But mere payment of the purchase-money is not enough;' unless, indeed, owing to peculiar circumstances the purchaser cannot be restored to his original position by repayment.2

When a parol contract is entered into in consideration of marriage, the solemnization of the marriage is not such a part performance as will take the case out of the statute.3

A party seeking specific performance cannot rely upon a part performance by the defendant to take the case out of the statute.1 The doctrine of part performance will operate to prevent a vendee who has gone into possession from insisting upon objections to the vendor's title. A waiver of objections may thus be presumed from conduct. The relief, however, if obtained at all, must be sought for in equity. It will not be given in a court of law. In some of the States, however, there are decisions tending to show that there may be a parol waiver of one or more of the terms of a contract which the statute requires to be in writing.?

336. The second class of cases in which the statute of frauds cannot be insisted upon for the purpose of defeating a parol contract as to realty, embraces those in which the reduction of the contract to writing has been prevented by fraud.

Thus if an intended husband, having promised to reduce a marriage settlement to writing, fraudulently prevents it from being done, and the marriage takes place in consequence of false

Clinan v. Cooke, 1 Sch. & L. 40; Hughes v. Morris, 2 De G. M. & G. 356; Purcell v. Miner, 4 Wall. 513; Kidder v. Barr, 35 N. Hamp. 235; Glass v. Hulbert, 102 Mass. 21; Eaton v. Whitaker, 18 Conn. 222; McKee v. Phillips, 9 Watts, 85; Parker v. Wells, 6 Whart. 153; Allen's Est. 1 Watts & Serg. 383; Cole v. Potts, 2 Stockt. 67; Underhill v. Allen, 18 Ark. 466; Townsend v. Houston, 1 Har. (Del.) 532; Lefferson v. Dallas, 20 Ohio St. 74; Mather v. Scoles, 35 Ind. 5; 1 Sug. V. and P. 229 (8th Am. ed.). But in Iowa, payment of the purchase-money is sufficient to take the case out of the statute. Fairbrother v. Shaw, 4 Iowa, 570; Olive

v. Dougherty, 3 G. Greene (Iowa), 371; Johnson v. Glaucy, 4 Blackf. 94.

2 Malins v. Brown, 4 Comst. 403; Everts v. Agnes, 4 Wis. 343; Johnston v. Hubbell, 2 Stockt. 332.

3 Caton v. Caton, L. R. 1 Ch. Ap. 137; 2 H. L. 127.

4 Id. See, also, Luckett v. Williamson, 37 Missouri, 388.

5 Palmer v. Richardson, 3 Strobh. Eq. 16.

6 Goss v. Lord Nugent, 5 B. & Ad. 58. 7 Stearns v. Hall, 9 Cush. 31; Cummings v. Arnold, 3 Met. 486; Buel v. Miller, 4 N. Hamp. 196; 1 Sug. V. and P. 252 (8th Am. ed.).

assurances and contrivances, the circumstance that the agreement rests in parol cannot be taken advantage of in resisting an application for specific performance.1

This class of cases, however, falls under the head of actual fraud, and is governed by the rules which apply to that branch of equitable jurisdiction. They are noticed in this connection simply in order to illustrate the rule in equity which forbids the statute of frauds to be used as an instrument to defeat the right to specific performance.

387. In the third place, a case will be taken out of the statute when the parol contract is admitted by the defendant in his answer, and the statute is not therein insisted upon as a defence. In such a case there can be no possibility of fraud or mistake; because nothing could be stronger evidence of the truth and accuracy of the plaintiff's version of the agreement, than the written admission by the defendant under oath. And the statute having been made for the protection of the defendant, it is perfectly competent for him to waive its benefit.2

If, however, the defendant insists upon the statute as a bar, the written admission in his answer will not avail to take the case out of the statute.

388. It has been stated above that one of the reasons why the remedy of specific performance was introduced in equity, was because at law the plaintiff is obliged to show on his part precise compliance with all the terms of the agreement, whereas chancery would sometimes afford him relief although he was unable to prove this exact fulfilment. It will be proper now to consider the two methods in which courts of equity grant this indulgence-viz., decreeing performance with compensation for defects, and giving time to make a title beyond the stipulated day.

389. And first as to performance with compensation for defects. It is settled that immaterial deficiencies will not deprive the vendor of his right to have the contract performed as against the vendee-provided that the deficiencies are such as may be compensated in money. Under such circumstances the vendee

1 See Montacute v. Maxwell, 1 P. 2 See Smith's Manual of Equity, 252. Wms. 618; Story's Eq. Jurisp.,

768.

0

may be compelled to take the property, and a suitable deduction will be made in the price.1

But if the deficiencies are material and important, the vendee will not be compelled to take the property. He is entitled to have what he bargained for; and it would, obviously, be extremely unjust to force anything upon him which he had not. designed or contracted to buy. If there is a failure in that which is an inducement to the purchase, he will not be compelled to take.3

390. It may sometimes happen that defects exist which render the property less valuable than the contract price; but which, nevertheless, may not be of so vital a character as to induce the purchaser entirely to throw up his bargain. In such a case the equity of specific performance with compensation comes into play for the benefit of the vendee. He is entitled to have the agreement carried out, and yet at the same time to have an abatement or allowance made by reason of the defects.* Such a relief cannot, it is manifest, be obtained at law; and, therefore, is an additional illustration of the advantages of this kind of equitable remedy."

There must, however, be some limits to this right of the vendee to elect to have the contract performed with compensation for defects; because in some instances its exercise would

1 Hepburn v. Auld, 5 Cranch, 262; King v. Bardeau, 6 Johns. Ch. 38; Harbers v. Gadsden, 6 Rich. Eq. 284; Seton v. Slade, 2 Lead. Cas. Eq. p. 11, 33. The compensation may take another shape than a sum of money. Thus, in decreeing the specific performance of agreements for the partition of coal mines, an allowance of so much coal may be made; Young v. Frost, 1 Maryl. 377; King v. Ruckman, 5 C. E. Green, 316; Coleman's Appeal, 12 P. F. Sm. 252.

nett, 8 Paige, 312; 1 Sug. V. and P. 479 (8th Am. ed.).

4 Thomas v. Dering, 1 Keen, 729; Wheatley v. Slade, 4 Sim. 126; Graham v. Oliver, 3 Beav. 124; Nelthorpe v. Holgate, 1 Coll. 203; Stockton v. Union Oil Co., 4 West Va. 273.

5 See Johnson v. Johnson, 3 Bos. & Pul. 162. See, also, Denton v. Stewart, 1 Cox, Ch. 258; Andrews v. Brown, 3 Cush. 130; Harrison v. Deramus, 33 Alab. 463; Bell v. Thompson, 34 Id.

2 Whittemore v. Whittemore, L. R. 8 633; Lee v. Howe, 27 Missouri, 521;

Eq 603.

3 Peers v. Lambert, 7 Beav. 546; Rugge v. Ellis, 1 Desaus. 160; Wainwright v. Read, Id. 573; Cordingley v. Cheesebrough, 3 Giff. 496; Stoddart v. Smith, 5 Binney, 355; Marvin v. Ben

Smith v. Fly, 24 Tex. 345; Phillips v. Thompson, 1 Johns. Ch. 149; Parkhurst v. Van Cortlandt, Id. 273; Scott v. Bilgerry, 40 Miss. 119; Morss v. Elmendorf, 11 Paige, 277.

work great injustice to the vendor. Thus a seller could not, for example, at the election of the purchaser, be deprived of his mansion house and park to which he could make a good title, while a large adjoining estate, held and sold with it, would be left on his hands with a proclaimed bad title.1

Nor can a vendor be required to convey a different parcel of land from that agreed to be conveyed."

The right both of the vendor and vendee cannot be exercised unless the defect is one which is capable of being measured by a pecuniary standard; in other words, capable of compensation. The compensation must not be a mere matter of arbitrary damages, or of indemnity for future risk.3

391. The second of the methods in which a court of equity grants indulgence to a party who has been unable to fulfil exactly his part of an agreement, and yet seeks the aid of the court to have it specifically enforced, is by giving time to make out a title beyond the day which the contract specifies. This is done in pursuance of the maxim that time is not ordinarily of the essence of the contract in equity, although it may sometimes become so. What is meant by this maxim and by its qualification, is this: A court of equity will relieve against and enforce specific performance notwithstanding a failure to keep the dates assigned by the contract, either for the completion, or for the steps towards completion, if it can do justice between the parties, and if there is nothing in the express stipulations between the parties, the nature of the property, or the surrounding circumstances which would make it inequitable to interfere with and modify the legal right. This is what is meant, and all that is meant when it is said that in equity time is not of the essence of the contract.5

1 Sug. V. and P. 316 (vol. i. 480, 8th Brashier v. Gratz, 6 Wheat. 528, and Am. ed.). Bank of Columbia v. Hagner, 1 Pet. 455,

2 Id. See Castle v. Wilkinson, L. R. it was held tha' in equity, time was not 5 Ch. App. 534.

Adams's Eq. 91.

Time is in general of the essence of the contract at law. Wilde v. Fort, 4 Taun. 334; Steer v. Crowley, 14 C. B. N. S. 337.

6 Tilley v. Thomas, L. R. 3 Ch. App. 67. In Hepburn v. Auld, 5 Cranch, 262,

of the essence of a contract. See, also, Remington v. Irwin, 2 Harris (Pa.), 143 ; Tiernan v. Roland, 3 Id. 429; Bryson v. Peak, 8 Ired. Eq. 310; and Glover v. Fisher, 11 Ill. 666. But in Goldsmith v. Guild, 10 Allen, 239, the court did not approve of the doctrine. See 1 Sug. V. and P. 411 (8th Am. ed.).

392. An example of the rule now under consideration is where a vendor has undertaken to make a title on a certain day, and has failed to do so by reason of some defect in the title, which defect, however, is susceptible of being cured. It will be observed that the rule, as thus stated, does not apply to those cases in which the delay on the part of the vendor is due, not to any defects in his title which he desires time to remedy, but to his own carelessness and laches. Due diligence is required on both sides. A vendor cannot have specific performance if he has been urged by the purchaser to take steps, but has not done so.2 But where the delay is not due to the laches of the seller, but to defects in the title which may be cured, a bill for specific performance may be maintained, for it is sufficient if a party entering into articles to sell has a good title at the time of the decree. The court rectifies the incidental delay by giving the intermediate rents to the purchaser, and interest on the purchasemoney to the vendor.

Such, then, is the general rule. It is subject to the qualification that time may be made the essence of a contract by express stipulation of the parties, or by presumption growing out of the nature of the property, or by surrounding circumstances.

393. As to "express stipulations" nothing need be said. It is perfectly clear that parties may stipulate that time shall be essential, and that when such a stipulation exists, it ought to be enforced.

1 Merritt v. Brown, 6 C. E. Green, 401; Johns v. Norris, 7 Id.. 102; Taylor v. Longworth, 14' Peters, 172; Dubois v. Baum, 10 Wright (Pa.), 537; Cureton v. Gilmore, 3 S. Carolina (N. S.), 46; Eastman v. Plumer, 46 N. Hamp. 464, 479; Rogers v. Saunders, 16 Maine, 92; Benedict v. Lynch, 1 Johns. Ch. 375; Leaird v. Smith, 44 N. Y. 618; 1 Sug. V. and P. 261.

2 It is not necessary that a demand for a deed should precede a bill for the specific performance of a contract to convey. This results from the distinction between a suit in equity for specific performance, and an action at law for non-performance, namely, that in the latter the right of

action grows out of a breach of the contract, and a breach must exist before the commencement of the action, while in the former the contract itself, and not the breach of it, gives the action. Bruce v. Tilson, 25 N. Y. 194; Welland v. Huber, 8 Nevada, 207.

3 See Dresel v. Jordan, 104 Mass. 415; Barnard v. Lee, 97 Id. 92.

4 See Barnard v. Lee, 97 Mass. 94; Patchin v. Lamborn, Casey, 314; Ives v. Armstrong, 5 R. Island, 567; Stow v. Russell, 36 Ill. 18; Heckard v. Sayre, 34 Id. 142; King v. Ruckman, 5 C. E. Green, 316; 6 Id. 599; Webb v. Hughes, L. R. 10 Eq. 281.