tract to assign a chose in action, (e) or of a contract concerning the hope of succession of an heir,(ƒ) although no damages could have been recovered at common law for contracts dealing with these subject-matters, and it will in a proper case specifically enforce a right of pre-emption, and restrain by injuncion the violation of such a right, and will specifically enforce a compromise. (g)' In one case Plumer, M. R., intimated the opinion that where a promissory note had been handed over for valuable consideration unindorsed, a court of equity would, at the suit of the holder, compel the transferor, or his personal representative, to indorse it in order to substantiate the right of the transferee. (h) A contract between joint tenants of a copyhold estate to divide it between them has been specifically enforced. (¿)2

§ 33. Again, the court will specifically enforce a contract to execute a mortgage, and that even with an immediate power of sale where the money has been actually advanced

(e) 1 Mad. Ch., 362. Jones v. Roe, 3 T. R., 88, compared with Beckley v. Newland, 2 P. Wms., 182. and cases infra, § 1502 et seq. See, also, 1 Fonbl. Eq., 216.

(g) Homfray v. Fothergill, L. R. 1 Eq., 567, 573; Birmingham Canal Co. v. Cartwright, 11 Ch D., 421. Cf. Lord Carington v. Wy.

combe Railway Co., L. R. 3 Ch., 377; Lord Beauchamp v. Great Western Railway Co., id., 745.

(h) Watkins v. Maule, 2 J. & W., 243; Byles on Bills (11th ed.), 154. Distinguish Edge v. Bumford, 31 Beav., 247.

(i) Bolton v. Ward, 4 Ha., 530. See, too, Seton, 530 (contract for exchange).

1 Every contract cannot be enforced in a court of equity; it is only where it is strictly equitable to do so, that the legal intention and effect will be carried out. Canterbury Aqueduct Co. v. Ensworth, 22 Conn., 608.

? Where a legal remedy is obstructed, a court of equity may enforce or set aside a contract to purchase lands, compel deeds of confirmation to be made, and in a case where deeds are lost, or not recorded, a court of equity will intervene. Blight v. Banks, 6 T. B. Mon., 152; Davis v. Hall, 4 id., 23; Cummings v. Coe, 10 Čal., 529. Where without fault of the grantee, a deed was lost before being recorded, the grantor was compelled to give a duplicate deed. A demand must be first made. Conlin v. Ryan, 47 Cal., 71; see Lindeman v. Rinker. 42 Ind., 223. A court of equity will frequently decline to interfere to establish possession of property, when, nevertheless, it will refuse to disturb the possession where it has been obtained without its agency. Crane v. Gough, 4 Md., 316. Where a jurisdiction has been properly acquired, a court of equity will settle the controversy, even in a case which did not afford original grounds of jurisdiction. Brooks v. Stoley, 3 McLean, 523; Pearson v. Darrington, 21 Ala., 169; Martin v. Tidwell, 36 Geo., 332; Franklin Ins. Co. v. McCrea, 4 Greene (Iowa), 229; Handley v. Fitzburgh, 1 A. K. Marsh., 24; State v. McKay, 43 Mo., 594; Armstrong v. Gilchrist, 2 John. Ch., 424, 431; Londer's Appeal, 57 Pa. St., 498. It was held that a judgment for specific performance could not be granted, even in a case where the evidence was sufficient to warrant such a suit. This was in an action by the vendors of real property against the purchaser for damages for the non-fulfillment of contract. The trial was without a jury. Towle v. Jones, 19 Alb. Pr., 449; see Cowenhoren v. City of Brooklyn, 38 Barb., 9. Damages for breach of a covenant to improve land sold for a public square recovered in an action; held no bar to a subsequent suit for specific performance of a covenant to keep the premises forever open as such public square. Stuyvesant v. Mayor of New York, 11 Paige Ch., 414.

either before or at the time of the contract; (j) though it will not so enforce a mere agreement to lend, advance, or pay money(k) (though the loan be one to be secured by mortgage), while it rests entirely unperformed either by the intended lender (7) or by the intended borrower. (m) "The Statute of Frauds does not apply to such a case. Therefore if the court has jurisdiction in such a case, any conversation may be made the subject of a suit for specific performance: thus if two friends are walking together and one says, 'Will you lend me £100 at £5 per cent. for a year on good security?' and the other says 'I will,' that conversation might be made the subject of a suit for specific performance in this court if, on the next day, one friend should say 'I do not want the money,' or the other should say 'I will not lend it." Nothing would be more difficult and more dangerous than the task which this court would have to perform if it were to investigate cases of that description.” (n)

§ 34. In one case there was a contract by B. to advance C. £3,000 on the security of some leasehold houses for five years. B. advanced £600 on deposit of the lease of one of the houses. The contract was (in the opinion of the court) that B. should not be entitled to call for the lessor's title. Nevertheless he did call for it, and on its being refused, filed a bill for specific performance of the contract, or for the sale of the property to repay him the £600 and interest. The court considered that the plaintiff was in the wrong, but the defendant submitting to perform the contract without showing the lessor's title, and the plaintiff electing to have a decree, made him pay the costs of the suit, as the price of its interference. (0)

§ 35. In another case S., who had become liable for a debt of W., and with whom W. had deposited title deeds as an indemnity, was held entitled to have a written memorandum of the terms of the deposit signed by W.(p)

§ 36. Again, though no action would lie at common law in respect of a contract to convey by a particular day, which was rendered impossible by the death of the contractor be

(j) Ashton v. Corrigan, L. R 13 Eq., 76; Hermann v. Hodges, L. R. 16 Eq., 18. Cf. Taylor v. Eckersley, 2 Ch. D., 302.

(*) Larios v. Bonany y Gurety, L. R. 5 P. C., 346. Cf. Brough v. Oddy, 1 R. & M., 55. (1) Rogers v. Challis, 27 Beav., 175.

(m) Sichel v. Mosenthal, 30 Beav., 371. (n) Per Lord Romilly, M. R., in Rogers v. Challis, 27 Beav., 178.

(0) Bass v. Clivley, Taml., 80.

(P) Sporle v. Whayman, 20 Beav., 607.

fore that day, yet specific performance would be decreed by the court of chancery against the heir. (q)'

§ 37. The court of chancery has also interfered specifically to execute a contract evidenced by a bond given to a wife by her husband, or to a husband by his wife, (r) before marriage, though the bond was suspended at common law by the intermarriage.'

§ 38. The same principle equally applies to give the court jurisdiction where, though the contract is in its nature such that a breach of it can be satisfied by damages, yet from some particular circumstances this remedy is not open to the aggrieved party; therefore where a contract for the purchase of timber-trees was comprised in a memorandum which appeared not to be the final contract, but was to be v. Acton, Prec. Ch., 237. See, too, Gage v. Acton, 1 Salk., 325.

(9) See arguments of counsel in Milnes v. Gery, 14 Ves., 403, and 1 Mad. Ch., 362. (r) Cannel v. Buckle, 2 P. Wms., 242; Acton

1 At common law, choses in action are not assignable. Greenby v. Wilcox, 2 John., 1; Coolidge v. Ruggles, 15 Mass., 338. But they may be assigned in equity. Breckenridge v. Churchill, 3 J. J. Marsh., 11. Hopkiss v. Eskridge, 2 Ired. Eq., 54; Spring v. Car. Ins. Co., 8 Wheat., 268. And the assignee has an equitable right enforceable at law in the assignor's name. Dix v. Cobb, 4 Mass., 511; Parker v. Grout, 11 Mass., 157, and note; Wheeler v. Wheeler, 9 Cow., 34; Eastman v. Wright, 6 Pick., 316; Welch v. Mandeville, 1 Wheat., 236. In reference to heirs expectant, it is said, in Davidson v. Little, 22 Penn. (10 Harris), 245, that an unexecuted contract for the sale of land will not be enforced in a court of equity, if it be found unconscionable. But after it has once been executed the chancellor will not interfere on account of its hardship, except in cases of an heir expectant, when the court will, upon that ground alone, declare it void.

* In Glaze v. Drayton, 1 Dessau., 109, the contract of the ancestor was decreed to be performed by the infant heir at law, who was allowed six months, after coming of age, to show cause. Upon clear proof of a parol contract and a part performance thereof, the same decree was given against one Wilkinson, a minor, in the case of Wilkinson v. Wilkinson, I Dessau., 201. In Saunders v. Simpson, 2 Har. & John., 81, where a father, in 1777, gave a bond to his daughter, binding himself to convey certain lands, but died without doing so, specific performance was decreed against his devisees, on a bill filed by her in 1797. See, also, Newton v. Swazy, 8 N. H. R., 9. In New York, infant or adult heirs of a vendor are bound to fulfill his contract to convey lands, to the extent of the estate that descends to them, and may be compelled to do so, though not named in the contract. But, ordinarily, the court will not compel the heir to enter into personal covenants, in pursuance of an agreement by the ancester. Therefore, where the vendor agreed to convey land by a good and sufficient deed, free of all incumbrances, and died leaving a widow entitled to dower, and heirs, one of whom was an infant, and the heirs were not named in the contract, it was held, in a suit against them for a specific performance of the agreement to convey, that the infant defendant must convey, but without covenants, and that the other defendants must also convey, but with covenants against their own acts, on payment of the sum due by the terms of the contract, deducting out of each payment due, and to become due, a proportionate share of the amount that should be found to be the value of the widow's right of dower. Hill v. Ressegieu, 17 Barb., 162.

made complete by subsequent articles, so that it was doubtful whether the contract, as it then stood, would not have been considered at law as incomplete, and so the plaintiff have been debarred of any remedy there, Lord Hardwicke held that the contract was one which the court of chancery could specifically perform. (s) In another case a contract to purchase a debt was enforced against the purchaser, on the ground that the debt had not been so assigned to him as to enable him successfully to sue at law ;(t) and in the case of a contract for the purchase of government stock, the fact that the plaintiff was not the original holder of the scrip, but merely the bearer, which rendered it doubtful whether he could maintain an action at law upon the contract, was one ground on which the court of chancery was held to have jurisdiction.(u)'

§ 39. It is said that before the time of Lord Somers the practice of the court of chancery was to send the parties to law, and to entertain the suit only in case of the plaintiff there recovering damages, (v) a practice which, of course, involved the proposition that specific performance could not be granted except in cases where damages could be recovered at law. The case in which this principle was the most distinctly maintained was that of Dr. Bettesworth v. The Dean and Chapter of St. Paul's, (w) decided by Lord King in 1726, with the assistance of Raymond, C. J., and Price, J. A lease had been granted by the defendants previously to the disabling statute of 13 Eliz., with a covenant to renew for ninety-nine years, and the plaintiff sought a renewal for the term allowed by the statute, which the Lord Chancellor refused, on the ground that no action could have been maintained on the covenant after the passing of the statute. "I take this to be a certain clear rule of equity," said Ray

(8) Buxton v. Lister, 3 Atk., 383; but see infra, §§ 317, 488.

(t) Wright v Bell, 5 Pri. 325. Cf. Adderley v. Dixon, 1 S. & S. 607.

(u) Doloret v. Rothschild, 1 S. & S., 590. (v) Per Clarke, M. R., in Dodsley v. Kinner-ley, Ambl.. 406.

(w) Šel. Cas. in Ch., 66.

1 See Costwaight v. Hutchinson, 2 Bibb., 407; Gould v. Womack, 2 Ala., 83. In New York all contracts between persons in contemplation of marriage remain in full force after such marriage takes place. Laws of New York, 1849, p. 529, ch. 375, § 3.

• Where it is not clear that a court of law can give the relief asked for, chancery will entertain jurisdiction. West v. Wayne, 3 Miss., 16; Wheeler v. Clinton Canal Bank, Harring Ch., 449; Philips v. Thompson, 1 John. Ch., 132.

mond, C. J.,(x) "that a specific performance shall never be compelled for the not doing of which the law would not give damages. The covenant to oblige them to make a lease for ninety-nine years is gone, and damages cannot be recovered for part of a covenant, and I, therefore, am of opinion equity cannot interfere." This decision, which was opposed by the opinion of Jekyll, M. R., was reversed in the House of Lords; and it is abundantly evident, from the cases already cited, that the jurisdiction at present exercised is not restrained within these limits, and that there are many cases in which specific performance is granted where no action for damages could be maintained. (y)'

2. Where there is no adequate common law remedy. 3. Where there is an adequate common law remedy. § 40. The propositions that the court will interfere in specific performance where the common law remedy exists, but is not adequate, and that the court will not interfere where the common law remedy exists and is adequate, being in the nature of converse propositions will be conveniently considered together."

1 44

Steward, 3 Mer., 491, to which Mr. Justice Story (Eq. Jur., § 741) has referred as a dictum of Grant, M. R., is the language of counsel arguendo.

The whole class of cases of specific performance of contracts respecting real estate, where the contract is by parol, and there has been a part performance, or where the terms of the contract have not been strictly complied with, and yet equity relieves the party, are proofs that the right to maintain a suit in equity does not, and cannot, properly, be said to depend upon the party's having a right to maintain a suit at law for damages. In cases of specific performance, courts of equity sometimes follow the law, and sometimes go far beyond the law; and their doctrines, if not wholly independent of the point, whether damages would be given at law, are not, in general, dependent upon it. Whoever should assume the existence of a right to damages in an action at law, as the true test of the jurisdiction in equity, would find himself involved in endless perplexity; for sometimes damages may be recoverable at law, where courts of equity would yet not decree a specific performance; and, on the other hand, damages may not be recoverable at law, and yet relief would be granted in equity.' Story's Eq. Jur., § 741. See, also, Getchell v. Jewett, 4 Greenl., 350; Andrews v. Andrews, 28 Ala., 432, which coincide in the doctrine as explained by Mr. Justice Story, and as laid down in the text. There are, however, contrary decisions in this country. See Allen v. Beal, 3 A. K. Marsh., 554, and Smith v. Carney, 1 Litt., 293. In this latter case relief was denied upon a verbal contract for the sale of land, after a delay of five years, upon the express ground that equity would not relieve where the law would not award damages, and assumpsit, the only action which could be maintained at law, the contract having been made before the introduction of the Statute of Frauds, was barred by the delay.

A specific performance will be decreed, when the party wants the thing in specie, and cannot be otherwise compensated; where an award of damages