circumstances equity and good conscience require that the contract shall be specifically performed or whether the party should be left to his remedy at law for non-performance.

An action for specific performance is the same whether the contract is under seal or in writing, without seal or verbal, and does not depend and is not based solely upon the contract, but upon other circumstances in connection with the contract. Sometimes a specific performance will be granted of a contract void and not capable of being enforced.

In an equitable action for specific performance, the rule, amply sustained by authority, is that no tender or offer of performance by the other party to the contract and a demand of performance by plaintiff before suit is necessary; that it is enough that he is ready and willing to perform at the time of bringing the action (unless his rights have been lost by laches), and that he offers to perform in his complaint. The reason for this equitable rule is that in such cases the court can grant just such relief as a party may show himself entitled to, and upon such conditions as will protect the other party.

Change in the circumstances of the parties, and in the situation of the subject-matter of the contract, the destruction of evidence, and the death of one of the parties to the contract, who if living could make clear what his successor might not be able to explain, have been given as reasons for denying the relief.

Affirming the decision of the Circuit Court for Volusia County, Florida, which sustained a demurrer interposed to a bill to compel the specific performance of a contract for the sale of real estate, on the ground of lack of equity, Justice Brewer said:

Nowhere on the face of the bill is the value of the property disclosed; nothing to show a value sufficient to give jurisdiction to the Circuit Court, but by the affidavits filed after the decree of dismissal it appears that the entire property was worth at the time of the decree (which was less than a month and a half after the filing of the bill) the sum of $15,000. The half interest was worth at the date of his contract, as shown by the stipulated price, but $150, while at the time he brings his suit it is worth $7,500. It does not appear that he has done anything towards bringing

about such increase of value, and no excuse is shown for his ignorance of the exact condition of affairs, or his inattention to the matter, except his residence in a remote province.

So that we have presented the case of one who, investing a dollar in a proposed purchase of lands, and doing nothing to assist his vendor in furnishing the property or performing the work necessary to be furnished and performed by such vendor to acquire title to the lands, waits nine years after his contract has been entered into, nearly nine years after he has good reason to believe that such vendor repudiates all liability under the contract, nearly five years after notice has been given by such vendor of his acquisition of the title by filing the deed in the public records, two years after he receives actual notice of that fact, and then without the tender of any money, or other consideration, appeals to a court of equity to compel such vendor to deed to him an interest in land worth at the time of his contract only $150, and now $7,500. It seems to us to be a case of purely speculative contract on the part of the plaintiff; doing nothing himself, he waits many years to see what the outcome of the purchase by defendant shall be. If such purchase proves a profitable investment, he will demand his share; if unprofitable, he will let it alone. Under those circumstances the long delay is such laches as forbids a court of equity to interfere.

[Abatement of Consideration for Part Performance.]

Where a man proposes to convey the whole of an estate as owner in fee simple, and it turns out that he is only entitled pur autre vie, and that his wife has the remainder, there the court can insist on his making good his contract to the extent to which he is able to make it good, and he must submit to an abatement of the consideration to be paid for that which he improperly alleged he was capable of selling.

The general rule is that where there is a deficiency in quantity, such deficiency is properly the subject of compensation; but that rule must be confined within certain limits. Where a person sells a certain number of acres, and finds that he has only little more than half of what he has disposed of, that is not a case for compensation, but one for avoiding the contract.

If a man sells freehold land, and it turns out to be copyhold, that is not a case for compensation; so if it turns out to be leasehold, that is not a case for compensation; so if one sells property to another who is particularly anxious to have the

right of sporting over it, and it turns out that he cannot have the right of sporting, because it belongs to somebody else, it is not a case in which the court can ascertain what should be the amount of compensation to be given. In all these cases the court simply says it will avoid the contract, and it will not allow either party to enforce it, unless the person who is prejudiced by the error be willing to perform the contract without compensation.

The cases in which the contract has been enforced partially, and a partial interest has been ordered to be conveyed, have been where the vendor has represented that he could sell the fee simple, and the purchaser has been induced by that representation to believe that he could purchase the fee simple.

In some cases where the vendor shows title to a portion only of the land contracted, or has wrongfully parted with part, justice may be done by an apportionment of the consideration, if the vendee consent to take part with an abatement of the price. So, where the vendee knows at the time of entering into the contract that the vendor has title to a part only of the land, compensation will be denied.

Equity looks at the substance of the contract, and when the agreement can be substantially, though not literally, carried out, without changing the nature of the contract, or substituting a new one, and do justice between the parties, it will be so enforced. The doctrine of compensation rests upon this principle.

And so where land is held as tenants in common by several persons who have jointly agreed to convey the same, some of whom are not bound or are deceased, those who are liable, or who survive, may be compelled in a suit on the contract, to convey their individual or proportionate interests as tenants in common.

If a defect in title existed at the date of contract, or was due to some fault or to some act of the vendor subsequent to the contract, the court will generally entertain an action for specific performance and retain jurisdiction for the purpose of awarding damages. But where the defect in the title arises

after the making of the contract, without any fault of the vendor, and the vendee knew of the defect in the title when he commenced his action, it was formerly the rule that the court would not retain the action for the purpose of awarding damages. This rule was adopted because the vendee should not commence a fruitless action in equity simply to recover there his damages for breach of contract. The rule has been modified by the practice which authorizes the joinder of legal and equitable causes of action, and while the equitable relief will be denied in such a case, now the action will be retained and the issue as to breach of contract and damages will be sent to a jury for trial.

This rule was adopted in equity not solely because at the time of the commencement of the action the defects in the title existed to the knowledge of the vendee, but also because the case was such that at the time of the rendition of the judgment the court could not grant the equitable relief. The rule and the ground upon which it is based have no application to a case where the defect has disappeared at the time of the trial, and the court can then give an effective judgment for the equitable relief demanded.

The plaintiff in an equity action, as a general rule, should not be turned out of court on account of any defence interposed to his action, if at the time of the trial the facts are such that, if he then commenced his action, he would be entitled to the equitable relief sought.

If a vendor has no title or a defective title to land which he contracts to sell, and subsequently obtains a perfect title, he can be compelled by the vendee to perform his contract. And why should the vendor not be compelled to perform if he perfects his title while the action for specific performance is pending? A perfect title by the vendor is no part of the vendee's cause of action, and he is just as much entitled to equitable relief, and the equity court is just as competent to give it, whether the title was perfected before or after the commencement of the action.

The doctrine that a court of equity will decree the specific performance of an agreement by which the husband cove

nants that his wife shall execute a conveyance to bar her of her estate, when performance is resisted on the ground of the wife's refusal to join in the deed, was pointedly and emphatically condemned by Justice Story.

An eminent English jurist decides these points: that a husband and wife, having a joint power of appointment by deed over the wife's estate, agree in writing to sell it, a decree for specific performance cannot be against them; and under a contract by husband and wife for sale of the wife's estate, the court will not decree him to procure her to join.

If the refusal of the wife is made in bad faith, or by the procurement of the husband, merely to enable him to escape his just obligation, the court may decree a conveyance by the husband alone, and compel him to give indemnity by mortgage or otherwise against the claim of the wife.

[Liquidated Damages for Breach of Contract.]

For the breach of contracts the common law gives a single remedy. It requires the wrongdoer to pay a sum of money as compensation. But there are many contracts for the breach of which such a remedy is inadequate; and that inadequacy has given rise to the jurisdiction of equity to enforce specific performance of contracts, requiring the performance or omission of the very acts agreed upon. The remedy is thus made identical with the right withheld, and the defendant is thereby deprived of the option which the legal remedy practically gives him, to disregard the actual obligation by which he is bound, and pay a sum of money in place thereof. The inadequacy of the legal remedy, by compensation in damages is generally regarded as conspicuous in cases of agreements for the sale and purchase of real estate, each parcel of which differs in some respects from others. Such property is usually bought because it possesses some feature which attracts by personal gratification, and determines the purchaser to make some particular use of it. In his book on Specific Performance, Lord Justice Fry says: The question always is, What is the agreement? Is it that one certain thing shall be done, with a penalty added to secure its performance, or is