of perpetuating testimony were, under the circumstances, allowed to a purchaser.(1) *CHAPTER VI. BILL FOR A SPECIFIC PERFORMANCE. [ *489 ] In what cases proper to he filed, 489. Where parol evidence is received in a suit for specific performance, 489. Where defendant is entitled to relief without filing a cross bill, 491. Return of deposit to vendor, 492. THE specific performance of agreements by parol, or in writing, may be enforced by this court.[a] For this (1) Mackrell v. Hunt, 2 Madd. 37, (n.) [a] The jurisdiction of the courts of law, in relation to contracts, extends only to the awarding of compensation in damages, to the party injured by reason of their breach. In order, therefore, to remedy the injustice which would frequently result from this restricted power of a court of law, and to secure to the party injured the identical benefits intended, by both parties, in the inception of the contract, to flow from its performance, the authority of this court extends to enforcing, by means of the process, which, for that purpose, it is enabled to use, the specific performance of the contract itself. The principle upon which this jurisdiction rests, is, that damages recovered at law would not answer the intention of the parties in making the contract. Grah. on Jurisd. 343, 344; Davis v. Hone, 2 Sch. & Lefr. 347. And the jurisdiction of courts of equity, to decree a specific performance of contracts, is not dependent upon, or affected by, the form or character of the instrument. What these courts seek to be satisfied of, is, that the transaction, in substance, amounts to and is intended to be, a binding agreement for a specific object, whatever may be the form or character of the instrument. And in all cases of this sort, courts of equity look to the substance of the transaction, and the primary object of the parties; and where that requires a specific performance, they will treat even a penalty as a mere security for its due performance and attainment. 2 Story's Eq. Jur. 22, 23. In exercising this jurisdiction, the uniform language of the books, in regard to it, is that a bill for a specific performance of an agreement, is an application to the sound judicial discretion or extraordinary jurisdiction of the Court, which is not to be exercised, where the plaintiff has so conducted himself, as to destroy all claim to its interposition. St. John v. Benedict, 6 Johns. Ch. Rep. 117. And in a subsequent case, Chancellor Kent observed :-" It is a settled principle, that a specific performance of a contract of sale is not a matter of course, but rests entirely in the discretion of the Court, upon a view of all the circumstances. The jurisdiction,' as Lord Eldon observed, (Radcliffe v. Warrington, 12 Ves. 331,) is not compulsory upon the Court, but the subject of discretion. The question is, not what the Court must do, but what it may do, under the circumstances.' A court of equity must be satisfied, that the claim for a deed is fair, just and reasonable, and the contract equal in all its parts, and founded on an adequate consideration, before it will interpose with this extraordinary assistance. If there be any well founded objection, on any of these grounds, the practice of the Court is, to leave the party to his remedy at law, for a compensation in damages." Seymour v. Delancey, 6 Johns. Ch. Rep. 224. See also, Meriwether v. Booker, 5 Litt. 256; Barry v. Deloach, 2 Dev. 398; White v. Flora, 2 Dev. 430. In order to justify its enforcement in this mode, it is necessary, first, that the contract should be complete. And if it be doubtful whether the contract has been concluded, or is still in negociation, chancery will not decree a specific performance. Carr v. Duvall, purpose a bill is filed, and a suit prosecuted in the usual way. A bill will lie for the specific performance of an 14 Peters, 77. So, a decree for a specific performance to sell lands, was refused, because a certain and definite contract was not made out, and because the party who claimed the performance, had failed to make it certain and definite, on his part, by neglecting to communicate, by return of mail, conveying to him the proposition of the vendor, his acceptance of the terms offered. lbid. Nor will a court of equity enforce a specific performance of a contract, even as between the original parties, unless its terms are clear, definite and positive; and, a fortiori, when the specific performance is sought against an assignee. Kendall v. Almy, 2 Sumner, 298. And to entitle a party to a specific performance of an agreement, the contract must not only be certain in its terms, but mutual in its character. German v. Machin, 6 Paige, 288; Colson v. Thompson, 2 Wheat. 336; Newnan v. Carroll, 3 Yerg. 18; Boucher v. Van Burkirk, 2 A. K. Marsh. 346. In order to this, in contracts relating to lands, as a general rule, equity, following the statute of frauds, will not enforce a specific performance of a parol contract for the sale of land. Barnes v. Wise, 3 Monroe, 170. And it must appear, that every part of it has been reduced to writing. Thus, where a defendant entered into a contract, in writing, to execute and deliver a deed of land, on the payment of certain notes given for the purchase-money, and made a subsequent verbal promise to deliver the deed upon payment of the notes before they should fail due, it was held, that a bill in equity against him for the specific performance of the contract, as modified by the verbal agreement, could not be sustained. Brooks v. Wheelock, 11 Pick. 439. But, a parol contract for the sale of lands, accompanied with possession, improvements by the vendee, uninterrupted occupancy, and frequent acts recognizing the sale, by the vendor, will take the case out of the statute of frauds, and authorize the Court to decree a specific performance; Brock v. Cooke, 4 Porter, 464; and this, upon the ground of fraud in refusing to perform, after performance by the other party, and to prevent the statute from being made an engine of fraud, which it was designed to prevent. Maryland Savings Institution v. Schroeder, 8 Gill & Johns. 93. And even where a bill, filed to compel a performance of a parol contract, could not be sustained, on the ground of its being a void contract within the statute of frauds, yet the Court retained the bill, and awarded an issue of quantum damnificatus, to assess the damages sustained by the plaintiff, by the acts of the defendants, as the plaintiff had sustained an injury for which he ought to be compensated, and for which he had no remedy, or, at best, a doubtful and inadequate one, at law. Phillips v. Thompson, 1 Johns. Ch. Rep. 132; Parkhurst v. Van Cortlandt, 1 Johns. Ch. Rep. 274. But, it seems, that the rule of equity, that parol contracts for the sale of real estate, are taken out of the statute of frauds by a part performance of the parol agreement, ought not to be extended to new cases, which do not come clearly within the equitable principles of the previous decisions on the subject. German v. Machin, 6 Paige, 288. Secondly;-Equity will not decree a specific performance, unless the contract be fair and reasonable, and the party seeking relief has partly performed it, and has no remedy at law. Rowinan v. Irons, 2 Bibb, 78. The contract to be performed must have been entered into upon adequate consideration, and must be free from fraud, misrepresenta. tion, or surprise; and it must not be hard, unconscionable, or unequal. Seymour v. Delancey, 3 Cowen, 445; Acker v. Phoenix, 4 Paige, 305. And where a party seeking a specific performance of a contract, insists upon obtaining an unconscionable advantage, equity will dismiss his bill. Townsend v. Alexander, 2 Hamm. 18; Modisett v. Johnson, 2 Blackf. 431. So, where, on a bill by the vendor, for specific performance of a contract for the sale of land at auction, it appears that the vendee was induced to make the purchase, by the fraudulent contrivance and management of the vendor, he can have no remedy to enforce the contract in a court of equity. Rodman v. Zilley, Saxton's N. J. Ch. Rep. 320. A contract between vendor and vendee, to entitle itself to the assistance of equity, for a specific execution, must also have originated from a pure source; and if founded upon a breach of faith by the vendor, a specific performance will not be decreed in favour of the vendee, although he be innocent of it; but he will be left to his action at law, for damages. Patterson v. Mertz, 8 Watts, 374. And the contract must not be illegal, or contrary to public policy; it being a settled principle of the common law, that no court will lend its aid to enforce the performance of a contract, which is contrary to public policy, or which was intended by the parties to contravene the provisions of a positive law. Pratt v. Adams, 7 Paige, 615. See also, per Chancellor Walworth, De Groot v. award, because the award supposes an agreement between the parties, and contains no more than the terms of that Van Duzer, 20 Wend. 393; The Gas Light and Coke Co. v. Turner, 5 Bing. N. C. 666, (35 Eng. C. L. Rep. 264;) S. C. 7 Scott, 779; S. C., in error, 6 Bing. N. C. 324, (37 Eng. C. L. Rep. 398;) Ewing v. Osbaldiston, 2 Myl. & Cr. 53; Peck v. Peck, 9 Yerg. 301. Nor will the Court of Chancery compel the specific performance of a contract, if the complainant intentionally concealed a material fact from the defendant, the disclosure of which would have prevented the making of the contract. Livingston v. The Peru Iron Co. 2 Paige, 390; Perkins v. M'Gavock, Cooke, 417. And, it being a principle of this Court, that in decreeing the specific performance of agreements, it is bound to see, that it really does that complete justice which it aims at, and which is the ground of its jurisdiction, if it appear that the party has been grossly negligent of his rights, or has abandoned his contract, equity will not afford him relief. King v. Morford, Saxt. N. J. Ch. Rep. 274. Thirdly;-As a general rule, a party, to entitle himself to a specific performance, must show that he has performed, or always been ready to perform, his part of the contract. Kendall v. Almy, 2 Sumner, 298. And, upon this principle, if a purchaser of land delay payment of the principal part of the purchase-money long after it is due, he cannot compel, in equity, the specific performance of the contract. Higby v. Whitaker, 8 Ohio, 201. But this rule is not without its exceptions. Thus, courts of equity will decree the specific performance of a contract for the conveyance of land, though the party seeking it may not, in every respect, have strictly performed his part of the agreement, if no laches are imputable to him. Low v. Treadwell, 3 Fairf. 441. But the Court of Chancery will not decree the specific performance of a contract to purchase, where the vendor is unable to give a valid title to the premises, unless it appear from the contract, that the understanding of the parties was, that the purchaser should take the risk of the goodness of the title which the vendor was to give. A specific performance will, however, be decreed, when the vendor is able to perform his agreement in substance, although there be a trifling variation in the description of the premises, or a trifling incumbrance on the title which cannot be removed, which is a proper subject of compensation to the purchaser. Thus, it is no valid objection to the title of a vendor, that the conveyance under which he holds the premises, contains a reservation of mines and minerals and water privileges, if, from the evidence, there be no reason to suppose that there are any minerals or water privileges on the premises. So, also, as the law does not regard trifles, a reservation of a pepper-corn, or any other rent which is merely nominal, is not a valid objection to the title of the vendor, who holds subject to the payment of such nominal rent. Winne v. Reynolds, 6 Paige, 407. But the Court will not decree the performance of a contract for the sale of land, where there is a failure of title as to an undivided portion thereof, which the vendee has not agreed to take at his own risk: though, if the vendor have executed a conveyance of the land, with warranty, the Court will not rescind the sale, but will leave the grantee to his legal remedy upon the covenant in his deed. Bates v. Delavan, 5 Paige, 299. Fourthly;-The jurisdiction of equity, in relation to the specific performance of contracts, does not proceed, (as is sometimes erroneously supposed,) upon any distinction between real and personal estate; but upon the ground, that damages at law may not, in the particular case, afford a complete remedy. Thus, courts of equity will decree performance of a contract for land, not because of the particular nature of land, but because the damages at law, which must be calculated upon the general value of land, may not be a complete remedy to the purchaser, to whom the land purchased may have a pecu. liar and special value. 2 Story's Eq. Jur. 24. This is its appropriate office. Morgan v. Morgan, 3 Stew. 280. And accordingly, it will compel the specific execution of an award for the conveyance or release of land; Jones v. Boston Mill Corporation, 4 Pick. 507; Pawling v. Jackman, Litt. Sel. Cas. 1; or of a bond, with a penalty, conditioned for the conveyance of land. Ensign v. Kellogg, 4 Pick. 1. And on a bill for the specific performance of an agreement to convey lands, a deed was decreed to be executed in the terms, and according to the description of the lands, contained in the agreement, though according to the description thus used, it would seem to extend the land beyond the known boundaries of the tract. Pedens v. Owens, 1 Rice's Eq. Rep. 55. This, however, must not be understood as conflicting with the rule, that a court of equity will not decree the specific performance of a contract, to the letter, where, from change of circumstances, mistake or misapprehension, it would be unconscientious so to do. The agreement ascertained by a third party, and then the bill calls only for a specific performance of an agreement in Court may so modify the agreement, as to do justice, as far as circumstances will permit, and will refuse execution, unless the party seeking it will comply with such modification as justice requires. Bank of Alexandria v. Lynn, 1 Peters, 376. Where the specific performance of an agreement respecting lands will be decreed in equity, between the contracting parties, it will also be decreed between all claiming under them in privity of estate, or representation of title, no controlling equities intervening. Hays v. Hall, 4 Port. 374. Fifthly;-As a general rule, also, a court of equity will decree a specific performance of a contract for the sale of lands, if the vendor be able to make a good title at any time before the decree is pronounced. Hepburn v. Dunlap, 1 Wheat. 179; Pierce v. Nichols, 1 Paige, 244. But not where the defendant may be materially injured by the delay. Dutch Church in Garden St. v. Mott, 7 Paige, 77; Nodine v. Greenfield, 7 Paige, 544. Nor where time is of the essence of the contract. Wells v. Smith, 7 Paige, 22; S. C. 2 Edw. 78. Subject to the limitations which have been adverted to, the powers of equity are restricted only by the circumstances affecting the justice of each particular case; and although, as has been remarked, the power of this court, in this respect, is more usually applied in cases of agreements affecting real estate, yet it is well settled, that it may sustain a bill of this character, in the case of personal covenants sounding in damages, and which have no concern with real estate. Thus, if one having the legal title to a chattel, agrees in writing for a valuable consideration, to hold it subject to the order of the plaintiff, but subsequently assigns it to another, with notice of the agreement, the plaintiff may maintain a bill in equity against the assignee, for a specific performance of the agreement. Clark v. Flint, 22 Pick. 231. So, equity may decrce the performance of a general covenant of indemnity, although it sound only in damages. Champion v. Brown, 6 Johns. Ch. Rep. 406; Brown v. Haff, 5 Paige, 235. There are cases, also, in which this Court may award damages in lieu of a specific performance. Thus, where a party has put it out of his power to perform specifically, yet, a bill filed for specific performance will be retained, and an equivalent in damages awarded, to be assessed on reference to a Master, or to a jury upon an issue of quantum damnificatus, according to the circumstances. Woodcock v. Bennet, 1 Cowen, 711. This relief is, however, in general, confined to cases where the fulfilment of the contract has become impossible in consequence of the act of the defendant, done after bill filed, or where the act is unknown to the plaintiff, when he files his bill. But where no action could be sustained at law, but a bill might have been supported in equity, this restriction does not apply. Hence, where a parol contract was sought to be enforced on the ground of part performance, and no action could have been brought for damages, it was held to be no objection to the bill, that it was filed after the defendant had put it out of his power to perform, and that this fact was known to the plaintiff, inasmuch as, in such a case, the assessment of damages, through this Court, was the only remedy. Wiswall v. M'Gowan, 1 Hoff. Ch. Rep. 125; Jervis v. Smith, 1 Hoff. Ch. Rep. 470. And it has been held, that, where from the nature of the contract, a specific performance cannot be decreed, the party aggrieved is entitled to compensation in damages, for the non-performance of the agreement; and such compensation was awarded, in equity, upon a bill for the specific performance of an agreement, that at the expiration of a building lease, the buildings and machinery should be valued by three indifferent persons, one to be chosen by each party and the third to be mutually chosen by them, or in case of their disagreement, then by the two who should have been chosen by the parties; it appearing that one of the parties had chosen an appraiser, but the other had refused to choose one, and the Court having no power to compel him to do so. Copper v. Wells, Saxt. N. J. Ch. Rep. 10. See also, Hatch v. Cobb, 4 Johns. Ch. Rep. 560; Kempshall v. Stone, 5 Johns. Ch. Rep. 194; Pratt v. Law, 9 Cranch, 492. In conclusion;-the filing of a bill for a specific performance gives the Court jurisdiction, for the purpose of doing complete justice, over the complainant, as well as the defendant. And where a bill was filed by the vendee against the vendor, for a specific performance of a sale of real estate, it was held to be the duty of the Court, in the decree against the defendant, for a specific performance, to give the necessary directions to compel the complainant to perform the contract on his part. This principle applies equally to every case, in which any thing remains to be done by the complainant. Clark v. Hall, 7 Paige, 382. another shape.(1) An infant cannot sustain a suit for the specific performance of a contract, because the remedy is not mutual.(2) In enforcing a specific performance the Court exercises a discretion, and refuses its aid in the case of a mistake, though no fraud appear.(3) In the reception of parol evidence there is considerable difference, whether it is offered to support or to resist a specific performance. Parol evidence offered by the *plaintiff to constitute, vary or explain a contract [ *490 ] in writing concerning land, of which he seeks the specific performance in a court of equity is rejected, but parol evidence of fraud, mistake, or surprise, may be read as a ground of defence against a specific performance,[a] and it is open to the defendant to show circumstances dehors the agreement making it inequitable to interpose for the purpose of a specific performance.(4) Although parol evidence cannot be received to contradict a written agreement, yet, in a bill for specific performance, the party to be charged is let in to show that under the circumstances, the plaintiff is not entitled to have the agreement specifically performed, and there are many (1) Wood v. Griffith, 1 Swanst. 54. (3) Mason v. Armitage, 13 Ves. 25. (2) Flight v. Bolland, 4 Russ. 298. [a] The general principles, upon which the jurisdiction of equity, in cases of fraud, accident, and mistake, is founded, in discharging a party from the obligation of a contract, however solemn, are equally applicable, when it is the subject of a bill for a specific performance. Livingston v. Peru Iron Co., 2 Paige, 390. Parol evidence is admissible, in equity, to establish these facts. Inskoe v. Proctor, 6 Monroe, 316; Abbee v. Goodwin, 7 Conn. 377; M'Mahon v. Spangler, 4 Rand. 51; Pooser v. Tyler, 1 M'Cord's Ch. Rep. 18; Gibson v. Watts, 1 M'Cord's Ch. Rep. 490; Holmes v. Simons, 3 Desau. 149; Lloyd v. Ex'rs of Inglis, 1 Desau. 333; Anderson's Ex'r v. Bacon, 1 A. K. Marsh. 50; Fishback v. Woodford, 1 J. J. Marsh. 86; Love v. Cofer, 1 J. J. Marsh. 327; Williams v. Beazley, 4 J. J. Marsh. 580; Thompson v. Patton, 5 Litt. 74; Dwight v. Pomeroy, 17 Mass. 303; Bradbury v. White, 4 Greenl. 391; Meads v. Lansingh, I Hopk. 124; Moran v. Hays, 1 Johns. Ch. Rep. 343; Stevens v. Cooper, 1 Johns. Ch. Rep. 429; Leinaster v. Burckhart, 2 Bibb, 28; Wesley v. Thomas, 6 Har. & Johns. 24; Randall v. Phillips, 3 Mason, 378; Watkins v. Stockett's Adm'r, 6 Har. & Johns. 435; Dickenson v. Dickenson, 2 Murph. 279; Baugh v. Ramsey, 4 Monroe, 158; Huston's Ex'r v. Noble, 4 J. J. Marsh. 134; Fenwick v. Ratliff, 6 Monroe, 154; Croome v. Lediard, 2 Myl. & Keen, 260, (7 Eng. Ch. Rep. 357-362;) Anderson v. Hutchinson, 4 Litt. 296; Church's Lessee v. Church, 4 Yeates, 280; Harrison v. Talbot, 2 Dana, 255; Steere v. Steere, 5 Johns. Ch. Rep. 1; Timberlake v. Parish's Ex'rs, 5 Dana, 258; Wilkinson v. Wilkinson, 2 Dev. Eq. Rep. 376; Brown v. Haven, 3 Fairf. 179; Elder v. Elder, 1 Fairf. 179; Howell v. Hooks, 2 Dev. Eq. Rep. 258; Moore v. Edwards's Ex'rs, 1 Bail. 23; Reed v. Clarke, 4 Monroe, 18; Wells v. Hodge, 4 J. J. Marsh. 121; Morris v. Morris, 2 Bibb, 311; Blanchard v. Kenton, 4 Bibb, 451; Ratcliffe v. Allison, 3 Rand. 537; 2 Story's Eq. Jur. 746; 1 Phill. Ev. 566-578, (Cowen & Hill's edition.) |