at the time it was entered into, have been enforced by either of the parties against the other of them. 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 generally 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."" Understanding the word "enforced" in this passage to mean specifically enforced, the reader will see that as thus stated, the rule not only requires the existence of a valid contract but "mutuality" of remedy. 58 Of the attempts to apply the rule it has been said:

"The rule as to mutuality of remedy is obscure in principle and in extent, artificial, and difficult to understand and to remember." 59 It is impossible to attempt here to collect and differentiate all the decisions which have dealt with the matter.60 As the rule, if taken literally, is in conflict with numerous decisions, and its broader statements are falling into some discredit,61 this is the less essential. In the discussion of the cases

Fry, Specific Performance (5th ed.), § 460.

See to the same effect, Pomeroy, Specific Performance, § 165.

"Professor Langdell in 1 Harv. L. Rev. 104. It is criticised with equal severity by Pomeroy, Eq. Jur, $769; Spec. Perf., § 169.

They are collected and discussed by Professor William Draper Lewis in 49 Amer. L. Rev. 270, 382, 445, 507, 559, 50 Amer. L. Reg. 65, 251, 329, 523. Recent decisions stating the requirement in various terms, but on their facts generally reducible to the principle stated, infra, § 1440, are: Taussig v. Corbin, 142 Fed. 660, 73 C. C. A. 656; Shubert . Woodward, 167 Fed. 47, 92 C. C. A. 509; Pantages v. Grauman, 191 Fed. 317, 112 C. C. A. 61; Black Diamond Coal Min. Co. v. Jones Coal Co., (Ala. 1917), 76 So. 42; Pacific, etc., R. . Campbell-Johnston, 153 Cal. 106, 94 Pac. 623; Welty v. Jacobs, 171

Ill. 624, 49 N. E. 723, 40 L. R. A. 98; Oswald v. Nehls, 233 Ill. 438, 84 N. E. 619; Bartholomæ, etc., Co. v. Modzelewski, 269 Ill. 539, 109 N. E. 1058; Parker v. Sargent, 201 II. App. 574; Kansas Const. Co. v. Topeka, etc., R., 135 Mass. 34, 46 Am. Rep. 439; Carney v. Pendleton, 139 N. Y. App. D. 152, 123 N. Y. S. 738; Stokes v. Stokes, 148 N. Y. 708, 43 N. E. 211; Wadick v. Mace, 191 N. Y. 1, 83 N. E. 571; Levin v. Dietz, 194 N. Y. 376, 87 N. E. 454, 20 L. R. A. (N. S.) 251; Asberry v. Mitchell, 121 Va. 276, 93 S. E. 638; Hoster's Committee v. Zollman, 122 Va. 41, 94 S. E. 164.

61 In Javierre v. Central Altagracia, 217 U. S. 502, 508, 54 L. Ed. 859, 30 Sup. Ct. 598. Holmes, J., said: "There is too a want of mutuality in the remedy, whatever that objection may amount to." In Lamprey v. St. Paul, etc., R., 89 Minn. 187, 192, 94 N. W. 555, Start, C. J.,

mutuality of obligation as well as of remedy is often brought up; but the requirement of mutuality of obligation is simply the requirement of a valid contract, an obvious necessity, but better expressed in other language."

62

§ 1434. Ames's criticisms of the rule as generally stated.

In an illuminating article on the subject,63 Ames objects to the rule as generally stated for the reason that "the truth of the following eight propositions, each one of which is at variance with the statement just quoted,64 will be generally admitted:

(1) A bilateral contract between a fiduciary and his principal is often enforced in favor of the principal, although not enforceable against him.65

(2) A similar contract procured by the fraud or misrepresentation of one of the parties may be enforced against him, although not by him.66

(3) In England, one who, after making a voluntary settlement, has entered into a contract to sell the settled property, may be compelled to convey, although he cannot force the buyer to accept a conveyance.

66

67

(4) A vendor, whose inability to make a perfect title debars him from obtaining a decree against the buyer, may in many cases be forced by the buyer to convey with compensation.68

(5) Notwithstanding the opinions of Lord Redesdale and Chancellor Kent to the contrary, a party to a bilateral con

said: "The doctrine of this court is that if a contract for the conveyance of real estate is supported by a valid consideration, and there is no other good reason why it should not be specifically enforced except the want of mutuality of remedy, it will be so enforced." In Jones Tankerville [1909] 2 Ch. 440, Parker, J., did not regard lack of mutuality as fatal to the plaintiff's right. See also Great Northern R. v. Sheyenne Tel. Co., 27 N. Dak. 256, 263, 145 N. W. 1062, 19 Law

V.

tract, who has signed a memorandum of it, may be compelled to perform it specifically, although he could not maintain a bill against the other party who had not signed such a memorandum.69

"(6) A contract between an infant and an adult may be enforced against the adult after the infant comes of age, although no decree could be made against the plaintiff.70

"(7) A plaintiff who has performed his part of the contract, although he could not have been compelled in equity to do so, may enforce specific performance by the defendant.71

(8) One who has contracted to sell land not owned by him, and who, therefore, could not be cast in a decree, may, in many cases, by acquiring title before the time fixed for conveyance, compel the execution of the contract by the buyer." 72 These propositions may be more particularly examined.

§ 1435. Contracts voidable for fraud or defective title.

Where one party to a contract has been guilty of fraud, he cannot enforce the contract either at law or in equity unless it has been ratified after discovery of the facts by the other party.73 Such a contract, therefore, is one which neither at the outset nor subsequently is enforceable by both parties. There is neither mutuality of obligation 74 nor mutuality of remedy in the sense in which those phrases are frequently and perhaps naturally understood, yet it cannot be doubted that the defrauded party may maintain a bill for the specific performance of a contract otherwise appropriate for equitable relief. Similarly where the defendant has been guilty of constructive fraud as where a trustee has contracted to buy property belonging to the trust 75 the transaction cannot be enforced by him, but against him it shall stand. And though a prior voluntary settlement made by a vendor will preclude him from enforcing a subsequent contract to sell,76 the purchaser may have specific performance." Similarly a contract perhaps void

See infra, § 1437. 70 See infra, § 1438. See infra, § 1439.

72 See infra, § 1435.

"See infra, §§ 1526 et seq.

74 See supra, § 105.

75 Ex parte Lacey, 6 Ves. 625.

78 Smith v. Garland, 2 Meriv. 123. "Rosher v. Williams, L. R. 20

Eq. 210.

able at its inception and for some time thereafter because of the vendor's incomplete title 78 may be specifically enforced by the vendor if he has acted in good faith, and at any time previous to decree is able to complete his title."

§ 1436. A vendor with an incomplete title may be compelled to

convey.

As has been seen, a vendor who is not able to convey a perfect title, or whose ability to perform is deficient in some particular, can, nevertheless, enforce a contract specifically with compensation sufficient to make good the incompleteness of his performance provided the defect is not great, but only subject to this proviso.80 A purchaser, on the other hand, can require defective specific performance with abatement of the price or with compensation, without regard to the extent of the deficiency, unless when he entered into the contract he was aware that the vendor was unable to fulfil the contract.81

78 See supra, § 879.

79 Hoggart v. Scott, 1 Russ. & M. 293; Wylson v. Dunn, 34 Ch. Div. 569; Halkett v. Dudley, [1907] 1 Ch. 590; Hepburn v. Dunlop, 1 Wheat. 179, 4 L. Ed. 65; Day v. Mountain, 137 Fed. 756, 70 C. C. A. 190; Mackey Wall Plaster Co. v. United States Gypsum Co., 244 Fed. 275; Gibson v. Brown, 214 Ill. 330, 73 N. E. 578; Guild v. Atchison, etc., R. Co., 57 Kan. 70, 45 Pac. 82, 33 L. R. A. 77, 57 Am. St. Rep. 312; Logan v. Bull, 78 Ky. 607; Maryland Constr. Co. v. Kuper, 90 Md. 529, 542, 45 Atl. 197; Dresel v. Jordan, 104 Mass. 407; Luckett v. Williamson, 37 Mo. 388, 395; Scannell v. American Soda Fountain Co., 161 Mo. 606, 61 S. W. 889; Johnson v. Higgins, 77 Neb. 35, 108 N. W. 168; Oakey v. Cook, 41 N. J. Eq. 350, 7 Atl. 495; Van Riper v. Wickersham, 77 N. J. Eq. 232, 76 Atl. 1029, 30 L. R. A. (N. S.) 25, Ann. Cas. 1912 A. 319; Jenkins v. Fahey, 73 N. Y. 355; Wilson v. Tappan, 6 Ohio, 172; Armstrong v. Maryland Coal

Co., 67 W. Va. 589, 69 S. E. 195. See also Blanton v. Kentucky &c. Warehouse Co., 120 Fed. 318 s. c. sub nom. 149 Fed. 31, 80 C. C. A. 343; and supra, § 852. A few contrary decisions based on lack of mutuality are not to be supported. Gage v. Cummings, 209 III. 120, 70 N. E. 679 (much qualified by Gibson v. Brown, 214 Ill. 330, 73 N. E. 578); Luse v. Deitz, 46 Ia. 205. See also Norris v. Fox, 45 Fed. 406; Ten Eyck v. Manning, 52 N. J. Eq. 47, 27 Atl. 900.

80 See supra, § 844.

81 Barnes v. Wood, L. R. 8 Eq. 424; Horrocks v. Rigby, 9 Ch. Div. 180; Burrow v. Scammell, 19 Ch. D. 175; Townsend v. Vanderwerker, 160 U. S. 171, 40 L. Ed. 383, 16 Sup. Ct. 258; Dixon v. Anderson, 252 Fed. 694, 164 C. C. A. 534; Bogan v. Daughdrill, 51 Ala. 312; Bonner v. Little, 38 Ark. 397; Swain v. Burnette, 76 Cal. 299, 18 Pac. 394; Cochrane v. Justice Co., 16 Colo. 415, 26 Pac. 780; Knox v. Spratt, 23 Fla. 64, 66,

In a few ases where the defect in title is extreme the purchaser has been denied relief.82 Especially this has been held when the vendor was unable to obtain release of an inchoate right of dower.83 But many jurisdictions allow specific performance,