session was sold together with the reversion, did not, at least where the former was not considerable, take the case out of the rule; (h) as, for instance, where an annuity in possession was sold together with the reversion, the estimated value of the annuity being only about one-sixth of that of the reversion.(i)

§ 435. Again, the principle did not apply where the reversionary interest was sold by auction;() and this for two reasons. First, "there being no treaty between 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."(k) Secondly, it being clearly established that the market price of the reversionary interest, and not the estimate of actuaries, was the criterion by which the court decided the question of undervalue, (7) and a sale by auction being a mode of ascertaining that market price, it followed that the consideration for the transaction and the value in the eye of the court must in such cases be one and the same, and that, in the absence of fraud, no question of undervalue could arise.

§ 436. Such was shortly the state of the law before the statute 31 Vict., ch. 4. By that statute it was enacted that no purchase made bona fide and without fraud or unfair dealing of any reversionary interest in real or personal estate, should thereafter be opened or set aside merely on the ground of undervalue.

§ 437. As regards actions for the rescission of contracts for the sale of reversions, the operation of this act is clear. It makes mere inadequacy no sufficient ground for relief; but it leaves entirely unaffected the jurisdiction which relieves against the fraud which infects catching bargains with heirs, reversioners, or expectants in the life of the father. The doctrines of the court which throw protection round unwary young men in the hands of unscrupulous persons ready to take advantage of their necessities are entirely unchanged.(m)

(h) Per Lord Eldon in Davis v. Duke of Marlborough, 2 Sw., 154.

(i) Earl of Portmore v. Taylor, 4 Sim., 182.
(j) Shelly v. Nash, 3 Mad., 232.
(k) Per Leach, V. C., id., 236.

(1) Wardle v. Carter, 7 Sim., 490; per Wig. ram, V. C., in Borell v. Dann, 2 Ha., 452; Earl of Aldborough v. Trye, 7 Cl. & Fin., 436,

460; Edwards v. Burt, 2 De G. M. & G., 55. Consider Porfect v. Lane, 30 Beav., 197; 3 De G. F. & J., 369; Lord v. Jeffkins, 35 Beav., 7.

(m) Tyler v. Yates, L. R. 11 Eq., 265; 6 Ch., 664; Earl of Aylesford v. Morris, id. 8 Ch., 484; Beynon v. Cook, 10 Ch., 389; O'Rorke, v. Bolingbroke, 2 App. C., 814; Nevill v. Snelling, 15 Ch. D., 679.

§ 438. But the act is silent as regards the specific performance of contracts relating to reversions. Does it, therefore, leave the law just as it was? or does it for all purposes place sales of reversions on the same footing as other sales so far as regards the question of inadequacy of consideration? No decision has, it is believed, been given upon these questions: but it is submitted that the true conclusion is, that every contract for the sale of a reversion which cannot be relieved against ought prima facie to be performed; that the object of the act was to place bona fide and honest sales of reversions on the same footing as other sales and that henceforth in specific performance actions there will rest on the defendant the burthen of proving inadequacy of consideration, and such inadequacy as shocks the conscience of the court and constitutes evidence of fraud, or as is accompanied by other circumstances of oppression or unfairness.

§ 439. It only remains to add as affording some support to this conclusion that the rule throwing the burthen of proof of adequacy on the purchaser was adopted in specific performance suits in obedience to decisions to that effect in suits to set aside the transaction; and not on any independent ground affecting such suits in particular.(0)

(0) See Kendall v. Beckett, 2 R. & My., 884; the cases there cited and relied upon in Hincksman v. Smith, 3 Russ., 433; and notice judgment.

CHAPTER VIII.

OF WANT OF MUTUALITY IN THE CONTRACT.

§ 440. A contract to be specifically enforced by the court must be mutual-that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other of them. (a)' Whenever, therefore, whether from personal incapacity to contract, or the nature of the contract, or any other cause, the contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against the other, though its execution in the latter way might in itself be free from the difficulty attending its execution in the former.'

(a) In Williams v. Williams, L. R. 2 Ch., 294, 304, there was held to be mutuality in a

verbal family arrangement. Consider Turner v. May, 32 L. T. (N. S.), 56.

1 Mutuality as to obligation and remedy.] A contract which is sought to be specifically enforced must be mutual, both as to the remedy and the obligation. Boucher v. Vanbuskirk, 2 A. K. Marsh., 345; Hutchinson v. McNutt, 1 Ohio, 14; Ohio v. Baum, 6 id., 383; Cabeen v. Gordon, 1 Hill Ch. (S. C.), 51; McMurtree v. Bennett, Harr. Ch., 124; Hawley v. Sheldon, id., 420; Benedict v. Lynch, 1 John.'s Ch., 370; German v. Machin, 6 Paige Ch., 288; Beard v. Linthicum, 1 Md. Ch., 345; Bodine v. Gladding, 21 Pa. St., 50; Jones v. Noble, 3 Bush. (Ky.), 694; Rider v. Gray, 10 Md., 282; Reese v. Reese, 41 id., 554; O'Brien v. Pentz, 48 id., 562; Ewins v. Gordon, 49 N. H., 444; Richmond v. Dubuque R. R. Co., 33 Iowa, 422; Taw v. Scott, 4 Breu 's (Pa.), 49; Cooper v. Pena, 21 Cal., 403; Duvall v. Myers, 2 Md. Ch., 401; Meason v. Kane, 63 Pa. St., 335, Luse v. Deitz, 46 Iowa, 205; Maynard v. Brown, 41 Mich., 298; Smith v. Smith, 63 Ga., 184; Bronson v. Čohill, 4 McLean, 19; Snyder v. Neefus, 53 Barb., 63; Marble Co. v. Ripley, 10 Wall., 339; Mastin v. Halley, 61 Mo., 196; Vassault v. Edwards, 43 Cal., 458.

Option.] An optional contract to sell property, or renew a lease, without any covenant or obligation to purchase or accept, and without any remedy that is mutual, will be enforced by a court of equity, when it has been made upon proper consideration, or forms part of a contract between the parties, that may be the true consideration for it. Classon v. Bailey, 14 Johns., 484; In re Hunter, 1 Ed. Ch, 1; Woodward v. Aspenwall, 4 Sandf., 272; Hawralty v. Warren, 18 N. J. Eq., 124; Vandoren v. Robinson, 16 id., 256; Green v. Richards, 23 id., 32; Schroeder v. Gemeinder, 10 Nev., 355; Corson v. Mulvany, 49 Pa. St., 88; Boston, etc., R. R. Co. v. Bartlett, 3 Cush., 224; D'Arras v. Keyser, 26 Pa. St., 249.

Continuing offer to sell.] An agreement to sell, provided another will purchase, is in the nature of a continuing offer, and when accepted completes the contract. De Rutte v. Muldrew, 18 Cal., 505; Laffan v. Nagle, 9 id., 662; Hall v. Canter, 40 id., 65; Willard v. Taylor, 8 Wall., 557; Napier v. Darlington, 70 Pa. St., 64; Manlin v. Perry, 35 Md., 352.

No rule in equity is more thoroughly settled than this. Benedict v. Lynch, 1 John. Ch., 370; Bromley v. Jeffers, 2 Vern., 415; German v. Machin, 6

§ 441. Thus a tenant in tail cannot enforce a contract entered into by a tenant for life, because the tenant in tail could not be sued on it:(b) an infant cannot sue, because he could not be sued, for a specific performance :(c) a purchaser from a person who at the time of the sale had no estate in the property sold, may defend himself on the score of the vendor's original incapacity to perform his part:(d) a father cannot enforce a contract on the part of his motherin-law to pay him an allowance in consideration of his giving up to her the custody of his infant children during a specified part of every year :(e) and where A. agreed with B. not to join in barring an entail, and B. agreed to convey to A. certain parts of the estate on his entering into possession, and it was held, on the authority of Collins v. Plummer, (ƒ) that such a contract could not be specifically enforced against A., a specific performance of B.'s part of the contract was refused at the suit of A.'s representatives.(g) On the same principle it would seem that a contract entered into by several devisees in trust for sale, of

(b) Armiger v. Clarke, Bumb., 111; Rick. ett v. Bell, I De G. & Sm., 335.

(c) Flight v. Bolland, 4 Russ., 298. The case of Clayton v. Ashdown, 9 Vin. Abr, 393, may perhaps be explained on the ground of a ratification by the infant after attaining his majority, or as being an application in equity of the legal principle that the contract, though voidable by the infant, binds the

party of full age.
à deposit paid on
ground of fraud.
Add. Cas., 196.

The infant cannot recover the contract, except on the Wilson v. Kearse, Peake,

(d) Hoggart v. Scott, 1 R. & My., 293. Cf. Forrer v. Nash, 35 Beav., 167.

(e) Kennedy v. May, 11 W. R., 358.
(f) 1 P. Wms., 104.

(g) Hamilton v. Grant, 3 Dow, 33.

Paige, 288; Woodward v. Harris, 2 Barb. S. C. R., 439; Phillips v. Berger, id., 611; confirmed on appeal, 8 id., 527; see, also, Rogers v. Saunders, 4 Me. R., 92; Tyson v. Watts, 1 Maryl. Ch. Decis., 13; Beard v. Linthicum, id., 345; M'Murtrie v. Bennet, Harring. Ch., 124; Hawley v. Sheldon, id., 420; Cabeen v. Gordon, 1 Hill. Ch., 51. In Bronson v. Cahill, 4 McLean, 19, a bill was brought in equity, by the vendors of certain land, to enforce specific execution of the contract of sale. It appeared, however, that a part only of the vendors had agreed to make a good and sufficient title to the land. Held, that there was a want of mutuality in the contract, and that specific execution could not be enforced. The same question arose in Tyson v. Watts, 1 Maryl. Ch. Decis. 13. There, the manifest object of the party resisting a decree for the specific performance of a contract, and one which he supposed he had secured by the contract, was to have the minerals on his farm worked as well as explored; by the contract he gave A. full power to make explorations and work the mines; but the only engagement on the part of A. was limited to explorations, and he was not bound to work the mines. Upon this state of the case the court decided the contract to be deficient in reciprocity of obligation, and refused its specific performance. A party not bound by the agreement itself, has no right to call upon a court of equity to enforce specific performance against the other contracting party, by expressing his willingness, in his bill, to perform his part of the engagement. His right to the aid of the court does not depend upon his subsequent offer to perform the contract on his part, but upon its original obligatory character. Duvall v. Myers, 2 Md. Ch. Decis., 401; see, also, the case of Bodine v. Gladding, 21 Penn. (9 Harris), 50.

whom one was a married woman, would be unenforceable by either side. (h) So where the relief sought was analogous to the specific performance of a grant of an office, the court held that, the duties and services incident to the office being personal and confidential in their character, specific performance could not have been decreed against the plaintiff at the suit of the defendant; and consequently, that the plaintiff could not sue the defendant, though there were no personal duties to be performed by the defendant. (¿) Again, where the plaintiffs had agreed to perform certain services in working a railway, which were of such a confidential nature that the court could not have enforced them if the defendants had sued the plaintiffs; and the defendants were to pay money, and do nothing else; the court refused specific performance, on the ground, amongst others, of want of mutuality.(j) The like objection prevailed where the plaintiff sued on a contract under which he was to construct a railway, and offered to make the railway and asked for payment.(k)

§ 442. A doubt was at one time entertained whether there existed the proper mutuality between a person having entered into a contract to take a lease from a tenant for life with a leasing power and the remainderman:(7) but that doubt is now resolved, and it seems clear that such a contract may be enforced by either of these parties.(m)

§ 443. The mutuality of a contract is, as we have seen, to be judged of at the time it is entered into; so that it is no objection to the plaintiff's right, that the defendant may by delay, or other conduct on his part subsequent to the contract, have lost his right against the plaintiff.(n)' And ac

(h) That the purchaser could not enforce such a contract has been decided. Avery v. Griffin, L. R. 6 Eq, 606.

(i) Pickering v. Bishop of Ely, 2 Y. & C. C. C., 249.

(j) Johnson v. Shrewsbury and Birmingham Railway Co., 3 De G. M. & G., 914; Stocker v. Wedderburn, 3 K. & J., 395; Ord v. Johnston, 1 Jur. (N. S.), 1063; 4 W. R., 37 (Stuart, V. C.). See, also, Hill v. Gomme, 1 Beav, 540; Bromley v. Jefferies, 2 Vern, 415, sed qu. It has been decided in Ireland that a contract by a purchaser with a husband

and wife is not bad for want of mutuality, and may be enforced by them. Fenelly v. Anderson, 1 Ir. Ch. R., 706. The grounds of this decision do not appear very conclusive. Cf. Avery v. Griffin, L. R. 6 Eq., 606.

(k) Peto v. Brighton, Uckfield, and Tunbridge Wells Railway Co., 1 H. & M., 468. (1) Per De Grey, C. J., in Campbell v. Leach, Ambl., 749.

(m) Shannon v. Bradstreet, 1 Sch. & Lef., 52, particularly 64. See infra, § 566.

(n) South Eastern Railway Co. v. Knott, 10 Ha., 122.

And the rule which applies to cases in which there is not such mutuality of remedy at the time the contract is made, is not applicable to cases in which the mutuality of remedy is taken away by a subsequent contingent event. Moore v. Fitz Randolph, 6 Leigh, 175. See Walton v. Coulson, 1 McLean, 120, which is a case agreeing precisely with the Southeastern Railway Co. v. Knott, cited in the text.