which, by reason of some special and personal relations between the parties, are binding upon one of them only. If the exemption is a personal one-that is, given by the law for the personal benefit of the party enjoying it-he may disregard it, by bringing a suit for a specific performance; he will waive both his personal exemption, and the absence of mutuality which it produces, and will be able to enforce the agreement against the other contracting party.(1) The reasons of this are plain. Although the mutuality here wanting is that of obligation, its absence results from something which is a merely personal privilege, given for the benefit of the individual party; a benefit which he can waive, and thus render himself liable without violating any motives of public policy or any general principles of the law. As he might thus waive the exemption from liability. which exists in his own favor, he is permitted to enforce the agreement against the other contracting party, the suit itself being considered as a waiver. If the exemption from liability and consequent want of mutuality result from some personal incapacity of the party-such as infancy, marriage, and the like-they cannot be thus waived; at all events, while the incapacity continues.

SEC. 173. 3. The third species embraces cases of a partial performance by the vendor, with or without compensation for his failure to perform in full. When the vendor has not the whole estate which he agreed to sell, or when his title to it is partial and imperfect, he cannot, as has been already shown, force an acceptance upon the vendee, and the agreement lacks the mutuality of the equitable remedy. The purchaser may, however, waive this objection, and compel the vendor to convey all the estate or title which he actually possesses and is able to transfer, and often to make compensation for his failure to perform the agreement according to its literal terms. The principle Ion what the courts proceed in granting this form of relief, was stated

(1) A familiar example of this class is a contract of sale made between a trus tee and his beneficiary, which is not binding upon the latter, but which he can, nevertheless, enforce against the trustee, the suit for a performance being regarded as a waiver and ratification. Ex parte Lacey, 6 Ves. 625. A contract of sale, made by a voluntary settler, is treated in like manner by the English courts. The voluntary settler cannot enforce against the vendee. Smith v. Garland, 2 Meriv. 123; Johnson v. Legard, T. & R. 281; but the vendee may compel a specific performance by the settler. Buckle v Mitchell, 18 Ves. 100. A contract of sale between an infant and an adult cannot be enforced against the infant, nor by him, since the infant, during his minority, cannot render himself liable in any manner, and so cannot obviate the want of mutuality But as the agreement is not void but only voidable, after the infant comes of age he can, of course, then ratify and render it capable of specific execution at the suit of either party.

in the following manner oy Lord ELDON: "If a man having partial interests in an estate chooses to enter into a contract, representing it and agreeing to sell it as his own, it is not competent to him afterwards to say, though he has valuable interests, that he has not the entirity, and that therefore the purchaser shall not have the benefit of his contract. For the purpose of this jurisdiction, the person contracting under those circumstances is bound by the assertion in his contract; and if the vendee chooses to take as much as he can have, he has a right to that and to an abatement; and the court will not hear the objection by the vendor, that the purchaser cannot have the whole."(1) This doctrine is one of great practical importance, and is constantly applied in the specific execution of contracts, and I shall have occasion to treat it at large in a subsequent chapter.(2)

SEC. 174. Although the doctrine of partial enforcement, with compensation, when the vendor cannot fully perform, is sustained by repeated adjudications, it has met with a severe criticism, and even repudiation from one eminent equity judge. Lord REDESDALE, in several decisions made by him when chancellor of Ireland, restrained the doctrine within very narrow limits, and refused to apply it in cases similar in their facts to several which are cited in the foregoing note.(3) These criticisms, and the decisions in which they were made,

(1) Mortlock v. Buller, 10 Ves 315, per Lord ELDON.

(2) See chapter iii, section iv, on Partial Performance and Compensation, where the subject is fully discussed in all its applications, and with all its exceptions and limitations.

(3) Although these decisions are plainly opposed to the general current of authority, yet, as they are frequently cited, especially in the arguments of counsel, it is proper to describe them. One of them (Harnett v. Yielding, 2 Sch. & Lef. 549, 553, 559), involved a contract by a life-tenant acting beyond his powers, which Lord REDESDALE refused to execute even partially. He said: "I think courts of equity should never enforce such contracts, whether with a view to the party himself or to the person entitled in remainder. In the first place, it is unconscionable in the tenant for life to execute such a lease, because it brings an incumbrance on the estate of the remainderman, and puts him to litigation to get rid of it; and as to the tenant for life himself, it is compelling him to do what is to be the foundation of a future action for damages, if he die before the twenty-one years. The court will never do this, but will leave the party at once to bring his action for damages. And I also conceive that this sort of contract, obtained by a person who knew at the time the nature of the title, is unconscionable in him, as he makes himself a party knowingly to that which is a fraud on the remainderman; and, under such circumstances, he has no claim to the assistance of a court of equity.” In another case (Lawrenson v. Butler, 1 Sch. & Lef. 13, 21), a tenant for life agreed with the plaintiff to grant a lease, which he could not do without the consent of trustees, which was refused. The plaintiff brought a suit against the life-tenant, and claimed that he should have such a lease as the defendant was able to grant

are not only opposed to the doctrine of other cases, both prior and subsequent; their correctness has been expressly denied by modern equity judges of the highest ability and eminence, so that the authority of their general reasoning may be considered as completely destroyed.(1)

SECTION VIII.

The contract must be fair, equal, and just in its terms.

SECTION 175. The principle-he who seeks equity must do equity— underlying all the special rules which form the subject-matter of the second group of sections, has already been discussed, and its effect upon the equitable remedy of specific performance described; I need only, therefore, recapitulate the general doctrine, as a preliminary to an investigation of its various applications to different cases. When an agreement is tainted with fraud, mistake, misrepresentation, concealment, illegality, or other similar defect, which constitutes a defense in bar at law, or which furnishes grounds for a recision in equity, there is, in reality, no binding contract, and in this respect both the legal and the equitable jurisdictions are governed by the same rules. The grand and beneficial principle, whose effects we are now to investigate, extends

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out of his own estate. Lord REDESDALE refused to grant any relief, on the ground that there was no mutuality. No man signs an agreement but under 2 supposition that the other party is bound as well as himself, and, therefore, if the other party is not bound, he signs it under a mistake;" and he insisted that the doctrine of partial enforcement only applied where the plaintiff on the faith of the agree、 ment has put himself in a position from which he cannot extricate himself, and is, therefore, willing to forego a part of his contract--where in short he would sustain a substantial injury, unless he could obtain whatever partial execution the defend ant is able to give. It is not, perhaps, so much the decisions made by Lord REDESDALE upon the special facts in these cases, which are questionable, although doubt has been thrown upon them; it is rather the general tendency and scope of his whole argument, which are in conflict with the doctrine as to a partial enforcement against the vendor which is now well established

(1) See Thomas v. Dering, 1 Ke. 746, per Lord Langdale, M. R.; Dyas v. Cruise, 2 Jon. & Lat. 460, 487, per Lord ST. LEONARDS, who, speaking of the deci sion in Lawrenson v. Butler, said: "I doubt whether that can be maintained as the law of the court where there is no fraud in the transaction. If there be a bona fide intention to execute the power, and the contract cannot be carried into effect, I do not see why the interest of the tenant for life should not be bound to the extent he is able to bind it, unless there be some inconvenience." And see Neale v. Mackenzie, 1 Ke. 474.

far beyond these incidents which affect the validity and even existence of agreements; it applies to contracts which are valid, and which confessedly create legal obligations; it is developed in its practical operation so as to meet and counteract every possible circumstance and feature of unfairness, inequality, and inequity. The principle, that he who comes into the court seeking equity—that is, seeking to obtain an equitable remedy-must himself do equity, means not only that the complainant must stand in conscientious relations towards his adversary, and that the transaction from which his claim arises must be fair and just in its terms; but, also, that the relief obtained must not be oppressive nor hard upon the defendant, and must be so shaped and modified as to recognize, protect, and enforce all his rights arising from the same subject-matter, as well as those belonging to the plaintiff. By virtue of this principle, the specific performance of a contract will be refused when the plaintiff has obtained the agreement by sharp and unscrupulous practices, by overreaching, by non-disclosure of important facts, by trickery, by taking undue advantage of his position, or by any other means which are unconscientious; and when the contract itself is unfair, one-sided, unjust, unconscionable, or affected by any other such inequitable feature, or when the enforcement itself would be oppressive or hard upon the defendant, or would prevent the enjoyment by him of his own rights, or would in any other manner work injustice. The requisite of mutuality is obviously involved in certain phases of this principle. Unless the contract and the remedy were mutual, they would be one-sided, unfair, burdensome upon the defendant, without affording him an opportunity for any corresponding benefit.(1) I shall, in the present section, discuss the applications of this doctrine in respect to the terms of the contract, and

(1) See ante, chapter 1, section 2, and cases cited, § 35, (n). Also, Wilian v Willan, 16 Ves. 83, per Lord ELDON; Twining v. Morrice, 2 Bro. C. C. 326 ; Savage v. Brocksopp, 18 Ves. 335; Davis v. Symonds, 1 Cox, 406; Redshaw v. Bedford Level, 1 Ed. 346; Revel v. Hussey, 2 Ball & B. 288; Reese v. Reese, 41 Md. 554; Magraff v. Muir, 57 N. Y. 155; Crane v. DeCamp, 6 C. E. Green, 414; Walker v. Hill, 6 C. E. Green, 191; Merritt v. Brown, 6 C. E. Green. 401; Cuff v. Dorland, 55 Barb. 481; Bowman v. Cunningham, 78 Ill. 48; Taylor v. Merrill, 55 Ill. 52; Fitch v. Boyd, 55 Ill. 307; Jackson v. Ashton, 11 Peters, 229; McNeil v. Magee, 5 Mason, 244; Osgood v. Franklin, 2 Johns. Ch. 23; Minturn v. Seymour, 4 ib. 497; St. John v. Benedict, 6 ib. 111; Acker v. Phoenix, 4 Paige, 305; Clitherall v. Ogilvie, 1 Dessaus. Ch. 257; Howard v. Moore, 4 Sneed, 317; Barker v. May, 3 J. J. Marsh. 436. It necessarily follows, from these equitable incidents and features of the contract, that a less strong case is sufficient to defeat an application for a specific performance than is requisite to obtain the remedy. See the remarks upon this point of Lord COTTENHAM in Vigers v. Pike, 8 Cl. & Fin, 562, 645.

the circumstances under which it is concluded; and shall, in the following section, treat of the same doctrine in direct connection with the remedy.

SEC. 176. The inequitable element of unfairness which shall defeat the remedy of specific performance may, as has been already indicated, inhere in the provisions of the agreement itself; or, it may have existed in the preliminary negotiations, relations of the parties, and other circumstances preceding or accompanying the conclusion of the contract, and parol evidence is admissible to establish the latter condition.(1) These two aspects of the subject will be separately treated in the order here stated.

SEC. 177. First. The contract itself. I. The time when the unfairness, etc., must exist.-The question to be answered is: To what time in the history and progress of a contract must the element of fairness be referred, so that if it then exists no objection can be raised to a specific performance based upon the principle under discussion? If the agreement possesses all the elements of fairness both in its terms and in its surrounding circumstances at the time when it is entered into, is this requisite forever satisfied, so that no inequality, one-sidedness, hardship arising from subsequent and at the outset unforeseen events, or change of relations and circumstances, shall avail to prevent a specific enforcement? Or, notwithstanding the original fairness and equality, may the equitable remedy still be refused because an unexpected alteration of circumstances or happening of untoward events has rendered the contract unfair, burdensome, or unequal, and its execution by the court harsh and inequitable? There is on this point a direct conflict among the authorities. According to one opinion, the first of these questions should be affirmatively answered; according to the other, the second. Certain cases hold the doctrine that if a contract is fair and unobjectionable at its inception, no change of circumstances or relations or events however unexpected, and however much inequality and hardship they may produce in the operation of the agreement, shall constitute a sufficient ground for denying the remedy of specific performance.(2) Other decisions declare that this rule, although, perhaps, correct in the main, is subject to exception,

(1) Davis v. Symonds, 1 Cox, 402.

(2) Mr. Fry lays down this proposition without limitation or exception, both with respect to the fairness of the contract and the hardship of its execution. See Fry on Spec. Perfm., §§ 235, 252; Pickering v. Pickering, 2 Beav. 56; Frank v. Frank, 1 Cas. in Ch. 84; Lawton v. Campion, 18 Beav. 87; hardship, Lawder v. Blachford, Beat. 522; Webb v. Direct London & Portsmouth Ry. Co., 9 Ha. 129; Low v. Treadwell, 3 Fairf. 441; Marble Co. v. Ripley, 10 Wall. 339.