the mode of raising trusts, that wherever a person acquires the legal title to lands by means of a verbal promise to hold them for a certain specified purpose-as, for example, a promise to convey them to a designated individual, or to reconvey them to the grantor, and the like; and having thus obtained the title fraudulently, retains, uses and claims the lands as absolutely his own, so that the whole transaction, by means of which the ownership was obtained, is based upon deceit, and is, in fact, a scheme of actual fraud; such party is regarded as holding the lands charged with an implied trust arising from his fraud, and he will be compelled, by a court of equity, to execute this trust by performing his engagement, and by conveying the estate in accordance with his promise. The statutory requirement that a trust must be created by a written instrument, does not apply to such a case, since trusts ex maleficio are either expressly or tacitly excepted from its provisions. (1) In order, however, that the general doctrine

(1) Hunt v. Roberts, 40 Me. 187; Hodges v. Howard, 5 R. I. 149; Fraser v. Child, 4 E. D. Smith, 153; Hoge v. Hoge, 1 Watts, 214; Cousins v. Wall, 3 Jones Eq. 43; Cameron v. Ward, 8 Geo. 245; Jones v. McDougal, 32 Miss. 179; Martin v. Martin, 16 B. Mon. 8; Arnold v. Cord, 16 Ind. 177; Nelson v. Worrall, 20 Iowa, 469; Coyle v. Davis, 20 Wisc. 593; Hidden v. Jordan, 21 Cal. 92; Sandfoss v. Jones, 35 Cal. 481; Laing v. McKee, 13 Mich. 124. This doctrine is often used with salutary efficacy in cases where, at an execution sale, or sale under a mortgage foreclosure, or other similar public sale, a party buys in the land under a prior promise made to the execution or mortgage-debtor or other interested owner, that he, the purchaser, will take the title and hold the land for the benefit of such owner, and will reconvey to him on being repaid the amount advanced for the purchase-price, and having thus, by fraudulent contrivance, cut off competition, and obtained the property for perhaps less than its value, refuses to keep his promise, and retains the land as absolutely his own. Equity will interfere on behalf of the defrauded owner, and compel a conveyance in accordance with the trust ex maleficio. Rose v. Bates, 12 Mo. 30; Moore v. Tisdale, 5 B. Mon. 352; Letcher v. Crosby, 2 A. K. Marsh. 106; McCulloch v. Cowher, 5 Watts & S. 430; Kisler v. Kisler, 2 Watts, 323; Schmidt v. Gatewood, 2 Rich. Eq. 162; Green v. Ball, 4 Bush. 586. In the very recent case of Dodd v. Wakeman, 11 C. E. Green, 484, the court said the rule is settled (at least in New Jersey), that a parol contract to purchase land at a sheriff's sale for the benefit of the execution debtor, and that he shall have a conveyance of it on reimbursing the purchaser, will be enforced in equity, even if free from fraud, unless the statute of frauds is properly pleaded by way of defense (citing Combs v, Little, 3 Green Ch. 310; Marlatt v. Warwick, 3 C. E. Green, 109, 4 ib. 441; Merritt v. Brown, 6 C. E. Green, 404). And even where defendant pleads the statute, if it clearly appears that he has made use of such contract, or any other contrivance, to obtain the property for an inadequate price, or to the oppression of the execution debtor, a court of equity must grant the relief (citing Walker v. Hill's Ex'ors, 7 C. E. Green, 519; Merritt v. Brown, 6 C. E. Green, 404). In Ryan v. Dox, 34 N. Y. 307, the doctrine of the text is fully supported by the New York court of appeals, after an elaborate examination of the authorities and discussion of the principles.

above stated can be enforced under any circumstances, there must be something more than a mere verbal promise, however unequivocal, otherwise the statute would be virtually abrogated; there must be an element of actual, positive fraud accompanying the promise, and by means of which the acquisition of the legal title is wrongfully consummated. Equity does not pretend to enforce verbal promises in the face of the statute; it endeavors to prevent and punish fraud, by taking from the wrong-doer the fruits of his deceit, and it accomplishes this object by its beneficial and far-reaching doctrine of implied trusts.(1)

SECTION V.

The contract must be complete.

SECTION 145. It is an elementary doctrine of the courts of equity that they will not specifically enforce any contract unless it be complete and certain. (2) In the discussions of the present and next

This decision is not in the least shaken by the subsequent case of Levy v. Brush, 45 N. Y. 589, which is clearly distinguishable upon the facts, and which expressly acknowledges the correctness of the former decision. See, also, the very late case of Wheeler v. Reynolds, 66 N. Y. 227, which fully discusses the doctrine and its limitations.

(1) Leman v. Whitley, 4 Russ, 423; Barnet v. Dougherty, 32 Pa. St. 372; Pattison v. Horn, 1 Grant (Pa.), 301; Hogg v. Wilkins, 1 Grant, 67; Campbell v. Campbell, 2 Jones Eq. 364; Chambliss v. Smith, 30 Ala. 366; Whiting v. Gould, 2 Wisc. 404; Farnham v. Clements, 51 Me. 426; Levy v. Brush, 45 N. Y. 589.

(2) Buxton v. Lister, 3 Atk. 386, per Lord HARDWICKE: "Nothing is more established in this court than that every agreement of this kind ought to be certain, fair, and just in all its parts. If any of those ingredients are wanting in the case, this court will not decree a specific performance." Lord Walpole v. Lord Orford, 3 Ves. 420, per Lord ROSSLYN: “I lay it down as a general proposition, to which I know no limitation, that all agreements, in order to be executed in this court, must be certain and defined; secondly, they must be equal and fair, for this court, unless they are fair, will not execute them; and thirdly, they must be proved in such manner as the law requires." See Underwood v. Hitchcox, 1 Ves. Sen. 279; Franks v. Martin, 1 Ed. 309. For examples of the kinds of contracts which cannot be specifically executed by a court cf equity, because of their incompleteness, see, where the negotiation was not ended, Honeyman v. Maryatt, 21 Beav. 14; 6 H. L. Cas. 112; Stratford v. Bosworth, 2 V. & B. 341; Tawney v. Crowther, 3 Bro. C. C. 318. Where it is only the basis of an agreement, and not the agreement itself, Frost v. Moulton, 21 Beav. 596; Losee v. Morey, 57 Barb. 561. Where it provides that one or more of the terms are to be settled afterwards, Wood v. Midgley, 5 DeG. M. & G. 41. Where the arrangement is still in abeyance, and one party may still withdraw his consent, Lord Glengal v. Barnard, 1 Ke. 769; Johnson v. Johnson, 16 Minn. 512 (a mere understanding, but no definite contract).

succeeding section, the element of completeness denotes that the contract embraces all the material terms; that of certainty denotes that each one of these terms is expressed in a sufficiently exact and definite manner. An incomplete contract, therefore, is one from which one or more material terms have been entirely omitted. An uncertain contract is one which may indeed embrace all the material terms, but one or more of them is expressed in so inexact, indefinite, or obscure language, that the intent of the parties cannot be sufficiently ascertained to enable a court to carry it into effect. The former of these qualities is the subject-matter of the present section. This element of completeness must exist in every contract which can be specifically enforced, whatever be its external form, whether written or verbal, whether embodied in the memorandum required by the statute of frauds, or rendered obligatory by part performance, or by any other mode which may obviate the prohibitions of that statute. It should be observed, however, that the completeness here spoken of, although quite analogous to, is really more extensive and embracing more particulars than that which, we have seen, must be found in the note or memorandum of the agreement mentioned in the statute of frauds, since it must extend to the entire contract. In order that any agreement, whether covered by the statute or not, whether written or verbal, may be specifically enforced, it must be complete in all its parts; that is, all the terms which the parties have adopted, as portions of their contract, must be finally and definitely settled, and none must be left to be determined by future negotiation; and this is true without any regard to the comparative importance or unimportance of these several terms. The element of completeness necessarily includes all the terms which are stated in the memorandum, but it may extend beyond this evidentiary writing, and it applies to all the contract, whether embraced in the memorandum or not. It should also be remarked, before proceeding with the discussion, that when a contract has been partly performed by the plaintiff, and the defendant has received and enjoys the benefits thereof, and the plaintiff would be virtually remediless unless the contract were enforced, the court, from the plainest considerations of equity and common justice, does not regard with favor any objections raised by the defendant merely on the ground of the incompleteness or uncertainty of the agreement. Even if the agreement be incomplete, the court will then, in furtherance of justice and to prevent a most inequitable result, decree a performance of its terms as far as possible, although, perhaps, with compensation or allowance. In fact, as has been shown in

chapter 1, one ground of the equitable jurisdiction to decree a specific performance is the incompleteness of the contract, which would prevent an action at law, but which exists to such a limited extent and under such circumstances that a refusal to grant any relief would be plainly inequitable.(1)

SEC. 146. In discussing the element of completeness, a contract may be considered in reference to the following particulars: 1. The parties. 2. The price. 3. The subject-matter. 4. The promises and other miscellaneous terms, and the whole subject will be presented in a clearer light, if the decisions are examined and arranged in accordance with these divisions.

SEC. 147. I. The parties.-There can be no complete contract unless the parties are known and determined; they are essential to the very conception of a binding agreement. The rule is a general one that their names must appear in the contract, or on the face of it, as the contracting parties. When the agreement is verbal, and is therefore proved by parol evidence, there cannot, from the nature of the case, be any real doubt or difficulty if a contract has actually been made; for the disclosure of the parties is necessarily involved in the proof of the contract itself. The rule, in its general form, applies as well to written agreements, which must state the parties, either by name or by sufficient description.(2) Under this general rule, however, especially when applied to a written contract, there arise several subordinate questions, namely: when and to what extent does the name of an agent appearing alone in the agreement, as a party thereto, take the place of the principal and satisfy the demands of the rule itself? How far is a description of a party by his title, office, or otherwise, instead of his name, a sufficient compliance with the rule? To what extent is extrinsic evidence admissible to identify the party who is simply described or indicated in any manner other than by giving his name? Is it necessary, in a contract of sale, assignment, leasing and the like, whereby a right or interest is transferred, to indicate on the face of the writing which of the parties is the vendor, assignor or lessor, and which the vendee, assignee or lessee; and, in the absence of such express indication in the language of the instrument, can parol evidence be used in order to fix the proper characters in this respect upon the several parties? As these questions have just been examined and answered, and the cases furnishing their solution have

(1) See ante, § 33.

(2) Warner v. Willington, 3 Drew. 523; Squire v. Whitton, 1 H. L. Cas. 333; Champion v. Plummer, 1 B. & P. (N. R.) 253; Stanton v. Miller, 58 N. Y. 192.

just been cited in the preceding section which treats of the memorandum required by the statute of frauds; and as the same conclusions must apply to all written agreements, it would be a useless repetition to go over the same ground again, and the reader is referred to the discussion at the place mentioned.(1)

SEC. 148. II. The Price.-In all contracts of sale, assignment, and the like, the price is, of course, a material term. It must either be fixed by the agreement itself, or means must be therein provided for ascertaining it with certainty. In the absence of such provision, either stating it or furnishing a mode for fixing it, the agreement would be plainly incomplete, and could not be enforced; and if the contract is written, this term must appear in the memorandum or written instrument. (2) This rule, of course, does not apply to gifts,

(1) See ante, §§ 75, 83, 89

(2) Clerk v. Wright, 1 Atk. 12; Bromley v. Jefferies, 2 Vern. 415; Elmore v. Kingscote, 5 B. & C. 583; Goodman v. Griffiths, 26 L. J. Ex. 145; Preston v. Merceau, 2 W. Bl. 1249; Blagden v. Bradbear, 12 Ves. 466; Hopcraft v. Hickman, 2 S. & S. 130; Chichester v. M'Intyre, 4 Bli. (N. S.) 79; Powell v. Lovegrove, 39 Eng. L. & Eq. 427; and see cases cited under § 94. As illustrations, in Bromley v. Jeffries, supra, an agreement to sell an estate to the vendee named, "for 5007. less than any other purchaser would give," was held incomplete, since it stated no price nor furnished any certain means of ascertaining it, consistent with the terms of the contract itself. Plainly it would be impossible to find out how much any other purchaser would give without entering into a contract of sale, at least verbal, with some person; and that being done, it would be grossly inequitable to abandon that bargain for the sake of carrying into effect the one in suit. In Hopcraft v. Hickman, supra, the contract was to sell at a price to be fixed by two valuers, who made an award but did not finally and definitely fix upon any price, and a specific performance was therefore refused. In Chicester v. M'Intyre, supra, the contract contained the same provision as to the price; but in making their award, one of the arbitrators was guilty of very wrongful conduct, and their decision was plainly erroneous; the court, therefore, refused to be governed by it, or to enforce the agreement. The rule given in the text includes that already stated concerning the memorandum required by the statute of frauds, but is broader in its application, since it extends to all contracts verbal or written. The following cases furnish additional illustrations of the rule as stated in the text: Huff v. Shepard, 58 Mo. 242, stipulation in a land contract that the price shall be paid "on such terms as may be agreed upon between said parties," held to render the agreement incomplete; Potts v. Whitehead, 5 C. E. Green, 55, a stipulation fixing the price, and providing that a certain portion was to be paid on the execution of the deed, and the residue was to be secured by a bond and mortgage on the land at six per cent interest, without any provision for the time of payment of the portion so secured, held to render the contract too incomplete for enforcement. The various provisions of the contract plainly rebutted the implication that the balance was to be paid immediately, which sometimes arises when no time is specified. Mastin v. Halley, 61 Mo. 196, in a contract to convey land, the only consideration named was, that the vendee should