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terminate by ten days' notice a contract does not prevent his obtaining an injunction against its violation by the employee.25

Since merchandise can usually be bought in the open market, contracts for the sale of personal property will usually not be enforced when the property has a market value.26 This has been held in the case of a contract for the transfer of shares of stock in the corporation when, although the stock could not be bought in the market and related to a new enterprise, the facts which showed the value of the corporate franchise that it represented could be easily ascertained and proved before a jury.27

When, however, the stock was not for sale upon the market and the business of the corporation was rapidly increasing, equity gave the relief.28 When defendant is insolvent equity might possibly grant relief.29

31

Equity will compel specific performance of a contract for the sale of a patent right,30 of a contract to issue an insurance policy, and in the same suit to compel payment of the policy, of a contract for the purchase of an entire stock of general merchandise for a lump sum, that had been paid when it was alleged that defendant had delivered about two-thirds of the goods, but refused to deliver the remainder, which he had concealed, so that complainant could not obtain them by an action of replevin.32

Where the contract provided that in case of default the plaintiff should be entitled to the writs of estrepment and scire facias that as an alternative to the writ of estrepment a receiver should

25 Phila. Ball Club v. Lajoie, 202 Pa. 210, 58 L.R.A. 227, 90 Am. St. Rep. 627, 51 Atl. 973.

26 Hyer v. Richmond Traction Co., 168 U. S. 471, 483, 28 Sup. Ct. 114, 42 L. ed. 547; Blue Point Oyster Co. v. Haggenson, 209 Fed. 278.

27 Hyer v. Richmond Traction Co., 168 U. S. 471, 483, 28 Sup. Ct. 114, 42 L. ed. 543.

28 Mutual Oil Co. v. Hills, C. C. A., 248 Fed. 257. For an extraordinary case where an interlocutory order was made directing the performance of a contract to manufacture automobiles, see Dail-Overlander Co. V. Willys-Overland, 263

Fed. 171, 179. There, however, the object of the order was to give the court jurisdiction to punish strikers who were also made defendants for interfering with the business of the manufacturer. See infra, § 276.

29 Consolidated Fuel Co. v. St. Louis, S. W. Ry. Co., C. C. A., 240 Fed. 395.

30 Hall v. Pitrat, 45 Fed. 94.

31 Tayloe v. Merchants' F. Ins. Co., 9 How. 390, 13 L. ed. 187; Hebert v. Mutual L. Ins. Co., 12 Fed. 807; Brugger v. State Inv. Co., 5 Saw. 304.

32 Raymond Syndicate v. Brown, 124 Fed. 80.

be appointed and that the property should be sold under execution; it was held that these remedies were more adequate than those which equity could perform and consequently a suit for specific performance could not be sustained.33 Specific performance of a contract with a State will not be enforced either directly by suit against the State itself or indirectly by a proceeding against its officers.34

The bill should contain an offer by the plaintiff to perform his part of the contract.35 It has been said that where the plaintiff is married he need not affirmatively show his wife's willingness to join in the execution of the contract since this will be presumed.36 The bill may contain a prayer that the agreement be either set aside as obtained by fraud or else specifically enforced.37

38

In a bill to compel specific performance of a contract to convey real estate which gives to the parties therein mentioned distinct rights to separate lots it seems that they cannot join; but in a bill to compel specific performance of a decree in a former suit, all the complainants in the first suit were allowed to join as plaintiffs although the decree sought to be enforced ordered the payment of specific sums severally to each of them.39

A State is an indispensable party to a bill against its officers to compel specific performance by them for it of its contract for the sale of land.40 Where the contract is made by an agent in his own name he is a necessary party to a suit by his principal for specific performance. In a suit against a corporation to enforce specific performance of a contract made by it in behalf of subsidiary companies, which it controlled through ownership of their stock, it was held that such subsidiary companies were not

33 Marian Coal Co. v. Peale, C. C. A., 204 Fed. 161.

34 Ayers, 123 U. S. 443, 502, 31 L. ed. 216, 228, supra, § 105c.

35 Staphyton v. Scott, 13 Vesey, 425; Fife v. Clayton, 13 Vesey 546. 36 Dixon v. Anderson, C. C. A., 252 Fed. 694.

37 Hardin v. Boyd, 113 U. S. 756, 28 L. ed. 1141, supra, § 138.

38 Maiselis v. Morris & L. Co., 1 N. J. Eq. 31, 39.

39 Shields v. Thomas, 18 Howard 253, 15 L. ed. 368, supra, § 140.

40 Preston v. Walsh, 10 Fed. 315. See, also, Walsh v. Preston, 109 U. S. 297, 27 L. ed. 940.

41 Pennsylvania & N. J. R. Co. v. Byerson, 36 N. J. Eq. 112, 116.

indispensable, nor even necessary parties.42 To a bill to enforce specific performance of a contract; when filed, after the death of each by the personal representatives of the one as complainants against the heirs-at-law of the other as defendants; the executors of the defendants' ancestor are necessary if not indispensable parties defendant, and the heirs-at-law of the complainant's decedent are not.43 It has been held that a tenant for life and the contingent remainderman in fee may represent the inheritance in a bill for specific performance, if the children of the remainderman will inherit if he does not.44 Specific performance of a contract for the sale of land may be enforced against one of several joint tenants without joining the others with him. as defendants.45 In a suit in equity by the purchaser of coal rights in lands for a specific enforcement of the contract, the terms of which are in dispute between the parties, the defendant cannot by crossbill bring in as parties defendant the agents who made the contract, on his behalf and with his approval, to have their right to commissions determined, a controversy which

42 Texas Co. v. Central Fuel Oil Co., C. C. A., 194 Fed. 1.

43 Seymour v. Freer, 8 Wall. 218, 19 L. ed. 311. See Prout v. Roby, 15 Wall. 471, 21 L. ed. 58.

44 Sohier v. Williams, 1 Curt. 479. 45 Stephen v. Beall, 22 Wall. 329, 22 L. ed. 786. It has been held, that a corporation, which is not a party to a contract for the conveyance of certain property thereto, is not an indispensable party to a suit to compel specific performance, Rogers v. Penobscot, Min. Co., C. C. A., 154 Fed. 606, 616; and that corporations are not indispensable parties to a suit for specific performance of a contract to convey land owned by them, which was made on their behalf by a corporation which held the control of their stock, Texas Co. v. Central Fuel Oil Co., C. C. A., 194 Fed. 1. A

railway company is not an indispensable party to a bill against its receiver to enforce specific performance of a contract made by it, Express Co. v. Railroad Co., 99 U. S. 191, 25 L. ed. 319. To a bill to enjoin the execution of a judgment of ejectment and to decree a conveyance of lands, when the plaintiffs had an equitable title only, the persons whose legal title the complainants asserted were held properly omitted, when no relief was prayed against them, and their joinder would have ousted a court of jurisdiction, Simms V. Guthrie 9 Cranch, 19, 25, 3 L. ed. 642, 644. See also Boon's Heirs v. Chiles, 8 Pet. 532, 8 L. ed. 1034. But compare Mallow v. Hinde, 12 Wheat. 193, 6 L. ed. 599. A border case is Elmendorf v. Taylor, 10 Wheat. 152, 6 L. ed. 289.

has no relevancy to the principal suit, and in which complaint has no interest.46

§ 151f. Bills to set aside clouds on title. When a written instrument, not void, upon its face,1 creates an apparent defect. in the title to real property, or in some cases the title to personal property, in a man's possession 3 or tends to make such property unmarketable; equity will entertain a bill to compel the cancellation of the papers or to obtain a decree declaring the instrument to be invalid. When a bill states a case for other equitable relief to which the removal of such a cloud is incidental, this relief may also be granted. Such bills have been sustained when filed. If the cloud does not affect the title to land, such a bill cannot be filed where the plaintiff has an adequate remedy at law. A bill in equity cannot be maintained by a party out of possession to remove a cloud upon his title to land," not even

46 Patton v. Marshall, C. C. A., 26 L.R.A. (N.S.) 127, 173 Fed. 350.

§ 151f. 1 Ritchie v. Sayers, 100 Fed. 520; Pierce v. Webb & Stalker, note to Ryan v. Mackmath, 3 Bro. C. C. 15; Peake v. Highfield, 1 Russ. 559, and cases cited; Bunce v. Gallagher, 5 Blatchf. C. C. 481; Quinby v. Consumers' Gas Trust Co., 140 Fed. 362; Johnston v. Kramer Bros., 203 Fed. 733.

2 Crocker v. Ingersoll Eng. & Construction Co., 205 Fed. 99; Elder v. Western Min. Co., C. C. A., 237 Fed. 966.

3 Sharon v. Hill, 20 Fed. 1; General Film Co. v. Sampliner, C. C. A., 252 Fed. 443.

4 General Film Co. v. Lake Shore & M. S. Ry. Co., C. C. A., 250 Fed. 160.

5 To set aside a contract obtained by fraud, Boyce v. Grundy, 3 Pet. 210, 7 L. ed. 655. To set aside a conveyance obtained for a grossly inadequate consideration from a man in a state of intoxication, partly caused by the acts of the de

fendant, Thackrah v. Haas, 119 U. S. 499, 30 L. ed. 486. By a creditor of a decedent to set aside a fraudulent conveyance of his estimate made after his death by the order of a court, Johnson v. Waters, 111 U. S. 640, 28 L. ed. 547. By a single man to have declared null and void a paper purporting to be a marriage contract executed by him, Sharon v. Hill, 20 Fed. 1. To set aside an invalid tax deed, or a deed executed under a decree of a court which had no jurisdiction over the matter; when the invalidity or want of jurisdiction must be made to appear by facts not apparent upon the deed itself, Ritchie V. Sayers, 100 Fed. 520. But see Little Rock Junction Co. v. Burke, C. C. A., 66 Fed. 83; Morrison v. Marker, 93 Fed. 692.

6 Bronson v. Cook, 247 Fed. 601; General Film Co. v. Sampliner, C. C. A., 252 Fed. 443.

7 Whitehead v. Shattuck, 138 U. S. 146, 34 L. ed. 873; Wehrman v. Conklin, 155 U. S. 314, 325, 39 L. ed. 167, 173; Giberson v. Cook, 124

when authorized by State Statute, unless the land is vacant and none of the parties are in possession, when the bill may be maintained if authorized by State statute, or in harmony with State decisions, 10 and under special circumstances such a bill was sustained when filed by a mortgagee in the nature of a bill quia timet before default.11

But not a bill to compel a public officer to perform a ministerial duty.12 Nor to fix the freight rates charged by the railroads in intrastate commerce.18 Nor, in the absence of statutory authority for the collection of taxes.14 Nor a bill to compel municipal, county, or State officers to levy a tax,15 or to issue bonds even in the case of a contract; 16 since the remedy, when it exists at all, is by mandamus. Nor a bill for the appointment of a receiver to levy taxes, or to collect taxes previously levied.17 Nor a bill to enjoin an insolvent municipality from expending its funds for other municipal purposes. 18 In the case of an oil or gas lease where the law of the State did not authorize a suit and ejectment and there was consequently no adequate remedy at law, the Courts sustained jurisdiction of

Fed. 986; Union Pac. R. Co. v.
Cunningham, 173 Fed. 90; Baum v.
Longwell, 200 Fed. 450. See Klenk
v. Byrne, 143 Fed. 1008. Contra,
Farr v. Hebe-Peters Land Co. C. C.
A., 188 Fed. 10; Rowe v. Hill, C.
C. A., 215 Fed. 518, Ennis-Brown
Co. v. Central Pac. Ry. Co., 228
Fed. 46, s. c., C. C. A., 235 Fed.
825.

8 Ibid.

9 Holland v. Challen, 110 U. S. 15, 28 L. ed. 52; Southern Pac. R. Co. v. Stanley, 49 Fed. 263; Field v. Barber Asphalt Co., 117 Fed. 925; Smith Oyster & Land Co. v. Darbee & Immel Oyster & Land Co., 149 Fed. 555. See supra, § 82.

10 Continental Trust Co. v. Tallassee Falls Mfg. Co., 222 Fed. 694. But see Frost v. Spitley, 121 U. S. 552.

11 Graves v. Ashburn, 215 U. S. 331, 334; 54 L. ed. 217.

12 Craig v. Leitensdorfer, 123 U. S. 189, 31 L. ed. 114.

13 Montana, W. & S. R. Co. v. Morley, 198 Fed. 991.

14 Preston v. Chicago, St. L. & N. O. R. Co., 175 Fed. 487, aff'd as Preston v. Sturgis Milling Co., C. C. A., 183 Fed. 1.

15 Walkley v. Muscatine, 6 Wall. 481, 18 L. ed. 930.

16 Smith v. Bourbon County, 127 U. S. 105, 32 L. ed. 73.

17 Rees v. Watertown, 19 Wall. 107, 22 L. ed. 72; Heine v. Levee Com'rs, 19 Wall. 655, 22 L. ed. 223; Merriwether v. Garrett, 102 U. S. 472, 26 L. ed. 197.

18 Thompson v. Allen County, 115 U. S. 550, 29 L. ed. 472, Safe Deposit & T. Co. v. City of Anniston, 96 Fed. 661, 663.

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