Seymour v. Delancy

Statement of case' Savaqe, Ch. J. On the 14th day of January, 1820, Wib Ham Seymour and Thomas Ellison entered into an agreement under seal, by which; Ellison agreed to convey to Seymour two farms in the towns of Montgomery and Wall kill, in the county of Orange, containing by estimation 799 acres of land; and Seymour agreed to convey to Ellison an equal undivided third part of certain lots in the village of Newburgh lithe conveyances to be executed bn or before the 1 si of June then next. It was further agreed that the parties might respectively take possession of the premises so to be conveyed to them. The parties did take possession accordingly ; and, on the 3d of August, 1820, Ellison died without the conveyances being executed. The bill was filed against the respondents, as the heirs of Thomas Ellison, to compel the performance of the above contract. It was resisted in the Court of Chancery on three grounds :■ Points. ]. Inadequacy of price'. 2. Debility of Ellison’s mind produced by habitual intoxication. 3. The inability of the appellant to fulfill on his part. The Chancellor dismissed the bill on all these grounds, and expressed an opinion that 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. To be decided- These are the principal points in the case, on which the defence rests. The testimony is very voluminous, and f shall not now enter into a detailed statement of it. The weight of evidence, in my judgment, establishes the differenee jn value, between the farms and the lots, at $5000 and [505] upwards; and that Ellison Was, in the month of January, 1820, and before and after, of intemperate Mbits; Some of the witribsses represented him as incapable of doing business ; arid Others thought him capable, except when intoxicated. It also appears, that, both in January ánd June, 1820, , , , , , . , , ,, the village lots werb encumbered by a mortgage to the amount of $5000, rind so continued till shortly before filing the bill. Ellison -was oí intemperate -habits, It is asserted by elementary writers that the power of bn- ■ J , forcing agreements specifically will not be exercised but to subserve the cause of justice; and that 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 unfáir advantage has been taken ; in those cases Equity will not decree ri specific performance, but leave the party to his remedy rit law. (Reeve’s Dom. Rel. 386; Newland on Contr. 223-4.) Elementary writers to the 1st point, The cases in which a Court of Equity decrees specific , performance of contracts, are those where damages recov.ered at law would not answer the intention of (he parties in making the contract. (2 Sch. & Lef. 347.) When equity decrees specifiC perform* atice- In my judgment, his honor the Chancellor is correct in saying that it is not a matter of course, in all cases, to decree specific performance of contracts; (Cas. Temp. Talb. 236. 12 Ves. 331. 1 Ves. Jun. 566.) It requires the exerúse of p sound discretion upon a view of all the circumstances. That discretion must, indeed, not be arbitrary and capricious. It must be regulated upon grounds that wilt make it judicial. (7 Ves. 35.) If the contract has been en- . ..... tered into by a competent party, rind is, m its nature ana circumstances, unobjectionable, it is as much a matter of course to decree specific performance, as it is to give damages at law. (9 Ves. 608.) This is nota course; but of dlSg®" when contract ^ m“ad®t b? party, and is bfe^it^iT^s much of course decree perfbrmance, as t0 Sjve^dama-. The appellant’s counsel maintain that inadequacy of price, alone, is no ground for refusing to enforce a specific performance, unless it amounts to evidence of fraud. The case of Thompson v. Harcourt, (2 Br. P. C. 415, A. D. 1722) is claimed as an authority by both parties, Ag_ I un- ' [506] derstand it, it supports the proposition advanced by the ap# pellant’s counsel. The case was substantially this, so far as it is applicable here : During the inlatuatiou which prevailed on the subject of the South Sea scheme, and on the 18th June, 1720, Thompson agreed with Harcourt, that he would, on the next opening of the books of the company, transfer to him £lQ00 South Sea stock, and Harcourt agreed ■ to pay Thompson £9,200 for it; which is 920 per cent. The books wefe opened on the blh October. Thompson represented to Harcourt, that he had the £l000 ready to transfer, (though, in fact, he bad but £-290.) And Harcourt not being prepared to pay the £9200, another agreement was entered into, by which the time was extended to the next transfer day after Christmas, upon certain terms. That day was the 1st May, 1721, and Thompson not having the stock, procured it of another, to be returned on certain conditions. On that day the stock was tendered to Harcourt, but refused by him, and then re-transferred to the person from whom it had been procured for the purpose of the tender. Thompson then prosecuted at law upon the contract; and Harcourt filed his bill to be relieved against it. In the mean time the bubble had burst; and it was enacted by parliament that all contracts for the sale and purchase of the stock, unperformed on the 29£ft September, 1721, where the seller had not the stock on the day of the contract, or within six days after, should be void as to so much as the seller was not possessed of. Thompson then filed a cross bill, praying a specific -performance. Both causes were heard at the same time, and the Court decreed that Harcourt should pay Thompson 920 per cent, for the £290 stock which he actually held of his own. This decree was on the bill for relief ; and the cross bill, which was for specific performance, was dismissed without costs. Thompson appealed because he was not allowed the 920 per cent, on the whole £ 1000 ; but the appeal was dismissed, and the decree affirmed. The only reason why the 920 per cent, was not allowed, on the whole, must have been because he was the owner of ■stock to £290 only. The decree proceeded upon the act of parliament. So far as the Court acted on the contract, they [507] resist be understood as decreeing a specific performance. In ftiat case there was no pretence of fraud or circumvention. it reeined to rest on inadequacy only ; and that arising from subsequent circumstances; the stock being worth 920 per pent, at the time of the contract. There were other facts and points in the case to which I have not referred, as they have no bearing on the present question, In Barnardislon v. Lingwood, (2 Atk. 133) Barnardislon, being distressed for money, conveyed to Lingwood, his (B’s) interest, being a remainder in tail after the death of his uncle, worth £300 per annum, for the sum of £.300. A bill for-relief was filed, and a cross bill for a specific performance, Ld. Hardwicke dismissed the cross bill; and says that in the case of a hard bargain, when it is not absolutely executed, but executory only, the constant rule of the Court is not to carry it into execution, Barnardiston v. Lingwood(2 Atk. 133) A. D. 1740. In Buxton v. Lister, (3 Atk. 383) the bill was to enforce a contract for timber sold at £3050, when it was worth no more than £2500, Ltd. Hardwicke objected, at first, on the ground that the thing in controversy was a chattel; but finally decided on the merits ; and dismissed the bill upon the ground of hardship without costs, o.n Buxton giving up the agreement; saying that if he was to dismiss it upon the misrepresentation (which was fully shewn) he would dismiss it with costs. In the course of his remarks, he uses the language quoted by his honor the Chancellor, “ that nothing is better established, than tfiat the Court will not decree a performance of an agreement, unless it is fair and just in all its parts ; and that it is in the discretion of the Court whether they will decree a performance.” Buxton v. Lister, (3 Atk. 383,) A. D. 1746. In the same year, (1746) the cause of Joynes v. Statham came before him, on a bill for a specific performance of an agreement for a lease of a house, which was signed by the defendant only, and contained a stipulation to pay £9 rent, yearly. The defendant insisted, and offered to prove, that the agreement should have been, to pay the rent clear of taxes ; but the plaintiff, who wrote it, omitted that clause. Lord Hardwicke admitted the evidence, observing, “ that the constant doctrine of this Court is, that it is in their dis [508] cr.etion whether, in such a bill, they will decree a specific performance, or leave the plaintiff to his remedy at law.” [507] Joynes v. Statham, (3 Atk.) 388 A. D. 1746 [505] Whetherinad be^u alone object- -t ^ by chancellor, ^ (2 Br. P. C. 415) A. D. 1722, [504] Difference in -alue $5000. [508] City of London v. Nash, (3 Atk. 512) A. D. 1747. In The City of London v. Nash, (1 Ves. 12 ; more fully reported 3 Atk. 512) Lord Hardwiclce refused to decree specific performance, on the ground that the Court is not obliged to do this, where it will be attended with greqt loss and hardship to onp of the parties. The fiill, in that case, claimed a performance of an argreement to new build certain houses, which the defendant had agreed to do, but, instead of building, had thoroughly repaired them. Ft is also observed that, evpn if the defendant intended to evade his contract, still a specific pprformancé would be hard, and all that the city wanted was to be compensated in damages. The Chancellor, therefore, directed an issue. Underwood v. Hitchcox, (2 Ves. 279) A. D. 1749. In Underwood v. Hitchcox, (2 Ves. 279) Lord Hardwiclce says, the rule of Equity, in carrying agreements into a specific performance, is well known ; and the Court is not obliged to decree every agreement entered into, though for valuable consideration in strictness of law, it depending on the circumstances. A.nd, undoubtedly, eypry agreement, of which there should bp a specific performance, ought to be in writing, certain and fair in all its parts, and for adequate consideration. And be refused,- in that case, to decree performance, because it was too, hard to. decree the defendant to make a surrender of the copy-hold estate, (which was the thing in controversy) for so inadequate a consideration. He referred to the rule laid down in Attorney General v. Day, (1 Ves. 220) where he says that decreeing performance is discretionary, when the party has his election of two remedies, in Equity, or at law ; and, even if there is no other remedy, it should not be dope, if there are strong and material objections against it. Lord Hardwiclce''s rule was recognized by Lord Er shine, in Mason v. Armitage, (13 Ves. 37.) Mason v. Armitage, (13 Ves.37) A. D. 1806. : Faine v,. Prawn, (cüeá 8 res.'307) .4. Í); 1750. ” The case of Faine v. Brown, cited by counsel in Ramsden v. Hylton, (2 Ves. 307) was admitted to be an authority supporting the Chancellor’s decree, if it was correctly stated. Lord Hardwiclce, in that case, said that, independent of the circumstance of intoxication when the contract was [509] .entered into, the hardship, alone, of losing half the purchase money, if carried into execution, was sufficient to determine the discretion of the Court, not to interfere, but leave the parties to law. In Day v. Newman, at the Rolls, (2 Cox, 77) performance was refused, on the ground of inadequacy alone ; but in Collier v. Brown, (1 Cox, 428) decided the same year, (1788) in the Court of Exchequer, though there was some inadequacy of price, a performance was decreed. An estate, worth £400, or more, was sold for £275. The price first asked was £300 ; but the owner was not much acquainted with the estate, and supposed she was selling to the tenant, till after the contract was executed. She was, also, very old; yet the .Court was of opinion, that the parties bargained with their eyes open, and as there was no imposition or surprise in the case, mere inadequacy of price, (when it could not be used as evidence of fraud) was not, of itself, sufficient to prevent the Court from administering its usual equity. Day v. Newman, (2 Cox, 77) A. D. 1788, and Collier v. Brown, (1 Cox, 428) A.D. 1788. Three years afterwards, the same Court, in Tilly v. Peers, (cited by SirSamweX Romilly, from his own note, in Mortlock v. Buller, 10 Ves. 301) declared, that laying out of consideration all circumstances of fraud, the Court would not enforce a hard bargain. We have not the facts upon which the decision was founded; but it seems, from the remarks of Baron Thompson, that it was a clear case ‘of fraud. Tilly v. Peers, (cited 10 Ves. 301) A. D. 1791. White v. Damon, (7 Ves. 30) was the case of property sold at auction, for £1120—worth £2200. A bill was filed for a specific performance; and though Lord Rosslyn first dismissed the bill on the ground of inadequacy, it was not finally decided on that ground. It was before Lord Rosslyn, and afterwards, on a petition fpr a re-hearing, before Lord Eldon. They both, however, agreed in the general proposition, that it is not a matter of course to cqrry an agreement into execution, hut rests in discretion. ' White Y. Damon, (7 Pes, 30)A.D. 1801 -2. In Coles v. Trecothick, (9 Ves. 246) Lord Eldon declared, that 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 a sufficient ground [510] for refusing a specific performance. He had just been recapitulating the facts. It was a case of sale of real estate# by ah auctioneer, and Trecothick had surveyed the premises, and valued them at £23,000—had told the auctioneer not to sell for less than 19,500—and had agreed they should go for £20,000 ; bqt he refused compliance with foe contract, because another, offer of £251,00Q had been subsequently made ; and if the declaration of his Lordship was made in allusiqn to those facts, it certainly cannot be questioned. [509] Coles v. Trecothick, (9 Ves. 246) A. D. 1804. [510] Mortlock v. Buller, (10 Ves. 292) A. D. 1804. The case of Mortlock v. Buller, (10 Ves. 292) was also the case, of a sale, by an auctioneer, of an estate for £26,-500, worth £34,900'. The question of inadequacy was noticed by the. counsel, and much discussed, foord Éldon did not decide upon it, but refused the specific performance upon other grounds. He, however, seems to adopt the doctrine of Lord ¿Mvanley, that the Co.urt is not bound te execute every contract •, that if there was any s.ort of surprise that made it not fair no.r honest to call for an execution, he would not give the extraordinary relief of a specific performance ; neither would be order the contract to be delivered up ; but would let the purchaser go to. law. Willan v. Willan, (16 Ves. 83, A. D. 1809. So in Willan v. Willan, (16 Ves. 83) the point of inadequacy was not raised. Lord Eldon remarked, that 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. Western v. Russell, (3 Ves. & Beam. 193) A. D. 1814. In Western v. Russell, (3 Ves. & Beames, 193) there was great inadequacy. The purchase was stated by counsel to beat one-tenth of the value. The Master of the Rolls does not, indeed, decide o.n that point; but he argues strongly against its sufficiency, as a ground to refuse specific performance. There was, in that case, no pretence of incapacity. The vendor set his own price, gnd. obtained it; and though he lived a year and a half afterwards, expressed no dissatisfaction. Yet it was proved that in 1809, when the purchase was made, the estate was worth, double the price. The Master of the Rolls, after noticing these facts, remarks, that the Court would trea.t men’s contracts with [511] great levity, if, on such a state of circumstances, it should refuse to carry them into execution. In Griffith v. Spratley, (2 Br. Ch. Cas. 179, n.) it was decided, that inadequacy alone was not sufficient to set aside a transaction. Having thus noticed most of the cases cited by his honour the Chancellor, 1 shall proceed to state some of those cited by the counsel. Cases cited by peiknt. °r a£> In City of London v. Richmond, (2 Vern. 423) the bill was Died to compel the performance of a lease. One objection was, that the rent reserved was £700 per annum, and the real value not £300and that it was against the rules of Equity to decree in specie such a hard and unreasonable bargain. But the Lord Keeper Wright said, as a beneficial bargain will be decreed in Equity; so if it happens to be a losing bargain, for the same reason, it ought to be decreed. City of London v. Richmond, (2 Vern. 423) A. D. 1701. Adams v. Weare, (1 Br. Ch. Cas. 567) on appeal from the Rolls, was a hill for the specific performance of an agreement to purchase a mill seat. The purchaser had agreed to give a large price, in the view of building a mill, which depended on the consent of the corporation of Bristol. The contract was absolute in its terms, and the vendor had refused to annex any condition. The vendee could not obtain the consent of the corporation, and refused compliance with his contract. The Master of the Rolls had decreed performance, and Lord Chancellor Thurlow said he thought he had done right; for no case could be cited, where parties have made a bargain with their eyes perfectly open, and no surprise whatever, as in that case, in which the Court had refused to decree a specific performance. He added, “ here is no mistake of the object; and as to the greatness of the price, Adams, (the vendor) had a right to ask a large sum, and the other had agreed to give it, with a view to the intended purpose of erecting and working his mill.” Adams v. Weare, (1 Br. Ch. Cas. 567)A. D. 1783. In Mortimer v. Capper, (1 Br. Ch. Cas. 156) the question was, whether Equity would enforce the'performance of an agreement, for a piece of land, against the heirs of the vendor, where part of the consideration was an annuity of £50, for the vendor’s life, and he had died two days after making [512] the agreement. The whole consideration was £200, and the annuity £50. The ground was worth £l 300; and it was contended that the agreement was too hard, and ought not to be carried into execution. The Lord Chancellor ' said, “ I remember a casé of a contract for a piece of ground,Which was to be enclosed, for £20, arid upon d bill for specific performance, the defence was, that it wris worth £200 ; and although the contract Was to be performed in futuro, yeti neither party knowing the value, the Master of the Rolls decreed performance.” In relation to the case before him, however, he said, “I think, if the pribe be fair, the contract ought riot tribe Cut down merely because the annuity; which is a contingent payment, nevér became payable;” and he ordered a reference to a Master, to enquire into the real value' of the estate and of the annuity; [511] Mortimer v. Capper, (1 Br. Ch. Cas. 156) A. D. 1782, [512] Emory v. Wase, (8 Ves. 518) A. D. 1803. In Emery v. Wase, (8 Ves. 518) the question Was, wheCher a husband should be compelled to procure his wife to execute his contract; and Lord Eldon, arguendo; says', “ I do not deny that mere difference in valué, though considerable, is not; of itself, a sufficient ground for refusing a specific performance of a contract; but very considerable difference m value is not inconsiderable evidence that it was not made with great caré and attention.” Burrowes v. Lock, (10 Ves. 470) A. D. 1805. In Burrowes v. Lock, (10 Ves. 470) Edward Cartwright was entitled to £288, and assigned it to the plaintiff, to whom he was indebted £132, and by whotia he wris pressed for satisfaction of the debt.- The Costs of the transaction were £10 paid by the plaintiff; and Cartwright had previously conveyed away onb tenth; so that £148 were giyen for what was worth £260. The Master of the Rolls decreed performance, saying, “ If fraud is out of the case, I do not know that I can set aside this contract, or refuse to act upon it, merely on the ground of inadequacy of price.” Cadman v. Horner, (18 Ves. 10) A. D. 1810. 1° Cadman v. Horner, (18 Ves. 10) the plaintiff prayed a sPec¡f10 performance of a'contract; which was resisted on the ground of inadequacy and misrepresentation ; and ora those two grounds it was denied. But the Master of the Rolls expressed no opinion upon the question of inadequacy -alone. [513] The case of Poole v. Shergold, (2 Br. C. Cas. 118) decides that the difference arising front the calamities of the times ought not to rescind a contract; and Jackson v. Lever, (3 Br. Ch. Cas. 605) 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 receivingpany part of it. The object of the two last cases, 1 presume, was to shew that, although the návy yard was not established át JVezuburgh, and although Ellison died before the application to enforce the contracts yet neither of these circumstances can constitute a defence to the present action. Many cases have also been cited by the counsel for the respondents, some of which I shall examine. I will first, however, consider a little further some of the above cases. <>f the further ^ ined- Thompson v. Harcourt (supra) an authority for the appellant. Decided Feb. 13, 1722. Kien v. Stukely (post) Nov. 9 A. D. 1722. Both cases of South Sea speculation, &c. [514] London v. Richmond (supra.) [513] The case of Thompson v. Harcourt, I have considered an authority for the appellant. As I before remarked, it was claimed by the counsel on both sides» It was considered by the Chancellor as a case.in favour of the respondents. Perhaps, therefore, I dm mistaken in my reading of it, but I think not. It was in the House of Lords. The Reporter has not given the opinion of the Judges, and we must infer the ground of decision, from the case, the decree, and the points argued by Counsel. The case was decided 13th Febi 1722. On the 9th November, in tile same year, the case of Kien v. Sluhely was decided, (which I shall hereafter refer to on another point,) in which a specific performance was refused. Both these cases grew out of the South Sea speculation, or were connected with it. In the first, where920 per cent, was decreed to be paid, it appeared that when the contract was made, it was fair and equal; that stock, at one time was 1000 per cent. above par. The inadequacy arose, therefore, from subsequent circumstances, and did not exist at the time of the contract. In the latter case, lands were sold for 40 years purchase, which, at the time, were worth only 15 years purchase ; and the vendee expected to pay in South Sea stock. The inadequacy here existed át the time of the contract 5 and must have been one ground, at [514] least, of the decree. Both cases were decided by the same Court,' and within nine months of each other ; and, in my opinion, are perfectly reconcileable upon the re ative difference of time at which the inadequacy arose. So in London v. Richmond, the rent was agreed upon, on a calculation of the quantity of water which certain pipes would discharge. This was greatly overrated ; yet the Court compelled performance. The lessee should have calculated better ; though,' 1 confess, I am not satisfied with that case. Adams v. Weare (supra.) In Adams v. Weare the seller was explicit, and when the purchaser said he would give the price, if the consent of the city of Bristol could be obtained, the seller told him, “ Sir} I will have no if in the case. You must purchase absolutely or not at all.” In that case, it was admitted, that the inadequacy existed at the time of the contract, and was known to both parties ; and the Court would not permit the purchaser, afterwards, to he off from bis contract-, because he did not succeed in his speculation. In the case under consideration, inadequacy existed, at time of contract. Not so in this case. The appellant avers that the lots were worth the consideration given, or very near it, long before any thing was ever said about a navy yard at Newburgh; and on the other" hand, the inadequacy is shewn to have existed at the time of the contract, and not to have arisen from subsequent circumstances. It does not appear that the expectation of a navy yard was the sole inducement tó the purchase. It is- stated, by one witness, that Ellison intended to build stores, and sloops, and go extensively into commerce. Cases cited by counsel for respondents . Executor of Hill v. Nott, (1 Vern. 271-2) A. D. 1684. Johnson, ex'r. of Hill, v. Nott, (1 Vern. 271-2.) In this case, Hill bought of the defendant a contingent estate, at an under value. Nolt had previously brought his bill, to be relieved, and was relieved by Lord Nottingham ; but, upon a. rehearing, before Lord Keeper Guilford, that decree was reversed. Johnson then brought his bill for a specific performance and the Lord Keeper said that a contract which carries an equity to have it decreed in specie, ought to be without all objection. Vaughan v. Thomas, (l Br. Ch. Cas. 566) A. D. 1783. In Vaughan v. Thomas, (1 Br. Ch. Cas. 556) the plaintiff agreed with the defendant for an annuity worth 9 years purchase., for the consideration of 5 years purchase, and brought [515] his bill to compel a specific performance ; but the Court said that if they assisted the plaintiff, they should give sanction to a very unconscientious bargain, and that, under this view of the case, he was by no means entitled to their aid. Collett v. Wollaston, (3 Br. Ch. Cas. 228) A. D. 1791. In Collett v. Wollaston, (3 Br. Ch. Cas. 228) the plaintiff fi. had purchased, at auction, the reversionary interest of £2000 South Sea stock, subject to the life 'of a man 45 years of age, and £1200 South Sea annuities, for £215; and filed his bill for an assignment and transfer. The Master of the Roils said, the reversionary interests seeming to be sold for a very low price, he would direct an inquiry into their value, before he decreed a specific performance of the purchase. (Vid. also, several cases, 5 Vin. 539 to 549, adhering to the rule in Normanby v. Beckley, that contract must be fair and reasonable in every particular.) Several eases in 5 Vin. 539 to 549, supporting Marquis f Normanby v. Beckley, (supra.) Clitherall v. Ogilvie, (1 Des. 257) A. D. 1792. In Clitherall v. Ogilvie, (1 Dess. 257—63) the defendant entered into a written contract to sell the plaintiff certain lands, for £3500, which were worth three times that amount. On further inquiry as.to the value of the property, he declined executing the conveyances; and the bill was brought for a specific performance. The Court, after a full discussion and examination o.f the cases on the subject, took notice of the distinction between setting aside an unreasonable contract, after it is executed, and compelling a specific performance ; and, recognizing Lord Hardwicke’s rqle in Underwood v. Hilchcox, declared, that on full consideration of the case, and all the circumstances, (although there was no proof of fraud or imposition) the sum for which the land was agreed to.be sold was grossly inadequate tó 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. In Ward v. Webber, (1 Wash. Rep. 279) President Pendleton, delivering the opinion of the Court, says, “It is true that 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. For, in general, the Court will not [516] 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.” [515] Ward v. Webber, (1 Wash Rep. 279) A. D. 1794. [516] Campbell v. Spencer, (2 Bin. 133) A. D. 1800. In thp case of Campbell v. Spencer, (2 Bin. 133) there was b° ^raui^ or imposition ; nor does it appeqr that there was inadequacy to any great degree; but it was a foolish bargain, whereby a farmer agreed to sell his farm for the remnant of a store of goods ;.and Chief Justice Tilghman and Judge Breckenridge both say, they would not enforce the contract, nor declare it void, but leave the plaintiff to bis action upon it. Judge Breckenridge placed reliance upon its being a hard bargain, attended with suspicious cir- • cumstances. Osgood v. Franklin, (2 John. Ch. Rep. 23) A. D. 1816 the case-of Osgood v. Franklin, (2 John. Ch. Rep. 23) the Chancellor remarks, “ there is a very important distinction, which runs through the cases, between ordering a contract to be rescinded, and decreeing a specific performance. Though inadequacy of price is not a ground for decreeing an agreement to be delivered up, or a sale rescinded, (unless its grossness amount 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 fpr inadequacy, and at the same time to refuse to rescind.” Note to Clitherallo v. Ogilvie, (supra) by chancellor Dessaussure. Chancellor Dessaussur.e, who was not on the bench when the cause of Clitherall v. Ogilvie was decided, has added a valuable and learned note to the report of that case, which he concludes by observing, “ It is agreed, on all hands, that 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, whpre there is any surprise, making it not fair and honpst to proceed and .call for specific performance.” The question which6 "rent |rien^ have dif- ; One class piamtaiq that Simple made517 fenced the other that it must to proveTraud. ' Chancellor* &c. who supported these [516] Having thus taken a cursory view of some of the princiPa* qases on the point under consideration, and having also noticed the dicta of some learned jurists, I shall be justified io the remark, that the question is one upon which very great roen have differed, and have administered the equity of the ' ■ ' ' [517] .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 decigive and conclusive evidence of fraud in the transaction, it is not of itself a sufficient ground for refusing a specific performanee. The most distinguished of those who support the latter doctrine is Lord Eldon. To him may be added Sir Will-jam Grant, Lord Keeper Wright, and probably some others. The former doctrine was declared or acted upon by the Lords Somers, Macclesfield, Northington, Guilford, Talbot, Harcourt, Hardwicke, Alvanley, Erskine, Rosslyn, and Chief Baron Eyre, in England; and in this country it has been adopted by the Court of Chancery of South Carolina, the Court of Appeals of Virginia, and the Court of Chancery of this state; and I believe there is no American decision to the pontrary. Among American jurists; of distinguished celebrity, who have maintained this doctrine, are Chancellor Dessaussure, of South- Carolina, President Pendleton, of Virginia, the late Chief Justice Reeve, of Connecticut, and last, though not least, the late Chancellor Kent, justum et tenacem propositi virwn ; a man whose stern integrity, superior talents, and extensive erudition, have rendered him an ornament to tt)e Courts over which he has presided in his native state; and who may, without arrogance, but with the most perfect complacency; look back upon his 26 years of judicial labours, and say—. thiscountry- Exegi monumentum are perennius ; Regalique situ pyrarnidum altius : JVon omnis moriar ; mullaque pars mei Fitabil libitinam. If wc determine this question by the prevailing practice of Courts of Equity, (it has not, indeed, been uniform) we must decide in favour of the rule as laid down by Lord Hardwicke. If we determine it by the reason and propriety of the two propositions, there is certainly great weight in the consideration that, in enforcing contracts, the Court, if it [518] acts at all, must act ex rigor e, and cannot weigh the equities of the parties; whereas a jury, in a Court of law, can mitigate the damages according to equity and good conscience. It seems, indeed, paradoxical, to send parties from a Court of Equity to a Court of law, to- obtain equity ; but it arises from the peculiar construction and, practice of the Courts. [517] The Weigh<. ^avom^of the first; and sMered^upm principle, [518] Again, if we call to our aid the opinions of men among the most celebrated for their learning and talents, of the times in which they respectively lived, we find a great preponderance in favour of sending hard and inequitable bargains to a Court of law. Equity should cree^pmformanee, unless fifir, just, reasonable and equal. It is well inadequacy*151* alone is nqt aside3contract, d"fferenceWbetween enforci^and setting 2d point; StoxicatiÓn°m Evidence, Upon authority therefore, as well as upon principle, I am °learty of opinion, that a Court of Equity ought not to lend its aid in enforcing an, executory contract unless it is fair, just, reasonable and equal in all its parts, and founded upon adequate consideration, . It is undoubtedly well settled that inadequacy of price» a^one! *s not a sufficient reason for setting aside a contract executed. unless its grossriess amount to, fraud ; but there is a. wide difference between enforcing an executory contract," anc* setting aside a contract deliberately executed ; and the two subjects admit of very different views and considera* ^..... The next ground of defence is, that Ellison's mind was debilitated by habitual intoxication. The witnesses agree as to the fact ofhis habitual intemperance, for some years before his death; but they differ in their opinions as to the effect produced by it upon his capacity to transact business. The fact is before the Court; and our acquaintance with mankind supersedes the necessity of evidence to prove that habitual inebriety, in most cases, debilitates the mind. As like causes produce like effects, it would require strong proof to shew that Ellison was an exception to the general rule. It also appears that this contract was unknown to his family and friends. It was made by Drake Seymour, on behalf of his brother. And though the character of Drake Seymour rebuts the idea ofiraud or imposition upon, a man under intoxication ; yet it is well known that interest has a control! [519] mg influence over the minds of many, perhaps of most men, even of correct principles; and may, and often does, induce them to make bargains which conscience cannot approve. The third ground of defence is, that the appellant was unable on the day appointed, to give a title to the lots, on account of incumbrances. Cases oa 3d point. The appellant’s counsel contend, that it is sufficient, if he was able to give a title at the time of the decree; and so it was decided by the Master of the Rolls, in Langford v. Pitt, (2 P. Wms. 630.) He said that the direction of the Court, in all cases, was, to enquire whether the seller can, not whether he could make a title at the time of executing the agreement. In Wynn v. Morgan, (7 Ves. 202) it was decided that where the time, atwhich the contract was to be executed, is- not material, and there is no unreasonable delay, the vendor, though not having a good title at the time the contract was to be executed nor when the bill was filed, but being able te make a title at the hearing, is entitled to a specific performance. Langford v. Pitt, (2 P. Wms 630.) A. D. 1731. Wynn v. Morgan, (7 Ves. 202,) A. D. 1802. In Brashier v. Gratz, (6 Wheat. 528) Chief Justice Marshall says, the rule, that time is not of the essence of a contract, has been recognized in Courts of Equity ; that a failure to perform on the day dees not deprive a purchaser of his right to demand a specific performance at a subsequent day, when he shall he ablé to comply with his part of the engagement. But the ruje is not universal. Circumstances may have changed; and the other party may be placed in a xvorse con; dition ; and then the Court would leave the parties to their remedy at law. The party who is ready, may file his bill requiring the other to perform or rescind ; and the Court will compel him to do one or the other. If, then, a bill for a specific performance be brought by a party who is himself in fault, the Court will consider all the circumstances of the case, and decree according to those circumstances. Brashier v. Gratz, (6 Wheat. 528,) A. D. 1821. In Hepburn v. Auld, (5 Cranch 262) the same point had been so ruled ; though Mr. Justice Livingston expressed bis dissent, on the point of dispensing xviíh time. (1 Wheat, 195-6, S.C.) Hepburn v. Auld, (5 Cranch, 262,) A. D, 1809. [520] In Butler v. O’Hear, (1 Dess. 398) the Court say, lapse of time, unattended with other circumstances, is not, of itself, a sufficient ground for it to refuse its aid to compel a specific perforrhance of an agreement; that it was sufficient if the plaintiffcould then make title. Judson v. Wass, (11 John. 525,) A. D. 1814. In Judson v. Wass, (11 John. Rep. 525) which was a case Ih® sale of land, at auction, one of the conditions being that the money should be paid in 75 hours, the conveyance to be dated on the day of sale ; the premises were encumbered with a mortgage ; and the Court said that in every sale of that kind, there is a condition, that the purchaser shall net be bound to part with his money, unless the seller is able to give him a title according to the terms of the sale. That, however, was an action at law, and is not applicable here. Waters v. Travis, (9 John. 466,) A. D. 1812. In Waters v. Travis, (9 John. Rep. 466) the late Chief •Iusl;'ce Spencer, who gave the opinion of this Court, says, the lapse of time, when no material inconvenience has been suffered, can be urged only on the ground that it is evidence of abandonment of the agreement. Incapacity ^Junelst isIq6 not, per se, an objection. In the case now under consideration, I am inclined to the °P'n'on’ that the appellant not being in a condition to give a good title on the 1 st of June, 1820, is, of itself, no objection to a specific performance. The conveyances were to- be simultaneous acts; or rather, by the terms of the contract, Ellison was first to convey. The language of SeymouPs covenant is, “ In consideration of which premises (the conveyance by Elliso'n) the said William Seymour doth by these, presents covenant and agree, &c.” Td"80?: °J C°n" 51 Otherwise • when connected with inad- Kien v. Stukely, (2 Br P. c. 396-8,)A. D. 1722. But it seems, that when there is great inadequacy of consideration, the vendor is held to great strictness, as to time, ifi th® performance on his part. In the case of Kien v. Stukely, (2 Br. P. C. 396-8,) Stukely, on the 20th July? 1790. sold lands by contract to Kien for 40 years purchase, when they were worth only 15 years purchase, and £120 were paid ; Kien intending to pay the residue in South Sea stock, which was then worth 1000 per cent.; and the title was to be made out on the 29ih Dec. then next.' The title was not made out by the day, and Kien declined the purchase. On a bill filed by Stukely, performance was decreed; [521] but on appeal to the House of Lords, this decree was reversed. By the report in Brown, the decree seems to rests on the ground of inadequacy ; and the point relating to time is not stated | but from a report of the same case by Baron Gilbert, (Gilb, Rep. 155-6) it seems to have been decided on the ground of the vendor not having made out his title to the premises sold by the day stipulated in the contract. The decision is understood by Sugden in his treatise orí vendors, p. 281, as having been made upon both grounds, and he has deduced from it this principle ; that when the price is unreasonable or inadequate, or the contract is in other respects inequitable, Equity will not assist either party, if he has permitted the day appointed for completing the contract to elapse without performing his part of the agree-' ment. Sugden’s L. V. 281, S. C. On the whole case, therefore, I am of opinion : 1. That on the question of decreeing specific performance of executory contracts, the Court of Chancery must exercise its discretion; not an arbitrary, but a sound judicial discretion. If the contract be free from objection, it is the duty of the Court to decree performance. But if there are circumstances of unfairness, though not amounting to fraud or oppression, or if the inadequacy of consideration be so great as to render the bargain hard and unconscionable ; on either ground the Court may refuse its aid to enforce the contract, and leave the parties to contest their rights in a Court of law. If it is asked what degree of inadequacy is necessary to constitute the bargain a hard one; it might be asked, in answer, what degree of inadequacy is necessary to constitute fraud—to shock the conscience, and produce an exclamation ? The truth is, that neither the one nor the other admits of a definite answer. It must be determined by the judgment of the Court; and as there is certainly a difficulty in ascertaining the precise point, there is much less danger in stopping short of it, than in going beyond it. To me it seems a solecism in language, to say that a party, who has obtained [522] an inequitable bargain, shall be received, in a Court of Equity, to demand its performance. [521] Recapitulation. 1. On question of decreeing performance, chancery1 must exercise a sound judicial discretion. if contraes be free from objection, performance should be decreed. But if unfairness, not amounting to fraud or oppression, cl' such inadequacy as to render bargain hard and unconscionable % on either ground, court may leave parties to law. [522] Evidence of incapacity from intoxication ; though not full, is enough to raise doubt. Lapse of time connected with inadequacy, justifies court in refusing performance. Decree should, therefore, be affirmed. 2. In the next place, though the incompetency of Ellison arising from habitual intemperance, is not clearly established ; yet enough appears to raise a doubt on the subject, and to cast a suspicion upon the fairness of the transaction. The authorities cited, on the question of setting aside contracts obtained from persons while under the influence of intoxication, are not applicable. None of them state that a contract so obtained ought to be enforced in Equity, by decreeing a specific execution. 3. And, although, lapse of time when not of the essence of a contract, or an incapacity to make title on the day stipulated, are not insuperable obstacles in the way of obtaining the specific execution of a contract, provided title can be made before the decree ; yet, when connected with inadequacy of price, they will justify the Court in withholding the exercise of its extraordinary powers in compelling a specific performance. I concur, therefore, with his honour the Chancellor, and am of opinion that his decree should be affirmed. Woodworth, J. not having heard the argument, gave no opinion. Clark, Earll, Gardiner, Green, Mallory, M’Call, Morgan, Ward and Wright, Senators, concurred in the opinion of the Chief Justice. Sudah, Senator. In this case, it cannot be necessary for me to enter into a‘detailed statement of the facts, I shall merely take a general view of the claims of the appellant, and of the defence set up by the respondents, and then proceed to the consideration of the questions submitted to the Court by the counsel who have so abjy and ingeniously argued this cause. Statement of the case. Agreement. William. Seymour, the appellant, and Thomas Ellison, the father of the respondents, on the 14iA of January, 1820, entered into an agreement for the exchange of one third of certain lots owned by Seymour, in the village of Newburgh, [523] ¡For certain farms, owned by Ellison, in Montgomery and WaU MIL The property is particularly described in the article between them. By this agreement, Ellison covenanted with Seymour, that he would on or before the 1 si day of June next ensuing its date, by sufficient conveyances, grant, bargain and sell, &c. the farms to the appellant, in fee simple § in consideration of which, Seymour covenanted and agreed, that he would, on or before the 1st day of June ensuing the date, sufficiently grant, bargain and sell to Ellison, the equal undivided third parts of the Newburgh lots, with the wharves, buildings, &c. The articles of agreement contain the following clause s “ And it is hereby further agreed by and be-v w v tween the said parties, that it shall be lawful for them respec= tiveiyto enter into and upon the said premises to them respectively intended to be granted and conveyed, and to have and receive the profits thereof to their own use respectively.” Part:es to take possession The bill states that, in pursuance of this agreement, Seymour entered into possession of, and received the rents and profits of the property to be conveyed to him by Ellison, and Ellison entered into the possession of the property to be conveyed to him by Seymour ; and that Ellison’s heirs at law have, since his death, continued in possession ; that Seymour, during the life time of Ellison, was always ready to convey to him, according to his contract, but that Ellison, for several months previous to his death, was incapable of transacting business; and that he died about the 3d of Jlugust, 1820, intestate, leaving Harriet Ellison, his widow, and the respondents, his heirs at law ; that all his children, except Mary Jane He Lancy, are infants, under the age of 21 years ; and that, by reason of their infancy, they cannot convey, according to the terms of the contract; that Mrs, Ellison, (the widow of Thomas Ellison) died before the time of filing the bill. What the biB states' The prayer of the appellant is, that the respondents may be decreed to execute a deed, according to the true intent and meaning of the covenant entered into between the appellant and Thomas Ellison, in his life time. Prayer of the bill The respondents admit, 1. That their father, Thomas El-Uson¡ entered into the. covenant with Seymour, the appel [524] larit; but they leave him to prove whether lie had a sufficient title to the property to be conveyed by him : 2. They insist, that he had previously conveyed a portion of it to his sister, Esther Seymour, or to some other person, for her use or benefit: 3. That his title was very questionable: 4. That the bargain for the exchange was unconscionable, inasmuch^ as the lands to, be conveyed by Ellison to Seymour exceeded the value of the lands to be conveyed by Seymour to Ellison, by several thousand dollars : 5. That the appellant could not make a good title to the premises, because they ^rere encumbered by a mortgage remaining uncancelled at the death of Ellison : 6. That the appellant did not, on or before, or subsequent to the day specified, tender a deed, in pursuance of the article: 7. That Ellison, from the 14Ik ,'January, 1820, until the 1st June, 1820, “ was, in all res-peets, as capable ánd competent to, transact business, as he Was for several weeks and months previous to the lAth of January, 1820.”- Then the respondents, after stating their-age, and denying that the appellant was ready and willing to execute and deliver a deed to Ellison in his life time, and leaving him to his proof, submit themselves to the decree of the Court. [523] Answer- [524] Decree. In the decree entered in this cause, by his honour the - Chancellor, tie refuses to direct a specific performance of the contract by the heirs at law of Ellison, “ from the great-inadequacy in value of the lots in the„village of Newburgh, which ‘Seymour contracted to convey to Ellison, for the two farsas in Orange county, which Ellison contracted to convey • to Stnfmour, as mentioned in the pleadings and proofs ; and, also, from the habits of intoxication in which Ellison had indulged in the last years of his life, and the mental debility ' produced thereby ; and, also, from the want of readiness and ability in Seymour to convey a good and unencumbered title to' the said lots in the village of Newburgh, at the time fixed for the performance of said contract,-or at any time thereafter, during the life time of Ellison points taken The respondents, in support of this decree, make the fol- " [525] 3. That the bargain was hard, disproportionate and unequal in its terms. 2. That during the time of the negotiation, and at the time Ellison entered into the contract, he. was not in a fit state of mind to form such an agreement, or to understand his rights or appreciate his interests ; and that the bargain was secretly and unfairly obtained by the appellant. 3. That the appellant did not, and could not perform the agreement on his part as stipulated by him, in the life time of Ellison, because the appellant’s lands were incumbered to their value; and there was no waiver of time, or indulgence given, by Ellison in his life time, nor by the respondents since his decease. The first point made by the respondents, that this contract for exchange of lands was hard, disproportionate and unequal in its terms, is the main point in the cause, and Has been so treated by the Chancellor in his opinion. He assumes it as a fact, that “ at the date of the agreement, the village lots were not worth half the value of the country farms and says, “ we may make an ample advance of the one, and an ample diminution of the other, in value, if we were to fix the one third of the Newburgh lots at $6,000, and the farms at $12,000.’? 1st point—contract hard disproportionate, and unequal— considered. Inadequacy of at least 1-2 was assumed by the chancellor. The decisipn, upon the evidence given as to the difference in value between the property to be conveyed by the appellant to the father of the respondents, may decide the cause, without entering into the consideration of the other points; but I think our decision must depend mainly on other evidence; for it cannot be sustained, in my opinion, that mere inequality in value, which is not so gross as to strike the moral feeling of an indifferent man, would be sufficient to warrant the Chancellor in withholding a decree for specific 'r performance. I admit that the exercise of the power, in a Court of Chancery, to enforce the specific performance of contracts for the sale or the exchange of land, rests in the sound discretion of the Court; but this is a sound legal discretion ; and not the exercise of an arbitrary power, interfering with the contracts of individuals, ánd'sporting with their ’/este.d rights. I also admit, that the party claiming the spe [526] cific performance must present a ease fair, just and reasonable ; that the contract must be founded on adequate consideration ; and that it must be free from fraud, misrepresentation, deceit, or surprise, [525] Mere inequal*tyt so &oss tl to strike ^the 0f an indifferent ™a?’ “ “ot a sufficient aefence to a bill performance!"2 . The decreeanee rests^in erotion^of the court of chancery’ but; this [526] |s a sound legal discretion. The party claiming performance must present a case fair, just, and reasonable. The contract must be for adequate consideration ; And must be free from fraud, misrepresentation, deceit, pr surprise. Evidence as to these heads. To determine whether, in fact, the agreement for exchange was hard, unequal, and disproportionate, and whether it was free from fraud, surprise, &c. it will be necessary to examine, with as much brevity as possible, the history of this transaction. Pn the 3d of January, 1818, Drake Seymour, the brother of the appellant, sold to Ellison, the father of the respondents, the one equal undivided third part of tfie lot first described in the articles of agreement, lying on the east side of Water-street, for the sum of $12,500, cash. This bargain was made verbally, in the year 1817, and completed, by the delivery of the deed, in January, 1818; and the negotiation concerning it was kept up from April, 1817, to January, 1818, when it was consummated. In March, 1818, Ellison agreed to purchase of Samuel Sands Seymour, his undivided third part in the same lots, lying east and west of Water-street, for $13,825, he taking, in part payment, a mortgage which Ellison held against one Tollman, and Ellis.on agreeing to guaranty, that, on foreclosure, the mortgaged premises should produce the principal and interest due. Tfiis contract was signed and sealed hy the parties. In March, 1818, Ellison informed Drake Seymour, “ that he had only to purchase the part of the lo.t belonging to the appellant, to ovyn the whole,” and made propositions to the witness, (Drake Seymour) to be submitted to his brother. Both in the years 1818 and 1819, Drake Seymour frequently saw Ellison in relation to the purchase of the appellant’s one-third of the lots ; and from the time Ellison first proposed to purchase from the appellant, to the time when a verbal contract was concluded for the exchange, more than 18 months had elapsed; and about 1 year, and 10 months had, elapsed before it was reduced to vtrriting and signed by Ellison and the appellant. On the conclusion of the verbal s agreement, Ellison authorized the appellant to take possess-. " ion of the farms, and possession \vas taken accordingly. In [527] January, 2820, the appellant sent by Drake Seymour, to El-Hson, at New-York, the articles of agreement in question, already executed on his part. They were handed to Ellison, to be executed by him. He requested that they might be left with him for examination, to see if they were in conformity with the verbal agreement. He examined them, found them correct, and executed them the day after. By the evidence of Samuel M,Coun, who was employed by Ellison to estimate the value of the farms, it distinctly appears, that hb understood from Ellison, that he and the appellant were negotiating for the exchange. In various con™ versations, he told M'1 Court “ that he was negotiating an exchange with the appellant, and that he wished JiPCoun to make up his mind upon the value of the two farms, (to be exchanged for the Newburgh lots-) That he, (Ellison) did not wish M^Coun to appraise the appellant’s lots in the village of Newburgh ; but that he would do that himself,It is also in evidence that Ellison, during the summer, resided in New-Windsor, in the county of Orange, adjoining the village of Newburgh, and that he was well acquainted with the property of the appellant, proposed to be exchanged for his two farms. It also appears that Ellison had a favourable opinion of Newburgh, as a business place s and he may have been influenced by the consideration, that property there would rise in value, in consequence of the expected establishment of a navy yard. That the contract was deliberately made, there can be doubt. JbPCoun says, expressly, that Ellison told him “he would not conclude the bargain between him and the appellant, until he had seen him,” (M,Coun,) and ascertained his opinion of the value of the farms. Contract made deliberately, We here find a purchase by Ellison in January, 1818, of one third of the Newburgh lots east of Water-street, for the sum of $12,500, on a negotiation commenced in April preceding, and at a time when, according to the pleadings and proofs, there is no pretence of incompetency. About March, 1818, Ellison purchased from S. S. Seymour, his undivided third in the Newburgh lots, lying east and west of Water-street, for the sum of $13,825. About the same time, he [528] informed Drake Seymour, that he had purchased one third of S. S. Seymour, and talked of exchanging the farms for . the like share of the appellant. In addition, he informed Benjamin Case and John Anderson, that he had purchased the shares of Drake & S. S. Seymour ; and that he also intended to purchase the share of the appellant; and he told Anderson how he intended to render the property valuable to himself. Ellison knew all the facts. Was well acquainted with the premises, and competent to transact business; The whole presents a very strong case, and one in which the contract should be carried into effect, unless some controlling rule of decision in our Equity Courts shall require the contrary. There can be no doubt, from a review of the evidence, that Ellison made his bargain, well knowing all the facts, in relation to the Newburgh lots, as well as his farms proposed to be exchanged for them. His own agent (JlPCoun) ascertained the value of the farms. He said he would himself appraise the value of the lots in Newburgh. It could not be pretended, that after a purchase of two thirds of the whole property, he had never examined the premises, or that he had not ascertained the situation and comparative value of the Newburgh lots ; for it is admitted by all parties, that at the time of his purchase from Drake Seymour, and his agreeing to purchase of S. S. Seymour, he was not incompetent to transact business of any kind. Immediately after this, the negotiation for the one third of the appellant’s lots commenced, and that negotiation continued for 18 months before it was verbally concluded ; and for one year and ten months before it was reduced to writing. There is, therefore, no pretence, in mj opinion, that Ellison was not fully acquainted with the premises, proposed to be exchanged with him, by the appellant. Besides having before become the purchaser of two thirds of the lot on the east side of Water-street, and the one third of the lot of S. S. Seymour on the west side of the same street, and having paid, in each instance, a sum exceeding the price he had agreed to pay the appellant, we have the positive testimony of Drake Seymour that throughout the whole of the negotiation he was perfectly competent to transact business. He was in a sit529 nation deliberately to form his opinion, and unquestionably he did do so, ds to the value of the Newburgh lots ; and from his previous purchases, he must have ascertained their value, to his own satisfaction. Under the advice of his agent, he knew the valúe of the property to be conveyed by him to the appellant. We must take it, then, that Ellison, deliberately, and with his eyes open, entered into the contract which the appellant now seeks to enforce by a decree of a Court of Equity. ALBANY, April, 1824® Seymour v. Delancyy I am, therefore, of opinion, from a review of the whole evidence, that this contract was, at the time the negotiation was first entered into, and at the time the articles were executed by Seymour and Ellison, certain, fair and just, in all its parts. ¡^“alfita Part3» Contract cer« tnm Z .. Xl The next question which presents itself to the consideralion of the Court is, whether the contract between the appellant and Ellison is so hard, unreasonable, or unequal, that this Court will not aid to enforce it. Whether a mmcionabie11" or unequal, In reviewing this part of the case, it will be the duty of the Court to investigate the evidence as to the value of the Newburgh lots, and the farms to be exchanged for them. Should they arrive at the conclusion that mere inadequacy in value, where there is no fraud, misrepresentation, imposition, or concealment of facts, is of itself sufficient to avoid the contract, it will save a great deal of the labour and investigation which might otherwise be required. I admit, however, that where the inadequacy of price ift a contract is so flagrant and palpable as to convince a man at the first blush, that one of the contracting parties had been imposed on by some false pretence, such a contract ought not to be enforced by this, or any other Court of Equity. It is not to be denied, that it is the settled doctrine of the Court of Chancery, that it will not carry into effect, specifically, a, contract where the inadequacy of price amounts to conclusive evidence of fraud. In this view of the case, therefore, as well as in reference to the objection of mere inadequacy, I shall briefly examine the evidence of value» wíiereinaá equacy ofprice evin«rafraud° the contract enforced.01 be [530] There is A distinction between a court Of chancery refusing to decree performance of an agreement, and setting it aside. So they will not disturb an agreement that has been executed, though they would not have decreed its performance. In the first case they leave the party to his remedy at law: in the second, refuse to order the agreement to be cancelled. For fraud, circumvention, deceit, or misrepresentation, they would order it delivered up to be cancelled. Whether equity should avoid the contract between S. and E. Not to carry it into effect would be to avoid it. If to warrant this the inadequacy should he such as to evince fraud, chancellor’s opinion cannot be supyoned. It may be proper to premise, that there is a distinction beJ tween a Court of Chancery, refusing to decree the specific performance of a contract, and setting it asides (Mortlock v. Buller, 10 Ves. 292.) It is also well settled, that a Court of Equity will not disturb an agrément that has been executed, although they would not have decreed a specific performance» (Willan v. Willan, 16 Ves. 83.) .In the first case, the Court would leave the party to his remedy at law. In the second, they would refuse to interfere by directing the agreement to he cancelled, the party having consummated his own act. But if there should be fraud, circumvention', deceit, of misrepresentation, a Court of Chancery would order-the contract to be delivered up to be cancelled. This Case, theft, being free from fraud, concealment and misrepresentation, and from the charge of a hasty and unadvised contract, one important question appears to be, can a Court of Equity interfere, under such circumstances, to avoid the contract? For, in my opinion, not to carry this contract into effect is to avoid it wholly. It would be well to consider whether this is á case coming within the rule. For if it be true that the respondents must rest the decree of the Chancellor, principally, on the inadequacy in value of the property to be exchanged; and if it be true that, in order to avoid such a contract, the inadequacy of price must amount to conclusive evidence of fraud, (Western v: Russell, 3 Ves. & Bea. 187 ; Willan v. Willan, 16 Ves. 83; Coles v. Trecothick, 9 Ves. 246, per Ld. Eldon) I do not see in what manner the opinion of his Honor the Chancellor cam be supported. There is no question so well calculated to generate a variety of opinion, as that xvhich regards the value of a village lot, or a farm in the country ; and unless the disproportion should be gross and palpable, it would be very difficult to estimate bow much more had been given by A. for a lot than the price at which B. would value it.. This, by the proofs, is the precise case before us. The average value of the appellant’s interest in the lots at New burgh, as sworn to by six witnesses, is $10,856 ; and this is corroborated by the fact, that the father of the appellant es» [531] iimated the lot east of Water-street, several years since, at $30,000. The average of the farms, as sworn to by witnesses, is $12,686, and the difference about $2,186, according to the highest estimate made by the witnesses of the respondents. The lowest estimate of the Nwburgh lots, by the respondents’ witnesses, is between 5 and 6000 dollars, That a difference of opinion should exist among the witnesses, both as to the value of the lots in Newburgh and the farms -of Ellison, is very natural. Every person, at all acquainted with the price set upon real property, and that which is paid when sales do take place in the country, and in country villages, must be aware to what extent an honest difference of opinion does and always will exist. One will venture his fortune in the purchase of property which, in his judgment, will lay the foundation for a comfortable settlement of his family, while his immediate neighbour, with the same knowledge of all the circumstances, pronounces the purchase rash and injudicious. There is scarcely an instance in which a great difference of opinion does not exist, upon the point, whether the purchaser has a good bargain or not. In the country, and in country villages, there is no settled criterion by which property can be estimated. It is not an uncommon circumstance for men to hold on upon real estate, in the hope of getting their price, until the law interferes, and the Sheriff is compelled to solve all scruples on the subject. In the present case, Ellison, a man of fortune, and competent to carry into effect his plans for the improvement of the two Newburgh lots, impressed with the idea of the growing importance of that village, and influenced, in all probability, by the expectation of the establishment of a navy yard in its vicinity, and being the owner of two thirds of the premises in question, exchanges certain farms in the country for the lots in Nezoburgh. He does this deliberately, freely, and with a full knowledge of the situation of his own property and that which he agreed to take in exchange. There is no ground for saying that there was, in this case, either fraud, surprise, misrepresentation, or deceit. The bargain was conducted by him throughout with great deliberation, and he consummated it with bis eyes open. Under such circum* [532] stances, we are called on tq say, that mere inadequacy of price, and where there is much contradictory evidence, is of itself sufficient to prevent the Court of Chancery from decreeing the specific performance of the contract. [531] tov. lueofthp ^'Cl exchanged. TTviderir»#» sis5 [532] price,6 Weis it amount tq con-deuce of fraud, sufficient86^ a ground cffit^pertonnance of an a- upon this point considcredo ' • In the case of Coles v. Trecothick, (9 Ves. 246) Lord El^on observed, that inadequacy of price, unless it amounted to conclusive evidence of fraud, was not itself a sufficient ground for refusing a specific performance; and, although *^l's was case °f an auction sale, the opinion was pro-on the general question. In Mortlock v. Buller, 10 Ves. 292) the Lord Chancellor declined giving an opinion on the doctrine of inadequacy. In Western v. Russell, (3 Ves. & Bea. 187) the defence was gross inadequacy of consideration. The Master, of the Rolls said that it was not • . • , .. . necessary to determine the general question whether inadequacy of price might not be a ground for refusing performance, and he decided the case upon its special cir-, cumstances, and- held that, as the vendor, was not alleged to be under any incapacity or deficiency of judgment, and set¡ his own price and obtained it, and never expressed any disc satisfaction, but accused the purchaser of delay, the agreement should be carried into execution. Chancellor Kent, admits, that Lord Eldon and the Master of the Rolls had thrown doubt and distrust on this doctrine that inadequacy of price, is of itself sufficient to prevent a specific execution. In Collier v. Brown; (1 Cox, 428) it was expressly held, on a bill for specific performance, that if the parties bargained with their eyes open, and without imposition o.r surprise,piere inadequacy of price was not of- itself sufficient to prevent the Court from administering its usual equity. This is the doctrine of common sense and common honesty; for it may be asked, with great propriety, what right have we tq sport with the contracts, of parties fairly and deliberately entered into, and prevent them from being carried into effect ? j I cannot assent to the doctrine, that inadequacy of price may, of itself and without fraud or other ingredient, be sufficient to stay the application of the power of a Court of [533] Chancery, to enforce .a specific performance of a private contract to sell land. To establish this doctrine in th.e state of New-Yorlc, would, to my mind, be sanctioning a principle, which would lead to very injurious results. Every member of this Court must be well aware how much property is held by contract; that purchases are constantly made up.qn speculation ; that the value of real estate is fluctuating ; and that there, most generally, exists an honest difference of opinion in regard to any bargain, as to its being a beneficial one, or not. To say, when all is fair, and the parties deal on equal terms, that a Court of Equity will not interfere, does not appear to mp to be supported by authority \ (Day v. Newman, 2 Cox, 77; Willan v. Willan, 16 Ves. 83; Western v. Russel, 3 Ves. & Bea. 187; Mortlock v. Buller, 10 Ves. 292,) and unless I am bound down by some rigid rule of Jaw, I, for one, cannot consent to its introduction into our equity code. I have not had time to analyze all the cases which have been cited, so as to bring them in review before the Court. The earlier cases are very loosely reported ; and we cannot, either from the decisions made, or from the opinions of the Court,, form a satisfactory judgment on the particular facts; and from the doubts and disapprobation of Sir William Grant, the Master of the Rolls, and of Lord Eldon, I feel myself warranted in saying that the point is unsettled in England. Nor can I perceive why a contract for the sale of land, which is fair in all'its parts, should not be carried into effect, as much as any other contract. In principle there is not, and ihere ought not to be a difference. There may be such inadequacy of price as, of itself, to he an evidence of fraud. But wherever this does not exist, and resort is had to the testimony of witnesses, and they differ in their valuation, as in the present case, the contract should be executed. In the case before the Court, the average value of the farms, by six of the resp.ondepts'’ witnesses, is $12.686. Six witnesses on the part of the appellant, (and men, too, of great respectability,) value the Newburgh lots at $10,856. The difference is $1830.° How is it possible fby any Chancellor tq decide upon the relative weight of [534] such evidence ? What can clearly be extracted from such a state of the case is, that it is much better to carry the contract into effect, than that the rule of equity should depend on the judgment of a single individual. It is impossible for any Court to appreciate all the considerations which infliv ence men who enter, into speculations of this kind. I adm.it that the case might present a different aspect, if all the wit-, nesses agreed in opinion. But here is a difference of opim ion among some of the most respectable people in New-burgh, as to the value of the lots; and the witnesses fo.' the appellant are supported by the former purchases made by Ellison when he was as sane as he ever was. [533] Injurious results in this state arising from a contrary principle. It does not appear U> be sup* ported by authority. Earlier casei loosely reported. Point unsettleS in England. There may be such great inadequacy as to evince fraud. If otherwise ; and witnesses differ as in this case, the contract should be executed. [534] gerfpr the appellant than if it had been a mere sash sale. This is stron- Not such in-be^co^idosive evidence of contract being entered mto Gfilibsr&tsly} and being fair shouldlbePexeeuted. There is another circumstance which has considerable weight with me ; and it is that this contract is, for the ex- . _ . change of real property. It cannot be denied, that, in such caseS) each party is anxious to put a high nominal value on his own land. It is a transaction wholly different, in this respect, from that of a cash sale. Although the Newburgh lots did not produce an income proportionate to the value put upon them by the appellant, yet the same objection existed as to the farms ; for it appears by the evidence of Coldm, that th,ey were very much out of repair. Upon the whole, I am of opinion, that there is not in the Present case such an inadequacy of price, as, of itself, amounts to conclusive evidence of fraud ; that the contract between the appellant and Ellison,in his life time, was cnlere(j into with a full knowledge of all, the circumstances by , - Ellison, and after much deliberation ; and that it is fair in a^ *ts Parts 5 an£l that the respondents ought to. be compelled specifically to carry it into effect. (Coles v. Trecothick, 9 Ves. 246.) 2d point of deof testimony as to incompeinnfavorofaappellants. I have not entered at large into the consideration of the quest’on raised on the argument, as to the incompetency of Ellison ; because it appeared to me that the weight of testimony, on that point, was clearly with the appellant; and ajj the facts in the case show that he concluded the bargain with great care and deliberation. If Drake Seymour is to be believed, (and I think he is entitled to the most implicit credit) Ellison was perfectly competent to transact business [535] throughout the whole negotiation, and when he was not so, the subject was never mentioned to him. Indeed, his own agent, A/’Coun, says thatwhen intoxicated,he never knew him attempt to do business. Where a general incapacity is proved, it is the duty of the adverse party to shew competency when the contract was executed ; but in the present case all the evidence goes to shew EMisotfs competency to transact business when the negotiation commenced; and Drake Seymour expressly swears to it when the contract was executed. As to the third point, that the appellant was not in a situation to give a good title to the village lots, either when he contracted, or when the deeds were to be exchanged, I am somewhat at a loss to reconcile the decree of his honor the late Chancellor, with itself. He says, on this point, “ that the appellant was in default on the 1st of June, 1820» He ought to have shown himself able and ready to convey on that day and that he was in default because the property was encumbered by a mortgage of $5000. WhetherP°appellant could ffy® a g0°a in Conclusion, however, he says that he heard no evidence as to the Complainant’s title ; that in the case of a specific performance, it is the usual course of the Court* to refer the inquiry as to title to a Master. In my judgment, this inquiry extends not only to the actual title, but to incumbrances upon the property. In fact, the Master is to inquire’ whether the party can make a deed, according to his contract. If he can, it is sufficient, although he was not in a situation to do so when he entered into the contract, or at ’ the time for performance; though it might be otherwise, where one party had been quickened by the other, or where ti me is of the essence of the contract, as where it relates to stocks or other personal chattels. (2 Pow. on Contr. 266, 267. 3 Eq. Abr. 690. 2 P. Wms. 630, 631. 7 Ves. 202. 10 Ves. 315. 6 Ves. 646. 2 Cox, 77. 2 John. Rep. 595, 614 ) ¡t is sufficieni if 1116 v^ndor good title at decree, unless he has been th^vendee, ratime be of the contract, as ^®r*o or personal chattels. The appellant’s remedy is lost at law, because the property was covered by a mortgage. But that is no objection in a Court of Equity. (Newl. on Contr. 89.) It is the peculiar privilege of Courts of Equity to interfere where the. [536] remedy is defective at law, if it be not against conscience ; and if a contract be fair, it should be enforced. (8 Ves. 163. 2 Sch. & Lef. 347, 352. 9 Ves. 608.) State of Ellison’s health excused defaiih to convey at the day. Calls- should be remitted ; ma-f -r to inquire, &c and if, &c. a perfpvmance should be decreed. I do not see anything in this cause which looks like an abandonment of the contract. It is clearly distinguishable from the case's in 1 Dessaussure, 382, and 13 Ves. 238. Here was no necessity for punctuality, as the parties had taken possession according to the contract. Indeed, the state of Ellison’s health was a sufficient excuse for not offering to convey at the day. I am satisfied that the general rule is as laid down by the appellant’s counsel ; and that this case does not come within the exceptions to it. The cause must therefore be remitted to the Court of Chancery, that the Chancellor may direct a Master to inquire whether the appellant can give to the respondents a clear and unincumbered title to the Newburgh lots ; and if he can, a decree for á specific performance, according to the contract, must be entered against the respondents. Bowman, Bronson, Borrows, Bort, Cramer, Dudley, Haight, Lynde, M’Intyre, Redpield, Thorn, Wheeler and Wooster, Senators, concurred. For affirming, TO—for reversing, 14.y A majority of the Court being for a reversal, it was thereupon ORDERED, ADJUDGED and DECREED, that one of the r 7 ' Masters of the Court of Chancery be directed to inquire whether the said appellant has, and can give a good title to certain lands in the town of Newburgh, in the county of Orange, which, by certain articles of agreement set forth in the appellant’s bill of complaint, and proved in the said cause, the said appellant had agreed to convey to the said Thomas Ellison, deceased, in his life time ; and if his Hon-our the Chancellor, upon the coming in of the report of the said Master, shall be of opinion that such title can be given, that a proper decree be made for the specific performance, by the appellant and the respondents, of the said articles of agreement, and for the execution, by the proper parties, of all necessary conveyances, with suitable covenants for assuring the title, and requiring the appellant and respondents to procure all proper persons to join in =n/*K '»«■>*- [537] veyancc ; and that the respondents, in that case, pay to the appellant his costs in the Court of Chancery, to be taxed ; and it was further ordered that the record be remitted, &rc. N. B. Sutherland, J. was absent, through indisposition ; and took no part in deciding this, or any of the causes during this session.