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undertook for a certain responsibility while the goods were in the house; and it was at the plaintiff's option to have them there or elsewhere, as he pleased. If they were lost by fire when elsewhere the loss was not one against which the defendant had undertaken to insure him. Nor was defendant called upon to cancel the policy by reason of the goods being removed from the building where they were insured. If the dwelling-house had been repaired, and the goods restored to it, the policy would again have covered them; and this, for any thing that appears to the contrary, may have been what both parties desired. At any rate, it does not appear that the plaintiff desired the policy cancelled; and if he had desired it, the cancelment would have been optional with defendant.

The cases of Hartford Ins. Co. v. Farrish, 73 Ill. 166; Annapolis, etc., R. Co. v. Baltimore Fire Ins. Co., 32 Md. 37; S. C., 3 Am. Rep. 112; and Bryce v. Lorillard Ins. Co., 55 N. Y. 240; S. C., 14 Am. Rep. 249, support the views here expressed, and are decisive.

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regular, and that judgment was entered in favor of said Larrabie against said Northwestern Company in said action, and defendants held said bullion by virtue of said writ of attachment.

3. That at and prior to the shipment of the bullion in controversy in this case there was an express contract between plaintiff and the Northwestern Company, that in consideration of advances to be made by plaintiff to said company in carrying on its mining operations, said company would ship to plaintiff its products of bullion, which was to be credited to its account.

4. That at the time said bullion was shipped said plaintiff had advanced to said company upon the faith of said contract about the sum of $6,000, which stood as a charge against said company, and is yet unliqui dated and unsettled.

5. That said bullion was in accordance with the terms of said contract shipped, marked and consigned to said plaintiff, and placed in possession of and received by Gilmer & Salisbury, common carriers of freight and express matter, upon a contract at special rates, to be paid at Helena, Montana, by plaintiff, upon receipt of said bullion by it, at said place, said charges for freight to be charged to the account of said company.

6. That said bullion was to be credited to the account of said company upon a sale thereof by plaintiff and that said account was a running account.

7. That after such bullion was so shipped and con

BILL OF LADING - TITLE, WHEN PASSES ON signed to said plaintiff, and while in possession and

SHIPMENT.

SUPREME COURT OF MONTANA, JAN. 29, 1885. FIRST NATIONAL BANK OF HELENA V. MCANDREWS.* The transmission of a bill of lading by the consignor to the consignee is a delivery of the possession of the goods covered by it, and the title to the property shipped thereby passes from the former to the latter. But the mere shipment of goods, in pursuance of a contract between the consignor and consignee whereby the former was to pay the freight, and the latter, after he had sold the goods, was to credit the proceeds to the account of the consignor, does not vest the title to the property shipped in the consignee, in the absence of a bill of lading or notice of the shipment to him.

A

PPEAL from the Second District Court of Deer
Lodge County. The opinion states the facts.
J. C. Robinson, for appellants.

E. W. & J. K. Toole, for respondent.

WADE, C. J. This was an action of claim and delivery in which the plaintiff sought to recover the possession of certain cases of silver bullion shipped to it by the Northwestern Company at Phillipsburg, and while en route, seized by attachment in an action by Samuel E. Larrabie against said Northwestern Company. The case was tried to the court, who made certain findings of fact, and thereon rendered a judgment in favor of plaintiff, from which, and an order overruling a motion for a new trial, the defendants appeal to this court. The facts found by the court are as follows:

1. That the bullion described in plaintiff's complaint was produced from the Northwestern Company, and was shipped by it to Helena, consigned to plaintiff.

2. That the same was seized by defendants, McAndrews and Smith, under a writ of attachment, while in transit, in an action by defendant Larrabie against the Northwestern Company, and that defendants, McAndrews and Smith, were at said time the sheriff and deputy sheriff of Deer Lodge county, Montana, and that all the proceedings to obtain said writ were *S.C., 5 West Coast Rep. 636,

custody of said carriers en route to its destination, the same was attached at the suit of Larrabie, and levied upon by his co-defendants as the officers charged with the execution of said process, on the 31st day of May, 1879, at Deer Lodge city, Montana.

8. That said property was at said time of the value of $3,000, and was, and still is, detained by defendants.

The bullion in question, having been "billed, shipped, marked and consigned" to the respondent under and by virtue of the contract mentioned in the findings of fact by the court, and placed in the possession of the common carrier, did the possession of and property in the bullion thereby become vested in the respondent, or did such possession and property remain with the Northwestern Company until the bullion had been actually received by the respondent and credited to the account of the company?

There was no bill of lading transmitted to the bank, and no letter or notice informing it that the bullion had been shipped. The advances by the bank had been made prior to the shipment, and the situation was as if the shipment had been made under a contract in satisfaction of antecedent advances.

We shall have to consider what effect the absence of a bill of lading and of notice of the shipment to the bank had upon the rights of these parties. A bill of lading is a commercial instrument, and is a written acknowledgment signed by the master of a vessel, or by a common carrier, that he has received the goods therein described from the shipper, to be transported on the terms therein expressed to the described place of destination, and there to be delivered to the consignee, or parties therein designated. Abb. Shipp. 7 Am. ed. 323; O'Brien v. Gilchrist, 34 Me. 558; 1 Para. Shipp. 186; Machl. Shipp. 338; Emirigon Ins. 521.

A bill of lading is a symbol of the ownership of the goods covered by it; a representative of the goods. It is regarded as so much cotton, grain, iron or other articles of merchandise. The merchandise is very often sold or pledged by the transfer of the bill of lading which covers it. Shaw v. Railroad Co., 101 U. S. 564, 565. Hence it is held by the authorities that the transmission of a bill of lading by the consignor to the con

signee is a delivery of the possession of the goods covered by it, and that thereby the title to the property passes from the consignor to the consignee. See Hille v. "Smith, 1 B. & P. 563; Desha v. Pope, 6 Ala. 690; Gibson v. Stevens, 8 How. 384; Grove v. Gilmor, id. 429; Bryans v. Nix, 4 M. & W. 775; Anderson v. Clark, 2 Bing. 20; Holbrook v. Wright, 24 Wend. 169; Grosvenor v. Phillips, 2 Hill, 147; Sumner v. Hamlet, 12 Pick. 76; Nesmith v. Dyeing Co., 1 Curt. 130; Valle v. Cerre, 36 Mo. 575.

The transmission of a bill of lading amounts to the actual delivery of the possession of the property described in it, and is a compliance with the statute of frauds as to the sale and delivery of property. The contract mentioned in the findings was an executory contract, to be completed by the delivery of the bullion therein described. Knight, the cashier of the bank, testifies that the bullion was to be delivered to the bank at Helena. In the absence of a bill of lading, or a letter or notice from consignor to consignee informing him of the shipment of bullion, is the fact that the bullion in question was "billed, shipped and marked and consigned " to the respondent, such an appropriation of the property to the contract as completes a bargain and sale, and delivers the possession thereof to the purchaser? If the consignor had done some conclusive, unconditional act, by which the consignee was, or was to be, informed that the bullion shipped was to be applied on the consignor's account for money advanced, then undoubtedly the delivery of the property to the common carrier, properly marked and addressed, would have been a delivery to the consignee, and an appropriation of the property to the contract. But the mere shipment of the property without notice was not such conclusive act. The shipment did not bind the consignor. He did not thereby lose his control over the property. He might have stopped it while en route to its destination, and sent it to some other place or person. By the terms of the contract the company, the consignor, was to pay the freight, and the bullion was not to be credited to the account of the company until it had been received and sold by respondents. There was something to be done besides a delivery to respondent: "Said bullion was to be credited to the account of the company upon a sale thereof by plaintiff." The respondent had no right to make this credit until the sale of the bullion. When the property was sold the proceeds belonged to the respondent. If there was to be no credit until a sale, what property passed until a sale had been made? There must be an acceptance as well as a delivery. Suppose this bullion had been "billed, shipped and marked" at double its value, would the consignee have been bound by the valuation of the consignor? The carrier had no right to accept of the property for the consignee; the value was to be ascertained by a sale, and then, and not until then, had the consignee any right to make the credit.

In the case of Johnson v. Cuttle, 105 Mass. 449, the court says: "A common carrier, whether selected by the seller or by the buyer, to whom the goods are intrusted, without express instructions to do any thing but to carry and deliver them to the buyer, is no more than an agent to carry and deliver the goods, and has no implied authority to do the acts required to constitute an acceptance and receipt on the part of the buyer, and to take the case out of the statute of frauds. The steamboat company having no authority to receive and accept the goods so as to bind the buyer, and there being no evidence that the buyer in person, or by any authorized agent, ever had actual possession of the goods, or opportunity to see them, or ascertain whether they conformed to his order, or ever exercised any control over them by sale or otherwise, or even received any bill of lading of the goods, the case is

within the statute of frauds, and the action cannot be maintained."

If a bill of lading had evidenced the intent and purpose of the consignor in shipping the bullion, or if this intent had been evidenced by any other conclusive unconditional act, such as a notice of the shipment to the consignee, then a delivery to the carrier in pursuance of such bill of lading or notice would have vested the title in the consignee. But in a case where the consignee had never seen or accepted the property, where there was no bill of lading or notice of shipment, the consignor paying freight, and having the right to recall the goods, or to change their destination, and the agreement under which they are shipped providing that the property shall not be credited to the account of the consignor, until the same has been actually received and sold by the consignee, then the mere act of shipment would not have the effect to vest the title in the consignee.

In the case of Halliday v. Hamilton, 11 Wall. 564, the Supreme Court of the United States says: "If this were the case of a mere agreement to ship produce in satisfaction of antecedent advances, which will not in general give the factor or consignee a lien upon it for his general balance until he obtains actual possession of it, the attachment would hold the property. But the agreement in question is of a different character, and rests on a different legal principle. It appropriates specifically 1,250 bags of corn to Hamilton & Dunnica, with an intention that they shall sell it to pay the draft drawn against it, and this appropriation did not rest in intention merely, for it was exercised, so far as the parties in St. Louis could execute it, by the transmission of a bill of lading to Hamilton & Dunnica. As soon as the corn was deposited with the common carrier, who was the bailee for that purpose, the title to it and the right of property in it was changed and vested in Hamilton & Dunnica, to whom it was delivered. This is the effect of all the cases on the subject."

This case is a clear illustration of the rule. If there was a mere agreement to ship goods or produce to pay for advances, the property shipped would not belong to the consignee until actually received and possessed by him. But if the agreement appropriates specific property to the payment of such advances, and such appropriation is evidenced and authenticated by a bill of lading, then the title to the property passes to the consignee by a delivery thereof to the carrier.

In the case of Hodges v. Kimball, 49 Iowa, 577, the facts were that in the spring of 1875 the plaintiffs and W. H. Valleau, at Milwaukee, in the State of Wisconsin, entered into a contract whereby the plaintiffs were to advance the money to said Valleau, on his drafts drawn on them, to purchase wheat and other produce, to be shipped by him, consigned to them at Milwaukee, to be by them sold on the usual commissions, and out of the net proceeds thereof to reimburse themselves for the advances so made; that said Valleau was to forward the railway shipping receipts to plaintiffs as soon as consignments were made; that in pursuance of said contract Valleau, on the 10th day of May, 1876, shipped five car-loads of wheat consigned to plaintiffs, and delivered to the Chicago, Milwaukee & St. Paul Railway Co., and receipts given therefor; that on the same day, and after said shipment and consignment, said wheat was attached as the property of Valleau in the suit of Kimball & Farnsworth against him, and was afterward retaken upon a writ of replevin in this action. This contract and the attending facts are, in substance and effect, the same as in the case at bar. The court in deciding the case says: "The case must be determined upon the facts reported by the referee, with the additional fact that the grain was not bought with money furnished by the plaintiffs. From

the facts reported it appears that the grain in question the principle of the cases reviewed in the foregoing was shipped on the 10th of May, 1876, from Cresco. | opinion." On the same day the grain was attached at Cresco, at the suit of the defendants, as the property of W. H. Valleau. The shipping receipts were not forwarded to the plaintiffs until the 13th day of May, and did not reach them until the 15th. The advancements, on account of which the plaintiffs claim their lien, were all made before this grain was shipped [as in the case we are considering]. The facts of this case bring it upon all fours with Elliot v. Bradley, 23 Vt. 217, in which it was held that when goods are consigned to a factor under an agreement, that he shall sell them and apply the proceeds to repay the advances previously made by him to the consignors, he must, in order to acquire a valid lien upon the goods, as against the creditors of the consignor, have the actual or constructive possession of the goods."

The rule seems to be that in order to change the title to the property shipped and vest it in the consignee, there must be a bill of lading, receipt or letter of information forwarded to the consignee, or that the advancements were made upon the faith of the particular consignment. It is claimed however that this contract was an executory one, and that the shipment of the bullion completed the purchase thereof by the consignee. In answer to this it may be said that this is not a contract of purchase and sale. It is a mere loan of money, with an agreement to ship bullion as security to the loan. The shipment is not payment. The bullion has to be sold by the consignee and converted into money before any credit can be made on the account of the consignor, or applied upon the loan. This is not a purchase of bullion. A person cannot become a purchaser without his knowledge or consent. There must be an acceptance and delivery of possession. If this were a purchase, there was no acceptance of the property by the purchaser. He had never seen the property. It had never been in his possession. He did not have any notice of the shipment. He could not accept the goods even by a carrier appointed by himself.

Says Mr. Benjamin (Benj. Sales 149, § 160): "It is settled that the receipt of goods by a carrier or wharfinger appointed by the purchaser does not constitute an acceptance, these agents having authority only to receive, not to accept, the goods for their employers.' Boardman v. Spooner, 13 Allen, 353; Grimes v. Van Vechten, 20 Mich. 410; Rodgers v. Phillips, 40 N. Y. 519; Denmead v. Glass, 30 Ga. 637; Shepherd v. Pressey, 32 N. H. 49; Maxwell v. Brown, 39 Me. 98; Spencer v. Hale, 30 Vt. 315; Cross v. O'Donnell, 44 N. Y. 661: Snow v. Warner, 10 Metc. 132; Quintard v. Bacon, 99 Mass. 185; Allard v. Greasert, 61 N. Y. 1.

The court then recites the facts in the Vermont case as follows: "In this case an agreement was made between a manufacturer of cloth in the State of Vermont and the plaintiffs, who were commission merchants of New York, by which the manufacturer was to send his cloth to the plaintiffs for sale on'commission, and was to draw upon them in advance of the sales, and also in advance of sending the cloth if necessary, upon sending the invoices of the cloth forwarded, or to be forwarded, and the plaintiffs were to apply the avails of the sales to repay their advances. Under this arrangement the consignor forwarded to the plaintiffs from time to time invoices of the cloth sent and to be sent, and the cloth was then sent to forwarding merchants at Burlington, and was by them sent to the plaintiff as soon as convenient. The drafts were drawn and the acceptances charged and sales credited upon general account. No bill of lading was sent to the plaintiffs, but shipping bills were sent by the forwarding merchants to their agents in New York, describing the consignor, the consignees, and the marks upon the goods in order to guide the agents in delivering the goods to the consignees. It was held that the goods, after being sent to the forwarding merchants, and while upon the transit between Burlington to New York, remained at the risk and subject to the control of the consignors, and liable to attachment by their creditors. In fact this case is stronger in favor of the consignees than the one at bar, for the cloth was in transit, and the shipping lists had been sent to the SPECIFIC PERFORMANCE-STATUTE OF FRAUDS agents of the forwarding merchants, while in the case at bar the wheat had not moved from the place where it was shipped, and the shipping receipts still remained in the hands of the consignor."

The court also decides that the case of Davis v. Bradley, 27 Vt. 118, is not in conflict with that of Elliot v. Bradley, and cites Bank of Rochester v. Jones, 4 Comst. 497; Winter v. Coit, 3 Seld. 288; Kinlock v. Craiy, 3 T. R. 119, in support of its decision, and reviews Holbrook v. Wight, 24 Wend. 169; Grosvenor v. Phillips, 2 Hill, 147; Bailey v. Hudson R. R. Co., 49 N. Y. 70; Hille v. Smith, 1 B. & P. 563, and Krulder v. Ellison, 47 N. Y. 36, and finds that they are not in conflict with its decision. Upon a motion for a rehearing the following additional authorities were cited: Anderson v. Clark, 2 Bing. 20; Cuming v. Brown, 9 East, 506; Vertue v. Jewell, 4 Camp. 31; Patten v. Thompson, 5 M. & S. 350; Wade v. Hamilton, 30 Ga. 450; Grove v. Brien, 8 How. 429; Bryans v. Nix,4 M. & W. 774; Evans v. Nichols, 3 Man. & G. 614; Alderson v. Temple, 4 Burr. 2235; Berley v. Taylor, 5 Hill, 577; and the court in reviewing them says: "We have examined all of these authorities with care. The most of them are cases where a bill of lading, or receipt, or letter of information, was forwarded to the consignee, or advancements were made upon the faith of the particular consignment, and they fall within

We do not know upon what principle a consignee or other person can be made the purchaser of property that he has never seen or accepted, and to which pos session was never delivered, either actually or constructively.

The judgment is reversed and the cause remanded for a new trial.

PART PERFORMANCE.

MAINE SUPREME JUDICIAL COURT.

GREEN V. JONES.*

In April, 1862, G. made an oral agreement for the purchase of real estate of his brother-in-law, S., who agreed to convey the premises free from all incumbrances, when paid for. G. paid part of the purchase-money down, and entered into the possession of the premises, and thereafter retained the possession. He made payments toward the balance of the purchase-money at different times, completing the payments in 1869. At the time of the agree ment the premises were incumbered by a mortgage, and so remained incumbered until about August, 1882. In September, 1882, S. died intestate. Held, upon a bill in equity by G. against the administrator and heirs of S., that he was entitled to specific performance of the agree ment to convey.

N report. Bill in equity to which a general demurby

consent reported to the law court, upon the facts alleged, to make such decision and order such decree as the rights of the parties required.

*S. C., 76 Me. 563,

The material facts are stated in the head note and opinion.

Charles Hamlin and Jasper Hutchins, for plaintiff. H. L. Mitchell, for defendants.

FOSTER, J. The object of this bill is a specific performance of an oral agreement for the conveyance of real estate. This necessarily presupposes an agreement, and the bill must, as in all cases of this description, set out what that agreement was.

Upon inspection of the bill it will be found to be a parol contract for the sale of real estate, and therefore void by the statute of frauds. An action at law could not be sustained on this agreement. The statute for the prevention of frauds would be a barrier to the maintaining of an action upon it.

The power of this court as a court of equity then must rest on other grounds, for the specific execution of parol agreements is decreed in equity for the purpose of preventing fraud.

Heretofore, on account of limited equity powers, this court has declined to enforce specific performance of oral contracts relating to real estate, and it was not until February 28, 1874, that "full equity jurisdiction, according to the usage and practice of courts of equity in all cases where there is not a plain, adequate and complete remedy at law" was conferred upon it, with power of decreeing specific performance in cases of this kind. St. 1874, ch. 175; Stearns v. Hubbard, 8 Me. 320; Wilton v. Harwood, 23 id. 131; Pulsifer v. Waterman, 73 id. 244.

Nor will a court of equity lend its aid to the enforcement of oral contracts, unless there shall have been such acts of part performance by the party seeking relief as will be considered sufficient in equity to take the case out of the operation of the statute, and authorize a court of general equity powers in the exercise of sound discretion to decree specific perform

ance.

And it is well settled that the ground upon which courts of equity consider part performance of such contract as creating an equity to have the agreement specifically executed, is that it would be a fraud upon the party if the transaction were not completed. Parkhurst v. Van Cortland, 14 Johns. 15; Newton v. Swazey, 8 N. H. 13; Tilton v. Tilton, 9 id. 391; Malins v. Brown, 4 Comst. 410; Pulsifer v. Waterman, 73 Mo. 244; Kidder v. Barr, 35 N. H. 255.

Where there has been part performance the refusal to complete it is in the nature of a fraud, and the defendant is estopped to set up the statute of frauds in defense. Potter v. Jacobs, 111 Mass. 37; Fry Spec. Perf., § 384; Adams Eq. *86; 3 Pom. Eq. Jur., § 1409.

We must in this case then examine and ascertain what the contract was in fact, the extent of its execution by the party seeking aid, and in what the injury, hardship or fraud would consist if a performance were denied.

The contract set forth in the bill and admitted by the demurrer, was that the complainant was to pay Jeremiah G. Spaulding, now deceased, the sum of $400, $100 of which was to be paid down, and the balauce "to be paid in such sums, at such times, and in such manner as might thereafter be convenient for the complainant," and at the completion of said payments the complainant was to have a warranty deed of the premises free of all incumbrance.

It further appears that in pursuance of said agreement the complainant entered into the possession and use of the premises the next day (April 12, 1862), and has ever since, during a period of more than twentyone years, with the full knowledge and consent of the respondents' intestate, continued in the possession and use of the same; that payment in full was completed

about seven years after the contract was made, and that said Spaulding died in September, 1882, without ever having executed and delivered the deed of the premises in accordance with said contract.

The authorities are numerous that a respondent cannot avail himself of the statute of frauds, on demurrer, when a bill in equity is brought to enforce specific performance of an oral contract, although the bill admits the contract to be parol, if such bill, in addition to the contract, alleges matter avoiding the bar created by the statute, such as part performance. Harris v. Knickerbacker, 5 Weud. 638.

In the case at bar, to take the same out of the operation of the statute of frauds, the complainant relics on certain facts alleged in the bill, additional to the fact that the contract was oral, as amounting to such part performance as to give a court of equity jurisdiction to enforce specific performance of the contract.

What are these facts? The admission into possession of the premises under and in pursuance of the contract, immediately thereafter, and the open, exclusive and long-continued occupation of the same, not only during the time in which the payments were being made, but ever afterward for a period of more than thirteen years, together with full payment of the consideration or price agreed upon between the parties to the contract.

Possession of land taken by the vendee and continued from the time of the contract to the time of bringing the bill, such possession being in pursuance of the contract, is an act of part performance, taking the case out of the operation of the statute of frauds. Harris v. Knickerbacker, supra. And in this case, where the possession had been for eight years, the court says: "The possession is, in my judgment, to be considered as taken on ac count of the contract and pursuant to it; and being thus taken by the appellant and continued so long, it would be a fraud in him now to repudiate the contract. The respondent may therefore allege this possession and its continuance by his permission as a part performance available to avoid the operation of the statute of frauds."

Admission into possession having unequivocal reference to the contract, has always been considered an act of part performance. Lester v. Foxcroft, 1 Cole Parl. Cas. 108; Lead. Cas. in Eq. 774*; Morphett v. Jones, 1 Swanst. 181; 4 Kent Com. 451*; Waterman Spec. Perf., § 270

Although it was formerly held otherwise, the authorities now all agree that mere payment of the consideration alone will not take it out of the statute. Webster v. Blodgett, 59 N. H. 120; Glass v. Hulbert, 102 Mass. 28. Nevertheless possession together with payment is sufficient part performance; and this act is greatly strengthened where improvements have been made, serving to explain and define one act of part performance "to which it is itself a superadded and contributory act." Brown St. Frands, § 487; Tilton v. Tilton, 9 N. H. 390; Wetmore v. White, 2 Caines' Cas. Err. 109; Story Eq. Jur., § 763; Stark v. Wilder, 36 Vt. 755; Waterman Spec. Perf., §§ 270, 280.

The law is thus correctly stated by the Supreme Court of Vermont: "It is equally well settled that where the purchases pays the whole or a part of the purchase money, and enters into possession of the premises, or does acts relying upon the agreement, that place him in such a position that the refusal by the seller to execute the contract on his part will operate to his prejudice and injury, beyond the payment of the money, so that the repayment of the money, or the recovery of it, will not be an adequate remedy, then such acts will take the case out of the statute, and warrant a court of equity in decreeing a specific per

formance of the contract. A refusal under such circumstances to execute the contract, it is sometimes said in the books, operates as a fraud on the purchaser." Stark v. Wilder, 36 Vt. 755.

The defense here claimed by the respondents in relation to the statute of frauds cannot prevail. The facts alleged and admitted by the pleadings are sufficient to eonstitute part performance on the part of the complainant, thereby taking the case out of the statute and entitling him to a decree for specific performance, unless by his delay in asking relief he has slept upon his rights, and been guilty of such laches as would deprive him of that right.

By the terms of the contract the complainant was entitled to a deed at the time when he completed his payments for the land, which was something more than twelve years prior to the death of Spaulding. It cannot be claimed that until after the payments were completed the complainant was in fault by reason of any delay.

Where a vendee of land had paid a large part of the purchase-money, and a judgment was rendered for the balance, it was held that a delay of eighteen years to enforce the contract was not a bar to a suit for specific performance. McLaughlin v. Shields, 12 Penn. St.

283.

In considering this branch of the case we are permitted to regard the situation of the parties, their relation to each other, and the circumstances of the case as gathered from the facts alleged.

The parties were near relatives, and the trust and confidence in each other, whether well-founded or otherwise, seems to have been reciprocal. The complainant was to have a warranty deed "free and clear of all incumbrances; but it appears that at the time of the contract these premises, together with other lands of said Spaulding, were incumbered by mortgage, and remained thus incumbered till about a month prior to his death. He had many times acknowledged payment in different parties, promised to give complainant a deed, and it is alleged would have done so had he not died.

With whom are the equities in this case? Would a decree for specific performance be doing injustice, or would a denial of it be inequitable?

The respondents represent the deceased, and there is nothing that shows any change in the situation of the parties, or the property, or any new interests intervening that would render a decree inequitable. The death of either party to such a contract does not impair its obligation, and forms no objection to the maintaining of a bill for specific performance in a case where such performance might have been enforced had the party lived. Newton v. Swazey, 8 N. H. 14; Kidder v. Barr, 35 id. 253. Here had been full execution of the contract on the part of the complainant and full payment by him. If the contract were executory on his part, and none or a part only of the consideration had been paid, the equities between the parties would stand in a different light. The court remarks in King v. Hamillon, 4 Pet. 328, that "when a party comes into a court of equity seeking equity he is bound to do justice, and not to ask the court to become the instrument of iniquity."

In cases where the contract is not fully executed on the part of the complainant seeking for a decree of specific performance, and even where time is not of the essence of the contract, courts of equity will not interfere where there has been long delay and laches on the part of the party seeking specific performance.

Especially is this true where there has in the meantime been a great change in the circumstances, as in the value of the laud, and new interests have intervened. In such cases the refusal is upon the plain

ground that it would be inequitable and unjust. Holt v. Rogers, 8 Pet. 433; Barnard v. Lee, 97 Mass. 93. "Inexcusable laches and delay," says Folger, J., in Merchants' Bank v. Thomson, 55 N.Y. 12, "will debar a party from the relief which, they being absent, he might have by a judgment for specific performance." But whenever the delay is attributable to the party resisting performance, he will not be allowed it as a defense. Munro v. Taylor, 3 Mc. N. & G. 723; Morse v. Merest, 6 Madd. 26; Spurrier v. Hancock, 4 Ves. 667.

In Lloyd v. Collett, 4 Bro. Ch. Chs. 469, Lord Loughborough said the conduct of the parties, inevitable accident, etc., might induce the court to relieve, notwithstanding the lapse of time. And in Waters v. Travis, 9 Johns. 450, the court held that mere lapse of time is not in all cases an objection to decreeing specific performance; and in that case where an agreement for the sale of land was suffered to remain unexecuted for fourteen years, the vendee having continued in possession, the court under the circumstances of the case decreed specific performance of the contract.

It was stated by Spencer, J., that the continuance of the possession by the tacit consent of the respondent was a constant and continued affirmance on his part that the holding was under the agreement, and that this was irresistible evidence that the agreement was not abandoned by the parties, and their conduct was such as to leave no doubt that they both looked to the future performance of it, and brought it within the principle laid down by Lord Loughborough. These views are supported by Barnard v. Lee, 97 Mass. 93, and cases there cited; Ahl v. Johnson, 20 How. 521; Taylor v.Longworth, 14 Pet. 175; Hubbell v. Von Schoening, 49 N. Y. 330; Eyre v. Eyre, 19 N. J. Eq. 102. In the case last cited there had been a delay for fifteen years in calling for specific performance for the cou veyance of land under a parol contract, and without any attempt to enforce it in the life-time of the vendor.

Mr. Justice Clifford, in the opinion of the court announced by him in Ahl v. Johnson, supra, says, "that courts of equity, as a general rule,have always claimed and exercised the right to decree specific performance of agreements in respect to the purchase and sale of real property, in their discretion, and usually to a more liberal extent in favor of purchasers than those who contract to sell such properties."

The court expects the party to show that the relief which he is seeking is under all the circumstances of the case equitable, and to account in a reasonable manner for this delay. Taylor v. Longworth, 14 Pet. 175. This is more often the case where the contract is executory on the part of the complainant, than when it has been executed by him. Barnard v. Lee, 97 Mass. 95; Waterman Spec. Perf., § 480.

In this case the equities seem to be with the complainant. True there has been delay in seeking his equitable relief, but under the circumstances of this case, not such gross negligence as will necessarily defeat his right. He was admitted into possession of the premises, and has lived there all the time under the agreement, paying the taxes and treating the property as his own, paying in full the consideration in accordance with that agreement, without objection from the respondents' intestate, Spaulding. Such occupancy, taken in connection with the relation and situation of the parties, the length of time it has continued, the fact of its incumbrance by mortgage, the admission of payment and of promise to convey, indicates that the delay in completing the contract by executing and delivering a deed is certainly as much, if not more, attributable to the deceased as to the complainant. And it is as evident that this delay has been acquiesced

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