the estate would be the measure of damage. But dividing the estate may very much increase the proportionate damages, without any corresponding advantage to the defendant. By making the election, the plaintiff undertakes to receive what the defendant never agreed to give, namely, a partial conveyance of the estate; and equity will only allow this on the condition that the defendant shall not thereby be subjected to unreasonable injury. The plaintiff, in effect, elects to take satisfaction, partly in land and partly in money; and if he is allowed to do this, he should only, in equity be allowed to receive the fair money value of the part of the estate which is not conveyed to him. In the adjudged cases, though this is sometimes called damages, it is more usually spoken of as an equitable compensation for the value of that which the defendant does not convey. It is not always proper to estimate the value of the deficiency, at the average price per acre. The true inquiry should be, how much more was agreed to be paid by reason of the supposed additional quantity? Wilcoxon v. Calloway, 67 N. C., 463. Where the estate is of uniform value, the price agreed upon to be paid per acre, would, of course, furnish a proper measure of damages in a case of excess or deficiency. King v. Hamilton, 4 Pet., 311. Where the vendor, in an executory contract for the sale of land, fails to make title without fraud or bad faith, but through an inability which was not known to him at the time of contracting, he is liable for nominal damages only. 2 Wm. Black., 1078; Conger v. Weaver, 20 N. Y., 140. Where the vendee insists on a conveyance of a part, he must pay to the vendor the value of such part proportioned to the price which was to have been paid for the whole. Jacobs v. Locke, 2 Ired.'s Eq., 286; Chandler v. Geraly, 5 S. C., 501; see, however, Stockton v. Union Oil and Coal Co., 4 W. Va., 273. Rule as to damages in equitable actions.] Where the claim is solely for damages, whether for breach of the contract or for fraud in making it, and it is. not sought to rescind it altogether, the party is, as a general rule, confined to his action at law; but a bill to have the contract rescinded for fraud, and for the recovery of damages, lies, though it does not ask for a discovery. Compensation in damages in an action for specific performance, is an incident merely. Unless, in very specific cases, chancery takes no cognizance of suits for damages only, founded on contract. Hatch v. Cobb, 4 John.'s Ch., 559; Kempshall v. Stone, 5 id., 193; Moss v. Elmendorf, 11 Paige's Ch., 279; Lynch v. Willard, 6 John.'s Ch., 342; Mayne v. Griswold, 3 Sand., 463; Newham v. May, 13 Price, 732; Sims v. McEwen, 27 Ala., 184; Doan v. Mauzey, 33 id., 227; Welch v. Bayard, 21 N. J. Ex., 168; Harrison v. Deramus, 33 Ala., 463; Richmond v. Dubuqe R. R. Co., 33 Iowa, 422; Carroll v. Wilson, 22 Ark., 32; Stevenson v. Buxton, 37 Barb., 13; Horn v. Luddington, 32 Wis., 73. "It must be under very special circumstances and upon peculiar equities, as, for instance, in cases of fraud, or in cases where the party has disabled himself by matters ex post facto from a specific performance, or in cases where there is no adequate remedy at law." Story's Eq. Jur., § 790; see, also, Peler v. Levy, 26 N. J. Eq., 360; Izard v. May's Landing Power Co., 31 id., 511; Gumpton v. Gumpton, 47 Mo., 37. "We think the doctrine on this subject is now wellsettled, and may be succintly stated to be this. Where the court of chancery has jurisdiction of the case, and where it is a case proper for specific performance, it may, as auxillary to specific performance, decree compensation or damages. And where the ascertainment of damages is essential in order to do complete justice between the parties in the case before it, the court ought not to send the parties to another forum to litigate their rights, but should refer the matter to one of its own commissioners, or direct an issue quantum damnificatus to be tried at its own bar." Christian, J., Nagle v. Newton, 22 Gratt., 814; see, also, Prothero v. Phelps, 35 Eng. Law and Eq., 523; Masson's App., 70 Pa. St., 26; Bell v. Thompson, 34 Ala., 633; Holland v. Anderson, 38 Mo., 55; Woodman v. Freeman, 25 Me., 531; American Land Co. v. Grady, 33 Ark, 550; Hopkins v. Gilm., 22 Wis., 476. An action cannot be brought in equity, solely for damages.] Where the vendee files his bill for a specific performance, knowing that the vendor has disabled himself from performing, it will not be retained to give him a compensation in damages. Such an action is matter strictly of legal, and not of equitable jurisdiction. Hatch v. Cobb, 4 John.'s Ch., 559; Kempshall v. Stone, 5 d, Morrs v. Elmendorf, 11 Paige, 277; Doan v. Manzey, 33 Ill, 227; McQueen v. o; Chouteau, 20 Mo., 222; Henty v. Schroder, L. R., 12 Ch. D., 666; Lewis v. Yale, 4 Fla., 437; Barnett v. Mendenhall, 42 Iowa, 296; Smith v. Kelly, 56 Me, 64; Frany v. Orton, 75 Ill., 100. Where specific performance cannot be performed.] "The rule assumes, of Course, a sufficient contract, performance, or an offer to perform, by the plaintiff, and every other element requisite on his part to the cognizance of his case in chancery; and that the special relief sought is defeated, not by any defense or counter equities, but simply because an order therefor would be fruitless from the inability of the defendant to comply. The jurisdiction is fixed by establishing the equitable right of the plaintiff. Relief must then be given by a decree in the alternative, awarding damages, unless the defendant should secure the specific performance sought. In many cases this would be an effective and proper course, insomuch as the defendant, although not having himself, at the time, the title or capacity requisite for such performance, might be able to procure it otherwise. The jurisdiction is not lost when the court, instead of such alternative decree, determines to proceed directly to an award of damages or compensation. The peculiar province of a court of chancery, is to adopt its remedies to the circumstances of each case as developed by the trial. It is acting within that province, when it administers a remedy in damages merely in favor of a plaintiff who fails of other equitable relief to which he is entitled, without fault on his part. The diversity of practice, in this respect, and the doubt as to the jurisdiction, we think must have arisen less from the nature of the relief to be afforded, than from the character of the means for determining the amount of compensation to be rendered." Wells, J., in Milkman v. Ordway, 106 Mass., 232; Wiswall v. McGowan, Hoff. Ch., 125; Woodcock v. Bennett, 1 Cow., 71; Hall v. Delaplaine, 5 Wis., 206; Holland v. Anderson, 38 Mo., 55; Chartier v. Marshall, 56 N. H., 478; Hamilton v. Hamilton, 59 Mo., 232. CHAPTER IV. OF REFERENCE OF TITLE. § 1280. Where the vendor of land sues the purchaser for a specific performance of the contract, the defendant may, in some cases, succeed in having the action dismissed at the trial, on the ground of a defect in the plaintiff's title, provided the defect in title has been prominently put forward in the pleadings:(a) but where this is not the case, the defendant is entitled to have an inquiry directed as to the title of the vendor to the lands in question. This right is derived from the extraordinary nature of the jurisdiction which the vendor seeks to put in action, in consideration of which the purchaser has a right, not only to have such a title as the vendor offers upon the abstract unauthenticated, but the highest assurance upon the nature of his title which can be acquired for him by the production of deeds, the directing of inquiries, and the sifting of the vendor's conscience. (b)1 Hence it follows that, though the purchaser may admit that he has only one particular objection, (c) or no objection at all(d) to the title, he is equally entitled to a general reference as to it. § 1281. Still whenever, in a judgment decreeing the specific performance of a contract, an inquiry whether the vendor can make a good title is directed in general terms, it (a) Lucas v. James, 7 Ha., 418. 425. (d) Jenkins v. Hiles, 6 Ves., 646; cf. Fleetwood v. Green, 15 Ves., 594. 1 Part performance; vendee may insist upon.] Where the vendor cannot fully perform, the vendee has a right to insist upon part performance with equitable compensation. Barns v. Wood, L. R., 8 Eq., 421; Wright v. Young, 6 Wis., 127; Jones v. Shackelford, 2 Bibb., 410; Matthews v. Patterson, 2 How. (Miss.), 729; McConnell v. Brillhart, 17 Ill., 354; Bass v. Gilliland, 5 Ala., 759; Collins v. Smith, 1 Head (Tenn.), 251; Harding v. Parshall, 56 Ill., 219; Wilson v. Cox, 50 Miss., 133. The vendor contracted to sell land, to which it was afterwards ascertained he had only the ownership of an undiminished half. Held, in an action to recover possession, or a decree for the purchase money, that the vendee might elect to take the half and pay one-half the purchase price, or that the contract should be rescinded, and the vendor to receive back the money paid and compensation for improvements, and, if any waste had been committed, damages should be deducted. Erwin v. Myers, 46 Pa. St., 96. must be understood to mean a good title according to the terms of the contract: but if the vendor wishes to prevent the renewal, under the inquiry, of objections waived before the action, he should guard himself by establishing such waiver at the trial, and taking care that the judgment expressly recognizes it: for under a general inquiry as to title the court will not enter into any question of such waiver.(e) § 1282. However, where a purchaser allowed the vendor's suit for specific performance to proceed to the point of the inquiry as to title, before bringing forward an objection which was patent on the face of the abstract originally delivered, he was not allowed his costs of the inquiry, though the objection was fatal to the title. (e) § 1283. The right to the reference is so far that of the purchaser that the vendor cannot except to the title, so as to assert his own title to be bad.(ƒ) § 1284. The purchaser is also entitled to a reference of title where he is plaintiff in an action for specific performance; but inasmuch as in this case it is he, and not the vendor, who is calling on the court to act, he does so at his own risk; and therefore, if he knows of objections and asks for a reference, and then waives the objections, he will have to bear the costs of investigating the title. (g) And it would seem that the same result must follow where the effect of a reference is to show that the vendor had at the due time disclosed to the purchaser a perfect title. (h) § 1285. The right to this reference is not confined to sales of real estate, but extends to any species of property with regard to which the court may entertain an action for specific performance, and the nature of which renders such an inquiry proper. Accordingly, inquiries have been directed into the title of vendors to shares in railway companies, (i) and in mining concerns. (j) The nature of the inquiry, of course, varies according to the nature of the property, and the essentials of a good title to it. § 1286. But there are necessarily many contracts in (e) Upperton v. Nickelson, L. R. 6 Ch.. 437; Curling v. Austie. 2 Dr. & Sm., 129; McMurray v. Spicer, L. R. 5 Eq, 527. Cf. Corless v. Sparling, I. R. 8 Eq., 335. (f) Bradley v. Munton, 15 Beav., 460. (g) Bennett v. Fowler, 2 Beav., 302. Cf. Freme v. Wright, 4 Mad., 364. (h) See Lyle v. Earl of Yarborough, John., 70. (i) Shaw v. Fisher, 2 De G. & Sm., 11. (5) Curling v. Flight, 2 Ph., 613. respect of which no such inquiry is or can be made. Where the contract is not for the sale of any property, such a reference is of course out of the question. And so, too, where a contract is rather in the nature of a compromise of disputed rights than of a contract for sale, the court will not make the inquiry.(k) In a case where a small piece of land was described as held of certain commissioners of waste lands at a rent of six shillings, it was doubted whether a purchaser could call on a vendor for the title of the commissioners. (7) § 1287. The court will not direct an inquiry where, though the contract be one of sale, the vendor only sells such interest as he has :(m) such a contract is, of course, perfectly valid, but, being in restraint of the purchaser's implied right to a good title, it must be made clear and unambiguous to the purchaser.(n) A vendor may, of course, stipulate that a purchaser shall take such title as he himself bought with. (0) § 1288. Of such restrictive stipulations there are many cases thus where a purchaser agreed to accept the vendor's title without dispute, he was held to be debarred from taking an objection on account of an incumbrance which left the legal estate outstanding. (p)' So, again, where conditions of sale of a free-farm rent stated that no evidence (k) Godson v. Turner, 15 Beav., 46. See, also, Anderson v. Higgins, 1 Jon. & L., (1) Ashton v. Wood, 3 Jur. N. S., 1164 718. (Stuart, V. C.). (m) See supra, § 857. (0) Monro v. Taylor, 8 Ha., 51, 71. (p) Duke v. Barnett, 2 Coll., 337; Wilmot (n) Southby v. Hutt, 2 My. & Cr., 207, 212. v. Wilkinson, 6 B. & C., 506. 1 Contracts only partially in restraint of trade.] Such contracts are sometimes enforced in equity. Tallis v. Tallis, 18 Eng. Law and Eq., 151; Pierce v. Woodward, 6 Pick., 206; Chappell v. Brockway, 21 Wend., 158; Mott v. Mott, 11 Barb., 127; Hoysland v. Segar, 28 N. J. Eq., 230; Dwight v. Hamilton, 113 Mass., 175; Roller v. Ott, 14 Kan., 600; Brown v. Rounsevall, 78 Ill., 589; Peltz v. Eichele, 62 Mo., 171; Oregon Steam Nav. Co. v. Windsor, 20 Wall., 64; Noah v. Webb, 1 Edw. Ch., 603. Contracts to erect public buildings in a given locality sustained.] Specific performance will be decreed of a contract to pay money toward the erection of public buildings, provided the same are erected at a given locality, or are not removed therefrom. Carpenter v. Mather, 3 Scam., 374; State Treas. v. Cross, 9 Vt., 289; Bull v. Talcott, 2 Root, 119; Comm'rs of Canal Fund v. Perry, 5 Ohio, 56; Cauldwell v. Harrison, 11 Ala., 755; University of Vermont v. Buell, 2 Vt., 48: Religious Society v. Stone, 7 Johns., 112; McAuley v. Billinger, 20 John., 89; Collier v. Baptist Educat. Society, 8 B. Mon., 68; Trustees of Amherst Acad. v. Cowles, 6 Pick., 427; Williams Col. v. Danforth, 12 Pick., 541; George v. Harris, 4 N. H., 533; Odineal v. Barry, 24 Miss., 1; State v. Johnson, 52 Ind., 197; contra, Comm'rs v. Jones, Breese, 237; Stilson v. Comm'rs of Lawrence Co., 52 Ind., 213. |