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undertook for a certain responsibility while the regular, and that judgment was entered in favor of
goods were iu the house; and it was at the plaintiff's said Larrabie against said Northwesteru Company in
option to have them there or elsewhere, as he pleased. said action, and defendants held said bullion by virtus
If they were lost by fire when elsewhere the loss was of said writ of attachment.
not one against which the defendant had undertaken 3. That at and prior to the shipment of the bullion
to insure him. Nor was defendant called upon to can- in controversy in this case there was an express con-
cel the polioy by reason of the goods being removed tract between plaintiff and the Northwestern Com.
from the building where they were insured. If the pany, that in consideration of advances to be made by
dwelling-house had been repaired, and the goods re- plaintiff to said company in carrying on its mining
stored to it, the policy would again have covered them; operations, said company would ship to plaintiff its
and this, for any thing that appears to the contrary, products of bullion, which was to be credited to its ao.
may have been what both parties desired. At any count.
rate, it does not appear that the plaintiff desired the 4. That at the time said bullion was shipped said
policy cancelled; and if he had desired it, the cancel- plaintiff had advanced to said company upon the faith
ment would have been optional with defendant. of said contract about the sum of $6,000, which stood

The cases of Hartford Ins. Co. v. Farrish, 73 Ill. 166; as a charge against said company, and is yet unliqui-
Annapolis, etc., R. Co. y. Baltimore Fire Ins. Co., 32 dated and unsettled.
Md. 37 ; S. C., 3 Am. Rep. 112; aud Bryce v. Lorillard 5. That said bullion was in accordance with the terms
Ins. Co., 55 N. Y. 240; S. C., 14 Am. Rep. 249, support of said contract shipped, marked and consigned to
the views here expressed, and are decisive.

said plaintiff, and placed in possession of and received The judgment must be

by Gilmer & Salisbury, common carriers of freight and Affirmed.

express matter, upon a contract at special rates, to be The other justices concurred.

paid at Helena, Montana, by plaintiff, upon receipt of [See also 7 Am. Rep. 638; Longueville y. Western As. said bullion by it, at said place, said charges for freight surance Co., 51 Iowa, 553; S. C., 33 Am. Rep. 146, and to be charged to the account of said company. note, 147; Lyons v. Providence Washington Ins. Co., 13 6. That said 'bullion was to be credited to the acR. I. 347; 8. C., 43 Am. Rep. 32, and note, 34.-ED.] count 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 conBILL OF LADING TITLE, WHEN PASSES ON signed to said plaintiff, and while in possession and SHIPMENT.

custody of said carriers en route to its destination, the

same was attached at the suit of Larrabie, and levied SUPREME COURT OF MONTANA, JAN. 29, 1885. upon by his co-defendants as the officers charged with

the exeoution of said process, on the 31st day of May,
FIRST NATIONAL BANK OF HELENA V. McANDREWS.* 1879, at Deer Lodge city, Montana.
The transmission of a bill of lading by the consignor to the 8. That said property was at said time of the value of

consignee is a delivery of the possession of the goods cov- $3,000, and was, and still is, detained by defend-
ered by it, and the title to the property shipped thereby auts.
passes from the former to the latter. But the mere ship- The bullion in question, having been “billed, ship-
ment of goods, in pursuance of a contract between the ped, marked and consigned” to the respondent under
consignor and consignee whereby the former was to pay and by virtue of the contract mentioned in the findings
the freight, and the latter, after he had sold the goods, of fact hy the court, and placed in the possession of
was to credit the proceeds to the account of the consignor, the commou carrier, did the possession of and prop-
does not vest the title to the property shipped in the con- erty in the bullion thereby become vested in the re-
signee, in the absence of a bill of lading or notice of the

spondent, or did such possession and property remain shipment to him.

with the Northwestern Company until the bullion

had been actually received by the respondeut and Lodge County. The opinion states the facts.

credited to the account of the company? J. C. Robinson, for appellants.

There was no bill of lading transmitted to the bank,

and no letter or notice informing it that the bullion E. W. & J. K. Toole, for respondent.

had been shipped. The advances by the bank had been WADE, C. J. This was an action of claim and deliv

made prior to the shipment, and the situation was as ery in which the plaintiff sought to recover the posses

if the shipment had been made under a contract in sion of certain cases of silver bullion shipped to it by

satisfaction of antecedent advances. the Northwestern Company at Pbillipsburg, and while

We shall have to consider what effect the absence of en route, seized by attachment in an action by Samuel

a bill of lading and of notice of the shipment to the E. Larrabie against said Northwestern Company. The

bank had upon the rights of these parties. A bill of case was tried to the court, who made certain findings

lading is a commercial instrument, and is a written of fact, and thereon rendered a judgment in favor of

acknowledgment signed by the master of a vessel, or by plaintiff, from which, and an order overruling a motion

a common carrier, that he has received the goods for a new trial, the defendants appeal to this court.

therein described from the shipper, to be transported The facts found by the court are as follows:

on the terms therein expressed to the described place 1. Tha: the bullion described in plaintiff's complaint

of destination, and there to be delivered to the conwas produced from the Northwestern Company, and

signee, or parties therein designated. Abb. Shipp. 7 was shipped by it to Helena, consigned to plaintiff.

Am. ed. 323; O'Brien v. Gilchrist, 34 Me. 558; 1 Para. 2. That the same was seized by defendants, McAn

Shipp. 186; Machl. Shipp. 338; Emirigon Ius. 521. drews and Smith, under a writ of attachment, while

A bill of lading is a symbol of the ownership of the in transit, in an action by defendant Larrabie against goods covered by it; a representative of the goods. It the Northwestern Company, and that defendants, Mo

is regarded as so much cotton, grain, iron or other arAndrews and Snuith, were at said time the sheriff

ticles of merchandise. The merchandise is very often and deputy sheriff of Deer Lodge county, Montana,

sold or pledged by the transfer of the bill of lading and that all the proceedings to obtain said writ were

which covers it. Shaw v. Railroad Co., 101 U. $. 564,

565. Hence it is held by the authorities that the trans*S.C., 5 West Coast Rep. 636,

mission of a bill of lading by the consignor to the con

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signee is a delivery of the possession of the goods cov- within the statute of frauds, and the action cannot be
ered by it, and that thereby the title to the property maintained.”
passes from the consignor to the consignee. See Hille If a bill of lading had evidenced the intent and pur-
v. "Smith, 1 B. & P. 563; Desha 0. Pope, 6 Ala. pose of the consignor in shipping the bullion, or if this
690; Gibson v. Stevens, 8 How. 384; Grove v. Gilmor, intent had been evidenced by any other conclusive un.
id. 429; Bryans v. Ni., 4 M. & W.775; Anderson v. conditional act, such as a notice of the shipment to the
Clark, 2 Bivg. 20; Holbrook v. Wright, 24 Wend. 169; consignee, then a delivery to the carrier in pursuance
Grosvenor v. Phillips, 2 Hill, 147; Sumner v. Hamlet, 12 of such bill of lading or notice would have vested the
Pick. 76; Nesmith v. Dyeing Co., 1 Curt. 130; title in the consignee. But in a case where the con-
Valle v. Cerre, 36 Mo. 575.

siguee bad never seeu or accepted the property, where
The transmission of a bill of lading amounts to the there was no bill of lading or notice of shipmeut, the
actual delivery of the possession of the property de- | consignor paying freight, and having the right to re-
scribed in it, and is a compliance with the statute of call the goods, or to change their destination, and the
frauds as to the sale and delivery of property. The agreement under which they are shipped providing
contract mentioned in the findings was an executory that the property shall not be credited to the account
contract, to be completed by the delivery of the bul. of the consignor, antil the same has been actually re-
lion therein described. Knight, the cashier of the ceived and sold by the consiguee, then the mere act of
bank, testifies that the bullion was to be delivered to shipment would not bave the effect to vest the title in
the bank at Helena. In the absence of a bill of lading, the consiguee.
or a letter or notice from consiguor to consignee in- In the case of Halliday v. Hamilton, 11 Wall. 564, the
forming him of the shipment of bullion, is the fact Supreme Court of the United States says: “If this
that the bullion in question was “billed, shipped and were the case of a mere agreemept to ship produce in
marked and consigned " to the respondent, such an ap- satisfaction of antecedent advances, which will not in
propriation of the property to the contract as com- general give the factor or consignee a lien upon it for
pletes a bargain and sale, and delivers the possession | his general balance until he obtains actual possession
thereof to the purchaser? If the consignor had done of it, the attachment would hold the property.
some conclusive, unconditional act, by which the con- But the agreement in question is of a different charac-
signee was, or was to be, informed that the bullion ter, and rests on a different legal priuciple. It appro-
shipped was to be applied on the consignor's account priates specifically 1,250 bags of corn to Hamilton &
for money advanced, then undoubtedly the delivery of Dunpica, with an intention that they sball sell it to
the property to the common carrier, properly marked pay the draft drawn against it, and this appropriation
and addressed, would have been a delivery to the con- did not rest iu intention merely, for it was exercised,
signee, and an appropriation of the property to the so far as the parties in St. Louis could execute it, by
contraot. But the mere shipment of the property the transmission of a bill of lading to Hamilton & Dun-
without notice was not such conclusive act. The ship- nica. As soon as the corn was deposited with the com-
ment did not bind the consignor. He did not thereby mon carrier, who was the bailee for that purpose, the
lose his control over the property. He might have title to it and the right of property in it was changed
stopped it while en route to its destination, and sent it and vested in Hamilton & Dunnica, to whom it was
to some other place or person. By the terms of the delivered. This is the effect of all the cases on tho sub-
contract the company, the consignor, was to pay the ject."
freight, and the bullion was not to be credited to This case is a clear illustration of the rule. If there
the account of the company until it had been received was a mere agreement to ship goods or produce to pay
and sold by respondents. There was somethiug to be for advances, the property shipped would not belong
done besides a delivery to respondent: “Said bullion to the consiguee until actually received and possessed
was to be credited to the account of the company upon

by him. But if the agreement appropriates specifio a sale thereof by plaintiff." The respondent had no property to the payment of such advances, and such right to make this credit until the sale of the bullion. appropriation is evidenced and authenticated by a bill When the property was sold the proceeds belonged to of lading, then the title to the property passes to the the respondent. If there was to be no credit until a consignee by a delivery thereof to the carrier. sale, what property passed until a sale had been made ? In the case of Hodges v. Kimball, 49 Iowa, 577, the There must be an acceptance as well as a delivery. facts were that in the spring of 1875 the plaintiffs and Suppose this bullion had been “billed, shipped and W. H. Valleau, at Milwaukee, in the State of Wisconmarked" at double its value, would the consignee sin, entered into a contract .whereby the plaintiffs have been bound by the valuation of the cousignor? were to advance the money to said Valleau, on his The carrier had no right to accept of the property for

drafts drawn on them, to purchase wheat and other the consignee; the value was to be ascertained by a produce, to be shipped by him, consigued to them at sale, and then, and not until then, had the consiguee | Milwaukee, to be by them sold on the usual commisany right to make the credit.

siops, and out of the net proceeds thereof to reimburse In the case of Johnson v. Cuttle, 105 Mass. 449, the themselves for the advances so made; that said Valcourt says: “A common carrier, whether selected by leau was to forward the railway shipping receipts to the seller or by the buyer, to whom the goods are in plaintiffs as soon as consignments were made; that in trusted, without express instructions to do any thing pursuance of said contract Valleau, on the 10th day of but to carry and deliver them to the buyer, is no more May, 1876, shipped five car-loads of wheat consigned to than an agent to carry and deliver the goods,and has no plaintiffs, and delivered to the Chicago, Milwaukee & implied authority to do the acts required to constitute St. Paul Railway Co., and receipts given therefor; an acoeptance and receipt on the part of the buyer,

that on the same day, and after said shipment and and to take the case out of the statute of frauds. The consignment, said wheat was attached as the property steamboat company having no authority to receive of Valleau in the suit of Kimball & Farnsworth against and accept the goods so as to bind the buyer, and there him, and was afterward retaken upon a writ of replevin being no evidence that the buyer in person, or by any

in tbis action. This contract and the attending facts authorized agent, ever had actual possession of the are, in substance and effect, the same as in the case at goods, or opportunity to see them, or ascertain whether bar. The court in deciding the case says: “The case they conformed to his order, or ever exercised any

must be determined upon the facts reported by the control over them by sale or otherwise, or even re

referee, with the additional fact that the grain was not ceived any bill of lading of the goods, the case is bought with money furnished by the plaintiffs. From

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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 rule seems to be that in order to change the title the suit of the defendants, as the property of W. H. to the property shipped and vest it in the conValleau. The shipping receipts were not forwarded to siguee, there must be a bill of lading, receipt or letter the plaintiffs until the 13th day of May, and did not of information forwarded to the consignee, or that reach them until the 15th. The advancements, on ac- the advancements were made upon the faith of the parcount of which the plaintiffs claim their lien, were all ticular consignment. It is claimed however that this made before this grain was shipped (as in the case we contract was an executory one, and that the shipment are considering]. The facts of this case bring it upon of the bullion completed the purchase thereof by the all fours with Elliot v. Bradley, 23 Vt. 217, in which it consiguee. In answer to this it may be said that this was held that when goods are consigned to a factor is not a contract of purchase and sale. It is a mere under an agreement, that he shall sell them and apply loan of money, with an agreement to ship bullion as the proceeds to repay the advances previously made security to the loan. The shipment is not payment. by him to the consignorg, he must, in order to acquire The bullion has to be sold by the consignee and cona valid lien upon the goods, as against the creditors of verted into money before any credit can be made on the consignor, have the actual or constructive posses- the account of the consignor, or applied upon the loan. sion of the goods."

This is not a purchase of bullion. A person cannot beThe court then recites the facts in the Vermont case come a purchaser without his knowledge or consent. as follows: "In this case an agreement was made be- There must be an acceptance and delivery of possestween a manufacturer of cloth in the State of Ver- sion. If this were a purchase, there was no acceptmont and the plaintiffs, who were commission mer- ance of the property by the purchaser. He had never chants of New York, by which the manufacturer was seen the property. It had never been in his possesto send his cloth to the plaintiffs for sale on'commission, sion. He did not have any notice of the shipment. He and was to draw upon them in advance of the sales, could not accept the goods even by a carrier appointed and also in advance of sending the cloth if necessary, by himself. upon sending the invoices of the cloth forwarded, or Says Mr. Benjamin (Benj. Sales 149, $ 160): “It is to be forwarded, and the plaintiffs were to apply the settled that the receipt of goods by a carrier or wharfavails of the sales to repay their advances. Under this inger appointed by the purchaser does not constitute arrangement the consiguor forwarded to the plaintiffs an acceptance, these agents having authority only to from time to time invoices of the cloth sent and to be receive, not to accept, the goods for their employers.' sent, and the cloth was then sent to forwarding mer. Boardman v. Spooner, 13 Allen, 353; Grimes v. Van chants at Burlington, and was by them sent to the Vechten, 20 Mich, 410; Rodgers v. Phillips, 40 N. Y. plaintiff as soon as convenient. The drafts were drawn | 519; Denmead v. Glass, 30 Ga. 637; Shepherd v. Pres. and the acceptances charged and sales credited upon sey, 32 N. H. 49; Maxwell v. Brown, 39 Me. 98; Spencer general account. No bill of lading was sent to the v. Hale, 30 Vt. 315; Cross v. O'Donnell, 44 N. Y. 661: plaintiffs, but shipping bills were sent by the forward- Snow v. Warner, 10 Metc. 132; Quintard v. Bacon, 99 ing merchants to their agents in New York, describ- Mass. 185; Allard v. Greasert, 61 N. Y. 1. ing the consignor, the consignees, and the marks upon We do not know upon what principle a consiguee or the goods in order to guide the agents in delivering other person can be made the purchaser of property the goods to the consignees. It was held that the that he has never seen or accepted, and to which pos. goods, after being sent to the forwarding merchants, session was never delivered, either actually or con. and while upon the transit between Burlington to Newstructively. York, remained at the risk and subject to the control The judgment is reversed and the cause remanded of the consignors, and liable to attachment by their for a new trial. 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, wbile in the case

- PART PERFORMANCE. at bar the wbeat had not moved from the place where it was shipped, and the shipping receipts still remained

MAINE SUPREME JUDICIAL COURT. in the hands of the consignor." The court also decides that the case of Davis v.

GREEN V. JONES.* Bradley, 27 Vt. 118, is not in conflict with that of Elliot v. Bradley, and cites Bank of Rochester v. Jones, 4

In April, 1862, G. made an oral agreement for the purchase of Comst. 497 Winter v. Coit, 3 Seld. 288; Kinlock v.

real estate of his brother-in-law, 8., who agreed to convey Craiy, 3 T. R. 119, in support of its decision, and re

the premises free from all incumbrances, when paid for. views Holbrook v. Wight, 24 Wend. 169; Grosvenor v.

G. paid part of the purchase-money down, and entered Phillips, 2 Hill, 147; Bailey v. Hudson R. R. Co., 49 into the possession of the premises, and thereafter reN. Y. 70; Hille v. Smith, 1 B. & P. 563, and

tained the possession. He made payments toward the Krulder v. Ellison, 47 N. Y. 36, and finds that balance of the purchase-money at different times, comthey are not in conflict with its decision. Upon a mo

pleting the payments in 1869. At the time of the agreetion for a rehearing the following additional authori- ment the premises were incumbered by a mortgage, and ties were cited: Anderson v. Clark, 2 Bing. 20; Cum so remained incumbered until about August, 1882. In ming v. Brown, 9 East, 506; Vertue v. Jewell, 4 Camp.

September, 1882, S. died intestate. Held, upon a bill in 31 ; Putten v. Thompson, 5 M. & S. 350; Wade v. Ham. equity by G. against the administrator and heirs of S., ilton, 30 Ga. 450; Grove v. Brien, 8 How. 429; Bryans v.

that he was entitled to specific performance of the agree. Nix,4 M. & W. 774; Evans v. Nichols, 3 Man. & G. 614;

ment to convey.

N ; the court in reviewing them says: “We red was filed and . The case was then by have examined all of these authorities with care. The consent reported to the law court, upon the facts almost of them are cases where a bill of lading, or re

leged, to make such decision and order such decree as ceipt, or letter of information, was forwarded to the the rights of the parties required. consignee, or advancements were made upon the faith of the particular consigument, and they fall within

*S. C., 76 Me, 563.

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The material facts are stated in the head note and about seven years after the contract was made, and opinion.

that said Spaulding died in September, 1882, without Charles Hamlin and Jusper Hutchins, for plaintiff.

ever having executed and delivered the deed of the

premises in accordance with said contract. H. L. Mitchell, for defendants.

The authorities are numerous that a respondent canFOSTER, J. The object of this bill is a specific per- not avail himself of the statute of frauds, on demurformance of an oral agreement for the conveyance of rer, when a bill in equity is brought to enforce specific real estate. This necessarily presupposes an agree-performance of an oral contract, although the bill adment, and the bill must, as iu all cases of this descrip- mits the contract to be parol, if such bill, in addition tion, set out what that agreement was.

to the contract, alleges matter avoiding the bar creUpon inspection of the bill it will be found to be a ated by the statute, such as part performance. Harris parol contract for the sale of real estate, and therefore v. Knickerbacker, 5 Wend. 638. void by the statute of frauds. An action at law could In the case at bar, to take the same out of the operanot be sustained on this agreement. The statute for tion of the statute of frauds, the complainant relics on the prevention of frauds would be a barrier to the certain facts alleged in the bill, additional to the fact maintaining of an action upon it.

that the contract was oral, as amounting to such part The power of this court as a court of equity then performance as to give a court of equity jurisdiction must rest on other grounds, for the specific execution to enforce specific performance of the contract. of parol agreements is decreed in equity for the pur- What are these facts? The admission into pospose of preventing fraud.

session of the premises under and in pursuance of the Heretofore, on account of limited equity powers, contract, immediately thereafter, and the open, excluthis court has declined to enforce specific performance sive and long-coutinued occupation of the same, not of oral contracts relating to real estate, and it was not only during the time in which the payments were until February 28, 1874, that "full equity jurisdiction, being made, but ever afterward for a period of more according to the usage and practice of courts of equity than tbirteen years, together with full payment of the in all cases where there is not a plain, adequate and consideration or price agreed upon between the parcomplete remedy at law" was conferred upou it, with ties to the contract. power of decreeing specific performance in cases of Possession of land taken by the vendee aud this kind. St. 1874, ch. 175; Stearns v. Hubbard, 8 Me. continued from the time of the contract to the 320; Wilton v. Harwood, 23 id. 131; Pulsifer v. Water- time of bringing the bill, such possession being mast, 73 id. 244.

in pursuance of the contract, is an act of part perNor will a court of equity iend its aid to the enforce- formance, taking the case out of the operation of ment of oral contracts, unless there shall have been the statute of frauds. Harris v. Knickerbacker, such acts of part performance by the party seeking re- supra. And in this case, where the possession had lief as will be considered sufficient in equity to take been for eight years, the court says: “The possession the case out of the operation of the statute, and au- is, in my judgment, to be considered as taken on ac. thorize a court of general equity powers in the exer- count of the contract and pursuant to it; and being cise of sound discretion to decree specifio perform- thus taken by the appellant and continued so long, it

would be a fraud in him now to repudiate the conAnd it is well settled that the ground upon which tract. The respondent may therefore allege this poscourts of equity consider part performance of such session and its continuance by his permission as a part contract as creating an equity to have the agreement performance available to avoid the operation of the specifically executed, is that it would be a fraud upon statute of frauds." the party if the transaction were not completed. Admission into possession having unequivocal referParkhurst v. Van Cortland, 14 Johus. 15; Neuton v. ence to the contract, has always been considered an Swazey, 8 N. H. 13; Tilton v. Tilton, 9 id. 391; Malins act of part performance. Lester v. Foxcroft, 1 Cole v. Brown, 4 Comst. 410; Pulsifer v, Waterman, 73 Mo. Parl. Cas. 108; Lead. Cas. in Eq. 774*; Morphett v. 244; Kidder v. Barr, 35 N. H. 255.

Jones, 1 Swanst. 181; 4 Kent Com. 451*; Waterman Where there has been part performance the refusal Spec. Perf., $ 270 to complete it is in the nature of a fraud, and the de- Although it was formerly held otherwise, the aufendant is estopped to set up the statute of frauds in thorities now all agree that mere payment of the condefense. Potter v. Jacobs, 111 Mass. 37 ; Fry Spec. sideration alone will not take it out of the statute. Perf., 8 384; Adams Eq. *86; 3 Pom. Eq. Jur., $ 1409. Webster v. Blodgett, 59 N. H. 120; Glass v. IIulbert, 102

We must in tbis cage then examine and ascertain Mass. 28. Nevertheless possession together with paywhat the contract was in fact, the extent of its execu- ment is sufficient part performance; and this act is tion by the party seeking aid, and in what the injury, greatly strengthened where improvements have been hardship or fraud would consist if a performance were made, serving to explain and define one act of part denied.

performance" to which it is itself a superadded and The contract set forth in the bill and admitted by contributory act.” Brown St. Frande, S 487; Tilton the demurrer, was that the complainant was to pay v. Tilton, 9 N. H. 390; Wetmore v. White, Caives' Jeremiah G. Spaulding, now deceased, the sum of Cas. Err. 109; Story Eq. Jur., $ 703; Stark v. Wilder, 36 $400, $100 of which was to be paid dowı), and the bal- Vt. 755; Waterman Spec. Perf., $S 270, 280.

to be paid in such sums, at such times, and in The law is thus correctly stated by the Suprenie such manuer as might thereafter be convenient for the Court of Vermont: “It is equally well settled that complainant,” and at the completion of said payments where the purchases pays the whole or a part of the the complainant was to have a warranty deed of the purchase money, and enters into possession of the premises free of all incumbrance.

premises, or does acts relying upon the agreement,that It further appears that in pursuance of said agree- place him in such a position that the refusal by the meut the complainant entered into the possessiou and seller to execute the contract on his part will operate use of the premises the next day (April 12, 1862), aud to his prejudice and injury, beyond the payment of has ever since, during a period of more than twenty- the money, so that the repayment of the money, or the one years, with the full kuowledge and consent of the recovery of it, will not be an adequate remedy, then respondents' intestate, continued in the possession and such acts will take the case out of the statute, and use of the same; that payment iu full was completed warrant a court of equity in decreeiug a specific per

ance.

ance

formance of the contract. A refusal under such cir- ground that it would be inequitable and unjust. lloll cumstances to execute the contract, it is sometimes said v. Rogers, 8 Pet. 433; Burnard v. Lee, 97 Mass. 93. in the books, operates as a fraud on the purchaser.”' “Inexcusable luches and delay," says Folger, J., in Stark v. Wilder, 36 Vt. 755.

Merchants' Bank v. Thomson, 55 N.Y. 12, "will debar The defense here claimed by the respondents in re- a party from the relief which, they being absent, be lation to the statute of frauds cannot prevail. The might have by a judgment for specific performance." facts alleged and admitted by the pleadings are suffi- But whenever the delay is attributable to the party recient to eonstitute part performance on the part of the sisting performance, he will not be allowed it as a decomplainant, tltereby taking the case out of the statute fense. Munro v. Tuylor, 3 Mc. N. & G. 7:23; Morse v. and entitling him to a decree for specific performance, Merest, 6 Madd. 26; Spurrier v. Hancock, 4 Ves. 667. unless by his delay in asking relief he has slept upon his In Lloyd v. Collett, 4 Bro. Ch. Chs. 469, Lord Lough. rights, and been guilty of such laches as would deprive borough said the conduct of the parties, inevitable achim of that right.

cident, etc., might induce the court to relieve, notBy the terms of the contract the complainant was withstanding the lapse of time. And in Waters v. entitled to a deed at the time when he completed his Travis, 9 Johns. 450, the court held that mere lapse of payments for the land, which was something more time is not in all cases an objection to decreeing spethan twelve years prior to the death of Spaulding. It cific performance; and in that case where an agreecannot be claimed that until after the payments were ment for the sale of land was suffered to remain unexcompleted the complainant was in fault by reason of ecuted for fourteen years, the vendee having contin. any delay.

ued in possession, the court under the circumstances Where a vendee of land had paid a large part of the of the case decreed specifio performance of the conpurchase-money, and a judgment was rendered for the tract. balance, it was held that a delay of eighteen years to It was stated by Spencer, J., that the continuance of enforce the contract was not a bar to a suit for specific the possession by the tacit consent of the respondent performance. McLaughlin v. Shields, 12 Penn. St. was a constant and continued affirmance on his part 283.

that the holding was under the agreement, and that In considering this branch of the case we are per- this was irresistible evidence that the agreement was mitted to regard the situation of the parties, their re- not abandoned by the parties, and their conduct was lation to each other, and the circumstances of the case such as to leave no doubt that they both looked to the as gathered from the facts alleged.

future performance of it, and brought it within the The parties were near relatives, and the trust and principle laid down by Lord Loughborough. These confidence in each other, whether well-founded or views are supported by Barnard v. Lee, 97 Mass. 93, otherwise, seems to have been reciprocal. The com- and cases there cited; Ahl v. Johnson, 20 How. 521; plainant was to have a warranty deed “free and clear Taylor v.Longworth, 14 Pet. 175; Hubbell v. Von Schoenof all incumbrances;” but it appears that at the time ing, 49 N. Y. 330; Eyre v. Eyre, 19 N. J. Eq. 102. Iu of the contract these premises, together with other the case last cited there had been a delay for fifteen lands of said Spaulding, were incumbered by mort- years in calling for specific performance for the cougage, and remained thus incumbered till about a veyance of land under a parol contract, and without month prior to his death. He had many times ac- any attempt to enforce it in the life-time of the knowledged payment in different parties, promised to vendor. give complainant a deed, and it is alleged would have Mr. Justice Clifford, in the opinion of the court andone so had he not died.

nounced by him in Ahl v. Johnson, supra, says,

“that With whom are the equities in this case? Would a courts of equity, as a general rule, have always claimed decree for specific performance be doing injustice, or and exercised the right to decree specific performance would a denial of it be inequitable?

of agreements in respect to the purchase and sale of The respondents represent the deceased, and there is real property, in their discretion, and usually to a more nothing that shows any change in the situation of the liberal extent in favor of purchasers than those who parties, or the property, or any new interests interven- contract to sell such properties." ing that would render a decree inequitable. The death The court expects the party to show that the relief of either party to such a contract does not impair its which he is seeking is under all the circumstances of obligation, and forms no objection to the maintaining the case equitable, and to account in a reasonable manof a bill for specific performance in a case where such ner for this delay. Taylor v. Longworth, 14 Pet. 175. performance might have been enforced had the party This is more often the case where the contract is execlived. Newton v. Swazey, 8 N. H. 14; Kidder v. Barr, utory on the part of the complainant, than when it has 35 id. 253. Here had been full execution of the con- been executed by him. Barnard v. Lee, 97 Mass. 95; tract on the part of the complainant and full payment Waterman Spec. Perf., $ 480. by him. If the contract were executory on his part, In this case the equities seem to be with the comand none or a part only of the consideration had been plainant. True there has been delay in seeking bis paid, the equities between the parties would stand in equitable relief, but under the circumstances of this à different light. The court remarks in K'ing v. Ham- case, not such gross negligence as will necessarily deilton, 4 Pet. 3:28, that “when a party comes into a court feat his right. He was admitted into possession of the of equity seeking equity be is bouud to do justice, and premises, and has lived there all the time under the not to ask the court to become the instrument of in- agreement, paying the taxes and treating the property iquity."

as his own, paying in full the consideration in accordIn cases where the contract is not fully executed on ance with that agreement, without objection from the the part of the complainant seeking for a decree of spe- respondents' intestate, Spaulding. Such occupancy, cific performance, and even where time is not of the taken in connection with the relation and situation of essence of the contract, courts of equity will not inter- the parties, the length of time it has continued, the fere where there has been long delay and laches on the fact of its incumbrance by mortgage, the admissiou of part of the party seeking specific performance.

payment and of proinise to convey, indicates that the Especially is this true where there has in the mean- delay in completing the contract by executing and detime been a great change in the circumstances, as in livering a deed is certainly as much, if not more, atthe value of the land, and new interests have inter- tributable to the deceased as to the complainant, vened. Iu such cases the refusal is upon the plain And it is as evident that this delay has been acquiesced

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