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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,

6 So. 924; Phinizy v. Guernsey, 111 Ga. 346, 36 S. E. 796, 50 L. R. A. 680; Moore v. Gariglietti, 228 Ill. 143, 81 N. E. 826; Kuhn v. Eppstein, 219 III. 154, 76 N. E. 145, 2 L. R. A. (N. S.) 884; Wilson v. Brumfield, 8 Blackf. 146; Townsend v. Blanchard, 117 Iowa, 36, 90 N. W. 519; Pingree v. Coffin, 12 Gray, 288, 316; Covell v. Cole, 16 Mich. 223; Wilkinson v. Kneeland, 125 Mich. 261, 84 N. W. 142; Melin v. Woolley, 103 Minn. 498, 115 N. W. 654, 946, 22 L. R. A. (N. S.) 595; Chambliss v. Person, 77 Miss. 806, 28 So. 21; Luckett v. Williamson, 31 Mo. 54; Lanyon v. Chesney, 186 Mo. 540, 85 S. W. 568; Borden v. Curtis, 48 N. J. Eq. 120, 21 Atl. 472; Keator v. Brown, 57 N. J. Eq. 600, 42 Atl. 278; Campbell v. Hough, 73 N. J. Eq. 601, 68 Atl. 759; Ferrell v. Bork, 76 N. J. Eq. 615, 79 Atl.. 897; Jersey City v. Flynn, 74 N. J. Eq. 104, 70 Atl. 497; Waters v. Travis, 9 Johns. 450; Bostwick v. Beach, 103 N. Y. 414, 9 N. E. 41; Palmer v. Gould, 144 N. Y. 671, 39 N. E. 378; Henry v. Liles, 2 Ired. Eq. 407; Tillery v. Land, 136 N. C. 537, 48 S. E. 824; Ketchum v. Stout, 20 Oh. St. 453, 459; Lucas v. Scott, 41 Oh. St. 636, 640; Napier v. Darlington, 70 Pa. 64; Payne v. Melton, 69 S. C. 370, 48 S. E. 277; Harbers v. Gadsden, 6 Rich. Eq. 284, 62 Am. Dec. 390; Moses v. Wallace, 7 Lea, 413; Austin v. Ewell, 25 Tex. 403; Roberts' Heirs v. Lovejoy, 60 Tex. 253; Dunsmore v. Lyle, 87 Va. 391, 393, 12 S. E. 610; Morgan v. Brast, 34 W. Va. 332, 12 S. E. 710; Garrett v. Goff, 61 W. Va. 221, 56 S. E. 351; Lathrop v. Columbia Collieries Co., 70 W. Va. 58, 73 S. E. 299; Docter v. Hellberg, 65 Wis. 415, 27 N. W.

176; Connor v. Potts, [1897] 1 Ir. 534; Stammers v. O'Donahue, 28 Grant Ch. (Up. Can.) 207.

82 Phillips v. Stanch, 20 Mich. 369; Hall v. Loomis, 63 Mich. 709, 30 N. W. 374; Chicago, etc., R. Co. v. Durant, 44 Minn. 361, 46 N. W. 676; Corby v. Drew, 55 N. J. Eq. 387, 36 Atl. 827; Eickwort v. Powers, 17

N. Y. S. 137.

83 In Kuratli v. Jackson, 60 Or. 203, 210, 118 Pac. 192, 1013, 38 L. R. A. (N. S.) 1195, Ann. Cas. 1914 A. 203, the court said: "It is said in Riesz's Appeal, 73 Pa. 485, 491, that the dower right of the widow is of sucha contingent nature, depending as it does upon her surviving her husband, as well as her continuing in life after his death, that no abatement in the price can be made which would be just to both parties, without in effect making a new contract for them; a contract which, perhaps in the first instance, neither party would have agreed to, certainly not the vendor. This is the holding in Aiple-Hemmelmann, etc., Co. v. Spelbrink, 211 Mo. 671, 111 S. W. 480, in which the opinion is exhaustive, and is supported by the authorities which are there collated. [The decision is overruled by Tebeau v. Ridge, 261 Mo. 547, 170 S. W. 871, L. R. A. 1915 C. 367.] The following cases support that view: Reilly v. Smith, 25 N. J. Eq. 158: Riesz's Appeal, 73 Pa. 485; Fortune v. Watkins, 94 N. C. 304, 315; Cowan v. Kane, 211 Ill. 572, 71 N. E. 1097; Sternberger v. McGovern, 56 N. Y. 12, 19; Lucas v. Scott, 41 Oh. St. 641; Graybill v. Brugh, 89 Va. 895, 899, 17 S. E. 558, 21 L. R. A. 133, 37 Am. St. Rep. 894; Barbour v. Hickey, 2 App. D. C. 207,

with compensation in such a case,84 and there seems little reason for making any exception to the general rule merely because the deficiency is extreme; and the purchaser should be and has been allowed to enforce the contract in such a case.85 The only proper ground for refusing a decree with compensation is that no exact equivalent in compensation is possible, and it may be urged with some force that this is true where the defect in question is an inchoate right of dower. It is often objected that where the defect is extreme equity would be enforcing a contract which the parties did not make if it gave specific enforcement of part with compensation for the defect. If this objection were sound it would be fatal to any decree for less than the entire promised performance with compensation for the remainder. Equity has no more right to enforce as a contract something a little different from that which the parties undertook than one which is widely different. But the objection is unsound. The rule of equity requiring complete equitable relief if any is to be given, is merely one of expediency. By the terms of this contract the purchaser is entitled, on paying the contract price for entire performance, to receive such partial performance as the vendor can give, and the purchaser after thus carrying out the bargain would also have a right of action against the vendor for the latter's failure to perform in full. A court of equity in giving relief with compensation is merely disposing in one suit of the two rights of the purchaser. In jurisdictions where damages for breach of contract by a vendor are restricted to a recovery of the purchase money the damage allowed a purchaser who obtained specific performance with compensation, should be a proportional part of

24 L. R. A. 763; Plum v. Mitchell, 16 Ky. L. Rep. 162, 26 S. W. 391.

"Others hold that, if the vendee had knowledge that the vendor was married, specific performance with abatement will not be decreed. Lucas v. Scott, 41 Ohio St. 641; Savings Bank Co. v. Parisette, 68 Ohio St. 450, 67 N. E. 896, 96 Am. St. Rep. 672; Downer v. Church, 44 N. Y. 647; Fortune v. Watkins, 94 N. C. 304, 315." This was the decision in

Kuratli v. Jackson, 60 Oreg. 203, 118
Pac. 192, 1013, 38 L. R. A. (N. S.)
1195, Ann. Cas. 1914 A. 203.
84 See supra, § 1422.

85 Jones v. Evans, 17 L. J. Ch. 469; Oceanic Co. v. Sutherbury, 16 Ch. D. 236, 246; Bass v. Gilliland's Heirs, 5 Ala. 761; Bogan v. Daughdrill, 51 Ala. 312; Napier v. Darlington, 70 Pa. 64.

86 See supra, § 1430.
87 See supra, § 1399.

the purchase price. If the purchaser when he entered into the contract knew of the facts which subsequently prevented the vendor from conveying a perfect title, no compensation is allowed the purchaser who seeks specific performance.&

§ 1437. A contract may be enforced though the plaintiff has not satisfied the Statute of Frauds.

It is the generally established law that a memorandum of a contract within the Statute of Frauds if signed by the party to be charged, though not signed by the other party, makes the contract enforceable against the party who has signed. In some States, it is indeed held that in a contract for the sale of land the vendor must sign the memorandum in order that the contract shall be enforceable against either party, and that when signed by the vendor the memorandum is effectual to charge both parties to the contract." In such jurisdictions no difficulty in regard to mutuality can be suggested. But under the more general rule, either party who signs and only a party who signs can be sued." It is obvious that on this theory where a memorandum is signed by one party only, the contract lacks mutuality of obligation and of remedy as those terms are ordinarily understood yet, in spite of a doubt expressed by Lord Redesdale,92 not only a court of law but a court of equity allows enforcement of such a contract by the party who has not satisfied the statute,93 since the plaintiff by filing his bill submits

Castle v. Wilkinson, L. R. 5 Ch. 534, 39 L. J. Ch. 843; Mundy v. Shellaberger, 161 Fed. 503, 88 C. C. A. 445; Olson v. Lovell, 91 Cal. 506, 27 Pac. 765; Knox v. Spratt, 23 Fla. 64, 6 So. 924; Short v. Kieffer, 43 Ill. App. 515; Planer v. Equitable Life Assur. Soc. (N. J.), 37 Atl. 668; Palmer v. Gould, 144 N. Y. 671, 39 N. E. 378; Farthing v. Rochelle, 131 N. C. 563, 43 S. E. 1; People's Sav. Bank v. Parisette, 68 Ohio St. 450, 67 N. E. 896, 96 Am. St. Rep. 672.

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92 Lawrenson v. Butler, 1 Sct. & Lef. 13. See also dicta of Chancellor Kent and Gibson, C. J., in Clason v. Bailey, 14 Johns. 485; Wilson v. Clarke, 1 Watts & S. 554.

93 Buckhouse v. Crosby, 2 Eq. Ab. 32, pl. 44, 3 Sw. 434 n. (s. c.); Fowle v. Freeman, 9 Ves. 351; Morgan v. Holford, 1 Sm. & G. 101; Martin v.

Pycroft, 2 D. M. & G. 785, 795; Davis v. Robert, 89 Ala. 402, 405, 8 So. 114, 18 Am. St. Rep. 126; Vance v. Newman, 72 Ark. 359, 80 S. W. 574, 105 Am. St. Rep. 42; Hodges v. Kowing, 58 Conn. 12, 18 Atl. 979, 7 L. R. A. 87; Perry v. Paschal, 103 Ga. 134, 137, 29 S. E. 703; Gradle

himself to the jurisdiction of the court and enables it to give a decree compelling him as well as the defendant to perform.

§ 1438. Contracts with infants.

An infant is not allowed to enforce a contract specifically, because it is said the contract lacks mutuality.94 This is often thought to mean merely that since the adult could not have enforced the contract against the infant, the infant is similarly deprived of equitable relief, but the difficulty is not simply that the adult could not have enforced the contract against the infant, but that even though the adult performed the contract, the infant might subsequently exercise his privilege to rescind the transaction. The decree of the court should not be used to deprive him of his privilege; 95 and unless he is deprived of it the adult is subjected to injustice if compelled to perform. This difficulty does not arise where the infant has come of age before seeking to enforce the contract. In such a case specific performance should be granted; 96 and also where the infant has irrevocably performed his side of the contract.97

v. Warner, 140 III. 123, 29 N. E. 1118; Forthman v. Deters, 206 Ill. 159, 69 N. E. 97, 99 Am. St. Rep. 145; Shirley v. Shirley, 7 Blackf. 452; Brown v. Ward, 110 Iowa, 123, 81 N. W. 247; Getchell v. Jewett, 4 Me. 350; Rogers v. Saunders, 16 Me. 92, 33 Am. Dec. 635; Slater v. Smith, 117 Mass. 96; Record v. Littlefield, 218 Mass. 483, 106 N. E. 142; Peevey v. Haughton, 72 Miss. 918, 17 So. 378, 18 So. 357, 48 Am. St. Rep. 592, Smith v. Wilson, 160 Mo. 657, 61 S. W. 597; Aiple-Hemmelmann Real Estate Co. v. Spelbrink, 211 Mo. 671, 111 S. W. 480; Krah v. Wassmer, 75 N. J. Eq. 109, 71 Atl. 404; Miller v. Cameron, 45 N. J. Eq. 95, 15 Atl. 842; Jasper v. Wilson, 14 N. Mex. 482, 94 Pac. 951, 23 L. R. A. (N. S.) 982; Flegel v. Dowling, 54 Ore. 40, 102 Pac. 178, 135 Am. St. 812; Ives v. Hazard, 4 R. I. 14, 67 Am. Dec. 500; LeVine v. Whitehouse, 37 Utah, 260, 109 Pac. 2; Ann. Cas. 1912 C.

407; Central Land Co. v. Johnson, 95 Va. 223, 28 S. E. 175; Creigh's v. Adm'r v. Boggs, 19 W. Va. 240; Armstrong v. Maryland Coal Co., 67 W. Va. 589, 69 S. E. 195.

94 Flight v. Bolland, 4 Russ. 298; Solt v. Anderson, 63 Neb. 734, 89 N. W. 306. See also Ten Eyck v. Manning, 52 N. J. Eq. 47, 27 Atl. 900. So where by statute written authority is required to enable a husband to bind his wife by a contract made by him with a third person as her agent, and no such authority was given, the contract will not be enforced against the third person. Wood v. Lett, 196 Ala. 601, 71 So. 177.

95 Ames's Lectures on Legal History, 372.

96 Ibid., page 374; Clayton v. Ashdown, 9 Vin. Abr. 393.

97 Asberry v. Mitchell, 121 Va. 276, 93 S. E. 638.

§ 1439. Unilateral contracts, and partly performed bilateral

contracts.

It is obvious that there is neither mutuality of obligation nor of remedy in a unilateral contract, and in a bilateral contract after performance by one party there necessarily ceases to be any such mutuality. Nevertheless unilateral contracts may be specifically enforced.98 The supposed rule of mutuality as stated by Fry requires that the contract at its inception should be capable of specific enforcement on both sides. If so a promise to convey land or do any other act of a nature which equity specifically enforces could not be enforced if the consideration was a counter promise to render services or to do any other acts of a nature which equity does not attempt to enforce, even though the counter-performance had been rendered. There is no propriety in such a rule, and no good reason can be given to support it, or to distinguish the case from a contract, unilateral at the outset, to convey land; and in fact the cases are not distinguished. The promise for which specific performance is appropriate is enforced if the counter-promise or so much of it as is incapable of specific enforcement has been performed." The case upon which Fry bases his statement to the contrary 1 from which subsequent mistaken statements have followed was a decision concerning an illegal contract, and the court rightly held that the fact that the illegal portion of the contract had been performed would not induce it to en

*Palmer v. Scott, 1 Russ. & M. 391; Wilks v. Georgia Pacific R. Co., 79 Ala. 180; Davis v. Williams, 121 Ala. 542, 25 So. 704; Spires v. Urbahn, 124 Cal. 110, 56 Pac. 794; Frue v. Houghton, 6 Colo. 318; Perkins v. Hadsell, 50 Ill. 216; Western R. Corporation v. Babcock, 6 Met. 346; Welch v. Whelpley, 62 Mich. 15, 28 N. W. 744, 4 Am. St. Rep. 810; Boyd v. Brown, 47 W. Va. 238, 34 S. E. 907.

*Wilkinson v. Clements, L. R. 8 Ch. 96; Lane v. May &c. Co., 121 Ala. 296, 25 So. 809; Thurber v. Meves, 119 Cal. 35, 50 Pac. 1063, 51 Pac. 536; Lindsay v. Warnock,

93 Ga. 619, 21 S. E. 127; Denlar v. Hill, 123 Ind. 68, 24 N. E. 170; Minneapolis &c. R. v. Cox, 76 Ia. 306, 41 N. W. 24, 14 Am. St. 216; Topeka &c. Co. v. Root, 56 Kan. 187, 42 Pac. 715; Dickson v. Stewart, 71 Neb. 424, 98 N. W. 1085, 115 Am. St. Rep. 596; Safford v. Barber, 74 N. J. Eq. 352, 70 Atl. 371; Asberry v. Mitchell, 121 Va. 276, 93 S. E. 638. Cf. Norris v. Fox, 45 Fed. 406; Pantages v. Grauman, 191 Fed. 317, 323, 112 C. C. A. 61; Wadick v. Mace, 191 N. Y. 1, 83 N. E.'571.

1 Fry, Spec. Perf., § 463, citing Hope v. Hope, 8 De G. M. & G. 731, 746.

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