1 Relief in Chancery. Specific Performance, Trust, Mistake, Fraud. 669. The aid of a court of chancery will be | 673. The plaintiff, who seeks for the specific given to either party who claims specific per- performance of an agreement, must show that formance of a contract, if it appear, that in good he has performed, or offered to perform, on his faith, and within the proper time, he has per- part, the acts which formed the consideration of formed the obligations which devolved upon the alleged undertaking on the part of the dehim. Ibid. fendant. Ibid. 676. After a lapse of seven years, the supreme court will refuse to decree a specific performance of a contract, in the part execution of which the complainants, or those under whom they claim, have expended large sums of money: although the first default was on the part of the defendant; and although it be probable that the failure of the defendant, in that respect, has prevented the completion of the execution of the contract on the part of the complainants: circumstances having so changed, that neither party could derive from the execution of the contract, all the benefits which were at first expected. Pratt et al. v. Carroll, 8 Cranch, 471; 3 Cond. Rep. 222. 670. A bond was executed in 1787, by which 674. A vendor may compel a specific executhe obligor bound himself to pay one hundred tion of a contract for the sale of land, if he is pounds for a horse, or to make over to the obligee able to give a good title at the time of the dehis interest in a certain entry and warrant of cree; although he had not a good title at the land; and if the deed or grant for the land time when, by the contract, the land ought to should issue to him, to transfer the land by deed, have been conveyed. Hepburn & Dundas v. and to warrant and defend the said deed. The Colin Auld, 5 Cranch, 262; 2 Cond. Rep. 247. obligor elected to pay the bond, by giving the 675. But a court of equity will not compel a land for the same. He made no valid convey-specific performance, unless the vendor can make ance of the land in his lifetime; but it was taken a good title to all the land contracted to be sold. possession of by the obligee; and has ever since Ibid. been occupied under the title so acquired by the obligee. After the son and sole heir of the obligor came of age, he commenced an action of ejectment for the land; and those who claimed title under the obligee, filed a bill for an injunction, and that the defendant, the plaintiff in the ejectment, be decreed to convey the land according to the stipulations in the bond. This bill was filed in 1822. The supreme court said, In considering the question as to the genuineness of the bond on which this controversy is founded, the first important fact that occurs to the mind is, the remoteness of the transaction. Nearly half a century has elapsed since this instrument purports to have been executed. The obligor, and the obligee, and both the witnesses, are dead. The contract belongs to the past age. It was executed, if at all, when the country was new and unsettled; and the parties to it seem to have been illiterate men, and unacquainted with business transactions. These circumstances are referred to, not to show that this bond should be received without proof, but to show that as strict proof should not be required of its execution, as if it were of recent date. The law makes some allowance for the frailties of memory; and where a great length of time has elapsed since the signing of an instrument attempted to be proved, circumstances are viewed as having an important bearing upon the question. Coulson v. Walton, 9 Peters, 62. 671. It is a universal rule of equity, that he who asks for a specific performance, must be in a condition to perform himself. Therefore, in a suit for the specific performance of a contract, by conveying lands in Ohio, stipulated to be conveyed as the consideration for other lands sold in Kentucky; it was held, that the vendor, being unable to make a title, free from encumbrances, to the lands sold in Kentucky, was not entitled to a decree for a specific performance. Morgan's Heirs v. Morgan, 2 Wheat. 290; 4 Cond. Rep. 120. 672. In order to obtain a specific performance of a contract, its terms should be so precise, as that neither party can reasonably misunderstand them. If the contract be vague and uncertain, or the evidence to establish it be insufficient, a court of equity will not enforce it, but will leave the party to his legal remedy. Colson v. Thompson, 2 Wheat. 336; 4 Cond. Rep. 143. 28* 677. A court of equity will decree a specific performance of a contract for the sale of land, if the vendor is able to make a good title at any time before the decree is pronounced; but the dismission of a bill to enforce a specific performance in such a case, is a bar to a new bill for the same object. Hepburn & Dundas v. Dunlop & Co., 1 Wheat. 179; 3 Cond. Rep. 529. 678. The inability of the vendor to make a good title at the time the decree is pronounced, though it forms a sufficient ground for refusing a specific performance, will not authorize a court of equity to rescind the agreement in a case where the parties have an adequate remedy at law for its breach. Ibid. 679. The alienage of the vendee is an insufficient ground to entitle the vendor to a decree for rescinding a contract for the sale of lands, though it may afford a reason for refusing a specific performance as against the vendee. But if the parties have not an adequate remedy at law, the vendor may be considered as a trustee for whoever may become purchasers under a sale, by order of the court, for the benefit of the ven dee. Ibid. 680. The general rule is, that time is not of the essence of a contract for a sale; and a failure on the part of the purchaser or vendor, to perform his contract on the stipulated day, does not, of itself, deprive him of his right to a specific performance, where he is able to comply with his part of the engagement. Brashier v. Gratz, 6 Wheat. 528; 5 Cond. Rep. 161. 681. But circumstances may be so changed, that the object of the party can no longer be accomplished, and he cannot be placed in the same situation as if the contract had been per 2 R Relief in Chancery. Specific Performance, Trust, Mistake, Fraud. formed in due time. In such a case, a court of equity will leave the parties to their remedy at law. lbid. 682. If a bill for a specific performance be brought by a party who is himself in fault, the court will consider all the circumstances, and decree according to those circumstances. Ibid. 683. Part performance will, under some circumstances, induce the court to relieve. Ibid. 684. But where a considerable length of time has elapsed, where the party demanding a specific performance has failed to perform his part of the contract, and the demand is made after a great change in the title and the value of the land, and there is a want of reciprocity in the obligations of the respective parties, a court of equity will not interfere. Ibid. 685. A court of equity will not enforce a specific performance of a contract, as between the original parties, unless its terms are clear, definite, and positive, and, à fortiori, where the specific performance is sought against an assignee. Kendall v. Almy, 2 Sumner's C. C. R. 278. 686. A party, to entitle himself to a specific performance of a contract, must show that he has been always ready to perform his part of it. Ibid. 687. Where the vendor is indebted to the vendee, and the sale is made in order to pay the debt, the vendor must pay interest from the time the debt is liquidated, until he makes a good title; and the vendee is accountable for the rents and profits from the time the title is perfected, until the contract is specifically performed. Hepburn & Dundas v. Dunlop & Co., 1 Wheat. 179; 3 Cond. Rep. 529. 688. Generally speaking, a court of law is competent to afford an adequate remedy to either party for a breach of the contract by the other, from whatever cause it may have proceeded; and whenever this is the case, a resort to a court of equity is improper. Ibid. 689. But if the contract ought not, in conscience, to bind one of the parties, as if he had acted under a mistake, or was imposed upon by the other party, or the like, a court of equity will interpose and afford relief, which a court of common law cannot, by setting aside the contract; and having thus obtained jurisdiction of the principal question, that court will proceed to make such other decree as the justice and equity of the case may require. Ibid. 690. In 1799, the heir of the vendor, he having died, obtained a complete title to the land by patent, and the vendee did not die until seven years after. After his death, in 1806, no step was taken by his heirs or devisees, for the purpose of asserting any claim to a performance of the contract for the sale of the land until 1819, and no suit was commenced until 1823. In the mean time, the property had materially risen in value, from the general improvement and settlement of the country. By the supreme court:The objection, from the lapse of time, is decisive. Courts of equity are not in the habit of entertaining bills for a specific performance, after a considerable lapse of time, unless upon very special circumstances. Even where time is not of the essence of the contract, they will not interfere, where there have been long delay and laches on the part of the party seeking a specific performance. And especially will they not interfere, where there has, in the mean time, been a great change of circumstances, and new interests have intervened. In the present case, the bill is brought after a lapse of twenty-nine years. Holt and Wife v. Rogers, 8 Peters, 420. TRUST. 691. A merchant who endorses the bills of another on the faith of the guarantee of a third person, cannot, in case of the insolvency of the principal debtor and of the guarantee, resort to a trust fund created by the principal debtor for the indemnity of the guarantee, for the amount which the guarantee should pay. But the person for whose benefit a trust is created, who is to be the ultimate receiver of money, may sustain a suit in equity to have it paid directly to himself. Russell v. Clark's Ex'rs., 7 Cranch, 69; 2 Cond. Rep. 417. 692. A trustee cannot purchase, or acquire by exchange, the trust property. Wormley v. Wormley, 8 Wheat. 421; 5 Cond. Rep. 473. 693. Where the trustee, in a marriage settlement, has a power to sell, and reinvest the trust property, whenever, in his opinion, the purchasemoney may be laid out advantageously for the cestui que trust, that opinion must be fairly and honestly exercised; and the sale will be void, where he appears to have been influenced by private and selfish interests, and the sale is for an inadequate price. Ibid. 694. Query, How far a bona fide purchaser, without notice of the breach of trust in such a case, is bound to see to the application of the purchase-money. Ibid. 695. Where the purchase-money is to be reinvested upon trusts that require time and discretion, or the acts of sale and reinvestment are contemplated to be at a distance from each other, the purchaser is bound to look to the application of the purchase-money. Ibid. 696. Wherever the purchaser is affected with notice of the facts, which in law constitute the breach of trust, the sale is void as to him, and a mere general denial of all knowledge of fraud will not avail him, if the transaction is such as a court of equity cannot sanction. Ibid. 697. To establish the existence of a trust, the onus probandi lies on the party who alleges it. Prevost v. Gratz, 6 Wheat. 481; 5 Cond. Rep. 142. 698. In general, length of time is no bar to a trust clearly established to have once existed; and where fraud is imputed and proved, length of time ought not to exclude relief. Ibid. 699. But as length of time necessarily ob scures all human evidence, and deprives parties of the means of ascertaining the nature of the original transactions, it operates, by way of presumption, in favour of innocence, and against imputation of fraud. Ibid. 700. The lapse of forty years, and the death of the original parties, is, by the supreme court, deemed sufficient to presume the discharge and extinguishment of a trust proved once to have Relief in Chancery. Specific Performance, Trust, Mistake, Fraud. existed by strong circumstances, by analogy to the rule of law, which after a lapse of time presumes the payment of a debt, surrender of a deed, and extinguishment of a trust, where circumstances require it. Ibid. 701. A trust created by a parol contract, will be enforced in equity against a party who does not insist upon the defence of the statute of frauds. Flagg v. Mann, 2 Sumner's Rep. 487. 702. A trustee is, in general, suable only in equity; but if he choose to bind himself by a personal covenant, he is liable at law for a breach thereof, although he describe himself as covenanting as trustee. And so is an agent or executor. Craig et al. v. Duvall, 2 Wheat. 45; 4 Cond. Rep. 25. 703. Equity has cognisance only of executory trusts, not of those executed, or where a trust can be enforced at law; there must be some act to be done by the trustee. Baker v. Biddle, 1 Baldwin's C. C. R. 422. 704. A trust once executed cannot be revived by the non-execution of a trust resulting from the subsequent agreement relative to the same subject. Ibid. 705. An agency, closed wholly on any distinct matter, as to which no act remains to be done by the agent, is not cognisable in equity, under the head of account or trust. Ibid. 706. Notwithstanding a judgment, the court will, where the judgment creditor asks relief against a fraudulent conveyance, look into the original consideration, and give the creditor only what on the whole appears due to him. Bean v. Smith, 2 Mason's C. C. R. 252. 707. Where, from personal differences between trustees appointed by a will to manage the property devised, or from the residence of the trustees at different places, an agent to trans: act the affairs of the trust is required and is necessary; the circuit court will appoint such agent. Barings v. Willing & Hare, 4 Wash. C. C. R. 251. be paid by defendant as such, although there was no substantive covenant, by his intestate, to execute the trusts. Burton and Wife v. Smith, 4 Wash. C. C. R. 522. 709. In this case, there was no necessity to make the other creditors of C. parties to the suit; nor would it be proper, except in case of collu❘sion with the executor or administrator. lbid. MISTAKE. 710. If a mistake exist, not in the instrument, which is intended to give effect to an agreement, but in the agreement itself, and is clearly proved to have been the result of ignorance of some material fact; a court of equity will, in general, grant relief, according to the nature of the particular case in which it is sought. Hunt v. Rousmanier, 1 Peters, 13. 711. If an agreement was not founded on a mistake of any material fact, and if it was executed in strict conformity with itself, it would be unprecedented for a court of equity to decree another security to be given, different from that which had been agreed upon; or to treat the case as if such other security had, in fact, been agreed upon and executed. Ibid. 14. 712. A mistake arising from ignorance of law, is not a ground for reforming a deed founded on such mistake; except in some few cases, an those of peculiar characters. Ibid. 15. agreed upon. The court would be much less disposed to interfere in such a case, in favour of a particular creditor, against the general creditors of an insolvent estate. Ibid. 713. It seems that there may be cases in which a court of equity will relieve against a plain mistake, arising from ignorance of law. But where parties, upon deliberation and advice, reject one species of security, and agree to select another, under a misapprehension of the law as to the nature of the security thus selected, a court of equity will not, on the ground of misapprehension, and the insufficiency of the secu rity, in consequence of a subsequent event not foreseen, direct a security, of a different character, to be given; or decree that to be done, 708. A deed of settlement, tripartite, was which the parties suppose would have been made between A. B. and C. After reciting an in-effected by the instrument, which was finally tended marriage between B. and D., A. assigned to C. a bond and mortgage of $4000, for the separate use of B., upon trust that C., his heirs, &c., shall keep the said sum out at interest on said securities, or in case the same shall be paid 714. It is a principle of equity that, when an off, shall invest the same in other good land se-instrument is drawn and executed, which procurity, and receive and pay over to B. the interest which should grow due thereon. C. signed and sealed the deed, and accepted the trust. The $4000 were paid to him, but he neglected to invest it in other real security; and died, leaving real property and debts greatly exceed ing the value of his personal estate. A bill was filed by B. and D., her husband, against the administrator of C., for an account, and that the $4000 may be decreed to be a specialty debt due by the intestate; and invested by the administrator in real security, and held by him as trustee, under the trusts, in the deed of settlement. Decided, that the deed amounted to a covenant of C., under seal, to execute the trusts, and that the $4000 is due by specialty, and to fesses, or is intended to carry into execution an agreement, whether in writing or by parol, previously entered into; but which, by mistake of the draftsman either in fact or in law, does not fulfil, or which violates the manifest intention of the parties to the agreement; equity will correct the mistake, so as to produce a conformity of the instrument to the agreement. Ibid. 715. A mistake, which is nothing more than a misconception of the law, is no ground for relief in equity. Sims v. Lyle, 4 Wash. C. C. R. 301. 716. Where a farm is sold at so much per acre, if the quantity be mistaken by the parties, a court of equity will relieve the party injured by the mistake. In such case, the vendee has a right to take the farm at the price of the real Commissioners and Auditors in Chancery. number of acres, and to have compensation for the deficiency, if he has paid the consideration. Stebbins v. Eddy, 4 Mason's C. C. R. 414. 717. So where the sale is for a gross sum, and there is a positive representation of the quantity by the vendor. Ibid. 718. But it may be otherwise, if the statement of the quantity be mere matter of description, and not of the essence of the contract; as where the contract contains the words, so many acres, "more or less," or "containing by estimation," &c. for in such cases the vendee may take upon himself the risk of the quantity. But if there be any fraud, or wilful misrepresentation of the quantity, equity will afford relief in these latter cases. Ibid. 719. Mistakes and fraud are equally relievable in equity. Dunlop v. Stetson, 4 Mason's C. C. R. 349. 720. The plaintiff, having a large claim against the government of Portugal, appointed the defendant his attorney, "with power irrevocable" to demand and recover the same; and on the 27th January, 1832, entered into an agreement with the defendant, to allow him a large sum as commissions, on his agreeing to use his utmost efforts for the recovery thereof. At the time this agreement was made, though wholly unknown to both parties, the government of Portugal, by a treaty stipulation dated 19th January, 1832, had allowed and liquidated the plaintiff's claim, so that nothing further remained to be done in the premises. Held, that this was a case of mutual mistake, going to the substance of the contract, and making it void, or voidable in equity; and a decree was accordingly made, that the agreement above mentioned be delivered up and cancelled, and that a perpetual injunction issue to prohibit the defendant from asserting any title at law or equity under the same. Hammond v. Allen, 2 Sumner's C. C. R. 387. 721. In such a case, nothing but a clear and unequivocal ratification of the agreement, after full deliberation, and a complete review of all the material circumstances, would be held satisfactory by a court of equity. Ibid. 722. A mistake of facts, going to the essence of a contract, avoids it. Ibid. 723. Where a deed of trust is executed by a debtor, to secure a debt due to A., but by mistake the name of B. is inserted, instead of that of A., and A. files his bill, praying relief, &c., a court of equity, if the mistake is clearly established, will decree the money to be paid in the first instance to A. who is really and ultimately entitled to it. M'Call, Smilie & Co. v. Harrison et al., 1 Brockenb. C. C. R. 126. 724. In such a case, the surviving trustee, having reconveyed the property, under a decree of a court of chancery, to the heirs of the grantor in the deed, and having afterwards died; it is not necessary that the representatives of the trustees should be parties to the suit. Ibid. FRAUD. 725. If a suit be brought to set aside a conveyance obtained by fraud, and the fraud be clearly proved, the conveyance will be set aside, as between the parties; but the rights of third persons, who are purchasers without notice for a valuable consideration, cannot be disregarded. Fletcher v. Peck, 6 Cranch, 87, 133; 2 Cond. Rep. 308. 8. Commissioners and Auditors in Chancery. 726. A commissioner, in proceeding to take an account, ex parte, on the defendants failing to appear, adopts a course of very questionable propriety. At all events, the defendants would, on motion, be allowed to repair their fault in not attending, especially if their non-attendance was excusable. Coates, Ex'x., v. Muse's Adm'r., 1 Brockenb. C. C. R. 529. 727. Virginia.—Where a chancery suit is pending against an administrator, and the cause has been referred to a commissioner, to ascertain the amount due by the administrator to the estate of his intestate, it is error in the commissioner to admit an administration account of the administrator, which has been settled before another commissioner in the county, under the direction of another tribunal, without the knowledge or participation of the complainant, while the suit between the parties was pending in the circuit court. The commissioner should require vouchers for each item of such account; and he should reject all such as are not established by competent testimony. Backhouse's Adm'r. v. Jetts' Ådm3r., 1 Brockenb. C. C. R. 500. 728. Virginia.-There is no presumptive rule in the circuit court, forbidding the report of a commissioner to be considered at the term at which it is made. The general practice has been, to allow a report, in any way complex, to lie for a second term, for consideration or exception, on the motion of one of the parties. In plain cases, the report is taken up at the first term. Coates, Ex'x., v. Muse's Adm'r., 1 Brockenb. C. C. R. 529. 729. Virginia.-A commissioner in the circuit court, to whom the accounts of a surviving administrator were referred, adopted the report of a former commissioner, to whom all the accounts of all the administrators had been referred, made many years before, in a distinct suit, to which some of the parties plaintiff were dif ferent; and which report did not appear ever to have been acted on or approved by the court to which it was made. When the first report was made, all the administrators were living, but they had been dead long before the accounts of the surviving administrator were referred in the second suit, and the office of the surviving administrator, in the mean time, had been con sumed by fire, and many of his papers detroyed. Held, that vouchers to sustain the account, in such a case, will not be required. The books of the administrator, if they appear to have been fairly kept, and the account of the former administrator founded upon them, ought to be received as prima facie evidence, subject to be disproved, so far as either party can disprove them; or to such exceptions as either party can sustain. Lidderdale v. Robinson, 2 Brockenb. C. C. R. 159. 730. The practice in chancery is, for the court to notice only those errors in the report of audi. Injunction. tors which appear on the face of the report, or are expressly set down in the exceptions; and then the evidence on which the items were allowed, must appear on the record. Chappedelaine v. Decheneaux, 4 Cranch, 326; 2 Cond. Rep. 116. 731. The report of auditors appointed by consent of parties, in a suit in equity, is not in the nature of an award by arbitrators, but may be set aside by the court; although neither fraud, corruption, partiality, nor gross misconduct on the part of the auditors be shown. Field et al. v. Holland et al., 6 Cranch, 8; 2 Cond. Rep. 285. 732. The term "auditors," designates agents or officers of the court, who examine and digest accounts for the decision of the court; they do not decree, but prepare materials on which a decree may be made. Ibid. 733. Without expressly revoking an order of reference to auditors, the court may direct an issue for the purpose of ascertaining facts. Ibid. 734. A court of equity may ascertain facts themselves, if the evidence enables them to do it; or may refer the question either to a jury or to auditors. Ibid. 735. A court of chancery may refer an account generally, and on the return of the report determine such questions as may be contested by the parties; or it may, in the first instance, decide any principle which the evidence of the cause may suggest, or all the principles on which the account is to be taken. Ibid. 736. A complex and intricate account is an unfit subject for examination in a court, and ought always to be referred to a commissioner, to be examined by him, and reported, in order to a final decree. To such a report, the parties may take any exceptions, and thus bring any question they may think proper before the court. Du Bourg de St. Colombe's Heirs v. The U. S., 7 Peters, 625. 737. Where no exception has been taken to the report of auditors, the report, at the hearing, is liable to those exceptions only which appear on its face. Himeley v. Rose, 5 Cranch, 313; 2 Cond. Rep. 267. 9. Injunction. stroyed, as well as to restrain a party from violating it, by attempting to participate in its exclusive privileges. Ibid. 741. În general, an injunction will not be allowed, nor a decree rendered against an agent, where the principal is not made a party to the suit. But if the principal be not himself subject to the jurisdiction of the court, (as in the case of a sovereign state,) the rule may be dispensed with. Ibid. 742. A court of equity will interpose by injunction, to prevent the transfer of a specific thing, which, if transferred, will be irretrievably lost to the owner; such as negotiable securities and stocks. Ibid. 743. The prohibition in the fifth section of the judiciary act of March 2d, 1793, ch. 167, that writs of injunction shall not be granted, without reasonable notice to the adverse party, or his attorney, extends to injunctions granted by the supreme court, or the circuit court, as well as to those that may be granted by a single judge; but a shorter notice will be a reasonable notice, in case of an application to the court, than would be so considered in most cases of an application to a single judge. Until a general rule shall be established, the circumstances of each case may be regarded. New York v. Connecticut, 4 Dall. 1; 1 Cond. Rep. 203. 744. A bill was filed in the circuit court of Pennsylvania, for relief, and for an injunction to prevent the transfer of certain stock of the United States. The counsel who filed the bill, made affidavit that the stock stood on the books of the treasury in the name of the defendants. The court granted an injunction. On a motion to dissolve it, for want of an affidavit of the complainants, the court said: Although the usual practice is not to grant an injunction, unless on an affidavit of the complainants, and this is frequently, and perhaps generally, the mode of proceeding; it is not the only one. Evidence of the facts, stronger than the affidavit of the party, may exist, and may be given to the supreme court. Schermerhorn v. L'Espinasse, C. C. of Pennsylvania, 2 Dall. 360. 745. A judgment having been obtained in the circuit court, for the recovery of a debt which the state of Georgia claimed as confiscated, and execution issued thereon; the supreme court issued an injunction to stay the money in the hands of the marshal, until the conflicting claims could be decided. Georgia v. Brailsford, 2 Dall. 402; 1 Cond. Rep. 3. 738. Where a bill was filed for a perpetual injunction, on judgments obtained on certain bills of exchange drawn by the plaintiff, and negotiated to the defendant, and which had subsequently passed from the latter into the hands of third persons, by whom the judgments were obtained: Held, that the injunction could not be decreed until their answers had come in, although the bill stated, and the defendant admitted that he had paid the judgments, and was then the 747. If the complainants in the circuit court only person interested in them, because such were proved to be the regularly appointed comstatement and admission might be made by col-mittee of a voluntary society of Lutherans, in lusion. Marshall v. Beverly, 5 Wheat. 313; 4 Cond. Rep. 660. 739. Where the defendant is restrained by an injunction, from using money in his possession, interest will not be decreed against him. Osborn v. Bank U. S., 9 Wheat. 738; 5 Cond. Rep. 741. 740. An injunction will be granted to prevent the franchise of a corporation from being de 746. Where the state had a remedy at law for her claim, and no action for the same was instituted, the injunction will be dissolved. Ibid. actual possession of a lot of ground, and to have been acting by their direction to prevent a disturbance of that possession; under the circumstances of this case, there does not appear to be a serious objection to their right to maintain a suit for a perpetual injunction against the heirs of the donor, who sought to regain the property, and to disturb their possession. The only diffi |