Dodd v. Seymour

Church, Ch. J. This bill asks for the specific execution of a certain part of a written contract, entered into between these parties;—a stipulation by the defendant, to convey to the plaintiff twenty feet of land, as described in the agreement, dated July 10, 1842. The first difficulty which meets us, is, that it does not appear from the face of the agreement itself, nor from any averment in the bill, nor by the finding of the court, that there was any consideration for this undertaking by the defendant. It is true, that the court, in its finding, referring to the allegations and facts in the bill, speaks of them as showing a consideration. An inspection of the agreement and the bill will shew, that in them, no consideration appears, or is averred; and we do not well see how any can be inferred. The parties mutually stipulated, each to lay out a road through his own land, and, so far as we can see, for the mutual and equal benefit of both; and then the defendant, Dodd, as an independent stipulation, agrees to convey to the plaintiff the land in question. Why? It does not appear, that the laying-out of the road was, in any way, the inducement to this promise, or that it was such a special benefit to the defendant, or injury to the plaintiff, as to constitute a legal consideration. A court of equity is not bound to compel a specific performance of a contract, even fairly made, and upon such legal consideration as would be sufficient to support it, in an action at common law. A consideration must not only exist, but it must be adequate, to induce a court of equity to decree a compulsory performance; and the contract must be so explicit as not to leave the court to conjecture. 1 Madd. Ch. 326. Peacock v. Monk, 1 Ves. 133. Underwood v. Hitchcock, 1 Ves. 280. Graham v. Graham, 1 Ves. jun. 275. 18 Ves. jun. 149. 2 Sto. Eq. 54. 76. 2 Sw. Dig. 21. 22. Seymour v. DeLancy, 6 Johns. Ch. R. 232. 2. We cannot resist the objection made by the defendant, [480] to the decree of the court requiring him to convey the land in question by a deed, with covenants of warranty, seisin, &c. This is going beyond a decree for specific performance; it requires the defendant to perform that which he never agreed to do. His agreement was only to deed, that is, convey, the land to Seymour, by deed. The import of this agreement, was that the land should be so conveyed, by deed, as effectually to transfer to him an unincumbered title in fee. If the defendant had such a title, a release or quit-claim deed would be as effectual to transfer it, as a deed with covenants; and if he had not such title, a deed with covenants would not transfer it. Dart v. Dart, 7 Conn. R. 250. In the case of Van Eps v. The City of Schenectady, 12 Johns. R. 436. it was decided, that an agreement, on a sale of land, to execute a deed, was satisfied, by executing a deed without covenants. The doctrine of that case was confirmed, in the case of Gazley v. Price, 16 Johns. R. 267. And the authority of these cases and the principle recognized by them, was expressly sanctioned, by this court, in the case of Mead v. Johnson, 3 Conn. R. 592. This is sufficient for us, although we believe the same doctrine has been received by several of our sister states. It does not appear but that the defendant had, and now has, an unincumbered title in fee to the land in question. And if this was so, it was said in argument, that a deed with covenants would work no injury to the defendant, while it would afford a legal remedy to the plaintiff, if the defendant had no such title; and therefore, the decree, in this respect, was equitable. “In hæc fœdera non vent" is an answer to this suggestion. But in such case, a compliance with the decree made in equity, would forthwith subject the defendant to an action at law. The party might have had other good reasons for refusing to make such a bargain; and the court cannot substitute it now for the one in fact made. It would be an essentially different contract. If the defendant is made to insert covenants in his deed, he not only binds himself, but his heirs after him. He, then, not only contracts with the plaintiff, but he contracts with his assigns in all time to come. [481] With these views, we are brought to the opinion that the decree of the superior court is erroneous. In this opinion the other judges concurred, except Ellsworth, J., who was disqualified under the act approved June 29, 1852. sect. 4. Decree reversed.