effect of the agreement when originally made, but arises from the subsequent acts or omissions of the defendant himself, it will not avail to prevent a specific enforcement.(1) A special rule has been established by the English decisions, that where a vendor is bound by certain covenants in reference to the land, and has not been expressly indemnified against them by the purchaser in their contract, the vendee, on becoming aware of them, either through provisions in the agreement itself or after the agreement has been concluded, cannot compel the vendor to perform without giving him an indemnity, and will himself be compelled at the suit of the vendor either to indemnify him against such covenants or to rescind the agreement. The reason given is, that otherwise the vendor would cease to be owner of the land, and yet remain personally liable in respect to the land. (2) This rule seems necessary in England, where the practice as to conveyancing is so complex, and where there is no general system of registry; in this country where the registry laws prevail, and furnish the means for ascertaining all the particulars concerning titles, there is no apparent necessity for the rule, and it probably would not be followed. Several particular cases of hardship, which admit of no general classification, are placed in the foot-note.(3)

relief. Peacock v. Penson, 11 Beav. 355. A lessee contracted to sell certain building lots, and to make a road, but found that he could not make the road without rendering himself liable to forfeit the land through which it would run, and which he held on a lease, or liable to be sued by the lessor. The court thereupon, granting to the vendee a specific performance of the agreement to sell, refused to enforce this stipulation, but awarded compensation in respect of it. Henderson v. Hays, 2 Watts, 148, 151; Campbell v. Spencer, 2 Binney, 133.

(1) See Helling v. Lumley, 3 DeG. & J. 493, 498, 499, per TURNER, L. J. "The court must look at the fact by whose acts and conduct the forfeiture would be occasioned. The court will not permit a defendant to put himself in such a position as that his performance of his agreement shall create a forfeiture, and then to turn round and say that the plaintiff shall not have a specific performance of the agreement, because the defendant has, by his own act, enabled the landlord to enter upon the agreement being performed. * * * If then he (defendant) has put it out of his power to perform the agreement constituted by the reservation, the consequences must fall upon him, and not on the plaintiff." For the facts of this case, see ante, under § 180.

(2) Moxhay v. Inderwick, 1 DeG. & Sm. 708; Lukey v. Higgs, 24 L. J. Ch. 495. (3) Wedgwood v. Adams, 6 Beav. 600. Trustees united with their beneficiaries in a contract of sale, and personally covenanted that the land should be cleared from all incumbrances; the purchase-money did not appear to be sufficient to pay off these incumbrances; nor did it appear how much the deficiency would be. On this account, because the trustees had thus assumed a heavy pecuniary burden, without any real interest, which was deemed a great hardship, the court refused to compel a specific performance, although the purchaser-the plaintiff--was in

SEC. 191. Contracts for the sale of reversionary and other future estates, are always regarded by the court of equity with great suspicion, and are enforced with the greatest caution on account of their always probable and almost always certain hardship upon the vendor. It is a familiar rule in England, where such transactions are much more frequent than in this country, that agreements by heirs and others.

possession of the property, and to get him out would itself be a matter of great difficulty. Watson v. Marston. 4 DeG. M. & G. 230. A mortgagee, with power of sale, had obtained a decree of foreclosure, and intended to sell under it as the owner. He made a contract of sale, but by accident in drawing up the written agreement a clause was inserted whereby he was made to sell as a mortgagee under his power. The vendee insisted on a conveyance under the power in accordance with this stipulation, while the vendor was willing to convey as owner under the decree. The court held, in a suit by the purchaser, that the risk which the vendor would run of opening the foreclosure decree by a sale under his power was such a hardship as he should not be forced to assume, and, therefore, refused to grant the plaintiff any relief except that of a conveyance by the vendor as owner under the decree. In this country such a controversy could not arise, since a title under a foreclosure would be very much preferred to a title under the power of sale contained in the mortgage. In Dean of Ely v. Stewart, 2 Atk. 44, an ecclesiastical lease contained a covenant, on part of the lessee, to leave the buildings in repair. It appearing that the same description of the buildings had been continued without variation from lease to lease for a long time, whence it might be inferred that the particular buildings in question were not in being at the time when the original lease was made, Lord HARDWICKE refused to enforce this covenant on the ground of its hardship. Talbot v. Ford, 13 Sim. 173. A lessee of mines covenanted, that if the lessor should at any time before the end of the lease give notice of his intention to take the machinery and fixtures, etc., the lessee would, at the end of the lease, give up all the articles mentioned in the notice upon the lessors paying their value, to be ascertained by valuers. The court held this covenant to be so oppressive and injurious to the lessee, that it both refused to decree its specific performance or to restrain its breach by injunction. In Hamilton v. Grant, 3 Dow P. C. 33, 47, A., upon B.'s agreeing not to join in barring an entail, contracted to convey to B., his heirs or assigns, the fee of such parts of the estates, which lay in three counties, as he or they should choose, to the yearly value of £200. The House of Lords refused a specific performance, among other reasons, because of the great inconvenience and hardship which this option might bring upon the party. In Kimberly v. Jennings, 6 Sim. 340, a contract by which a young man virtually put himself under the power of a business firm for his entire life as their clerk, was held to be so oppressive that its execution was refused. But in Chaton v. Gower, Finch, 164, where a life-tenant had agreed to give a mining lease, and when sued for a specific performance objected that as a life-tenant he had no power to give such a lease, and would be liable for waste, Lord NOTTINGHAM only admitted this defense partially, and decreed that he should convey as far as he could. It should be remarked, that in a class of cases, analogous to this, the court compels a partial enforcement instead of denying all relief. See, also, the cases heretofore cited. Willard v. Tayloe, 8 Wall. 557; Fish v. Leser, 69 Ill. 394; Stone v. Pratt, 25 Ill. 25; Blackwilder v. Loveless, 21 Ala. 371.

similarly situated, to sell their expectant or reversionery interests for any consideration less than the full value, will never be specifically enforced, since the vendor is necessarily placed at the mercy of the buyer.(1) In all such cases the burden is thrown upon the purchaser of demonstrating the fairness of the arrangement, and of proving that the price was the full value of the property; failing in this, he can obtain no relief in equity.(2) This rule, however, is not applied where the expectant or reversionery estates are sold at public anction.(3)

(1) Playford v. Playford, 4 Hare, 546.

(2) Kendall v. Beckett, 2 R. & My. 88; Hincksman v. Smith, 3 Russ. 433. The principle of this rule will doubtless be applied in analogous cases by the American courts of equity, although sales by heirs of their expectancies, etc., are, from the nature of our social habits and real estate law, not common in the United States. The following American cases are somewhat analogous in principle to the class of decisions referred to in the text, and seem to be, in part at least, controlled by the same doctrine. Mercier v. Mercier, 50 Geo. 546. A father having two children, A. and B., had threatened to disinherit A. in case A. contracted a certain marriage; the two children, therefore, made an agreement by which the property that the father might bequeath to B. alone, should be divided equally between them; held, that this agreement would not be enforced. See this case for a discussion of the question, when contracts to divide expectant estates will be, or will not be specifically enforced. The contract of an heir expectant to convey what land he may inherit, will not be enforced. Lowry v. Spear, 7 Bush (Ky.) 451; but per contra, see Power's Appeal, 63 Pa. St. 443; Mastin v. Marlow, 65 N. C. 695, which hold that such a contract is binding, and a specific performance thereof will be compelled. Courts of equity will, under special circumstances, enforce a contract to make a will or to make a certain testamentary disposition; and this may be done even when the agreement was parol, where in reliance upon the contract the promisee has changed his condition and relations, so that a refusal to complete the agreement would be a fraud upon him. The relief is granted, not by ordering a will to be made, but by regarding the property in the hands of the heirs, devisees, assignees, or representatives of the deceased promisor, as impressed with a trust in favor of the plaintiff, and by compelling defendant, who must of course belong to some one of these classes of persons, to make such a disposition of the property as will carry out the intent of the agreement. See the following cases which treat this doctrine under various circumstances: Logan v. Wienholt, 7 Bligh, 53, 54; Moorhouse v. Colvin, 9 Eng. L. & Eq. 136; Van Duyne v. Vreeland, 1 Beasley Ch. 142; 3 Stockf. 370 (a very able and instructive case); Wright v. Tinsley, 30 Mo. 389; Gupton v. Gupton, 47 Mo. 37; Sutton v. Hayden, 62 Mo. 101; Frisby v. Parkhurst, 29 Md. 58; but see Cox v. Cox, 26 Gratt. 305 Sprinkle v. Hayworth, 26 Gratt. 384, in which the agreements were not enforced.

(3) Shelly v. Nash, 3 Mad. 232. There are two grounds upon which this exception rests: 1. The essential nature of an auction sale, which, being public and open to competition, takes away the opportunity of fraud, overreaching and oppression in the bargaining. In the language of Sir JOHN LEACH, M. R., as used in the case just cited (p. 236): "There being no treaty between the vendor and purchaser, there can be no opportunity for fraud or imposition on the part of the purchaser. The vendor is in no sense in the power of the purchaser." 2. The

Nor does the rule apply when both the reversioner and the life-tenant unite in the agreement of sale, since the reason of it thus fails, the two representing the whole estate as a unit, and therefore standing upon an equal footing with the purchaser. (1) This exception, however, is subject to the limitation that the present interest sold, with the future estate, must be a substantial one and considerable in amount; the joining of any present interest or interest in possession in the contract, does not obviate the rule as to reversions.(2) Finally, a contract of sale will not be enforced against a purchaser, whenever from the situation of the subject-matter, or other circumstances, he could have no reasonable or substantial enjoyment of the property which he had bought.(3)

SECTION X.

Inadequacy of the consideration.

SECTION 192. Intimately connected with the subjects treated of in the two preceding sections is that of inadequacy in the consideration, which would seem to be merely a particular instance of unfairness and hardship; and, in the absence of authority, to be governed by the same doctrines which have been settled concerning those incidents of an agreement. This speculative opinion, however, would be misleading. The courts, on grounds of expediency and convenience rather than of principle, have established different rules concerning

market value of the land is the only test by which courts decide upon the value of the land, and in all judicial proceedings an auction sale, when regularly and fairly conducted, is always regarded as the most direct and certain manner of ascertaining what that market price is. It is for this reason that all judicial sales are required to be by public auction, and also all sales by private persons, which are intended to cut off the rights of others, to foreclose liens, and the like. Of course, if it could be shown that the auction was a mere form, and that it was prearranged so as to cut off competition or carry out a previous bargain, this exception would fail. See Wardle v. Carter, 7 Sim. 490; Borell v. Dann, 2 Hare, 452, per WIGRAM, V. C.; Earl of Aldborough v. Trye, 7 Cl. & Fin. 436, 460; Edwards v. Burt. 2 DeG. M. & G. 55.

(1) Wood v. Abrey, 3 Mad. 417, in which it was said that the life-tenant and the reversioner joining in the contract, "form a vendor with a present interest," and see Wardle v. Carter, 7 Sim. 490.

(2) Davis v. Duke of Marlborough, 2 Sw. 154, per Lord ELDON; Earl of Portmore v. Taylor, 4 Sim. 182.

(3) Denne v. Light, 26 L. J. Ch. 459; 3 Jur. (N. S.) 627, a person bought a piece of land to which there was no way, the contract being silent in respect to a way.

inadequacy of consideration, which it is the object of the present section to state and explain. Inadequacy may exist either in the purchase-price, or in the thing itself which is the subject-matter of the contract-as, for example, the land agreed to be sold-the latter case being the same as exorbitancy in the price.(1) As an incident of the contract, therefore, it necessarily implies that the price is either too small or too great. Inadequacy in the price, that it is too small, will be objected by the vendor, either as a defense to a suit brought against him for a specific performance, or as the ground of a suit brought by him for a recision. Inadequacy in the subject-matter, that the price is exorbitant, will be objected by the vendee in a suit against him to enforce a specific performance, or in a suit by him to obtain a recision. It is very evident that the former objection is more susceptible of judicial determination than the other. A court can, with comparative ease, ascertain whether the price paid for certain land is less than its fair market value; but may find it impossible to decide, with any accuracy, of how great or of how little value a particular parcel of land might appear to a particular individual, to fix the amount in other words, which he ought to be willing to pay for it, and which he ought not to exceed. Inadequacy, in both these forms, may be considered: 1st, By itself free from any other fact; 2d, As connected with other facts and circumstances of overreaching, concealment, and the like. I shall follow this order of treatment.

SEC. 193. Inadequacy, pure and simple.-The doctrine is well settled, both in England and in this country, that mere inadequacy of consideration, either in the price or in the subject-matter, unaccompanied by other elements of bad faith, is never a sufficient ground for rescinding a contract on account of the hardship thereby resulting from a performance; unless the inadequacy is so excessive as to furnish satisfactory evidence of fraud, and the fact of fraud established in this, as well as in any other manner, is always fatal to the validity of an agreement. In other words, mere inadequacy of price, considered as an element in suits brought for the rescinding of contracts, is never an end, but only a means in the judicial proceeding; it is simply evidence of fraud. Since the principle is now universally

(1) See Hamilton v. Grant, 3 Dow. 33. It is said that the inadequacy may also consist in some inequality in the contingencies referred to by the contract; but this is giving the term a far too extensive meaning and application, and making

it synonymous with "unfairness" or “inequality." Inadequacy must neces

sarily inhere in the price, and can only cover the two cases of the price being too small or too large. For a case where a specific performance was refused, because the consideration had failed, see Butman v. Porter, 100 Mass. 337.