Reports of CASES ARGUED and DETERMINED in

the COURT of the VICE-CHANCELLOR OF

ENGLAND

during the time of the Right

during

Honorable Sir THOMAS PLUMER, Knight. 1815, 1816. By HENRY MADDOCK, Esqr., Barrister-at-Law. Vol. I. 1817.

[1] HOWELL v. GEORGE. July 4, 1815.

Specific performance refused of an agreement, to sell an estate in fee, by one who supposed he was absolute owner of the estate, when he was only tenant for life under a settlement, with a proviso empowering him to purchase "an estate in fee-simple in possession, in some convenient place or places in England, of equal or better value, and to settle the same to him in lieu of the settled estate, which was then to be his own."

This was a bill for a specific performance; and prayed, that the agreement might be specifically performed; and that the Defendant might be decreed to do and execute all acts necessary to be done on his part, for making a good title and conveyance in fee-simple of the premises, free from the land tax and other encumbrances, to the Plaintiff, his heirs and assigns, or as he should appoint.

The agreement was as follows:-"Be it remembered that it was agreed, this 21st day of March 1804, between John George, of Cherrington, in the county of Gloucester, gentleman, of the one part; and Thomas Howel, of the Bourne, in the parish of Stroud, in the [2] said county, maltster, of the other part; as follows: The said John George, for and in consideration of the sum of one pound and one shilling, to him now paid, and of the sum of £1498, 19s. and £5000 to be paid at the time and in manner as hereinafter is mentioned, with interest for the same from the 25th day of March now instant, doth hereby, for himself, his heirs, executors and administrators, covenant, promise and agree to and with the said Thomas Howel, his heirs and assigns, that he, the said John George, his heirs, executors, administrators, or assigns, shall and will, on or before the 25th day of March 1805, by such conveyance and assurances, ways and means in the law, as he the said Thomas Howel, his heirs or assigns, or his or their counsel or solicitor, shall reasonably advise, devise and require, and cause all proper and necessary parties to join therein, well and sufficiently release, convey and assure, unto the said Thomas Howel, his heirs or assigns, or to such person or persons as he or they shall direct or appoint, free from all encumbrances and the old land tax, all those several messuages, tenements or dwelling-houses, &c. [describing the premises]: And that the said Thomas Howel shall and may receive the rents from all the premises from the 25th day of March now instant. And the said Thomas Howel, for the consideration before expressed, doth hereby, for himself, his heirs, executors and administrators, promise and agree to and with the said John George, his heirs and assigns, that he the said Thomas Howel, his heirs, executors, administrators, some or one of them, shall and will well and truly pay, or cause to be paid, unto the said John George, his heirs or assigns, V.-C. I.-1

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the sum of £1498, 19s. on or before the [3] 25th day of April now next ensuing; and the further sum of £5000 on or before the 25th day of March 1805, with lawful interest for the said sum of £5000 from the 25th day of March now instant.(Signed) JOHN GEORGE, THOMAS HOWEL; witness, GEORGE WATHEN: one guinea having been paid in part."

By a settlement made previous to the marriage of the Defendant, the premises in question were conveyed by Peter Leversage the elder, since deceased, the father of the Defendant's wife, to Peter Leversage the younger, and William George, and their heirs, to the use of said Peter Leversage the elder, and his assigns, till the marriage of Defendant and his said wife; and after the solemnization thereof to the use of said Peter Leversage the elder, and his assigns, for his life, with remainder to the use of said Peter Leversage the younger, and William George, and their heirs, during his life, to preserve contingent remainders; with remainder to the use of Frances Leversage, wife of Peter Leversage the elder (since dead), and her assigns, for her life; with remainder to the use of said Peter Leversage the younger, and William George, and their heirs, during her life, to preserve contingent remainders; with remainder to the use of Defendant, and his assigns, for life; with remainder to the use of said trustees and their heirs, during the life of Defendant, to preserve contingent remainders; with remainder to the use of Elizabeth Leversage, the wife of Defendant, and her assigns for her life, with remainder to said trustees and their heirs, in like manner to preserve contingent remainders; with remainder to the use of the first and other sons of the body of the Defendant and his said wife, severally and successively in tail general, with remainder to the use of [4] all and every the daughter and daughters of the bodies of Defendant and his said wife, as tenants in common in tail, with remainder, in default of such issue, to the heirs of the body of Defendant's said wife; with remainder to the use of John Leversage, the grandson of said Peter Leversage the elder, his heirs and assigns for ever. And in the settlement was contained the following proviso: "Provided also, and it was thereby further declared and agreed, by and between all said parties to said indenture, that in case Defendant, when he should be in possession of said premises by virtue of the limitations thereof therein before made to him, should settle, convey, and assure other lands and tenements of an estate of inheritance in fee-simple, in possession, in some convenient place or places in England, of equal or better value than the said premises thereby granted and released, and in lieu and recompence thereof, unto and for such and the like uses, intents and purposes, and upon such and the like trusts, and under and subject to such encumbrances as the said premises were thereby settled and assured unto; and in such case, and at all times from thenceforth, all and every the uses, trust or trusts, estate and estates thereon, before limited, expressed, and declared of or concerning the same, should cease, determine, and be utterly void to all intents and purposes; and the same premises should from thenceforth remain and be to and for the only proper use and behoof of Defendant, his heirs and assigns, for ever, and to and for no other use, intent or purpose whatsoever, anything therein contained to the contrary notwithstanding."

The Defendant at the time of the agreement was in fact only tenant for life in possession. His son, the issue of the marriage, attained twenty-one in December 1808, [5] and, together with the Defendant's wife, refused to join in a recovery or conveyance. The Defendant by his answer swore that, at the time he entered into the agreement for the sale of the estate, he erroneously conceived (being altogether unacquainted with matters of law, and not having, to his recollection or belief, perused said settlement since his marriage, nor remembering the contents thereof) that Defendant either had such an interest in the estate, or such a power over the same, as would enable him, with the concurrence of his wife, to sell the estate absolutely, without any restriction whatsoever.

Mr. Hart and Mr. Fisher, for the Plaintiff, contended that the Defendant ought either forthwith to procure his son to suffer a recovery of the premises comprised in the agreement, in favour of the Plaintiff, and to join himself, and procure his wife, and all other necessary parties, to join with his son in suffering such recovery, and in doing all other acts necessary for making a good title and conveyance to the Plaintiff; or, that the Defendant ought forthwith to exercise the power vested in him

by the proviso, and make a settlement of other premises of equal value, in compliance with such proviso; and also to do any other acts which might be necessary on his part, and also procure all other necessary parties to concur in all acts necessary to enable him to make a good title and conveyance of the premises to the Plaintiff, pursuant to the agreement. They cited Barrington v. Horne (2 Eq. Cas. Abr. 17), Withers v. Pinchard (7 Ves. 475), and Hall v. Hardy (3 P. Wms. 187).

[6] Sir S. Romilly and Mr. Horne, for the Defendant, argued that the agreement was made under a mistake as to the Defendant's power over the estate; and that the Court should not by its decree, under the circumstances, compel the Defendant to procure his wife and son to join in a recovery, or to act under the proviso.

THE VICE-CHANCELLOR [Sir Thomas Plumer]. The Defendant thought, when he entered into the agreement, he had an absolute power over the estate, but has since found he is only tenant for life, and his wife and son refuse to join with him in suffering a recovery, so as to enable him to perform his agreement. He is willing to convey as far as he can, and to compensate the Plaintiff for any injury he may have sustained. It is contended that the Defendant ought to be compelled to procure his wife and son to join with him in a recovery; or that, under the proviso, he ought to acquire a fee in the lands in question, and convey them to the Plaintiff.

It was not much pressed in argument that he ought to be decreed to procure his wife and son to join in a recovery. It could not be argued that a man should be compelled to use his marital and parental authority to compel his wife and son to do acts which ought only to be spontaneously done. In Hall v. Hardy (3 P. Wms. 189), the Master of the Rolls says, there have been an hundred precedents where, if the husband, for a valuable consideration, covenants that his wife shall join with him in a fine, the Court has decreed the husband to perform his covenant; and in Morris and Stephenson (7 Ves. 474), [7] a husband was, under the circumstances, decreed to procure his wife to join in a surrender of a copy hold estate; but in Emery v. Wase,(1) Lord Eldon reviews the cases, and expresses great doubt, whether under a contract by a husband to sell the estate of his wife, the Court will decree him to procure her to join. (2) In Davis v. Jones (1 New Rep. 267), the Chief Justice of the Common Pleas, Sir James Mansfield, who was very conversant in the doctrines of a Court of Equity, thought nothing could be more absurd than to allow a married woman to be compelled to levy a fine through the fear of her husband being sued and thrown into gaol, when the general principle of the law was, that a married woman shall not be compelled to levy a fine. Those cases in which a husband was compelled to make his wife concur have been where he has agreed she should convey, and her consent might be supposed to have been previously obtained; but in this case there is no pretence that the Defendant agreed that his wife and son should join in a recovery. None of the cases have gone so far as to say a father can be compelled to procure his son to join in a recovery.

With regard to the second point, the compelling of the Defendant to make a title, by means of the power given by the proviso, the case is entirely new. The difficulty of proceeding under the power is very great. By the terms of the proviso he must find an estate of inheritance in fee-simple, in some convenient place or places in England, of which he is to judge, and of equal [8] or better value. He may object that he is unable or unwilling to purchase an estate of greater value; and those interested in the present estate would object to his purchasing an estate of less value; so that the Defendant must procure an estate of exactly equal value. Can the Court decree this, when it is so uncertain whether it can be performed during the Plaintiff's life? Who is to look out for the estate? Who are to be consulted about the title? Then the estate is to be in a convenient situation. Is the Court to try this? Is it to be referred to the Master to say what is a convenient situation? If the Defendant, from the pecuniary inability which he is now stated to be under, should forbear to make the purchase of another estate, when one answering all the necessary requisites has

(1) 8 Ves. 505, on appeal from the determination at the Rolls, reported 5 Ves. 846. (2) See Brick and Whelley, 9th Feb. 1721. Dom. Proc. Lord Harcourt, in his MS. Tables, thus states the result of that case :-"No agreement of the husband to part with the wife's inheritance shall bind the wife, or be carried into execution."

been found, is the Court to grant an attachment against him on account of that inability? Such a proceeding might be warranted if the Defendant had expressly contracted to make such a purchase; but would it be equitable in the present case, where no such contract was made or intended? What a source of litigation might be occasioned by the necessity of applying to the Court to enforce the decree by attachment in every case in which the parties might differ as to the locality, value, or title of the new estate; and how difficult would it be to decide such questions satisfactorily, or to compel the purchase by a reluctant purchaser. The indefinite protraction of a termination of the suit during the pendency of those questions, and the consequential suspense of the rights of the parties, and the knowledge or enjoyment of their property in the meantime, together with the expense as well as delay of such proceedings, constitute additional objections to the proposed decree. These, and other difficulties that might arise, shew the impropriety of decreeing a specific performance through the medium of this proviso.

[9] The Court has a discretion as to decreeing a specific performance (White v. Damon, 7 Ves. 35); and no authority has been cited to shew that the Court will decree a specific performance in a case circumstanced like this. The Plaintiff is not without remedy. He may at law recover in damages a compensation for the injury he has sustained.

Five years have elapsed between the date of the agreement and the filing of the bill. In excuse of that, it is said the Plaintiff would not proceed till the son attained twenty-one, in hopes that he would join in a recovery.

There are many cases in which a specific performance has been refused, where the execution of the agreement would operate with considerable hardship on the Defendant. Fain v. Brown (2 Ves. 307) is a strong case of that description (1).

(1) In Lord Harcourt's MS. Tables there is the following passage: "Equity will not carry unreasonable agreements into execution. Bryan v. Wooley, 9 Feb. 1721, and Carrol and Chamberlain, 14 July 1721, and Top and Stanhope, 24 March 1720." The cases here cited were determined in the House of Lords. They are cited also in illustration of the same doctrine by the author of "Grounds and Rudiments," &c., p. 76, together with Green v. Green, Dom. Proc. 25 Jan. 1710, and Thomson v. Harcourt, Dom. Proc. 13 Feb. 1721. Moody and Stewart, Dom. Proc. 28 Feb. 1728. And see Vaughan v. Thomas, 1 Bro. C. C. 556, and Square v. Baker, Dom. Proc. 27 Feb. 1726. The following case, of which the reporter has a MS., is in conformity with the doctrine of the cited cases :

Southwell v. Nicholas and Abdy. At the Rolls, March 2, 1732.

The Plaintiff's father having several houses in Spring Gardens, and the Defendant Nicholas's brother having likewise some houses there, agree, by parol, jointly to purchase two old houses, and to pull them down in order to make a passage for coaches into Spring Gardens. They appoint Defendant Abdy to buy these two houses, in trust for them, and afterwards treat by letters about a proper method to be taken in pulling down these houses, and making a passage. The houses were pulled down, and Plaintiff's father paid his moiety of the purchase-money and dies; Defendant's brother dies, and being much in debt, his estates are sold by a decree for the payment of them.

Plaintiff now brings his bill for a specific performance of this parol agreement, that Defendant Nicholas should pay his moiety of the purchase-money; that Defendant Abdy should execute a deed of declaration of the trust; and that a passage should be made according to the said agreement.

For Defendants, it was said that as the houses which belonged to the Defendant Nicholas were sold by a decree of this Court, it would be most unreasonable to carry this agreement into execution; for that he would now have no benefit by the making of this passage, nor would there be any consideration accruing to him for the expense he would be at, which would be a very hard case. It was likewise insisted upon, that as no time was limited for the performance of this agreement, this Court would not decree a performance of it, and to that purpose cited a case in 2 Chan. Rep. fol. 17.

Master of the Rolls [Sir Joseph Jekyll]. The agreement appears by the Defen

[10] A Court of Equity will not decree a specific performance of an agreement, when from the circumstances it [11] is doubtful whether the party meant to contract to the extent that he is sought to be charged (Harnett v. Yielding, 2 Sch. & Lefr. 554). Did this Defendant intend to contract to the extent he is sought to be charged? He never contracted to purchase another estate to enable him to convey the estate agreed to be sold.

It is competent to the Court, in the exercise of its discretion, as to decreeing a specific performance, to consider the circumstances under which the agreement was obtained (Marquis Townshend v. Stangroom, 6 Ves. 339). A mistake in a contract may be remedied. Here the party agreed under a mistaken notion that he was the owner of the fee. In Costigan v. Hastler (2 Sch. & Lefr. 166), Lord Redesdale says, "When a person undertakes to do a thing which he can himself do, or has the means of making others do, the Court compels him to do it, or procure it to be done, unless the circumstances of the case make it highly unreasonable to do so." He then puts the case of a mortgagor agreeing with a tenant for a lease. The tenant, says he, has a right to say, "You shall either obtain the consent of the mortgagee or redeem the mortgage; or, if you complain of the hardship of this, you shall rescind the contract. A Court of Equity," he continues, "may not compel the mortgagor, if highly inconvenient, to [12] pay off the mortgage for the purpose of giving effect to the contract; but then he shall not enforce it against the tenant, if the tenant does not wish to abide by it. If the tenant will not give up the contract, the Court might say, it should not be specifically enforced against the landlord, under such circumstances; and leave the tenant to seek his compensation in damages at law." This case is not exactly the present, but it comes very near it, and strongly applies.

The want of mutuality in a contract is a sufficient ground for refusing a specific performance (Armiger v. Clarke, Bunb. 111). Was there mutuality in this contract? Could the Defendant have insisted on the Plaintiff's waiting till he could procure the estate by means of his power under the proviso? Certainly not.

This is not a case where a specific performance ought to be decreed. The Plaintiff must be left to his remedy at law. The Defendant was very blameable in not looking into his title before he made the agreement; but all the authorities are against a decree for a specific performance in a case circumstanced like the present.

The bill must be dismissed, but without costs.

Mr. Horne suggested the propriety of the Vice-Chancellor's suspending his direction as to costs till the Plaintiff agreed to do what was right in regard to future proceedings; and read parts of the Defendant's answer, and proposed to read a deposition, not read in the cause.

[13] THE VICE-CHANCELLOR. Wherever the consideration of costs can be introduced in the argument of the case, it is proper it should; for it is very inconvenient after a cause is decided to go again into the merits of the case to determine the

dant Nicholas's answer, as well as by the letters that passed, either of which would be sufficient for us to carry it into execution. But this case goes much farther; the agreement is in part executed; the houses are pulled down, the money paid, and with no other reason than for the opening of the passage: any of these facts would bring the case out of the Statute of Frauds and Perjuries. But then we must take care that this be a reasonable agreement: for we must not assist when the demand is against reason. And that he the Plaintiff had been rather too hard in the contract, to make the Defendant pay for half of the two old houses, when his estate, that was to have the benefit of this passage was much larger than the Defendant's.

As to no time being mentioned for the performing this agreement, there had been many resolutions where this Court had decreed a performance in a reasonable time; so it is likewise in common law; and was clear that this objection would not make void the agreement. As to the Defendant's having sold the estate, he owned that made the case somewhat hard; but he supposed the estate was sold accordingly. He seemed inclined to decree that both parties should pay for the old houses in proportion to the value of their estates to be benefited by this passage: upon which it was agreed by the parties, that Plaintiff should pay two-thirds, and the Defendant one; and that a passage should be made according to the agreement.