381; Allen v. Chambers, 4 Ired. Eq., 125; Mallory v Mallory, 1 Bush. (N. C.), Eq., 80: Sanderson v. Stockdale, 11 Md., 563; Bast v. Alford, 20 Texas, 226; Goodenow v. Curtis, 18 Mich., 298; Baker v. Hathaway, 5 Allen, 103. In Abbott v. Dunivan, 34 Mo., 148, it was held that either party might aver and prove a mistake in the description of the land, in a contract sought to be specifically enforced. Where a vendor seeks to enforce specific performance by a sale of the land and application of the proceeds to the satisfaction of the consideration, he should allege in the pleadings, and prove, that the defendant agreed to pay the consideration. Copehart v. Hall, 6 W. Va., 547; Park v. Johnson, 4 Allen, 259. As to allegations of performance, all the facts constituting performance should be alleged in the pleadings; it is not enough to aver "that he has done all that he is bound by the contract to do," or "that he has offered, and has always been ready and willing, to comply with his contract.' The pleadings must show that the complainant has fully performed everything necessary to entitle him to performance of the contract by the defendant. Bates v. Wheeler, 2 Ill., 54; Underhill v. Allen, 18 Ark., 466; Brown v. Hayes, 33 Ga. Supp., 136; McLeroy v. Tulane, 34 Ala., 78; Bell v. Thompson, id., 633; Columbine v. Chichester, 2 Phil., 27; Davis v. Harrison, 4 Litt., 261; Hart v. McClellan, 41 Ala., 251; Duff v. Fisher, 15 Cal., 375; Low v. Heck, 3 W. Va, 680; Roy v. Willink, 4 Sandf. Ch., 525; Bass v. Gilliland, 5 Ala., 761; Moore v. Higbee, 45 Ind., 487. As to insufficient allegations relative to a trust, see Pearson v. East, 36 Ind.. 27; Hanser v. Roth, 37 id., 89. Where the pleadings alleged that the purchase money had all been paid, and offered to pay whatever sum might be found to be due-held, sufficient, although a part of the money was found to be still due. Mix v. Beach, 46 Ill., 311. Partial performance was alleged in the pleadings. Held, that the plaintiff need not formally allege a readiness to complete the performance. Hatcher v. Hatcher, 1 McMullan Ch., 311.

As to mutual and concurrent acts.] The pleadings in an action to enforce the specific performance of an agreement, in which the acts to be done by the parties are mutual and concurrent, was held good, where they alleged an offer to perform by the plaintiff and a refusal by the defendant. St. Paul Div. v. Brown, 9 Minn., 157.

As to amendments, see Chess' App., 4 Pa. St., 52.

As to consent] Where consent is necessary in order to enable the plaintiff to perform the contract-held, that the pleadings need not allege that such consent was obtained. Smith v. Capron, 7 Hare, 185.

As to refusal and demand.] Where an action is brought to enforce an obligation to convey, absolute on its face, and the consideration is acknowledged, the pleadings need only aver a request and a refusal. Founger v. Welch, 22 Texas, 417; Holman v. Aiswell, 15 id., 394. The pleadings should state that the vendor had been requested to make title; his insolvency will not excuse the necessity of such request. Carter v. Thompson, 41 Ala., 375. In Dodge v. Clark, 17 Cal., 586, the omission of an allegation of demand was held to be fatal.

As to damages.] The particular injury must be alleged and proved, where damages are claimed; it will not answer to aver that the plaintiff has sustained damages. Clinock v. March. of Ely, 2 H. & M., 220. Where a note has been lost, the pleadings must allege that the same has not been paid. Mason v. Foster, 3 J. J. Marsh., 283.

Relief; general prayer for.] The complaint should be dismissed, notwithstanding the complainant may be entitled to some relief: where the pleadings contain no prayer for general relief, and where they do not justify the relief prayed for. Boyl v. Laird, 2 Wis., 431; State of Conn. v. Sheridan, 1 Clark (N. Y.), 533. It is error to grant it, where neither party asks for specific performance. Cantrell v. Rice, 6 J. J. Marsh., 338.

Affirmative relief-cross-bill.] The defendant must file a cross-bill, if he wishes affirmative relief, in an action for specific performance. Hanna v. Rattikin, 43 Ill., 103; Bussey v. Gart, 10 Humph., 238; Wright v. Delafield, 25 N. Y., 266. Where the answer admitted the contract, no cross-bill need be fi d. Dorsey v. Campbell, 1 Bland. Ch., 356. Where the purchaser files a

bill for specific performance, after the time fixed in the agreement, the vendor may, by answer, submit to perform, and file a cross-bill, and compel the purchaser also to perform. Held, that he cannot, in such case, resist fulfillment, and, after depreciation of the property, enforce specific performance against the purchaser. Tobey v. Freeman, 79 Ill., 489.

Bill dismissed.] The cross-bill, with the original bill, makes but one action; and, when the originall bill is dismissed, such dismissal carries with it the dismissal of the cross-bill. Elderkin v. Fitch, 2 Carter, 90. The cross-bill is a matter of defense, and it should not set up anything not contained in the origi nal action. May v. Armstrong, 3 J. J. Marsh., 262; Daniel v. Morrison, 6 Dana, 186; Fletcher v. Wilson, 1 Lon. & Marsh. Ch., 376; Galiatin v Erwin, Hopk. Ch., 48; S. C., 8 Cow., 361; Josey v. Rogers, 13 Ga., 478; Slason v. Wright, 14 Vt., 208; Rutland v. Page, 24 id., 181; Draper v. Gordon, 4 Sandf. Ch., 210. In Nelson v. Dunn, 15 Ala., 501, it was held that a cross bill is not restricted to the issues of the original action. The written obligation on which the claim was based, was set out in the plaintiff's bill; the cross-bill did not set it out. Held, that it need not do so. Coe v. Lindley, 32 Iowa, 437.

Equitable counterclaim under the Codes of the several States.] The equitable counterclaim may take the place of a cross-bill, under the system of pleadings adopted by the codes in the several States where they are used. McAbee v. Randall, 41 Cal., 136.

Change of parties.] When a cross-bill is filed by the defendant, in which he seeks affirmative relief, he becomes the plaintiff, and the plaintiff in the original action becomes the defendant in the cross-bill. Ewing v. Patterson, 35 Ind.,

326.

Statute of frauds-demurrer.] The statute of frauds must, in all cases, be pleaded; it differs, in that respect, from the statute of limitations. Where it is not done, a general demurrer is proper. Ridgway v. Wharton, 3 De G M. & G., 691; Wright v. Le Clair, 4 Green (Iowa), 420; Field v. Hutchinson, 1 Beav., 599; Wood v. Midgley, 5 De G. M. & G., 41; Adams v. Patrick, 30 Vt., 576; Hall v. Peer, 27 Ill., 312; Meach v. Perry, 1 D. Chip (Vt.), 182; Dryer v. Martin, 4 Scam., 146; Hollingshead v. McKenzie, 8 Ga., 457; Grant v. Craigmiles, 1 Bibb., 203. A general denial does not raise the issue of the statute of frauds. Livesey v. Livesey, 30 Ind., 398 Where the answer admitted a parol contract, the defendant must plead the statute of frauds, in order to avail himself of it. Irildbahm v. Robidoux, 11 Mo., 659; Walker v. Hill, 21 N. J. Eq.. 191; Albert v. Winn, 5 Md., 66; Talbot v. Bowen, 1 A. K. Marsh., 436; Small v. Awings, 1 Md. Ch., 363; Artz v. Grove, 1 Md., 456; Newton v. Swazey, 8 N. H., 9; Tilton v. Tilton, 9 id., 385; Dean v. Dean, 9 N. J. Eq., 425; Smith Braisford, 1 Des. Eq, 350; Hutchinson v. Hutchinson, 4 Des., 77; Savir v. Dulin, 6 Jones' Eq., 195; Morrell v. Cooper, 65 Barb., 51.

Defense that land is homestead.] Where the defendant wishes to avail himself of this defense, he must set it up in his pleadings. Brown v. Eaton, 21 Minn., 409. The wife refused to release her dower. Held, that the defense would not avail, where the vendee offered to waive the release. Carson v. Mulrany, 49 Pa. St., 88.

New matter.] It is no ground for denying the relief asked for, that new matter has been set up not responsive to the allegations of the bill, and not supported by the proof. Smoot v. Rea, 19 Md., 398; see Laverty v. Moore, 33 N. Y., 658.

PART III.

OF THE DEFENSES TO THE ACTION.

CHAPTER I.

OF THE INCAPACITY TO CONTRACT.

§ 250. The incapacity to contract of either of the parties to a contract furnishes ground on which that party may resist specific performance; and on the principle of mutuality hereafter to be considered it may also furnish a defense to the other party, though himself perfectly competent. The incapacity to contract, and the incapacity to execute a contract, are, of course, different questions; the one must be judged of at the time of the contract, the other when its performance is sought.'

1 Personal incapacity.] It is a perfect defense to an action for specific performance, that the plaintiff, at the time of filing the bill, was personally incapable of performing. Flight v. Bolland, 4 Russ., 298; Richards v. Green, 23 N. J. Eq., 538. Specific performance will, of course, not be decreed, when the defendant cannot perform the agreement. This is true even where he has, by his wrongful act, made it impossible. Green v. Smith, 1 Atk., 573; Danforth v. Phila. R. R. Co., 30 N. J. Eq., 12; Columbine v. Chichester, 2 Phila., 27; Hallett v. Middleton, 1 Russ., 243; Ellis v. Coleman, 4 (Jur. S.), 350; Phillips v. Stanch, 20 Mich., 369; Danton v. Stewart, 1 Cox, 258; Greenaway v. Adams, 12 Ves., 395; Smith v. Kelley, 56 Me., 64; Gumpton v. Gumpton, 47 Mo., 37; Renkin v. Hill, 49 Iowa, 270; Stearns v. Beckham, 31 Gratt., 379.

Homestead law in Iowa.] In this State a husband agreed to convey land in which there was a homestead right in his wife. She refused to consent. Held, that specific performance would not be decreed. Yost v. Devault, 9 Iowa, 60; Barrett v. Mendenhall, 42 id., 296; Long v. Brown, 66 id., 160; see as to bad faith in the parties in such a case. Peeler v. Levy, 26 N. J. Eq., 830.

Partial performance only, possible.] It is the substance, rather than the form of contracts, which equity regards; and the impossibility of a literal fulfillment will not operate as a defense, when it can be substantially carried out. Shaw v. Livermore, 2 Green (Iowa), 338; Phila. R. R. Co. v. Lehigh, etc., Co., 36 Pa. St., 204; Hart. v. Brand, 1 A. K. Marsh., 159; Oliver v. Crosswell, 42 Ill., 41.

Partial ability.] A defendant must perform, so far as he is able, and equity will compel him to do so. A ratable abatement of the contract may be decreed. Rankin v. Maxwell, 2 A. K. Marsh., 488; Weatherford v. James, 2 Ala., 170; Jacobs v. Sale, 2 Ired. Eq., 286; Henry v. Lisles. 2 id., 407; Wright v. Young, 6 Wis., 127; Ketchum v. Stout, 1 Head (Tenn.), 251; Bell v. Thompson, 34 Ala., 633; Ketchum v. Stout, 20 Ohio, 453; Covell v. Cole, 16 Mich., 223; Marshall v. Caldwell, 41 Cal., 611; Meek v. Walthall, 20 Ark., 648.

§ 251. The question as to the capacity of persons to contract, as raised in actions for specific performance, being for the most part identical with the question as discussed at common law, and having no peculiar relation to the jurisdiction in specific performance, it is proposed only to refer to a few points of practical importance which may arise in actions of this nature.

§ 252. The peculiar doctrines of equity with relation to married women make it necessary to allude to their capacity to contract. The principle on which the court proceeds is, that if a married woman have not separate property, she cannot, at any rate as a general rule, (a) contract at all; and if she have, she can contract, but only in respect of that, and the remedy is only against it, and not in personam against her. (b) "A feme covert," said Lord Cottenham, (c) "is not competent to enter into contracts so as to give a personal remedy against her. Although she may become entitled to property for her separate use, she is no more capable of contracting than before; a personal contract would be within the incapacity under which a feme covert labors."

(a) See the case of Vansittart v. Vansittart (4 K. & J., 62, affirmed 2 De G. & J., 249), infra, § 259.

(b) Francis v. Wigzell, 1 Mad, 258; Aylett

v. Ashton, 1 My. & Cr., 105. See, also, Hum-
phreys v. Hollis, Jac., 73.
(c) 1 My. & Cr., 111, 112.

1 A feme covert will be treated as a feme sole, only as to the disposition of her separate property; and her power of disposing of property, settled to her separate use, will be governed by a strict interpretation of the powers given by the settlement. Methodist Church v. Jacques, 3 John. Ch., 77. And, therefore, where a wife had power, under a marriage settlement, to "give and bequeath the property, at her death, "to whomsoever she pleases," but had no separate estate, and she executed an instrument under the power, therein styled a "will," and appointed A. her "executor;" held, that such instrument was a mere execution of the power, and that A. therefore was not an executor," but that he was an appointee in trust, and that the property vested in him for the benefit of creditors and legatees. Leigh v. Smith, 3 Ired. Ch., 442. But where a feme covert has a separate estate, she may dispose of it as she pleases, even to her husband, if done freely and voluntarily, and the court will confirm her disposition. Dallam v. Wampole, Pet. C. C., 116. She may mortgage her separate estate for her husband's debts; and a power of sale, in such mortgage, pursuant to the statute, is valid. Demarest v. Wynkoop, 3 John. Ch., 129 (Kent, Ch.). A married woman being, as to her separate estate, treated as a feme sole, may, in person, or by her agent, bind the estate for the payment of debts contracted upon the credit of such estate; and the assent of her trustee is not necessary, if the instrument creating the trust contains no restriction upon her power. North American Coal Co. v. Dyett, 7 Paige, 9. And she may bind her separate estate for debts contracted by her, on the credit of such estate, even though her husband should be the creditor. Gardner v. Gardner, 7 Paige, 112. A feme covert is, in all cases, to be treated as a feme sole, in respect to her separate estate, so far as to dispose of it in any way, not inconsistent with the terms of the instrument under which she holds. Leaycraft v.

§ 253. If the contract in question relate to the woman's separate property not fettered by a restraint on anticipation, her contract with regard to it will clearly bind. But if that be not the case, as, for example, if a married woman agree to purchase or lease a house, then the mere fact of her possessing separate estate is not sufficient to enable the other party to enforce performance as against the separate estate. The engagement here will be of that description which has been called the general engagements of a married woman, and in order to bind the separate estate by such an engagement "it should appear that the engagement was made with

Hedden, 3 Green's Ch., 512. And if, by the deed, the wife is permitted to dispose of her separate property by deed, will, or otherwise, at her pleasure, her right of disposition remains as before marriage, in respect to her estate. But if the terms of the deed require a particular mode of disposition, then, as clearly those terms must be observed, her power is limited by them, and she is a feme sole sub modo, and only to the extent of the power expressed. Id. The same doctrine is repeated in Clark v. Makenna, 1 Chev., 163 (2d part); Morgan v. Elam, 4 Yerg, 375; Vizonneau v. Pegram, 2 Leigh, 183; and Williamson v. Beckham, 8 id., 20. A feme covert, with the consent of her trustee, may reinvest her separate trust property as she may think proper. Frazier v. Center, 1 McCord's Ch., 270. Where a married woman, by a contract under seal, charged the payment of a debt on her real estate, which was settled on her by a deed of trust, with a power to sell and convey, and absolutely dispose of the same by deed, her coverture notwithstanding, it was held that a court of equity would enforce such a contract, and decree a sale of the land to pay such charge, and that the power given her to sell, necessarily, included the power to incumber it by mortgage, or charge it by contract. Price v. Bigham, 7 Har. & J., 296. The separate property of a feme covert was sold on execution against such property as had come to her by descent or devise from the debtor, and the husband received the surplus proceeds of the sale, and died. Held, that the wife was not bound by the act of her husband, and that-the money not having been applied to the benefit of her separate estate-she was not bound to refund it on the reversal of the judgment, and the recovery of the land by her. Wood v. Genet, 8 Paige, 137. Where a husband purchases real estate, in his own name, with the money of the wife, a purchaser, with notice of these facts, will be held to be a trustee for the wife. Methodist Church v. Jacques, 1 John. Ch., 450. The wife's equity in her separate personal or real estate, devised or descended to her during coverture, may, in a proper case, extend to the whole estate; and it cannot be defeated by any act of the husband. Haviland v. Bloom, 6 John. Ch., 178. A feme covert may become the debtor of her husband, by borrowing money of him, for the benefit of her separate estate. Gardner v. Gardner, 22 Wend., 526. But though her estate may become liable, in equity, for debts contracted in reference to such estate; yet, in order that it shall be bound, it must distinctly appear that the dealings were bona fide with her, and that goods were delivered, or the money paid, to her own order, or into her hands. Magwood v. Johnson, 1 Hill Ch., 228. And the separate property of a wife, settled upon her at her marriage, is not primarily liable for her debts contracted before marriage. Knox v. Picket, 4 Des., 92; Šee McKay v. Allen, 6 Yerg., 44. The wife of a person perpetually banished, is, for the purpose of contracting or maintaining suits, to be treated as a feme sole. Troughton v. Hill, 2 Hayw., 406. See, further, as to the separate property of a feme covert, the cases of Brundige v. Poor, 2 Gill. & J., 1; Tiernan v. Poor, 1 id., 216. The rights of married woman under the laws of New York are well digested in The Saratoga Co. Bk. v. Pruyn, 90 N. Y., 250.