Hughes v. Bur- riss (1885) 85 Mo. 660, 668 (life tenant or his lessee, at suit of owner of fee) ; Van Hoozer v. Van Hoozer (1885) 18 Mo. App. 19, 25 (re- versioner against dowress). In Taylor v. Adams (1902) 93 Mo. App. 277, 280, an injunction was given to a contingent remainderman, though no action at law would have been sustained. In Perkins v. Mason (1904) 105 Mo. App. 315, 79 S. W. 987, an injunction was re- fused because plaintiff failed to show either title or possession. § 189. Equitable relief after waste has been committed. 6. In Fox v. Hubbard (1883), 79 Mo. 380, 397, equitable relief was given against an insolvent defendant who had removed a house from land which he foresaw that, plaintiff would buy at an execution sale, by giving the plaintiff an equitable lien upon the defendant's land to which the house had been removed. C. T'bbspass. § 191. Common law and equitable remedies for trespass to land. 4. In Missouri a landlord has been allowed to bring trespass against a stranger for an injury to the freehold tho his tenant is in possession; Bailey v. Siegel Gas Fixture Co. (1893) 54 Mo. App. 50, 54; Parker v. Shackelford (1875) 61 Mo. 68; Cramer v. Groseclose (1893) 53 Mo. App. 648, 650, where the court admits that the rule formerly was otherwise, citing Roussin v. Benton (1840) 6 Mo. 592. But see Austin v. Huntsville Coal & Mining Co. (1880) 72 Mo. 535, 543, where the court says that trespass will lie provided the lessee has not taken possession. § 19^. Requiring the plaintijf to establish his right at law — Plater de- velopment. 4. Giving a temporary Injunction pending the settlement of the right at law: Smith v. Jameson (1886) 91 Mo. 13, 18, 3 S. W. 212; Lockwood V. Lunsford (1874) 56 Mo. 68, 75. And see post § 194, note 1. See Carpenter v. GrJsham (1875) 59 Mo. 247, 250, where, the court says that the requirement is more particularly applicable to nuisance cases. MISSOURI APPENDIX 685 § 194. FaintiS in possession — (1) Trespass in the nature of waste. 1. McKenzie v. Matthews (1875) 59 Mo. 99, 102; Integrity Min- ing etc. Co. V. Moore (1908) 130 Mo. App. 627, 632, 109 S. "W. 1057; Strother v. American Cooperage Co. (1905) 116 Mo. App. 518, 525, 92 S. W. 758; Sills v. Goodyear (1899) 80 Mo. App. 128, 134; Powell V. Canaday (1902) 95 Mo. App. 713, 719, 69 S. W. 686 (cutting valuable trees); Brown v. Miller, 46, Mo. App. 1, 4 (cutting timber). And see Rev. St. 1909, § 2534, providing that the injury need not be irreparable; "and to prevent the doing of any legal wrong whatever, wherever in the opinion of the court an adequate remedy cannot be afforded by an action for damages." Under this statute injunction is the proper remedy to restrain the wrongful taking of land for public uses; Rosenberger v. Miller (1895) 61 Mo. App. 422, 429; Spurlock v. Dornan (1904) 182 Mo. 242, 249, 81 S. W. 412; see also School District v. Young (1910) 152 Mo. App. 304, 310, 133 S. W. 143 (sale of school property before appraisement) ; Barron v. Cooperage Co. (1914) 185 Mo. App. 625, 639, 171 S. W. 683 (cutting timber; legal remedy inadequate because great expense to plaintiff to watch timber and keep account) ; Harris v. Township Board (1866) 22 Mo. App. 462, 465 (threat to tear down fences and destroy crops) ; Hatton v. K. C. Ry. Co. (1913) 253 Mo. 660, 162. S. W. 227; Teachout v. Clough (1910) 143 Mo. App. 474, 481, 127 S. W. 672 (cutting timber). In Boeckler v. R. R. (1881) 10 Mo. App. 448, 453 the court said: "we understand this statute to be merely an affirmance by the Legislature of a pre-existing rule of~ equity jurisprudence." But see Towne v. Bowers (1884) 81 Mo. 491, 496: "under this [statute] the action of injunction may be resorted to, notwithstanding there may be an ade- quate remedy at law for tlie injury, in all cases where an adequate remedy cannot be afforded by an action for damages as such." 2. McPike v. West (1879) 71 Mo. 199 (defendant threatened to cut timber and hedges and lo expose crops and fruit trees to depreda- tions of stock). 3. Carpenter v. St. Joseph (1914) 263 Mo. 705, 714, 174 S. W. 53 (grading lot for street purposes); Hays v. Poplar Bluff (1914) 263 Mo. 516, 538, 173 S. W. 676 (removal of building); Rose v. Garrett (1886) 91 Mo. 65, 67, 3 S. W. 828 (opening a road); St. Joseph Brewing Co. v. Hauser (1910) 151 Mo. App. 423, 132 S. W. 54 (removal of building, affirmative relief given). In Lytle v. James (1902). 98 Mo. App. 337, 342, 73 S. W. 287, the defendant was enjoined from removing ore from a mine though the plaintiff was a mere min- ing licensee. See also Jack Harvard Mining Co. v. Continental Zinc Co. (1904), 106 Mo. App. 66, 70, 80 S. W. 12. 4. Conn. Mut. Co. v. St. Louis (1889) 98 Mo. 422, 425, 11 S. W. 969 (city threatened to remove part of building which projected into street). 686 MISSOITEI APPENDIX 7. Weigel v. Walsh (1870) 45 Mo. 560 (plaintiff's lease had only two weeks to run) ; Owen v. Ford (1872) 49 Mo'. 436 (no allegation that future injury to land was anticipated). § 195. Same — (2) Repeated trespasses. 1. Lambert v. R. R. (1908), 212 Mo. 692, 706, 112 S. W. 550 (avoid multiplicity of actions; in nature of bill of peace); Strother v. American Cooperage Co. (1905) '116 Mo. App. 518, 526, 92 S. W. 758 "to prevent a multiplicity of suits"). 3. See Paddock v. Somes (1890) 102 Mo. 226, 237, 14 S. W. 746 (discharge of sewage and surface water upon plaintiff's land through a pipe) : "In such an instance the nuisance, if continued, becomes a fresh nuisance every day and authorizes new suits accordingly;" Hayden v. Tucker (1866) 37 Mo. 214, 224: "Why compel the party to bring a fresh action every day to establish each separate act of nuisance, etc.?" ' In Crenshaw v. Cook (1895) 65 Mo. App. 204, 266 the court said: "The right to equitable relief on the ground of preventing a multiplicity of suits only arises in the class of cases where different persons as- sail the same right, and not where repeated trespasses are 'committed by the same person", citing Boekler v. Mb. Pac. Ry. (1881) 10 Mo. App. 448, 456. But see Metropolitan Land Co. v. Manning (1902) 98 Mo. App. 248, 257, 71 S. W. 696: "though the trespasser is solvent, yet when his trespasses are harassing and continuous and will in- volve a multiplicity of suits for redress, damages are not an adequate .remedy for such continued harassment and annoyance in the enjoy- ment of real estate." In Palmer v. Crisle (1901) 92 Mo. App. 510, 513, relief was given because of "the nature of the property involved and the inconvenience of suing for continuous [repeated?] trespasses." 6. In Paddock v. Somes, supra, at p. 240: "and courts of equity will more reaily interpose in such instances where the damages re- covered are merely nominal and therefore inadequate to prveent a repetition of the injury." § 196. Same — (3) Continuous trespass. 2. Relief was given in Nelson v. Kelley (1910) 145 Mo. App. 110, 114, 128 S. W. 832 (continuous and repeated trespasses by original lessee who had forfeited his lease.) 4. See Hobart Lee Tie Co. v. Stone (1908) 135 Mo. App. 438, 443, 117 S. W. 604 (plaintiff barred because the lease purporting to give him the right to the exclusive use of the property was illegal). 14. In Rankin v. Charless (1854) 19 Mo. 490, 494, the court refused to order the defendant to remove the ends of his joists from the plaintiff's wall partly because of the serious damage it would cause the defendant. In Boeckler v. Mo. Pac. Ry. Co. (1881) 10 Mo. App. MISSOURI APPENDIX 687 448, 454, the court refusei^ to decree the removal of a railway side track from the plaintiff's lot which fronted on the Mississippi River and chiefly valuable for that reason, because damages at law would be adequate. § 197. Same — (4) Taking possession of part of plaintiff's land. 1. Walker v. R. R. (1874) 57 Mo. 275; Boeckler v. Mo. Pac. R. R. (1881) 10 Mo. App. 448, 455; Planet Property etc. Co. v. St. Louis, etc. R. R. Co. (1893) 115 Mo. 613, 619, 22 S. W. 616 (railroad built on land). 4. In Walther v. Cape Girardeau (1912) 166 Mo. App. 467, 481, 149 S. W. 36, the court ordered the defendant to take up a sewer drain which they had wrongfully laid across the plaintiff's land and to restore the land to its former condition. § 198. Same — (5) Legal remedy inadequate because of other circum- stances. 2. State Savings Bank v. Kercheval (1877) 65 Mo. 682, 688 (re- moval of building used for an oflice for plaintiff's mill; amount of damage conjectural); Turner v. Stewart (1883) 78 Mo. 480, 482 (in- terference with business) ; Carroll v. Campbell (1891) 108 Mo. 530, 558, 17 S. W. 884 (interference with ferry). § 199. Defendant in possession. 1. Smith V. Jameson (1880) 91 Mo. 13, 19, 3 S. W. 212 (dictum) ; Golden Cycle Mining Co. v, Christmas Gold Co. (1913) 204 Fed. 939; Graham v. Womack (1899) 82 Mo. App. 618, 624; Heman v. Wade (1898) 74 Mo. App. 339, 342. In Powell v. Canaday (1902) 95 Mo. App. 713, 719, 69 S. W. 686 the plaintiff failed because unable to show either title or possession. 5. That ordinarily a plaintiff out of possession can not get an injunction, see Gildersleeve v. Overstolz (1902) 97 Mo. App. 303, 71 S. W. 371. § 200. Plaintiff a reversioner or remainderman. That in Missouri a reversioner or remainderman may probably bring trespass for an injury to the inheritance see ante § 191, note 4. § 201. Defendant insolvent. 1. Lockwood V. Lunsford (1874) 56 Mo. 68, 78; James v. Dixon (1854) 20 Mo. 79 (dictum); Burgess v. Kattleman (1867) 41 Mo. 479 (dictum); Graham v. Womack (1899) 82 Mo. App. 618, 625 and cases cited; Powell v. Canaday (1902) 95 Mo. App. 713, 720, 11 S. W. 371 (clear proof of insolvency required); Houckv: Patty (1903) 100 Mo. App. 302, 73 S. W. 389; Sheetz v. Price (1911) 154 Mo. App. 574, 577, 688 MISSOUBI APPENDIX 136 S. W. 733; Bailey v. Wade (1887) 24 :^o. App. 186, 189; Boeckler V. R. R. (1881) 10 Mo. App. 448, 454. 3. In Evans v. R. R. Co. (1877) 64 Mo. 453, 463 the court ordered an insolvent railroad company from operating its road over the plain- tiff's land, until it should pay into court the damages assessed for the taking of the land; see also Provolt v. C. R. I. & P. R. R. (1879) 69 Mo. 633, 641. 11. Trespass to chattels. § 202. Bemedies at law and in equity. 1. In Aull v. St. Louis Trust Co. (1898) 149 Mo. 1, 18, 50 S. W. 289, the court ordered the defendant to deliver over some bonds which the probate court had decided belonged to the plaintiff. 2. Hatton v. K. C. R. R. (1913) 253 Mo. 660, 674, 162 S. W. 227 (dictum). 3. Burgess v. Kattleman (1867) 41 Mo. App. 480, 483 (staves etc.; trespass or replevin adequate); Schneider v. Johnson (1911) 161 Mo. App. 375, 385, 143 S. W. 78 (adequate remedy in replevin); Farris v. Smithpeter (1914) 180 Mo. App. 466, 471, 166 S. W. 655 (threatened wrongful sale of chattels, injunction denied) ; Straub v. Simpson (1898) 74 Mo. App. 230, 233 (replevin against constable an adequate remedy). But in some cases the statute, (see Rev. St. 1909, § 2534), has been construed to authorize equitable relief even if there is an ade- quate remedy at law, if an action for damages would not furnish an adequate remedy; Towne v. Bowers (1884) 81 Mo. 491, 496 {ante § 194, note 1); see also Bailey v. Wade (1887) 24 Mo. App. 186. 190; Gotcher v. Haefner (1891) 107 Mo. 270, 276, 17 S. W. 967. 6. See Merchants' Exchange v. Knott (1908) 212 Mo. 616, 647, 111 S. W. 565 (enforcement of grain weighing statute enjoined on ground that it was unconstitutional and would ruin plaintiff's busi- ness) ; State ex rel. v. McQuillin (1914) 262 Mo. 256, 265, 171 S. W. 72 (interference with lodge furniture, etc.). D. Peivate Nuisance. § 203. Definition. 2. The list is not entirely complete; for example, the storing of large quantities of dangerous explosives in close proximity to a dwell- ing Is a nuisance; French v. Mfg. Co. (1913) 173 Mo. App. 220, 226, 158 S. W. 720; Liggett v. Powder Mfg. Co. (1917) 274 Mo. 115, 119, 202 S. W. 372; or the use of such explosives in a thickly populated communi- ty; Blackford v. Heman Co. (1908) 132 Mo. App. 157, 163, 112 S. W. 287. 3. Kirchgraber v. Lloyd (1894) 59 Mo. App. 59, 63 (vapors and smoke from brick kiln); Sultan v. Parker-Washington Co. (1906) 117 Mo. App. 636, 644, 93 S. W. 289 (fumes from asphalt plant); MISSOURI APPENDIX 689 Bielman v. R.R. (1892) 50 Mo. App. 151 (stockyards). See also St. Louis Safe Deposit Co. v. Kennett's Est. (1903) 101 Mo. App. 370, 374, 74 S. W. 474 (heat from smoke stack). 4. Zugg V. Arnold (1898) 75 Mo. App. 68 (odors from slaughter house) ; Danker v. Goodwin Mfg. Co. (1903) 102 Mo. App. 723, 730, 77 S. W. 338 (stenches from candle factory); Desberger v. University Heights Co. (1907) 126 Mo. App. 206, 218, 102 S. W. 1060 (sewage); Gorman v. R. R. (1912) 166 Mo. App. 320, 328, 148 S. W. 1009 (filth from privies). That an ordinary pond is not a nuisance see Holke v. Herman (1900) 87 Mo. App. 125, 234. 5. Leete v. Pilgrim Cong'l Soc'y (1884) 14 Mo. App. 590 (bell ringing); McNulty v. Miller (1912) 167 Mo. App. 134, 151 S. W 208; Hayden v. Tucker (1866) 37 Mo. 214, 217 (stallions and jacks kept for breeding purposes); Tarkio v. Miller (1912) 167 Mo. App. 122, 151 S. W. 208 (ditto). 7. Schumacher v. Shawhan (1902) 93 Mo. App. 573, 578, 67 S. W. 717 (refuse from distillery) ; Hanlin v. Burk Bros. (1913) 174 Mo. App. 462, 160 S. W. 547 (pollution of stream) ; Joplin Mining Co. V. Joplin (1894) 124 Mo. 129, 135, 27 S. W. 406 (sewage). 8. George v. Wabash etc. Ry. (1890) 40 Mo. App. 433, 445; Des- berger V. University Heights Co. (1907) 126 Mo. App. 206, 219, 102 S. W. 1060. 9. The "common law rule" seems to prevail in Missouri; Collier V. C. & A. R. R. (1892) 48 Mo. App. 398, 402 and cases cited; Goetten- troeter v. Kuppelman (1899) 83 Mo. App. 290, 293; Beauchamp v. Taylor (1908) 132 Mo. App. 92, 96, 111 S. W. 609. 10. See Weishar v. Sheridan (1912) 168 Mo. App. 181, 184, 153 S. W. 64; Grant v. R. R. (1910) 149 Mo. App. 306, 310, 130 S. W. 80; Grimes v. R. R. (1914) 184 Mo. App. 117, 122, 168 S. W. 318. And see also University of Mo. Bulletin Law Series, 8, page 20. 11. Victor Mining Co. v. Morning Star Mining Co. (1892) 50 Mo. App. 525, 530. 12. C. & A. R. R. V. Brandaw (1899) 81 Mo. App. 1, 8; Kansas City etc. R. R. v. Sandlin (1913) 173 Mo. App. 384, 393, 158 S. W. 857. § 204. Bemedies. 1. Jarvis v. St. Louis etc. R. R. (18,87) 26 Mo. App. 253, 257 (leaving carcass of cow unburied). 2. Dickson v. R. R. (1880) 71 Mo. 576, 579 (crops destroyed for two years by overflow); Van Hoozier v. St. Joseph R. R. (1879) 70 Mo. 145, 148; Hudson v. Burk (1891) 48 Mo. App. 314, 317; McKee V. St. Louis etc. R. R. (1892) 49 Mo. App. 174, 182; Bielman v. R. R. (1892) 50 Mo. App. 151, 156; Long v. Kansas City (1904) 107 Mo. App. 533, 538, 81 S. W. 909. 4. Markt v. Da;vis (1891) 46 Mo. App. 272, 274; Dickson v. C. R. L & P. R. R. (1880) 71 Mo. 575, 579 (dictum) ; Scott v. City of Bq. — 44 690 MISSOURI APPENDIX Nevada (1893) 56 Mo. App. 189, 191; Hamlin v. Burke Bros. (1913) 174 Mo. App. 462, 468, 160 S. W. 547 (well entirely destroyed). And see Hayes v. R. R. (1913) 177 Mo. App. 201, 217, 162 S. W. 266; Babb V. Curators (1890) 40 Mo. App. 173, 178 (permanent injury to market value by sewer, not removed by removal of sewer). In Smith v. Sedalia (1912) 244 Mo. 107, 123, 149 S. W. 597, it was held that the plaintiff could not collect prospective damages for the turning of sewage into a creek upon plaintiff's farm and also get an injunction. 5. . City of Chillicothe v. Bryan (1903) 103 Mo. App. 409, 414, 77 S. W. 465 (liable for excess in abating). See also Allison v. City of Richmond (1892) 51 Mo. App. 133, 136 (city has no power to order destruction of frame building merely because it was in a dangerous situation, and annoying to the public). 6. Paddock v. Somes (1890) 102 Mo. 226, 240, 14 S. "W. 746 (in- junction granted as of course if proved nuisance is of continuous or constantly recurring character); Fischer v. R. R. (1908) 135 Mo. App. 37, 41, 115 S. W. 477; Baker v. McDaniel (1903) 178 Mo. 447, 468, 77 S. W. 531. The plaintiff may in the same suit get an injunction a.nd damages down to the date of bringing the action; Whipple v. Mclntyre (1896) 69 Mo. App. 397 (pig sty). An injunction will not issue if the danger is merely speculative; St. Louis etc. R. R. v. Schneider (1888) 30 Mo. App. 620, 627; Holke v. Herman (1900) 87 Mo. App. 125. 135; Lester Real Estate Co. v. City of St. Louis (1902) 169 Mo. 227, 235, 69 S. W. 300. On the other hand, it Is not necessary to wait till damage is inflicted; Wood v. Craig (1908) 133 Mo. App. 548, 552, 113 S. W. 676; Mason v. Deiter- ing. (1908) 132 Mo. App. 26, 34, 111 S. W. 862; Caskey v. Edwards (1907) 128 Mo. App. 237, 244, 107 S. W. 37. The mere fact that a city ordinance makes a thing unlawful is not enough to warrant an injunction; Warren v. Cavanaugh (1888) 33 Mo. App. 102, 108. § 206. Damage. 4. Paddock v. Somes (1890) 102 Mo. 226, 240, 14 S. W. 746: "and courts of equity will 'more readily interpose in such instances where the damages recovered are merely nominal, and therefore, in- adequate to prevent a repetition of the injury." Preudenstein v. Heine (1878) 6 Mo. App. 287, 289: "It is not essential to a recovery that plaintiff should prove actual damage." § 207. Legalizing nuisances. 1. See State v. Board of Health (1884) 16 Mo. App. 8, 12: "A nuisance is not the necessary result of burning brick; and where a nuisance is not the necessary result of the work authorized, legis- MISSOURI APPENDIX 691 iative authority to create a nuisance will not be inferred from any li-cense or authority to carry on the work, and legislative authority merely to carry on the work will not be a valid defence to a public prosecution or to a private action for a nuisance created in carrying it on." 2. See Sultan v. Parker-Washington Co. (1906) 117 Mo. App. 636, 643, 93 S. W. 289: "Municipal authority for so great an annoyance (asphalt plant) will not legalize its existence, unless it is reasonably necessary for the common weal." § 208. Culpability of defendant. 3. See Matthews v. Mo. Pac. R. R. (1887) 26 Mo. App. 75, 80 (erecting obstruction in public highway — liable without proof of negligence) ; Haynor v. Excelsior Springs etc. Co. (1907) 129 Mo. App. 691, 697, 108 S. W. 580 (liable tho not negligent); Martin v. St. Joseph (1909) 136 Mo. App. 316, 321, 117 S. W. 96: "If the embank- ment proved a nuisance, ... it was immaterial whether the city exercised due care etc." ' 4. ■ Grogan v. Broadway Foundry Co. (1884) 14 Mo. App. 587 (owner of premises demised to tenant for years not liable for &, nuisance created and maintained by tenant) ; Padberg v. Kennerly (1885) 16 Mo. App. 556 (landlord who renews a letting from month to month of premises upon which there is a nuisance, is liable) ; Gil- liland V. C. & A. R. R. (1885) 19 Mo. App. 411, 416 (landlord liable If nuisance is such as necessarily arises from tenant's ordinary use of premises for purpose for which they were let and not avoidable by reasonable care on the part of the tenant) ; O'Brien v. Heman (1915) 191 Mo. App. 477, 499, 177 S. W. 805 (landlord and tenant both lia- ble) ; Mancusco v. Kansas City (1898) 74 Mo. App. 138, 144. 6. Hulett V. M. K. & T. R. R. (1899) 80 Mo. App. 87, 90; Graves V. R.'R. (1908) 133 Mo. App. 91, 98, 112 S. W. 736; Wayland v. R. R. (1862) 75 Mo. 548, 556. 7. McGowan v. Mo. Pac. R. R. (1886) 23 Mo. App. 203, 208; O'Brien v. Burroughs Co. (1915) 191 Mo. App. 501, 507, 177 S. W. 811.- 8. Clarke v. Thatcher (1881) 9 Mo. App. 436, 438 (tenant from month to month not entitled to injunction). In Whalen v. Baker (1891) 44 Mo. 290 it ,was held that where land belonging to a wife Is occupied by her and her husband as a home, the husband and not the wife is the proper party to bring an action for damages for a nuisance which does no permanent injury to the freehold. 10. Griffith V. Lewis (1885) 17 Mo. App. 605, 612 (liability for percolation of water from privy vault causing injury to health does not arise till after notice and a reasonable time to repair). § 210, Joint actors — independent actors. 2. Martinowsky v. City of Hannibal (1889) 35 Mo. App. 70, 77. 092 MISSOURI APPENDIX § 211. Whether Issue at law must first be direcrted. 4. Arnold v. Klepper (1857) 24 Mo. 273, 277. In Walton v. Mar- tin (1842) 7 Mo. 307, 311, the court gave as one reason for refusing relief that the plaintiff had not established his right at law (ob- struction of private water course). See also Baker v. McDaniel (1903) 178 Mo. 447, 468, 77 S. W. 531. 5. See the odd remark In Carpenter v. Grisham (1875) 59 Mo. 247, 250, that the requirement is more particularly applicable to nui- sance than to trespass. 6. Hayden v. Tucker (1860) 37 Mo. 214, 222 (only necessary where a question of title involved or the right itself is doubtful or uncertain; a purchaser of land is entitled to an injunction tho the nuisance was in existence before he purchased) ; Harrelson v. R. R. (1899) 151 Mo. 482, 500, 52 S. W. 368: "In a clear case a court of equity will grant relief without waiting for the slow process of law." In McNulty v. Miller (1912) 167 Mo. App. 134, 151 S. W. 208 relief was given tho there had been no trial at law. In Atterbury v. West (1909) 139 Mo. App. 180, 186, 122 S. W. 1106: "Since the decision in that case (Paddock v. Somes (1890) 102 Mo. 226, 240, 14 S. W. 746) the courts are holding that it is not necessary to first establish the fact of the existence of the nuisance by a court of law etc." In Geltz v. Amsden (1907) 125 Mo. App. 592, 596, 102 S. W. 1037: "his right must be clear and the injury established, as in doubtful cases the party will be turned over to his legal remedy"; but see Shelton v. Cummins (1916) 189 S. W. 1191. § 213. Balance of convenience — existence of nuisance. 5. See Bradbury Marble Co. v. Laclede Gaslight Co. (1907) 128 Mo. App. 46, 107, 106 S. W. 594; Gibson v. Donk (1879) 7 Mo. Apt). 37, 40; Morie v. St. Louis Transit Co. (1905) 116 Mo. App. 12, 27, 91 S. W. 962. § 214. Same — adequacy of damages. 2. Foudry v. R. R. (1908) 130 Mo. App. 104, 116, 109 S. W. 80; Victor Mining Co. v. Morning Star Mining Co. (1892) 50 Mo. App. 525, 534 (removal of lateral support; injunction refused); Schopp V. Schopp (1911) 162 Mo. App. 558, 565, 142 S. W. 740. § 215. Same — perpetual injunction. 7. Hayden v. Tucker (1866) 37 Mo. 214, 224: "Why compel the party to commence a fresh action every day to establish each separate act of nuisance, when the whole can be finally concluded and set at rest by the chancellor, etc." MISSOURI APPENDIX 693 E. DiSTUBBANCE OF PBIVATE EASEMENTS. § 216. Private easements distinguished from natural rights — remedies. 6. Equity will also enjoin the wrongful interference with a profit or similar right; State ex ret v. Goodrich (1911) 238 Mo. 720, 142 S. W. 300 (contractual' right to cut and remove tlmher from land). See also Harber v. Evans (1890) 101 Mo. 661, 668, 14 S. W. 750 (defendant restrained from putting windows in party wall though plaintiff did not intend to use wall). § 217. Light and air. 2. An injunction was given in St. Louis etc. Co. v. Rennet's Est. (1903) 101 Mo. App. 370, 397, 74 S.' W. 474 (smoke stack and oriel windows). § 218.' Eight of way. 1. Swisher v. C. & A. R. R., 235 Mo. 420, 441, 138 S. W. 505 (plaintiff had a right of way ten feet wide and defendant had ob- structed it so as to make it only six feet ten inches wide) ; Sultzman V. Branham (1907) 128 Mo. App. 696, 701, 108 S. W. 1074 (threatened obstruction of passage way). In Brier v. Bank (1909) 225 Mo. 673, 683, 125 S. W. 469, the court refused to order the removal of the ob- struction to the plaintiff's stairway because "there is no averment that any future injury is anticipated or threatened." The mere fact that the obstruction is already completed does not, however, prevent its causing injury in the future. If the plaintiff fails to prove the existence of an easement, he will, of course, fail; Peters v. Worth (1901) 164 Mo. 431, 439, 64 S. W. 490; Lentz v. Johnson (1911) 157 Mo. App. 483, 137 S. W. 1002. Conversely, the owner of the servient tenement may enjoin an un- authorized excessive use of the right of way; Bruner Granitoid Co. V. Glencoe etc. Co. (1912) 169 Mo. App. 295, 300, 152 S. W. 601. 2. But a licensee has no such interest in the land as will entitle him to equitable relief; Cook v. Ferbert (1898) 145 Mo. 462, 465, 46 S. W. 947. § 219. Land occupier's right of access to public way. 2. Downing v. Dinwiddie (1895) 132 Mo. 92, 100, 33 S. W. 470, 575; Corby v. C. R. I. & P. R. R. (1899) 150 Mo. 457, 468, 52 S. W. 282. 4. Lakenan v. R. R. (1889) 36 Mo. App. 363, 373; Downing v. Corcoran (1905) 112 Mo. App. 645, 649, 87 S. W. 114; Lockwood v. Wabash Ry. (1894) 122 Mo. 86, 100, 26 S. W. 698 (railroad in street); Corby v. C. R. I. & P. R. R. supra (railroad in alley) ; Zimmerman v. Metropolitan Street Ry. Co. (1910) 154 Mo. App. 296, 302, 134 S. W. 694 MISSOURI APPENDIX 40; "Watson v. Ry. Co. (1897) 69 Mo. App. 548, 552 (right to exclusive, temporary use of the whole or part of adjacent street for reasonable space of time for receiving and discharging freight necessary to his business); Sheedy v. Union Brick Works (1887) 25 Mo. App. 527, 539 (action for damages); Martin v. R. R. (1891) 44 Mo. App. 452, 457 (action for damages); Wallace v. R. R. (1891) 47 Mo. App. 491, 498 (action for damages); Rabich v. Stone (1909) 137 Mo. App. 318, 321, 117 S. W. 1195 (affirmative relief given); Downing v. Dinwiddle (1895) 132 Mo. 92, 100, 33 S. W. 470, 575; Hulett v. Ry. (1899) 80 Mo. App. 87," 91; Weller v. Lumber Co. (1913) 176 Mo. App. 243, 253, 161 S. W. 853 (access to navigable stream); In re Heffron (1913) 179 Mo. App.. 639, 655, 162 S. W. 652 (sidewalk obstructed by strikers); Schopp V. City of St. Louis (1893) 117 Mo. 131, 137, 22 S. W. 898 (in- junction given against the city's leasing stands in front of plaintifE's property to produce dealers); Schulenberg etc. Co. v. R. R. (1895) 129 Mo. 455, 459, 31 S. W. 796; Knapp, Stone & Co. v. St. Louis etc. R. R. (1894) 125 Mo. 26, 35, 28 S. W. 627; Getting v. Pollock (1915) 189 Mo. 263, 269, 175 S. W. 222. In Christian y. St. Louis (1894) 127 Mo. 109, 116, 29 S. W. 996, an injunction against the city's vacating an alley was refused because the damage was trifling, if any. And see Gay v. Mutual Union Tele- graph Co. (1882) 12 Mo. App. 485, 493 (telegraph poles not a sufficient obstruction) ; Gorman v. R. R. (1914) 255 Mo. 483, 496, 164 S. W. 509, 512; Kingshighway Co. v. Iron Works (1915) 266 Mo. 138, 149, 181 S. W. 30 (property not abutting). F. Obsteuction of Public Rights. § 220. Remedy of private individual at law. 3. Bailey v. Culver (1884) 84 Mo. 531, 538; Cummings Realty Co. V. Deere & Co. (1907) 208 Mo. 66, 82, 106 S. W. 496; Scheurich v. Light Co. (1904) 109 Mo. App. 406, 421, 84 S. W. 1003; Heer Dry Goods Co. V. Citizen's Ry. Co. (1890) 41 Mo. App. 63, 74; Shelton v. Lentz (1915) 191 Mo. App. 699, 705, 178 S. W. 242; Hisey v. City of Mexico (1894) 61 Mo. App. 248, 253 (but an awning is not necessarily an illegal obstruction) ; Ellis v. R. R. (1908) 131 Mo. App. 395, 399, ill S. W. 839: "The rule is that a complainant's damage must be such as is special and peculiar to him. If his damage is of like kind with that of the general public, though greater, he cannot recover. But it must be borne in mind that the fact that others may be in the same situation with plaintiff as regards the effect upon the use of their property, yet that will not bring- her within the rule preventing her recovery. There may be others in the same block as effectually cut off by J;he embankment as is the plaintiff; still she may recover. Others being in like situation with her and suffering the same kind of dam- age does not constitute the general community in the sense of the rule just stated"; Weller v. Lumber Co. (1913) 176 Mo. App. 243, MISSOURI APPENDIX 695 251, 61 S. W. 853; In re Heffron (1913) 179 Mo. App. 639, 654, 162 S. W. 652 (interference with land occupier's right of access to public way called a peculiar damage, etc.). In Morie v. St. Louis T'ransit Co. (1905) 116 Mo. App. 12, 27, 91 S. W. 962, the plaintiff failed to get relief because a switch frog "liable to catch and hold vehicles" was not a nuisance. 5. Sullivan Realty Co. v. Crockett (1911) 158 Mo. App. 573, 582, 138 S. W. 924 (either private citizen or city officials may abate cess pool in street if no unnecessary damage done). § 221. Bemedy of private individual in equity. 1. Glaessner v. Anheuser-Busch Co. (1890) 100 Mo. 508, 516, 13 S. "W. 707 (railroad track in street) ; Ruckert v. Grand Ave. Ry. (1901) 163 Mo. 260, 278, 63 S. W. 814; Gorman v. C. B. & Q. R. R. (1913) 255 Mo. 483, 495, 164 S. W. 509; Kingshighway Supply Co. V. Iron Works (1915) 266 Mo. 138, 150, 181 S. W. 30. 2. In the following cases the plaintiff was held entitled to equita- ble relief: Sheppard v. May (1899) 83 Mo. App. 272 (highway va- cated); McKinney v. Northcutt (1905) 114 Mo. App. 146, 161, 89 S. W. 351 (obstruction of navigable stream); Dubach v. R. R. (1886) 89 Mo. 483, 489, 1 S. W. 86; Cummings v. St. Louis (1886) 90 Mo. 259, 263, 2 S. "W. 130; Baker v. McDaniel (1903) 178 Mo. 447, 472, 77 S. W. 531; ("but this power is usually exercised at the instance of the public and not private individuals") ; Swinhart v. Ry. Co. (1907) 207 Mo. 423, 436, 105 S. W. 1043; Tracy v. Brittle (1908) 213 Mo. 302, 317, 112 S. W. 45 (interference with public burying ground) ; Wooldridge v. Smith (1912) 243 Mo. 190, 204, 147 S. W. 1019 (dic- tum) ; Ettenson v. R. R. (1912) 248 Mo. 395, 421, 154 S. W. 785 (tracks in street) ; Sherlock v. K. C. Belt R. R. (1897) 142 Mo. 172, 186, 43 S. W. 629 (tracks in street); Heer Dry Goods Co. v. Ry. Co. (1890) 41 Mo. App. 63, 81; State v. Saline Co. Court (1873) 51 Mo. 350, 381. In Givens v. Mcllroy (1894) 79 Mo. App. 671, 678, the plain- tiff failed to get an injunction against the maintenance of a toll gate because he could not show peculiar damage. In State ex rel. v. Paper Co. (1913) 173 Mo. App. 718, 720, 160 S. W. 9 it was held that suit was properly brought by the State on re- lation of the owner of an adjoining building, to enjoin the maintenance of platforms in the street. In Versteeg v. "Wabash R. R. (1913) 250 Mo. 61, 73, 156 S. W. 689, the plaintiff was barred by laches. In Julia Bldg. Ass'n v. Bell Telephone Co. (1883) 13 Mo. APP. 477, 486 an injunction against the maintenance of a telephone pole in the street was refused because it had been licensed by the city and was not inconsistent with the public easement. In Cummings Realty Co. v. Deere & Co. (1907) 208 Mo. 66, 84, 106 S. W. 49fi. the court held that the peculiar damage requirement 696 MISSOTJEI APPENDIX applied equally whether the plaintiff sought damages or an injunction. And see Scheurich v. Light Co. (1904) 109 Mo. App. 406, 421, 84 S. W. 1003; Atterhury v. West (1909) 139 Mo. App. 180, 186, 122 S. W. 1106; Gay v. Mutual Union Telegraph Co. (1882) 12 Mo. App. 485, 493 (dictum). § 222. Remedy of puhlic — purprestures. 1. State ex rel. v. Vandalia (1900) 119 Mo. App. 406, 419, 94 S. W. 1009 (obstruction in street); State ex rel. v. Busse (1911) 153 Mo. App. 466, 134 S. W. 680; State ex rel. v. Road Co. (1907) 207 Mo. 54, 721, 105 S. W. 752; State ex rel. v. Gravel Road Co. (1905) 116 Mo. App. 175, 202, 92 S. "W. 153; State ex rel. v. Paper Co. (1913) 173 Mo. App. 718, 721, 160 S. W. 9. In State ex rel. v. Feitz (1913) 174 Mo. App. 456, 160 S. W. 585, the defendant had heen indicted and fined but failed to remove the obstruction; an injunction was given at the suit of the prosecuting attorney. Or the proper public ofiicial may abate; Heitz v. St. Louis (1892)" 110 Mo. 618, 626, 19 S. W. 735; Galloso v. Sikeston (1907) 124 Mo. App. 380, 101 S. W. 715. G. PuBUc Nuisance. § 223. Definition. 6. In State ex rel. v. Uhrig (1883) 14 Mo. App. 413 the court re- fused to enjoin an unlicensed saloon tho it was a public nuisance. 7. State ex rel. v. Canty (1907) 207 Mo. 439, 459, 105 S. W. 1078 (bull fight) ; State ex rel. v. Moon (1918) 202 S. W. 609; State ex rel. V. Lamb (1911) 237 Mo. 437, 456, 141 S. W. 665 (disorderly house); State ex rel. v. Jones (1918) 202 S. W. 606. See Ex parte Laymaster V. Goodin (1914) 260 Mo. 613, 619, 168 S. W. 754 (Injunction refused against bawdy house because not a public nuisance) ; State ex rel. V. Moffett (1910) 194 Mo. App. 286, 291, 188 S. W. 930 (injunction re- fused against wholesale liquor house because not shown to be a public nuisance); State ex rel. v. Kirkwood Club (1916) 187 S. W. 819; State ex rel. v. R. R. (1917) 191 S. W. 1051; State ex rel. v. Woolfolk (1916) 269 Mo. 389, 395, 190 S. W. 877. , § 224. Remedy of the public. 2. In Missouri such suits are brought by the prosecuting attor- ney: State ex rel. v. Lamb (1911) 237 Mo. 437, 451, 141 S. W. 665; State ex rel. v. Excelsior Powder Co. (1914) 259 Mo. 254, 271, 169 S. W. 267 (powder magazine close to village). That the public is not barred by laches or the statute of limitations see State ex rel. v. Excelsior Powder, Co., supra at page 284; but a private individual is apparently barred; see Skinner v. Slater (1911) 159 Mo. App. 589, 592, 141 S. W. 733; Smith v. Sedalia (1899) 152 Mo. 283, 300, 53 S. MISSOURI APPENDIX 697 W. 907; Schumacher v. Shawhan (1902) 93 Mo. App. 573, 579, 67 S. W. 717. 3. City of Kansas v. McAleer (1888) 31 Mo. App. 433 (city also had power under charter to declare what is a nuisance). But not if city itself created the nuisance on the defendant's land; City of Hanni- bal V. Richards (1889) 35 Mo. App. 15, 21. 4. See State ex rel. v. Hager (1886) 91 Mo. 4'52, 455, 3 S. W. 844. If after a reasonable time the city does not abate a nuisance in a pub- lic street, the city becomes liable for consequences as if it had itself created the nuisance; Roth v. City of St. Joseph (1912) 164 Mo. App. 26, 30, 147 S. W. 490. § 225. Remedy of private individual. 3. Unfortunately the confusion has apparently pervaded the Mis- souri decisions; Hayden v. Tucker (1866) 37 Mo. 214, 221; Schoen V. Kansas City (1895) 65 Mo. App. 134, 138 (sewage) ; Warren v. Cavanaugh (1888) 33 Mo. App. 102, 109 (stone quarry); Hodson v. Walker (1913) 170 Mo. App. 632, 637, 157 S. W. 104 (bawdy house); Smith v. McConathy (1848) 11 Mo. 517, 521 (distillery and hog pens) ; Bothe V. R. R. (1914) 181 Mo. App. 720, 723, 164 S. W. 709 (noisy coal chute). The mere fact that a city has declared to be a nuisance a frame building within the fire limits of the city does not entitle a private individual to enjoin; Rice v. Jefferson (1892) 50 Mo. App. 464, 471. H. Common Law Copykight — Statutory Monopolies. § 228. Statutory copyright. 7. It is well settled that equity will protect a franchise against continuous interference whether it was granted by statute or munici- pal ordinance, damages being inadequate because conjectural; St. Louis R. R. Co. V. North Western etc. Co. (1878) 69 Mo. 65, 71 (street railway); Springfield Ry. Co. v. Springfield (1885) 85 Mo. 674, 677 (street railway protected against wrongful acts of city); Cauble v. Craig (1902) 94 Mo. App. 675, 682, 69 S. W. 49 (ferry); Carroll v. Campbell (1891) 108 Mo. 551, 558, 17 S. W. 884 (ferry); Capital City Perry Co. v. Cole & Callaway Trans. Co. (18,92) 51 Mo. App. 228, 234. In Challis v. Davis (1874) 56 Mo. 25, 27, the plaintiff asked for an injunction against interference with his ferry on the Missouri River at Atchison but failed because he did not show that he had any ex- clusive right on the Kansas shore. I. Inteepeeence with Trade Inteeests — Feaud. § 229. Trade secrets. 4. Luckett V. Orange Julep Co. (1917) 271 Mo. 289, 296, 196 S. W. 740. And see Pope-Turnbo v. Bedford (1910) 147 xMo. App. 692, 698 MISSOURI APPENDIX 699, 127 S. W. 426 (agreement not to mention having learned from plaintiff a method of treating the hair, except in connection with the use of plaintiff's remedies). § 230. Trade marks. 1. In St. Louis Piano Mfg. Co. v. Merkel (1876) 1 Mo. App. 305, 312, the plaintiff failed to get an injunction because the name "Bell Treble" had not been affixed to its pianos. 3. Skinner v. Oakes (1881) 10 Mo. App. 45, 54; Gamble v. Stephenson (1881) 10 Mo. App. 581; McCann v. Anthony (1886) 21 Mo. App. 83, 91 (smoking tobacco); Drummond Tobacco Co. v. Tins- ley Tobacco Co. (1892) 52 Mo. App. 10, 26 (not necessary to show that any purchaser was actually deceived; enough that the ordinary con- sumer was likely to be deceived) ; Gaines & Co. v. Whyte Grocery Co. (1904) 107 Mo. App. 507, 529, 81 S. W. 648 ("Old Crow Whiskey"); Filley V. Fassett (1869) 44 Mo. 168, 178 ("Charter Oak Stoves"); Lig- gett & Meyers Tobacco Co. v. Sam Reid Tobacco Co. (1890) 104 Mo. 53, 61, 15 S. W. 843 ("Star" and "Buzz Saw" tobacco); McCartney v. Garnhart (1870) 45 Mo. 593: "to justify an injunction, it should at least appear that the resemblance between the two brands was suf- ficiently close to raise the probability of mistake on the part of the public or design and purpose to mislead and deceive on the part of the defendant"; Breimeyer v. Star Bottling Co. (1912) 165 Mo. App. 383, 391, 147 S. W. 526 (refilling bottles marked with plaintiffs ndme). In Westminster Laundry Co. v. Hesse Envelope Co. (1913) 174 Mo. App. 238, 156 S. W. 767, the plaintiff failed to get relief because the word "stopurkieken" had not yet become a part of plaintiff's business. In Shelley v. Sperry (1906) 121 Mo. App. 429, 441, 99 S. W. 488, the plaintiff had merely supplied the defendants with washing powder which they advertised under their own names in their own packages; plaintiff having never appropriated a trade mark or trade name to his product was denied an injunction against the defendant's selling in the same sort of packages, washing powder bought from others. 7. Alden v. Gross (1887) 25 Mo. App. 123, 130 ("fruit" vinegar); Oakes v. St. Louis Candy Co. (1898) 146 Mo. 391, 398, 48 S. W. 467 ("what is it?"); Reach Co. v. Hardware Co. (1910) 155 Mo. App. 412, 425, 135 S. W. 503 ("American League" base ball). 8. Skinner v. Oakes (1881) 10 Mo. App. 45, 56. § 231. Cases analogous to trade marks — unfair competition. 1. See Gaines & Co. v. Whyte Grocery Co. (1904) 107 Mo. App. 507, 517, 81 S. W. 648: "the underlying principles in cases involving trade marks and unfair com.petition are the same". In Covert v. Bernat (1911) 156 Mo. App. 687, 690, 138 S. W. 103 the sign of a shoe repairer over his place of business was held not to be a trade mark but relief was given against unfair competition. MISSOUEI APPENDIX 699 In Conrad v. Uhrig Brewing Co. (1880) 8 Mo. App. 277, 285, relief at law was sought and given. 6. St. Louis etc. Co. v. Eclipse Carljonating Co. (1894) 56 Mo. App. 411, 418 ("New Orleans Mead"). 7. Sanders v. Jacob (1885) 20 Mo. App. 96 ("New York Dental Rooms" and "Newark Dental Rooms"); Plant Seed Co. v. Michel Plant & Seed Co. (1886) 23 Mo. App. 579, 584; (1889) 37 Mo. App. 313, 323; American Brewing Co. v. St. Louis Brewing Co. (1891) 47 Mo. App. 14, 21; Furniture Hospital v. Dorfman (1914) 179 Mo. App. 302, 310, 166 S. W. 861; Lo Buono v. Macaroni Mfg. Co. (1917) 197 Mo. App. 618, 627, 198 S. W. 498. 8. Probasco v. Bonyon (1876) 1 Mo. App. 241, 244 ("Oakes' Candies") ; Williamson Corset & Brace Co. v. Western Corset Co. (1887) 70 Mo. App. 424, 430. 9. See McCartney v. Garnhart (1870) 45 Mo. 592, 595 (same rule -applies to trade mark case). 10. See Alden V/. Gross (1886) 25 Mo. App. 123, 131; Grocers Journal Co. v. Midland Pub. Co. (1907) 127 Mo. App. 356, 369, 105 S. W. 310; Baum Mercantile Co. v. Levin (1915) 189 Mo. App. 237, 251, 174 S. W. 442: "while plaintiff's conduct with reference to vili- fication of the defendants was extremely reprehensible, and while it was improper for plaintiff to take such action when its rights had been submitted to a court of equity, still the acts were not so con- nected with the subject matter of this suit, to-wit, the unlawful con- duct of the defendants, as to bar the right to relief." § 232. Protection of non-commercial names. 2. See Kansas City Masonic Temple Co. v. Young (1914) 179 Mo. App. 278, 282, 166 S. W. 838 (defendants were soliciting sub- scriptions to an oflScial publication of the temple Company, repre- senting that they had authority) ; Grand Chapter v. United Grand Chapter (1902) 93 Mo. App. 560, 67 S. W. 732. J. Inieefeebnce With Contract and Business Relations. § 235. Interference with "probable expectancies" of an employer — strikes and boyco'tts. 3. Hamilton Brown Shoe Co. v. Saxey (1895) 131 Mo. 212, 222, 32 S. W. 1106; Gast Bank Note Co. v. Fennimore Ass'n (1899) 79 Mo. App. 612, 615; In re Heffron (1913) 179 Mo. App. 639, 658, 162 S. W. 652 (but no injunction should issue against distributing cards and circulars or against patrolling). 5. In Marx & Haas Co. v. Watson (1901) 168 Mo. 133, 150, 67 S. W. 391 relief was refused on the ground that it would be an unwarranted interference with freedom of speech tho defendants insolvent; but in Lohse Patent Door Co. v. Fuelle (1908) 215 Mo. 421, 474, 114 S. W. 997, relief was given. See also Walsh v. Ass'n of Master Plumbers (1902) 97 Mo. App. 280, 293, 71 S. W. 455. 700 MISSOUEI APPENDIX § 237. Interference with "probable expectancies" of a competitor; of a non-competitor. 12. Swalne v. Blackmore (1894) 75 Mo. App. 74 (injunction given against causing discharge by threats). In Clarkson v. Laiblan (1913) 178 Mo. App. 708, 715, 161 S. W. 660, the plaintiff, a non-union man, obtained an Injunction against the defendant, a labor union, causing plaintiff's discharge by threats of a strike. 14. In State ex rel. v. Assurance Companies (1913) 251 Mo. 278, 280, 158 S. W. 640, it was held that it was unlawful for insurance companies to combine to leave the State and that the State could enjoin their doing so because of the irreparable damage to the busi- ness of the State. K. DEFAMATIo^f — Interference with Privacy. § 238. Disparagement of property. 7. Flint V. Hutchinson etc. Co. (1892) 110 Mo. 492, 500, 19 S. W. 804, citing Boston Diatite Co. v. Florence Mfg. Co.; Consumers Gas Co. V. Kansas City Gaslight etc. Co. (1890) 100 Mo. 501, 507, 13 S. W. 874; Thummel v. Holden (1899) 149 Mo. 677, 685, 51 S. W. 404. § 239. Disparagement of character — libel and slander. 8. Life Ass'n v. Boogher (1876) 3 Mo. App. 173, 180, citing Du Bost v. Beresford, Gee v. Pritchard and Brandreth v. Lance; and see State V. Uhrig (1883) 14 Mo. App. 413, 415. 10. Marx & Haas Clothing Co. v. Watson (1901) 168 Mo. 133, 148, 67 S. W. 391; Wolf v. Harris (1915) 267 Mo. 405, 410; 184 S. W. 1139; but the court said that if after a jury found the publication to be defamatory the defendant persisted in the publication and was in- solvent, equity would then enjoin. 11. See State v. Uhrig (1883) 14 Mo. App. 413, 415. § 240. Interference with privacy. 6. In Munden v. Harris (1910) 153 Mo. App. 652, 660, 134 S. W. 1076, the court seems to consider it a right of property. 8. Munden v. Harris, supra. L. INTEEFEKENCE WITH DOMESTIC, SOCIAL AND 'POLITICAL RELATIONS. § 241. Interference with domestic relations. 1. See Brewer v. Cary (1910) 148 Mo. App. 193, 211, 127 S. W. 685 (contract by father to allow child to be brought up a Catholic). § 242. Interference with social relations. 1. Froelich v. Musician's Ass'n (1902) 93 Mo. App. 383, 390. MISSOUKI APPENDIX 701 In Lysaght v. St. Louis Ass'n (189S) 55 Mo. App. 538, 545, it was held that mandamus would lie to restore membership where property interests were involved and where the expulsion was wrongful. See also State ex rel. Young v. Temperance Ben. Soc'y, (1890) 42 Mo. App. 485, 490. That there is an action at law for wrongful expulsion in such a case see Ludowiski v. Benevolent Soc'y (1888) 29 Mo. App. 337, 340. § 243. Interference with political relations. 1. Pitman v. Drabelle (1915) 267 Mo. 78, 89, 183 S. W. 1055 (legislation by initiative method); Albright v. Fisher (1901) 164 Mo. 56, 65, 64 S. W. 106 (municipal ordinance) ; Atkinson v. Wyckoff (1894) 58 Mo. App. 86, 90 (passing municipal ordinance). But aliter- as to ministerial acts; State ex rel. v. Gates (1905) 190 Mo. 540, 560, 89 S. W. 881 (injunction against entering into a fraudulent con- tract). 2. State ex rel. v. Aloe (1899) 152 Mo. 466, 480, 54 S. W. 494; State ex rel. v. Withrow (1899) 154 Mo. 397, 403, 55 S. W. 460. 3. In Arnold v. Henry (1899) 155 Mo. 48, 54, 55 S. W. 1089 the . proper common law remedy was apparently quo warranto to determine title to the office of election commissioners. 7. See Johnson v. Jones (1899) 82 Mo. App. 204, 216. Chapter IV. Prevention or Crimes and Criminal Proceedings. § 244. Prevention of crimes. 2. State ex rel. v. Schwelckardt (1891) 109 Mo. 496, 515, 19 S. W. 47; Hodson v. Walker (1913) 170 Mo. App. 632, 637, 157 S. W. 104; "Equity can never be used as a means of enforcing the criminal laws or of restraining the commission of crime where it is not con- nected with property rights"; Rice y. Jefferson (1892) 50 Mo. App. ' 464, 488 (frame building prohibited by municipal ordinance, not a nuisance); Warren v. Cavanaugh (1888) 33 Mo. App. 102, 108 (stone quarry opening forbidden by ordinance); Hodson v. Walker (1913) 170 Mo. App. 632, 637, 157 S. W. 104. 3. State ex rel. Zachritz (1901) 166 Mo. 307, 313, 65 S. W. 999 (injunction against Jockey club exercising privilege of book- making under fraudulently obtained license) ; Caskey v. Edwards (1907) 128 Mo. App. 237, 243, 107 S. W. 37 (livery stable a public nuisance) ; State ex rel v. Feitz (1913) 174 Mo. App. 456, 461, 160 S. W. 585 (obstruction of public road); State ex rel. v. Woolfolk (1916) 269 Mo. 389, 395, 190 S. W. 877; State ex rel. v. Canty (1907) 207 Mo. 439, 458, 105 S. W. 1078 (bull fight); State ex rel. v. Moon (1918) 202 S. W. 609; State ex rel. v. Salley (1916) 190 S. W. 940; State ex rel. V. Kirkwood etc. Club (1916) 187 S. W. 819. 5. But in State ex rel. v. Chambers (1915) 192 Mo. App. 496, 182 S. W. 775, the court refused to enjoin a bawdy house because it was 702 MISSOUEI APPENDIX not a public nuisance but an ordinary crime for which there should be a jury trial; Ex parte Laymaster (1914) 260 Mo. 613, 619, 168 S. W. 754;. State ex rel. v. Woolfolk (1916) 269 Mo. 389, 397, 190 S. W. 877 (saloon). In State ex rel. v. Brewing Co. (1916) 270 Mo. 100, 111, 192 S. W. 1022, the injunction was refused because causal connection between the defendant's act and the illegal sale of liquors was not phown. § 245. Prevention of criminal proceedings. 4. In Sylvester Coal Co. v. St. Louis (1895) 130 Mo. 323. 330, 32 S. W. 649, the court held that the rule did not apply to municipal ordinances which are not criminal but penal; but see Kansas City Cable Ry. Co. v. City of Kansas (1888) 29 Mo. App. 89, 99 (ordinance requiring flagmen or watchmen to be kept at certain points Is penal and hence equitable relief refused). 10. In Modern Horse Shoe Club v. Stewart (1912) 242 Mo. 421, 431, 146 S. W. 1157, relief against repeated and oppressive police raids was refused because plaintiff was violating the law and did not have clean hands; for a somewhat similar decision see Kearney V. Laird (1912) 164 Mo. App. 406, 412, 144 S. W. 904. Chapter V. Trusts. § 247. Statute of uses and its results. 3. If the grantee of the legal title has no active duties the stat- ute of uses operates tho the grantee Is called a trustee; Jones v. Jones (1909) 223 Mo. 424, 441, 123 S. W. 29; Carter v. Long (1904) 181 Mo. 701, 710, 81 S. W. 162; Blumenthal v. Blumenthal (1913) 251 Mo. 693, 703, 158 S. W. 648; Glasgow v. Mo. Car Co. (1910) 229 Mo 585, 595, 129 S. W. 900 (no duties after death of married woman cestui). But the statute does not apply to a purchase money resulting trust, though there are no active duties; Shelton v. Harrison (1914) 182 Mo. App. 404, 418, 167 S. W. 634. See Rev. Stat. 1909, § 2867: "use, confidence or trust." § 248. Uses not affected by the statute of uses — trusts. 2. Walter v. Walter (1871) 48 Mo. 140, 145. 3. Pugh V. Hayes (1892) 113 Mo. 424, 432, 21 S. W. 23; Webb V. Hayden (1901) 166 Mo. 39, 48, 65 S. W. 760; Newton v. Rebenack (1901) 90 Mo. App. 650, 657. 5. Guest V. Farley (1853) 19 Mo. 147, 151. § 249. Ways in which express trusts may be created. If A executes a note to B in trust for C, it is substantially within class (2); Callaway v. Johnson (1872) 51 Mo. 33, 36; so. If a lease MISSOURI APPENDIX 703 Is executed to B in trust for C; 'Gear v. Zinc Co. (1907) 126 Mo. App. 173, 177, 103 S. W. 151. Where money is deposited in a bank for the use of another, it is properly classified under (3), the donor becoming trustee of the chose in action for the donee. Ttat one may declare himself trustee, see Citizens Bk. v. McKenna (1912) 168 Mo. App. 254, 257, 153 S. W. 521. § 250. Classification of trusts. 1. Damschroeder v. Thias (1872) 51 Mo. 100, 104; Baier v. Ber- ' berich (1870) 6 Mo. App. 537. In Ferguson v. Robinson (1914) 258 Mo. 113, 129, 167 S. W. 447, the court's classification of trusts is substantially like that In the text. B. Trusts Compabed with Similar Relations. § 252. With relation of principal and agent. 1. That an undisclosed principal may sue the third party, see TurnhuU v. Watkins (1876) 2 Mo. App. 235, 239; that the agent may also sue, see Simons v. Wittmann (1905) 113 Mo. App. 357, 374, 88 S. W. 791. In Forgey v. Gilbirds (1914) 262 Mo. 44, 67, 170 S. W. 1135, the court stated that "the rule is well settled that specific performance may be enforced either by or against an undisclosed principal, when his duly authorized agent, in his own name, within the scope of his authority contracts concerning, the sale or purchase of land;" and see Kelly v. Thuey (1897) 143 Mo. 422, 438, 45 S. W. 300, overruling Kelly v. Thuey (1890) 102 Mo. 522, 530, 15 S. W. 62; Randolph v. Wheeler (1904) 182 Mo. 145, 154, 81 S. W. 419. By express statute in Missouri an agent may apparently sue on a contract made by him for the benefit of his principal even though the principal is disclosed. Rev. St. 1909 § 1730: "An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue in his own name without joining with him the person for whose benefit the suit is prosecuted. A trustee of an express trust, within the meaning of this section, shall be con- strued to include a person with whom or in whose name a contract is made for the benefit of another." § 253. With a debt. 1. Koyl V. Lay (1916) 194 Mo. App. 291, 297, 187 S W. 279, 196 S. W. 433: "Plaintiffs are therefore driven to the position of seeking to create a trust in money by reason of the guardian making a contract with each of them whereby he promised that he would pay each of them a certain sum in the future. But that amounts to a mere promise which ought not to be connected with an express continuing trust." 4. Chiles v. Garrison (1862) 32 Mo. 475. See Paul v. Draper (1900) 158 Mo. 197, 203, 59 S. W. 77 (general deposit of trust funds). 704 MISSOURI APPENDIX § 254, Sanle — ^payment of interest as a test. 2. In Shortrldge v. Harding (1889) 34 Mo. App. 354, 358, the defendant was to pay interest out of his own pocket; hence he was not a trustee and the statute of limitations ran in his favor. § 255. Same — a trust changed into a deht. 2. Young V. Hudson (1§89) 99 Mo. 102, 12 S. W. 632 (indorsee for collection may sue); West Plains Bank v. Edwards (1900) 84 Mo. App. 462 (ditto); Howe v. Mittelherg (1902) 96 Mo. App. 490, 492, 7Q S. W. 396 (ditto); see Midland Bk. v. Brightwell (1898) 148 Mo. 358, 364, 49 S. W. 994: "When a note or draft is sent hy one individual or bank to another hank for collection and to remit the proceeds to the sender, the relation of principal and agent is created, and not that of creditor and debtor." That a trustee can not ordinarily change his obligation into that of debtor without the cestui's consent, see Deming Co. v. Webb (1898) 76 Mo. App. 329, 337 (goods sent on con- signment). That the relation between a bank and its general depositors of money is that of debtor and creditor, see Butcher v. Butler (1908) 134 Mo. App. 61, 70, 114 S. W. 564 (even though the depositor is a trustee for a third party). 3. In Missouri, if a bank gives, credit to the depositor of a check on another bank and allows him to draw against it, the presumption is that there is a purchase; Mudd v. Bank (1913) 175 Mo. App. 398, 402, 162 S. W. 314; Ayers v. Bank (1883) 79 Mo. 421, 424. § 256. Same — trustee liable also as if he were a debtor. 2. Contra, Daly v. Butchers etc. Bk. (1874) 56 Mo. 94, 101. But in Landa v. T'rader's Bank (1906) 118 Mo. App. 356, 364, 94 S. W. 770, the defendant forwarding bank was held liable to the customer because there was an express agreement that the bank should receive ten cents per hundred dollars for collection, the court citing Mackersy V. Ramsays with approval. It would seem that the court placed rather undue emphasis upon the contract. § 257. Same — remedies against debtor and trustee. 13. Zeideman v. Molasky (1906) 118 Mo. App. 106, 119, 94 S. W. 754. § 258. With contract for benefit of a third person. 7. One who would profit incidentally but who is not specifically intended to be benefitted by the contract can not recover thereon; St. Louis V. Wright Contracting Co. (1906) 202 Mo. 451, 460, 101 S. W. 6; (1907) 210 Mo. 491, 109 S. W. 6; Phoenix Ins. Co. v. Trenton Water Co. (1890) 42 Mo. App. 118, 123. MISSOUEI APPENDIX 705 8. In Shortridge v. Harding (1889) 34 Mo. App. 354, 358, the defendant's obligation was apparently to pay out of his general assets because he was to pay interest; hence the five year statute of limitations ran in his favor; but unfortunately the court calls it an implied trust. That the payment beneficiary may recover in Missouri see Robbins v. Ayres (1847) 10 Mo. 538; Rogers v. Gosnel (1873) 51 Mo. 460, 469; for a discussion of the effect of the real party in interest statute upon the right of the beneficiary, see University of Missouri Bulletin, Law Series, 4, pages 30-36. § 260. With an equi'table charge. 3. Dudgeon v. Dudgeon (1885) 87 Mo. 218, 222. That the remedy of the beneficiary is in equity and not in the probate court see Pres- byterian Church V. McElhinney (1876) 61 Mo. 540, 543. § 261. With au assignment of a chose in action. 3. There was a novation in James v. Hicks (1894) 58 Mo. App. 521, 527. 4. In Ashley v. Winston (1858) 26 Mo. 210, 212, the court calls it an "equitable assignment." 6. Where there is a trust created the beneficiaries thereof are entitled to have the trust funds applied to the payment of their claims to the exclusion of general creditors; Luthy v. Woods (1878) 6 Mo. App. 67, 70. 9. Where a chose in action is assigned by A to B in trust for X the relation between A and B is the same as if B had received the beneficial interest also; in such a case, under modern statutes, B is the proper party to sue; Howe v. Mittelberg (1902) 96 Mo. App. 490, 492, 70 S. W. 396. For the real party in interest statute in Missouri, see Rev. St. 1909, § 1730; and for a discussion of the effect of it, see University of Missouri Bulletin, Law Series, No. 4. § 262. Same — partial assignments. 1. Spright V. Kauftman (1889) 35 Mo. App. 455, 461; Green v. Von der Ahe (1889) 36 Mo. App. 394, 398; Ruddle v. Horine (1889) 34 Mo. App. 616, 621; Koenig v. Morrisson (1891) 44 Mo. 411, 414; Hill V. Chowning & Co. (1902) 93 Mo. App. 620, 626, 67 S. W. 750; Rundleman v. Boiler Works Co. (1913) 178 Mo. App. 642, 650, 161 S. W. 609; Puckett v. Annuity Ass'n (1908) 134 Mo. App. 501, 510, 114 S. W. 1039; Keller v. Olson (1914) 187 Mo. App. 469, 473, 173 S. W. 28. 4. Gerhart v. Fout (1896) 67 Mo. App. 423, 426; Fourth Nat'l Bk. V. Noonan (1885) 88 Mo. 372, 377. 5. See also Leonard v. Ry. Co. (1896) 68 Mo. App. 48; Bland v. Robinson (1910) 148 Mo. App. 16C 169, 127 S. W. 614; Pickett v. Bq.— 45 706 MISSOUBI APPENDIX School Dist. (1916) 193 Mo. App. 519, 526, 186 S. "W. 533: "in this State it is held that the same rule applies also In equity." The following cases are to be distinguished from cases of part assignment; one of two joint payees of a note may assign all his interest to another payee or to a third party; Smith v. Oldham (1838) 5 Mo. 483; McLeod v. Snyder (1892) 110 Mo. 298, 19 S. W. 494. When a building contract provided for retaining 15% of the contract price till 90 days after the completion, this was held to be a separable and therefore an assignable claim; Adler v. Ry. Co. (1887) 92 Mo. 242, 4 S. W. 917. Where two plaintiffs, for the purpose of con- solidating their two actions into one purchased each a half interest in the other's claim, the part assignment was held valid because it did not increase the number of actions for the defendant to litigate; Beardsley v. Morgner (1877) 4 Mo. App. 139, 144. 9. In Cheltenham Co. v. Cook (1869) 44 Mo. 29, 41, a bond was executed to B partly for his own use and partly for the use of X; B was the proper party to sue on the bond. § 263. With an executorship. 2. Powell V. Hurt (1888) 31 Mo. App. 632, 636. 4. In Hazel v. Hagan (1870) 47 Mo. 277, 281 (power of sale given to one wto was also executrix); Bramell v. Cole (1896) 136 Mo. 201, 209, 37 S. W. 924 (probate courts cannot declare trusts in estate distributed). 5. Wombles v. Young (1895) 61 Mo. App. 115, 118. Lincoln Trust Co. v. Tracy (1898) 77 Mo. App. 96, 102: "when one is clothed with a double fiduciary capacity, if one trust is fully executed and the amount of the trust fund authoritatively and definitely ascertained, the trustee may by. an unequivocal act change his liability for the fund from one trust to the other, provided he has the trust money or property in hand, or if he then or afterwards segregates the amount from his general estate." See State to use v. Anthony (1888) 30 Mo. App. 638, 641. If an executor becomes a trustee he becomes sub- ject to the jurisdiction of the equity court instead of the probate court; Johnston v. Grice (1917) 272 Mo. 423, 429, 199 S. W. 409. 8. That the Statute of Limitations begins to run against the distributees in favor of the executor or administrator from the date of final settlement, see State ex ret v. Shires (1890) 39 Mo. App. 560, 567. 9. Bender v. Zimmerman (1899) 80 Mo. App. 138, 144; Poe v. Domie (1873) 54 Mo. 119, 127; Dillon's Adm'r v. Bates (I860) 39 Mo. 292, 301; McGuire v. Nugent (1890) 103 Mo. 167, 170, 15 S. W. 551; Ricord v. Watkins (1874) 56 Mo. 553, 555; Goodwin v. Goodwin (1879) 69 Mo. 617, 621; Kansas City v. Scarritt (1902) 169 Mo 471, 483, 69 S. W. 283. MISSOURI APPENDIX 707 And the same rule applies to resulting trusts; Condit v. Maxwell (1897) 142 Mo. 266, 277, 44 S. "W. 467. But where the defendant was never an intended trustee but a wrongdoer from the beginning, the Statute of Limitations begins to run in his favor at the time of the wrongful act; Johnson v. Smith's Adm'rs (1859) 27 Mo. 591, 59S (defendant intermeddled as guardian) ; State Savings Ass'n v. Kel- logg (1873) 52 Mo. 581. The directors of a corporation are frequently called trustees but they are liable at law and the Statute of Limitations runs at once in their favor; Landis v. Saxton (1891) 105 Mo. 480, 490, 16 S. W. 912. C. Essentials to the Creation and Existence of the Tetjst Relation. § 265. Iiauguage necessary to creation of a trust. 2. See dictum in Schmucker's Estate v. Reel (1876) 61 Mo. 592, 596; and see Simpson v. Corder (1914) 185 Mo. App. 398, 403, 170 S. W. 357 and cases cited. 3. Corby v. Corby (1884) 85 Mo. 371, 395; Lemp v. Lamp (1915) 264 Mo. 533, 546, 175 S. W. 618; Snyder v. Toler (1914) 179 Mo. App. 376, 384, 166 S. W. 1059 (criticism of old doctrine) ; State ex rel. V. McVeigh (1914) 181 Mo. App. 566, 575, 164 S. W. 673. That no particular form of words is necessary for the creation of a trust, see Moulden v. Train (1918) 199 Mo. App. 509, 511, 204 S. W. 65; In re Estate of Soulard (1897) 141 Mo. 642, 662, 43 S. W. 617. Evidence to establish a trust niust be clear, cogent and convincing; Darling v. Potts (1893) 118 Mo. 506, 529, 24- S. W. 461; Woodford v. Stephens (1873) 51 Mo. 443, 447. A conveyance to a son-in-law in consideration of love and affec- tion for the wife of the latter does not create a trust for her; Higbee V. Higbee (1894) 123 Mo. 287, 291, 27 S. W. 619. A bequest to the testator's daughter "for the sole use of herself and children'' was construed to carry a fee and not to create a trust; Small v. Field (1890) 102 Mo. 104, 128, 14 S. W. 815. § 267. Consideration — the law of trusts. 2. Leeper v. Taylor (1892) 111 Mo. 312, 324, 19 S. W. 955; Northrip v. Burge (1913) 255 Mo. 641, 654, 164 S. W. 584. 5. In re Estate of Soulard (1897) 141 Mo. 642, 660, 43 S. W. 617, there were words of gift but the court construed a trust from other circumstances. In Harris Banking Co. v. Miller (1905) 190 Mo. 640, 663, 670, 89 S. W. 629, an attempted assignment of a certificate of deposit which failed for want of delivery and because the donor ex- pressly desired to retain a life interest was held not to prevent the oral declarations at the time and later making the donor a trustee of the property for the donee after his death. 708 MISSOTJEI APPENDIX 6. Knapp v. Publishers (1894) 127 Mo. 53, 77, 29 S. W. 88^; Lane V. Bwing (1860) 31 Mo. 75, 86; Vanstone v. Goodwin (1890) 42 Mo. App. 39, 48; Godard v. Conrad (1907) 125 Mo. App. 165, 174, 101 S. W. 1108; Pennell v. Bnnls (1907) 126 Mo. App. 355, 360, 103 S. W. 147; Citizen's Bank v. McKenna (1912) 168 Mo. App. 254, 257, 153 S. W. 521. In Mlze V. Bates Co. Bank (1894) 60 Mo. App. 358, 363, the donor sur- rendered bank stock certificates and had new ones issued to himself as trustee for his children; this clearly created a trust for the children. § 268. Statute of frauds. 1. In Missouri a trust need not be created in writing; Cornelius V. Smith (1874) 55 Mo. 528, 533; Rev. St. 1909, § 2868: "All declara- tions or creations of trust or confidence of any lands tenements or hereditaments shall be manifested and proved by some writing signed by the party who is, or shall be, by law, enabled to declare such trusts, or by his last will, in writing, or else they shall be void, and all grants and assignments of any trust or confidence shall be In writing, signed by the party granting or assigning the same, or by his last will, in writing, or else they shall be void." It is to be noted that in the second provision of the statute with reference to assign- ments there is no limitation to interests in land, tho such a limita- tion was probably intended. 3. Pitts V. Weakley (1899) 155 Mo. 109, 55 S. W. 1055 (but where the transferor of the property is dead the oral proof seeking to fasten a trust upon the transferee will be received with caution) ; Northrip v. Burge (1913) 255 Mo. 641, 654, 164 S. W. 584; Kramer V. McCaughey (1892) 11 Mo. App. 426, 429 ("loose, vague and in- definite expressions" insufficient); Huetteman v. Viesselman (1892) 48 Mo. App. 582, 588 (strong proof from circumstances) ; Carroll v. Woods (1908) 132 Mo. App. 492, 501, 111 S. W. 885; Watson v. Payne (1910) 143 Mo. App. 721, 727, 128 S. W. 238 ("must be certainly in the proof beyond reasonable doubt from end to end"). In Mount Calvary Church v. Albers (1902) 174 Mo. 331, 340, 73 S. W. 508, the court held that parol evidence was not admissible to establish an express trust as to money, but they rely upon the second part of the statute of frauds (see supra, note 1) and upon Rogers V. Ramey (1896) 137 Mo. 598, 39 S. W. 66 and upon Woodford v. Stephens (1873) 51 Mo. 443, 448, neither of which is in point. 6. Mulock v. Mulock (1900) 156 Mo. 431, 440, 51 S. W. 122. The court seems to make this assumption in Price v. Kane (1892) 112 Mo. 412, 419, 20 S. W. 609; Curd v. Brown (1898) 148 Mo. 82, 9^2, 49 S. W. 990; Moulden v. Train (1918) 199 Mo. App. 509, 511, 204 S. W. 65. That after the transfer it is too late for the transferror to impose a trust, see Mussman v. Zeller (1904) 108 Mo. App. 348, 353, 83 S. W; 1021. MISSOUM APPENDIX 709 In Hunter v. Briggs (1913) 254 Mo. 28, 63, 162 S. W. 204, the court seems to say that only the transferror could satisfy the Statute of Frauds; but all that was necessary to decide was that the written memorandum signed by the grantee was not conclusive and there was no other evidence of the trust to support it. § 269. The subject matter of the trust. 3. Property not in existence at the time the trust was created: Dye V. Bowling (1899) 82 .Mo. App. 587, 591, (fees to be earned and collected). § 270. The cestui que trust — public or charitable trusts. 4. Schmidt v. Hess (1875) 60 Mo. 591, 599 (grant of land to un- incorporated church); Sappington v. School Fund Trustees (1894) 123 Mo. 32, 41, 27 S. W. 356 (for the "education of the most necessitous poor children in the county"); Barkley v. Donnelly (1892) 112 Mo. 561, 571, 19 S. W. 305 ("for a home and place for the maintenance and education of poor children") ; Crow v. Clay Co. (1906) 196 Mo. 234, 261, 95 S. W. 369 (to pay tuition for education of orphans or poor children within two miles of county seat). On the other hand, in Jones v. Patterson (1917) 271 Mo. 1, 7, 195 S. W. 1004, where money was bequeathed to X "to be used for missionary purposes in whatever field he thinks best to use it, so it Is done in the name of my dear Savior and fbr the salvation of souls" the trust failed because: "the scope of the field in which the trustee is intended to exercise this charity is as unlimited as human thought when applied to the determination of what constitutes a belief in the Christian religion. Thus given free rein in the exercise of his powers, no court could determine whether or not he was abusing his trust, or in other words, he would be free from judicial super- vision." This unfortunate result seems due to a failure of the court to recognize that the gift in Morice v. Bishop of Durhafn (1805) 9 Ves. Jr. 521, failed because it was not a case of a charity. For a somewhat similar unfortunate result see Board of Trustees v. May (1906) 201 Mo. 360, 369, 99 S. W. 1093 ("to the Methodist Church, South, and missionary cause"). 6. TTiat charities will be enforced by the attorney general, see Lackland v. Walker (1899) 151 Mo. 210, 243, 52 S. "W. 414; R. S. 1909 § 970. Where a chapel was directed to be erected for the use of the several evangelical denominations in the vicinity, property owners in the vicinity are not entitled to sue on behalf of the people of the township to enforce the trust; Holman v. Renaud (1909) 141 Mo. App. 399, 404, 125 S. W. 843. A county may act as trustee for a charity; R. S. 1909, §§ 3746-8. That the court will not act on its own initiative, see State ex rel. v. Rusk (1911) 236 Mo. 201, 215, 139 S. W. 199. 710 MISSOURI APPENDIX. For applications of the doctrine of cy pres see Academy of the Visitation v. Clemens (1872) 50 Mo. 167, 171; Barkley v. Donnelly (1892) 112 Mo. 561, 571, 19 S. W. 305; Goode v. McPherson (1872) 51 Mo. 126; Missouri Hist'l Soc'y v. Academy of Science (1887) 94 Mo. 459, 467, 8 S. W. 346 (jurisdiction not derived from Stat. 43 Eliz.); Women's Christian Ass'n v. Kansas City (1898) 147 Mo. 103, 121', 48 S. W. 960 (absolute physical impossibility not necessary to be shown). But the legislature has no power to modify the charter of a charitable corporation even with its consent. State ex rel. v. Adams (1869) 44 Mo. 570, 581. § 271. Same — private trusts. 7. In Schumucker's Est. v. Reel (1876) 61 Mo. 592, 601, a be- quest for masses failed, not because there was no one to enforce, but because it was in violation of the Missouri Constitution of 1865. 9. This case has unfortunately been followed even in the case of a charity in Missouri; Jones v. Patterson (1917) 271 Mo. 1, 7, 195 S. W. 1004; see I ante, § 270, note 4. § 272. The trustee — appointment and removal. 5. See R. S. 1909 §§ 2859, 3438, 3746-8. 6. Dillion v. Stevens (1895) 62 Mo. App. 479 (resignation of former trustee); Draper v. Minor (1865) 36 Mo. 290, 294; Ball v. Woolfolk (1903) 175 Mo. 278, 287, 75 S. W. 410; State ex rel. v, Muench (1910) 230 Mo. 236, 241, 130 S. W. 282 (resignation). In the following cases trustees were removed: Gaston v. Hayden (1903) 98 Mo. App. 683, 692, 73 S. W. 938 (hostility to beneficiary and mingling trust funds with his own by depositing in bank in his own name) ; Barkley Cemetery Ass'n v. McCune (1906) 119 Mo. App. 349, 357, 95 S. W. 295 (removal from neighborhood, failure to perform duties, etc); Gartside v. Gartside (1892) 113 Mo. 348, 357, 20 S. W. 669 (unfriendly relations with cestuis and indifference to their in- terests). In Lowe v. Montgomery (1905) 117 Mo. App. 273, 276, 92 S. W. 916, the fact that a solvent trustee had mingled trust funds with his own was held not sufficient ground for his removal; and see Tittman V. Green (1891') 108 Mo. 22, 35, 18 S. W. 885; Wiegand v. Woerner (1910) 155 Mo. App. 229, 264, 134 S. W. 596 (no misconduct putting trust fund in jeopardy). If a court of competent jurisdiction gives the trustee a dis- charge from the trust this is res judicata; Peake v. Jamison (1884) 82 Mo. 552, 557; so, as to appointment of a new trustee; Bredell v. Westminster College (1912) 242 Mo. 317, 147 S. W. ,105. 12. In a suit to remove a trustee he must be made a party; Hitch V. Stonebraker (1894) 125 Mo. 128, 140, 28 S. W. 443. 13. R. S. 1909 §§ 11919, 11920. MISSOUBI APPENDIX 711 § 273. Same — dislaimer. 2. Brandon v. Carter (1893) 119 Mo. 572. 582, 24 S. W. 305; see Oxley Stove Co. v. Butler Co. (1894) 121 Mo. 6W, 639, 26 S. W. a67. 3. See Roberts v. Moseley (1877) 64 Mo. 507, 510 (acquiescence for six years shows acceptance) ; Blackwell v. Baily (1876) 1 Mo. App. 329; Reyburn v. Blackwell (1901) 88 Mo. App. 640, 647 (transferror gave election to defendant transferee to keep propei-iy beneficially or on trust). 4. Simpson v. Erisner (1899) 155 Mo. 157, 55 S. W. 1029. Nor will failure to appoint; Asbury v. Strain (1915) 1'91 Mo. App. 667, 675, 177 S. "W. 666. Wbere one of two trustees of a trust for creditors disclaims, the other may act; Shockley v. Fisher (1882) 75 Mo. 498, 502. D. Natdbe of Cestui's Interest. § 274. Bemedies of cestui against trustee and vice versa. 4. See Ewing v. Parish (1910) 148 Mo. App. 492, 504, 128 S. W. 538, citing Norton v. Ray. 8. In Sherwood v. Saxton (1876) 63 Mo. 78, 83, the court said that where the trust property had depreciated in value, "an action at law for damages is the most ample, complete, and simple remedy for breach." 10. Baker v. Nail (1875) 59 Mo. 265, 270; contra, Douthltt v. Stinson (1880) 73 Mo. 199. 12. Tibeau v. Tibeau (1853) 19 Mo. 78, 81; Shaffer v. Detie (1905) 191 Mo. 377, 393, 90 S. W. 131. § 276. Direct and indirect remedies of cestui against third persons — laches of trustee. 1. Ricuardson v. Means (1856) 22 Mo. 495, 498 (trover for slave) ; Bergesch'v. Keevil (1853) 19 Mo. 127 (action to recover personalty); Snider v. Adams Express Co. (1883) 77 Mo. 523, 528; Wolfe v. Mo. Pac. Ry. (1888) 97 Mo. 473, 479, 11 S. W. 49; Thompson 'V. Lyon (1862) 33 Mo. 219, 230 (ejectment by cestui) ; Glasgow v. Baker (1883) 14 Mo. App. 201, 209; but see Barton Bros. v. Martin (1894) 60 Mo. App. 351, 357, holding that either the trustee or beneficiary may sue; Rogers v. Gosnell (1872) 51 Mo. 456; McComas v. Covenant Ins. Co. (1874) 56 Mo. 573. For a discussion of the conflict in decisions see University of Missouri Bulletin, 4 Law Series, pp 24-28. 3. Watts V. Loomis (1883) 81 Mo. 236, 239; State v. Jacob (1876) 1 Mo. App. 183, 186. 4. Richardson v. Frederitze (1864) 35 Mo. 266, 268 (trustee is proper party to present claim to county court) ; Beck v. Haas (1892) 111 Mo. 264, 271, 20 S. W. 19 (beneficiary dead). 712 MISSOURI APPENDIX 7. In a suit by the trustee it is not necessary that the name of the beneficiary appear in the caption; Phillips v. Ward (1873)- 51 Mo. 295; Glenn v. Hunt (1893) 120 Mo. 330, 342, 25 S. W. 181; Peery V. Carnes (1885) 86 Mo. 652, 656; Rev. St. 1909, § 1730. 10. Schiffman v. Schmidt (1899) 154 Mo. 204, 213, 55 S. W. 451 {cestui a married woman) ; Simpson v. Brisner (1899) 155 Mo. 152, 163, 55 S. W. 1029 (trustee resigned). § 277. Same — remedy of trustee against confederate. 2. For an analogous case, see Bunn v. Stuart (1904) 183 Mo. 375, 385, 81 S. W. 1091 (deeds made by X with intent to defraud pros- pective wife, deeds not to be recorded till X's death; the deeds were recorded; X was held entitled to have the deeds cancelled). In Bast St. Louis Ice Co. v. Kuhlmann (1911) 238 Mo. 685, 699, 142 S. W. 253, this principle seems i to have been lost sight of. In that case a dying wife conveyed her land to her husband who traded it for a farm and then the farm for city property which he put in the name of his second wife; his creditors seek to have the city property subjected to the payment of their claims and he sets up that the conveyance by the first wife was in trust for her children and hence the city property was impressed with the same trust. It was held that the confession of a fraud upon his children was no de- fense to the creditors' suit; that he could not successfully "blot out a dark blot with a black one." It is at least doubtful whether there was such a trust for the children, but it would seem that the father should have been allowed to make the defense or that the children should have been made parties to the suit and their claims adjudicated; they should not be barred by their father's act, the creditors not being hona fide purchasers for value. See Crump v. Walkup (1912) 246 Mo. 266, 151 S. W. 709 (wife not barred by husband's fraudulent (pealing with her property). , 4. Elliott v. Landis Machine Co. (1911) 236 Mo. 546, 139 S. W. 356. I 5. Houghton v. Pierce (1907) 203 Mo. 723, 737, 102 S. W. 553; McClannahan v. McClannahan (1914) 258 Mo. 579, 593, 167 S. W. 191. § 278. Same — discharge of obligor by trustee and cestui — payments to trustee by obligor. 4. See O'Reilly v. Miller (1873) 52 Mo. 210. 8. That a purchaser of trust property is not bound to see to the application of purchase money see Turner v. Hoyle (1888) 95 Mo. 337, 343, 8 S. W. 157. MISSOURI APPENDIX 713 , § 279. Bemedies of third peisoti against trustee and cestui — set off. I. Brisman v. Brisman (1875) 59 Mo. 367, 370 (suit to set aside deed made ty trustee in trust for cestui must join trustee) ;, Hackman V. Maguire (1886) 20 Mo. App. 286, 290. See Colley v. Wilson (1900) 86 Mo. App. 396, 401: "the members of an unincorporated society may provide far trustees in whom their property may he vested and by whom and against whom" all suits per- taining to the business of the company may be prosecuted." In Moore v. Stemmons (1902) 94 Mo. App. 475, 479, 68 S. W. 224, action at law was brought against the trustees of a church but the execution was directed to be levied on the trust property; but in Moore v. Stemmons (1906) 119 Mo.. App. 162, 167, 95 S. W. 313: "An execution upon a judgment or decree against a trustee cannot be made to run against trust property. That can only be reached in the absence of statute, by a proceeding in chancery to which the cestuis que trustent are made parties." And see Markel v. Peck (1912) 168 Mo. App. 358, 362, 151 S. W. 772. 4. And see Farrell v. Union Trust Co. (1883) 77 Mo. 475, 477 (trustee of railroad liable under statute for injuries to animals). 5. Koken Iron Works v. Kinealy (1900) 86 Mo. App. 199, 204; O'Fallon v. Tucker (1850) 13 Mo. 262, 266. 7. In Missouri the term counterclaim is now used in a . broad sense, including both set off and recoupment of damages; Collins v. Leather Co. (1916) 196 Mo. App. 611, 621, 190 S. W. 990. II. A similar rule prevails in suits between the cestui and the trustee; see Smith v. Perry (1906) 197 Mo. 438, 459, 95 S. W. 337 (tho generally there can be no set off by a trustee against the cestui for an independent debt due him from the cestui, equity may allow it to prevent wrong and injustice). E. Resulting and Consteuctivb TtoSTS. § 281. Distinction between resulting and constructive trusts. 4. Where a constructive trust is based upon a tort and is not the outgrowth of an actual trust, it is usually held that the Statute of Limitations begins to run, as soon as the right to have the con- structive trust declared arises; Shelby Co. v. Bragg (1896) 135 Mo. 291, 296, 36 S. W. 600, Keeton's Heirs v. Keeton's Adm's (1855) 20 Mo. 530, 538: "When courts of law have a concurrent jurisdiction over a subject, and an action in relation to it is barred at law, a de- fendant cannot be deprived of the protection of the Statute by con- verting him into a trustee and suing him in a court of equity .'' On the other hand, the Statute of Limitations should not run against a purchase money resulting trust until repudiation to the knowledge of the cestui, just as in the case of an express trust; Burdett v. May (1889) 100 Mo. 13, 18, 12 S. W. 1056 states the rule 714 MISSOURI APPENDIX otherwise but the only case cited as authority is Buren v. Buren (1883) 79 Mo. 538, 542 which is a case of a constructive trust, the owner of the purchase money not having consented to the title being placed in the name of anolher. The erroneous statement is repeated in Graham v. Wilson (1912) 168 Mo. App. 186, 193, 153 S. W. 83. In Reed v. Painter (1898) 145 Mo. 341, 356, 40 S. W. 1089, the rule is properly applied because it was a case of a constructive trust based upon a tort. 5. Pensereau v. Pensereau (1855) 22 Mo. 27, 34. /. Purchase -money resulting trusts. § 283. Extent and limitations of the rule. 1. As to the general doctrine see Stevens v. Pitzpatrick (1909) 218 Mo. 708, 724, 118 S. W. 51; Stevenson v. Haynes (1909) 220 Mo. 199, 211, 119 S. W. 346; Fogle v. Pindell (1912) 248 Mo. 65, 75, 151 S. W. 81; Wherry v. Hale (1882) 77 Mo. 20, 25; Rice v. Shipley (1900) 159 Mo. 399, 407, 60 S. W. 740; McMurray v. McMurray (1903) 180 Mo. 526, 534, 79 S. W. 701; Broughton v. Brand (1877) 94 Mo. 169, 175, 7 S. W. 119; Cox V. Cox (1886) 91 Mo. 71, 76, 3 S. W. 585. It is possible to have an express trust and resulting trust combined in one case; if T as express trustee for C uses trust funds in buying land and takes the title in the name of X, there Is the presumption of a resulting trust primarily for T but ultimately, of course, for C; Kelly v. Johnson (1859) 28 Mo. 249, 252. There is not only no presumption as to the awnership of the purchase money to help out the plaintiff; on the contrary, proof as to that must be very clear and convincing; Shaw v. Shaw (1885) 86 Mo. 594, 598; Johnson v. Quarles (1870) 46 Mo. 423, 426; Kennedy V. Kennedy (1874) 57 Mo. 73, 76; Sharp v. Berry (1875) 60 Mo. 575, 579; Modrell v. Riddle (1884) 82 Mo. 31, 36; Allen v. Logan (1888) 96 Mo. 591, 599, 10 S. W. 149; Bradley v. Bradley (1893) 119 Mo. 58, 61, 24 S. W. 757; McFarland v. La Force (1893) 119 Mo. 585, 589, 25 S. W. 530, 27 S. W. 1100; Plumb v. Cooper (1894) 121 Mo. 668, 675, 26 S. W. 678 (releasing an equity to the vendor conceded to be equivalent to paying part of purchase money) ; Owensby v. Chewning (1902) 171 Mo. 226, 230, 71 S. W. 122; (admission as to ownership enough); Williams v. Keef (1912) 241 Mo. 366, 372, 145 S. W. 425; Wad- dle V. Frazier (1912) 245 Mo. 391, 406, 151 S. W. 87 (evidence held not sufficient); Easter v. Easter (1912) 246 Mo. 409, 417, 151 S. W. 413; Blair v. Blair (1912) 247 Mo. 61, 71, 152 S. W. 1; Stevenson v. Smith (1905) 189 Mo. 447, 459, 88 S. W. 86 (defendant made admission as to ownership of money). In Philpot v. Penn (1886) 91 Mo. 38, 44, 3 S. W. 386 the requirement of clear proof seems not to be limited by the court to the ownership of the money; also in Adams v. Burns (1888) 96 Mo. 361, 10 S. W. 26; King v. Isley (1893) 116 Mo. 155, 160, 22 S. W. 634; such a holding obviously destroys the presumption. M1SS0LT.BI APPENDIX 715 In Prewitt v. Prewitt .(1905) 188 Mo. 675, 687, 87 S. W. 1000, the proof a? to ownership was convincing. In Rohbins v. Robbina (1914) 258 Mo. 175, 185, 167 S. W. 502, the requirement as to strict proof was satisfied as to half of the purchase money. 3. Wrightsman v. Rogers (1911) 239 Mo. 417, 428, 144 S. W. 479. 4. Scott V. Ferguson (1911) 235 Mo. 576, 583, 139 S. W. 102. If money is furnished by A and a note and deed of trust taken to B who later buys the land at the foreclosure sale, the rule applies; Johnston v. Johnston (1902) 173 Mo. 91, 117, 73 S. W. 202. 7. Cloud V. Ivie (1859) 28 Mo. 578, 580; Baumgardner v. Guess- field (1886) 38 Mo. 36, 41;, McGregor-Noe Co. v. Horn (1898) 146 Mo. 129, 134, 47 S. W. 957; McLeod v. Venable (1901) 163 Mo. 577, 584, 63 S. W. 847; Bowen v. McKean (1884) 82 Mo. 594, 598; Thompson V. Renoe (1848) 12 Mo. 157, 160. , In Jones v. Elkins (1898) 143 Mo. 647, 651, 45 S. W. 261, the rule was applied to a constructive trust. In Frost v. Frost (1906) 200 Mo. 474, 484, 98 S. W. 527, land held in entirety was sold and proceeds invested in other land in the hus- band's name; It was held, that the husband should be decreed to hold in entirety. 10. Shelton v. Harrison (1914) 182 Mo. App. 404, 419, 167 S. W. 634. 11. Sell V. West '(1894) 125 Mo. 621, 630, 28 S. W. 969 (even tho creditors barred by statute of limitations); Bobb v. Woodward (1872) 50 Mo. 95, 99; Medlin v. Morris (1912) 243 Mo. 260, 277, 148 S. W. 85; Dunnica v. Coy (1857) 24 Mo. 167, 168; Rankin v. Harper (1856) 23 Mo. 579, 582; Herrington v. Herrington (1858) 27 Mo. 560. See also Derry v. Fielder (1908) 216 Mb. 176, 194, 115 S. W. 142 (in fraud of his wife to prevent her getting claim to dower). In accord with Miller v. Davis (1872) 50 Mo. 572, see Higgins v. Higgins (18747 55 Mo. 346, 348; Condit v. Maxwell (1897) 142 Mo. 266, 277, 44 S.'W. 467. But where the preemption statute was thus violated by the grantee, the grantor, being innocent, was not barred; Buren v. Buren (1883) 79 Mo. 538, 544. § 284. Rebutting the presump'tiou — conveyance to a dependent. 1. Morris v. Clare (1896) 132 Mo. 232, 236, 33 S. W. 1123. In McKee v. Allen (1907) 204 Mo. 655, 695, 103 S. W. 76, where a brother had title taken in the name of his sister the evidence was not suf- ficient to establish a gift; and when the sister transferred title to the brother there was not evidence enough of a trust in her favor. Id Haguewood v. Britain (1917) 273 Mo. 89, 93, 199 S. W. 950, the facts showed that the wife in purchasing property and having title conveyed to herself and husband jointly intended thereby to pro- vide for the husband and hence the presumption of a resulting trust 716 MISSOURI APPENDIX was rebutted. See the odd dictum in Shelton v. Harrison (1914) 182 Mo. App. 404, 418, 167 S. W. 634: "As a resulting trust arises as a matter of law from the fact that the consideration Is paid by one person and the title taken in another, such trust arises whether In accordance with or against the intentions of the parties." 2. Ilgenfritz v. Ilgenfritz (1893) 116 Mo. 429, 435, 22 S. W. 786; Alexander v. Warrance (1852) 17 Mo. 228, 230; Seibold v. Christman (1882) 75 Mo. 308; Schuster v. Schuster (1887) 93 Mo. 438, 444, 6 S. W. 259; Gilliland v. Gilliland (1888) 96 Mo. 522, 525, 10 S. W. 139: Case V. Espenschied (1902) 169 Mo. 215, 219, 69 S. W. 276. 5. Curd V. Brown (1898) 148 Mo. 82, 92, 49 S. W. 990 (convey- ance to wife); Rice v. Shipley (1900) 159 Mo. 399, 409, 60 S. W. 740 (do.) ; Couch v. Harp (1906) 201 Mo. 457, 465, 100 S. W. 9 (convey- ance to daughter, father being insane); Hall v. Hall (1891) 107 Mo. 101, 17 S. W. 811 (conveyance to son two years old). In Derry v. Fielder (1908) 216 Mo. 176, 194, 115 S. W. 412, plaln- tifC failed to. prove a trust because in order to do so it involved an intention to prevent his wife from getting a claim to dower. //. Intended trust fails — property not exhausted by the trust. § 286. Failure because of lapse, illegality or uncertainty. 4. Kenrick v. Cole (1876) 61 Mo. 572. § 288. Where transferror received pay for the property. 2. McRoberts v. Moudy (1885) 19 Mo. App. 26, 31; see Childs v. Wesleyan Cemetery (1877) 4 Mo. App. 74, 86. III. Gratuitous conveyance upon oral trust. § 289. Gratuitous conveyance inter vivos — whether resulting trust. 8. Bobb V. Bobb (1886) 89 Mo. 411, 419, 4 S. W. 511; Childs v. Wesleyan Cemetery (1877) 4 Mo. App. 74, 86. § 290. Same — whether constructive trust. 3. Bartlett v. Tinsley (1903) 175 Mo. 319, 335, 75 S. W. 143; Hall v. Small (1903) 178 Mo. 629,, 633, 77 S. W. 733; Mugan v. Wheeler (1912) 241 Mo. 376, 382, 145 S. W. 462; Price v. Kane (1892) 112 Mo. ,412, 419, 20 S. W. 609; Weiss v. Heitkamp (1894) 127 Mo. 23, 32, 29 S. W. 709 (expressly refusing to follow Davies v. Otty) ; Rogers v. Ramey (1896) 137 Mo. 598, 607, 39 S. W. 66. But in Peacock v. Nelson (1872) 50 Mo. 256, 261, where the gran- tee had orally agreed to sell the land and account for the proceeds the court properly imposed a constructive trust; there is, of course, no difference in principle between such a case and a case where the grantee orally agrees to reconvey the land. See also a dictum in ac- MISSOUEI APPENDIX 717 cord with Davies v. Otty in Mulock v. Mulock (1900) 156 Mo. 431, 440, 51 S. W. 122. 4. Oral agreements by a mortgagee to allow a mortgagor to re- deem if he will allow the mortgagee to buy at the foreclosure sale or by a creditor to allow an execution debtor to redeem it he will allow the creditor to buy at the execution sale are almost universally held not to be within the Statute of Frauds, a refusal to perform such a promise being usually classified as fraud; Rose v. Bates (1848) 12 Mo. 30; Griffith v. Judge (1872) 49 Mo. 536; Gillespie v. Stone (1879) 70 Mo. 505; Leahey v. Witte (1894) 123 Mo. 207, 212, 27 S. W. 402; Richardson v. Champion (1897) 143 Mo. 538, 545, 45 S. W. 280; Phillips v. Jackson (1912) 240 Mo. 310, 335, 144 S. W. 112. So if A orally agrees to purchase property at a public sale in trust for other possible bidders who are thus induced to refrain from bidding, the promise is not within the statute; Northcraft v. Martin (1859) 28 Mo. 469; aliter, If it is clear that there was no fraud or unfair dealing; Hammond's Adm's v. Cadwallader (1859) 29 Mo. 166, 169. § 291. Same — criticism of prevailing American rule. 5. See dictum in Peacock v. Nelson (1872) 50 Mo. 256, 261. See also Kaut v. Gerdemann (1891) 109 Mb. 552, 19 S. W. 73 (plaintiff's husband conveyed to defendant upon an oral trust to convey to plain- tiff; the court, at suit of plaintiff, gave rescission of the deed which thus placed the title back in the plaintiff's husband). § 292. Conveyance by will upon oral trust. 1. Mead v. Robertson (1908) 131 Mo. App. 185, 195, 110 S. W. 1095. 4. Schmucker's Est. v. Reel (1876) 61 Mo. 592, 602 (gift in vio- lation of Missouri Constitution, constructive trust for next of kin). 8. Phillips v. Phillips (1872) 50 Mo. 603, 607. IV. Property acquired by hotnicide. § 294. Ancestor killed by prospective heir. 3. In Perry v. Strawbridge (1907) 209 Mo. 621, 638, 108 S.W. 641, a husband who had murdered his wife and then killed himself was held — as a matter of statutory construction — not to have inherited from the wife under R. S. 1899, § 2938 (R. S. 1909, § 350). y. Property acquired by wrongful use of another's property. § 295. Purchase by trustee or other fiduciary. 1. Harney v. Donahoe (1888) 97 Mo. 141, 144, 10 S. W. 191 (ad- ministrator). 2. Tennison v. Tennison (1870) 46 Mo. 77 (purchase by husband with wife's funds) ; Alkire Grocer Co. v. Ballenger (1891) 137 Mo. 369, 375, 38 S. W. 911; Green Tree Brewing Co. v. Dold (1891) 45 Mo. App. 603, 607; Aultman v. Loring (1898) 76 Mo. 66, 74 (outstand- 718 MISSOXJEI APPENDIX ing title bought up by plaintiff's attorney) ; Craig v. Bradley (1910) 153 Mo. App. 586, 592, 134 S. W. 1081; Farrell v. Farrell (1901) 91 Mo.'App. 665, 673. This is frequently confused with purchase money resulting trusts which arise only upon consent; e. g. in Garrett v. Garrett (1902) 171 JVIo. 155,. 164, 71 S. W. 153, there was no consent but the court speaks of it as a resulting trust; see also Graham v. Wilson (1912) 168 Mo. App. 185, 194, 153 S. W. 83. That thte beneficiary may pursue his personal claim against the fiduciary for the amount of- the loss instead of following the trust fund, see Parker v. Straat (1890) 39 Mo. App. 616, 626; Sherwood v. Saxton (1876) 63 Mo. 78, 82 (relief allowed against trustee at law). 3. Wasson v. English (1850) 13 Mo. 176 (trustee buys at execution sale and sells at advance in price). § 296. Purchase by converter or disseisor. 9. In a case somewhat similar to Dixon v. Caldwell, the de- fendant was held chargeable with notice and hence was not protected; Stephenson v. Smith (1843) 7 Mo. 610, 618. § 297. Mingling of funds by trustee — tracing trust funds. 1. TJlrici V. Boeckeler (1897) 72 Mo. App. 661, 666. 7. Phillips V. Overfield (1890) 100 Mo. 466, 473, 13 S. W. 705; Green v. Gates (1880) 73 Mo. 115, 123; Mills v. Post (1882) 76 Mo. 426; Buck v. Ashbrook (1875) 59 Mo. 200, 203; Bircher v. Walther (1901) 163 Mo. 461, 468, 63 S. W. 691. Mayer v. Bk. (1900) 86 Mo. App. 422, 428-; Pearson v. Haydel (1909) 90 Mo. App. 253, 258; Mills V. Post (1879) 7 Mo. App. 519, 521; Union Soc'y v. Mitchell (1887) 26 Mo. App. 206, 216. That the particular coins or bills need not be followed, see Hockensmith v. Hockensmith (1874) 57 Mo. App. 374, 378. But see Evangelical Synod v. Schoenich (1898) 143 Mo. 652, 653, 45 S. W. 647, misinterpreting Harrison v. Smith (1884) 83 Mo. 210, 217, and giving preference without any tracing or analogy thereto. There must be distinct and clear proof of the tracing; Dailey v. Dalley (1894) 125 Mo. 96, 100, 28 S. W. 330; Huetteman v. Vlessle- mann (1892) 48 Mo. App. 582, 590 (purchase of real estate). Where, however, the contest is between the beneficiary and the fiduciary, the latter will have the burden of proving what part of the commingled mass is his own; Tufts v. Latshaw (1902) 172 Mo. 359, 373, 72 S. W. 679; Snorgrass v. Moore (1888) 30 Mo. App. 232, 240; Meystedt v. Grace (1900) 86 Mo. App. 176, 183: "where a trustee mixes trust money with his own so that it cannot be distinguished what particu- lar part is trust money and what part is private money, equity will follow the money by taking out what is due the cestui." 10. Harrison v. Smith (1884) 83 Mo. 210, 217; I. X. L. Brick Co. V. Schoenich (1895) 65 Mo. App. 283, 287; Pearson v. Haydell (1901) 90 Mo. App. 253, 261. MISSOURI APPENDIX 719 11. Stoller V. Coates (1885) 88 Mo. 514, 520; Union Soo'y v. Mitchell (1887) 26 Mo. App. 206. § 298. Same — mixture invested In property. 1. Monro v. Collins (1888) 95 Mo. 33, 42, 7 S. W. 461. 2. Or to hold the trustee for breach of trust; no one can in- sist that the cestuis shall follow the trust fund; Barr v. Cahhage (1873) 52 Mo. 409, 413. VI. Property acquired hy fiduciary with his own funds. § 299. Taking-renewal of lease. That a fiduciary who makes a profit out of his fiduciary position may be compelled to account therefor to the beneficiary, see Swing v. Parrish (1910) 148 Mo. App. 492, 128 S. W. 538; Bent v. Priest (1881) 10 Mo. App. 543, 559; Ward v. Davidson (1886) 89 Mo. 445, 458, 1 S. W. 486. 1. Baker v. Springfield etc. R. R. (1885) 86 Mo. 75, 78 (trustee buying outstanding title) ; Witte v. Storm (1911) 236 Mo. 420, 478, 139 S. W. 384 (purchase by agent at execution sale) ; Aspinwall v. Jones (1852) 17 Mo. 209 (lease assigned to creditor for security and then assignee gets a new lease); Engel's Adm'r v. Bernicken (1863) 34 Mo. 93 (executor); Roberts v. Moseley (1877) 64 Mo. 507, 511; Grumley v. Webb (1869) 44 Mo. 444, 453. But if the cestui's title fails, the trustee may — in the absence of unfair dealing — ^buy and hold for himself; Price's Heirs v. Evans (1857) 26 Mo. 30, 39. Where one purchases at an execution or foreclosure sale reprer senting or promising that he will hold upon trust lor the debtor, a fiduciary relation is established, the breach of which is not affected by the statute of frauds; McNew v. Booth (1868) 42 Mo. 189, 192, and see ante § 290. 3. Kennedy v. Keating (1863) 34 Mo. 25, 29. 4. Jacques v. Edgell (1862) 40 Mo. 76, 78 (agent); Conn. Mut. Life Ins. Co. v. Smith (1893) 117 Mo. 261, 295, 22 S. W. 623; Bent v. Priest (1885) 86 Mo. 475, 482 (director of corporation); Landis v. Saxton (1886) 89 Mo. 375, 382, 1 S. W. 359 (bonus to executor). 5. Hull v. Voorhis (1870) 45 Mo. 555, 559. § 300. Fiduciary with authority to sell or to buy. 1. Jamison v. Glascock (1859) 29 Mo. 191, 195; State v. McKay (1869) 43 Mo. 594, 603; Kitchen v. R. R. (1878) 69 Mo. 224, 261 (right must be exercised promptly after knowledge) ; Meek v. Hurst (1909) 223 Mo. 688, 698, 122 S. W. 1022; Barnard v. Keathley (1910) 230 Mo. 209, 234, 130 S. W. 306 (executor bought at his own sale taking title in name of his son) ; Wasson v. English (1850) 13 Mo. 476 (.cestui claims profit made) ; Allen v. Ransom (1869) 44 Mo. 263, 266 (purchase by mortgagee doesn't cut off equity of redemption) ; Harper 720 MISSOURI APPENDIX V. Mansfield (1874) 58 Mo. 17, 24; Ownby v. Ely (1874) 55 Mo. 475, 477; Woodward v. Mastin (1891) 106 Mo. 324, 17 S. W. 308 (transferee in fraud of creditors buys at execution sale) ; Smith v. William (1848) 12 Mo. 106, 109; Newman v. Newman (1899) 152 Mo. 398, 414, 54 S. W. 19; James v. Groff (1900) 157 Mo. 402, 421, 57 S. W. 108l'; Shaw V. Shaw (1885) 86 Mo. 594, 598 (purchaser from bidder at sale); but the mere fact that the trustee later buys from the bidder at the sale is not enough; Boehlert v. McBride (1871) 48 Mo. 505, 507; Keet Co. v. Gideon (1899) 80 Mo. App. 609, 613. Nor can a trustee take advantage of buying in a paramount title; Turner v. Butler (1894) 126 Mo. 131, 137, 28 S. W. 77; Baker v. R. R. (1885) 86 Mo. 75. At one time the administrator was authorized by statute to buy at his own sale; Baldwin v. Dalton (1901) 168 Mo. 20, 31, 67 S. W. 599. So, if directors of a railroad corporation make a contract with the corporation for their own private profit at the expense of the public, equity may refuse to enforce it; Jackson v. McLean (1889) 100 Mo. 130, 136, 13 S. W. 393. 2. Darling v. Potts (1893) 118 Mo. 506, 529, 24 S. W. 461 (tho the sale was fair); Cornet v. Cornet (1916) 269 Mo. 298, 322, 190 S. W. 333. 3. Salee v. Chandler (1857) 26 Mo. 124, 129; Hunter v. Hunter (1872) 50 Mo. 445, 450; Richards v. Pitts (1894) 124 Mo. 602, 605, 28 S. W. 88; Guy v. Mayes (1911) 235 Mo. 390, 399, 138 S. W. 510 (sale upheld) ; Davidson v. Real Estate Co. (1913) 249 Mo. 474, 497, 155 S. W. 1. 5.- Harrison v. Craven (1905) 188 Mo. 590, 609, 87 S. W. 962 (agent taking title in his own name). 6. Seay v. Hesse (1894) 123 Mo. 450, 456, 24 S. W. 1017, 27 S. W. 633; Zehnder v. Stark (1912) 248 Mo. 39, 56, 154 S. W. 92 (plain- tiff barred by estoppel). In Missouri cases it is often spoken of as a resulting trust; Mc- Kee V. Downing (1909) 224 Mo. 115, 127, 124 S. W. 7; Hynds v-. Hynds (1913) 253 Mo. 20, 35, 161 S. W. 812; Cason v. Cason (1859) 28 Mo. 47, 50; Buren v. Buren (1883) 79 Mo. 538, 543; Phillips v. Over- field (1890) 100 Mo. 466, 473, 13 S. W. 705; Patterson v. Booth (1890) 103 Mo. 402, 413, 15 S. W. 543; Hudson v. Cahoon (1905) 193 Mo. 547, 562, 91 S. W. 72 (in headnote). 7. Turner v. Butler (1894) 126 Mo. 131, 137, 28 S. W. 77 (buying in paramount title); Edwards v. Gottschalk (1887) 25 Mo. App. 549, 553. P. Transfer of Trust Property. I. By act of the trustee. § 301. Elements of bona fide purchase for value — (1) paying value. 3. Lionberger v. Baker (1885) 88 Mo. 447. MISSOURI APPENDIX 721 5. Wallace v. Wilson (1860) 30 Mo. 335, 340 (must be payment in full in cash); Cheek v. Waldron (1889) 39 Mo. App. 21, 23; Meyer V. Withmar (1890) 41 Mo. App. 397, 405; Greenlee v. Marquis (1892) 49 Mo. App. 290, 294; but see Digby v. Jones (1876) 2 Mo. App. 599. 6. If an administrator's sale is not approved, the purchaser has an equitable lien for the purchase money paid; Henry v. McKerlie (1883) 78 Mo. 416, 428. 7. Burger v. Boardman (1913) 254 Mo. 238, 257, 162 Si W. 197; Coffee's Ad'x v. Crouch (1859) 28 Mo. 106, 109. 11. See Lawrence v. Owens (1889) 29 Mo. App. 318, 323 (ab- solute extinguishment of antecedent debt in consideration of trans- fer of chattels, is value); Brainard v. Reavis (1876) 2 Mo. App. 499, 493 (one who takes negotiable paper as security for preexisting claim takes subject to equities); Conrad v. Fisher (1889) 37 Mo. 352, 408- 420 (pledgee for antecedent debt; extended discussion). 12. Phillips V. Franciscus (1873) 52 Mo. 370; Crow v. Drace (1875) 61 Mo. 225, 228. 13. See Mann v. Best (1876) 62 Mo. 491, 496: purchaser at execu- tion sale takes subject to equities even if innocent. Of course he will take subject to equities if he had notice; Tate v. Sanders (1912) 245 Mo. 186, 217, 149 S. W. 485. § 302. (2) Getting title. 4. In Schell City Bk. v. Reed (1893) 54 Mo. App. 94, 98 there is a dictum that tacking is not recognized in Missouri. 5. Gilbert v. Cooksey (1878) 69 Mo. 42, 46 (administrator's sale, deed defective). 6. If there Is a transfer to a trustee, both trustee and bene- ficiaries must be without notice to be protected; Crow v. Beardsley (1878) 68 Mo. 435, 440. 7. McMurray v. McMurray (1914) 258 Mo. 405, 417, 167 S. W. 513. § 303. Same — transfer of choses in action. 1. And a transfer of a negotiable instrument to a tona flde pur- chaser for value before maturity carries with it the right to any security for the note, free from equities; Crawford v. Aultman (1897) 139 Mo. 262, 271, 40 S. W. 952; unless the security discloses an equity ,on its face; Beavers v. Bk. (1913) 177 Mo. App. 100, 103, 163 S. W. 529. 6. That the assignee of a non negotiable chose in action takes subject to equities between the parties, see Bobb v. Taylor (1874) 56 Mo. 311, 313 (judgment). Eq.— 46 722 MISSOUKI APPENDIX § 305., (3) Without notice. 1. Croughton v. Forrest (1852), 17 Mo. 131; Gibson v. Lair (1860) 37 Mo. 188, 192. Even if full value is paid the purchaser is not protected; Potter v. Stevens (1867) 40 Mo. 229, 232 (conveyance in fraud of creditors); Allen v. Berry (1872) 50 Mo. 90. If there is a transfer to a trustee hoth trustee and beneficiaries must be without notice to b'e protected; Crow v. Beardsley (1878) 68 Mo. 435, 440. In Hamilton v. McClellan (1870) 45 Mo. 424, the right to have a cloud on title removed was cut oft by a transfer to a iona fide pur- chaser. It is not important that the person claiming to be a bona fide purchaser bought from one who had notice of the ectuity; Lindell Real Estate Co. v. Lindell (1894) 133 Mo. 396, 397, 33 S. W. 466. 2. McMurray v. McMurray (1914) 258 Mo. 405, 417, 167 S. W. 513; Anderson v. McPike (1885) 86 Mo. 293, 301; Punkhouser v. Lay (1883) 76 Mo. 458, 465; Crow v. Andrews (1887) 24 Mo. App. 159, 164. 3. If the trustee had the power to sell and the sale is made properly, he may then buy the property for himself; Keet Co. v. Gideon (1899) 80 Mo. App. 609, 613. 5. State to use of Erhardt v. Estel (1878) 6 Mo. App. 6; Wad- dington v. Lane (1906) 202 Mo. 387, 417, 100 S. W. 1139; Johnson v. Fluetsch (1903) 176 Mo. 453, 473, 75 S. W. 1005; Myers v. Schuch- mann (1904) 182 Mo. 159, 180, 81 S. W. 618 (possession of land is sufficient notice). A principal is chargeable only with notice of the existence of such facts as are within the knowledge of his agent in the particular business confided to him; Donham v. Hahn (1894) 127 Mo. 439, 447, 30 S. W. 134. In Renshaw v. Wills (1866) 38 Mo. 201, 206, the fact that the endorsement was by "J. C, Sheriff" was one of the elements of notice; in Eyerman v. Bank (1883) 13 Mo. App. 289, 294, the addition of the words "county treasurer" on one's checks and pass book was held not enough to give notice to the bank that the money was trust money; and see Fletcher v. Schaumberger (1867) 41 Mo. 501; Galloway v. Gleason (1894) 61 Mo. App. 21, 25 (notes showed existence of trust). 6. If the trustee does have power to sell, the purchaser, takes free from the cestui' s equities; Wood v. Augustine (1875) 61 Mo. 46, 50. 7. Schradski v. Albright (1897) 93 Mo. 42, 48, 5 S. W. 807; Ridgeway v. HoUiday (1875) 59 Mo. 444, 455; Mann v. Best (1876) 62 Mo. 491, 497; Campbell v. Laclede Gas Co. (1884) 84 Mo. 352, 364. But if the equity is one which should have been recorded, one who takes a quit claim deed for value will be protected; Fox v. Hall (1881) 74 Mo. 315, 317. And one who takes a quit claim deed but is compelled to give up title is entitled to be reimbursed; EofE v. Irvine (1891) 108 Mo. 378, 386, 18 S. W. 907. See also Flynn v. Marye (1877) MISSOUKI APPENDIX 723 4 Mo. App. 360, 366: "E3very title to the share of a coparcener in his father's land is Incomplete on its face." 8. And see Guinan v. Donnell (1906) 201 Mo. 173, 208, 98 S. W. 478 (purchaser at execution sale bound by fraud of debtor's attorney with whom he had an agreement as to dividing profits). II. By act of cestui. § 306. Successive assignments — ^Dearie v. HaU. 1. That an assignment by the cestui does not put an end to the trust, see Guerney v. Moore (1895) 131 Mo. 650, 669, 32 S. W. 1132. In Kelly v. Johnson (1864) 34 Mo. 400, 403, the parol declaration by the cestui that his interest should go to his wife was held not equivalent to an assignment. 7. Houser v. Richardson (1901) 90 Mo. App. 134; but of the cases cited. Heath v. Powers (1846) 9 Mo. 774, 777 is merely a case of a payment to the obligee (assignor) in good faith by the obligor; so is Richard v. Griggs (1852) 16 Mo. 416, 418 (assignee not protected where he has paid obligee in good faith) ; but Murdock v. Finney (1855) 21 Mo. 138, 140 is in point and states the rule of Dearie v. Hall as well settled. III. By Death. § 307. Death of the trustee. 1. Newman v. Newman (1899) 152 Mo. 398, 409, 54 S. W. 19; Swing V. Shannahan (1892) 113 Mo. 188, 201, 20 S. W. 1065. 3. Stewart v. Pettus (1847) 10 Mo. 755. § 308. Death of the cestui. 1. McCaffery v. Tiernan (1894) 126 Mo. 355, 366, 28 S. W. 893; McKee v. Downing (1909) 224 Mo. 115, 127, 124 S. W. 7 (cestui of constructive trust in land, the husband taking title in his own name without wife's consent) ; Lich v. Lich (1911) 158 Mo. App. 400, 138 P. W. 558. III. By Disseisin or conversion. § 309. Remedy of cestui against disseisor or convertor. 3. If trustee is barred, the cestui is barred; Ewing v. Shannahan (1892) 113 Mo. 188, 201, 20 S. W. 1065. lY. By Marriage. § 310. Marriage of the trustee. 3. White V. Drew (1868) 42 Mo. 561, 568; Boynton v. Miller (1898) 144 Mo. 681, 687, 46 S. W. 754 (husband not entitled to the 724 MISSOUKI APPENDIX personal property which the wife held as trustee) ; Evans v. Morris (1911) 234 Mo. 177, 189, 136 S. W. 408. § 311. Marriage of the cestui — dower and curtesy. 3. Alexander v. Warrance (1852) 17 Mo. 228, 230; Rohinson v. Lakenan (1887) 28 Mo. App. 135, 140 (equity of redemption); hut in Evans v. Morris (1911) 234 Mo. 177, 188, 136 S. W. 408 the widower was held not entitled to curtesy in land which was in adverse posses- sion and to which the wife's claim was hased upon a purchase money resulting trust. 6. Jamison v. Zausch (1909) 227 Mo. 406, 413, 126 S. W. 1023 (deed construed as excluding curtesy). § 312. Same — rights of hushand during coverture. 1. Woodford v. Stephens (1873) 51 Mo. 443, 447; Hart v. Leete (1891) 104 Mo. 315, 330, 15 S. W. 976. Where the property received hy the hushand was received upon an express trust for the benefit of the wife, his marital right did not avail him; Tennison v. Ten- nison (1870) 46 Mo. 77, 82; an ante-nuptial contract excluding him from his marital rights did not prevent his getting legal title but merely made him trustee for her; Gordon v. Eans (1888) 97 Mo. 587, 599, 4 S. W^. 112, 11 S. W. 64, 370. See Rev. St. 1909, § 209 for statu- tory regulations of married women's property; see also Woodward V. Woodward (1898) 148 Mo. 241, 248, 49 S. W. 1001; see post § 458. 2. That the hushand might waive the right as against his credi- tors, see Southern Bank v. Nichols (1911) 235 Mo. 401, 409, 138 S. W. 881. 7. O'Brien v. Ash (1902) 169 Mo. 283, 296, 69 S. W. 8 (does not apply unless express stipulation). V. By Bankruvtcy. § 314. Bankruptcy of the cestui — "spendthrift" trusts. 1. Kessner v. Phillips (1905) 189 Mo. 515, 525, 88 S. W. 66. 4. In order to create a trust for the separate use of a married woman, any words Indicating such intent are sufficient; Clark v. Maguire (1852) 16 Mo. 302, 315. 7. Jarboe v. Hay (1894) 122 Mo. 341, 350, 26 S. W. 968; Lampert V. Haydel (1888) 96 Mo. 441, 451, 9 S. W. 780; Pickens v. Dorris (1885) 20 Mo. App. 1, 4 (the court argues from homestead and ex- emption statutes and suggests that the rule be "confined to a rea- sonable provision made for the beneficiary's support") ; Lampert v. Haydel (1886) 20 Mo. App. 616, 620 (argues that there is no real dis- tinction between spendthrift trust cases and gifts till bankruptcy; see supra note 3); Partridge v. Cavender (1888) 96 Mo. 452, 9 S. W. 785. MISSOTJEI APPENDIX 725 That the creditors must be clearly excluded, see Dunephant v. Dickson Co. (1910) 153 Mo. App. 309, 311, 133 S. W. 165; Heaton v. Dickson Co. (1910) 153 Mo. App. 312, 325, 133 S. W. 159. 11. McIIvaine v. Smith (1867) 42 Mo. 45, 58; Lackland v. Smith (1878) 5 Mo. App. 153, 160. Since a father is under no obli- gation to pay his son's debts, he may settle property on his son's wife for her sole and separate use, free from her husband's creditors. Siegel V. Quigley (1893) 119 Mo. 76, 24 S. W. 742. 12. In Jarboe v. Hay, supra, the testator, after creating a spend- thrift trust for his son, directed the trustee to convey the fee to X whenever, in the trustee's opinion, he should become competent to manage it; the son died before any conveyance and it was held that the widow was not entitled to dower. Where an annuity is left for the maintenance of an incompetent for life, it is the duty of the trustee to expend the whole amount and not accumtilate an estate for those next entitled; Cooper v. Carter (1910) 145 Mo. App. 387, 393, 129 S. W. 224. YI. By act of creditors. § 315. Creditors of the trustee. 1. In Cummings v. Ruckert (1884) 14 Mo. App. 557, 561, the trustee's creditor sought relief in equity and failed, there being no estoppel. In Rieschick v. Klingelhoefer (1901) 91 Mo. App. 430, 434 the creditor succeeded because the cestuis were estopped, credit hav- ing been extended upon the faith that the debtor had the beneficial in- terest. In Moore v. Stemmons (1902) 94 Mo. App. 475, 480, 68 S. W. 224, where judgment was obtained against the trustees of a church in their representative capacity, it was held that an execution on the judgment would pass only the interest of the trustees in the church property. 5. Seay v. Hesse (1894) 123 Mo. 450, 472, 24 S. W. 1017, 27 S. "W. 633; Payne v. Twynham (1878) 68 Mo. 339 (duty of trustee, though insolvent, to convey to cestui); Anderson v. Biddle (1886) 10 Mo. 23, 26; South Presbyterian Church v. Hintze (1880) 72 Mo. 363 (on ground of preventing cloud on title) ; Midland Bk. v. Brightwell (1898) 148 Mo. 358, 49 S. W. 994. 8. Bushong v. Taylor (1884) 82 Mo. 660, 671 (surety of trustee of church held entitled to reach claim for reimbursement which the trustee had against the church. In Berry v. Stigal (1913) 253 Mo. 690, 697, 162 S. W. 126, a trustee who borrowed money wherewith to pay off a deed of trust on the trust property was held to have acted properly and hence entitled — though not exactly a surety — to be sub- rogated to the rights of the creditor to the deed of trust. 726 MISSOURI APPENDIX § 316. Creditors of the cestui. 1. A creditor of a cestui is not entitled to garnistiee the agent of the trustee in order to reach rents which the trustee has collected from the trust estate; Mcllvaine v. Lancaster (1867) 42 Mo. 56; but where there is a conveyance in trust made in fraud of creditors the property is subject to attachment under simple law process because the whole transaction is invalid by statute; Lackland v. Garesche (1874) 56 Mo. 267, 271. 5. Where the garnishment statute does not apply the creditor must proceed in equity to reach the cestui's interest; Pickens v. Dor- ris (1885) 20 Mo. App. 1, 5 (called equitable garnishment). 9. Pullis V. Robison (1880) 73 Mo. 201, 212; St. Louis v. Keane (1887) 27 Mo. App. 642, 646 (creditor gets lien on equitable property interest from moment of filing). In St. Louis v. O'Neal Lumber Co. (1892) 114 Mo. 74, 87, 21 S. "W. 484, where a debtor absconded leaving claims due him from the city, the court refused to apply the rule and ordered a ratable distribution; the reasoning is far from convincing. G. ExTINGtriSHMENT OF TEUST. § 317. Methods of extinguishment of trust. 3. Telle v. Roever (1911) 159 Mo. App. 115, 122, 159 S. W. 256. 6. In Hafner v. St. Louis (1900) 161 Mo. 34, 46, 61 S. W. 632, the cestui transferred his interest to X; then the trustee transferred the legal title to the cestui who devised the legal title to her husband; it was held that as soon as the trustee transferred legal title to the cestui the trust was extinguished and the legal title enured to the benefit of X. 7. The mere fact that the cestui dies does not extinguish the trust; Lachance v. Loeblein (1884) 15 Mo. App. 460, 463. Where some of the cestuis are not yet in being and the trust instrument . does not provide for extinguishment, the trust cannot be terminated; Newton v. Rebe'nack (1901) 90 Mo. App. 650, 658; see Smith v. Smith (1897) 70 Mo. App. 448, 453 (all parties must consent to termination) ; Swing v. Shannahan (1892) 113 Mo. 188, 196, 20 S. W. 1065 (ditto). 9. See Newton v. Rebenack, supra, at page 656. H. Duties of a Tetjstbe. /. As to conveyance of trust property. § 318. The general rule. 1. See Hardy v. Clarkson (1885) 87 Mo. 171, 179; Cornwell v. Orton (1894) 126 Mo. 367, 27 S. W. 536; Polk v. Wind (1907) 124 Mo! App. 577, 583, 102 S. W. 1; Curtis v. Laughlin (1909) 146 Mo 47o' 124 S. W. 56. MISSOURI APPENDIX 727 As to trustee's bill for instructions see Mersman v. Mersman (1896) 136 Mo. 224, 256, 37 S. W. 909. 3. Rector v. Hutchison (1842) 7 Mo. 522; Edwards v. Welton (1857) 23 Mo. 379, 384. § 319. Provision postponing cestui 's right to a conveyance. 2. In Rector v.' Dalby (1902) 98 Mo. App. 189, 196, 71 S. W. 1078, the court refused to follow Claflin v. Claflin, but in Easton v. Demuth (1913) 179 Mo. App. 722, 728, 162 S. W. 294, the court cited Claflin v. Claflin with approval. II. As to possession, information and custody. § 320. Bight of life cestui to possession. 1. But if the trustee himself has only a legal life estate, quaere; see Garesche v. Levering Inv. Co. (1898) 146 Mo. 436, 48 S. W. 653. 3. Apparently the life cestui que trust of slaves was entitled to possession and might dispose of the interest and possession to another; Bowen v. Bowen Bx'rs (1854) 19 Mo. 399. § 321. Extent of duty to give information. 1. Polk v. Wind (1907) 124 Mo. App. 577, 583, 102 S. W. 1. § 322. Duty of custody. 1. Bates V. Hamilton (1898) 144 Mo. 1, 16, 45 S. W. 641; Ander- son V. Roberts (1898) 147 Mo. 486, 48 S. W. 847 (money lost by cus- todian who had been carefully selected) ; State ex rel. v. Meagher (1869) 44 Mo. 356, 362; Blackwell v. Bailey (1876) 1 Mo. App. 328, 332. 7i/i As to investment, collection and payment. § 323. Standard of care — investments authorized by the creator of the trust. 1. Drake v. Crane (1894) 127 Mo. 85, 106, 29 S. W. 990. Similarly he is liable for due care in other trust duties; such as in making a sale, and if the duty is not properly performed the sale will be set aside; Laclede Bk. v. Richardson (1899) 156 Mo. 270, 284, 56 S. W. 1117 (small number at public sale); Inglis v. Floyd (1888) 33 Mo. App. 565 (partner's sale of partnership property) ; Harkness v. Scam- mon (1891) 48 Mo. 136, 142, (sale by trustee under deed of trust); Meyer v. Ins. Co. (1878) 5 Mo. App. 245 (trustee under deed of trust conducting. sale knew that the creditor was willing to pay five times as much as the amount bid). In Mittron v. McRae (1880) 9 Mo. App. 344, 347, the fact that the trustee knew that one present at the sale had been told not to bid beyond $15,000 did not make a sale at $5,000 728 MISSOURI APPENDIX invalid. See also First National Bk. v. Wright (1903) 104 Mo. App. 242, 254, 78 S. W. 686 (private sale). The responsihillty of a trustee for the investment and safe keep- ing of the trust property dates from the time it is turned over to him; Wiegand v. Woerner (1910) 155 Mo. App. 227, 245, 134 S. W. 596. 4. In Lackland v. Walker (1899) 151 Mo. 210, 253, 52 S. W. 414, th« testator directed that the trustees should lease the property for the benefit of the charity, upon ground leases and forbade any different alienation; the trustees were unable to make such leases and the court ordered the sale of the fee. But in Stevens v. DeLa Vaulx (1901) 166 Mo. 20, 27, 65 S. W. 1003 the court refused to interfere mere- ly on the ground that the changed conditions of the town had made it difficult to keep the property repaired because of lack of income. 5. See PuUis v. Somerville (1909) 218 Mo. 624, 652, 117 S. W. 736. In Garesch v. Levering Inv. Co. (1898) 146 Mo. 436, 448, 48 S. W. 653 an express authority to trustees of a life estate to distribute the property after the death of the equitable life tenant was held not to authorize them to incorporate the estate for fifty years. § 324. Investments authorized by courts of equity. 17. Mason v. Bk. (1880) 90 Mo. 452, 3 S. W. 206. A trustee who has reasonable doubt as to his duties is entitled to apply to the proper equity court for directions, making the cestui a party; Hayden's Ex'rs^ V. Marmaduke (1854) 19 Mo. 403. § 325. Depositing trust money in a bank. 5. But see contra, Atterbury v. McDuffee (1888) 31 Mo. App. 603, 613, where the deposit was made in good faith in a bank in which the defender had no individual account and the bank knew that the funds were fiduciary funds and the loss did not result from the man- ner of deposit, the defendant was held not liable. 7. If the bank knows of the trust it can not use any of the money to pay the individual debt of the depositor; Mayer v. Bk. 86 Mo. App. 422, 425; Clark v. First Nat. Bk. (1894) 57 Mo. App. 277, 287; Johnson v. Bk. (1893) 56 Mo. App. 257, 263 and cases cited. And where the deposit is made in the name of the depositor as trustee or agent, etc., it is notice to the bank; Lindsay v. Brooks (1899) 82 Mo. App. 301, 306. See also State to use of Koch v. Roeper (1884) 82 Mo. 57, 64 (investment made in private capacity and trustee fails to Indicate promptly that it is on account of the trust estate; well grounded suspicion of mal-administration if after loss or depreciation he claims it to have been on account of the trust estate). MISSOTJEI APPENDIX 729 § 326. Collecting detts due the trust estate — payments. 1. Powell V. Hurt (1888) 31 Mo. App. 632, 647 (express direction by testator); Peake v. Jamison (1884) 82 Mo. 552, 557. 5. State to use v. Riggin (1877) 4 Mo. App. 583. In Oellien v. Gait (1910) 150 Mo. App. 537, 546, 131 S. "W. 158, the neglect of the trustee to pay taxes, thereby incurring penalties, was held to be a breach of trust. § 327. Extent of trustee's liability for breach. 1. Sanguinett v. Webster (1899) 153 Mo. 343, 374, 54 S. W. 563. If two or more trustees confederate in a breach of trust, each is liable for the entire loss; Davis v. Hoffman (1901) 167 Mo. 573, 582, ^7 S. W. 234; Newton v. Rebenack (1901) 90 Mo. App. 650, 671, (con- curring cestui also liable to other cestuis). Where two trustees con- spire to buy land from the cestui at $20 an acre and sell it at $50, it would seem that each ought to be liable to the cestui for the differ- ence between $20 and the real value tho all the profit went to one of the trustees; but see Hunter v. Hunter (1872) 50 Mo. 445, 452, which may perhaps be explained on the ground that the cestui was seeking only for an accounting of profits. One who destroys the cestui's equity by selling the property to a &ono fide purchaser is liable to the cestui for the value of the prop- erty with interest from the time of sale; Paul v. Chouteau (1851) 14 Mo. 580, 582. In Albert v. Sanford (1906) 201 Mo. 117, 134, 99 S. W. 1068, the trustee was excused from paying interest because of his good faith in thinking he was beneficially interested and because of the plain- tiff's delay. 7. In re Estate of Camp (1879) 6 Mo. App. 563, 564 (compound interest at 10%). If a trustee destroys evidence against him the presumption is that the claim against him is just; Pomeroy v. Benton (1882) 77 Mo. 64, 87. 9. Contra, Ames v. Scudder (1884), 84 Mo. 189, 11 Mo. App. 168, 185. ly. ^ As to delegating trust duties. § 328. Bight of transferee to office of trustee. 4. State ex rel. v. Mississippi Co. (1907) 209 Mo. 472 485, 108 S. W.- 97 (trustee's executor can not act). § 329. Action by less than all the trustees. 3. Where the creator of a private trust provides that a majority may sell or lease the trust estate, this does not make a minority trus- tee liable on a contract made by the majority; Markel v. Peck 730 MISSOUEI APPENDIX (1912) 168 Mo. App. 358, 362, 151 S. W. 772. 8. In churches that are congregational In government the prop- erty of each congregation Is subject to the will of the majority there- of; Turpin v. Bagby (1897) 138 Mo. 7, 10, 39 S. W. 455. § 330. Permissible employment of agents. 1. Harper v. Mansfield (1874) 58 Mo. 17, 21; Howard v. Thorn- ton (1872) 50 Mo. 291; City of St. Louis v. Priest (1886) 88 Mo. 612, 614. In Markel v. Peek (1910) 144 Mo. App. 701, 706, 151 S. W. 772, where the trustees had appointed an agent to lease real estate it was held that a contract made by the agent did not bind the trustees; and see PoUiham v. Reveley (1904) 181 Mo. 622, 636, 81 S. W. 182. 3. In Anderson v. Roberts (1898) 147 Mo. 486, 495, 48 S. W. 847, the trustees of a fund for, the education of poor young men and women of the county were held entitled to select an apparently responsible man to administer the fund. Chaptek VI. Eeeobmation of Instruments. A. In Geniral. § 331. Invulnerability of written instruments at common law. 4. "Wheeler v. Ball (1887) 26 Mo. App. 443, 451 (contract of sale merged in the deed of conveyance which is conclusive) ; Brew- ington V. Mesker (1892) 51 Mo. App. 348, 356 (expressed intent con- trols); Kilpatrick v. Wiley (1906) 197 Mo. 123, 164, 95 S. W. 213; Anthony v. Rockefeller (1903) 102 Mo. App. 326, 330, 76 S. "W. 491; Luecke & Co. v. Cohen (1910) 150 Mo. App. 48, 53, 129 S. W. 1002; Crim V. Crim (1901) 162 Mo. 544, 553, 63 S. W. 489; "The written contract is conclusively presumed to merge all prior negotiations and to express the final agreement of the parties;" Jenkins v. Chemical Co. (1913) 169 Mo. App. 534, 543, 154 S. W. 832; Knight v. Cherry (1877) 64 Mo. 513, 515. The rule does not apply to exclude prior or contemporaneous agreements which were not meant to be covered by the single mem- orial; Owsley v. Jackson (1912) 163 Mo. App. 11, 18, 144 S. "W. 154 (contract to perfect title). It is also held in Missouri that where a promise by the transferee of mortgaged property to assume the mortgage debt has been omitted from the conveyance by fraud or mistake, the plaintiff can proceed at law without getting reformation of the instrument ; Fender v. Hazel- tine (1904) 106 Mo. App. 28, 31, 79 S. W. 1018. The cases cited in support of the proposition, however, merely decide that such a promise is not within the statute of frauds. But a patent defect may be corrected in a court of law by con- struction; West V. Bretelle (1893) 115 Mo. 653, 661, 22 S. W. 705. MISSOURI APPENDIX 731 5. Rackliffie v. Seal (1865) 36 Mo. 317 (absolute conveyance intended as security) ; Campbell v. Jobnson (1869) 44 Mo. 247, 250 (misdescription in deed; Jennings v. Brizeadine (1869) 44 Mo. 332, 335 (ditto); Jones v. Shipley (1886) 90 Mo. 307, 313, 2 S. W. 400; Talley v. Schlatitz' (1903) 180 Mo. 231, 239, 79 S. W. 162. 6. In a suit in equity for reformation there is, of course, no right to a jury trial; Gray v. Hornbeck (1861) 31 Mo. 400. If there is a suit at law on the unreformed instrument, the defendant may set up in defense such a mistake as would be ground for reformation in equity; Barlow v. Elliott (1893) 56 Mo. App. 374, 377; Tapley v. Herman (1902), 95 Mo. App. ,537, 543, 69 S. W. 482 (not always necessary for defendant to ask for affirmative equitable relief); Collins v. Rogers (1876) 63 Mo. 515 (ejectment). § 332. Standard for rectification. 1. ITiat bonds will be reformed see State ex rel. v. Adm'r of Frank (1872) 51 Mo. 98. That in a bilateral transaction there must have been a bargain between the parties in order to have reformation, see Geeditzer v. Ins. Co. (1901) 19 Mo. App. 534, 539. B. Bilateral Tbansactions. § 333. Mutual mistake. 1. Fischer v. Dent (1914) 259 Mo. 86, 90, 167 S. W. 977; Hunter V. Patterson (1897) 142 Mo. 310, 321, 44 S. "W. 250 (mistake in de- scription); State V. McElhane'y (1860) 20 Mo. App. 584, 587 (recog- nizance). The plaintiff must allege fraud or mutual mistake in a suit to reform a bilateral transaction; Meek v. Hurst (1909) 223 Mo. 688, 696, 122 S. W. 1022; see Turner v. Wabash Ry. Co. (1905) 114 Mo. App. 539, 545, 90 S. W. 391. § 334 Same — correction of price. 1. Engel V. Powell (1910) 154 Mo. App. 233, 237, 134 S. W. 74 (suit in equity by purchaser for compensation for the difference be- tween amount of land contracted for and amount conveyed) ; Clark V. Carter (1910) 234 Mo. 90, 98, 136 S. W. 310 (grantor had only life estate instead of fee) ; Boon v. Miller (1852) 16 Mo. 457, 470 (mistake in calculation of interest); Campbell v. Hoff (1895) 129 Mo. 317, 324, 31 S. W. 603 (defendant acted fraudulently) ; McGhee v. Bell (1902) 170 Mo. 121, 136, 70 S. W. 493. 5. Where the purchaser had been put in possession of the omitted land and no one was threatening his possession and the vendor offered to deliver a deed to the omitted tract, the purchaser was held not' en- titled to rescission but at most only to abatement of the price; Key V. Jennings (1877) 66 Mo. 356, 371. In Coons v. North (1858) 27 Mo. 73, 79, where a purchaser under a deed of trust bought only 23 732 MISSOUEI APPENDIX acres thinking the, tract contained 80 acres, he was restricted to rescission. § 337. Same — option of reformation or rescission. 3. See Schwear v. Haupt (1872) 49 Mo. 225, 226: "The plaintiff would be entitled to have it reformed if he desired it, hut inasmuch as the defendant has repudiated it as actually made, he is also en- titled to have it rescinded." § 338. Fraud in performance of a contract or in reducing a bargain to ■writing. 1. Clem V. German Ins. Co. (1888) 29 Mo. App. 673: "Knowing, as the agent did, that the application of plaintiff's was only to take out additional insurance on the newly arrived flour, the conclusion would seem to be irresistible that, in incorporating other property in the policy, he did so either designedly or through mistake. If pur- posely done, the inference of fraud follows. If from mistake, and the fact was not discovered until just before the loss, the plaintiffs are equally entitled ta have the instrument reformed, so as to express the real contract." Conceivably the court in Long v. Abstract Co. (1913) 252 Mo. 158, 169, 158 S. W. 305, might have given relief on this ground but the court unfortunately laid down the flat rule that reformation could never be had against a fraudulent defendant. The statement in Wolz v. Venard ,(1913) 253 Mo. 67, 82, 161 S. W. 760, that the mistake must be mutual was probably not meant to apply to situations such as are discussed in this section; see also same statement in Meek v. Hurst (1909) 223 Mo. 688, 696, 122 S. W. 1022. 2. Ezell v. Peyton (1896) 134 Mo. 484, 490, 36 S. W. 35. § 339. Plaintiff alone mistaken, defendant innocent. 1. Adkins v. Tomlinson (1894) 121 Mo. 487, 493, 26 S. W. 573; Clark V. St. Louis Ry. Co. (1894) 127 Mo. 255, 264, 30 S. W. 121; Dougherty v. Dougherty (1907) 204 Mo. 228, 238, 102 S. W. 1099; Sternberg V. Ins. Co. (1892) 49 Mo. App. 255, 264, Benn v. Pritchett (1901) 163 Mo. 560, 572, 572, 63 S. W. 1103. § 340. Mistake as to collateral matter. 2. See Haguewood v. Britain (1917) 273 Mo. 89, 199 S. W. 950. C. Unilatebal oe Voluntary Tbansactions. § 342. Belief to the donor. 1. In Ottomeyer v. Pritchett (1903) 178 Mo. 160, 165, 77 S. "W. '62, the court assumed that the donor would have a right to reforma- MISSOURI APPENDIX 733 tion in a proper case, but refused relief because there was no evi- dence of the alleged mistake. In Summers v. Coleman (1883) 80 Mo. 488, 500, the grantor con- veyed a fee to her mother by mistake for a life estate; the court gave rescission but since the mother was dead the result was probably substantially the same as if reformation had been given. The mere fact that the donor expected the land to be used only for church purposes does not warrant relief against an absolute conveyance; Driskell v. Ashley (1914) 259 Mo. 1, 15, 167 S. W. 1026. § 343. Belief against the donor — who are Volunteers. 6. Partridge v. Partridge (1907) 220 Mo. 321, 325, 119 S. W. 415 (suit not brought till after husband's death). And apparently the rule in Missouri includes deeds to minor children by way of provision; Hutsell v. Crewse (1896) 138 Mo. 1, 5, 39 S. W. 449 (suit not brought till after death of grantor but no reliance on the fact) ; Crawley v. Grafton (1905) 193 Mo. 421, 432, 91 S. W. 1027 (ditto). § 344. Reformation against representatives of deceased. 4. Davidson v. Mayhew (1902) 169 Mo. 258, 267, 68 S. W. 1031: "When their father was still alive they asked him to cause the alleged mistake to be corrected and he refused the request." 7. In Freeland v. Williamson (1909) 220 Mo. 217, 232, 119 S. W. 560, plaintiff's father bought land and by mistake had It conveyed to his son-in-law instead of to his daughter; relief was given to the daughter against their children. In Bobb V. Bobb (1879) 7 Mo. App. 501, 503, property had been conveyed to a trustee upon trust for Mary Bobb, the wife of the -donor, and for John H., Charles L. and Lucy G. Bobb, the donor's children; reformation was sought on behalf of two after born children, upon the ground thai the intention of the donor was to include them; relief was denied because of conflict of evidence as to intent. § 345. Historical development of the subject. 6. Cassiday v. Metcalf (1876) 1 Mo. App. 593, 600. D. Mistake of Law. § 346. Present state of the law. 1. Kliemann v. Gieselmann (1892) 114 Mo. 437, 444, 21 S. W. 796 (plaintiff thought new deed of trust would be better than old one). In Price v. Estill (1885) 87 Mo. 378, 386, the defendant loaned money to a trustee upon a deed of trust which the trustee had no power to give; the defendant's claim to have reformation by being given a lien on the trust estate is denied on the ground that no relief will be given against a mistake of law; obviously, assuming a right to reformation against the trustee it must yield to the prior equity of the cestuis and therefore no point of mistake of law was involved. 734 MISSOUEI APPENDIX In City of St. Louis v. Priest (1886) 88 Mo. 612, 614, where a trustee had attempted to delegate his power of sale to X, and Y bought at the sale, Y asked that the defect in the sale be remedied by having title vested in himself; relief was denied on the ground of mistake of law but the real reason was that to remedy the defect would deprive the cestuis of the protection of the rule forbidding the trustee to delegate his power of sale (see ante § 330); besides, there was nothing to show that the cestuis were mistaken and hence the mistake was not mutual; see ante § S39. In Norton v. Highleyman (1886) 88 Mo. 621, the plaintiff was properly, denied subrogation because he was a volunteer, — i. e. an intermeddler ; see post § 450; the fact that he was mistaken as to the law of subrogation is not important' because only he was mis- taken; see ante § 339. 3. Williamson v. BroWn (1905) 195 Mo. 313, 332, 93 S. W. 791; Cassiday v. Metcalf (1877) 66 Mo. 519, 531; Corrigan v. T'iernay (1889) 100 Mo. 276, 281, 13 S. W. 401; Michigan Buggy Co. v. Woodson (1884) 59 Mo. App. 550; McKim v. Met. St. Ry. Co. (1917) 196 Mo. App. 544, 548, 196 S. W. 433; Horine v. Ins. Co. (1918) 199 Mo. App. 107, 114, 201 S. W. 958 (mistake of mixed law and fact). In Griffin v. Miller (1905) 188 Mo. 327, 335, 87 S. W. 455, the alleged mistake was one of law but relief was denied for lack of proof of the mistake. ' B. Kind and Amount of Peoof Reqtjieed. § 350. Statute of frauds — prevailing American view. 1. Epperson v. Epperson (1900) 161 Mo. 577, 61 S. W. 853 (con- veyance omitted fifty acres). § 351. Statute of wills. 1. Thomson v. Thomson (1892) 115 Mo. 56, 68, 21 S. W. 1085, 1128. 2. Goode. V. Goode (1856) 22 Mo. . 518, 524; Garland v. Smith (1894) 127 Mo. 583, 585, 28 S. W. 196, 29 S. W. 836. See also Stevens V. De La Vaulx (1901) 166 Mo. 20, 27, 65 S. W. 1003 (a fortiori no relief given against provisions of the will which unforseen change in conditions of the town have rendered burdensome). Nor will equity set aside a will as having been obtained by fraud, the jurisdiction of the probate courts being exclusive on this point; Stowe V. Stowe (1897) 140 Mo. 594, 604; 41 S. W. 957. But if a particular devise in the will is void because in violation of the Constitution or a statute, equity may declare such devise void and a cloud upon title; Judge v. Lackland (1876) 3 Mo. App. 107, 110. MISSOUEI APPENDIX 735 § 352. Amount of proof reoLuired. 1. Bunse v. Agee (1871) 47 Mo. 270 (but if mistake admitted, only preponderance of evidence necessary to show what was intended) ; Brown V. Gwin (1906) 197 Mo. 489, 506, 95 S. W. 208. 2. Henderson v. Beasley (1896) 137 Mo. 199, 203, 38 S. W. 950 ("clear and convincing"); Robinson v. Bobb (18971 139 Mo. 346, 357, 40 S. W. 938; Judson v. Mullinax (1898) 145 Mo. 630, 636, 47 S. W. 565; Moran etc. Co. v. St. Louis Car Co. (1907) 210 Mo. 715, 720, 109 S. W. 47; Able v. Union Ins. Co. (1857) 26 Mo. 56 (terms of contract as sought to be reformed not certain) ; Tesson v. Atlantic etc. Co. (1867) 40 Mo. 33, 36 ("both the agreement and the mistake must be madei out by the clearest evidence"); Turner v. Shaw (1888) 96 Mo. 22, 26, 8 S. W. 897 ("clear, positive and convincing") ; Sweet V. Owens (1891) 109 Mo. 1, 8, 18 S. W. 928 ("clear, strong, cogent and convincing") ; Fanning v. Doan (1897) 139 Mo. 392, 411, 41 S. W. 742 (oral evidence after many years of little value) ; Brohammer V. Hoss (1885) 17 Mo. App. 1 ("clear and cogent"); Jewell v. Ry. Co. (1891) 45 Mo. App. 58, 64 ("unless the testimony established this etc."); Meredith v. Holmes (1904) 105 Mo. App. 343, 352, 80 S. W. 61 ("clear and convincing"); Forsee Inv. Co. v. Ozenberger (1908) 132 Mo. App. 409, 414, 112 S. W. 22. 4. Bobb V. Bobb (1879) 7 Mo. App. 501, 504 ("satisfactory and conclusive"); Henley v. SuUivant (1912) 248 Mo. 672, 679, 154 S. W. 706. In the following cases the evidence was held insufficient: Young v. Marion-Sims College (1901) 91 Mo. App. 214, 219; Phillipi v. Brass Co. (1903) 103 Mo. App. 723, 78 S. W. 79; Foster v. Byrd (1906) 119 Mo. App. 168, 173, 96 S. W. 224; Detoul v. Yeater (1912) 164 Mo. App. 245, 250, 144 S. W. 1107. In the following cases the evidence was held sufficient: Owens v. R. R. (1904) 110 Mo. App. 320, 326, 85 S. W. 987; Redding v. Lumber Co. (1907) 127 Mo. App. 625, 629, 106 S. W. 557. 5. Downing v. McHugh (1877) 3 Mo. App. 594 ("positive and con- vincing and such as to leave no reasonable doubt that a mistake has been committed"); Steinberg v. Ins. Co. (1892) 49 Mo. App. 255, 265 ("free from reasonable doubt"); Horine v. Ins. Co. (1918) 199 Mo. App. 107, 112, 201 S. W. 958: "And while it is said that the mis- take must be proved beyond a reasonable doubt, the courts do not generally require the degree of. proof required by the criminal law," citing Southard v. Conley. F. Relief for and Against Third Persons. § 353. Analogy to ether equities. 2. Hagman v. Schaffner (1885) 88 Mo. 24, 29. 8. Young v. Coleman (1869) 43 Mo. 179, 185; Cox v. Esteb (1884) 81 Mo. 393, 403 (later mortgagee with notice) ; Wlddicombe v. Childers (1884) 84 Mo. 382, 394; Seiberling v. Tipton (1892) 113 Mo. 373, 380, 736 MISSOTJEI APPENDIX 21 S. W. 4; Mississippi Valley Trust Co. v. McDonald (1898) 146 Mo. 467, 477, 48 S. W. 483 (mistake apparent on record of deed of trust); Sicher v. Rambousek (1905) 193 Mo. 113, 129, 91 S. W. 68; Brooking V. Stratt (1885) 17 Mo. App. 296, 304 (subsequent judgment creditor); Smith V. Walser (1872) 49 Mo. 250; Rhodes v. Outcalt (1871) 48 Mo. 367, 373; Sensenderfer v. Kemp (1884) 83 Mo. 581, 588. § 354. Beformation against a married woman. 3. Contra, Shroyer v. Nickell (1874) 55 Mo. 264, 268; McRey- nolds V. Grubb (1899) 150 Mo. 352, 363, 51 S. W. 822; Meier v. Blume (1883) 80 Mo. 179, 184. 5. Pearl v. Hervey (1879) 70 Mo. 160, 167. G. Plaintiff's Conduct as a Defense. § 355. Lapse of time. 1. Epperson v. Epperspn (1900) 161 Mo. 577, 583, 61 S. W. 853 (possession for twenty six yearsj; and see Sicher v. Rambousek (1905) 193 Mo. 113, 129, 91 S. W. 68 (possession for 37 years, agree- ment as to passage way) ; Williamson v. Brown (1905) 195 Mo. 313, 329, 93 S. W. 791. 2. Contra, Stark v. Zehnder (1907) 204 Mo. 442, 451, 102 S. W. 992 (ten year statute begins to run as soon as the right accrued, without regard to time of discovering the mistake) ; Hoester v. Sammelmann (1890) 101 Mo. 619, 14. S. W. 728; and see Cooper v. Deal (1892) 114 Mo. 527, 534, 22 S. W. 31. 3. Brown v. Gwin (1906) 197 Mo. 499, 507, 95 S. W. 208 (plain- tiff barred) ; Collins v. Rogers (1876) 63 Mo. 575 (valuable improve- ments made) ; Davidson v. Mayhew (1902) 169 Mo. 248, 256, 68 S. W. 1031 (suit brought after grantor's death); § 356. Negligence in failing to discover mistake. 2. McHoney v. Ins. Co. (1892) 52 Mo. App. 94, 99 (duty of in- sured when he receives policy to examine it, etc) ; Spelman v. R. R. (1914) 187 Mo. App. 119, 124, 172 S. W. 1163 (failure of shipper to read contract); Cannon v. Sanford (1886) 20 Mo. App. 590, 594. 3. Harrison v. McReynolds (1904) 183 Mo. 533, 550, 82 S. W. 120. § 357. Fraud on third persons — illegality. 4. Gilmore v. Thomas (1913) 252 Mo. 147, 155, 158 S. "W. 577 (executor barred because he bought at his own sale) ; Henderson V. Dickey (1864) 35 Mo. 120, 127 (fraud on creditors of grantor). § 358. Compromise. 2. See Nesbit v. Nesbit (1878) 67 Mo. 275; Marshall v. Larkin (1899) 82 Mo. App. 635, 640. MISSOURI APPENDIX 737 § 359. Katificatiou — election of remedies. 1. Bobb V. Bobb (1886) 86 Mo. 411, 420 (acquiescence for twenty- four years); Fanning v. Doan (1897) 139 Mo. 392, 412, 41 S. W. 742 (most of the witnesses dead); Steinberg v. Ins. Co. v. Neiberger (1881) 74 Mo. 167, 173 ("after such delay, he will be deemed to have accepted the policy as issued"). See also Moran etc. Co. v. St. Louis Car Co. (1907) 210 Mo. 715, 729, 109 S. W. 47; Robinson v. Korns (1913) 250 Mo. 663, 676, 157 S. W. 790. In Parker v. Vanhoozer (1897) 142 Mo. 621, 630, 44 S. W. 728, the plaintiff failed partly because of lack of proof of mistake. Where the conveyance sought to be corrected was made in con- sideration of the grantee's supporting the grantor, the grantee must prove performance in order to get reformation; Williams v. Husky (1905) 192 Mo. 533, 551, 90 S. W. 425. H. Miscellaneous. § 360. Reformation as an independent eqtuity. 1. Gray v. Hornbeck (1861) 31 Mo. 400, 401; "It is not very material whether the petition was regarded as one for specific per- formance or for the reformation of the deed." See Cole v. Beaumont (1862) 32 Mo. 118, 122 (if vendor has given a deed misnaming the grantee, the latter should sue for re- formation, not for specific performance). 6. Epperson v. Epperson (1900) 161 Mo. 577, 61 S. W. 853. § 361. Form of relief. 2. In Flynn v. Herye (1877) 4 Mo. App. 360, 366, a conveyance of the omitted parcel was ordered in the court below, but since it did not pass the interests of all the claimants the case was reversed with directions to make the other claimants parties. § 362. Execution sales — statutory formalities — foreclosure of mortgage. 5. Dixon V. Hunter (1907) 244 Mo. 382, 388, 102 S. W. 970 (sheriff's deed) ; Moreau v. Branham (1858) 27 Mo. 351 (seal omitted from sheriff's deed); Wannall v. Kern (1872) 51 Mo. 150 (omission by notary in certificate of acknowledgment) ; Ware v. Johnson (1874) 55 Mo. 500 503, (sheriff's deed); McCann v. White (1871) 49 Mo. 96 (special judgment against rnarried woman). See also State v. Sar- gent (1882) 12 Mo. App. 228. T'here is, of course, no objection, to a bill for reformation of a mortgage and for foreclosure as reformed; Scott V. Gordon (1904) 109 Mo. App. 195, 83 S. W. 550. Even after the expiration of his oflScial term an officer may amend his return by leave of court; Miles v. Davis (1854) 19 Mo. 408, 414. 6. In Schwickerath v. Cooksey (1873) 53 Mo. 75, 81, the court, while agreeing with Waldron v. Letson, denied relief because of lack of evidence of the mistake. Eq. — 47 738 MISSOTJEI APPEKDIX But In Haley v. Bagley (1866) 37 Mo. 363, 365, where there was ■ a mistake In the description of the mortgaged premises the purchaser at the sale of the property under the power contained in the mortgage was denied relief because of lack of privity with the parties to the mortgage and because the mortgage was on record. It is diflBcult to see that either reason has any validity. 8. See dictum to this effect in Young v. Cason (1871) 48 Mo. 259, 262. Where a sheriff's deed conveys too much land to the purchaser, reformation may be had by the sheriff; Dodson v. Lomax (1892) 113 Mo. 555, 558, 21 S. W. 25. That reformation may be asked for by a defendant see Hook v. McClure (1862) -32 Mo. 405. As to the effect of a decree of reformation as res judicata see Dent V. Hobson (1915) 189 Mo. App. 140, 144, 175 S. W. 289; Nevins V. Coleman (1917) 198 Mo. App. 252, 259, 200 S. W. 445. Chapteb VII. Rescission. A. In General. § 363. Bescission distinguished from reformation. 4. Hence one who seeks relief against a usurious note is en- titled to rescission but not to reformation; Long v. Abstract Co. (1913- 252 Mo. 158, 169, 158 S. W. 305. § 365. Rescission and specific performance. 1. Charm Mfg. Co. v. Donovan (1884) 14 Mo. App. 591; Harrison V. Town (1852) 17 Mo. 237, 242; Gottfried v. Bray (1907) 208 Mo. 652, 660, 106 S. W. 639. B. Mistake. § Intrinsic and exrtrinsic or collateral facts. 2. Lyman v. Campbell (1888) 43 Mo. App. 230, 233. § 367. Mutual mistake. 3. Wilchinsky v. Cavender (1880) 72 Mo. 192 (sale on execution of land not owned by the execution debtor) ; McLean v. Martin (1870) 45 Mo. 393, 399 (ditto); Blair v. C. & A. R. R. (1886) 89 Mo. 383, 393, 1 S. W. 350 (release of cause of action for personal injuries set aside because plaintiff was ignorant of the extent of her injuries and defendant's agents were either mistaken or fraudulent); Castle- man V. Castleman (1904) 184 Mo. 432, 445, 83 S. W. 757 (mutual mistake as to amount of plaintiff's interest) ; Troll v. Sauerbrun (1905) 114 Mo. App. 323, 326, 89 S. W. 364 (release of deed of trust MISSOUKI APPENDIX 739 made by negligent mistake; since junior incumbrancer not injured, plaintiff's priority restored by cancelling release). Where the instrument is sued upon at law and the defendant wishes to obtain rescission, he should set up the mistake as an equitable defense; Noah v. Ins. Co. (1896) 69 Mo. App. 332, 336. See inaccurate dictum in Weissenfels v. Cable (1907) 208 Mo. 515, 536, 106 S. W. 1028; "it is rudimentary that a mistake furnishing ground for equitable interference must be a mutual mistake of fact." § 368. Plaintiff's mistake Innoently caused by the defendant. 1. See Culver v. Smith (1899) 82 Mo. App. 390, 397: "In actions like this, the fraudulent representations which will entitle the plain- tiff to relief need not be of the strict character which is necessary to support a common law action for deceit"; Anderson v. Drug Co. (1910) 149 Mo. App. 554, 573, 130 S. W. 829. § 369. Defendant cognizant of the plaintiff's mistake. 2. Welday v. Jones (1883) 79 Mo. 170, 173; Chitwood v. Russell (1889) 36 Mo. App. 245, 251; Gottschalk v. Kircher (1891) 109 Mo. 170, 186, 17 S. W. 905: Buckberg v. Washburn-Crosby Co. (1905) 115 Mo. App. 701, 706, 92 S. W. 733: "that a binding contract cannot arise in such circumstances is too plain for argument." § 370. Misunderstandings. 3. Norton v. Bohart (1891) 105 Mo. 615, 622, 16 S. W. 598. § 371. Plaintiff alone mistaken — defendant innocent. 1. Schieds v. Hickey (1887) 26 Mo. App. 194, 198; Boeckler Lumber Co. v. Realty Co. (1908) 135 Mo. App. 708, 720, 116 S- W. 452 ("the mistake was not all due to the fault of Vrooman, but entirely to appellants"). In Miller v. Brick Co. (1909) 139 Mo. App. 25, 34, 119 S. W. 976, there is a suggestion that relief might be granted in equity though not at law. § 373. Mistake of law — historical development. 5. Nelson v. Betts (1886) 21 Mo. App. 219, 229: ("every person is presumed to know the law etc."); Weinerth v. Trendley (1890) 39 Mo. App. 333, 337; Hendrix v. Wright (1872) 50 Mo. 313, 315; In- habitants V. Mfg. Co. (1889) 39 Mo. App. 264, 267 (action at law) ; Camp- bell V. Clark (1891) 44 Mo. App. 249, -253 (ditto). Notice the con- servative statement in Schaffner v. Shilling (1878) 6 Mo. App. 42, 45. § 374. Same — present state of the law. 3. In Clark v.. Carter (1910) 234 Mo. 90, 100, 136 S. W. 310, the mistake was as to the right of the grantor to convey, under her hus- i 740 MISSOUKI APPENDIX band's will; in giving relief the court called it a mistake of law and fact; in Griffith v. Townley (1878) 69 Mo. 13, 19, both parties thought a fee was being sold instead of the equity of redemption. 4. Nelson v. Betts (1886) 21 Mo. App. 219, 229 ("But the rule does not apply in respect of the ignorance of a person as to his right in a particular case, etc."). 5. Smith V. Patterson (1892) 53 Mo. App. 66, 74 (mistake as to priority of lien was mistake of fact because no mention of the cir- cumstances upon which priority depended); Castleman v. Castleman (1904) 184 Mo. 432, 445, 83 S. W. 757 (the mistake as to the amount of the plaintiff's interest was due to a mistake of fact, namely, as to what interest plaintiff's grandmother had elected to take). 10. If there is any evidence of inequitable conduct of the other party this is usually enough to take the case out of the supposed rule; Smith v. Patterson (1892) 53 Mo. App. 66, 74; Nelson v. Betts (1886) 21 Mo. App. 219, 229; Dailey v. Jessup (1880) 72 Mo. 144; Hickam v. Hickam (1891) 46 Mo. 496, 507 (negro girl kept in ignorance of emancipation). 11. See Harney v. Charles (1869) 45 Mo. 157, 159 (mistake as to constitutionality of statute). 12. McMurray v. St. Louis etc. Co. (1863) 33 Mo. 366, 386, (as to validity of judgment; Bailey v. Jessup (1880) 72 Mo. 144. § 377. Negligence in failing to discover the mistake. 2. But if no change of position it should be no bar; Troll v. ■ Sauerbrun (1905) 114 Mo. App. 323, 326, 89 S. "W. 364; but see Carroll V. United Rys. Co. (1911) 157 Mo. App. 247, 270, 137 S. W. 303. 5. Brown v. Fagan (1880) 71 Mo. 563, 569. § 378, Ratification — compromise. 3. Faust's Adm'x v. Blrner (1860) 30 Mo. 414, 419; Heald v. Donnell (1894) 121 Mo. 416, 434, 26 S. W. 568; Dalpine v. Lume (1909) 145 Mo. App. 549, 555, 122 S. W. 776. § 379. Placing def«ndant in statu quo. 2. Dalpine v. Lume (1909) 145 Mo. App. 548, 557, 122 S. W. 776 (general allegation of offer to do equity is enough without tender); Whelan v. Reilly (1876) 61 Mo. 565, 571. 4. In Neumann v. Friedman (1911) 156 Mo. App. 143, 152, 136 S. W. 251 the defendant had disposed of the land and therefore made it impossible for the plaintiff to be put back in statu quo by the court's decree, so the court properly gave money compensation; the court seemed to think that the doctrine applied to both parties, but it obviously applies only to putting the defendant in statu quo. MISSOUEI APPENDIX 741 C. Fbaud. § 380. Does fraud alone give equity jurisdiction? 2. For an attempted definition see Kehoe v. Taylor (1888) 31 Mo. App. 597. 3. Another type of fraud for which rescission will be given is the combination of bidders at a public sale in ord^r to depress bids; Miltenberger v. Morrisson (1866) 39 Mo. 71, 78; Wagner v. Phillips (1872) 51 Mo. 117; Durfee v. Bartlett (1874) 57 Mo. 374, 379; Keiser V. Gammon (1888) 95 Mo. 217, 224, 8 S. W. 377. So, if the defendant induces others not to bid by stating that he is bidding for the debtor; Merrett v. Poulter (1888) 96 Mo. 237, 240, 9 S. W. 586; McNew v. Booth (1868) 42 Mo. 189, 192; or agrees with the debtor to hold the land; Leahy v. Witte (1894) 123 Mo. 207, 213, 27 S. W. 402. But a combination atnong judgment creditors at an execution sale for their own protection and not to depress bids is not fraudulent; Boyd V. Jones (1875) 60 Mo. 454, 462; Kitchen v. R. R. (1878) 69 Mo. 224, 259. 6. West V. Wayne (1831) 3 Mo. 16, 19; Dingle v. Pollick (1892) 49 Mo. App. 479, 484; Purdy v. Gault (1885) 19 Mo. App. 191, 200. See Baldwin v. Davidson (1897) 139 Mo. 118, 126, 40 S. W. 765 (equity will entertain suit to set aside judgment for fraud though a remedy at law by appeal). 7. Casey v. Murphy (1879) 7 Mo. App. 247, 250; Clifford Bk'g Co. V. Donovan Co. (1905) 195 Mo. 262, 94 S. W. 527 (only money judgment wanted; action at law in quasi contract proper); Van Raalte v. Epstein (1906) 202 Mo. 173, 195, 99 S. W. 1077 (property had been transferred by defendant to iona fide purchaser) ; Boynton V. Boynton (1914) 186 Mo. App. 713, 714, 172 S. W. 1175 (fraudulent entry of satisfaction of judgment). But in Anable v. Land Co. (1910) 144 Mo. App. 303, 314, 128 S. W. 38, it was held that the jurisdiction of equity to cancel fraudulent releases was not abrogated by Rev. St. 1909 § 1912, allowing such fraud to be used as a defense to a common law action. / See also Jones v. Silver (1902) 97 Mo. App. 231, 241, 70 S. W. 1109 (if fraud is set up as a defense and the defendant assents to have the case submitted to a jury he can not later complain). In Gordon v. Burris (1899) 153 Mo. 223. 230, 54 S. W. 546, it was held that a proceeding to set aside a will for fraud and undue in- fluence was a proceeding at law. 8. In any jurisdiction if the plaintiff asks to have deeds can- celled or other relief which can only be given by an equity court he must proceed in equity; Bray v. Thacher (1859) 28 Mo. 129, 132; Graves v. R. R. (1908) 133 Mo. App. 91, 97, 112 S. W. 736. If he seeks only money relief he may recover at law, but if he is properly in equity but specific relief is impossible, equity will give him com- pensation in money; Nelson v. Betts (1886) 21 Mo. App. 219, 232. 742 MISSOUEI APPENDIX § 381. Action at law for fraudulent representation. For the requirements of a common law action for deceit, see Bank of North America v. York (1880) 8 Mo. App. 604; Franklin v. Holle (1879) 7 Mo. App. 241, 246; Shields v. McClure (1898) 75 Mo. App. 631, 641; Paretti v. Rebenack (1899) 81 Mo. App. 494, 498. § 382. (1) Representation made to plaintiff — ^promise — opinion — inteneion. 6. Baird v. Grannise (1907) 208 Mo. 426, 439, 106 S. W. 980; Saunders V. McClintock (1891) 46 Mo. App. 216, 225 (representation as to opinion of something in the future) ; Carroll v. United Rys. Co. (1911) 157 Mo. App. 247. 267, 137 S. W. 303 (ditto). 9. Stevens v. Rainwater (1877) 4 Mo. App. 292, 295 (rescission refused); Voorhis v. Smith, Beggs & Co. (1881) 11 Mo. App. 108. 112, (ditto); Broackhaus v. Schilling (1892) 52 Mo. App. 73, 78 (ditto). 13. Sheridan v. Nation (1900) 159 Mo. 27, 39, 59 S. W. 972; Clarkson v. Creely (1867) 40 Mo. 114, 117 (creditor represented to debtor that he would not sell under deed of trust till after demand made); Wright v. Barr (1873) 53 Mo. 341, 342; Elass v. Harrington (1887) 28 Mo. App. 300, 303 (intent not to pay); Leedom v. Ward Co. (1889) 38 Mo. App. 425, 433 (ditto); Reid, Murddck & Co. v. Lloyd (1892) 52 Mo. App. 278, 283 (ditto). But see Younger v. Hoge (1907) 211 Mo. 444, 456, 111 S. W. 20, contra; Missouri etc. Loan Co. v. T'rust Co. (1913) 175 Mo. App. 641, 651, 158 S. W. Ill reluctantly follows it. Merely that the vendee had no reasonable expectation of paying for the goods does not justify rescission; Manheimer v. Harrington (1886) 2 Mo. App. 297, 301. § 383. (2) BepreSentation not true in fact — suppression — concealment — non disclosure. 2. Morley v. Harrah (1901) 167 Mo. 74, 80, 66 S. W. 942; Dashner V. Buffington (1902) 170 Mo. 260, 268, 70 S. W. 699. 5. Van Raalte v. Epstein (1906) 202 Mo. 173, 192, 99 S. W. 1077; Leslie v. Carter (1911) 240 Mo. 552, 568, 144 S. W. 797; Donaldson V. Donaldson (1913) 249 Mo. 228, 248, 155 S. W. 791 (ante-nuptial contract). 6. Younger v. Hoge (1907) 211 Mo. 444, 455, 111 S. W. 20; Lipscomb v. Talbott (1912) 243, Mo. 1, 48, 147 S. W. 798 (purchaser of note knew it was secured and seller did not). And see Jillett v. Union Bk. (1874) 56 Mo. 304, 307. § 384. (3) Defendant's disbelief in representation — negligent and in- nocent misrepresentation. 2. Pomeroy v. Benton (1874) 57 Mo. 531, 548; McBeth v. Crad- dock (1887) 28 Mo. App. 380, 392; Ring v. Paint Co. (1890) 44 Mo. MISSOURI APPENDIX 743 App. Ill, 115 (representation of solvency) ; Snider v. McAtee (1912) 165 Mo. App. -260, 269, 147 S. W. 136; Connecticut Ins. Co. v. Carson (1914) 186 Mo. App. 221, 228, 172 S. W. 69; Bishop v. Seal (1900) 87 Mo. App. 256, 261. 4. Morgan Co. Coal Co. v. Halderman (1913) 254 Mo. 596, 646, 163 S. W. 878 (purchase of mining properties). 6. Yeater v. Hines (1887) 24 Mo. App. 619, 628; Coolc v. Smith (1914) 184 Mo. App. 561, 566, 171 S. W. 677 (distinction pointed out between action for deceit and rescission). See Huggins v. Davidson (1917) 274 Mo. 34, 50, 202 S. W. 395. 7. Morgan Co. Coal Co. v. Halderman supra. § 385. (4) Defendant's intent that plaintiff acrt upon representation. 3. Joliffe V. Collins (1885) 21 Mo. 338, 342. § 386. (5) Plaintiff's reUance upon representation — damage therefrom.. 1. Younger v. Hoge (1907) 211 Mo. 444, 458, 111 S. W. 20; Becraft v. Grist (1892) 52 Mo. App. 586 (589; Greenstreet v. Welch (1915) 189 Mo. App. 533, 537, 176 S. W. 1062. 2. Powell V. Adams (1889) 98 Mo. 598, 604, 12 S. W. 295; Becraft v. Grist, supra; Kirkendall v. Hartsock (1894) 58 Mo. App. 234, 240; Saunders v. McClintock (1891) 46 Mo. App. 216, 224; Cahn v. Reid (1885) 18 Mo. App. 115, 131. 3. Morse v. Rathbun (1871) 49 Mo. 91, 93; Warren v. Ritchie (1895) 128 Mo. 311, 319, 30 S. W. 1023. 7. Lewis v. Land Co. (1894) 124 Mo. 672, 688, 28 S. W. 324 (some damage necessary) ; Buford v. Keokuk Co. (1876) 3 Mo. App. 159, 169 (if plaintiff benefitted, not entitled to complain merely because there is damage to third persons who are making no complaint). If there is a fiduciary obligation owing from the defendant to the plaintiff the latter may rescind without proving any damage: see Montgomery v. Hundley (1907) 205 Mo. 138, 155, 103 S. W. 527. 9. But see Buford v. Keokuk Co. supra. § 387. Non actionable representations — intention as to price — "puffing" — ^prlce paid. 2. Cornwall v. McFarland Co. (1899) 150 Mo. 377, 383, 51 S. W. 736; Chase v. Rusk (1901) 90 Mo. App. 25, 29. 3. Hess V. Draffien & Co. (1903) 99 Mo. App. 580, 586, 74 S. W. 440; (cost of material); contra, Cornwall v. McFarland Co., supra. 5. Hirschberg Optical Co. v. Richards (1895) 62 Mo. App. 408, 412; Stonemets v. Head (1912) 248 Mo. 243, 265, 154 S. W. 108 (repre- sentation as to quality of land situated at a distance in another state) ; McBeth V. Craddock (1887) 28 Mo. App. 380, 397 (ditto). 6. Stones v. Richmond (1886) 21 Mo. App. 17, 20; Stonemets v. Head, supra, at pp. 257, 261. 744 MISSOUEI APPENDIX § 388. Representations of law. 4. Smith V. Patterson (1892) 53 Mo. App. 66, 73 (plaintiffs thrown off their guard). 6. Rescission was granted for a misrepresentation of law in the following cases: Stumpf v. Stumpf (1899) 3 Mo. App. 272, 276 (as to the effect of a conveyance); Rothenbarger v. Rothenharger (1892) 111 Mo. 1, 10, 19 S. W. 932 (as to the validity of a deed). § 389. Bepresentations to third parties. 4. Huntsucker v. Clark (1849) 12 Mo. 333 (defendant obtained certiiicate of purchase for a tract of land by fraudulent representation to State officers in fraud of plaintiff's rights; equity compelled defend- ant to transfer to plaintiff; Groves' Heirs v. Fulsome (1852) 16 Mo. 543, 549, (ditto); see also Summers v. Abernathy (1910) 234 Mo. 156, 166, 136 S. W. 289 (false representation to plaintiff's trustees) ; Schubach v. McDonald (1903) 179 Mo. 163, 177, 78 S. W. 1020 (in- junction against, ticket broker dealing in cut rate tickets, causing loss to purchaser or to the railroad) ; Bird v. Ward (1823) 1 Mo. 398; Smith V. Harris (1869) 43 Mo. 557, 561 (quitclaim deed obtained from plaintiff's grantor by fraud) ; Wagner v. Meety (1878) 69 Mo. 150. In Maguire v. Page (1856) 23 Mo. 188, 200, the defendant failed to get anything from the third party by the fraud and hence the plaintiff was denied any relief. 5. See Mayberry v. McClurg (1873) 51 Mo. 256, 258; Blass v. Blass (1916) 194 Mo. App. 124, 186 S. W. ;094; Sprinfield Traction Co. V. Dent (1911) 159 Mo. App. 220, 233, 140 S. W. 606; Wabash R. R. V. Mirrielees (1904) 182 Mo. 126, 141, 81 S. W. 437; see post § 457 note 5. § . 390. Bepresentations by third parties. 1. Or where defendant refers plaintiff to the third party, de- fendant is responsible; Burger v. Boardman (1913) 254 Mo. 238, 253, 162 S. W. 197. 2. Barnum v. Bobb (1878) 68 Mo. 619, 625 (defendant bound to account for ' property received because of fraudulent representations of her husband). And see Shawhan v. Baker (1912) 167 Mo. App. 25, 37, 150 S. W. 1096 (fraud of arbitrator). 3. Relief was denied in the somewhat similar case of Carder v. Drainage District (1914) 262 Mo. 542, 557, 172 S. W. 13. § 391. Negligence in failing to discover the fraud. 1. Sanderson v. Voelcker (1892) 61 Mo. App. 328, 332; Shearer V. Hill (1907) 125 Mo. App. 375, 380, 102 S. W. 673; Mires v. Sum- merville (1900) 85 Mo. App. 183, 187; Hines v. Royce (1907) 127 Mo. App. 718, 722, 106 S. W. 1091; Bradford v. Wright (1909) 145 MISSOUEI APPENDIX 745 Mo. App. 623, 6S1, 123 S. W. 108; Snider v. McAtee (1912) 165 Mo. App. 260, 270, 147 S. W. 136, 129 S. W. 221. 2. Davis V. Foreman (1910) 229 Mo. 27, 49. 3. Lewis V. Land Co. (1894) 124 Mo. 672, 887, 28 S. W. 324; Lelcher v. Keeney (1902) 98 Mo. App. 394, 406, 72 S. W. 145; Mc- Beth V. Craddock (1887) 28 Mo. App. 380. 4. Judd V. Walker (1908) 215 Mo. 312, 324, 114 S. W. 979. 5. The court had the distinction in mind in Mires v. Summer- ville, supra. 7. Clinkenbeard v. Weatherman (1900) 157 Mo. 105, 114, 57 S. W. 757. 9. Bailey v. Smock (1875) 61 Mo. 213, 217; Herman v. Hall (1897) 140 Mo. 270, 277, 41 S. W. 733; McBeth v. Craddock, supra (number of acres in a farm). 10. Tinker v. Kier (1905) 195 Mo. 183, 200, 94 S. W. 501; Nearen V. Bakewell (1892) 110 Mo. 645, 647, 19 S. W. 988; Gibson v. Cun- ningham (1884) 92 Mo. 131, 136, 5 S. W. 12; Hendricks v. Vivion (1906) 118 Mo. App. 417, 426, 94 S. W. 318; Snider v. McAtee, supra; Glas V. Templeton (1914) 184 Mo. App. 532, 539, 170 S. W. 665. § 392. Lapse of time. 3. Davis V. Foreman (1910) 229 Mo. 27, 48, 129 S. W. 213 (de- lay of three years no bar because nothing to put plaintiff on inquiry) ; Johnson v. United Rys. (1912) 243 Mo. 278, 297, 147 S. W. 1077 (delay of five years; analogy of statute of limitations applied) ; Hunter v. Hunter (1872) 50 Mo. 445, 452 (ten year statute of limitations be- gins to run only on discovery of fraud). In Lewis v. Land Co. (1894) 124 Mo. 672, 688, 28 S. W. 324, a delay of six months after discovering the fraud was held a bar; Joyce V. Gowney (1899) 154 Mo. 253, 263, 55 S. W. 466 a delay of nine years in discovering the fraud and a delay of ten years after dis- covering the fraud were held a bar. See Heath v. Tucker (1910) 153 Mo. App. 356, 374, 134 S. W. 572 (plaintiff must show that he was prompt in disavowing the obligation alleged to be fraudulent). 4. Brown v. Gwin (1906) 197 Mo. 499, 95 S. W. 208; Renfroe v. Renfroe (1893) 54 Mo. App. 429, 433. 5. Or if the land has otherwise increased in value; Wall v. Beedy (1900) 161 Mo. 625, 644, 61 S. W. 864 (building a railroad near the land). 6. McLain v. Parker (1910) 229 Mo. 68, 96, 129 S. W. 500. § 393. Eatiflcation — election of remedies. 1. Morgan v. Joy (1894) 121 Mo. 677, 681, 26 S. W. 670 (plain- tiff barred by compromise); Fruin v. Ry. Co. (1886) 89 Mo. 397, 406, 14 S. W. 557 (after knowledge of fraud plaintiff entered into supplemental contract). Overton v. Brown (1895) 63 Mo. App. 49, 57: 746 MISSOUEI APPENDIX Mansfield v. Bk. (1898) 74 Mo. App. 200, 202; Stons v. Johnson (1912) 167 Mo. App. 456, 463, 151 S. W. 987. The doctrine of ratification does not apply where the contract was unilateral — e. g., note induced by fraud; in such a case even the payment of interest is no bar to rescission; Beland v. Brewing Ass'n (1900) 157 Mo. 593, 608, 58 S. W. 1. But a subsequent performance of the contract by the plain- tiff after knowledge of the fraud is no bar to an action at law for danl- ages; Nauman v. Oberle (1886) 90 Mo. 666, 670, 3 S. W. 380. 4. Taylor v. Short (1891) 107 Mo. 384, 393, 17 S. W. 970; Thie- mann V. Heinze (1893) 120 Mo. 630, 635, 25 S. W. 533. 5. See Walker y. Charles (1917) 197 Mo. App. 536, 545, 196 S. W. 1085; Hall v. Clark (1855) 21 Mo. 415, 417. § 394. Putting defendant in statu quo. 1. And to cases of undue influence: Gibson v. ShuU (1913) 251 Mo. 480, 491, 158 S. W. 322. 2. Robinson v. Siple (1895) 129 Mo. 208, 221, 31 S. W. 788; Car- son V. Smith (1895) 133 Mo. 606,' 614, 24 S. W. 855; Rogers v. Pub'g Co. (1906) 118 Mo. App. 1, 14, 93 S. W. 328; Noel v. Hughes (1910) 152 Mo. App. 192, 195, 133 S. W. 385 and cases cited; Boehm v. Amer. Patriots (1913) 172 Mo. App. 104, 106, 154 S. W. 448. In Wood v. Telephone Co. (1909) 223 Mo. 537, 563, 123 S. W. 6, the court sug- gests that the rule should be applied more stringently in duress cases than in fraud cases. 3. A defrauded vendor is under no obligation to pay the ex- penses of the fraudulent vendee in carrying out his fraudulent scheme; Cass Plow Works Co. v. Ross (1898) 74 Mo. App. 437, 445. 4. Baier v. Berberich (1879) 6 Mo. App. 537, 541; Paquin v. Milliken (1901) 163 Mo. 79, 104, 63 S. W. 417, 1092. 5. Poe V. Stockton (1890) 39 Mo. App. 550, 560. 6. Jenkins v. Ins. Co. (1898) 79 Mo. App. 55, 60; Haydon v. R. R. (1905) 117 Mo. App. 76, 90, 93 S. W. 833 (rule not applicable in equity) ; Green v. Life Ins. Co. (1911) 159 Mo. App. 277, 295, 140 S. W. 325 (ditto). 7. Girard v. Car-Wheel Co. (1891) 46 Mo. App. 79, 106; King- man-Moore Implement Co. v. Ellis (1907) 125 Mo. App. 692, 696, 103 S. W. 124, and cases cited; Guinan v. Donnell (1906) 201 Mo. 173, 208, 98 S. W. 478; but if the amount claimed by the plaintiff is un- liquidated, he must restore the amount received from the defendant on the fraudulent release; Lomax v. Blec. Ry. (1906) 119 Mo. App. 192, 199, 95 S. W. 945; Putnam v. Boyer (1913) 173 Mo. App. 394, 399, 158 S. W. 861. § 395. Rescission at law — trover — replevin — assumpsit. 1. Long V. Vending Machine Co. (1911) 158 Mo. App. 662, 139 S. W. 819. In Gilbert v. .Seitz (1913) 170 Mo. App. 569, 157 S. W. MISSOURI APPENDIX 747 118, the plaintiff wished also to have the contract rescinded and hence sued in equity. Where the defrauded party is sued on the contract at law he may set up the fraud in defense; Watson Window Co. v. Cornice Co. (1914) 181 Mo. App. 318, 168 S. W. 905; or he may use the fraud by way of a counterclaim for damages; Carr v. Swift (1914) 185 Mo. App. 86, 89, 170 S. W. 919. 3. Foe V. Stockton (1890) 39 Mo. App. 550, 559; Winona Wagon Co. V. Feaster (1915) 188 Mo. App. 307, 310, 175 S. W. 109. § 396. Conveyances in fraud of creditors. 1. Mitchell V. Henley (1892) 110 Mo. 598, 604, 19 S. W. 993; McLaughlin v. McLaughlin's Adm'r (1852) 16 Mo. 242, 249; Steadman V. Hayes (1883) 80 Mo. ,319, 323; Perry v. Calvert (1856) 22 Mo. 361; Larrimore v. Tyler (1886) 88 Mo. 661, 668; Evans v. David (1889) 98 Mo. 405, 412, 11 S. W. 975 (purchaser from debtor also barred); Lewis v. Life Ins. Co. (1879) 7 Mo. App. 112, 114 (debtor's administrator also barred); Scudder v. Atwood (1893) 55 Mo. App. 512, 522. In Poston V. Balch (1878) 69 Mo. 115, 123, relief was given because the parties were not in pari delicto; see also Guinan v. Donnell (1906) 201 Mo. 173, 212, 98 S. W. 478 (homestead rights not forfeited by conveyance in fraud of creditors) ; McNear v. Williamson (1901) 166 Mo. 358, 369, 66 S. W. 160 (relief probably given because deed not delivered). .2. Hach V. Rollins (1900) 158 Mo. 182, 196, 59 S. W. 232 (convey- ance to children on eve of marriage, in fraud of prospective wife ) ; Peay v. Sublet (1824) 1 Mo. 449; Davis v. Davis (1838) 5 Mo. 183 (conveyance of slaves to son in order to defeat widow's dower) ; Martin v. Michael (1856) 23 Mo. 50, 56 (plaintiff must first get judgment and execution before asking to have conveyance set aside; ( — decision due to confusion with creditor's bill for equitable execution; see post § 455); Turner v. Adams (1870) 46 Mo. 95, 99 (ditto); Woodward v. Mastin (1891) 106 Mo. 324, 364, 17 S. W. 308 (sale under deed of trust made in fraud of creditors); Findley v. Findley (1887) 93 Mo. 493, 496, 6 S. W. 369 (ditto); Newton v. Newton (1901) 162 Mo. 173, 185, 61 S. W. 881 (ante mortem conveyance of homestead to defeat widow's dower); White v. McPheeters (1882) 75 Mo. 286, 294 (if debtor insolvent, fact that conveyance was by mistake does not bar creditors); Kirby v. Bruns (1870) 45 Mo. 234 (debtor husband placed improvements on wife's land); Healey v. Tlllberry (1915) 192 Mo. App. 509, 513, 183 S. W. 666 (conveyance by debtor widower of curtesy in deceased wife's property). See also Stitt v. Stitt (1907) 205 Mo. 155, 167, 113 S. W. 547 (executrix purposely failed to sell land so that she might buy it in at trustee's sale in fraud of creditors) ; Creamer v. Bivert (1908) 214 Mo. 473, 485, 113 S. W. 1118 (grantor conveyed to sister in order to defeat suit for breach of promise of 748 MISSOURI APPENDIX marriage; relief denied both to grantor who wanted reconveyance and to grantee who wanted title confirmed in her). 3. Farmers' Bk. v. Worthington (1898) 145 Mo. 91, 99, 46 S. W. 745; National Tube Co. v. Ring etc. Co. (1893) 118 Mo. 365, 375, 22 S. W. 947; Gordon v. Rittenour (1885) 87 Mo. 54, 61 (.bona fide Pur- chaser from fraudulent grantee protected) ; Howe v. Waysonan (1848)- 12 Mo. 169, 174 {bona fide purchaser from either fraudulent grantor or fraudulent grantee Is protected) ; Powell v. R. R. (1867) 42 Mo. 63, 69 (transfer by corporation). 4. The Missouri Statute is similar; Woodward v. Mastin (1891) 106 Mo. 324, 361, 17 S. W. 308; Rev. St. 1909 §§ 2881-2890. See also Carrel v. Meek (19il) 155 Mo. App. 337, 340, 137 S. W. 19 (the cred- itors proceeded at law). The subject of fraudulent conveyances is too large to be dealf with exhaustively in this work. § 397. Proof of fraud. 2. Jackson v. Wood (1885) 88 Mo. 76, 78; Kinzer v. Kinzer (1895) 130 Mo. 126, 31 S. W. 577; Brown v. Fickle (1896) 135 Mo. 405, 37 S. W. 107; Hoellner v. Haffner (1899) 155 Mo. 589, 600, 56 S. W. 312; Bryan v. Hitchcock (1869) 43 Mo. 527, 531; Troll v. Spencer (1911) 238 Mo. 81, 101, 141 S. W. 855. 4. Nelson v. Betts (1886) 21 Mo. App. 219, 231. 5. Holmes v. Fresh (1845) 9 Mo. 200; . Jaeschke v. Reinders (1876) 2 Mo. App. 212, 223. 6. Younger v. Hoge (1907) 211 Mo. 444, 459, 111 S. W. 20; Street v. Gross (1876) 62 Mo. 226 (fiduciary relation and inadequate price); Clark v. Drake (1876) 63 Mo. 354, 359. 7. Dickson v. Kempinsky (1888) 96 Mo. 252, 9 S. W. 618 (old age, disease, mental weakness and inadequacy of consideration all elements); Snyder v. Am (1904) 187 Mo. 165, 86 S. W. 197. 8. Phillips V. Stewart (1875) 59 Mo. 491, 493 (mere inadequacy not enough); Wilson v. Jackson (1901) 167 Mo. 135, 156, 66 S. W. 972 (ditto); Davis v. McCann (1897) 143 Mo. 172, 177, 44 S. W. 795. But If inadequacy is so large as to shock the conscience, rescission will be given; Guinan v. Donnell (1906) 201 Mo. 173, 201, 98 S. W. 478; Ames v. Gilmore (1875) 59 Mo. 537, 549; Beedle v. Meed (1883) 81 Mo. 297, 307. A change of circumstances after making a conveyance is no basis for setting it aside; McDermeitt v. Keesler (1911) 240 Mo. 278, 289, 144 S. W. 414 (conveyance by aged and infirm parents to un- married son, expecting him to take care of them in their old age; the son married and died, leaving a posthumous child); Kinzey v. Kinzey (1893) 115 Mo. 496, 502, 22 S. W. 497 (after conveyance to wife, grantor later obtained divorce on ground of adultery). MISSOUEI APPENDIX 749 D. DuKESs AND Undue Influence. § 398. Duress on the plaintiff. 1. Bray v. Thatcher (1859) 28 Mo. 129, 133. 3. See Brown v. "Worthlngton (1911) 162 Mo. App. 508, 516, 142 S. W. 1082, laying down a very liberal rule; Link v. Real Estate Co. (1914) 182 Mo. App. 531, 540, 165 S. W. 832 (ditto). 4. Turley v. Edwards (1885) 18 Mo. App. 676, 683 (definition of duress); Wilkerson v. Hood (1896) 65 Mo. App. 491, 494. As in fraud cases, one seeking rescission for duress must gener- ally act promptly and place the other party in statu quo; Wood v. Telephone Co. (1909) 223 Mo. 537, 564, 123 S. "W. 6. That creditors may hot take advantage of duress on their debtor see Marion Distilling Co. v. Ellis (1895) 63 Mo. App. 17, 20; Parker V. Roberts (1893) 116 Mo. 657, 662, 22 S. W. 914. 5. Davis V. Fox (1875) 59 Mo. 125, 134 (proof failed). ' 6. But see cases cited in note 3 supra; Lappin v. Crdwford (1904) 186 Mo. 462, 471, 85 S. W. 535 (defendant loan agent compelled mortgagors to execute notes for $1000 in addition to paying regular $300 commission, after it was too late to borrow elsewhere to redeem from foreclosure sale). 7. But see Scott v. Realty Co. (1911) 241 Mo. 112, 137, 145 S. W. 48 (compromise set aside because coerced by defendant's true statement of prospective insolvency). § 399. Duress on third persons. 3. Turner v. Overall (1902) 172 Mo. 271, 279, 72 S. W. 644 (hus- band threatened with prosecution for forgery) ; Bushnell v. Loomis (1911) 234 Mo. 371, 137 S. W. 257 (illness and mental weakness of wife; deed of trust on homestead) ; Ryan v. Strop (1913) 253 Mo. 1, 5, 161 S. W. 700 (threat of prosecution for embezzlement). 4. in Davis v. Lester (1876) 64 Mo. 43, the petition was held defective because it failed to allege that the plaintiff was really coerced. 5. And see Bell v. Campbell (1894) 123 Mo. 1, 16, 25 S. W. 359 (aged woman for duress on son-in-law). § 400. Undue influence. 1. Bowles V. Wathan (1873,) 54 Mo. 261, 264 (not undue influence to compel plaintiff to carry out a specifically enforcible contract) ; HoUocher v. HoHocher (1876) 62 Mo. 217, 271 (not undue influence to induce a drunken husband to convey land to his wife as a provision for herself and children); McKissock v. Groom (1898) 148 Mo. 459, 468, 50 S. W. 115 (influence must be such as to amount to moral coercion) ; Luebbert v. Brockmayer (1911) 158 Mo. App. 196, 210, 138 S. W. 92. In Allen v. Drake (1891) 109 Mo. 626, 645, 19 S. W. 41, the plaintiff failed to prove any constraint. It is not important whether the undue influence was exerted by 750 MISSOURI APPENDIX the grantee or a third party; Miller v. Simonds (1878) 5 Mo. App. 3S, 50. 3. Yostie V. Laughran (1872) 49 Mo. 594; Obst v. Unnerstall (1904) 184 Mo. 383, 392, 83 S. W. 450; Caspari v. First Church (1884) 82 Mo. 649, 652; Martin v. Baker (1896) 135 Mo. 495, 509, 36 S. W. 369 (sale at low price); in Cook v. Newby (1908) 213 Mo. 471, 112 S. W. 272 undue influence on an old, illiterate man was alleged hut not proved; see also Crowe v. Peters (1876) 63 Mo. 429, 431; Ohst v. Unnerstall (1904) 184 Mo. 383, 392, 83 S. W. 450; Jones v. Belshe (1911) 238 Mo. 524, 141 S. W. 1130 (conveyance by eighty-five year old man to strangers, for support). In Lee v. Lee (1914) 258 Mo. 599, 613, 167 S. W. 1030, the grantor was old and diseased but no undue influence was used by daughter to whom he conveyed land in consideration of support; see also Stanfleld v. Hennegar (1914) 259 Mo. 41, 51, 167 S. W. 1036. Also, if the grantor is illiterate; Morriso v. Philliber (1860) 30 Mo. 145. In Williams v. Gerber (1898) 75 Mo. App. 19, 31, the plain- tiffs were not old but there was a clear breach of a fiduciary relation- ship amounting almost to fraud. 4. McClure v. Lewis (1880) 72 Mo. 314, 322 (conveyance for one eighth value); Holliway v. Holliway (1883) 77 Mo. 392. 396 (grantor a cripple and weak minded); Phillips v. Moore (1848) 11 Mo. 600 (grantor intoxicated); Freeland v. Eldridge (1854) 19 Mo. 325 (weak minded); Hurley v. Kennally (1907) 206 Mo. 282, 103 S. W. 937 (grantor old, infirm, ignorant and made intoxicated by de- fendant); Ryan v. Ryan (1902) 174 Mo. 279, 286, 73 S. W. 494 (in- ebriate uncle to niece). The same rule applies to a deed made by an insane person not under legal guardianship; Jamison v. CuUigan (1899) 151 Mo. 410, 416, 5'2 S. W. 224; McKenzie v. Donnell (1899) 151 Mo. 431, 454, 52 S. W. 222. 5. Rothenbarger v. Rothenbarger (1892) 111 Mo. 1, 10, 19 S. W. 932 (plaintiffs were young sisters of defendant) ; Rankin v. Patton (1877) 65 Mo. 378, 416 (deed by girl of twenty three to her aunts, induced by her uncle who had been her guardian) ; Garvin v. WiK Hams (1872) 50 Mo. 206, 211; Miller v. Simonds (1878) 5 Mo. App. 33, 50. For other circumstances showing undue influence, see Sims v. Sims (1903) 101 Mo. App. 407, 419, 74 S. W. 449 (to avoid domestic trouble). 6. Jones v. Thomas (1908) 218 Mo. 508, 536, 117 S. "W. 1177 (donor eighty-two); Kirschner v. Kirschner (1892) 113 Mo. 290, 297, 20 S. W. 791; Gibson v. Shull (1913) 251 Mo. 480, 491, 158 S. W. 322; Miller V. Simonds (1880) 72 Mo. 669, 687 (from daughter to father); Cad- wallader v. West (1871) 48 Mo. 483, 496 (very old man and medical adviser); Goodrick v. Harrison (1895) 130 Mo. 263, 268, 32 S. W. 661; Cornet v. Cornet (1912) 248 Mo. 184, 234, 154 S. W. 121. Griesel. MISSOtTEI APPENDIX 751 V. Jones (1906) 123 Mo. App. 45, 52, 99 S. W. 769 (father to adult son). In Brown v. Brown (1911) 237 Mo. 662, 666, 141 S. W. 631 the presumption was rebutted; Reed v. Carroll (1899) 82 Mo. App. 102, 112 (ditto). In Cohron v. Polk (1913) 252 Mo. 261, 158 S. W. 603, the grantor was old but not Incapacitated and there was no fiduciary relation- ship; hence burden was upon plaintiff; see also Kinzer v. Kinzer (1895) 130 Mo. 126, 129, 31 S. W. 577 (burden on plaintiff); Doherty V. Noble (1896) 138 Mo. 25, 32, 39 S. W. 458 (conveyance to grand- child); Hatcher v. Hatcher (1897) 139 Mo. 614, 624, 39 S. W. 479 (burden on plaintiff unless confidential relationship); State ex rel. v^ Tine (1886) 20 Mo. App. 176, 181 (transfer from parent to child); Borchers v. Barckers (1909) 143 Mo. App. 72, 84, 122 S. W. S57 (parent to child). E. Illegality. § 401. In general — unlawful cohabitation. 1. See Long v. Abstract Co. (1913) 252 Mo. 169, 158 S. "W. 305 (rescission of note for usury). See also Bell v. Mulholland (1901) 90 Mo. App. 612, 620 (debtor of usurious debt not barred by clean hands maxim); Holmes v. Bldg. & Loan Ass'n. (1915) 189 Mo. App. 95, 102, 174 S. W. 122 (debtor must tender amount equitably due in order to get injunction against collection of usury). In Kitchen v. Greenabaum (1875) 61 Mo. 110, 116, where a lottery ticket had been obtained by fraud equitable relief was refused because the lottery was illegal. F. Breach of Contract. § 403. In general — conveyance of land for support. 1. Or if the grantee promises to render services; King v. Blen- nerhassett (1859) 29 Mo. 174 (services as attorney). In Haydon v. R. R. (1909) 222 Mo. 126, 140, 121 S. W. 15, the defendant had con- veyed to plaintiff a piece of land in settlement of damages for estab- lishing a switch in front of plaintiff's property, agreeing not to use the switch in a particular way; the defendant having used the switch in the forbidden way, plaintiff asked rescission but it was refused be- cause the remedy at law was adequate. 2. In Reynolds v. Reynolds (1910) 234 Mo. 144, 136 S. W. 411, the son gave a deed of trust to his parents to secure his promise of support; later the contract was abandoned and the court properly set aside both the conveyance to the son and the deed of trust as a cloud on title. In Anderson v. Gaines (1900) 156 Mo.- 664, 672, 57 S. W. 726, relief was denied because the plaintiffs were in fault, 3. Heimeyer v. Heimeyer (1914) 259 Mo. 515, 534, 168 S. W. 757; and^sse Bales v. Roberts (1905) 189 Mo. 49, 69, 87 S. W. 914. 752 MISSOURI APPENDIX § 404. Bescisslon to a grantee, 1. See Bales v. Roberts (1905) 189 Mo. 49, 69, 87 S. W. 914 (breach tinged with fraud). That one who has not yet accepted title may rescind for failure of title, see Parsons v. Kelso (1909) 141 Mo. App. ^69, 374, 125 S. W. 227; Nance v. Sexton (1918) 199 Mo. App. 461, 465, 203 S. W. 649; or for substantial breach of other promises; Lin- coln Trust Co. V. Nathan (1903) 175 Mo. 32, 44, 74 S. Wi 1007; but not for mere delay in making title; Woods v. Straup (1876) 63 Mo. 437. 2. Connor v. Eddy (1857) 25 Mo. 72, 75; Edington v. Nix (1871) 49 Mo. 134, 136; Hart v. R. R. (1877) 65 Mo. 509; Swain v. Burnley (1823) 1 Mo. 404 (equity gave temporary injunction against enforc- ing Judgment for purchase money because of defect of title). There has been much dispute as to whether rescission should be allowed at law for breach of warranty of the quality of a chattel; Williston, Sales § 608; it seems to be allowed in Missouri; Johnson V. Agricultural Co. (1885) 20 Mo. App. 100. 3. Heady v. Hollman (1913) 251 Mo. 632, 636, 158 S. W. 19; or where the vendor's title wholly fails; Schroeder v. Turpin (1913) 253 Mo. 258, 268, 161 S. W. 716. Chapter VIII. Bills Quia Timet and to Eemove Cloud ON Title. A. Cancellation of Conteacts. § 406. Equitable defenses arising at Inception of contract. 3. See Och v. R. R. (1895) 130 Mo. 27, 49, 31 S. W. 962, where the court held that a release of plaintiff's cause of action against the defendant for personal Injuries could be avoided for fraud only by a proceeding in equity to cancel; and see Roberts v. Central Lead Co. (1902) 95 Mo. App. 581, 596, 69 S. W. 630 (jurisdiction of equity in such cases not abrogated by statute (Rev. St. 1909, § 1812). See also Ryan v. Miller (1911) 236 Mo. 496, 508, 139 S. "W. 128 (suit to rescind a contract is one in equity); Robertson v. Life Ins. Co. (1906) 123 Mo. App. 236, 245, 100 S. W. 686 (cancellation of life insurance policy procured by fraud) ; Dwyer v. R. R. (1896) 66 Mo. App. 335, 337 (if contract absolutely void because of fraud in the execution, defrauded party may set this up at law; but if fraud in the inducement, the defrauded party must proceed in equity) ; Bar- rington v. Ryan (1901) 88 Mo. App. 851 (cancellation of insurance policy procured by fraud); Veney v. Furth (1913) 171 Mo. App. 678, 154 S. W. 793 (note). In Thompson v. Bank (1908) 132 Mo. App. 225, 110 S. W. 681, where action was brought upon a check which the defendant contended had been issued by mistake, it was held that the defendant did not need any equitable relief because the check had already been stamped "cancelled"- 5. Paquin v. Milliken (1901) 163 Mo. 79, 108, 63 S. W. 417, 1092. MISSOURI APPENDIX 753 § 407. Equitable defenses arising after inception of contract. 4. Contra, Barton v. Rector (1842) 7 Mo. 524, 529 (failure of con- sideration, notes having been given for land to -whlcli title failed). § 410. Injunction against transfer of negotiable instruments. 1. Paquin v. Milliken (1901) 163 Mo. 79, 99, 63 S. W. 417, 1092; Cass Co. V. Green (1877) 66 Mo. 498, 503. § 412. Conflict between state and federal decisions. 1. Dallas Co. v. Merrill (1883) 77 Mo. 573, 585. B. Bills to Remove Cloud on Title. § 413. In general. 3. The subject has been regulated by statute in Missouri for many years. The latest statute in regard to it was passed in 1897 and was amended in 1909 so as to read as follows (Rev. Stat. 1909, § 2535): ' ' Suits to determine interest and quiet title — how instituted — all rights and interests may be determined — effect of judgment. Any per- son claiming any title, estate or interest in real property, whether the same be legal or equitable, certain or contingent, present or in reversion or remainder, whether in possession or not, may institute an action against any person or persons having or claiining to have any title, estate or interest in such property, whether in possession or not, to ascertain and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and ad- judge by its judgment or decree the title, estate and interest of the par- ties severally in and to such real property. And upon the trial of such cause if same be asked for in the pleadings of either party, the court may hear and finally determine any and all rights, claims, interests, liens and demands whatsoever of the parties, or of any one of them, con- cerning or affecting said real property, and may award filll and com- plete relief, whether legal or equitable, to the several parties and to each of them, as fully and with the same force and effect as the court might or could in any other or different action brought by the parties, or any one of them, to enforce any such right, claim, interest, lien or demand, and the judgment or decree of the court when so rendered shall be as effectual between the parties thereto as if rendered in any other, different or separate action prosecuted therefor." The statute did not repeal the chapter on ejectment; Bedford v. Sykes (1901) 168 Mo. 8, 14, 67 S. W. 569; but it did repeal R. S. 1889 § 2092, entitled "Suits to Quiet Title"; Meriwether v. Love (1901) 167 Mo. 514, 522, 67 S. W. 250. As pointed out in Ball v. Woolfolk (1903) 175 Mo. 278, 285, 75 S. W. 410, "the statute is highly remedial and beneficial in its pur- poses, and supplements the old equitable remedy to remove a cloud from title, and is much more comprehensive in its scope." Eq.— 48 754 MISSOURI APPENDIX In Wheeler V. Reynolds Land Co. (1905) 193 Mo. 279, 91 S. W. 1050, the court says that a suit under the statute "though not technically a suit in equity, is designed to determine all questions whether of law or equity relating to the respective titles of the parties and to put at rest the controversy." That the trial of the title is for the court and not the jury see Stone v. Perkins (1908) 217 Mo. 586, 602, 117 S. W. 717; Lewis v. Barnes (1917) 272 Mo. 377, 199 S. W. 212 (cancellation asked by defendant). That the jurisdiction of courts of equity was not narrowed by the statute, see Hudson v. Wright (1907) 204 Mo. 412, 423, 103 S. W. 8. Tliat a bill to remove cloud is not a proceeding which binds the whole world, see Dixon v. Hunter (1907) 204 Mo. 382, 390, 102 S. W. 970. Hence the plaintiff need not establish a title good against the whole world: Charles v. White (1908) 214 Mo. 187, 212, 112 S. W. 545. 6. That relief against a cloud on title can be given only in equity, see Gilbert v. Renner (1889) 95 Mo. 151, 154, 7 S. W. 479; Bunn V. Stuart (1904) 183 Mo. 375, 385; 81 S. W. 1091. § 414. What constitutes a cloud on title. 4. Hannibal etc. R. R. v. Norton! (1900) 154 Mo. 142, 150, 55 S. W. 220: "It would not require either extrinsic evidence to show the deed to be void, or legal acumen to discover its invalidity. . . . In an action of ejectment ... no proof by plaintiff would be nec- essary to defeat a recovery"; Graham v. Carondelet (1862) 33 Mo. 262, 269; Russell v. Lumber Co. (1892) 112 Mo. 40, 44, 20 S. W. 26; M. K. & E. R. R. V. Hoerth (1898) 144 Mo. 136, 149, 45 S. W. 1085; Gamble v. St. Louis (1849) 12 Mo. 617, 620; Holland v. Johnson (1883) 80 Mo. 34, 39; Mason v. Black (1885) 87 Mo. 329, 345; Fon- taine V. Hudson (1887) 93 Mo. 62, 71, 5 S. W. 692. In State ex rel. v. Philips (1888) 97 Mo. 331, 339, 10 S. W. 855, relief was given because the tax bills were apparently valid; for other cases in which relief was given, see Clark v. Covenant etc. Co. (1873) 52 Mo. 272, 276 (forged deed); Harrington v. Utterback (1874) 57 Mo. 519, 520; Dickerson v. Dickerson (1907) 211 Mo. 483, 497, 110 S. W. 700; Gibson v. Shull (1913) 251 Mo. 480, 490, 158 S. W. 322; Overall v. Ruenzi (1877) 67 Mo. 203, 207 (Illegal taxation) ; Ewing V. Board of Education (1880) 73 Mo. 436, 440 (ditto); Hays V. Davis (1881) 75 Mo. 250 (ditto). In Chambers v. Chambers (1909) 227 Mo. 262, 284, 127 S. W. 86, the plaintiff failed to get relief because his evidence of the invalidity of the defendant's deed was "not clear and convincing" § 415. Requirements of title and possession. i: Thompson v. Newberry (1887) 93 Mo. 18, 5 S. W. 34; Davis v. Sloan (1887) 95 Mo. 552, 5 S. W. 702. 2. In Missouri relief was apparently given without a statute to the holder of an equitable interest; Mason v. Black (1885) 87 Mo. MISSOUEI APPENDIX 755 329, 346; Conn. Ins. Co. v. Smith (1893) 117 Mo. 261, 297, 22 S. W. 623; Graves v. Ewart (1889) 99 Mo. 13, 18, 11 S. W. 971. There is an express provision in R. S. 1909 § 2535 giving relief to one whose title is merely equitable; and see Peters v. Berkemeier (1904) 184 Mo. 393, 401, 83 S. W. 747. 3. In Webb v. Donaldson (1875) 60 Mo. 394, the plaintiff in pos- session asked for relief against defendant's claim which was subject to a life estate; the plaintiff failed to get relief because he based his action upon the statute to quiet titles, which was not broad enough to cover the case. 4. Davis V. Sloan supra. By R. S. 1909, § 2535, possession is no longer essential. See antS § 413. See Peter^ v. Berkemeier, supra. 5. Janney v. Spedden (1866) 38 Mo. 395, 402. 6. But in Borel v. Mead (1883) 81 Mo. 297, 303, the court said that a plaintiff out of possession was entitled to cancellation where the judgment roll, under which the defendant claimed, did not dis- close its infirmity; in other words, the judgment would be a com- plete answer to an action of ejectment at law and the plaintiff would , be forced into equity if he brought ejectment and the judgment were set up in defense. 11. Jewett V. Boardman (1904) 181 Mo. 647, 658, 81 S. W. 186. 12. Rev. Stat. 1909, § 2535; see ante § 413. § 416. Inadequacy of other remedies. 7. Under the present statute a present right is clearly recog- nized; Garrison v. Prazier (1901) 165 Mo. 40, 46, 65 S. W. 229: "The object of the statute, it seems, is to give a present right of action to any person claiming an estate in lands, either certain, contingent or •in remainder and to compel the adverse claimant or claimants to come into court and litigate his or their claims." See Parks v. Bk. (1888) 97 Mo. 130, 132, 11 S. W. 41, in answer to a suggestion that plaintiff would have a good defense to an action of ejectment. § 417. Title by adverse possession — prevention of cloud. 1. McRee v. Gardner (1895) 131 Mo. 599, 606, 33 S. W. 166; Gard- ner V. Terry (1889) 99 Mo. 523, 526, 12 S. W. 888; Page v. Shelby (1891) 108 Mo. 286, 18 S. W. 900. i. Gardner v. Terry, supra; Barnes v. Stone (1906) 198 Mo. 471, 477, k S. W. 915; Brooks v. Owen (1892) 112 Mo. 251, 264, 19 S. W. 723, 20 S. W. 492; Ryan v. Gilliam (1881) 75 Mo. 132; Parks v. Bk. (1888) 97 Mo. 130, 132, 11 S- W. 41; Valle v. Zieglet (1884) 84 Mo. 214, 219 (injunction against levying taxes on property not subject to taxation); North St. Louis etc. Soc'y v. Hudson (1885) 85 Mo. 32, 35 (ditto); Gunby v. Brown (1885) 86 Mo. 253 (illegal sale under or- der of probate court) ; Bonsor v. Madison Co. (1907) 204 Mo. 84, 98, 102 S. W. 494; Martin v. Jones (1880) 72 Mo. 23, 26; State v. Tiede- 756 MISSOUEI APPENDIX man (1879) 69 Mo. 306, 308 (threatened sale of school property); Westerman v. Johnson (1872) 49 Mo. 410; Stewart v. Caldwell (1874) 54 Mo. 536 (fraudulent adm'r's sale) ; Vogler v. Montgomery (1874) 54 Mo. 577, 585; Benecke v. Welch (1901) 168 Mo. 267, 270, 67 S. W. 604 (county court about to survey land expecting to sell it) ; Verdin V. St. Louis (1895) 131 Mo. 26, 77, 33 S. W. 480, 36 S. W. 52 (void tax bill). In Porter v. Paving Co. (1908) 214 Mo. 1, 22, 112 S. W. 235, the court refused to enjoin the collection of a tax bill because the plain- tiff had not tendered the full amount justly due. In Sayre v. Tompkins (1856) 23 Mo. 443, 445, the equity court refused to prevent the sale of personal property for taxes alleged to be void, because the remedy at law was adequate. See also McPike V. Pew (1871) 48 Mo. 525; Leslie v. St. Louis (1871) 47 Mo. 474. In Drake v. Jones (1858) 27 Mo. 428, 433, the court refused to enjoin an execution sale of land because of public policy. In State v. Park- ville Co. (1862) 32 Mo. 496 the court affirmed Sayre v. Tompkins supra in a case where apparently land was involved. But see Fowler V. St. Joseph (1866) 37 Mo. 228, 240, enjoining the sale of land in order to prevent a cloud, affirming Lockwood v. St. Louis (1856) 24 Mo. 20. In First Nat'l Bk. v. Meredith (1869) 44 Mo. 500, 505, relief was denied a bank because the threatened sale of the shares would not injure the bank but only the shareholders. In State ex rel. v. Hager (1887) 92 Mo. 511, 525, 4 S. W. 925, the court said it was not to be presumed that county judges would levy taxes in violation of the constitution and statutes and hence the temporary injunction should have been refused. 5. See State ex rel. v. Hager, supra. § 418. Cloud on title to personalty — oral and written claims. 1. In accord with State ex rel. v. Wood cited in the text, see Leslie v. St. Louis (1871) 47 Mo. 474, 479; St. Louis etc. R. R. v. Lowder (1896) 138 Mo. 533, 537, 39 S. W. 799; Red Diamond Co. v. Steidemann (1906) 120 Mo. App. 519, 525, 97 S. W. 220 and cases cited. 4. See Cashman v. Cashman's Heirs (1894) 123 Mo. 647, 649, 27 S. W. 549. § 4l9. Form of relief — pendency of ejectment action. 1. Where a conveyance (in fraud of creditors) was made to a married woman and recorded, and the married woman was incapable of making a reconveyance, both jurisdiction in rem and a power to render in rem decrees were necessary; appropriate relief was given in Truesdail v. McCormick (1894) 126 Mo. 39, 46, 28 S. W. 885. 3. In Bunn v. Stuart (1904) 183 Mo. 375, 383, 81 S. W. 1091, the defendants had recorded undelivered deeds; the court held that MISSOURI APPENDIX 757 the trial court should have given the relief asked for, namely, cancel the deeds and divest the defendants of the recorded title and vest it in the plaintiff. 5. In Wright's Heirs v. Christy's Heirs^ (1866) 39 Mo. 125, the conveyanc3 to the plaintiff had been lost without being recorded; the court gave a perpetual injunction against the grantor's heirs. In Po- coke V. Peterson (1913) 256 Mo. 501, 519, 165 S. W. 1017, the court enjoined the purchaser at an execution sale of a homestead from taking possession thereof, in addition to decreeing the sale void. ■ 6. Missouri has for several years had statutes of both sorts; see ante § 12. And see Murphy v. Smith (1885) 86 Mo. 333, 341, where the supreme court directed the trial court to render a decree in rem, setting aside a sheriff's deed and vesting the title in the defendant. Taking jurisdiction in rem and giving in rem decrees has become so much a matter of course in Missouri that in State ex rel. v. Grimm (1912) 243 Mo. 667, 676, 148 S. W. 868, the court refused to give an in personam, decree when they apparently could and should have done so, the defendants being residents of Missouri and served with proc- ess; though the offending deed had been recorded in Virginia, where the land was, there is nothing to show why the court could not have compelle'd tlie defendants to execute to the plaintiffs a deed of re- conveyance which the plaintiffs could have had recorded in Virginia. See dissenting opinion of Lamm, J. on page 678. C. Other Quia Timet Relief. § 420. Perpetuation of testimony. 4. Caldwell v. Head (1853) 17 Mo. 561, 564. The subject is now regulated by statute in Missouri: See R. S. 1909, §§ 6419-6436. The provisions are much more liberal than were allowed under the old equity practice. Section 6419: "Depositions of witnesses to perpetuate testimony may bQ taken, whether the per- son desiring the taking of the same is a party, or expects to be a party, to a suit pending or about to be commenced or -not, in any court of this state, and the object is to perpetuate the contents of any lost deed or other instrument of writing, or the remembrance of any fact, matter or thing necessary to the recovery, security or de- fense of any estate or property real or personal, or any interest there- in, or any other personal right." The statute, however, was held not to be broad enough to apply to the perpetuation of the testimony of a witness now deceased given in a litigation between other parties; in other words, the statute did not change the well settled rules of evidence as to the exclusion of hearsay; Morris v. Parry (1904) 110 Mo. App. 675, 684, 85 S. W. 620. § 421. Taking testimony de bene esse. This subject is covered by the liberal statute referred to in § 758 MISSOURI APPENDIX 420. That the statute also put an end to the old equity bill of discov- ery, see V/ogelsong v. Wood Fiber Plaster Co. (1910) 147 Mo. App. 578, 587, 126 S. W. 804. § 422. Bills to secure rights of future enjoyment. 3. Lewey's Curators v. Lewey (1864) 34 Mo. 367, 370 (slave sold by defendant). Chaptee IX. Bills oe iNTERPLEiDEK. § 423. In general. 5. Ttere is no common law interpleader in Missouri; Miller v. Ins. Co. (1896) 68 Mo. 19, 22 (justice of the peace has no jurisdiction); Duke, Lennon & Co. v. Duke & "Woods (1902) 93 Mo. App. 244, 251. Nor do probate courts have any such jurisdiction; Jenkins v. Mor- row (1908) 131 Mo. App. 288, 298, 109 S. "W. 1051. § 424. Applicant must show a reasonable deubt. 1. Glaser v. Priest (1888) 29 Mo. App. 1, 8; Funk v. Avery (1900) 84 Mo. App. 490, 494; Supreme C!ouncil v. Palmer (1904) 107 Mo. App. 157, 164, 80 S. W. 699; Sullivan v. Knights (1897) 73 Mo. App. 43, 45; Little v. Union TVust Co. (1906) 197 Mo. 281, 299, 94 S. W. 890 (doubt may be as to law or fact) ; Robards v. Clayton (1892) 49 Mo. App. 608, 611. See also Harris B'k'g Co. v. Miller (1905) 190 Mo. 640, 659, 89 S. W. 629. ,2. Smith V. Grand Lodge (1907) 124 Mo. App. 181, 201, 101 S. W. 662. 3. Punk V. Avery, supra; Sullivan v. Knights, supra; Sovereign Camp Woodmen v. Wood (1903) 100 Mo. App. 655, 658, 75 S. W. 377; Commerce Trust Co. v. Bk. (1911) 161 Mo. App. 431, 436, 143 S. W. 531: "the bank then had but one duty to perform and that was to remit the money to plaintiff for whom it had collected it." § 426. No collusion with either claimant. 1. Gee V. Leaver (1913) 172 Mo. App. 191, 196, 157 S. W. 842; Greene v. Davis (1906) 118 Mo. App. 636, 643, 96 S. W. 318. Apparently an affidavit of no collusion is not necessary in Mis- souri; Merchants Bk. v. Richards (1879) 6 Mo. App. 454, 459 (not important after interpleader granted). 2. Swain v. Bartlett (1899) 82 Mo. App. 642, 646; Gee v. Lea- ver, supra. § 427. Applicant's interest in the res. 2. Greene v. Davis (1906) 118 Mo. App. 636, 643, 96 S. W. 318. See also post § 436, note 4; Hartsook v. Chrissman (1905) 114 Mo. App; 558, 561, 90 S. W. 116. MISSOURI APPENDIX " 759 6. Glasner v. Welsberg (1890) 43 Mo. App. 214, 219 ("the mere fact of there being a dispute as to the amount of the fund is always fatal to the bill"). 7. Love V. Ins. Co. (1910) 153 Mo. App. 144, 132 S. W. 335; Smith V. Grand Lodge (1907) 124 Mo. App. 181, 208, 101 S. W. 662 (amend- ment allowed to cover small discrepancy) ; Novinger Bk. v. St. Louis Trust Co. (1917) 196 Mo. App. 335, 344, 189 S. W. 826. § 428. Other relief inadequate. 7. See Atkinson v. Carter (1903) 101 Mo. App. 477, 484, 74 S. W. 502. § 429. Part of the claimants non-resident. 8. There seem to be no other cases except that of Freeland v. Wilson (1853) 18 Mo. 380, 382, cited in the text. § 430. Claims mutually exclusive — independent liability. 3. United Rys. Co. v. O'Connor (1910) 153 Mp, App. 128, 136, 132 S. "W. 262; Supreme Council v. Palmer (1904) 107 Mo. App. 157, 163, 80 S. "W. 699; but see Love v. Ins. Co. (1910) 153 Mo. App. 144, 154, 132 S. W. 335 (independent liability no bar to interpleader if there is privity). § 431. The same debt, duty or thing. 3. It is usually laid down in Missouri that "the same debt, fund or thing must be claimed by hostile parties under adverse titles de- rived from a common source"; Supreme Council v. Palmer (1904) 107 Mo. App. 157, 163, 80 S. W. 699; but there seems to be a disposition to interpret it liberally; McGinn v. B'k (1914) 178 Mo. App. 347, 354, 166 S. W. 345. § 433. Privity be'tween claimants — property other than land. 6. The requirement of privity is usually laid down; Hartsook v. Chrissman (1905) 114 Mo. App. 558, 562, 90 S. W. 116. But there is a disposition to be liberal; Novinger B'k. v. St. Louis Trust Co. (1917) 196 Mo. App. 335, 343, 189 S. W. 826; McGinn v. Bk. (1914) 178 Mo. App. 347, 351, 166 S. W. 345 (dictum). 11. See Lavelle v. Belliu (1906) 121 Mo. App. 442, 449, 97 S. W. 200 (interpleader in finder cases an exception). § 435. Judgment or verdict against applicant. 2. In Cheever v. Hogdson (1881) 9 Mo. App. 565, 567, after cit- ing Yarborough v. Thompson with approval the court adds that if there was any fraud in procuring the judgment equity would, of course, give relief as in other cases of judgments procured by fraud. See also Wabash Ry. Co. v. Flannigan (1902) 95 Mo. App. 477, 486, 75 S. W. 691 (both claimants judgment creditors). 760 MISSOTJEI APPENDIX 6. Smith V. Grand Lodge (1907) 124 Mo. App. 181, 204, 101 S. W. 662. § 436. Miscellaneous — bills in the nature of a bill of Interpleader. 1. Glasner v. Weisberg (1890) 43 Mo. App. 214, 220; Assignment of Gregg (1898) 74 Mo. App. 58; Duke Lennon & Co. v. Duke & Woods (1902) 93 Mo. App. 244, 250; Supreme Council v. Palmer (1904) 107 Mo. App. 157, 163, 80 S. W. 699; Davison v. Hough (1901) 165 Mo. 561, 577, 65 S. W. 731. 3. Costs may be awarded against the loser just as if one of the claimants had sued the other at law; Woodmen v. Broadwell (1905) 114 Mo. App. 471, 479, 89 S. W. 891; and the applicant is entitled to have his reasonable expenses taxed as costs; Sovereign Camp Wood- men V. Wood (1903) 100 Mo. App. 655, 659, 75 S. W. 377; Glaser v. Priest (1887) 29 Mo. App. 1, 8; Little v. Trust Co. (1909) 146 Mo. App. 580, 589, 124 S. W. 600; Roselle v. Bk. (1893) 119 Mo. 84, 93, 24 S. W. 744; Franco-Am. Ass'n v. Joy (1893) 56 Mo. App. 433 (coun- sel fees). This is forfeited if he fails to interplead and litigates at law; Christian v. Ins. Co. (1895) 62 Mo. App. 35, 36. 4. Hathaway v. Poy (1867) 40 Mo. 541, 543; Boyer v. Hamilton (1886) 21 Mo. App. 521, 525; Kortjohn v. Seiners (1888) 29 Mo. App. 271, 277; Franco-Am. Ass'n v. Joy (1893) 56 Mo. App. 433, 438; Arnold v. Bk. (1903) 100 Mo. App. 474, 478, 74 S. W. 1038; Godard v. Conrad (1907) 125 Mo. App. 165, 168, 101 S. W. 1108; McFarland v. Creath (1889) 35 Mo. App. 112, 121; Browning v. Hilig (1897) 69 Mo. App. 594; Arn v. Arn (1899) 81 Mo. App. 133, 137; Greene v. Davis (1906) 118 Mo. App. 636, 643, 96 S. W. 318; but see Borchers v. Barckers (1909) 143 Mo. App. 72, 82, 122 S. W. 357; (1911) 158 Mo. App. 267, 271, 138 S. W. 555. 7. Smith V. Grand Lodge (1907) 124 Mo. App. 181, 206, 101 S. W. 662 (applicant need only tender the fund in his bill, till court finds the case to be one for interpleading and orders applicant to deposit fund in court). By statute— Sessions Acts 1915, p. 148, sec. 94— if the res is money on deposit in a bank, the funds may be left on deposit till the final determination of the suit, the winning claimant being entitled to whatever interest may accrue thereon in the meantime. See McGinn V. Bk. (1914) 178 Mo. App. 347, 353, 166 S. W. 345; City of Brunswick V. Bk. (1918) 194 Mo. App. 360, 363, 190 S. W. 60. 9. First Baptist Church v. Robberson (1879) 71 Mo. 326, 333. 14. In Grand Lodge v. Eisner (1887) 26 Mo. App. 108, 111, the bill seems to be that of a strict bill of interpleader but the court calls it a bill in the nature of a bill of interpleader, tho it does not point out any other basis of equity jurisdiction. The court is right, in either event, however, on the main point that there was no right to trial by jury. Perhaps the court was using the phrase "bill in the nature of a bill of interpleader" meaning a strict bill of interpleader. MISSOUEI APPENDIX 761 as was evidently done in Heusner v. Ins. Co. (1891) 47 Mo. App. 336, 341. See also Jenkins v. Morrow (1908) 131 Mo. App. 288, 298, 109 S. W» 1051 (probate court has no jurisdiction to entertain either kind of bill). Statutory Inter ven'tion: TTiough a claimant is not allowed a strict bill of interpleader — see ante § 436 note 4— tliere are statutes in Mis- souri giving claimants a right to intervene in attachment — R. S. 1909, §§ 2345, 2346— and in garnishment proceedings— §§ 2421, 2422. Un- fortunately the terms "interplead" and "interpleader" have been used instead of "intervene", "intervener" and "intervention", and this has probably caused some confusion. Among the numerous cases which have arisen undef these stat- utes, see Chapman v. Yancey (1913) 173 Mo. App. 132, 145, 155 S. W. 1087 (not an equitable proceeding); State Bk. v. Keeney (1908) 134 Mo. App. 74, 78, 114 S. W. 553 (the interpleader in an attachment suit occupies the position of a plaintiff in a replevin suit, and can not recover unless he could have recovered in replevin at the time he filed his Interplea); Ely-Walker Co. v. Mansur (1900) 87 Mo. App. 105, 112: ("An interplea is another action ingrafted on the original suit, in which the interpleader becomes the plaintiff and the attach- ing plaintiff is the defendant. It is in no sense a part of the original cause of action out of which it springs, but the assertion of an in- dependent right which must be tried and determined separately on its own facts"). See also State ex rel. v. Barker (1887) 26 Mo. App. 487, 493. Chapter X. Bills of Peace. A. To Avoid or Prevent Numerous Actions Between One and Many.. § 437. Purpose and scope. 3. Swope V. Weller (1893) 119 Mo. 556, 564, 25 S. W. 204 (de- fendant in ejectment action may ask for injunction against further action). § 438. Joinder distinguished. 4. In Bobb V. Bobb (1880) 8 Mo. App. 257, 261, the plaintiff in a creditor's bill to have conveyances set aside as in fraud of credi- tors, attempted to join several defendants without alleging that it was all one transaction or that there was a common scheme to de- fraud; such attempted joinder was obviously improper; whether there were facts to which principles of bills of peace might apply does not appear. § 439. Claim of an exclusive property right. 1. See Porter v. Reed (1894) 123 Mo. 587, 602, 27 S. W. 351. 762 MISSOUEI APPENDIX § 443. Collection of void taxes. 1. The present rule in Missouri seems to be that equity will, at the suit of one tax payer, enjoin the collection of an illegal tax only if a cloud on title to land is threatened; Verdin v. St. Louis (18^) 131 Mo. 26, 78, 33 S. W. 480, 36 S. W. 52; Mechanics Bk. v. City of Kansas (1881) 73 Mo. 555, 559; hence, if only personalty is in- volved, relief will he refused, the remedy at law in such cases being considered adequate; Lockwood v. St. Louis (1856) 24 Mo. 20; see ante § 418, note 1; and even if land is involved, equitable relief will be refused if the tax is void on its face; McPike v. Pew (1871) 48 Mo. 525; see ante § 414, note 4. 2. Dennison v. City of Kansas (1888) 95 Mo. 416, 429, 8 S. W. 429; but see Michael v. St. Louis (1892) 112 Mo. 610, 615, 20 S. W. 666; Sherwood, C. J. dissenting; see also Sylvester Coal Co. v. St. Louis, 130 Mo. 323, 329, 32 S. W. 649. § 444. Contractual and statutory pecuniary obligations. 3. In Insurance Co. v. Cullen (1911) 237 Mo. 557, 569, 141 S. W. 626, ten fire insurance companies had been sued separately at law; the ten companies then united in a suit to have the actions at law enjoined and the policies cancelled for frauds alleged to have been committed by the owner after the fire. A demurrer to the bill was sustained on the ground that it would deprive the law plaintiff of a jury trial and since there was no danger that any law defendant would be sued more than once the argument as to avoiding a multi- plicity of suits was not applicable. ■ In Michael v. St. Louis (1892) 112 Mo. 610, 615, 20 S. W. 666, the majority of the court seemed like- wise under the impression that a bill of peace lay only to prevent numerous suits of one against one, not to prevent numerous suits between one and many. B. To Avoid ob Pkevent Numerous Suits of One Against One. § 445. Bill to quiet title — ejectment. 1. R.,S. 1909,, § 2535, regulating proceedings to remove cloud on title, is given the caption: "Suits to determine Interest and quiet title." See ante § 413, note 3. 2. See Swope v. Weller (1893) 119 Mo. 556, 564, 25 S. W. 204; "It is settled law in this state that one action of ejectment is no bar to another, though between the same parties, in respect to the same title and the same tract of land. Consequently, actions of eject- ment may be maintained ad infinitum, so long as equitable defenses are not interposed etc." R. S. 1909 § 2385 provides that "the action shall be prosecuted in the names of the real parties thereto." 5. Primm v. Raboteau (1874) 56 Mo. 407, 413 (a number of ac- tions, extending over thirteen years); Porter v. Reed (1894) 123 Mo. 587, 601, 27 S. W. 351 (equity plaintiff's grantors had recovered in MISSOXJEI APPENDIX 763 ejectment and plaintiff had been in possession many years; defendant had begun and dismissed two actions of ejectment) ; Swope v. Weller, supra, ("six or eight suits"). In Patterson v. McCamant (1859) 28 Mo. 210, 213, the law plaintiff had brought two suits and dismissed them; equitable relief was refused because there had been no satis- factory determination of the title at law. In Pendleton v. Hubbard (1910) 231 Mo. 314, 319, 132 S. W. 696, the law plaintiffs had not only been bringing suits continuously but had also been placing on the record deeds and contracts affecting the land; hence even if the suits were all dismissed equity could properly have given relief on the ground of removing cloud on title. § 446. Same — repeated actions of trespass. 1. In Wabash Ry. v. Sweet (1903) 103 Mo. App. 276, 278, 77 S. W. 123, the equity defendant had brought action to recover damages for the alleged killing of his minor son and then took a nonsuit; later he instituted another suit on the same cause of action and the court issued an injunction until the costs in the first suit should be paid. In Aimee Realty Co. v. Haller (1907) 128 Mo. App. 66, 73, 106 S. W. 588, the equity defendant had made a contract with the equity plaintiff, the owner of twenty-five houses, to paint and glaze all the houses; he filed a separate lien against each house; the owner had a meritorious counterclaim which he could not interpose in the actions brought against him before a justice of the peace and equity took jurisdiction on this ground and also to prevent a multiplicity of suits, the actions not being such as could be consolidated at law. § 447. Numerous criminal prosecutions. 1. Sylvester Coal Co. v. St. Louis (1895) 130 Mo. 323, 329, 32 S. "W. 649: "The ordinances are continuous, and plaintiffs' business is continuous, and, under the ordinances, for each wagon load of coal sold and delivered in violation of the restrictive provisions thereof, the plaintiffs each become subject to an action in the municipal courts of the city for such violation. The fact that in each of such suits the plaintiffs might plead successfully the invalidity of the ordinances as a defense thereto does not give them an adequate remedy. They are entitled to be protected from the expense, vexation and annoyance of such a multiplicity of suits in consequence of their continuance of a legitimate business except upon compliance with the condition of ordinances, which it is alleged are and may be utterly void." It is to be observed that there were several plaintiffs, but no attention is paid to that fact in the opinion; apparently any one coal dealer could have obtained the relief given; and since there was an im- portant common question, it was proper for the several dealers to join in accordance with principles discussed ante §§ 440-444. This case is followed in Jewell Tea Co. v. Carthage (1913) 257 Mo. 383, 391, 165 S. W. 743. 764 MISSOURI APPENDIX But see State ex rel. v. Wood (1899) 155 Mo. 425, 452, 56 S. W. 474, refusing relief in a very similar case. Burgess, J. dissenting, in reliance upon Sylvester Coal Co. v. St. Louis which he cites on page 479. Chapter XI. Miscellaneous Topics. § 448. Equitable conversion. 1. Barnard v. Keathley (1910) 230 Mo. 209, 227, 130 S. W. 306; Griffith V. Witten (1913) 252 Mo. 627, 644, 161 S. W. 708; Llewellyn V. Llewellyn (1906) 122 Mo. App. 467, 474, 99 S. W. 809; Williams v. Williams (1910) 145 Mo. App. 382, 387, 129 S. W. 454; Gilhreath v. Cosgrove (1916) 193 Mo. App. 419, 423, 185 S. W. 1181. 4. Griffith v. Witten, supra; Gilhreath v. Cosgrove, supra (equit- able reconversion). 5. See'Compton v. McMahan (1855) 19 Mo. App. 494, 502; Donald- son V. Allen (1904) 182 Mo. 626, 647, 81 S. W. 1151. 7. In Morris v. Stephenson (1907) 128 Mo. App. 338, 344, 107 S. W. 449, the actual sale did not take place until two years after the testator's death, but both the land and the rents and profits for the two years were treated as personalty. In Compton v. McMahan, supra, it was held that where the time was discretionary with the executor, the land descended to the heir subject to the execution of the power of sale and that the heir was entitled to the rents and profits until the sale actually took place. 17. In Brown v. Turner (1892) 113 Mo. 27, 33, 20 S. W. 660, T built a house on his own land with his wife's money under an agreement with her that it should remain as her property; it was held that such a house was personalty and upon her death it passed to her personal representative and not to her heirs. See also Lowen- berg V. Bernd (1871) 47 Mo. 297 and cases cited. § 449. Account. 2. Randolph v. Ellis (1911) 240 Mo. 216, 114 S. W. 483 (inci- dental to suit for specific performance); Leeper v. Taylor (1892) 111 Mo. 312, 321, 19 S. W. 955 (suit against trustee); Rozier v. Griffith (1860) 31 Mo. 171, 174 (suit for partition); Berlien v. Bieler (1888) 96 Mo. 491, 496, 9 S. W. 916 (bill to redeem); Lysan v. Miller (18?3) 56 Mo. App. 79 (trust); Johnson v. Blell (1894) 61 Mo. App. 37 (creditor's bill). See Vogelsong v. Wood Co. (1910) 147 Mo. App. 578, 587, 126 S. W. 804: "nor will a bill or action for an account- ing, unless founded upon some known and established equitable ground for action.'' 9. Thlas V. Siener (1890) 103 Mo. 314, 323, 15 S. W. 772. 10. Nor does an action for breach of a contract to share in profits become a suit in equity merely because it may involve an examina- tion into the defendant's accounts; O'Rourke v. Kelly The Printer Corporation (1911) 156 Mo. App. 91, 96, 135 S. W. 1011. MISSOURI APPBOSTDIX 765 11. If the sole duty of a trustee is to pay over money, an action at law will ordinarily lie against him — ante § 274; but if disputes between factions of a religious or fraternal organization are involved, an equity court is better qualified to deal with such controversies; Kuhl V. Meyer (1890) 42 Mo. App. 474, 483. § 450. Subrogation. 1. On the general right of a surety to subrogation see Bauer v. Gray (1885) 18 Mo. App. 164, 170; Cowgill v. Llnville (1886) 20 Mo. App. 138, 148. One who is compelled to pay off a prior Incumbrance in order to preserve his own security is entitled to be subrogated to rights of the creditor to the prior security; Reyburn v. Mitchell (1891) 106 Mo. 365, 380, 16 S. W. 592. If one buys land subject to a mortgage and contracts to pay off the mortgage debt, the mortgagor is a surety and entitled to subroga- tion; Orrick v. Durham (1883) 79 Mo. 174, 179; Wayman v. Jones (1894) 58 Mo. App. 313, 318; even if the purchaser does, not contract to pay off the mortgage debt, the mortgagor is a surety if the purchaser has merely bought the equity of redemption; if the mortgagor pays, he is entitled to be subrogated to the, mortgage; Greenwell v. Heritage (1879) 71 Mo. 459. In Thomas v. Bridges (1881) 73 Mo. 530, 535, a purchaser at an administrator's sale fraudulently represented that he had become the owner of an allowance due from the estate to one S and induced the administrator to credit the amount upon the purchase price; the administrator later had to pay S out of his own pocket and was held entitled to stand in the position of the estate to enforce an equitable vendor's lien against th-e purchaser, being in substance a surety to the estate. See also Roberts v. Bartlett (1887) 26 Mo. App. 611, 616. • In Suddati v. Gallagher (1894) 126 Mo. 393, 403, 28 S. W. 880, the president of a corporation who paid employees with his own money was held not entitled to be subrogated to the rights of the employees to a statutory lien, because he was in intermeddler. So, one who merely lends money to pay off a vendor's lien is not entitled to be subrogated to the lien, not being compelled to lend; Wooldridge v. Stone (1879) 69 Mo. 669, 673; Capen v. Garrison (1905) 193 Mo. 335, 350, 92 S. W. 368 (curator of minor without authority purported to mortgage his ward's estate for money to pay and did pay off a pre-existing incumbrance thereon; subroga- tion refused to the lender). See also Kleimann v. Geiselmann (1891) 45 Mo. App. 497, 505; Clifton v. Anderson (1891) 47 Mo. App. 35; Lemmon v. Lincoln (1896) 68 Mo. App. 76, 80. A fortiori a mere stranger is not entitled; Johnson v. Goldsby (1888) 32 Mo. App. 560, 564; Falls v. Jones (1904) 107 Mo. App. 357, 361, 81 S. W. 455. One who pays defendant's taxes by mistake for his own Is not entitled to be subrogated to the lien of the city; Jacobs v. Webster (1918) 199 Mo. App. 604, 610, 205 S. W. 530; the only basis for this 766 MISSOXJEI APPENDIX seems to be the public interest in the prompt and unfettered col- lection of taxes. But see Union Ry. v. Skinner (1880) 9 Mo. App. 189, 199 (plaintiff paid taxes thinking he owned the land; allowed equi- table lien upon proceeds of condemnation proceedings). In Crane v. Noel (1903) 103 Mo. App. 122, 127, 78 S. W. 826, the plaintiff, though a surety, was denied subrogation because he had become such without the consent of the principal debtor; this seems contrary to the better view; Matthews v. Aikin (1848) 1 Comstock 595 (N. Y.). But one who lends money to a distressed wife to procure neces- saries is not an intermeddler and is entitled to stand in the stead of the persons supplying the same: Reed v. Crissey (1895) 63 Mo. App. 184, 191; so, one who pays the debt of an insane person to prevent a sale of the mortgaged property and save it for the insane person is not an intermeddler and is entitled to subrogation; Petty v. Tucker (1912) 166 Mo. App. 98, 101, 148 S. W. 142. In Sears v. Patterson (1893) 54 Mo. App. 278, 281, the mortgage given to the lender was ineffectual by reason of a mutual mistake; he was entitled to have the mortgage corrected and to priority against later incumbrancers with notice, on ordinary principles of reformation, but the court unfortunately refers it to the principle of subrogation. As to the right of an insurance company to subrogation, see Hartford Ins. Co. v. Wabash R'y Co. (1898) 74 Mo. App. 106, 113 (release of tort feasor by owner no bar) ; Swift & Co. v. R. R. (1910) 149 Mo. App. 526, 532, 131 S. W. 124. Like other equitable rights, the right of subrogation may be cut off by a transfer to a tiona fide purchaser for value; Foster v. Wil- liams (1910) 144 Mo. App. 219, 225, 128 S. W. 797. 2. Miller v. Woodward (1843) 8 Mo. 169, 175 (right to be sub- rogated purely equitable); Roberts v. Bartlett (1887) 26 Mo. App. 611, 616 (ditto, no jurisdiction in probate court). 3. Ames v. Huse (1893) 55 Mo. App. 422, 424; but he need not pay off a subsequent incumbrance; Schell City Bk. v. Reed (1893) 54 Mo. App. 94, 97; and if he is surety for only a part he need pay only that part; Allison v. Sutherlin (1872) 50 Mo. 274, 278. 4. Smith V. Schneider (1856) 23 Mo. 447 (vendor's lien on land); Furnald v. Bk. (1869) 44 Mo. 336, 340. That a court of equity will keep a claim alive for the benefit of the surety, see Bauer v. Gray (1885) 18 Mo. App. 164, 170; Bank v. Kemble (1894) 61 Mo. App. 215, 217; Ferd Helm Brewing Co. v. Jordan (1904) 110 Mo. App. 286, 291, 85 S. W. 927; Burrus v. Cook (1905) 117 Mo. App. 385, 398, 93 S. W. 888. Strictly speaking, the right to be subrogated is the right to stand in the shoes of the creditor whom the surety has paid; if the prin- cipal debtor is common law execution proof — see post § 455 — the surety is entitled to an equitable assignment of his intangible assets, especially such assets as are connected with the debt itself; unfortunately this MISSOURI APPENDIX 767 right is often called subrogation instead of equitable execution; Robey V. Watson (1886) 22 Mo. App. 428, 434. In Saussenthaler v. Surety Co. (1917) 19T Mo. App. 112, 117, 193 S. W. 286, the court said that a surety who had paid needed no formal assignment from the creditor. 5. McCourtney v. Sloan (1851) 15 Mo. 95; see also Davenport V. Timmonds (1911) 157 Mo. App. 360, 368, 138 S. W. 349 (part owner of incumbered land pays off incumbrance); Simpson v. Smith (1917) 196 Mo. App. 523, 527, 196 S. W. 391; Mahoney v. Nevlns (1905) 190 Mo. 360, 369, 88 S. W. 731 (widow and heirs, co-principals). 7. Harper v. Kemblg (1896) 65 Mo. App. 514, 518 (right to en- force judgment at law). 9. Ferd Helm Brewing Co. v. Jordan (1904) 110 Mo. App. 286, 290, 85 S.' W. 927; Burrus v. Cook (1905) 117 Mo. App. 385, 398, 93 S. W. 888. § 451. Indemnity or reimbursement. 5. Newman v. Newman (1888) 29 Mo. App. 649,_ 657 (surety entitled to collect six per cent interest from the time that he paid) ; Moseley v. FuUerton (1894) 59 Mo. App. 143, 150. 7. Harper v. Eubank (1888) 32 Mo. App. 258, 263 (barred by five year statute of limitation which runs from date gf payment). § 452. Contribution. 2. Magruder v. Admire (1877) 4 Mo. App. 133, 138; Simpson v. Smith (1917) 196 Mo. App. 523, 527, 196 S. W. 391. That a volunteer can not get contribution, see Skrainka v. Rohan (1885) 18 Mo. App. 340, 343; "the co-surety may avoid contribution by showing that no judgment could have been obtained against the paying surety, or against himself in a proceeding for that purpose, if properly resisted within the law." 3. Hanna v. Hyatt (1896) 67 Mo. App. 308, 313. 4. Wilkerson v. Sampson (1893) 56 Mo. App. 276, 280; Hanna v. Hyatt, supra. It is not necessary to allege or prove the insolvency of the principal; Moseley^ v. FuUerton (1894) 59 Mo. App. 143, 151. 5. Dysart v. Crow (1902) 170 Mo. 275, 283, 70 S. W. 689. 9. But not where the tort feasors are not morally innocent; Arnold v. The Sayings Co. (1898) 76 Mo. App. 159 (libel). That co-principals are entitled to contribution see Van Patten v: Richardson (1878) 68 Mo. 379, 382; Robinson v. Seay (1913) 175 Mo. App. 713, 727, 158 S. W. 409; also accommodation indorsers; Brous- sard V. Mason (1914) 187 Mo. App. 281, 173 S. W. 698; also tenants in common a part of whose land is lost by adverse possession; Pipkin V. Allen (1859) 19 Mo. 229, 235; also parties who buy parcels of land covered by one mortgage; Hall v. Morgan (1883) 79 Mo. 47, 49. That an infant is not bound by the contribution rule though benefitted, see Dillon v. Bowles (1883) 77 Mo. 603, 609. 768 MISSOURI APPENDIX Where there was a failure to name children in a will it was held that the children omitted could bring a bill for contribution against the others; Hill v. Martin (1859) 28 Mo. 78, 81; but such a right to contribution seems to be in no way related to suretyship. § 453. Exoneration. 3. In Callaway County Bk. v. Terry (1882) 13 Mo. App. 99, 102, the court seems to think that subrogation is an adequate remedy. There seem to be no cases in Missouri allowing exoneration. § 454. Marshalling. 1. The rule is stated in Perkins v. Heiser (1889) 34 Mo. App. 465, 470; Burgess v. Hitt (1886) 21 Mo. App. 313, 314 (plaintiff not entitled because his claim as creditor not established) ; Paddock- Hawley Iron Co. v. McDonald (1895) 61 Mo. App. 559, 564 (stated as a right against the creditor); Dunlap v. Dunsetti (1899) 81 Mo. App. 17, 24 (citing Aldrich v. Cooper); State ex rel. v. Cryts (1901) 87 Mo. App. 440, 448. In Tittertngton v. Hooker (1875) 58 Mo. 593, 598 the court said that the administration statute had superseded the doctrine of mar- shalling of assets in equity for the payment of debts of a decedent; apparently they were not referring to the doctrine discussed in the text. § 455. Creditors' bills. 1. Apparently in Missouri the right of a creditor to the surety's securities does not arise till he asks for them; Logan v. Mitchell (1878) 67 Mo. 524, 528; and is barred by a release made by the sureties in good faith; Stone v. Furber (1886) 22 Mo. App. 498, 504. 2. See Williams v. Jones (1886) 23 Mo. App. 132, 143 (direction of insolvent corporation trustees for creditors) ; Hall v. Joel (1902) 94 Mo. App. 361, 366, 68 S. W. 102. 3. Though R. S. 1909 § 2881 provides that conveyances in fraud of creditors shall be void and apparently allows the creditors to pro- ceed at law as if no such conveyance had been made, yet it has been repeatedly held in Missouri that if a creditor brings a bill in equity to have a conveyance set aside as in fraud of creditors he must ordinarily first exhaust his common law remedy, just as if it were a bill for equitable execution; Coleman v. Hagey (1913) 252 Mo. 102, 125, 158 S- W. 829; Merry v. Premon (1869) 44 Mo. 518, 521; unless he is an attaching creditor within R. S. 1909 § 2344; Mansur Co. v. Jones (1897) 143 Mo. 253, 278, 45 S. W. 41. Though such a require- ment is quite proper in bills for equitable execution because the juris- diction in such cases is based upon the deficiencies of common law execution, it is difficult to see any sound reason for such a require- ment in a bill to set aside a conveyance for fraud; Wadsworth v. Schisselbauer (1884) 32 Minn. 84, 86 (suflJcient to get a judgment and acquire a lien) ; Mieters v. Brockman (1882) 11 Mo. App. 600. MISSOURI APPENDIX 769 4. Luthy V. Woods (1876) 1 Mo. App. 107. 5. Luthy V. Woods, supra. 6. Luthy V. Woods; supra (execution proof) ; Pendleton v. Per- kins (1872) 49 Mo. 565, 568 (debtor left jurisdiction leaving no tan- gible property); Humphreys v. Milling Co. (1889) 98 Mo. 542, 548, 10 S. W. 140; Tittman v. Thornton (1891) 107 Mo. 500, 510, 17 S. W. 97a; Atlas B'k v. Moran Packing Co. (1896) 138 Mo. 59, 92. 39 S. W. 71; Kent v. Curtis (1877) 4 Mo. App. 121, 131. See also Furlong v. Thomssen (1885) 19 Mo. App. 364, 367 (city not liable to garnishment); Beckham v. Tootle (1885) 19 Mo. App. 596, 603 (equity of redemption not subject to garnishment -which applies only to legal choses in action) ; Bachman v. Lewis (1887) 27 Mo. App. 81, 88 (ditto); Wade v. Ringo (1895) 62 Mo. App. 414, 417 (property mortgaged for more than its value not assets); Webb v. Lumber Co. (1896) 68 Mo. App. 546, 554 (defendant non-resident); Burnham v. Smith (1899) 82 Mo. App. 35, 42 (equity of redemption); Ryan v. Bradbury (1901) 89 Mo. App. 665, 670 (trust interest in land). 7. See Pickel v. Pickel (1912) 243 Mo. 641, 663, 147 S. W. 1059 (remedy by garnishment inadequate); Eliot v. Merchants' Ex- change (1883) 14 Mo. App. 234, 242 (membership in Merchants' Exchange) ; Pierce v. Pierce (1909) 139 Mo. App. 415, 418, 122 S. W. 1147 (equitable life interest); Ball v. Cotton Press Co. (1909) 141 Mo. App. 26, 45, 121 S. W. 798 (pledgor's interest in chattels) ; Heaton V. Dickson (1910) 153 Mo. App. 312, 322, 133 S. W. 159 (trust in- terest); Healey v. Tillberry (1915) 192 Mo. App. 510, 513, 183 S. W. 666 (debtor's improvement of his wife's lands) ; Simpson v. Smith (1917) 196 Mo. App. 523, 527, 196 S. W. 391 (lien of tenant in common who has paid incumbrance on land); De Field v. Dredge Co. (1914) 180 Mo. App. 563, 569, 167 S. W. 593 (foreign corporation). Of course a creditor's bill can not reach property which is ex- empt by statute; Ryan v. Lee (1884) 14 Mo. App. 599. In Woolfolkv. Kemper (1881) 31 Mo. App. 421, 423, the court suggests that a vendor of chattels might maintain a creditor's bill to subject the chattels to the payment of the purchase price. § 456. Equitable mortgages. 4. Linton v. Boly (1849) 12 Mo. 567; McClurg v. Phillips (1872) 49 Mo. 315, 317 (omission of seal); Gill v. Clark (1873) 54 Mo. 415, 417 (ditto) ; Martin v. Nixon (1887) 92 Mo. 26, 35, 4 S. W. 503 (grantor's signature omitted by mistake) ; Brown v. Dressier (1895) 125 Mo. 589, 595, 29 S. W. 13. 5. Davis V. Clay (1829) 2 Mo. 160; Wright v. Borcher (1878) 5 Mo. App. 322, 331. 7. In re Ferguson's Estate (1894) 124 Mo. 574, 583, 27 ,S. W. 513; McLure v. Nat'l B'k (1913) 252 Mo. 510, 518, 160 S. W. 1005 (court calls the deed an equitable mortgage); Cobb v. Day (1891) 770 MISSOUBI APPENDIX 106 Mo. 278, 17 S. W. 323; Schradski v. Albright (1887) 93 Mo. 42, 48, 5 S. W. 807; Bobb v. Wolff (1898) 148 Mo. 335, 344, 49 S. W. 996; State to use v. Bell (1876) 2 Mo. App. 102, 104; Citizens' Bk, v. Marr (1907) 129 Mo. App. 26, 33, 107 S. W. 1009. Cases which enforce oral promises to allow redemption from execution sales are governed by the same principle; among the num- erous cases giving relief to the execution debtor or mortgagor, see Green v. Ditsch (1897) 143 Mo. 1, 44 S. W. 799; Gillespie v. Stone (1879) 70 Mo. 505, 508; Richardson v. Champion (1897) 143 Mo. 538, 545, 45 S. W. 280. That strict proof must be made in all these cases, see Mulrooney v. Irish Ass'n (1913) 249 Mo. 629, 646, 155 S," W. 804 (erroneously called a resulting trust). In Mead v. Knox (1848) 12 Mo. 284, the plaintiff failed to establish any agreement to reconvey. In Hall V. Small (1903) 178 Mo. 629, 633, 77 S. W. 733, where It was contended that a grantor of land for support reserved a life estate as security, the possible analogy of an absolute conveyance as security for a lo^n was not followed and the reservation was held absolute; and in Hell v. Hell (1904) 184 Mo. 605, 676, 84 S. W. 45, Where the plalntifi contended that he had the property conveyed to his father as security for a house which he expected to erect on the land, there was a similar decision against the plaintiff. § 457. Penalties and forfeitures. 3. See Francis v. A. 0. U. W. (1910) 150 Mo. App. 347, 356, 130 S. W. 500 (insurance policies); Hartman v. R. R. (1915) 192 Mo. App. 271, 280, 182 S. W. 148; but see Day v. Woodmen Circle (1913) 174 Mo. App. 260, 270, 156 S. W. 721; Brittenham v. W. 0. W. (1914) ' 180 Mo. App. 523, 535, 167 S. W. 587. 4. Messersmith v. Messersmith (1856) 22 Mo. 369, 372. 5. As to setting aside judgments obtained by fraud the rule in Missouri is stated In Hamilton v. McLean (1897) 139 Mo. 678, 41 S. W. 224; "It must be made to appear that fraud was practiced in the very act of obtaining the judgment; the fraud rhust be in the procurement of the judgment, and not merely In the cause of action on which the judgment is founded, and which could have been interposed as a de- fense, unless its interposition as a defense was prevented by the fraud of the adverse party. ... It thus appears that plaintiff was afforded an opportunity of showing that the deed was a forgery upon the trial of the partition suit, and having failed to do so without In- terposition on the part of the defendants herein, he Is not entitled to have the judgment in that case set aside merely to give him a second opportunity to show that the deed was a forgery." See ante § 389, note 5. See also Bates v. Hamilton (1898) 144 Mo. 1, 11, 45 S. W. 641; Vandeventer Trust Co. v. Western Stoneware Co. (1917) 197 Mo. App. 132, 145, 193 S. W. 995; Oxley Stave Co. v. Butler Co. (1894) 121 Mo. 614, 630, 26 S. W. 367; Smith v. Taylor (1898) 78 Mo App. MISSOUBI APPENDIX 771 630, 633; Tapana v. Shaffray (1902) 97 Mo. App. 337, 345, 71 S. W. 119; Fitzpatrick v. Stevens (1905) 114 Mo. App. 497, 501, 89 S. W. 887; State ex rel. v. Engelmann (1885) 86 Mo. 551, 563; Broussard v. Mason (1914) 187 Mo. App. 281, 295, 173 S. W. 698. In Duncan v. Gibson (1870) 45 Mo. 352 relief was sought on the ground that the equity plaintiff was kept away from attendance at court hy threats of bodily harm; this was held not enough, because he might have appeared by counsel. In Rltter v. Democratic Press Co. (1878) 68 Mo. 458, there was a dictum that relief would be given against a judgment obtained by a fraudulent combination between the law plaintiff and co-defendants. In Marsh's Adm'r v. Bast (1867) 41 Mo. 493, 496, the court refused to set aside a judgment on the ground that jurisdiction over the judgment debtor has been obtained by fraudulently inducing him to come within the state. But equity may enjoin a defendant from taking advantage of a judgment ob- tained by fraud in another state; Payne v. O'Shea (1884) 84 Mo. 129, 133. As to judgments obtained through mistake, the jurisdiction of equity to set aside such judgments has been repeatedly affirmed; Golden v. Whiteside (1904) 109 Mo. App. 519, 523, 84 S. "W. 1125 (relief denied because plaintiff could not equitably complain) ; Goldie Const. Co. V. Rich Const. Co. (1905) 112 Mo. App. 147, 155, 86 S. "W. 587 (judgment before justice of the peace entered without service or appearance of defendant) ; Curtiss v. Bell (1908) 131 Mo. App. 245, 251, 111 S. W. 131 (relief denied because no meritorious defense shown) ; Mesker v. Cornwell (1909) 145 Mo. App. 641, 650, 123 S. W. 488 (relief denied because mistake made negligently). As to judgments obtained by accident, see Jackson v. Chestnut (1910) 151 Mo. App. 275, 279, 13J. S. W. 747; "that an accident, pre- venting defense, unmixed with any fault or negligence of a party litigant, will sustain a bill in equity for relief against a judgment by default and which has become final by an adjournment of the term, is well established." In that case there was a combination of illiteracy of the judgment defendant, the sickness and death of his son and the Incapacitation of his attorney through paresis. See Matthls v. Cameron (1870) 62 Mo, 504, 507 (mere negligence of attorney in defending the action not enough); Dobbs v. St. Joseph etc. Co. (1880) 72 Mo. 189 (that equity plaintiff's attorney fraudulently prevented him from perfecting his appeal not enough unless he was damaged thereby^ : Carolus v. Koch (1880) 72 Mo. 645 (that equity plaintiff was ignorant of facts not enough); Ketchum v. Harlowe (1884) 84 Mo. 225 (judg- ment sought to be set aside for the fraud and negligence of the law defendant's attorney, but the proof failed). 6. Lasar v. Baldridge (1888) 32 Mo. App. 362, 366; Hook v. Bowden (1910) 144 Mo. App. 331, 344, 120 S. W. 261; Robberson v. Clark (1913) 173 Mo. App. 301, 309, 158 S. W. 854; Sease v. Foundry Co. (1897) 141 Mo. 488, 497, 42 S. W. 1084. 772 MISSOURI APPENDIX See Wheless v. St. Louis (1901) 90 Mo. App. 106, 110: "courts of equity are slow to enforce forfeitures, etc." 7. In Metropolitan Land Co. v. Manning (1902) 98 Mo. App. 248, 266, 71 S. W. 696, the landlord had already entered and enforced a forfeiture of the lease and therefore was entitled to an injunction to protect his possession against trespass. That equity will not ordinarily prevent the forfeiture of a lease for assignment, see Powers Shoe Co. V. Odd Fellows Hall Co. (1908) 133 Mo. App. 229, 241, 113 S. W. 253. That courts of equity should not interfere to prevent the enforce- ment of a penalty for usury see Lyons v. Smith (1904) 111 Mo. App. 272, 277, 86 S. W. 918. 9. In Ort V. Zimmerman (1876) 63 Mo. 72, 78, equity refused to award forfeiture to the vendor because of valuable improvements by the purchaser. § 458. Infants, Idiots and lunatics. 4, Heady v. Grouse (1906) 203 Mo. 100, 110, 100 S. W. 1052, and cases cited (no jurisdiction to sell infant's land apart from statute). See R. S. 1909 §§ 402-465 for the statutes regulating the guard- ianship of the minor's person and property. 6. See Bowles v. Troll (1915) 190 Mo. App. 108, 117, 175 S. W. 324 (equity has jurisdiction of a suit by foreign guardian of nop- resident insane person to compel a final settlement of ancillary res- ident guardian). 7. See R. S. 1909 §§ 474-533, Guardians and Curators of Insane Persons. Tliat the statute did not divest the jurisdiction of equity, see Bowles v. Troll, supra. Similarly, the enactment of the Married Womenis acts, R. S. 1909 §§ 8295-8310, did not operate to divest courts of equity of their power to protect the separate estate of the wife; Mathias v. Arnold (1915) 191 Mo. App. 352, 367, 178 S. W. 264. For a, brief statement as to equity's creation of a separate estate for mar-, ried women, see ante § 314; Schafroth v. Ambs (1870) 46 Mo. 114; Davis V. Smith (1881) 75 Mo. 219; Holthaus v. Hornbostle (1875) 60 Mo. 439; Whitesides v. Cannon (1856) 23 Mo. 457. For a review of legislation affecting married women's separate property see Grimes V. Reynolds (1902) 94 Mo. App. 576, 68 S. W. 588. In Hiltenbrandt V. Robitzsch (1895) 62 Mo. App. 437, 439, it was held that a suit in equity to charge the separate estate of a married woman could no longer be maintained except by her husband, because she could con- tract with everyone except him. § 459. Ademption and satisfaction. 1. See contra, Waddell v. Waddell (1900) 87 Mo. App. 216, 218 (burden on the party denying child a full share). 4. Salvation Army v. Penfield (1909) 139' Mo. App. 518, 520, 123 S. W. 539 (devise by purchaser of land to the vendor operated to MISSOXTEI APPENDIX 773 cancel the claim to unpaid balance of money if the devisee elected to take the land under the will). § 460. Lis pendens. 1. Real Estate Sav. Inst'n v. CoUonious (1876) 63 Mo. 290, 294; Turner v. Babb (1875) 60 Mo. 342, 377; Samuels v. Shelton (1871) 48 Mo. 444, 451 (does not arise until writ served after petition filed) ; Dazey v. Lawrence (1910) 153 Mo. App. 435, 441, 134 S. W. 85 (not al- lowed to enforce against a bona fide purchaser if the plaintiff had an adequate remedy at law); Lewis v. Carson (1884) 16 Mo. App. 342, 359 (administrator's sale without order of court); Buford v. Keokuk Co. (1876) 3 Mo. App. 159. If a term passes without an appeal being taken, a iona fide pur- chaser who buys without knowledge that a writ of error has been sued out is protected; Pierce v. Stinde (1883) 11 Mo. App. 364, 369. 3. Burnham v. Smith (1899) 82 Mo. App. 35, 47; Dodd v. Lee (1894) 57 Mo. App. 167, 171. 5. Carr v. Lewis Coal Co. (1884) 15 Mo. App. 551, 557; Us pendens applies to all personalty except negotiable paper and articles of ordi- nary commerce; Dodd v. Lee, supra (purchaser of note secured by mortgage on land is bound). TABLE OF CASES [References are to sections.] Able V. Ins. Co Abnutt V. Leper Academy v. Donnelly Ackerson v. Fly Adams v. Burns Adkins v. T'omlinson Adler v. R. R Aimee Realty Co. v. Haller .•. Alple-Hemmelman Co. v. Spel- brink 124, 126, Albert v. Sanford Albright v. Flsber Alden v. Gross 23^0, Alexander v. Alexander . . . 41, . . . 89, 135, V. Warrance 284, Alkire Grocer Co. v. Bal-. . lenger Allen V. Berry 29, V. Drake V. Logan V. Ransom Allison V. Richmond V. Sutherlin American Brewing Co. v. St. Louis Co Ins. Co. V. Nieberger . . . Ames V. Gilmore V. Huse V. Scudder Anable v. Land Co 24, Anderson v. Biddle V. Drug Co V. Gaines Anderson v. Harwood V. McPike V. Pemberton V. Roberts 322, V. Scott 126, / V. Shockley Anthony v. Rockefeller Arn V. Arn Arnold v. Bank V. Henry V. Klepper V. The Sayings Co 352 . 8 270. 145 283 339 262 446 178 327 243 231 137 311 295 305 400 283 300 204 450 231 359 397 450 327 380 315 368 403 83 305 138 330 138 1?8 331 436 436 243 211 452 (775) Arnet v. Alexander 64, 143 Asbury v. Hicklin 137 V. Strain 273 Ash V. Holder 83 Ashley v. Winston 261 i^spinwall y. Jones 299 Atkinson v. Carter 428 V. Wyckoffl 243 Atkison v. Dixon 116 Atlas Bk. V. Moran Co 455 Atterbury v. McDuffie 325 V. Miller 211 V. West 221 Aull V. St. Louis Trust <:o. .. 202 Aultman v. Loring 295 Austin V. Mining Co 191 Ayers v. Bank 255 Aylor V. Mclnturf 175 Babb V. Curators 204 Bachman v. Lewis 455 Baier v. Berberich 250, 394 Baile v. St. Joseph etc. Co. . . 52 Bailey v. Culver 220 V. Slegel Gas Fixture Co. 191 Smock 391 Wade 201, 202 V. Grannls 382 Baker v. McDaniel . .204, 211, 221 V. Nail 274 V. R. R ;..299, 300 V. St. Louis 93 Baldwin v. Dalton 16, 300 V. Davidson 380 Bales V. Gilbert 64, 143 V. Roberts 153, 403, 404 Ball V. Cotton Press Co 455 V. Woolfolk 272, 413 Bank v. Kemble i. 450 V. Poole 12 V. York 381 Barbero v. Bk 9 Barkley v. Donnelly 270 Cem. Ass'n v. McCune . . 272 Barksdale v. Brooks 86 Barlow v. Elliott 331 V. V. Baird 776 TABLE OF MISSOUEI CASES. [References are to sections.] Barnard v. Duncan . .129, 157, 159 V. Keathley 300, 448 Barnes v. Stone 417 Barnum v. Bobb 390 B^rr V. Cabbage 297 Barrington v. Ryan 406 Barron v. Cooperage Co 194 Barthel v. Engle 122 Bartlett v. Tinsley 290 Barton v. Rector 407 Barton Bros. v. Martin 276 Bates V. Hamilton 322, 457 Bauer v. Gray 450 Baum Co. v. Levin 30, 231 Baumgardner v. Guessfield . . 283 Baumhoff v. St. Louis etc. R. R 57 Beach v. Bryan 62 Bean v. Valle 128, 131, 132, 159 Beardsley v. Morgner 262 Beauchamp v. Taylor 203 Beavers v. B'k 303 Beck V. Haas 276 Beckham v. Tootle 455 Beckman v. Mepham 130 Becraft v. Grist 386 Bedford v. Sykss 413 Beedle v. Mead 397 Beland v. Brewing Ass'n . . . 393 Bell V. Campbell 399 v. Mulholland 401 Bender v. Zimmerman . . . 130, 263 Benecke v. Welch 417 Benn v. Pritchett 339 Bent v. Priest 299 Benton Co. v. Morgan 6 Berg V. Moreau ..89, 128, 137, 177 Bergesch v. Keevil 276 Berlien v. Bieler 449 Berry v. Stlgal 315 V. McDonough 64 Biddle v. Ramsey 64, 143 Bielman v. R. R 203, 204 Bircher v. Walther 297 Bird V. Ward 389 Birch Tree State Bk. v. Brown 51 Bishop V. Seal 384 Black V. Early 29 V. Rogers 64 Blackford v. Heman Co. ..31, 203 Blackwell v. Bailey 273. 322 Blair v. Blair 283 Blair v. R. R 59, 367 Bland v. Robinson 262 Blass V. Blass 389 Blivis V. Franklin Inv. Co. . . 83 Block V. Morrison 116 Blumenthal v. Bluementhal . . 247 Board of Trustees v. May ... 270 Bobb V. Bobb 289, 344, 352, 359, 438 V. Taylor 303 V. Wolff 456 V. Woodward 6, 283 Boeckler v. R. R. 195, 196, 197, 201 Lumber Co. v. Realty Co. 371 Boefer v. Sheridan 183 Boehlert v. McBride 300 Boehm v. American Patriots 394 Boekler v. R. R 195 Bolln V. Inv. Co 104 Bonsor v. Madison Co 417 Boon V. Miller 334 Borchers v. Barckers . . . .400, 436 Borel V. Mead 415 Bothe V. R. R 225 Bow§n V. Bowen 320 Bower v. Daniel 89 V. McKeen 2S3 Bowles V. Troll 458 V. Wathan 138, 400 Boyd V. Buchanan 26 V. Jones 380 Boyer v. Hamilton 436 Boynton v. Boynton 380 V. Miller 310 Bradbury Co. v. Laclede Co. . 213 Bradford v. Wright 391 Bradley v. Bradley 283 Bradshaw v. Yates 29 Brainard v. Reavis 301 Bramell v. Cole 263 Brandon v. Carter 16, 273 Brant v. Robertson 116 Bray v. Thacher 380,398 Bredell v. Westminster Col- lege 272 Breimeyer v. Star Co 230 Brevator v. Creech 126 Brewer v. Cary 241 Brewington v. Mesker 381 Brittenham v. W. O. W. . . . 457 Brier v. Bank 218 Broaddus v. Ward 145 Brockhaus v. Schilling 382 Brocking v. Straat 353 Brohammer v. Hoss 352 Brooks v. Owen 417 Broughton v. Brand 283 Broussard v. Mason .... 452, 457 Brown v. Dressier 456 V. Fagan 377 V. Fickle 397 V. Gwin . ..352, 355, 392, 400 V. Massey 150 V. Miller 194 TABLE OF MISSOUEI CASES. 777 [References are to sections.] Brown V. Turner 448 V. Worthington 398 Browning v. Hilig 436 Brownlee v. Fenwick ...126, 138 Brueggeman v. Jurgensen . . 115 Bruner Co. v. Glencoc Co. . . 218 Bryan v. Hitchcock 397 V. Jamison 130 Bucher v. Hohl 31 Buck V. A shbrook 297 V. Meyer 62 Buckberg v. Washburn-Cros- by Co 369 Buford V. Keokuk Co. ..386, 460 Bunch V. Wheeler 43 Bunn V. Stuart 277, 413, 419 Bunse v. Agee 352 Burdett v. May 281 Buren v. Buren ...281, 283, 300 Burger v. Boardman ...301, 390 Burgess V. Hitt 454 V. Kattleman 201, 202 V. R. R 31 Burke v. Seeley 116 Burnham v. Rogers 29 V. Smith 455, 460 Burrus v. Cook 450 Bushnell v. Loomis 399 Bushong V. Taylor 315 Butcher v. Butler 255 Butler V. Murphy 47 Byers v. Weeks 7, 18 Cabanne v. Lisa 8 Cadwallader v. Atchison .... 8 V. West 400 Caffee v. Smith 134 Cahn V. Reid 386 Caldwell v. Head 420 Callaway v. Johnson 249 Callaway Co. B'k v. Terry ... 453 Camp, In re 327 Campbell v. Clark 373 V. Handle Co 173 V. HofC 334 V. Johnson 331 V. Laclede Gas. Co 305 Cannon v. Sanford 356 Cape Girardeau etc. R. R. v. Wingerter 134, 140 Capen v. Garrison 26, 450 Capital City Ferry Co. v. Cole Co 228 Carder v. Drainage District.. 390 Carney v. Carney 137 Carolus v. Koch 457 Carpenter v. Grisham . . . 193, 211 V. St. Joseph 194 Carr v. Lewis Coal Co 460 V. Swift 395 Carrel v. Meek 356 Carroll v. Campbell 198, 228 V. United Rys. Co. ..377, 382 V. Woods 268 Carson v. Smith 394 Carter v. Long 247 Case V. Espenschied 284 Case Plow Works Co. v. Ross 394 Casey v. Murphy 380 Cashman v. Cashman's Heirs 418 Caskey v. Edwards 204, 244 Cason V. Cason 300 Casparl v. First Church .... 400 Cass Co. V. Green 410 Cassiday v. Metcalf 345, 346 Castleman v. Castleman 367, 374 Cauble v. Craig 228 Challis V. Davis 228 Chambers v. Chambers 414 Chapman v. Yancey 436 Charles v. White 413 Charm M'f'g Co. v. Donovan 365 Charpiot v. Sigerson ...132, 135 Chase v. Rusk 387 Cheek v. Waldron 301 Cheever v. Hogsdon 435 Cheltenham Co. v. Cook 262 Cherbonnier v. Cherbonnier . . 41 Chicago etc. R. R. v. Brandau 203 Childs V. Wesleyaij Cemetery 288, 289 Chiles V. Garrison 253 Chillicothe v. Bryan 204 Chitwood V. Russell 369 Chouteau v. Union Ry. Co. . . 41, 58, 60 Christian v. Ins. Co 436 V. St. Louis 219 Citizens' Bk. v. McKenna 249, 267 V. Marr 456 City of Brunswick v. Bank . . . 436 City of Hannibal v. Richards 224 City of Kansas v. McAleer . . 224 Clark v. Carter 334, 374 V. Covenant Co 414 v. Drake 397 V. First Nat'l B'k 325 V. Henry 16 V. Magulre 314 V. R. R 339 Clarke v. Thatcher 208 Clarkson v. Creely 382 v. Laiblau 237 Clay y. Mayer .145, 179 778 TABLE OF MISSOURI CASES. [References are to sections.] Clem V. Ins. Co 24, 338 Clifford B'k'g Co. v. Donovan Co 380 Clifton V. Anderson 450 Clinkenbeard v. Weatherman 391 Close V. Gravel Co 6 Cloud V. Ivle 283 Cobb V. Day 456 Cockerell v. Mclntyre 132 Cockrell v. Bopp 143 Coffee V. Crouch 301 Cohron v. Polk 400 Cole V. Beaumont 360 Coleman- v. Hagey 455 Colley V. Wilson 279 Collier v. R. R 203 Collins V. Harrel 41, 89, 135 V. Leather Co 279 V. Rogers 331, 355 Commerce Trust Co. v. Bank . 424 Compton V. McMahon 448 Compton Hill Imp. Co. v. Strauch 105, 107 Condit V. Maxwell 263,283 Conn. Ins. Co. v. Carson .... 384 V. Smith 299, 415 V. St. Louis : 194 Connor v. Eddy 404 Conrad v. Fisher 301 V. Uhrig Co. .., 231 Consumers Gas Co. v. Kansas City Co 238 Cook V. Ferbert 218 V. Newby 400 V. Smith 384 Coons V. North 334 Cooper V. Carter ". . . . 314 V. Deal 355 Corby v. Bean 29 V. Corby 265 V. R. R 219 Cornelius v. Smith 268 Cornet v. Cornet 300, 400 Corn well v. McFarland Co... 387 Cornwell v. Orton 318 Corrigan v. Tiernay 346 Couch V. Harp 284 Coughlin V. Barker 98 Counts V. Medley 68 Covert V. Bernat 231 Cowgill V. Linville 450 Cox V. Cox 283 V. Esteb 353 Craig V. Bradley 295 Cramer v. Groseclose 191 Crane v. Noel 450 Cravens v. Moore 29 Crawford v. Aultman 303 Crawley v. Crafton 343 Creamer v. Bivert i 396 Crenshaw v. Cook 195 Crim V. Crim 331 Crothers v. Acock 117 Croughton v. Forrest 305 Crow V. Andrews 305 v." Clay Co 270 Crowe V. Beardsley 302, 305 Crump V. Walkup 277 Culver V. Smith 368 Cummings v. Ruckert 315 V. St. Louis .221 Realty Co. v. Deere & Co 220, 221 Curd V. Brown 268, 284 Curie V. Eddy 130 Curtis V. Laughlin 318 V. Sexton 144 Curtiss V. Bell 457 D Dailey v. Dailey 297 V. Jessup 374 Dallas Co. v. Merrill 412 Dalpine v. Lume 378, 379 Daly v. Butchers' B'k 256 Damschroeder v. Thias 250 Danker v. Goodwin Mfg. Co.. 203 Darling v. Potts 265, 300 Dashner v. Buffington 383 Daugherty v. Harsel 138 Davenport v. Timmonds 450 Davidson v. Mayhew .... 344, 355 V. Real Estate Co 300 Davis V. Barada-Ohio Co. . . . 151 V. Briscoe 28 V. Clark 183 V. Clay 456 V. Foreman 391, 392 V. Fox 398 V. Green 113 V. Hoffman 327 V. Lester 399 V. McCann 397 V. Petty. .31, 127, 150, 178, 179 V. Sloan 415 V. Smith 458 V. Wheeler 41 Davison v. Hough 436 Dawkins v. GriflSn 41 Day V. Woodman Circle .... 457 Dazey v. Lawrence . . 15, 26, 460 De Field v. Dredge Co 455 Dehner v. Miller 37 Deltenre v. Deltenre 183 Deming Co. v. Webb 255 TABLE OF MISSOUEI CASES. 779 [References are to sections.] Dennison v. City of Kansas. 443 V. Keasby 57 Dent V. Hobson '. . 362 Derry v. Fielder ; 283, 284 Desberger v. Univ. Heights Co. 203 Despaln v. Carter 134 Detoul V. Yeater 352 Devore v. Devore 131 Dexter v. McDonald 31 Dickerson v. Dickerson 414 Dickson V. Kempinsky 397 V. R. R 204 Digby V. Jones 301 Dillon V. Bates ; . . . 263 V. Bowles 452 V. Stevens 272 Dingle v. Pollick 16, 380 Dixon V. Hunter 362, 413 Dobbs V. St. Joseph etc. Co. 457 Dodd V. Lee 460 Dodson V. Lomax 362 Doerr v. Cobbs 98, 103 Doherty v. Noble 400 Donaldson v. Allen 448 V. Donaldson 383 Donham v. Hahn 305 Dougherty v. Dougherty .... 339 Douthltt V. Stlnson 274 Dover v. Kennerly 48 Downing v. Corcoran 219 v. Dinwiddle 219 V. McHugh 352 Dozier v. Matson 138 Drake v. Crane 323 V. Jones 417 Draper v. Minor 272 Driskell v. Ashley 342 Drummond Tobacco Co. v. Tlnsley Co 230 Dubach v. R. R 221 Dudgeon v. Dudgeon 260 Duke v. Brandt 113 Duke, Lennon & Co. v. Duke & Woods 423, 436 Duncan v. Gibson 457 Dunlap V. Dunsetti 454 Dunnephant v. Dickson Co. . . 314 Dunnlca v. Coy 283 Durfee v. Bartlett 380 Durretts v. Hook 163 Dwyer v. R. R 406 Dye V. Bowling 269 Dysart v. Crow 452 E. Easter v. Easter 283 East St. Louis Ice Co. v. Kuhl- mann 277 Easton v. Demuth 319 Bdington v. Nix 404 Edward v. Gottschalk .- 300 v. Welton 318 Eggert V. Heer Dry Goods Co. 86 Elass V. Harrington 382 Electric Secret Service Co. V. M'f'g. Co 47 Eliot V. Merchant's Exchange 455 Elliott V. Landis Machine Co. 277 Ellis V. R. R 132, 220 Ely- Walker Co. v. Mansur . . 436 Emmel v. Hayes 133, 135 Engel V. Bernicken 299 V. Powell 334 EofE V. Irvine 305 Epperson v. Epperson 350, 355, 360 Erisman v. Brisman 279 Ettenson v. R. R 221 Evangelical Synod v. Schofe- nich 297 Evans v. David' 396 V. Evans 157, 165, 170 v. Morris 310, 311 V. R. R 201 V. Snyder 29 Ewing V. Board of Ed'n . . . 414 V. Fisher 274 V. Parrish 299 V. Shannahan . . 307, 309, 317 Byerman v. Bank 305 Ezell V. Peyton 338 P. Falls V. Jones 450 Panning v. Doan 352, 359 Farmers' B'k v. Worthington 396 Parrell v. Parrell 295 Farrell v. Union Trust Co. . . 279 Farris v. Smithpeter 202 Faust V. Birner 378 Feld V. Roanoke Co 30 Fender v. Hazeltine 331 Ferd Heim Brewing Co. v. Jordan 450 Ferguson v. Robinson 250 Ferguson's Estate, In re ... 456 Ferrell v. Ferrell 64 Fete V. Foerstel 104 Ficklin v. Stephenson 82 Filley v. Fassett 230 Findley v. Pindley 396 First Baptist Church v. Rob- berson 436 First Nat'l Bk. v. McRae ... 323 First Nat'l Bk. v. Mason 183 V. Meredith 417 Fischer v. Dent 333 780 TABLE OF MISSOUEI CASES. [References are to sections.] Fischer v. R. R 204 Fisher v. Davison 62 Pishing Club v. Hackman ... 15 Pitzpatrick v. Stevens 457 Fletcher v. Schaumherger . . . 305 Flint V. Hutchinson Go 238 Plynn v. Herye 305, 361 Folk V. Wind 318, 321 Fontaine v. Hudson 414 Ford V. Gehhardt 173 Porgey v. Gilbirds 252 Fogle V. Plndell 283 Forrister v. Sullivan .... 41, 135 Forsee v. Jackson 102 Porsee Inv. Co. v. Ozenberger 352 Poster v. Byrd 352 v. Williams 450 Poudry v. R. R 214 Fourth Nat'l B'k v. Noonan. 262 Fowler v. St. Joseph 417 Pox V. Hall 305 v. Hubbard 189 Prance v. Thomas 51 Francis v. A. O. U. W 457 Franco-Am. Ass'n v. Joy .... 436 Franklin v. Holle 381 Preeland v. Bldridge 400 V. Williamson 343, 344 V. Wilson 429 French v. Mfg. Co 203 Preudenstein v. Heine 206 Proelich v. Musician's Ass'n. 242 Frost V. Frost 283 Pruin V. R'y Co 393 Fuchs V. Puchs 89, 137 Fulton V. Fisher 24 Funk V. Avery 424 Funkhouser v. Lay 305 Furlong v. Thomssen 455 Furnald v. B'k 450 Furniture Hospital v. Dorf- man 231 G. Gaines & Co. v. Whyte Gro- cery Co 230, 231 Gallagher v. Hunter 27 Galloso V. Sikeston 222 Galloway v. Gleason 305 Galway v. Shields 131 Gamble v. St. Louis 414 V. Stephenson 230 Gardner v. Terry 417 Garesche v. Levering Inv. Co. 320, 323 Garland v. Smith 351 Garrett v. Garrett 295 Garrison v. Frazier 416 Gartside v. Gartside 272 Garvin v. Williams 40u Gast Bank Note Co. v. Penni- more Ass'n 235 Gaston v. Hayden 272 Gay V. Teleg. Co 221 Gee V. Leaver 426 Geeditzer v. Ins. Co 332 Geer v. Zinc Co 249 Geltz V. Amsden 211 George v. R. R 203 Gerhart v. Pout 262 V. Peck 129 Gibbs V. Whitwell 135 Gibson v. Cunningham 391 V. Donk 213 V. Lair 3U5 V. Shull 394, 400, 414 Gilbert v. Cooksey 302 Gilbert v. Renner 413 V. Seitz 395 Gilbreath v. Cosgrove 448 Gildersleeve v. Overstolz . . . 199 Gill V. Clark 456 V. Favrie 68 Gill V. Safe Co 6, 34 Gillespie v. Stone 290, 456 Gilliland v. Gilliland 284 v. R. R 208 Gilmore v. Thomas 30, 357 Girard v. Car Wheel Co 394 Givens v. Cobb 145 Givens v. Mcllroy 221 Glaessner v. Anheuser-Busch Co 221 Glaser v. Priest 424, 436 Glasner v. Weisberg 427, 436 Glasgow V. Baker 276 Glasgow V. Mo. Car. Co 247 Glass V. Rowe 152, 173, 178 V. Templeton 391 Glenn v. Hunt 276 Gloeckner v. Kittlaus 145 Godard v. Conrad 267, 436 Goettentroeter v. Kuppelman. 203 Golden v. Whiteside 457 Golden Cycle Co. v. Gold Co. 199 Goldie Const. Co. v. Rich Const. Co 457 Goode V. Goode 351 V. McPherson 270 V. St. Louis 29 Goodin v. Goodin 41, 138 Goodman v. Crowley 132 Goodrick v. Harrison 400 Goodwin v. Goodwin 263 TABLE OF MISSOURI CASES. 781 Gordon v. Bums 380 V. Eans 312 V. Mansfield 68 V. Rittenour 396 Gorman v. R. R. .. 203, 219, 221 Gotchner v. Haetner 202 Gottfried v. Bray 163, 365 Gottschalk v. Klrcher 369 Graham v. Carondelet 414 V. Wilson 281, 295 V. Womack 199, 201 Grand Chapter v. United Grand Chapter 232 Grand Lodge v. Eisner 436 Grant v. R. R 203 Grantham v. Gossett 90, 137 Graves v. Bwart 415 V. R. R 208, 380 Gray v. Hornbeck 331, 360 Green v. Gates 297 V. Dltsch 129, 456 V. Ins. Co 394 V. Von der Ahe 262 Greene v. Davis . . . 426, 427, 436 Greenlee v. Marquis 301 Greenstreet v. Welch 386 Green Tree Co. v. Dold 295 Greenwell v. Heritage 450 Greffet v. Willman 121, 129 Gregg, Assignment of 436 Griesel v. Jones 400 Griffin v. Miller 349 Griffith V. Judge 290 V. Lewis 208 V. Townley 274 V. Wltten 448 Grimes v. Reynolds 267, 458 V. R. R 203 Grocers Journal Co. v. Mid- land Co 231 Grogan v. Foundry Co 208 Groves' Heirs v. Fulsome . . . 389 Grovyney v. O'Donnell 24 Grumley v. Webb 299 Guerney v. Moore 306 Guest V. Farley 248 Guffey V. O'Reilley 29 Guinan v. Donnell 305, 394, 396, 397 Gunby v. Brown 416 Gupton V. Gupton 137, 140 Guy V. Mayes 300 Gwin V. Smurr 179 H. Haarstick v. Gabriel 31 Hach v. Rollins 396 Hackman v. Maguire 279 Hafner v. St. Louis 317 Hagan v. Bk 24, 47 Hagar v. Hagar 138 Hagman v. Schaffner 353 Haguewood v. Britain . . 284, 340 Haley v. Bagley 362 Hall V. Clark 393 V. Getman 49, 140 V. Hall 284 V. Harris 137 V. Joel 455 V. Morgan 452 V. Small 290, 456 V. Webster 96, 98, 107 Hamilton v. McClellan 305 V. McLean 457 Hamilton Brown Co. v. Saxey 235 Hamlin v. Burke Bros. ..203, 204 Hammond v. Cadwallader . . 290 Hanna v. Hyatt 452 Hannibal R. R. v. Nortoni . . . 414 Harber v. Evans 216 Hardy v. Clarkson 318 Hardy v. Matthews 42 Harkness v. Scammon 323 Harney v. Charles 374 V. Donahoe 295 Harper v. Eubank 451 V. Kemble 450 V. Mansfield 300, 330 Parrelson v. R. R 211 Harrington v. Utterback. .16, 414 Harris v. T'p B'd 194 Harris B'k'g Co. v. Miller 267, 424 Harrison v. Craven .-. 300 v. McReynolds 29, 356 V. Smith 297 V. Town 128, 365 Hart V. Handlin 122 V. Leete 312 V. Logan 113 V. R. R 404 Hartford Ins. Co. v. Wabash Ry. Co 450 Hartman v. R. R 457 Hartsook v. Chrissman . . 427, 433 Hartzell v. Crumb 123 Hasenbeck v. Hasenbeck 132, 137 Hatcher v. Hatcher 31, 400 Hathaway v. Foy 436 Hatton V. R. R 194, 202 Hawthorne v. Brooklyn Ins. Co 52 Hayden v. Marmaduke 324 V. Tucker 195, 203, 211, 215, 225 Haydon v. R. R 394, 403 Hayes v. R. R 204 Haynor v. Excelsior Co 208 782 TABLE OF MISSOUBI CASES. [References are to sections.] Hays V. Davis 414 V. K. C. etc. R. R 134 V. Poplar Bluff ;.. 194 Hazel V. Hagan 263 Heady v. Grouse 458 V. Hollman 404 Heald v. Donnell 378 Healey v. Simpson . . 62, 90, 109 Healey v. Tillberry 396, 455 Heath, v. Powere 306 V. Tucker 30, 31, 392 Heaton v. Dickson Co. . . 314, 455 Hedrick v. Heeler 86 Hedrix v. Hedrix 12 Heer Dry Goods Co. v. Ry. Co 220, 221 Hefferman v. Ragsdale 12 Heffron, In re 219, 220, 235 Hell V. Heil 456 Heimeyer v. Heimeyer 403 Heitz V. St. Louis 222 Heman v. Skrainka 8 V. Wade 199 Henderson v. Beasley 352 V. Dickey 12, 357 Hendricks v. Vivion 391 Hendrix v. Wright 373 Henley v. Sullivan 352 Henry v. McKerlie 301 V. Sneed 26- Hereford v. Bank 29 Herman v. Hall 391 Heron v. Peisch 24, 89 Herrington v. Harrington . . . 283 Hess V. Draften 387 Heuer v. Rutkoski 152 Hiatt V. Williams 89, 137 Hlckam v. Hickam 374 Hickey v. Drake 158 Higbee v. Higbee 265 Higgins V. Higgins 283 Highley v. Barron 29 Hildenbrandt v. Robitzsch . . 458 Hill V. Cheatham 41 V. Chowning 262 V. Ground 183 V. Martin 452 V. Rich Hill Mining Co.. . 44 Hines v. Royce 391 Hingston v. Montgomery 30 Hirschberg Co. v. Richards.. 387 Hisey v. Mexico 220 Hisey v. Presb. Church . . 97, 101 Hitch v. Stonebreaker 272 Hobart Lee Tie Co. v. Stone 196 Hockensmith v. Hokensmith 297 Hodson V. Walker 225, 244 Hoellner v. Haffner 397 Hoester v. Sammelman . . 31, 355 Holke V. Herman 203, 204 Holland v. Anderson 24 V. Johnson 414 HoUiway v. Holliway 400 Hollman v. Conlon 144 Hollocher v. HoUocher 400 Holman v. Renaud . . . . : 270 Holmes v. B'ld'g Ass'n 401 V. Fresh 397 Holthaus V. Hornbostle 458 Hook V. Bowden 457 V. McClure 362 Horine v. Ins. Co 346, 352 Houck V. Patty 201 Houghton V. Pierce 277 Houser v. Richardson 306 Houtz V. Hellman 30, 173 Howard v. Thornton 330 Howe V. Mittelberg 255, 261 V. Waysonan 396 Hubbard v. Hubbard 138 V. R. R 59 Hudson V. Burk 204 V. Cahoon 300 V. Wright 413 Huetteman v. Vlesselman 268, 297 Huff V. Shepard 41 Hug V. Van Burkleo 64, 143 Hughes V. Burriss 185 Hulett V. R. R 208, 219 Hull V. Voorhis 299 Humphreys v. Atl. Milling Co. 6, 8, 455 Hunter v. Briggs 268 V. Hunter 300, 327, 39^ v. Patterson 333 Huntsucker v. Clark 389 Hurley v. Kennally 400 Huse & Loomis Ice Co. v. Heinze 41 Hutsell v. Crewse 343 Hymen v. Branch 129 Hynds v. Hynds 300 I. Ilgenfritz v. Ilgenfritz 284 Inglis V. Floyd 323 Inhabitants v. Mfg. Co 373 Insurance Co. v. Cullen 444 Integrity Co. v. Moore 194 Isaacs V. Strainka 153, 162 Ives V. Kimlin 129 Ivory V. Murphy 175 I. X. L. Brick Co. v. Schoe- nich 297 TABLE OP MISSOUEI CASES. 783 [References are to sections.] Jaccard Jewelry Co. v. O'Brien 81 Jack Harvard Mining Co. v. Zinc Co 194 Jackson v. Chestnut 457 V. McLean 300 V. Wood 397 Jacobs V. Webster 450 Jaeschke v. Reinders 397 James v. Dixon 201 V. Groff 300 V. Hicks 261 Jamison v. Culligan 400 V. Glasscock 300 V. Zausch 311 Janney v. Spedden 6, 415 Jaquis v. Edgell 299 Jarboe v. Hay 314 Jarvis v. R. R ,. 204 Jasper Co. v. Tavis 88 Jasper Co. Elec. Co. v. Cur- tis 166 Jenkins v. Chemical Co 331 V. Ins. Co 394 V. Morrow 423, 436 Jennings v. Brizeadine 331 Jewell V. R. R 352 Jewell Tea Co. v. Carthage . . 447 Jewett V. Boardman 415 Jillett V. Union B'k 383 Johnson v. Agri. Co 404 V. Bank 325 V. Blell 449 V. Corley's Adm'x 46 V. Duer 29 V. Ewald 30 V. Fluetsch 305 V. Goldsby 450 V. Hurley 134 V. Jones 243 V. McGruder 134 V. Quarles 283 V. Smith 263 V. United Rys 392 Johnston v. Grice 263 V. Johnston 283 Joliffe V. Collins 385 Jones V. Belshe 400 V. Elkins 283 V. Howard 115 V. Jones 247 V. Patterson 270, 271 V. Shipley 331 V. Silver 380 V. Thomas 400 V. Williams . . 62, 78, 173, 174 Joplin Mining Co. v. Joplin. 203 Joyce V. Growney 7, 392 Judd V. Walker 391 Judge V. Lackland 351 Judson V. Mullinax 352 Julia Bldg. Ass'n. v. Bell Co. 221 K. Kalback v. Mathis 117 Kansas City v. Scarritt .... 263 Kansas City Cable Ry. Co. v. City of Kansas 245 Kansas City Masonic Temple Co. V. Young 232 Kansas City R. R. v. Sandlin 203 Kaut V. Gerdeman 291 Kavanaugh y. Traction Co. . . 145 Kearney v. Laird 245 Ketchum v. Harlowe 457 Keet Co. v. Gideon 300, 305 Keeton v. Keeton 281 Kehoe v. Taylor 380 Keiser v. Gammon 380 Keller v. Olson 262 Kelly V. Johnson 283, 306 V. Thuey 252 Kennedy v. Keating 299 V. Kennedy 283 v. Koopman 121, 129 Kenrick v. Cole 286 Kent V. Allen 129 Kent V. Curtis 455 Kenwood Land Co. v. Han- cock Inv. Co. 96, 98, 101, 102, 105 Kesner v. Phillips 314 Key V. Jennings 334 Kilpatrick v. Wiley 331 King V. Blennerhasset 403 V. Howard 64 V. Isley 283 V. Union Trust Co 94 Kingshighway Supply Co. v. Iron Works 219, 221 Kingman Co. v. Ellis 294 Kingsland v. Clark . . ; 122 Kinney v. Matthews 20 Kinney v. Murray . . 41, 135, 137 Kinzer v. Kinzer 397, 400 Kinzey v. Kinzey 397 Kirby v. Bruns 396 Kirchgraber v. Lloyd 203 Kirk V. Middlebrook 41, 135 Kirkendell v. Hartsock 386 Kirkpatrick v. Wiley 42 Kirschner v. Kirschner .... 400 Kitchen v. Greenabaum .... 401 V. Hawley 101 V. R. R 300, 380 784 TABLE OF MISSOTTBI CASES. [References are to sections.] Kleimann V. Gieselman ..346, 450 Kline V. Vogel 29, 31 Kllng V. Realty Co 129 Knapp V. Publishers 267 Knapp V. R. R 219 Knight V. Cherry 331 Koch V. Hebel 89, 137, 140 Koenig v. Morrison 262 V. Truscott etc. Co 37 Koken Iroh Works v. Knealey 279 Kortjohn v. Seiners 436 Koyl V. Lay 253 Kramer v. McCaughey 268 Kuhl V. Meyer 449 L. Lachance v. Loehlein 317 Lackawanna Coal Co. v. Long 41, 73 Lackland v. Gare'sche 316 V. Nevlns 43 V. Smith 314 V. Walker 270, 323 Laclede Bk. v. Richardson . . 323 Lakenan v. R. R 219 Lambert v. R. R. .. 41, 134, 195 Lampert v. Haydel 314 Lancaster v. Ins. Co 159 LaJid & Lumber Co. v. Black- man 41 Landa v. Traders* Bk 256 Landis v. Saxton 263, 299 Lane v. Swing 267 Langston v. Canterbury 110 Lanyon v. Chesney . . 29, 122, 153 Lapham v. Dreisvogt 41 Lappin v. Crawford 398 Larrimore v. Tyler 396 Lasar v. Baldridge 45, 457 Lavelle v. Belliu 433 Lawrence v. Owens 301 Laymaster, ex parte v. Good- in 223, 244 Leahey v. Witte 290, 380 Leberge v. Chaubin 115 Lee V. Howe 140 V. Lee 400 Leedom v. Ward Co. 382 Leeper v. Taylor 267, 449 Leete v. Pilgrim Soc'y 203 Leicher v. Keeney 391 Lemmon v. Lincoln 450 Lemp V. Lemp 265 ' Lemp Pishing Club v. Cottle 86 Lemp Hunting Club v. Hack- man 168 Lenox v. Hanson 31 Lentz V, Johnson 218 Lester Co. v. St. Louis 204 Lewey's Curators v. Lewey.. 422 Lewis V. Barnes 413 V. Carson 460 V. Land Co. ... 386, 391, 392 V. Life Insurance Co. . . 396> Lich V. Lich 308 Life Ass'n v. Boogher 239 Liggett V. Powder. Mfg. Co.. 203 Liggett & Myers Co. v. Reid Co 230 Lincoln Trust Co. v. Nathan. 404 V. TVacy 263 Lindell Real Estate Co. v. Linden 305 Lindsay v. Brooks 325 Link V. Real Estate Co 398 Linton v. Boly 456 Lionberger v. Baker 301 Lipscomb v. Adams 149, 173 Lipscomb v. Talbott 383 Little V. Cunningham 30 Little V. Union Trust Co. 424, 436 Llewellyn v. Llewellyn 448 Lo Buono V. Macaroni Co. . . 231 Lockwood V. Lunsford . . 193, 201, Lockwood V. R. R 219 V. St. Louis 417, 443 Loewenberg v. De Voigne . . 41 Logan V. Mitchell 455 Lohse Patent Door Co. v. Puelle 235 Lomax v. Elec. Ry 394 Long V. Abstract Co 29, 338, 363, 401 V. Joplin Mining Co 83 V. Kansas City 204 V. Lackawanna etc. Co.. 129 V. Vending Machine Co. 395 Loomis V. R. R 31 Louthan v. Stilwell 30 Love V. Ins. Co 427, 430 Lowe V. Montgomery 272 Lowenberg v. Bernd 448 Luebbert v. Brockmayer . . . 400 Luckett V. Orange Julep Co.. 229 Luckett V. Williamson 122, 129, 132, 135, 175 Ludowiski v. Benevolent So- ciety 242 Luecke v. Cohen 331 Luthy V. Woods 261, 455 Lyman v. Campbell 366 Lyons v. Smith 457 Lysaght v. St. Louis Ass'n.. 242 Lysan v. Miller 449 Lytle V. Jamss 194 TABLE OP MISSOURI CASES. 785 [References are to sections.] M. Magruder v. Admire 452 Maguire v. Vice 6 Mahoney v. Nevins 450 Majors v. Maxwell 90 Mancusco v. Kansas City . . . 208 Manheimer v. Harrington . . 382 Mann v. Best 301, 305 Manning v. Ins. Co 119 Mansfield v. Bank 393 Mansur Co. v. Jones 455 Marion Distilling Co. v. Ellis 398 Markel v. Peck 279, 329, 330 Markt v. Davis 204 Marre v. Marre 30 Marsh's Adm'r v. Bast 457 Marshall v. Larkin 358 Martin v. Baker 400 V. Jones 417 V. Martin 20, 90 V. Michael 396 V. Nixon 456 V. R. R 219 V. St. Joseph 208 Martinowski v. Hannibal .... 210 Marx & Haas Co. v. Wilson 235, 239 Mason v. Bank 324 V. Black 414, 415 V. Deitering 204 V. Payne 144 Mastin v. Grimes 129, 149, 155, 175 Mastin v. Halley .. 59, 173, 174 Mathias v. Arnold 458 Matthews v. R. R 208 Matthis T. Cameron 457 Mayberry v. McClurg 389 Meyer v. Bk 297, 325 Mead v. Knox 456 V. Robertson 292 Mechanics' Bank v. City of Kansas 443 Medlin v. Morris 283 Meek v. Hurst - 300, 333, 338 Meier v. Blume 354 Melton V. Smith , . 29, 149 Melville v. Waring 141 Meramee etc. Co. v. Kreis . . . 130 Merchants' Bank v. Richards 426 Merchants' Exchange v. Knott 202 Meredith v. Holmes 352 Meriwether v. Joy 101 V. Love 413 Merrett v. Poulter 380 Merry v. Fremon 435 Mers V. Ins. Co Ill Mersman v. Mersman 318 Eq.— 50 Mesker v. Cornwell 457 Messersmith v. Messersmith 457 Metropolitan Land Co. v. Man- ning 195, 457 Meyer v. Ins. Co 323 V. Withmar 301 Meysted v. Grace 297 Michael v. St. Louis ...443, 444 Michigan Buggy Co. v. Wood- son . . . .-. 346 Midland Bank v. Brightwell 255, 315 Mieters v. Brockman 455 Miles V. Davis a62 Miller V. Bernecker 26 V. Brick Co 371 V. Davis 283 V. Ins. Co 423 V. Kelsay 30, 31 V. Klein .... 94, 97, 105, 107 Miller v. Simonds . . . ; 400 V. Woodward 450 Mills V. Post 297 Miltenberger v. Morrison . . . 380 Mine etc. Co. v. White 131 Mires v. Summerville 391 Mississippi etc. Co. v. McDon- ald 24, 353 Missouri etc. Co. v. Trust Co. 382 Missouri Historical Soc'y v. Academy v. Science 270 Missouri Lumber Co. v. Zeit- Inger 83 Missouri K. & B. R. R. v. Hoerth 414 Missouri Pacific R. R. v. Mc- Carty 41 Mitchell V. Henley 396 Mitchner v. Holmes 129 Mittron v. McRae 323 Mize V. Bates Co. B'k 267 Modern Horse Shoe Club v. Stewart 30, 245 Modrell v. Riddle 283 Montgomery v. Hundley. .111, 386 Moore v. Stemmons 279, 315 Moran Co. v. St. Louis Car Co 352, 359 Moreau v. Branham 362 Morgan v. Bouse 116 Morgan v. Joy 393 Morgan Co. Coal Co. v. Hal- derman 384 Morie v. St. Louis etc. Co. 213, 220 Morley v. Harrah 383 Morris v. Clare 284 v. Parry 26. 31. 420 786 TABLE OF MISSOTJBI CASES. [References are to sections.] Morris v. Stephenson 448 Morriso v. Philliber 400 Morrison v. Juden 30 Morse v. Rathbun 386 Moseley v. Fullerton . . 451, 452 Moseley t. Ins. Co 118 Moss V. Fitch 12 Moulden v. Train 265, 268 Mount Calvary Church v. Al- bers 268 Mudd V. Bank 255 Mugan V. Wheeler 290 Mulock V. Mulock 268, 290 Mulrooney v. Irish Ass'n.... 456 Munden v. Harris i 240 Munro v. Collins 298 Munyon v. Hartman 129 Murdock v. Finney 306 V. Lewis 31 Murphy v. Smith 419 Mussman v. Zeller 268 Myers v. Schuchman 305 Mc McBeth V. Craddock 384, 387, 391 McCaffery v. Tiernan 308 McCall V. Atchley 48, 177 McCann v. Anthony 230 McCann v. Whitt, 362 McCartney v. Garnhart ..230, 231 McClannahan v. McClannahan 277 V. smith 29 McClure v. Lewis 400 McClijrg V. Phillips 456 McComas v. Ins. Co 276 McCourtney v. Sloan 450 McCullough V. McCuUough . . 140 McCune v. Graves 133 McDaniels v. Lee 24 McDermeitt v. Keesler 397 McBlroy v. Maxwell 157 McParland v. Creath 436 V. La Force 283 McGhee v. Bell 122, 334 McGinn v. Bank ...431, 433, 436 McGinnls v. Hardgrove .... 268 McGowan v. R. R 208 McGregor-Noe Co. v. Horn. 283 McGulre v. Nugent 263 McHoney v. Ins. Co. .... 356 Mcllvaine v. Lancaster 316 V. Smith 314 McKee v. Allen 284 V. Downing 300, 308 V. Higbee 41 v. R. R 204 McKenzie v. Donnell 400 McKim V. R. R 346 McKinney v. Northcutt 221 McKissock V. Groom 400 McKinzie v. Matthews 194 McLain v. Parker 392 McLaughlin v. McLaughlin . . 396 McLean v. Martin 367 McLeod V. Snyder 262 V. Venable 283 McLure v. Nat'l Bank 456 McManus v. Gregory 153 McMurray v. McMurray 283, 302, 305 V. St. Louis etc. Co 374 McNear v. Williamson ..30,396 McNew V. Booth 299, 380 McNulty V. Miller 203, 211 McPherson v. Kissee 121 McPike V. Pew 417, 443 V. West 194 McQuarry v. Land Co 151 McQuInn v. Moore 41, 137 McQuitty V. White 109 V. Wilhite 137 McRee v. Gardner 417 McReynolds v. Grubb 354 McRoberts v. Mondy 288 N. Nally V. Redding 138 Nance v. Sexton 404 National Tube Co. v. Ring etc. Co 396 Naum'an v. Oberle 393 Nearen v. Bakewell 391 Neef V. Redmon 175, 179 Nelson v. Betts 373, 374, 380, 397 Nelson v. Kelley 196 Nesbit V. Nesbit 358 Neuman v. Friedman 379 Nevins v. Coleman 362 Newman v. Newman 300, 307, 451 Newton v. Newton 396 V. Rebenack 24, 248, 317, 327 Nichols V. Russell 29 Noah V. Ins. Co 367 Noel V. Hill 104, 105 V. Hughes 394 Northcraft v. Martin 290 Northrip v. Burge 267, 268 North St. Louis Society v. Hudson 417 Norton v. Bohart 370 v. Highleyman 346 Novinger Bank v. St. Louis Trust Co 427, 433, TABLE OP MISSOUKI CASES. 787 [References are to sections.] Nowaok V. Berger ... 90, 131, 135 O. Oakes v. St. Louis Candy Co. 230 O'Brien v. Ash 312 V. Burroughs Co 208 V. Heman 208 Obst V. Unnerstall 400 Och V. R. R 406 Oelllen v. Gait 326 Getting v. Pollock 219 O'Pallon V. Kennerly 150 V. Tucker 279 Oliver v. Johnson 41, 135 Olney v. Eaton 11 O'Neill V. Capelle 130 V. Webb 44, 57 O'Reilly v. Miller 278 O'Rourke v. Kelly The Printer Corp'n 449 Orr V. McCurdy 133 Orrick v. Durham 450 Ort V. Zimmerman 457 Ostman v. Frey 10 Otto V. Young 12, 48 Ottomeyer v. Pritchett 342 Overall v. Ruenzi 414 Overton v. Brown 393 Owen V. Ford 194 Owens V. R. R 59, 352 Owensby v. Chewnlng 283 Ownby v. Ely 300 Owsley V. Jackson 331 Oxley Stave Co. v. Butler Co. 273, 457 Padberg v. Kennerly 208 Paddock v. Sommes 195, 204, 206, 211 Paddock-Hawley Iron Co. v. McDonald 454 Page V. Shelby 417 Palmer v. Crisle 195 Pank V. Eaton 101 Paquin v. Milliken 394, 406. 410 Paretti v. Rebenack 381 Paris V. Haley 20, 41, 48 Parke v. Leewright 131, 132 Parker v. Roberts 398 V. Shackelford 191 V. Straat 295 V. Vanhoozer . . . . ; 359 Parks V. People's B'k 115, 416, 417 Parsons v. Kelso 404 Partridge v. Cavender 314 V. Partridge 343 Patterson v. Booth 300 V. McCamant 445 Paul V. Chouteau 327 V. Draper 253 Payne v. O'Shea 457 V. Twynham 315 Peacock v. Nelson 290, 291 Peake v. Jamison 272, 326 Pearl v.- Hervey 354 Pearson v. Haydel 297 Peay v. Sublet 396 Peery v. Carnes 276 Peltzer v. Gilbert 30 Pendleton y. Hubbard 445 V. Perkins 455 Pensereau v. Pensereau 281 Psnwell v. Ennls 267 Perkins v. Heiser 454 Perkins v. Mason 185 Perry v. Craig 31 V. Strawbridge 294 Peters v. Berkemeier 415 V. Worth 218 Petty V. Tucker 450 Phillipi V. Brass Co 352 Phillips V. Franciscus 301 V. Jackson 290 V. Moore 400 V. Overfield 297, 300 V. Phillips 29, 292 V. Stewart 397 V. Ward 276 Philpot V. Penn 283 Phoenix Ins. Co. v. Trenton Water Co 258 Pickel v. Pickel 455 Pickens v. Dorris 314, 316 Pickett V. School Dist 262 Pierce v. Pierce 455 V. Stinde 460 Pike V. Martingale 31 Pipkin V. Allen 452 Pitman v. Drabelle 243 Pitts V. Weakley 268 Planet Property Co. v. St. Louis R. R 197 Plant Seed Co. v. Michel Co. 231 Plumb V. Cooper 283 Pocoke V. Peterson 419 Poe V. Domie 263 Poe V. Stockton 394, 395 Police Relief Ass'n Tierney 20 Polliham v. Reveley 330 Pomeroy v. Benton . . .19, 327, 384 V. Fullerton 59, 150 Pope-Turnbo v. Bedford .69, 229 Porter v. Paving Co 417 v. Reed 439, 445 788 TABLE OF MISSOUBI CASES. [References are to sections.] Poston V. Balch - 396 Potato Grower's Ass'n v. Pro- duce Co 37 Potter V. Stevens 305 Potter V. Whidden 6 Powell V. Adams 26, 386 V. Canaday 194, 199, 201 Powell V. Hurt 263, 326 V. Santa Pe R. R. ...59, 396 Powers Shoe Co. v. Odd Fel- lows Hall Co 457 Pratt V. Clark 16 Pres. Church v. McBIhinney 260 Prewltt V. Prewitt 283 Price V. Estill 346 V. Evans 299 V. Hart 132, 135 V. Kane 290 Primm v. Roboteau 445 V. White 30 Probasco v. Bonyon 231 Provolt V. R. R 201 Puckett V. Annuity Ass'n .... 262 Pugh V. Hayes 248 Pullis V. Robison 316 V. Somerville 323 Purdy V. Gault : . . .24, 380 Putnam v. Boyer 394 Q. Quell V. Hanlin 116 Quest V. Johnson 20 Quinlivan v. English 178 R. Rabich v. Stone 219 Rackliffe v. Seal 331 Ranck v. Wickwire ; . . 118, 129 Randolph v. Ellis 449 V. Wheeler 82, 252 Rankin v. Charless 196 V. Harper 283' V. Patton 400 Reach Co. v. Hardware, Co. . . 230 Real Estate Sav. Inst. v. Col- lonious 24, 460 Rector v. Dalby 319 V. Hutchison 318 v. Price 121 Red Diamond Co. v. Stelde- man 418 Redding v. Lumber Co 352 Reed v. Carroll 400 V. Crissey 450 v. Hazard 101 V. Painter 281 Reel V. Ewing 31 Reld etc. Co. v. Lloyd 382 Reigart v. Coal & Coke Co. . . J.38 Renfroe v. Renfroe 392 Renshaw v. Wills 305 Reyburn v. Blackwell 273 V. Mitchell 450 Reynolds v. Reynolds . . 132, 403 Rhodes v. Outcalt 353 Rice V. Bunce 29 V. Jefferson 225, 244 V. Shipley 283, 284 Richards v. Griggs 306 V. Pitts 300 Richardson v. Champion .290, 456 V. Frederitze 276 V. Means 6, 276 Ricord V. Watkins 263 Ridgeway v. Holliday 305 Ridgley v. Stilwell 37,140 Rieschick v. Klingelhoefer . . 315 Ring V. Paint Co 384 Ritter v. Democratic Press . 457 Robards v. Clayton 424 Robberson v. Clark 151, 457 Robbins v. Ayres 258 V. Robbins 283 Roberts v. Bartlett 450 V. Central Lead Co 406 V. Moseley 273, 299 Robertson v. Ins. Co 406 Robey v. Watson 450 Robinson v. Bobb 352 V. Korns 359 V. Lakenan 311 V. Seay 452 V. Siple 394 Rogers v. Gosnel 258, 276 V. Pub'g Co 394 V. Ramey 268, 290 V. Wolfe 41, 109 Rose V. Bates 290 V. Garrett 194 Rosalie v. Bank 436 Rosenberger v. Jones 116, 130, 132 V. Miller 194 Rosenwald v. Middlebrook . . 137' Rosier v. Graham 129 Roth v. St. Joseph 224 Rothenbarger v. Rothenbarger 388, 400 Roussin V. Benton 191 Rozier v. Griffith 449 Rucker v. Ry. Co 221 Ruddle V. Horine 262 Rundleman v. Boiler Works Co 262 Ruppel V. Guar'y Ass'n 29 Rush V. Brown 179 TABLE OF MISSOUEI CASES. 789 [References are to sections.] Russell V. Berkestresser .... 67 V. Defiance 29 V. Geyer '. 149, 155 V. Lumber Co 414 V. Sharp 41, 130, 135 Rutherford v. Stewart 51 V. Williams 29 Ryan v. Bradbury 455 V. Dunlap 24 V. Gilliam 417 V. Miller 20, 406 V. Ryan 400 V. Stropp 399 S. St. Joseph Brewing Go. v. Hauser 194 St. Louis V. O'Neal Lumber Co 316 St. Louis V. Priest 330, 346 V. St. Louis Gaslight Co. 64 V. Wright Co 258 etc. Co. V. Eclipse Co. . . 231 Co. V. Kennet's Est. .203, 217 Co. V. Merkel 230 Etc. R. R. Co. V. Gracy . . 19 etc. R. R. Co. V. Lowder 418 V. R. R 228 V. Schneider 204 Salee v. Chandler 300 Salvation Army v. Penfield . . 459 Samuels v. Shelton 460 Sanders v. Dixon 96, 98, 101, 102, 104 V. Jacob 231 Sanderson v. Voelcker 391 Sanguinett v. Webster 327 Sappington v. School Fund Trustees 270 Saunders v. McClintock . ,382, 386 Saussenthaler v. Surety Co. . . 450 Sayre v. Tompkins 417 Scannell v. American Soda Fountain Co 129, 149, 151 Schaffner v. Shilling 373 Schafroth v. Ambs 458 Scharer v. Pantler 107 Schell City Bank v. Redd 302, 450 Scheurich v. Light Co. ..220, 221 Schieds v. Hickey 371 Schiffmann t. Schmidt 276 Schloss V. Dattilo 6 Schmidt v. Hess 270 Schmucker's Estate v. Reel 265, 271, 292 Schneider v. Johnson 202 Schoen v. Kansas City 225 School District v. Holt 135 V. Young 194 Schopp V. St. Louis 219 Schradski v. Albright ..305, 456 Schroeder v. Turpin 30, 404 Schubach v. McDonald 389 Schulenberg Co. v. R. R. ... 219 Schulter v. Bockwinkle 109 Schumacher v. Shawhan 203, 224 Schwear v. Haupt 337 Schwickerath v. Cooksey .... 362 Scott V. Davis 109 V. Ferguson 283 V. Gordon 362 V. Nevada 204 V. Realty Co 398 V. Royston 89 Scudder v. Atwood 396 V. Waddingham 37 Sears v. Patterson 450 Sease v. Foundry Co. ..168, 457 Seay v. Hesse 300, 315 Sedalia Brewing Co. v. Water- works 58, 80 Seiberling v. Tipton 353 Seibold v. Christman 284 Sell V. West 15, 283 Semple v. Schwartz 97 Sensenderfer v. Kemp ...28. 353 V. Smith 29 Shacklett v. Cummins 133 Shaffer v. Detie 274 Sharkey v. McDermott 62, 89, 137 Sharp V. Berry 283 Shaw V. Shaw 283, 300 Shawhan v. Baker 390 Shearer v. Hill 391 Sheedy v. Brick Works 219 Sheetz v. Price 201 Shelby Co. v. Bragg 281 Shelley v. Sperry 230 Shelton v. Church's Adm'rs 41, 42 V. Cummins 211 V. Harrison ..6, 247, 283, 284 V. Lentz 220 Sheppard v. May 221 Sheridan v. Nation 382 Sherwood v. Saxton 274, 295 Shields v. McClure 381 Sherlock v. R. R 221 Shockley v. Fisher 273 Shortridge v. Harding ..2b4, 258 Shroyer v. Nickell 29,354 Sicher v. Rambousek ..353, 355 Siegel V. Quigley 314 Sills V. Goodyear 194 790 TABLE OF MISSOUEI CASES. [References are to sections.] Simmonds v. Headlee 133 Simons v. Wittman 252 Simpson v. Corder 255 V. Erianer ' 273, 276 V. Smith 450, 452, 455 Sims V. Sims 400 Sitton V. Shipp 135 Skinkle v. Dickery 168 Skinner v. Oakes 230 V. Slater . . . .' 224 Skrainka v. Roman 452 Sloan V. Wilkinson 59 Small V. Field 265 Smith V. Davis 140 V. Estes 29 V. Grand Lodge 424, 427, 435, 436 V. Harris 389 V. Jamison 193, 199 V. McConathy 225 V. Oldham 262 V. Patterson 374, 388 V. Perry 279 V. Schneider 450 V. Sedalia 204, 224 V. Smith 317 V. Taylor 457 V. Walser 353 V. Washington 31 V. Williams 300 V. Wilson 175 Snider v. Adams Express Co. 276 V. McAtee 384, 391 Snorgrass v. Moore 297 Snyder v. Am 397 , V. Murdock 118 V. Toler 265 Soulard, In re 265, 267 Southern Bank v. Nichols . . 312 South Pres. Church v. Heintz 315 Southworth v. Hopkins 145 Sovereign Camp v. Wood 424, 436 Sphar V. Cape 104 Spalding v. Conzelman 133 Spellman v. R. R 356 Spright V. Kauftman 262 Springfield R. R. Co. v Springfield 49, 228 Springfield Traction Co. v... Dent 389 Spurlock V. Dornan 194 Staed V. Rossier 6 Stanfield v. Hennegar 400 Stark V. Zehnder 355 State V. Board of Health 207 V. Jacob 276 V. McElhaney 333 V. McKay 300 State V. Parkville Co 417 V. Saline County Court . 221 V. Sargent 362 V. Tiedeman 417 V. Uhrig 239 State Bank v. Keeney 436 State ex rel. v. Adams 270 V. Adm'r of Prank 332 V. Aloe 243 V. Assurance Cos 237 V. Barker 436 V. Bell 456 V. Brewing Co 244 V. Busse 222 V. Canty 223, 244 V. Chambers 244 V. Cryts 454 V. Engelmann 457 V. Excelsior Co 224 V. Feitz 222, 244 V. Gates 243 V. Goodrich 216 V. Gravel Road Co 222 V. Grimm 11, 419 V. Hager 224, 417 V. Homer 11, 14 V. Jones 223 V. Kirkwood 223 V. Kirkwood Club 244 V. Lamb 223, 224 V. Lucas 62, 78 V. McQuillan 202 V. McVeigh 265 V. Meagher 320 V. Mississippi Co 328 V. Moffett 223 V. Moon 223, 244 V. Muench 272 V. Paper Co 221 V. Phillips 414 V. R. R 223 V. Rusk 270 V. Salley 244 V. Schweickardt 244 V. Shires 263 V. Temperance Society . . 242 V. Tine 400 V. Uhrig 223 V. Vandalia 222 V. Withrow 243 V. Wood 418, 447 V. Zachritz 244 State Savings Ass'n v. Kel- logg 263 State Savings Bank v. Ker- chlval '. 198 State to use v. Anthony 263 V. Bstell 305 TABLE OP MISSOTJEI CASES. 791 [References are to sections.] State to use v. Riggln 326 y. Roeper 325 Steadman v. Hayes 396 Steckman v. Harber 29 Steinberg v. Ins. Co 352, 359 Stephenson v. Smith 296 Sternberg v. Ins. Co 339 Stevens v. De La Vaulx 26, 323, 351 V. Fitzpatrick 283 V. Rainwater 382 Stevenson v. Haynes 283 V. Smith 31, 283 Stewart v. Caldwell 16, 417 V. Pettus 307 Stilwell V. Bell 30 Stitt V. Stitt 396 Stoller V. Coates 297 Stone V. Furber ,. . 455 V. Johnson 393 V. Perkins 413 Stonemetz v. Head 387 Stones V. Richmond 387 Stowe V. Stowe 351 Strange v. Crowley 41 Straub v. Simpson 202 Street v. Gross 397 Strohmaier v. Zappenfleld 64, 143 Strother v. Cooperage Co. 194, 195 Stumpf V. Stumpf 388 Suddath v. Gallagher 4ff0 Sullivan v. Knights 424 Sullivan Realty Co. v. Crock- ett 220 Sultan V. Parker-Washington Co 203. 206 Sultzman v. Branham 218 Summers v. Abernathy 389 V. Coleman 342 Supreme Council v. Palmer 424, 430, 431, 436 Supreme Council v. Widelet 15 Sursa V. Cash 130 Sutton V. Hayden 89, 90, 137 V. Shipp 41 Swain v. Bartlett 426 V. Burnley 404 Swaine v. Blackmore 237 Sweet V. Owens 352 Swift & Co. V. R. R 450 Swinhart v. R. R 221 Swisher v. R. R 218 Swope vl Weller 437, 445 Sylvester Coal Co. v. St. Louis 245, 443, 447 T. Talley v. Schlatitz 331 Tapana v. Shaffray 457 , Tapley v. Herman 331 V. Ogle 130 Tarkio v. Miller 203 Tate V. Sanders 301 Tatum V. Brooker 132 Taylor v. Adams 185 V. Perkins 6 V. Short 393 V. Von Schraeder 30, 41, 133 V. Williams 168 Teachout v. Clough 194 Teats V. Flanders 41, 137 Tebeau v. Ridge 124, 178 Tedford v. T^rimble 41 Telle v. Roever 317 Tennison v. Tennison ..295,312 Tesson v. Atlantic Co 352 Thias V. Siener 8, 449 Thieman v. Heinze 393 Thomas v. Bridges 450 V. Maloney 20, 62 Thompson v. Bank 406 V. Henry 86 V. Langan 102, 104, 107 V. Lyon 276 V. Newberry 415 V. Renoe 283 Thompson v. Thompson 351 Thummel v. Holden 238 Tibeau v. Tibeau 274 Tinker v. Kier 391 Titterington v. Hooker 454 Tittman v. Green 272 V. Thornton 455 Toler V. McCabe 162 Towne v. Bowers 194, 202 Townsend v. Hawkins ...132, 135 Tracy v. Brittle 221 Trimble v. Bank 24 Troll V. St. Louis 31 V. Sauerbrun 367,377 V. Spencer 397 Truesdail v. McCormick 419' Truesdell v. Callaway 86 Tucker v. Bartle 126 Tufts V. Latshaw 297 V. Wynne 118 Turley v. Edwards 398 Turnbull v. Watkins 252 Turner v, Adams 396 V. Babb 460 V. Butler 300 V. Oyerall 399 V. R. R 333 V. Shaw 352 V. Stewart 198 Turpin v. Bagby 329 792 TABLE OP MISSOUEI CASES. FReferences are to sections.] U. Ulrlci V. Boeckeler 297 Underwood v. Underwood 41, 135 Union Ry. v. Skinner 450 Union Soc'y v. Mitchell 297 United Rys. v. O'Connor 430 V. Valle V. Ziegler 417 Vandeventer Trust Co. v. . . Western Stoneware Co. . . . 457 Van Frank v. Brooks 16 Van Hoozer v. Van Hoozer . . 185 Van Hoozier v. R. R 204 Van Petten v. Richardson . . . 452 Van Raalte v. Epstein . . 380, 383 Vanstone v. Goodwin .... 51, 267 Veney v. Furth 406 Verdin v. St. Louis 417, 443 Versteeg v. R. R 30, 221 Veth V. Gierth 41 Victor Mining Co. y. Morning Star Co 214 Vitt V. Owens , 26 Vogelsang v. Wood Fibre Co. 421, 449 Vogler V. Montgomery 417 Voorhis v. Smith, Beggs & Co 382 W. Wabash Ry. Co. v. Bowring,. 26 V. Flannigan 435 V. Mlrrielees 389 V. Sweet 446 Waddell v. Waddell 459 Waddington v. Lane 305 Wade V. Ringo 455 Waddle v. Frazler 283 Wagner v. Meety 389 V. Phillips 380 Walker v. Bohannon 135 V. Charles 393 V. Owen 118, 132 V. Owens 149 V. R. R 197 Walker's Adm'r v. Walker . . 267 Wall V. Beedy 392 Wallace v. Figone 41, 126 V. R. R 219 V. Wilson 301 Walsh V. Ass'n 235 Walsh V. St. Louis Trust Co. 41 Walter v. Walter 248 Walther v. Cape Girardeau . . 197 Wanger v. Marr 89 Wannall v. Kern 362 Ward V. Davidson 299 V. Hartley 30 Ware v. Johnson 362 Warfield v. Hume 135 Warren v. Castello 173, 179 V. Cavanaugh 204, 225 V. Ritchie 386 Wasson v. English ;295, 300 Watson V. Payne 268 V. R. R 219 Watson Window Co. v. Cor- nice Co 395 Watts V. Loomis 83, 276 Wayland v. R. R 208 Wayman v. Jones 450 Webb V. Donaldson 415 V. Lumber Co 455 V. Toms 134 Weigel V. Walsh 194 Weinerth v. Trendley 373 Weishar v. Sheridan 203 Weiss V. Heitkamp 290 Weissenfels v. Cable 367 Welday v. Jones 369 Weller v. Lumber Co. ..219, 220 Welton V. Martin 211 Wendover v. Baker 41, 130, 150 West V. Bretelle 331 V. Bundy 138 V. Wayne 8, 380 Western Ry. Co. v. Siefert . . 13 Westminster Laundry Co. v. House Co 230 West Plains Bank v. Edwards 255 Whalen v. Baker 208 Wheeler v. Ball 331 V. Land Co 413 Whelan v. Reilly 379 Wheless v. St. Louis 457 Wherry v. Hale 283 Whipple V. Mclntyre 204 White V. Drew 310 V. Ingram 138 V. McPheeters 396 V. Pendry 31 V. Watkins 132, 135 Whitesides v. Cannon 458 Whiting V. Land Co 57 Whittaker v. Realty Co 101 Widdicombe v. Childers 353 Wiegand v. Woerner 272, :>23 Wilbur Stock Food Co. v. . . Bridges 168 Wilchinsky v. Cavender .... 367 Wilksrson v. Hood 398 V. Sampson 452 Williams v. Gerber 400 TABLE OP MISSOTJEI CASES. 793 [References are to sections.] Williams v. Husky 359 V. Jones 455 V. Keefe 28a V. McGuire 86 V. Williams 448 Williamson v. Brown ...346, 355 Williamson Corset Co. v. . . Western Co 231 Wills V. Forester 40 Wi'lson V. Jackson 397 V. Merc. Co 30 V. Torchon etc. Co 57 Winona Wagon Co. v. Feaster 395 Wintergerst v. Court of Honor 6 Witte V. Storm 299 Wolfe V. Dyer 10 V. Harris 239 V. R. R 276 'Wolz V. Venard 338 Wombles v. Young 263 Women's Christian Ass'n v. Kansas City 276 Wood V. Augustine 305 V. Craig 204 V. K. C. Tel. Co. 57, 394, 398 Woodford v. Stephens ..265, 268, 312 Woodmen v. Broadwell 436 Woods V. Straup 404 Woodson V. Carson 116 Woodward v. Mastin 29, 300, 396 Woodward v. Woodward 312 Wooldridge v. Smith 221 V. Stone 450 Woolfolk V. Kemper ........ 455 Worsham v. Callison 113 Wright V. Barr 382 V. Tinsley 89 Wright's Heirs v. Christy's Heirs 419 Wrightsman v. Rogers 283 Wyeth Co. v. Lang 13 Y. Yeater v. Hines 384 Yeomans v. Herrick 107 Yostie V. Laughran 400 Young V. Cason ^. . . . 36£ V.' Coleman 353 V. Hudson 255 V. Marion-Sims College . . 352 V. Montgomery 132 Younger v. Hoge 382, 383, 386, 397 Z. Zehnder v. Stark 29, 300 Zeideman v. Molasky 257 Zimmerman v. R. R 219 Zinn V. Sidler 94, 101 Zugg Y. Arnold 203