political in character, through any law written or unwritten which goes only to the rights of the parties, and has no public object to serve apart from doing justice between man and man. In a case in which it appeared that a few days after the marriage, the husband, an elderly man, disclosed to the young wife for the first time that he had been induced by certain persons to make over his property before he married, there being an ante-nuptial promise that immediately after the ceremony he would make a deed of settlement, the court said: "The wife has been fraudulently deprived of dower by the deeds in question; to that extent of this interest, if no further, their execution was a fraud upon her and ought not to stand." As between parties, an oral ante-nuptial contract that neither party should claim or interfere with the property of the other any more than if they had not married, is unquestionable, and also as to all claiming as volunteers under them. While the wife's right and interest in the real estate of her husband not occupied by the family as a homestead is inchoate and uncertain, yet it possesses the element of property to such a degree that she may maintain an action during the life of her husband to prevent its wrongful alienation or disposition under fraudulent judgments procured and consented to by the husband with the object and purpose of defeating her right. [Inadequacy of Consideration.] The power of enforcing agreements specifically, which is discretionary, will not be exercised by courts of equity but to subserve the cause of justice. Such contracts as are enforced must be fair and just in all their parts, and for adequate consideration. Whenever the bargain is a hard one, bordering on oppression; where there has not been perfect fairness; where any facts have been concealed which should have been disclosed; or where any unfair advantage has been taken; in those cases equity will not decree a specific performance, but leave the party to his remedy at law. Inadequacy of price may of itself, and without fraud or other ingredient, be sufficient to authorize the court to refuse its aid in enforcing the performance of a contract for the sale of land, though it might not be sufficient to set aside the contract. The cases in which a court of equity decrees specific performance of contracts are those where damages recovered at law would not answer the intention of the parties in making the contract. If a contract has been entered into by a competent party, and is, in its nature and circumstances, unobjectionable, it is as much a matter of course to decree specific performance as it is to give damages at law. Unless the inadequacy of price is such as shocks the conscience, and amounts in itself to conclusive evidence of fraud in the transaction, it is not sufficient ground for refusing a specific performance. There are many cases where equity will not disturb an agreement which has been executed, though it would have refused to carry it into execution. It has been held that the difference arising from the calamities of the times ought not to rescind a contract. And it has also been held that a contract for the sale of land, for an annuity for the life of the vendor, shall be performed by the vendor's heirs, though he died without receiving any part of it. It being admitted that the inadequacy existed at the time of the contract, and was known to both parties, the court will not permit the purchaser afterwards to be off from his contract, because he did not succeed in his speculation. A contract which carries an equity to have it decreed in specie, ought to be without all objection. After a full consideration of a case in which there was no proof of fraud or imposition, and taking notice of the distinction between setting aside an unreasonable contract, after it is executed, and compelling a specific performance, the court held that the sum for which the land was agreed to be sold was grossly inadequate to its real value, and that, being an unreasonable contract and a very hard bargain, it would be unreasonable and unjustifiable to decree a specific performance, and left the plaintiff to his remedy at law. The court will never decree iniquity, and there are instances where they have refused to decree hard bargains, though fair; but these are rare, and are generally cases of glaring hardships. The court will not undertake to estimate the speculations of parties in a contract, but will deem them the best judges of their own views, and will compel a performance, though they may be eventually disappointed in their expectations. Though inadequacy of price is not a ground for decreeing an agreement to be delivered up, or a sale rescinded (unless its grossness amounts to fraud), yet it may be sufficient for the court to refuse to enforce performance. It is not uncommon for the court to refuse to enforce for inadequacy, and at the same time to refuse to rescind. The court is not bound to decree a specific performance in every case where it will not set aside the contract, nor bound to set aside every contract of which it will not decree the specific performance. The court will not decree specific performance where there is any surprise, making it not fair and honest to proceed and call for specific performance. From the views expressed in some principal cases it will be noticed that the question is one upon which learned jurists have differed, and have administered the equity of the court upon diametrically opposite principles. The one class maintain that the court will not lend its aid to enforce the performance of contracts unless they are fair, just and reasonable, and founded on adequate consideration. The other class maintain that unless the inadequacy of price is such as shocks the conscience, and amounts in itself to decisive and conclusive evidence of fraud in the transaction, it is not of itself a sufficient ground for refusing a specific performance. Explaining that the formula, that the inadequacy "must be so great as to be of itself conclusive evidence of fraud," was first used at a time when courts were in the habit of regarding fraud as a conclusion of law established by means of legal presumptions, but as fraud is now regarded as a fact, and its existence is ascertained, like that of any other fact, by comparing and weighing the evidentiary matter, Pomeroy says: Inadequacy is evidence, and the only rule which can possibly be laid down is, that it must be to the judgment of the triers, satisfactory evidence of the fraud. The rule, thus finally settled by the cases, is plainly founded upon motives of convenience and not upon the analogies of principle. Theoretically considered, inadequacy in the price, or of subjectmatter, is a species of inequality and unfairness, and may be an instance of hardship and oppression. That it is not governed by the general rules applicable to those incidents of a contract is due entirely to the great difficulty of deciding, in each particular controversy, upon the numerous and different considerations and motives which enter into and affect the question. Rather than meet this difficulty, which necessarily arises from the treatment of inadequacy merely as a hardship, the courts have preferred to regard it as evidence of fraud. It may well be doubted however, whether the difficulty has been lessened by the adoption of this method.1 [Want of Mutuality.] It is a general principle of courts of equity to interpose only where the remedy is mutual in obligation. The authorities fail to mention a case of a bill being filed by an infant for the specific performance of a contract made by him. The act of filing the bill by his next friend cannot bind him. Where persons have entered into an agreement to execute a deed containing certain provisions, the court will order the execution of such deed without regard to the question whether or not its provisions are such as it can decree to be specifically performed; and it will in such cases consider it to be the substantial part of the agreement, that a deed should be executed so as to vest in the parties the legal rights which they have mutually agreed to confer. A distinction has been drawn between the case of an agreement to execute a deed, which the court would decree 1 to be specifically performed, and an agreement to do acts beyond the power of the court to enforce. The court cannot decree specific performance of part of an agreement, so as to give to the plaintiff all the benefits for which he has stipulated, while the other terms of the agreement are of such a nature that it is unable to decree specific performance of them. Cases in which the court has held that if the thing must be performed at all it must be performed in toto have no application to an agreement, which in its very terms and from its very nature contemplates successive performances of successive parts independently of one another. There are many unilateral contracts, which constitute an exception to the rule under which equity will decline to enforce a contract against a defendant, where the case is of such a nature that the court has no power to compel the complainant to perform his part of it. The exceptions include the right to exercise certain options; a renewal of a lease will be enforced against the lessor, though the lessee is under no reciprocal obligation to accept an additional term; in cases affected by the statute of frauds; and in others, which stand on peculiar principles. Equity will not enforce the performance of continuous duties involving personal labor and care of a particular kind which the court cannot superintend. To do so the court might have to keep the case open for all time, or even for an indefinite term of years, to superintend the continuous performance of those duties. This might involve the frequent necessity on the part of the court of hearing complaints from the defendant, charging the complainant with a breach of his duties, or from the complainant, arraigning the defendant for contempt for a violation of the injunction. There would thus be no end to the number of occasions when the court might be called on, from year to year, to say whether the complainant has performed his duties faithfully and efficiently, so as to have kept the injunction in force, or negligently and unskilfully, so as to justify its breach. An option to sell land is as valid as an option to buy. |