estate, but abandoned it as unprofitable. There were two pits on the ground, and, before entering into the agreement with the plaintiff, the defendant applied for leave to have one of them cleared and to examine the coal in the shaft. He went down and examined the coal, and afterwards the agreement was entered into, and the defendant went into possession. It was soon discovered that the coal was 'absolutely not worth getting.' Upon a bill for specific performance the defendant resisted, on the ground of the uncertainty of the contract, misrepresentation and concealment of the plaintiff, and the hardship of being obliged to pay £100 a year during the remainder of the lease, without receiving any benefit whatever from the mines. Although he had examined the mines before purchasing, he said that he had no knowledge of mines, and that he was wholly ignorant of these matters. The Master of the Rolls says: "The real fact is that the speculation has turned out to be extremely bad, and this is shown by the evidence. The seams dwindled down from 3 feet to 20 inches, but if instead of diminishing it had increased to that extent, the court would probably have heard nothing about it. Then it is said that this is an extremely hard case; that in point of fact the plaintiff is insisting upon the defendant paying him £1,400 for a thing that has turned out to be literally worth nothing, and that according to the discretion that the court exercises in such cases it cannot compel specific performance of the contract. Upon this subject, which is one upon which I have before made several observations, I will refer again to a passage which I have always considered binding upon me, for it is most important that the profession and those who have to advise in reference to this subject, should understand the rule which is adopted in this and the other courts, which is that the discretion of the court must be exercised according to fixed and settled rules; you cannot exercise a discretion by merely considering what as between the parties would be fair to be done; what one person may consider fair another person may consider very unfair; you must have some settled rule and principle upon which to determine how that discretion is to be exercised.' Lord Eldon observes in the case of White v. Daman [7 Ves. 35]: 'I agree with Lord Rosslyn that giving specific performance is matter of discretion, but that it is not an arbitrary, capricious discretion; it must be regulated upon grounds that will make it judicial. I also refer, as I have upon former occasions, to a passage from the celebrated argument of the Master of the Rolls in Burgess v. Wheate [1 Eden, 214], where at the conclusion he cites a well known passage from Sir Joseph Jekyll upon the subject of discretion of the court, and gives his own opinion. He says: And though proceedings in equity are said to be secundum discretionem boni viri, yet when it is asked vir bonus est quis, the answer is qui consulta patrum quit legis jura que servat, and, as it is said in Rooke's Case [5 Coke, 99b], discretion is a science not to act arbitrarily, according to men's wills and affections, so the discretion which is to be exercised here is to be governed by the rules of law and equity, which are not opposed, but each in its terms to be subservient to the other. This discretion in some cases follows the law implicitly; in others assists it and advances the remedy; in others, again, it relieves against the abuse or allays the rigor of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this court. That is a discretionary power which neither this nor any other court, not even the highest, acting in a judicial capacity, is by the Constitution intrusted with. This description is full and judicious, and it ought to be imprinted upon the mind of every judge. If, therefore, in a case of this description I were to say that according to my discretion I ought to leave these persons to their action at law, upon what principle or ground could I do it, except that in a matter of speculation it has turned out very favorably to one party and very unfavorably to the other? It is obvious that in a case of a sale at auction, if the property is sold for an extremely inadequate value, it is impossible for the person to repudiate the contract. The mere principle of what might have been fair or what might have been the right thing to do between the parties had all the elements of value been known which have since transpired cannot be ground for exercising or regulating the discretion of the court if all the facts which were then in existence were known to both parties. I can understand that the court will exercise the discretion, and will not enforce

the specific performance of a contract where, to a degree, the performance of the contract would be to compel a person who has entered inadvertently into it to commit a breach of duty, such as where trustees have entered into a contract the performance of which would be a breach of trust. Those are cases where by fixed and settled rule the court is enabled to exercise its discretion, but the mere inadequacy or excess of value is not in my opinion a ground for exercising any such discretion as that which is suggested in this case. That this is a very hard case there is no doubt, and it may be extremely proper that the plaintiff make an abatement in respect of it, but that is a totally different matter, one which is in the forum of his own conscience, but not one which I can notice judicially. In my opinion this is a contract which was fairly entered into between the parties. There is nothing to invalidate it, and the usual decree must therefore be made for the specific performance of the contract, with costs to the present time.'

"Fry on Specific Performance, says (section 389): "The fairness of a contract, like all its other qualities, must be judged of at the time it is entered into, or at least when the contract becomes absolute, and not by subsequent events, for the fact that events uncertain at the time of the contract and afterwards were in a manner contrary to the expectation of one or both of the parties is no reason for holding the contract to have been unfair. The period, says the Irish Lord Chancellor Manners, at which the court is to examine the agreement between the parties is the time when they contracted.' The contention of the defendant which finds most support in the text-writers and in the decided cases is that a court of equity will refuse to lend its aid to the enforcement of a contract where the price paid is grossly inadequate to the real value. There is no fixed standard by which to determine this question of inadequacy which devolves upon the equity court the duty of revising men's bargains, and substitutes the chancellor's opinion for that of the contracting parties as to the price which ought to be paid. Lord Chief Baron Eyre says in Griffith v. Spratley, 1 Cox Ch. Cas. 388: The value of a thing is what it will produce and admits of no precise standard. It must be in its nature fluctuating, and will depend upon ten thousand different circumstances. One man in the disposal of his property may sell it for less than another would; he may sell it under a pressure of circumstances which may induce him to sell it at a particular time. Now, if courts of equity are to unravel all these transactions they would throw everything into confusion and set afloat all the contracts of mankind.' Lord Eldon says, in Coles v. Trecothick, 9 Vesey, 246: 'But, further, unless the inadequacy of price is such as shocks the conscience, and amounts in itself to conclusive and decisive evidence of fraud in the transaction, it is not itself a sufficient ground for refusing a specific performance.' Fry on Specific Performance says (section 44): "There is an observation often made with regard to the jurisdiction in specific performance which remains to be noticed; it is said to be in the discretion of the court. The meaning of this proposition is not that the court may arbitrarily or capriciously perform one contract and refuse to perform another, but that the court has regard to the conduct of the plaintiff and to circumstances outside of the contract itself, and that the mere fact of the existence of a valid contract is not conclusive in the plaintiff's favor.' And in section 46: 'But of the circumstances calling for the exercise of this discretion the court judges by settled and fixed rules, hence the discretion is said to be not arbitrary or capricious, but judicial; hence, also, if the contract has been entered into by a competent party, and is unobjectionable in its nature and circumstances, specific performance is as much a matter of course and therefore of right as are damages. The mere hardship of the results may not affect the discretion of the court.'

"Before considering the testimony on the subject of inadequacy I will proceed to examine those cases cited and relied on by the defendant as establishing the principle upon which it is claimed that she is entitled to be relieved of the performance of this contract. In considering these cases it is well to bear in mind what was said by the great Chief Justice in Cohens v. Virginia [6 Wheat. 264, 5 L. Ed. 257]: 'It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used.' The first case cited, and one

which seems to be most relied on is Seymour v. Delancey, 6 Johnson's Ch. [N. Y.] 222. In that case Ellison, the ancestor of the defendant, was to convey two farms containing 763 acres of land, in exchange for one equal undivided one-third part of two lots of land in the village of Newberg. The chancellor, after reviewing the testimony, fixed the one-third of the Newberg lots at $6,000, and the farms at $12,000. He also found that Ellison 'was in the last year or two of his life rendered for a considerable part of his time unfit for business by habitual intoxication; his mind must have felt the pernicious effects of that habit, and have lost its original strength when he made the bargain in question. The proof is abundantly sufficient to render the fact of his competency to contract with the requisite judgment doubtful.' The contract was made in January and he died in August, and the chancellor says: "This fact adds greatly to the force of the considerations growing out of the inadequacy of the price, and is clearly sufficient within the view of all the cases to render it highly discreet and just to refuse the aid of the court to the specific performance of so hard and so extravagant a bargain, gained from an habitual drunkard in the last year of his life and just before his infirmities have begun to incapacitate him entirely for business. There is another circumstance,' said he, 'in the case which ought to be taken into consideration, when the plaintiff comes here seeking a specific performance; he was not in a condition to give a good title to the village lots, either when he contracted or when the deeds were to be executed or at the time of the death of Ellison.' The decree of the chancellor, refusing specific performance, was reversed on appeal by the Court of Errors, 3 Cow. [N. Y.] 445 [15 Am. Dec. 270]. But the doctrine that 'inadequacy of price may of itself and without fraud or other ingredient be sufficient to stay the application of the power of this court to enforce specific performance of a private contract to sell land,' has the sanction of the great name of Chancellor Kent.

All

"The next case cited is one from our own state (Clitherall v. Ogilvei, 1 Desaus. 250), where the court refused to decree specific performance of a contract for the sale of land, where the inadequacy was very great. In its opinion the court refers to the reluctance of the defendant (a young man but just of age, ignorant of the land and its value) to determine the matter hastily, his wishing to consult with a friend whom he thought well acquainted with the land, showed plainly that he was not desirous of selling immediately and that he was not sufficiently competent to determine on the value. these circumstances show that, though no fraud or imposition on complainant's part, yet there was such an eagerness, such an anxiety in him to conclude the bargain, such an astuteness of conduct as do not give it all the marks of fairness, justice, and equality. That the consideration is enormously inadequate here I need only refer to the testimony of Capt. Pinckney, from whence it appears that the land at the lowest valuation must be worth four times as much as was agreed to be given for it.' In a note to that case by Chancellor Desaussure, he says: "The rule seems to be that mere inadequacy of price in a contract deliberately made between two persons conusant of their rights and competent to manage their own affairs should not be a ground purely of itself to vitiate the contract, but the decided cases express a qualification which in reality is a material violation of the rule itself, for it is added that the inadequacy of price shall not vitiate the contract unless it be so gross that every good man would at once exclaim against it, and as would furnish violent presumptive evidence of fraud, imposition, or oppression in the buyer, or manifest ignorance or deep necessity in the seller.'

"The next case is Butler v. Haskell, 4 Desaus. 651, where the defendants agreed to sell for $1,200 for each share their interest in the estate of an idiot, and the bill was to set aside these sales, the proof being that each share was worth from $13,000 to $14,000; that the Butlers were uneducated and ignorant men in necessitous circumstances, who had employed the defendant as agent to establish their claims to the property, he being a man of ability, astuteness, and experience. In its opinion the court says: 'It has been left, perhaps wisely, to the experience of the courts of justice, to apply the mere principles of equity to each case according to its particular circumstances, and thus gradually to form a practical system of pure justice, and the courts have never decided as a broad principle that mere inadequacy of price unconnected

with direct fraud or imposition or concealment, or advantage taken of extreme weakness or great necessity, should be a distinct and independent ground of vitiating contracts, but the courts have said that the inadequacy may be so gross as to furnish strong and even conclusive presumption of fraud, and in this way the grossness of the inadequacy may avoid the sale.' "The next case is Gasque v. Small, 2 Strob. Eq. 72. In that case the court refused to enforce specific performance and in its opinion says: 'In this case the defendant was a young man who had arrived at the age of 21 years a few weeks before the agreement, and who from the want of sagacity, advice and experience was unable to cope with the other party in the contract., It is manifest that his examination of the land was utterly insufficient to enable him to ascertain its value, which from the glowing descriptions of the advantage that he might derive from the purchase was no doubt greatly exag gerated in his imagination, and although the case does not come within the class of contracts of young heirs who are entitled to expectations, yet it approximates the principle in practice. The weight of evidence establishes such inadequacy of value that the most liberal calculation cannot resist the conclusion that Kirton (who, although apparently only the agent of Gasque, is the real party in interest) bargained the land to the defendant for double its value, and probably for three or four times as much as it would bring if sold at public auction.'

"The Church of the Advent v. Farrow, 7 Rich. Eq. [378], was a case where one Henry agreed to give to the church a lot for the site of an Episcopal church and for a burying ground, to contain one acre. Henry went to the spot and pointed out the lot, but no deed was executed. After his death his daughter objected to the use of the lot as a burial ground, and refused to sign a deed in the form demanded. The vestry brought suit for specific performance. Chancellor Johnstone, who heard the case on Circuit, said: 'I do not think there is sufficient evidence, even if parol proof were admissible, to establish an agreement which this court will enforce.' Chancellor Wardlaw, speaking for the Court of Appeals, affirming the decision below, says: 'Besides, if the plaintiff had proved sufficiently an agreement, the suit is an ap plication to the extraordinary jurisdiction of the court, where discretion is tolerated and absolute right cannot be claimed. With every disposition to limit discretion we should hardly be disposed to afford relief to plaintiff when the enforcement of defendant's contract (essentially voluntary) although supported by the consideration of co-subscription, will be attended with inequitable loss to defendants in impairing the value of adjoining lots.'

"These are all of the South Carolina cases cited by the defendant. The cases in the Supreme Court of the United States, are, first, King v. Hamilton, 4 Pet. 328 [page 329 (7 L. Ed. 869)]. In its opinion in that case the court says: "The complainants, after the lapse of 20 years seek for the specific execution of a contract which has not been performed on their part, and the execution of which will be manifestly unjust and unequitable.' The facts in that case have no possible analogy to those in the case under consideration, and it would be unprofitable to cite them in detail.

"Nickerson v. Nickerson, 127 U. S. 668 [8 Sup. Ct. 1355, 32 L. Ed. 314], was as stated in the opinion of the court on page 677 [of 127 U. S., on page 1359 of 8 Sup. Ct. (32 L. Ed. 314)]: The case of a husband who prior to marriage induced in the mind of his intended wife expectations in reference to real property, which, after marriage, he failed to meet, but in respect of that property he did not enter-and perhaps intentionally refrained from enteringinto any distinct and binding agreement. She relied upon his honor

and has been deceived, but those facts, however strongly they appeal to our sympathy, cannot justify the court in finding upon the meager evidence in this case that there was an agreement upon his part, in consideration of marriage, to settle upon her either the property in Portland, or the property purchased with the proceeds of the sale.'

"McCabe v. Matthews, 155 U. S. 550 [on page 555, 15 Sup. Ct. 190, on page 192, 39 L. Ed. 256], was a case where Mrs. Montgomery entered into a written contract with Matthews for the conveyance of a tract of land containing 1,635 acres. The contract recited the consideration of one dollar, and the further consideration of a tract of five acres to be planted out in orange trees,

etc. The opinion of the court, sufficiently discloses the nature of the case, where Justice Brewer says: 'So that we have presented the case of one who, investing one dollar in the proposed purchase of land and doing nothing to assist his vendor in furnishing the property or performing the work necessary to be furnished and performed by such vendor to acquire the title to the land, waits nine years after his contract has been entered into, nearly nine years after he has good reason to believe that such vendor repudiates all liability under the contract, nearly five years after notice has been given by such vendor of his acquisition of the title by filing the deeds in the public records, two years after he receives actual notice of that fact, and then without the tender of any money or other consideration, appeals to a court of equity to compel such vendor to deed to him an interest in land worth at the time of his contract only $150, and now $7,500. It seems to us to be a case of purely speculative contract on the part of the plaintiff, doing nothing himself, he waits many years to see what the outcome of the purchase by the defendant shall be; if such purchase proves a profitable investment he will demand his share, if unprofitable he will let it alone. Under those circumstances the long delay is such laches as forbids a court of equity to interfere.'

"Willard v. Tayloe, 8 Wall. [557, 19 L. Ed. 501], was a bill for the specific performance of a contract for the sale of certain real property in the city of Washington, made in 1854, in the form of a lease for 10 years, giving the right or option to purchase, which was in the nature of a continuing offer to sell. The contract was not completed by the acceptance of the defendant's proposition to buy, until April, 1864, after the passage of the act of Congress making notes of the United States a legal tender, and one of the chief questions in the case was whether or not the complainant should pay the stipulated amount in gold and silver coin, the legal tender notes at the time when tendered being worth only a little more than one-half of the stipulated price. The court decided that the substitution of notes for coin could not have been in the possible expectations of the parties at the time the contract was made, and ordered the conveyance of the premises upon the payment in gold and silver coin. In considering the question whether there should be an enforcement of the contract owing to the fact that the property had greatly increased in value, the court says: 'It is true that the property has greatly increased in value since April, 1854. Some increase was anticipated by the parties, for the covenant exacts in the case of the lessee's election to purchase, the payment of one-half more than its then estimated value. If the actual increase has exceeded the estimate then made that circumstance furnishes no ground for interference with the arrangements of the parties. The question in such cases always is: Was the contract at the time it was made a reasonable and fair one? If such were the fact the parties are considered as having taken upon themselves the risk of subsequent fluctuations in the value of the property, and such fluctuations are not allowed to prevent its specific enforcement.'

"I have now reviewed all the cases in South Carolina and in the Supreme Court of the United States cited by the learned counsel for the defendant, and it seems to me clear that mere inadequacy of price upon a contract deliberately made between two persons conusant of their rights and competent to manage their own affairs does not of itself furnish ground to vitiate the contract; but the counsel insists that gross inadequacy is equivalent to fraud, and cites Byers v. Surget, 19 How. 303 [15 L. Ed. 670], quoting as follows: "To meet the objection made to the sale in this case founded on the inadequacy of the price at which the land was sold, it is insisted that inadequacy of consideration, singly, cannot amount to proof of fraud. This decision, however, is scarcely reconcilable with the qualification annexed to it by the courts, namely, unless such inadequacy be so gross as to shock the conscience, for this qualification implies necessarily the affirmation that if the inadequacy be of a nature so gross as to shock the conscience it will amount to proof of fraud.' The facts in that case are a good illustration of the class of cases calculated to shock the conscience. Byers was a member of the firm of W. B. Duncan & Co., which in the year 1835 bought various tracts of land in the state of Arkansas. In 1836, upon the dissolution of the firm, these lands were conveyed to Byers. In 1840, four years after the dissolution of the firm of William B. Duncan & Co., an action was instituted in the name of that