inadequacy-namely, contracts for the sale of expectancies and reversionary estates by heirs, etc., which, as has already been stated, will never be enforced against the vendor unless the price is clearly shown to be fully adequate, and in which the burden is upon the purchaser of proving such adequacy.(1)

SEC. 196. Coupled with other facts.-Whenever the inadequacy in the price or in the subject-matter does not stand alone in the transaction, pure and simple, but is accompanied by other facts or conditions, or events, showing bad faith, such as acts of fraud, misrepresentations, concealments of the true value, or of other material features, ignorance, weakness of mind, undue advantage, oppression, and the like, this combination of objectionable and inadequate incidents may, and if clearly established by the proof, will, induce a court to deny the remedy of specific performance; and may even furnish a sufficient ground for the affirmative relief of recision. In all such cases, however, the real gravamen of the objection, the determining reason for refusing to execute the agreement on the one hand, and for setting it aside on the other, is the fraud of the party who has used the wrongful means, and the inadequacy is only material with the other party, as evidence more or less cogent of such fraud.(2)

(1) Playford v. Playford, 4 Hare, 546. See ante, § 191; Story Eq. Jur. § 336 and notes.

(2) Deane v. Rastron, 1 Anst. 64, and Fish v. Leser, 69 Ill. 394 (concealment of the real value); Young v. Clarke, Prec. Ch. 538; Lewis v. Lord Lechmere, 10 Mod. 503, and Fish v. Leser (ignorance); Blackwelder v. Loveless, 21 Ala. 371 (undue advantage or oppression). In Cockell v. Taylor, 15 Beav. 103, 115, the plaintiff, who was illiterate and poor, was very anxious to make a loan, in order to be able to prosecute a claim to some very valuable property in the court of chancery, and the lender only granted the loan on condition that the plaintiff should make the contract in suit, which was an agreement to purchase land for a price ten times greater than its real value. The contract was set aside by Sir J. ROMILLY, M. R., who said: "Coupled with such circumstances, the evidence of an over-price is of great weight, and if the case had stood here I should have been of opinion that this transaction was one which could not stand.” See, also, Powers v. Hale, 5 Fost. (N. H.) 145; Howard v. Edgell, 17 Vt. 9; Osgood v. Franklin, 2 Johns. Ch. 24; Modisett v. Johnson, 2 Blackf. 431; McCormick v. Malin, 5 Blackf. 509; Brooke v. Berry, 2 Gill. 83; Gasque v. Small, 2 Strobh. Eq. 72; Cabeen v. Gordon, 1 Hill Eq. 51; Bunch v. Hurst, 3 Dessau. Eq. 273; Harrison v. Town, 17 Miss. 237; Cathcart v. Robinson, 5 Pet. 263; Benton v. Shreeve, 4 Ind. 66; Byers v. Surget, 19 How. (U. S.) 303. In Clitherall v. Ogilvie, 1 Dessau. Eq. 257, a contract between a quite young and entirely inexperienced man and a mature person, was refused performance; and in Graham v. Pancoast, 6 Casey, 89, the remedy was denied on account of the age of a party. In Henderson v. Hays, 2 Watts, 148, 151, the defendant's mind was weakened by habitual drink, and the court refused to enforce his

The nominal character of the consideration, or the inadequacy of the price in any respect, may also, in connection with other facts, tend to show that the transfer was not a sale but a gift, and thus prevent a specific performance, since equity does not enforce a gift of real estate unless the donee has executed it on his part by taking possession and making improvements.(1)

SEC. 197. When the inadequacy appears in a contract between a parent and child, or between other parties so related, that the "good" consideration of love and affection would be added to the "valuable" consideration, this circumstance is not, according to some decisions, to be regarded as affecting the right to a specific performance; all suspicion or inference of fraud or hardship is removed by the fact of the relationship.(2) It is certainly curious that this very circumstance has seemed to other courts to furnish a ground for grave suspicion, and to raise a presumption against the good faith of the transaction. It has thus been held that inadequacy of consideration in a contract of sale between near relatives, especially where one is in a position. of natural superiority and command over the other as a father and son-raise a presumption of undue influence, which, in connection with the inadequacy, may defeat a specific performance, or even avoid the agreement.(3)

contract for the sale of his farm, since the price would in all probability be soon squandered in drink. Campbell v. Spencer, 2 Binney, 133, was a somewhat similar case, with a like decision.

(1) Callaghan v. Callaghan, 8 Cl. & Fin. 374. See, as to the specific performance of gifts, ante, § 130.

(2) Shepherd v. Bevin, 9 Gill, 32, 39; 4 Md. Ch. 133; Haines v. Haines, 6 Md. 435; White v. Thompson, 1 Dev. & Bat. Eq. 493; Fripp v. Fripp, 1 Rice Eq. 84. In Shepherd v. Bevin, this view was stated by FRICK, J., as follows: 66 'The agreement is not between strangers, but the parties are mother and son, in the closest relation of life. The contract has the meritorious consideration of love and affection, superadded to the valuable consideration which passed between them. Could the appellant reasonably have declined the proposition to release the amount of his claim against the mother, when coming from herself? And as her own proposition to her child, of what weight is the objection on the score of the inadequacy of the price proposed and accepted by herself? No small part of the consideration, besides, acting upon her motives, was the desire to gratify the last expressed wishes of her deceased husband. And in an agreement made by a parent with a child, a slight consideration will be sufficient to support it. 4 Har. & McH. 258. The case of Hays v. Hollis, & Gill, 357, decided at the present term of this court, is, upon this point, precisely parallel, and obviates all further remarks upon the objection to the adequacy of the consideration."

(3) Whelan v. Whelan, 3 Cow. 537. Such a contract has also been regarded as coming within the principle established with respect to voluntary agreements, and as, for that reason, not enforceable in equity. Callaghan v. Callaghan, 8 Cl. & Fin,

374.

SECTION XI.

The title must be free from reasonable doubt.

SECTION 198. There remains one more feature to be considered of those which, in the ordinary language of the books, merely influence the discretion of the court, but do not affect the substance or legal efficacy of the agreement. It is the rule that in suits by a vendor the purchaser will not be forced to complete the contract unless the title is free from any reasonable doubt. This requirement should be carefully distinguished from the objection that, as a matter of fact established by the proofs, the vendor has no title at all, or has only a partial or a defective one-an objection which may be raised by either of the parties, and which, if well founded, will, as a matter of law, either totally defeat a specific performance, or render its enforcement partial, and, perhaps, accompanied by a compensation: The rule now to be discussed differs in every respect from this. It assumes that the question whether the vendor's title is valid or imperfect, is not definitely passed upon by the court. If, however, there arises, either on the face of the pleadings, or from the examination made during the progress of the suit, a reasonable doubt concerning the title to be made and given by the vendor, the court, without deciding the question between the parties then before it which decision might not be binding upon third persons, and, therefore, might not prevent the same question from being subsequently raised by other claimants of the land-regards the existence of this doubt as a sufficient reason for not compelling the purchaser to carry out the agreement and accept a conveyance.(1) In treating of the subject I shall, after some pre

(1) Pyrke v. Waddingham, 10 Hare, 1; Lucas v. James, 7 Hare, 418, 425; Radford v. Willis, L. R. 7 Ch. 7; Alexander v. Mills, L. R. 6 Ch. 124; Beioley v. Carter, L. R. 4 Ch. 230; Collier v. McBean, L. R. 1 Ch. 81; Mullings v. Trinder, L. R. 10 Eq. 449; Cook v. Dawson, 3 DeG. F. & J. 127; 29 Beav. 123; Rede v. Oakes, 4 DeG. J. & S. 505; 32 Beav. 555; Rogers v. Waterhouse, 4 Drew. 329; Bull v. Hutchens, 32 Beav. 615; Collard v. Sampson, 16 Beav. 543; 4 DeG. M. & G. 224; Freer v. Hesse, 4 DeG. M. & G. 495; Falkner v. Equitable, etc., Society, 4 Drew. 352; Sheppard v. Doolan, 3 D. & War. 1, &; Seymour v. Delancey, 1 Hop. 496; Bates v. Delevan, 5 Paige, 299; Owings v. Baldwin, 8 Gill, 337; Butler v. O'Hear, 1 Dessau. Eq. 382; Fitzpatrick v. Featherstone, 3 Ala. 40; Morgan v. Morgan, 2 Wheat. 290; Longworth v. Taylor, 1 McLean, 395; Watts v. Waddle, 1 McLean, 200; Jeffries v. Jeffries, 117 Mass. 184; Taylor v. Williams, 45 Mo. 80; Powell v. Conant, 33 Mich. 396; Pratt v. Eby, 67 Pa. St. 396; Walsh v. Hall, 66 N. C. 233; Vreeland v. Blauvelt, 23 N. J. Eq. 483; Allen v. Atkinson, 21 Mich

liminary matter, discuss: 1, the cases in which the title may be too doubtful; and 2, the nature and extent of the doubt itself.

SEC. 199. In the earlier cases before the English court of chancery, nothing was known of doubtful titles as a special class; if objection was raised in any suit, the court passed definitely upon the validity of the title, granting or refusing the relief according to conclusion thus reached.(1) The notion that a specific performance should be denied when the vendor's title is merely doubtful, without it being necessary for the court to pronounce it bad, was first introduced by Sir JOSEPH JEKYLL and Lord THURLOW, and has since become the acknowledged doctrine both in England and in the United States.(2) As will be seen, however, in the following paragraphs, the very latest English decisions in applying the doctrine, exhibit a strong tendency towards the early practice.

SEC. 200. The doubt which can arise concerning any title, must, of necessity, relate either to the law or to the facts of the case. If the law is the object of the doubt, it may either be the law of the land proper the municipal law; (3) or it may be confined to the construction of some deeds, wills, and other writings which constitute the chain of title.(4) The latest English cases seem inclined to confine a doubt in the law to the latter of these two subdivisions, and to hold that all doubts arising solely from the general law of the land must be solved by judicial decision. (5) If the doubt concerns the facts, these facts may either be elements of the title, as deaths, births, and the like, or they be outside of or collateral to the title.(6) In either of the two latter subdivisions, the facts may be susceptible of proof, and the doubt itself result from a want of satisfactory proof; (7) or they may be such as are, from their nature, incapable of definite

351; Dobbs v. Norcross, 24 N. J. Eq. 327; Lesley v. Morris, 9 Phila. 110; Kostenbader v. Spotts, 80 Pa. St. 430; Sturtevant v. Jaques, 14 Allen 523; Young v. Rathbone, 1 C. E. Green, 224.

(1) See 1 Bro. C. C. 76, n.

(2) Marlow v. Smith, 2 P. Wms. 198, per Sir J. JEKYLL; Shapland v. Smith, 1 Bro. C. C. 75, per Lord THURLOW. See, also, Sloper v. Fish, 2 V. & B. 149, per Sir WM. GRANT; Cooper v. Denne, 4 Bro. C. C. 80; 1 Ves. 565; Sheffield v. Lord Mulgrave, 2 Ves. 526; Roake v. Kidd, 5 Ves. 647; Willcox v. Bellaers, T. & R. 491, and see cases in last note but one.

(3) Sloper v. Fish, 2 V. & B. 145; Blosse v. Lord Clanmorris, 3 Bli. 62.

(4) Lincoln v. Arcedeckne, 1 Coll. C. C. 38; Bristow v. Wood, 1 Coll. C. C. 480; Pyrke v. Waddingham, 10 Hare, 1, 9, per TURNER, V. C.

(5) See post, § 202.

(6) Cases above cited in last note but one.

(7) Smith v. Death, 5 Mad. 371.

proof.(1) It is very plain that a doubt arising from certain of these sources is a much more serious objection, and, therefore, much more likely to prevail than a doubt arising from any of the others. For example, a doubt concerning the construction of instruments is less easy of solution than one depending upon a rule of the general law; while a doubt involving matters of fact incapable of positive proof, is much more prejudical to a title than one caused by the deficient evidence of facts which may be proved.

SEC. 201. I. Cases in which the title is too doubtful.-As every title must, to a very great extent, depend upon its own facts and circumstances, it is plainly impossible to lay down any general proposition as a test by which all cases of a sufficient doubt may be discriminated and arranged. The most that can be done is to describe the particular typical cases in which the doubt has prevailed, with such amount of generalization and classification as can be gathered from the discordant opinions and dicta of the judges.(2) It has been suggested as a universal test, in England, that the title should be technically "marketable," so that if the title offered to the purchaser is not a "marketable" one, and he has not expressly stipulated to accept anything less, it should not be forced upon him.(3) But a marketable

(1) Lowes v. Lush, 14 Ves. 547.

(2) As an illustration of the difficulty and of the judicial endeavors towards a solution, it has even been gravely suggested as the test of a controverted title, that the judge himself who is deciding the cause would be willing to lend his money upon the security of it!! In Jervoise v. Duke of Northumberland, 1 J. & W. 569, Lord ELDON said: "The court has almost gone to the length of saying that unless it is so confident that, if it had £95,000 to lay out on such an occasion, it would not hesitate to trust its own money on the title, it would not compel a purchaser to take it." See, also, Pyrke v. Waddingham, 10 Hare, 9, per TURNER, V. C.; Sheffield v. Lord Mulgrave, 2 Ves. 526. The impracticability and even absurdity of this test are apparent.

(3) Lord Braybroke v. Inskip, 8 Ves. 428, per Lord ELDON. It is undoubtedly the settled rule in the United States, that, in the absence of any stipulation to the contrary, the purchaser is entitled to have "a marketable title," The meaning of this term, however, is somewhat different, as used by our courts, from the special and technical sense which seems to be given to it in England. By "a marketable title" the American courts evidently understand what the plain and ordinary meaning of the words implies, a title which would render the property salable at any time in the market-salable, that is, without any impediment or difficulty connected with the title itself. A "marketable title" is therefore one which is clear and good on the record, and without incumbrance. Of course, particular incumbrances, such as mortgages, judgments, easements, or dower, may be expressly provided for in the contract, while the title itself is otherwise clear upon the record, and in conformity with the requirements of the rule. That the purchaser, in the absence of stipulations to the contrary, cannot