b. Particular Persons, 414. (8) Creditors, 420. (9) Heirs, Devisees, Personal Representatives, etc., 421. (10) Miscellaneous Cases, 423. 2. Who May Maintain Suit, 424. a. In General, 424. b. Volunteers, 425. c. Third Person for Whose Benefit Contract Was Made. 425. d. Creditors, 426. e. Assignees, 426. f. Personal Representatives, Heirs, and Devisees, 427. g. Grantors, 429. h. Agents, 429. i. Receivers, 429. i. Married Women, 429. k. Infants, 429. 3. Against Whom Suit Maintained, 429. 4. Foinder, 431. a. Of Plaintiffs, 431. (1) In General, 431. (2) Persons with Conflicting Interests, 43 (5) Personal Representatives, Heirs, Widow, etc., VII. BILL, PETITION, OR COMPLAINT, 434. 1. In General, 434 2. Definiteness and Certainty, 435 3. Multifariousness, 436. 4. Particular Averments, 437. a. Name and Description of Parties, 437. c. As to Contract, 439. (1) Execution of Contract, 439. (a) In General, 439. (b) By Agent, 440. (2) Terms of Contract, 440. (3) Varying Terms of Contract, 444. (6) Statute of Frauds, 446. d. As to Limitations and Laches, 449. e. As to Description of Property, 449. f. As to Plaintiff's Title, 450. g. As to Defendant's Title, 451. h. As to Performance or Tender by Plaintiff, 452. i. As to Demand, 456. j. As to Defendant's Ability to Perform, 457. k. As to Nonperformance or Breach by Defendant, 457. 1. Offer to Do Equity, 458. m. Averments to Charge Subsequent Purchaser, 460. n. Averments to Charge Heirs or Devisees, 460. o. Miscellaneous Averments in Special Cases, 460. 5. Exhibits, 460. 6. Prayer for Relief, 461. 7. Verification, 462. 8. Variance, 462. 9. Amendments, 463. 10. Cross-bill or Cross-complaint for Specific Performance, 464. VIII. DEMURRER, 465. IX. PLEA OR ANSWER, 467. 1. Particular Defenses, 467. a. Denial of Contract, 467. c. Statute of Frauds, 467. e. Fraud, 470. f. Rescission, 470. g. Want of Title in Plaintiff, 471. h. Bona Fide Purchase Without Notice, 471. i. Limitation and Laches, 471. j. Homestead, 472. k. Discharge in Bankruptcy, 472. 1. Want of Equity, 472. 2. Immaterial Issues, 472. 3. Plea Accompanied by Answer, 472. 4. Answer as Evidence, 473. 5. Admissions in Answer, 473. X. INTERLOCUTORY PROCEEDINGS, 473 2. Injunctions and Receivers, 475. 3. Motions and Orders, 475. 4. Appointment of Surveyor, 476. 5. Payment of Consideration into Court, 476. XI. HEARING OR TRIAL, 476. 1. By Court or Fury, 476. 2. Instructions, 477 3. Findings, 478. XII. DECREE, 478 1. Nature of Relief Granted, 478. a. In General, 478. b. Damages in Lieu of Specific Performance, 482. (2) Discretion of Court, 484. (3) When Granted or Refused, 485. c. Damages in Addition to Specific Performance, 490. 2. Affirmative Relief to Defendant, 496. a. In General, 496. b. Imposition of Terms on Plaintiff, 500. c. Necessity of Cross-bill, 502. 3. Form and Sufficiency, 504. a. In General, 504. b. Alternative and Conditional Decrees, 506. (2) Prayer for Relief, 511. 4. Rendition and Entry, 514. 5. Decree on Pleadings, 515. 6. Opening, Amending, and Vacating, 515. 7. Performance of Decree, 516. 8. Enforcement of Decree, 517. 9. Dismissal, 520. a. In General, 520. b. Without Prejudice, 520. XIII. NEW TRIAL, 521. XIV. APPELLATE REVIEW, 521. XV. COSTS, 523. XVI. COMMON-LAW REMEDIES IN PENNSYLVANIA, 527. 2. Adaptation and Use of Common-law Remedies, 527. 5. Parties, 533. a. Who May Maintain, 533. b. Against Whom Maintainable, 535. 6. Process, 536. 7. Pleading, 536. 8. Bringing Deed or Purchase Money into Court, 537. 9. Province of Court and Fury, 537. 10. Verdict, 539. 11. Judgment or Decree, 540. a. In General, 540. b. Process to Enforce, 540. I. DEFINITION AND SCOPE OF ARTICLE - Definition. Under certain circumstances equity will compel the performance of a contract in the precise terms agreed upon, or such a substantial performance as will do justice between the parties. A proceeding to compel such a performance is denominated a suit for specific performance.1 Scope of Article. The scope of this article does not include a consideration of what contracts may be specifically enforced or of the defenses to a suit for specific performance. These matters are excluded as being questions of substantive law. This article is strictly limited to a consideration of the pleading and practice in suits where the principal relief sought is a decree compelling the specific performance of a contract. II. NATURE AND SCOPE OF REMEDY 1. Equitable Character Exclusively Equitable. Specific performance is exclusively an equitable remedy,2 of an extraordinary nature,3 though the rights enforced may be legal as well as equitable.4 Courts of law do 1. There are two aspects under which this subject may be viewed, one taking it as a branch of equitable jurisprudence, and the other contemplating the act itself rather than its judicial quality. Thus, adopting the latter view, Bouvier defines it as the actual performance of a contract by the party bound to fulfil it;" and Burrill, "the performance of a contract in the precise form or according to the precise terms agreed upon; strict performance." Waterman qualifies Burrill's definition by including "substantial performance, or such as will do justice between the parties under the circumstances, with compensation to the other party when that is required.' Waterman on Specific Performance, § I. See Willard v. Tayloe, 8 Wall. (U. S.) 557; Comer v. Bankhead, 70 Ala. 493; Connaway. Wright, 5 Del. Ch. 472; Taggart v. Tevanny, 1 Ind. App. 339; "" Portland, etc., R. Co. v. Grand Trunk R. Co., 63 Me. 90; Woodbury v. Luddy, 14 Allen (Mass.) 1, 92 Am. Dec. 731. But Anderson defines it as "that branch of equity jurisprudence which compels a party to perform his contract in specie." And. L. Dict. See also Riddle z. Cameron, 50 Ala. 263; Morgan . Morgan, 3 Stew. (Ala.) 383, 2 Am. Dec. 638; Dehart v. Dehart, 15 Ind. 167; Johnson v. Johnson, 40 Md. 189. 2. Pomeroy on Specific Performance, 1; Hammond v. Foreman, 48 S. Car. 175; Christ Church v. Beach, 7 Wash. 65. 3. Hall v. Ross, 3 Hayw. (Tenn.) 200. 4. Pomeroy's Eq. Jur. (2d ed.), §§ 138, 1400. In the note to the latter section it is said: "Although contracts may also give rise to a legal right, yet when equity compels their specific performance it enforces the equitable obliga not enforce specific performance of contracts, but their sole remedy is to give damages for the breach, unless authorized by statute to decree specific performance.2 Antiquity of Remedy. - Specific performance as a remedy is as old as equity jurisprudence itself. The earliest cases in the reports are found in the time of Edward III., where the specific performance of a marriage settlement was decreed.3 2. Discretionary Character-a. GENERAL RULE. The granting or denial of a decree for specific performance is a matter (Mass.) 223; Buck . Dowley, 16 Gray (Mass.) 555. tion arising from them, and not the legal duty.' 1. McLane . Elmer, 4 Ind. 239; Tasker v. Small, 3 Myl. & C. 63; Harnett v. Yeilding, 2 Sch. & Lef. 549. An Action to Recover Damages in Lieu of Specific Performance lies not at law but in equity, for the right to such damages depends upon the right to specific performance, and is not available until the latter is established. Cooley v. Lobdell, 153 N. Y. 596, a ffirming 82 Hun (N. Y.) 98. In Matthews v. Matthews, 133 N. Y. 679, it was said: "Until the court first determined that the action was in equity, and second, that the plaintiff was entitled to a specific performance, the substituted damages founded upon the value of the property could not be awarded." Generally as to damages in lieu of specific performance, see infra, XII. 1. b. Damages in Lieu of Specific Performance. In Pennsylvania common-law actions may be used to compel the specific performance of agreements for the purchase and sale of lands, by means of a conditional verdict or by so regulating the amount of damages as to make performance less grievous than payment. And ejectment is an available mode in Pennsylvania of enforcing specific performance of a contract for the conveyance of lands. Irvine v. Bull, 7 Watts (Pa.) 323. See generally infra, XVI. Common-law Remedies in Pennsylvania. 2. Massachusetts. Under an early statute in Massachusetts, limited equitable jurisdiction which included the power to decree specific performance was given to courts of law; but the powers thus granted were strictly construed. See Kidder v. Hunt, 1 Pick. (Mass.) 328, 11 Am. Dec. 183; Adams 7. Townsend, I Met. (Mass.) 483; Jacobs v. Peterborough, etc., R. Co., 8 Cush. Under Stat. Mass. 1853, c. 371, specific performance might be enforced in an action at law, and under that statute specific performance could not be had in any other form of proceed. ing. Darling. Roarty, 5 Gray (Mass.) 71; Currier v. Howard, 14 Gray (Mass.) 511. An action at law praying for relief in equity under Stat. Mass. 1853, c. 371, to enforce specific performance of a contract is to be treated as a suit in equity. Irvin v. Gregory, 13 Gray (Mass.) 215; Topliff v. Jackson, 12 Gray (Mass.) 565. 3. Pomeroy's Eq. Jur. (2d ed.), § 35; Palgrave's History of the Council 64, 67. In the reign of Edward IV., the chancellor stated that the performance of an agreement to build a house might be enforced Year Book 8 Edw. IV., 4 (6); Fitzherbert's Abr., tit. Subpœna; Waterman on Specific Performance, 34; Story's Eq. Jur., § 716; 1 Madd. Ch. Pr. 287. In the reign of Elizabeth are found a number of cases where a decree of specific performance was ordered. At that time and for some years after much hostility existed between the chancellors and the common law judges over their respective authority and jurisdiction, the latter denying the right to specific performance, while the former maintained it. See article on this subject by Prof. J. B. Ames, in I Green Bag 26. The Authorities Trace the Remedy Back to the Roman Law, where, according to Pothier, even contracts in relation to chattels were specifically enforceable, although the English rule has only recently been carried thus far. See Law Magazine, vol. 12, p. 334; Butler's Dissertation on Feudal Law; Austin's Outline" appended to his "Province of Jurisprudence." |