Irvine v. Armstrong

Berry, J. As to whether the transaction involved in this suit was usurious or not, the testimony was flatly contradictory. But it was entirely oral, and the learned judge who saw and heard the witnesses has found no usury. That there is abundant testimony to support the finding of the judge below there can be no doubt. In this state <of facts, to set aside the finding would be to disregard a familiar rule, which has long been established and followed in this court, and which we see no reason to abandon. . The finding cannot be disturbed. It is found, in substance, by. the court below that defendants Armstrong and his wife, for a valuable consideration, agreed with plaintiff to secure an indebtedness of defendant Armstrong to plaintiff of $900, .(to be evidenced by Armstrong’s notes,) by executing to plaintiff a mortgage upon certain land, — the terms of the notes and mortgage [218] being definitely agreed upon, — and that they have refused to carry out their agreement. The plaintiff asks that said defendants be required to perform their agreement specifically. To this it is objected that an agreement of this kind is not a proper subject of specific performance; that plaintiff has an ample remedy in an action at law for damages; and that, therefore, equity will not intervene. The general rule is that any agreement will be enforced specifically in a court of equity, where the specified thing or act contracted for, and not mere pecuniary compensation, is the redress practically required. Bisp. Eq. § 370; Adams’s Eq. 83; 1 Story, Eq. Jur. § 716. Under this rule agreements to execute mortgages upon real estate, as security for the payment of money, or to make an annuity a charge or lien upon lands, are specifically enforced. Such agreements are often entered into, on the part or behalf of the obligee or annuitant, for the purpose of making what is properly called an “investment” or “permanent investment.” In such circumstances it is plain that the recovery of money damages would fall far short of accomplishing the purposes of the agreement, or of affording the redress practically required in common fairness and justice. Hermann v. Hodges, L. R. 16 Eq. Cas. 18; Ashton v. Corrigan, L. R. 13 Eq. Cas. 76; Wellesley v. Wellesley, 4 Mylne & C. 561; Ogden v. Ogden, 4 Ohio St. 182; Hale v. Omaha Nat. Bank, 49 N. Y. 626, 634; Johnson v. Johnson, 40 Md. 189; Rolleston v. Morton, 1 Drury & War. 171, 190; McClintock v. Laing, 22 Mich. 212; Waterman, Spec. Perf. § 20. In the cases cited from the Law Beports, the agreement was for a mortgage with an absolute or immediate poioer of sale; yet specific performance was decreed. In Hermann v. Hodges, Lord Selborne said that he had no doubt of the propriety of decreeing specific performance, “unless the defendant was prepared to pay off the advance at once.” In the case at bar, the agreement was to execute a mortgage to run for twelve years; none of the amount secured to be paid for the first three years; but after that to be paid in equal annual instalments of $100 each, with 6 per cent, interest. Such a mortgage would certainly be an investment of considerable permanence. The trial judge (apparently as a favor or indulgence, and not as of right) gave the defendants 40 days within which to pay the money. Upon [219] their default in so doing, a decree for specific performance was to be entered. Whether the defendants were entitled to this alternative, and whether the plaintiff was not, upon the findings of fact, entitled to a decree absolute for the execution of the mortgage, we need not inquire. The plaintiff has taken no appeal, and, as respects the defendants, the decision of the trial court was clearly within the authorities. This disposes of what appear to us to be main points in the case. We have not overlooked the several other points made upon defendants’ brief, but deem it unnecessary to discuss them here. Order affirmed.