paid; and while it may be doubted whether under ordinary circumstances the remedy at law might not be adequate, yet it is clear that where the case involves questions of account, and the ascertainment of indefinite charges, a bill in equity is the proper remedy.2 360. Before leaving the subject of the present chapter it may be remarked that a court of chancery in enforcing equitable titles or equitable rights not unfrequently makes use of the doctrine of liens in order to render the relief afforded more effective. To give but a single instance. The doctrine of marshalling assets and securities results sometimes in the substitution of one party to the lien to which another had been entitled. Thus in a modern case a firm in Ceylon consigned coffee to a firm in England, by whom the coffee, together with certain other securities of their own, was pledged to their broker to secure a debt. The English firm having become insolvent, the broker sold the coffee, and enough of the other securities to satisfy his debt; and it was held that the Ceylon firm were entitled as against the English firm in liquidation to have the remaining securities in the broker's hands marshalled, and to have a lien thereon for the balance due them in the coffee transaction. So, also, a court of chancery will lend its assistance to the enforcement of a legal lien. Thus in Schotsmans v. Lancashire Railway Company a bill was filed to protect a vendor's right of stoppage in transitu; and although under the facts of the case the bill was dismissed, yet the right to bring such a bill was expressly recognized by the court.* Brown v. Runals, 14 Wis. 693. 2 Conyngham's Appeal, 7 P. F. Sm. 474; White Mts. R. R. v. Bay State Iron Co., 50 N. Hamp. 57; Merrill v. Houghton, 51 Id. 61 (a bill to redeem stock). 3 Ex parte Alston, L. R. 4 Ch. App. 168. 4 Schotsmans v. Lancashire Railway Co. L. R. 2 Ch. App. 332. 361. General nature of this equitable 380. Other rules as to title. remedy. 362. Inadequacy of common law remedies. 363. Other grounds of the superiority of the remedy in equity. 364. Contracts for the sale of real estate. 365. May be enforced between original parties, and those who claim under them. 381. Parol variations of written con- 366. May be enforced as to real estate 387. When the parol contract is admitted outside of the jurisdiction. 367. Covenants for further assurance. 368. Personal property. in the answer. 388. Specific performance with compensa tion for defects. 369. When damages cannot be ascertained. 389. When the purchaser may be com 370. Other contracts. pelled to take. 371. Specific performance rests on dis- 390. When he may elect to take; limita cretion of the court. 372. Contract must be founded on valuable consideration. 373. Meritorious considerations. 374. Adequacy. a 375. Performance in specie must be necessary. tions upon this doctrine. 391. Time to make out a title beyond the day. 392. Due diligence required. 393. Rule altered by express stipulations, or by presumptions growing out of the nature of the contract. 376. Must be in accordance with general 394. Surrounding circumstances. 378. Purchaser not compellable to accept 397. Parties compelled to make good a doubtful title. 379. Pyrke v. Waddingham. their representations. 361. It is one of the characteristic features of the relief afforded by courts of equity, that the effort always is to put the complainant in exactly the position he would have occupied had it not been for the wrongful act of the defendant; and in no head of chancery jurisdiction is this more strikingly exemplified than in the Equitable Remedy of Specific Performance of Contracts and Duties. This remedy is one of the very earliest heads of the extraordinary jurisdiction of the High Court of Chancery, as will be seen by reference to the authorities from the Chancery Calendar, cited in the Introduction; and not only is it one of the most ancient, but it has been found also to be one of the most useful of equitable means of redress, and has continued to be uninterruptedly applied by courts of general equity powers down to the present day. The effectiveness, moreover, of the relief thus afforded by the Court of Chancery in England, has been still further enhanced, of late years, by the authority conferred by statute to give compensation in addition to, or in lieu of the remedy by specific performance, as will be seen further on.2 362. The reasons for the original growth and subsequent exercise of this equitable remedy are obvious. At common law the general rule was (following the civil law maxim, nemo precise cogi ad factum), to give only pecuniary damages as a redress for all injuries, whether the injury resulted from a refusal to fulfil a contract to deliver property of the defendant, or from a wrongful detention of property of the plaintiff; in other words, whether the action sounded in contract or in tort.3 Land, indeed, belonging to the plaintiff could be specifically recovered; but a contract to sell real estate could not be specifically enforced by any common law action. And, so far as personal property was concerned, the rule stated above was subject to but two exceptions, viz., detinue and replevin. But in detinue the defendant could wage his law; and the action of replevin lay only for the taking of goods under a wrongful distress, and did not, in England, reach other cases; although in some of the United States it has been extended so as to embrace all kinds of wrongful taking 1 Kymbarley v. Goldsmith, Chan. Cal. XX. Introduction, p. 10, ante. See, also, 1 Spence Eq. 645. The remedy by action for a breach of the contract in such a case was extremely inadequate; see 1 Sugden V. 2 Stat. 21 & 22 Vic., c. 27 (Sir Hugh and P. 542 (8th Am. ed.); ante, Intro Cairns's Act); post, p. 361. Fry on Specific Performance, ?? 1, 11. duction, p. 25. of personalty, and in others, it has a still more general application, and is used wherever one man claims goods in the possession of another, and seeks to recover them specifically.' But the common law remedy by damages was in many instances manifestly inadequate; for while it was truly said that "one shilling or one sovereign was as good as another," and that the money which a plaintiff might recover as damages for the nondelivery of a lot of merchandise would enable him to purchase other articles of exactly the same kind and quality, yet this rule is plainly not true in all cases. Thus a particular house or a particular piece of land may have peculiar advantages of location and vicinage, which no other house or piece of land would or could possess, and which no money could, of course, obtain. So, also, there may be many personal chattels which have either a pretium affectionis, or a value from some other peculiar cause, and for the loss of which, therefore, pecuniary damages would be an utterly inadequate compensation to the owner; and some cases, moreover, may exist in which it would be entirely impossible to estimate the damages, for the detention of property, by any known common law rules. 363. Other reasons, also, exist for invoking the jurisdiction. of a chancellor. At common law one party to a contract cannot complain of a breach on the part of the other, unless he can show his own compliance with the terms of the agreement in every particular. But in equity specific performance may be decreed, although the complainant may not be able to fulfil his contract to the letter, and this is done by entering a decree with compensation for defects. So, too, time is in equity not generally regarded as of the essence of a contract, and failure on the part of the complainant to comply with his covenants on the exact day will not necessarily disentitle him to relief. When to the above is added the circumstance that equity will decree specific performance of a contract on the ground that it has been already so far performed that it would be inequitable to rescind the same, in many cases in which relief would be denied in a court of law, the ad 1 2 Black. Com. 146; Sharswood's note. 2 Fry on Spec. Perf., & 11. 3 Fry on Spec. Perf., 4. vantages of the equitable over the legal remedy, and the reasons for its exercise, can be, perhaps, properly appreciated. 364. From the above general observations it will be perceived that the inadequacy of pecuniary damages or the impossibility of estimating them, form the main grounds upon which the equitable remedy of specific performance may be invoked. It will be convenient to give a few instances of both. The remedy of specific performance is most frequently applied to contracts for the sale of real estate. When a binding agreement is entered into to sell land, equity regards the vendor as a trustee of the legal title for the benefit of the vendee, while the latter is looked upon as a trustee of the purchase-money for the benefit of the former. Hence the purchaser has a right to the aid of the chancellor for the purpose of obtaining a conveyance of the legal title to the property of which he is the equitable owner; while, as all remedies ought to be mutual, the vendor can invoke the same aid for the purpose of compelling the buyer to accept a conveyance, and pay the purchase-money. If the contract has been partly performed by the vendee's going into possession or paying the purchase-money, the equity of both parties is of course still stronger. Hence it may be said that the circumstance that the contract concerns realty, gives the party a prima facie right to come into equity. This right, however, is controlled, in particular instances, by other equitable considerations presently to be noticed. It may be well to note here that the right of a vendor who has put a purchaser in possession before conveyance, but has not received the purchase-money, must not be confounded with the vendor's lien for purchase-money after conveyance. The latter Richter v. Selin, 8 Serg. & R. 425. Kerr v. Day, 2 Harris (Pa.), 114; Finley v. Aiken, 1 Grant's Cas. (Pa.) 83; Malin v. Malin, 1 Wend. 625; McKechnie v. Sterling, 48 Barb. 330; King v. Ruckman, 6 C. E. Green, 599; Haughwout v. Murphy, 7 Id. 531, 546; McCreight v. Foster, L. R. 5 Ch. App. 612. A loss by fire, after the contract, will fall on the purchaser; Robb v. Mann, 1 Jones (Pa.), 300; McKechnie v. Sterling, 48 Barb. 330; Hill on Trustees, 272 (4th Am. ed.); 1 Sug. V. and P. 270, and note (8th Am. ed.); American note to Seton v. Slade, 2 Lead. Cas. Eq., part ii., 74. 2 It is not meant to be here asserted that payment of the purchase-money is such a part performance as will take the case out of the statute of frauds; see infra, p. 355. 3 Specific performance will not be decreed for a tenancy from year to year; Clayton v. Illingworth, 10 Hare, 451. |