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Equity is governed by settled rules and principles. Courts of equity had their origin in the wants of suitors who failed to obtain a remedy through the aid of common-law courts. And, in many instances, equity gave proper relief when the law courts had no means of affording the desired and needed remedy. In the contest between the courts of law and those of equity, at an early period, it was sometimes said that the latter courts were not governed by settled rules, but acted upon an arbitrary discretionary power. But, waiving that question, it is sufficient to state, that for a long period the powers of these courts, and the rules and principles upon which they proceed, are as well settled as those of the commn-law courts.

The object of a court of equity was to afford relief in those cases in which no legal relief was attainable. But it has also been said that it was the business of a court of equity to abate the rigor of the common law; and, while it may be conceded that, in some cases, the interference of a court of equity has had this effect, yet all the rules of the common law which equity has taken upon itself to overrule have long since been well defined, and many of them have ceased, even at common law, to govern the judgments of the courts. Th educational course, which courts of equity seem to have furnished to courts of law, has been long so far completed, that no new doctrines in equity opposed to the rules or doctrines of courts of law have been established. Nor does equity, even now, profess to criticise or review decisions of courts of law; moreover, it does not, and never did, interfere to mitigate the severity, where any exists, of rules of positive law. There are, however, some of the early cases in which equity has very nearly, if it has not absolutely, overridden positive law; and those cases relating to the statute of frauds serve as well as any to show how far the power has been exercised.

There are certain principles, on which courts of equity act, which are very well settled. The cases which occur are various, but they are decided on fixed principles. Courts of equity have, in this respect, no more discretionary power than courts of law. They decide new cases as they arise by the principles on which former cases have been decided, and may thus illustrate or enlarge the operation of those principles ; but the principles are as fixed and certain as the principles on which the courts of common law proceed. Bond v. Hopkins, 1 Sch. & Lefr. 428, 429.

This application of existing principles to new cases as they arise is not peculiar to courts of equity; for the common-law courts are daily engaged in adding to the principles of the old jurisprudence, and in enlarging, illustrating and applying legal maxims and rules.

Equity devises new remédies. The numerous cases in which equity interfered and granted relief where none was given before has given rise to the opinion that courts of equity devise new remedies. When it is said that equity grants relief, while at law the complaining party was remediless, it might seem like a new remedy; and yet, it will be remembered that such relief was in accordance with well-settled principles of equity. But, even if it were assumed that courts of equity did, at an early day, exercise the power mentioned, it must be remembered that this court is, now as much controlled by general laws as any other court. And while it is proper that all courts should freely exercise their powers for the advancement of justice, it is the part of wisdom and of safety for all courts to keep clearly within the limits of their jurisdiction; and, if additional powers are required, to leave that matter with the legislature.

Mode of relief differs more than principles of laro. The law speaks but one language, for all courts, in reference to the legal rights of the parties involved in a litigation. But, in matters of mere practice, there is a wide difference between courts of equity and those of aw, and, in many instances, it is the sole difference to be considered by the party seeking to have his rights determined by a court.

The matter of the last two notes was mainly taken from the first volume of Wait's Practice.

VOL. II.-8





In the course of tracing the history of the Court of Chancery as a court with equitable jurisdiction, it has been inevitable that we should occasionally refer to some of the principles of equity which govern its decisions. The subject is, however, worthy of some further notice. But since equitable jurisprudence, as now established, is of so vast and yet refined a character that it would be wholly impossible, within the limits of this work, even to trace to its source each leading principle, much less follow the course of decisions in all the various ramifications into which those principles spread, we must be content, abandoning the historical method, with an endeavour to exhibit a general outline of the present jurisdiction of the court, and the nature of the relief granted, and we shall afterwards give a short account of the mode in which, by suit and other proceeding, that jurisdiction is exercised.

Although the nature of equitable jurisprudence is now defined by rule and precedent with very considerable exactness (a), so that cases do not frequently Equitable juris

occur in which there is any serious dispute whether or not this prudence is def- court ought to assume jurisdiction in exclusion of that of comeasily defined mon law courts, yet it is by no means easy

or rather we may with brevity and accuracy. say it is impossible — to give any general description or definiAttempted defi


tion which shall at once be brief, intelligible, * and

even approximately accurate. Such an attempt has often been made, never with a satisfactory amount of success.

Thus it has been said (6) that it is the business of a court of equity in England to abate the rigour of the common law; and, undoubtedly,

there have been cases where equitable interference has had this Equity abates the rigour of effect; but all the rules of common law which equity has so taken

upon itself to overrule have long since been well defined, and many of them have ceased, even at common law, to govern the judgments of the court (c). In illustration of this, and as an instance of a change in rules of law, due to the establishment of equitable doctrines, we may mention what has taken place as to penal bonds. Bonds appear to have originally been invented to evade the absurd law prohibiting the taking of interest for money lent. If a debtor failed to repay the principal money and interest, since judg

ment could not be given for interest, the penalty might, with Equitable doctrine of penal- some show of justice, be demanded specifically. And courts of ties adopted

law held this. Unfortunately, they continued to act upon this

view after the payment of interest became legal; and even after the statute 37 Hen. 8, c. 9, had declared the debt to be the “just and true


the law,

by courts of law.

(a) See Bond v. Hopkins, 1 Sch. & Lef. 428. no action could be maintained, or a claim (b) Lord Kames' Princ. of Equity, 44. founded, upon a deed detained in the hands

(c) In addition to the case mentioned in a of another, and that if a deed of grant were former note and in the text we may add lost, the thing granted was lost with it; that those ancient and now obsolete rules referred a man was liable to pay money due by deed to by Lord Campbell, as instances of "ab. twice over, if on payment he omitted to take surdities of common law judges,” viz., that an acquittance under seal.

intent" of the parties to the contract, they refused to consider the payment of principal, interest, and costs, as a full satisfaction of the bond. Now, it is clear that the object of parties in an ordinary case of a bond is not to provide the penalty as a compensation for default, but to secure that default should not be made. If, * therefore, after default in the strict performance

[ *55] of the duty contracted for, and in respect of which the penalty is imposed, the defaulter can substantially place the other party in as good a position as if no default had occurred, which may often happen, it is unfair and harsh to enforce the penalty. Accordingly, equity interfered in aid of the obligor (d). Similar remarks apply to the forfeiture of mortgaged lands, because the only object of a mortgage is a security for the repayment of money with interest, and therefore a forfeiture of the lands ought not actually to take place until it is proved, in the most definite manner, that the money cannot be repaid. These equitable principles, after long being acted upon in the Court of Chancery, were, like several others (e), at last forced upon courts of law by the legislature (f).

The educational course which thus, it seems, courts of equity have furnished to courts of law has been long so far completed that no new doctrines in equity opposed to the rules or doctrines of courts of law have been established. Nor does equity even now profess to criticise or review decisions of

courts of law; moreover, it does not, and never did, interfere to Equity in general follows rules of mitigate the severity, when any exists, of rules of positive law. positive law.

For instance, it never was the business of the court of equity to relax the law which formerly existed in this country that lands descended to the heir free from any liability to the simple contract creditors of the ancestor; or the rule that a father or other ancestor should never succeed to the lands of his son; or, again, the rule by which a half-brother was postponed in the inheritance of land to a remote relation of the whole blood. These rules were unquestionably unjust, and have been abrogated by the * legislature; but until the interference of that authority they were

[ *56] the law of the land, and, as such, observed as well by courts of equity as other courts, hoc quidem per quam durum est, sed ita lex scripta est(g).

The law of primogeniture, as it obtains in this country, is not looked upon with favour in other countries, and in the opinion of many is not well founded in justice, yet no one would think for a moment of urging any argument as to its injustice in a court of equity. In such cases equity not only does not pre

tend to override law, but expressly and professedly follows the It, in some in

law. Nevertheless, even this must not be stated entirely without regarded posi- qualification. There have been a few cases where, if equity has tive law.

not absolutely put an end to positive law, it has shot not much short of that mark. The most remarkable of these is the manner in which courts of equity have dealt with the Statute of Frauds. This was an enactment of the greatest benefit to society, yet it left a wide door open to the very vice of fraud which it was intended to exclude, an instance of the extreme

stances, has almost dis

(d) Portia need not, in a court of equity, (e) Another instance is the doctrine of set. have quibbled to save Antonio from Shylock's off, as to which see ante, p. 13. knife. The argument would, however, have (5) 4 Anne, c. 16; 7 Geo. 2, c. 20. been there scarcely so dramatic as Shake- (9) Ulpian, ff. 40, 9, 12. speare has given it.

difficulty attending all human arrangements. This door equity has boldly shut by disregarding the statute. The statute says that no action or suit shall

be maintained on any agreement relating to lands, or of certain Relief against

specified kinds, unless it is in writing signed by the party to be

charged by it. Yet it is in every day's practice to relieve in such a case, if the party seeking relief has by part performance of the contract, or in some other manner, been put into a situation which renders it against conscience for the other to insist upon the want of writing as a bar (h). (448)

Statute of

(h) The earliest case of the kind is Fox- a man to a woman whom he was about to croft v. Lyster, 2 Vern. 456; Coll. Parl. Ca. marry, that he would, leave her, by will, her 108. Subsequent books of reports abound own property; the marriage took place, but in cases of this kind. A very curious case, the promise was not fulfilled. It was held involving much discussion on the question by Lord Cranworth, whose judgment was as to the extent to which equity would go, afterwards assented to by the House of Lords, occurred recently. It was sought to extend that the widow could obtain no relief. Caton the relief to the case of a verbal promise by v. Caton, L. R. 1 Ch. 137; 2 H. L. 127.

(448) In this country the question how far courts of equity will enforce oral or parol agreements for the sale of lands has been frequently presented for adjudication. And the specific performance of such contracts has generally been decreed, if the facts of the case were such as to warrant the decision. The determinations of the courts, however, are not founded upon the fact that an oral agreement for the sale of land can be enforced as a valid contract, but upon some ground of fraud in the particular transaction in question.

There is one general rule which seems to be generally recognized and enforced by the courts of this country; and that is, when there has been an oral agreement for the sale of lands, and the purchaser has gone into possession of the lands in pursuance of the agreement, and has made such improvements, or done such other acts in relation to the lands that it would operate as a fraud upon him if the contract of sale were not carried into effect, a court of equity will decree a specific performance of the contract by the vendor, to prevent the perpetration of a fraud upon the purchaser.

It is such cases as will operate as a fraud upon the purchaser if the contract is not carried into effect that the courts enforce by specific performance. Taking possession of lands by a vendee, under a parol agreement, and in compliance with its terms, accompanied by other acts which cannot be recalled so as to place the vendee in the same situation he was in before taking the possession, will be sufficient to require a specific performance of the contract by the vendor. Loury v. Tero, 3 Barb. Ch. 407, 413; Dickerson v. Chrisman, 28 Mo. 134; Keutts v. Rector, 1 Ark. (1 Pike) 391, 418, 419; Eaton v. Whitaker, 18 Conn. 222, 229; Trlton v. Tilton, 9 N. H. 385, 391; Malins v. Brown, 4 N. Y. (4 Comst.) 403, 407; Hursha v. Reid, 45 N. Y. (6 Hand) 415, 419; Edwards v. Fry, 9 Kans. 417; Clayton v. Frazier, 33 Texas, 91.

But nothing will be considered a sufficient part performance to take the case out by the statute, unless the acts done by the vendee put him into a situation which will be a fraud upon him in case the agreement is not fully performed. Ib. ; Peckham v. Barker, 8 R. I. 17, 22, 23; Cuppy v. Hixon, 29 Ind. 522 ; Glass v. Hulbert, 102 Mass. 24, 28, 44; 3 Am. Rep. 418; Gilbert v. Trustees of East Newark Co., 12 N. J. Eq. (1 Beasl.) 180 ; Meach v. Stone, 1 D. Chip. 182. The rules upon this subject are admirably stated by BULLOCK, J., in Peck

Barker, 8 R. I. 22, 23, “ Courts of equity may enforce the specific performance of parol contracts, notwithstanding the statute of frauds, when followed by part performance, and, although the exercise of the power in each case rests not in the arbitrary, but in the sound judicial discretion of the court, regulating their action by the settled rules of equity, they do not hesitate to exercise it, and grant reliefs, when the contract can be specifically enforced, and when the injured party, in the faith of the contract, has gone into possession, and especially if he has made improvements, so that no damages to be recovered at law for a breach of the contract, would afford adequate redress. But the contract set up must be fair and equal, as distinguished from a hard and unconscionable bargain, entered into by both parties deliberately and intelligently, free from fraud or misapprehension; otherwise, it might be more inequitable to enforce it than to leave parties to their remedies at law. And, if the contract rests in parol, all its substantial conditions of parties, subject-matter,

ham v.

Again, the *means which courts of equity have sanctioned, of charg

[*57] ing lands by a simple deposit of deeds relating to them, is as near to a repeal of the statute as can well be imagined (i). (449) Another instance where equity has made some not inconsiderable inroad upon a rule of positive law occurs in reference to the Registration Acts (k). These statutes require Registration that all incumbrances upon lands in the counties to which

they relate shall, in order to be supported as against subsequent dealings, be registered. Equity has, however, modified this rule, to the extent of determining that where the person dealing subsequently has notice


() Lord Eldon appears to have thought (k) For Middlesex, 7 Anne, c. 20; for the this, and often commented on Russell y. West Riding of Yorkshire, 2 & 3 Anne, c. 4; Russell, 1 Bro. C. C. 269, the earliest case in 5 Anne, c. 18 ; and for the East Riding and which it was allowed. See Ex parte Coming, Kingston-upon-Hull, 6 Anne, c. 35; and for 9 Ves. 115.

the North Riding, 8 Geo. 2, c. 6.

consideration, time, and part performance, should be established as alleged; and with so much of certainty as to leave no doubt, not only what the terms of the contract are, but that the acts of performance relied upon, whether the entering into possession, the payment of money, or the making of improvements, or all of them, were really done on the faith of the contract, and in pursuance, and only in pursuance, thereof.” A reference to some of the authorities sustaining these views will be given.

That the acts done must have been done solely with reference to the performance of the contract, and not for other views or purposes. See Peckham v. Barker, 8 R. I. 17, 22 ; Wood v. Thornly, 58 I1]. 464; Lester v. Kinne, 37 Conn. 9; Knoll v. Harvey, 19 Wis. 99 ; Billingslea v. Ward, 33 Md. 48; Jacobs v. Peterborough & Shirley R. R., 8 Cush. 224 ; Shepherd v. Shepherd, 1 Md. Ch. Dec. 244.

A wrongful entry into possession of the land, as a trespasser, or otherwise, and not in pursuance of the contract, or under it, will not be sufficient to take the case out of the statute. Purcell v. Miner, 4 Wall. 513, 518.

The court will require proof that the acts were done in reference to the contract, that they were clear and definite ; and, also, that the contract shall be established by sufficient evidence, and in relation to all material terms of it; for, if such terms are uncertain, or ambiguous, or are not sufficiently established, a specific performance will not be decreed. Shropshire v. Broon, 45 Ga. 175; Wood v. Thornley, 58 Ill. 464; McClintock v. Laing, 22 Mich. 212; Nichols v. Williams, 22 N. J. Eq. 63; Tierman v. Gibney, 24 Wis. 190; Charnley v. Hansbury, 13 Penn. St. 16, 21 ; Lester v. Kinne, 37 Conn. 9; Waters v. Howard, 8 Gill. (Md.) 277; McNeill v. Jones, 21 Ark. 277; Johnson v. Johnson, 16 Minn. 512; Chambers v. Lidermore, 15 Mich. 381 ; Pendleton v. Dalton, Phill. Eq. (N. C.) 119.

A specific performance will not be decreed when nothing more is to be effected than the mere payment of money; it must appear that an award of damages would fail to compenbate the plaintiff. Richmond v. Dubuque, etc., R. R. Co., 33 Iowa, 422; Marble Co. v. Ripley, 10 Wall. 339.

(449) In some of the States of the Union a deposit of title deeds as a security for a loan of money, or for an antecedent debt, is regarded as an equitable mortgage, which may be enforced by a court of equity. Holm v. Wust, 11 Abb. N. S. 113; Rockwell v. Hobby, 2 Sandf, Ch. 9; Williams v. Stratton, 10 Smedes & Marsh. 418; Welsh v. Usher, 2 Hill's Eq. (S. C.) 169, 170; Jarvis v. Dutcher, 16 Wis. 307, 315, 316; Griffin v. Griffin, 18 N. J. Eq. 104; Gothard v. Flynn, 25 Miss. 58; Chase v. Peck, 21 N. Y.(7 Smith) 581, 581; Mounce v. Byars, 16 Ga. 469 ; Hackett v. Reynolds, 4 R. I. 512.

While in other States such deposits are not held valid as mortgages. Meador v. Meador, 3 Heisk. (Tenn.) 562; Probasco v. Johnson, 2 Disney (Ohio), 96; Vanmeter v. McFaddin, 8 B. Monr. 435; Shitz v. Dieffenbach, 3 Penn. St. 233 ; see also Bicknell v. Bicknell, 31 Vt. 498, where the question was noticed, but not decided.

'The proof of the deposit as a security ought to be clear and satisfactory. Bowers v. Johnson, 49 N. Y. (4 Sick.) 432, 434.

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