depends upon contingent events and uncertain facts, their occurrence or existence must be fairly probable.(1)

SEC. 205. In England, much oftener than in the United States, titles may sometimes depend for their validity upon presumptions in reference to some collateral acts, facts, or events which perhaps are incapable of proof by direct evidence, and the rule seems to be settled that a title sustained by such a presumptien will be held free from doubt, and forced upon the vendee, whenever the circumstances of the case are such that, had it been pending before a jury, the judge would have directed them peremptorily to find the fact in accordance with the presumption; but the title will be held too doubtful to be forced on the vendee, whenever the circumstances would have been submitted to the jury for them to find either in conformity with or against the presumption.(2) Whenever a doubt concerning the title arises from facts which are not conclusively proved, and is not aided by any clear presumption, it will generally prevail and prevent a specific performance.(3)

(1) In Lyddal v. Weston, 2 Atk. 20, Lord HARDWICKE said: "The court must govern itself by a moral certainty, for it is impossible in the nature of things there should be a mathematical certainty of a good title." And it being objected that there was a reservation of mines which made the title defective, he yet enforced the contract because he was satisfied that there was no probability of the reservation becoming operative, since either there were no mines, or that all legal right to act under it has ceased. See Seaman v. Vawdrey, 16 Ves. 393, per Sir WM. GRANT; Martin v. Cotter, 3 J. & Lat. 496, and in Cattell v. Corrall, 4 Y. & C. Ex. 237, ALDERSON, B., said, in regard to a doubt from fear of future litigation, there "must be a reasonable decent probability of litigation." In Spencer v. Topham, 22 Beav. 573, the title depended upon the validity of a former purchase by a solicitor from his client, and it was objected that it was doubtful; but proof was given that the sale by the client to the attorney was valid, although given without the presence and testimony of the client; and it being still objected that the client might be able to produce other evidence impeaching the transaction and thus invalidating it, the M. R., Sir J. ROMILLY, considered that this was a mere speculative possibility, and not ground for a reasonable doubt. In support of the rule stated in the text see, also, Vreeland v. Blauvelt, 23 N. J. Eq. 483; Kostenbader v. Spotts, 80 Pa. St. 430.

(2) Emery v. Grocock, 6 Mad. 54; Barnwell v. Harris, 1 Taunt. 430. In Causton v. Macklew, 2 Sim. 242, the validity of the title depended upon the fact of no execution on certain judgments having been issued between two dates, about eight months apart. Nothing having been proved to have happened or to have been done which could be referred to such execution, it was presumed that the execution was not issued, and the title was accordingly held good. For presumptions arising from recitals in deeds and long possession, see Prosser v. Watts, 6 Mad. 59; Magennis v. Fallon, 2 Moll. 561.

(3) As examples: a title depended for its validity upon the fact that there was no creditor who could take advantage of an act of bankruptcy committed by the vendor; there being no proof of such fact, and there being no presumption, the

SEC. 206. Intimately connected with the general subject of doubt arising from extrinsic facts, with or without the help of presumptions, is the rule, well settled in England, that a person who has made a prior voluntary settlement, cannot force upon a purchaser a title depending for its validity upon the fact that such settlement is void, because there is no presumption "that there may not have been some intermediate acts, which by matter ex post facto, may have made the settlement good which in its origin was not good."(1) But on the other hand, if the validity of a title depends upon the fact that a certain prior voluntary conveyance of the land has been rendered void against the purchaser by a subsequent purchase for a valuable consideration and without notice, it will be presumed, in the absence of evidence to the contrary, that the voluntary conveyance had not been made valid by any subsequent acts, and so the title will be pronounced free from doubt and forced upon a vendee.(2) The reason for this distinction is evident. In the latter case a presumption is made to sustain a subsequent conveyance for value and without notice, which has actually been executed, and by operation of law has destroyed the prior voluntary conveyance, unless some intervening facts had made the prior conveyance valid; the court does not presume that there were such facts. In the former case, a party is attempting to overthrow a voluntary conveyance which he himself had made, and which possibly may have become valid, and the court will aid him by no presumption that it has not been thus validated.

SEC. 207. Where the vendor's title is objected to on the ground that it is prejudicially affected by actual fraud in some prior conveyances or transactions from and through which it is and must be derived, no very general or definite rule is possible, and each case must depend, to a great extent, upon its own circumstances. The fraud must, of course, inhere in extrinsic facts, which will not appear on the face of the title deeds, an abstract of which is examined by the purchaser, and which will, in general, be unknown to him, and often impos

doubt prevailed, Lowes v. Lush, 14 Ves. 547;—the validity of a title depended upon the absence of notice of an incumbrance, Freer v. Hesse, 4 DeG. M. & G. 495;-where it depended upon mere possession and the presumption arising therefrom, Eyton v. Dicker, 4 Pri. 303.

(1) Lord ELDON, in Johnson v. Legard, T. & R. 294; Smith v. Garland, 2 Mervi. 123.

(2) In such cases the title in suit would, of course, be derived from the subsequent conveyance for a valuable consideration, by which the prior voluntary conveyance was invalidated. Butlerfield v. Heath, 15 Beav. 408; Buckle v. Mitchell, 18 Ves. 100.

sible or, at least, difficult for him to ascertain. If, therefore, there are any circumstances sufficient to throw an apparently well-founded suspicion upon the title, it would appear that no presumption should be admitted in its support; but such a conclusion, however reasonable, is not warranted by all the decided cases, some of which have allowed a presumption of good faith to overcome the objection, remove the doubt and render the title one to be forced on a purchaser. (1)

SEC. 208. Under the former English law in reference to the probate of wills, no sufficient doubt of the validity of a vendor's title derived under a will could arise from the mere fact that the will had not been

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(1) The cases are somewhat conflicting, but the tendency is in favor of a presumption of good faith where the circumstances go no farther than to raise a suspicion of fraud. In Hartley v. Smith, Buck's Bank'y Cases, 368, 380, Sir JOHN LEACH, M. R., laid down a rule which would cut off all presumption of good faith. The title depended upon a grant of chattels which contained a provision for the grantor's continuing in possession in a certain contingency. Under the law as to transfer of chattels by assignors remaining in possession, this assignment might be void. Without deciding that question the court held that as the transfer might be void, and as it was fraudulent and void unless made bona fide and for a valuable consideration, and as this depended upon facts beyond the purchaser's power of readily ascertaining, the title was too doubtful to be forced upon him. He said: 'My opinion therefore is, that a court of equity ought not to compel this purchaser to accept this title; because, assuming the deed not to be fraudulent on its face, it still may be avoided by circumstances extrinsic, which it is neither in the power of the purchaser nor of this court to reach." See, also, Boswell v. Mendham, 6 Mad. 373. The rule thus broadly stated, and which cuts off any presumption of good faith in all cases where there is a suspicion of fraud arising from prior external facts, has not been adopted in subsequent cases which have admitted such a presumption. In Cattell v. Corrall, 4 Y. & C. Ex. 228, 236, ALDERSON, B., said of Sir J. LEACH's opinion, that it "must not be pushed to the farthest extent which the words will possibly bear;" and he held a title free from sufficient doubt, which was made upon a deed which might have been shown by extrinsic evidence to be fraudulent and void as against creditors,-sustaining it because there was no sufficient evidence from which to infer such an invalid character-in other words, a presumption of good faith was admitted. In Green v. Pulsford, 2 Beav. 71, the vendor's title was derived from an appointment made by a husband and wife who held by virtue of a settlement on themselves and their children, with power to appoint. There were circumstances on the face of the papers raising a suspicion that the appointment was a fraud upon the settlement and the rights of the children under it, and one of the children had actually notified the purchaser not to complete because the appointment was a fraud. But as this notice stated no facts. and gave no information in addition to what appeared on the title papers, and as it had been followed by no proceedings on the part of the children, the court hold that the doubt was not sufficient to prevent a specific performance. For analagous cases see McQueen v. Farquhar, 11 Ves. 467; Grove v. Bastard, 2 Phill. 619; 1 DeG. M. & G. 69. On the other hand, for a case where the court refused to presume the existence of special facts necessary to make a title valid, see Blacklow v. Laws, 2 Hare, 40.

proved against the heir or that he did not join in the conveyance.(1) Whether the same rule should prevail in the American States, where the statutes provide for the proof of wills of real estate, and where such proof is a matter of universal practice, or even in England since the recent legislation upon the subject of probate, may, I think, be at least questionable. In this country the omission to prove a will of land would be a very unusual circumstance, and would certainly render a title made under it very suspicious to an ordinary buyer, and, unless the will was an ancient one, would certainly prevent a savings bank or other similar institution from accepting the title as a valid security for a loan. In deciding upon cases of doubtful title, and in forcing them upon a purchaser, courts of equity should and undoubtedly do pay a great respect to the views and habits of busi

ness men

THIRD GROUP.

Incidents and features of the contract connected with or growing out of the conduct-generally preliminary-of the parties, which involve the validity of the contract and may render it voidable, and which, therefore, as a matter of strict right, affect the equitable remedy.

SECTION XII.

The contract must be free from misrepresentation.

SECTION 209. The incidents and features which form this third group generally spring from the conduct of the parties during the negotiation, or at the time of concluding the agreement, and are, therefore, to a great extent, rather collateral or preliminary to the contract than forming a part of its substance. This is not, however, universally the case, for some of them, as, for example, illegality, inhere in the very subject-matter or in the stipulations. Their most important characteristic, which distinguishes them from the incidents composing the preceding group, is their direct effect upon the validity

(1) Colton v. Wilson, 3 P. Wms. 190; Morrison v. Arnold, 19 Ves. 670, per Lord ELDON; Weddall v. Nixon, 17 Beav. 160; McCulloch v. Gregory, 3 K. & J. 12. In the latter case, the vendor's title was derived from a certain will,-the validity of which, during a long litigation (of 13 years) had not been questioned—and a third person claiming under another will had withdrawn his claim and abandoned all contest, the title was held to be free from doubt and was forced on the vendee.

of the agreement itself. If any one of these features exists in its full measure the contract is thereby rendered voidable, both in law and in equity; a complete defense exists to an action at law brought upon it, and a ground is furnished for a suit in equity to rescind it. The presense of these incidents and features, therefore, prevents a court from granting the equitable remedy of specific performance, not in any view of the subject as a matter of discretion, but as a matter of absolute right, since there really is no valid contract which may be enforced. It is true that some of these incidents-misrepresentation and concealment-may avail to defeat a specific execution of an agreement, although they may not possess the elements of fraud to such an extent that the agreement would be rescinded; but when the misrepresentation, concealment, fraud, illegality, mistake, and the like, are fully shown, and the contract is thereby made voidable, the defense to a suit for specific performance is absolute, and in no sense discretionary. The incident which forms the subject-matter of the present section is "misrepresentation.”

SEC. 210. Although misrepresentations are more frequently made by the vendors in contracts for the sale or transfer of property, real or personal, they may be made by either of the parties in any species of agreement, and the treatment of the subject must be so general as to cover all of these cases. The general doctrine is elementary, that a misrepresentation relating to and connected with a contract, is a ground for denying a specific performance when demanded by the party to the agreement who made it, and may be a sufficient ground for granting the relief of recision in favor of the contracting party to whom it was made.(1) The general rule is familiar, and the discus

(1) Edwards v. McLeay, Coop. 308; 5 Sw. 287; Gibson v. D'Este, 2 Y. & C. C. C. 542; Wilde v. Gibson, 1 H. L. Cas. 605; Juzan v. Toulmin, 9 Ala. 662; Warner v. Daniels, 1 W. & M. 90; Taylor v. Fleet, 1 Barb. 471; Best v. Stow, 2 Sandf. Ch. 298; Morrison v. Lods, 39 Cal. 381; Wells v. Millett, 23 Wisc. 64; Holmes' Appeal, 77 Pa. St. 50; Law v. Grant, 37 Wisc. 548; Swimm v. Bush, 23 Mich. 99; Hickey v. Drake, 47 Mo. 369; Gunby v. Sluter, 64 Md. 237; Davis v. Symonds, 1 Cox, 407; Reynell v. Sprye, 8 Hare, 222; 1 DeG. M. & G. 660; Lord Brooke v. Rounthwaite, 5 Hare, 298; Brealey v. Collins, Younge, 317; Lowndes v. Lane, 2 Cox, 363; Stewart v. Alliston, 1 Meriv. 26; Harris v. Kemble, 1 Sim. 111; 5 Bligh (N. S.), 730 ; 2 D. & C. 463; Cox v. Middleton, 2 Drew. 209; Price v. Macauley, 2 DeG. M. & G. 339; Rawlins v. Wickham, 1 Giff. 355; 3 DeG. & J. 304; Higgins v. Samels, 2 J. & H. 460; Farebrother v. Gibson, 1 DeG. & J 602; but see Johnson v. Smart, 2 Giff. 151; Cook v. Waugh, 2 Giff. 201; Boynton v Hazelboom, 14 Allen, 107. The misrepresentation, when willful, intentional, or with knowledge, need not, necessarily, extend to the entire subject-matter of the contract, or affect all the relations created by such contract. A partial misrepresentation—that is, one applying only to some distinct portion of the subject-matter, or affecting only