at the rate of six per centum per annum until paid, shall be given to the party of the second part in payment of the balance due, which said note is secured by the assignment heretofore made of a life insurance policy for $25,000, No. 142,309, in the Connecticut Mutual Life Insurance Company, of Hartford, Connecticut, on the life of said Dr. William A. Hammond; and if said note shall not be paid at maturity, the party of the second part may elect and request in writing within ten days after such default that the said note shall be secured by deed of trust on all the real estate then belonging to said party of the first part within the District of Columbia; and the said party of the first part hereby agrees and covenants to execute said deed of trust. In witness whereof, the parties have hereunto set their hands and seals this fifth day of January, 1894."

The defendant executed and delivered to the complainants the promissory note provided to be given, for $3,171.69. It was not paid at maturity, and there were two extensions of it at the request of the defendant, the last of them expiring on June 30, 1894, with the agreement that the conditions and provisions of the contract of January 5, 1894, should remain in force. It still remained unpaid, both principal and interest, at the end of the last extension, and is yet unpaid.

On July 10, 1894, within the ten days specified in the agreement of January 5, 1894, the complainants elected and requested in writing that the defendant should execute the deed of trust which he had covenanted to execute upon default; but this it is alleged that he has neglected to do. It is also alleged that at the time of the default there was a large amount of real estate in the District of Columbia then belonging to the said defendant, but that the complainants were not able to describe the same.

The complainants claim, in virtue of their agreement, that has been set forth, to have an equitable lien upon the defendant's property therein mentioned, or in the alternative, that the agreement should be specifically performed; and the

prayer of the bill is to that effect, and for a discovery by the defendant of the property then belonging to him, and for an injunction against his conveyance or incumbrance of it.

To this bill of complaint the defendant interposed a demurrer, on the ground that the agreement sought to be enforced was wanting in mutuality, and was too vague and uncertain to be enforced by a court of equity. And the court below sustained the demurrer and dismissed the bill. From the decree of dismissal the complainants have appealed. Mr. James Lowndes and Mr. Walter D. Davidge, Jr., for the appellants:

1. The agreement of the defendant created an equitable lien or charge upon his real estate, and by virtue of it the complainants have the right in equity to have it applied in satisfaction of defendant's note. An agreement to give a mortgage creates an equitable lien or charge. Pomeroy Eq. Jur. Sec. 1235, 1237; Countess of Mornington v. Keane, 2 DeG. & J. 292; Jones on Mortgages, Sec. 163; In re Howe, 1 Paige, 130; Bank v. Carpenter, 7 Ohio, 69; Lake v. Dodd, 10 Ohio, 425; Burgess v. Bank, 3 McLane, 140; Railroad v. Talmon, 15 Ala. 472; Bloom v. Noggle, 4 Ohio, 45; Abbott v. Godfrey, 1 Mich. 179; Ogden v. Ogden, 4 Ohio N. S. 182; Triebert v. Burgess, 11 Md. 464; Eng. Company v. Brunton, 2 Q. B. 1893; Johnson v. Dexter, 2 MacA. 530; Nelson v. Bank, 27 Md. 51; Biebinger v. Bank, 99 U. S. 143.

2. The complainants are entitled to have the said contract of the defendant specifically enforced. It is true that the contract does not set forth any of the usual details of a deed of trust, but “certum est quod certum reddi potest." This contract contains within itself all of the essential elements of a deed of trust, so that there can be no uncertainty as to the purpose of the parties.

It was argued that the contract is uncertain, because the trustees are not named in the deed of trust, but that uncertainty is cured by the rule of equity that no trust shall fail

for want of a trustee.

Perry on Trusts, 4th Ed., Vol. 1, Sec. 38. But if there is uncertainty in the contract the uncertainty can be cured by legal presumption and the contract thus construed be enforced specifically. Waterman on Spec. Perf., Sec. 150; Fry on Spec. Perf., Secs. 349–351.

Where there is uncertainty as to time the contract will be considered to contemplate a reasonable time. Triebert v. Burgess, 11 Md. 452.

Mr. Samuel Maddox for the appellee:

1. In order for a court of equity to decree specific performance of an agreement, it must be fair, just and reasonable, certain in all its parts, mutual, etc. Stoddart v. Bowie, 5 Md. 95; Preston v. Preston, 95 U. S. 202. The agreement sought to be enforced in this case is neither fair, just nor reasonable. But the element most lacking in it is that of certainty. Instead of being certain in all its parts, it is certain in none, so far at least as concerns that feature of it providing for the execution of a deed of trust. The appellants are asking the court to direct the execution of a deed of trust on all of the appellee's real estate to secure a past due obligation. To do this the court must complete the contract in the following particulars: Trustees must be named, time of sale fixed; if more than one piece of real estate, the order of sale; what previous advertisement shall be given; the terms of sale; commissions of trustees-in other words, to make a contract for the parties where they made none, and then enforce the contract so made. This is never done. Hunt v. Administrators, 1 Pet. 14.

2. It was manifestly not the intention of the parties that real estate security should be given in addition to the life insurance policy for $25,000, but as a substitute therefor. There is no averment in the bill that the insurance policy has been returned, or that any offer to do so has ever been made.

3. To permit the appellants to retain the insurance policy,

under the circumstances of this case, and have a deed of trust besides on all of appellee's real estate in the District of Columbia would be unjust, inequitable and unconscionable. There is no showing made that this policy is any less valuable now than it was in January, 1891, when it was deemed sufficient security for a debt of $16,000, since reduced by payments to about $3,200. And where there is anything by reason of a change of circumstances in regard to the property, that makes it unconscionable to decree execution of the contract, a court of equity will withhold its aid. Iglehart v. Vail, 73 Ill. 63; Daniel v. Fraser, 40 Miss. 515; Gould v. Womack, 2 Ala. 83; King v. Hamilton, 4 Pet. 328.

Mr. Justice MORRIS delivered the opinion of the Court:

The objection to the bill of complaint, because it fails to set forth any property of the appellee that could be affected by the claim of the appellants, is not entirely without foundation. The bill in this regard is rather loosely drawn. Under ordinary circumstances, the land records of the District of Columbia would show what real estate in the District the appellee held in his own name, or would lay the foundation for the ascertainment of such equitable interests as he held. But the appellants do not show that they had any recourse to those records, or that they made any attempt to ascertain what real estate the appellee possessed. Yet some of it was rather notorious. They allege, upon information and belief, that there was a large amount of real estate belonging to the appellee at the time of the maturity of their claim, but that they are not able to describe it. They show no reason for their inability to describe the property; and such inability might very well be the result of other causes than the want of knowledge of it. This looseness of allegation is rather unjustifiable; and yet it cannot be regarded as sufficient to defeat the right of the appellants to a discovery from the appellee of the real estate which he did actually hold; for that was a matter which was peculiarly, although

perhaps not exclusively, within his knowledge. He had covenanted to give a deed of trust on all the real estate that should belong to him at the time of the maturity of the note. It was his duty to tender that deed when the demand for it was made by the appellants; and it followed, of course, that he should have disclosed in that deed and described in it the real estate that then belonged to him. implication part of his contract.

Discovery was by

Again: There is no allegation in the bill that the appellee had refused to execute the proposed deed of trust, but only that he had neglected to execute it. Neglect may amoun to refusal, and often does, but not necessarily. It would seem to be reasonable that a person should not be called upon to respond to a suit in equity until there is positive violation of duty on his part, or positive refusal to execute a trust which it is incumbent upon him to execute. But no point is made in this regard by the appellee; and we do not regard it as of sufficient importance to defeat the claim of the appellants. We must observe, however, that the repeate demurrers interposed by the appellees should have induced the appellants to remove the palpable defects which those demurrers must necessarily have pointed out to them.

The important and substantial question in this case is, whether the appellants are entitled to an equitable lien upon the real estate of the appellee, under the agreement between them which has been set forth?

Undoubtedly, that agreement is very inartificially and even ungrammatically drawn; and under the somewhat rigid rules that are usually applied in ordinary cases for specific performance in equity, the conclusion reached by the court. below in this case is not without justification. There might well be difficulty in decreeing the execution by the appellee of a deed of trust when no trustees had been agreed upon between the parties and none of the terms and conditions of the trust had been formulated by them in their contract. And yet it must be remembered that equity will not per