defects in the vendor's title be trifling or comparatively small, equity will decree at his instance granting compensation for such defects."

The section quoted is but a modification of the general rules recognized by courts of equity in reference to application for the specific performance of contracts. "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 may be compelled to take the property, and a suitable deduction will be made in the price. 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." Eq. (5th Ed.) § 389.

Bisp.

In Gould v. Murch, 70 Me. 288, 35 Am. Rep. 325, it was held: When the owner of land with a building thereon agrees to convey it at a future day on payment of the purchase money, and before payment and conveyance the building is destroyed by fire without the fault of either party, the loss must fall upon the vendor; and, if the building formed a material part of the value of the premises, the vendee cannot be compelled to take a deed to the land alone, and pay the purchase money. See, also, Smith v. Cansler, 83 Ky. 367; Wells v. Calnan, 107 Mass. 514, 9 Am. Rep. 65; Powell v. Railroad Co., 12 Or. 488, 8 Pac. 544; Kinney v. Hickox, 24 Neb. 167, 38 N. W. 816; Huguenin v. Courtenay, 21 S. C. 403, 53 Am. Rep. 688.

It may be stated as a general rule that, where property which is the subject of a contract of sale has been substantially damaged or materially changed between the date of the contract of sale and the time when the vendor offers to convey, the courts will not decree a specific performance of the contract at the instance of the vendor. The reason for this is apparent. The vendor has no right to force upon the vendee something which he has not agreed to buy. The rule is different, however, when the application for specific performance comes from the vendee. There is a manifest reason for this difference. The vendee has a right, if he sees proper to do so, to accept less than he bargained for, and compensation for the loss of that which he does not obtain. If, for any reason, the vendor cannot convey to the vendee substantially what the contract calls for, of course a specific performance of the contract according to its terms is impossible.

Such obstacles to a specific performance may arise from a defect in the title to some portion of the premises bargained for, or from the fact that the interest of the vendor is different from that described in the contract, or the property may be subject to liens or incumbrances, or, if the subject of the contract is land, it may be deficient in quantity or quality or value. "In such a case there are only three possible al

13

ternatives for a court of equity to pursue: Either to refuse its remedy entirely; or to enforce the contract without any regard to the partial failure, compelling the purchaser to take what there is to give, and to pay the full price, as agreed; or to decree a conveyance of the vendor's actual interest, and allow to the vendee a pecuniary compensation or abatement from the price proportioned to the amount and value of the defect in title or deficiency in the subject-matter." Pom. Cont. § 434.

In the same connection the author just quoted says: That the first alternative might often contravene the wishes and interests of both parties, and cannot, therefore, be taken as the universal rule. That the second one would be extremely unjust and inequitable, though it is occasionally resorted to when the vendee is not in a situation which entitles him to favorable consideration. That the third is based upon equitable principles. It endeavors to preserve the rights of both parties, and is therefore constantly resorted to and applied by courts of equity in aid of a vendee, and sometimes, although under more and greater restrictions, in aid of the vendor. But that there are circumstances under which even a vendee is not allowed to avail himself of the doctrine. In section 435 the same author says: "If the purchaser is willing and desirous to take the partial interest which the vendor can convey, and especially if he is the party calling upon the court for relief, there can be but little difficulty in granting him the remedy of performance, with a reasonable compensation for the defects."

Mr. Bispham, in his work on the Principles of Equity, thus states the rule: "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." Bisp. Eq. (5th Ed.) § 390. See, also, Fry, Spec. Perf. (3d Ed.) §§ 1222, 1223; 2 Story, Eq. Jur. (13th Ed.) § 779; 2 Suth. Dam. (2d Ed.) § 589, p. 1311; 2 Beach, Mod. Eq. Jur. §§ 624, 627; 22 Am. & Eng. Enc. Law (1st Ed.) pp. 942, 943; Harbers v. Gadsden, 6 Rich. Eq. (S. C.) 284, 62 Am. Dec. 390.

The text-books and cases cited show that the doctrine of specific performance, with compensation for defects when the vendor cannot convey exactly what his contract calls for, is thoroughly established, and it is in rare cases where the court will refuse such relief at the instance of the vendee. It is true that in nearly if not quite all of the cases the inability on the part of the vendor to convey what the contract called for arose from some fact which was in existence at the time the contract of sale was made, such as defects in the title to a part of the premises, deficiency in quantity or quality or value of the property which was the subject-matter of the contract, and the

SPECIFIC PERFORMANCE

like. There does not seem, however, to be any good reason why the principle should not be applicable where the inability of the vendor to convey a part of that which his contract stipulated for arose subsequent to the making of the contract, out of some transaction in which the vendee was not involved; and the fact that the vendor was himself without fault would not seem to be an obstacle which would prevent the application of the rule.

Requiring a vendor to pay damages to his vendee for a failure to convey property which subsequent to the execution of the contract of sale was destroyed by fire is no greater hardship than requiring a vendor to pay damages on account of his having ignorantly, though honestly, and after the exercise of all possible diligence, bargained away something which he did not own, but which he believed was his own. That he would be required to pay damages in the latter case, no one will doubt. That he should be in the former case, ought not, it would seem, to be questioned, upon principle.

In Lombard v. Chicago Sinai Congregation, 64 Ill. 477, which was a case of an executory contract for the sale of real estate, where the vendor was to furnish an abstract of title, and, if not satisfactory, he was to have the option of perfecting the title, or annulling the contract and returning the money paid, and the abstract failed to show title, and the vendor failed to exercise his option, after notice to do so, until after buildings thereon were destroyed by fire, the vendor still remaining in possession, it was held, on a bill by the vendee for the specific performance of the contract as to the land, and compensation for the buildings and property destroyed, that the contract was not so complete as to make the land the property of the vendee, so as to throw upon him the loss of the buildings, and that upon specific performance. being ordered the vendee was entitled to compensation for the loss, to be deducted from the purchase money, and that the vendor was entitled to interest on the unpaid purchase money only from the time a good title to the property was shown, the vendor being entitled to the rents and profits up to such time.

The case just referred to is the only one which has been called to our attention which is at all similar to the present case. Upon principle, however, we have no hesitancy in holding that the vendee in a case like the present is entitled to have a conveyance made to him of the land, and compensation for the loss of the building, provided the loss thus sustained is capable of computation. If the plaintiff sustains his allegations, a decree should be entered that the defendants convey to him the land which was the subject-matter of the contract, and that the purchase price be abated in such an amount as is just and reasonable in view of the changed condition of the property.

4. If the difference in value between the interest contracted for and the interest that can be conveyed is incapable of computation, of course the court will not undertake to enter a decree for specific performance, with compensation for defects. But, as has been said, in the light of

many adjudicated cases, "It is conceived that the court will seldom now consider a difficulty of this kind insuperable." Fry, Spec. Perf. (3d Ed.) § 1240.

We do not think the present case falls within the rule above referred to, as it seems to us that the amount which should be allowed to the plaintiff as compensation for the loss sustained by him in not obtaining a conveyance of the land with the building on it can be made the subject of exact computation. Let it be kept in mind that the plaintiff is entitled to be placed, so far as property and money will place him, in exactly the same position that he was in on the day that the contract of sale was entered into. If on that day the property was worth more than he agreed to pay for it, he is entitled to the profit on his bargain. If, on the other hand, the property was worth less than he agreed to pay for it, he must suffer the loss. Let it be ascertained what was the market value of the property with the building on it on the day that the contract was entered into. Let it also be ascertained what was the market value of the lot without regard to the building on that day. If the market value of the improved lot was more than the contract price, the difference between these two sums would be the profit that the plaintiff would have realized on his bargain. Deduct the amount of profit from the market value of the lot alone, and the sum remaining will be the amount which the plaintiff should be required to pay. If the market value of the property and the contract price are the same, then the plaintiff should be required to pay a sum which would equal the market value of the lot without the building. If the market value of the whole property was less than the contract price, then the plaintiff should be required to pay the market value of the lot without the building, and in addition to this the difference between the market value of the lot and building and the contract price. provided that in no event should the plaintiff be required to pay more than $16,000.

While we find no rule for computing the amount of compensation in such cases, we think the above rules are in accordance with equitable principles, and are deducible from the general rules which seem to have been recognized by the courts and text writers. See, in this connection, Smith v. Kirkpatrick, 79 Ga. 410, 7 S. E. 258; 2 Suth. Dam. (2d Ed.) pp. 1311, 1312; 2 Beach, Mod. Eq. Jur. § 629; Wilcoxon v Calloway, 67 N. C. 463; Fry, Spec. Perf. (3d Ed.) § 1239. The prayers of the petition were broad enough to authorize relief along the lines above indicated.

The court erred in sustaining the demurrer, and the case should be tried in the light of what is here laid down. Judgment reversed. All the justices concurring.

THROCKM.EQ.JUR. (2D ED.)-33

(Court of Chancery of New Jersey, 1883. 37 N. J. Eq. 6.)

Bill for injunction. On motion for mandatory injunction. On or der to show cause. On bill and answer.

The CHANCELLOR [RUNYON]. The complainants are Rev. Dr. Charles H. Whitecar, a minister of the Methodist Episcopal denomination, who has been duly appointed for the present conference year to the charge over the Methodist Episcopal Church at Moorestown, and certain of the members of that church. The defendants are the trustees of that church. The bill states that the defendants, on the 29th of March last, closed the church against the members and congregation, and have kept it closed ever since. It prays an injunction to compel them to open it for the religious uses to which it was dedicated.

It appears from the bill and the admissions of the answer that the church was organized under the rules, regulations, and discipline prescribed by the general conference of the Methodist Episcopal Church in the United States, and was duly incorporated on or about the 21st of August, 1815, under the act "to incorporate trustees of religious societies," by the name of "the Methodist Episcopal Church at Moorestown"; that Rachel S. Andrews, in September, 1858, conveyed to Deacon Brock, Caleb Fenimore, Thomas Marter, James Moore, John Ireland, Isaac Browning, and Paul Crispin, "trustees of the Methodist Episcopal Church at Moorestown in the county of Burlington and state of New Jersey," the lot of land on which the church edifice is built, for the use and benefit of the members of the Methodist Episcopal Church at Moorestown, and that afterwards the members of that church built thereon the church edifice in question as a place of worship, according to the rules of faith of the Methodist Episcopal Church in the United States, and subject to its discipline, and that the church edifice has been used as such from the time of its erection until it was closed by the trustees on the 29th of March last; that on the 27th of that month the Rev. Dr. Wiley, one of the bishops of the Methodist Episcopal Church of the United States, and in whom, by the rules and regulations of the general conference, was reposed the pow

1 For discussion of principles, see Eaton on Equity (2d Ed.) §§ 285, 286.