
    Crary vs. Smith.
    The Court of Chancery has jurisdiction upon a bill filed by the vendor in a contract for the sale of real estate to decree specific performance, and to compel the vendee to pay the purchase money, although the complainant has a remedy at law upon the contract.
    Where a bill is filed for discovery and relief upon a lost contract, it seems that the defendant will be held to greater strictness in his answer as to the contents of the lost instrument, than would be required if it could be produced.
    Where the bill charged that a contract, which was lost, was executed by both the plaintiff and defendant, and then set forth the provisions thereof, and the defendant in his answer denied that he ever made any such contract, and then proceeded to state that the contract was executed by himself alone, but points out no other difference, it seems that this will be held an admission that the terms of the contract are as charged in the bill.
    Whether the loss of a written contract is of itself sufficient' to bring a case within the jurisdiction of a court of equity, where there. is no allegation that the contents cannot be proved without a discovery from the defendant, quere.
    
    Where the vendee in a contract for the sale of lands gave notice to the vendor of his refusal to perform the contract, held, that no tender of a deed by the ven ■ dor was necessary in order to sustain a bill for specific performance.
    Eliza Geary filed her bill in the late Court of Chancery be fore the vice chancellor of the fifth circuit, against Silas Smith, to enforce the specific performance of a contract for the sale and purchase of a parcel of land situate in Westmoreland, Oneida county. The case made by the bill was this: The complainant, in June, 1836, with the approbation of her children, entered into a written contract, under seal, with the defendant, whereby she agreed to convey to the defendant by deed, to be executed by herself and her children, the premises in question, and the defendant agreed to pay to the complainant for the land the sum of $1200, with interest from the time he should take possession. No time was mentioned in the agreement when the deed was to be executed and the money paid, but those acts were.to be simultaneous, and the defendant was to take possession in the spring of the year 1837. The agreement was left with a third person for safe keeping, and was lost. The fee of the land was in the complainant’s children, she having only a dower right therein. Two of the children resided in the state of Illinois, and when the agreement was entered into, it was understood that it would take a considerable time to procure the execution of the deed by them. The defendant took possession of the premises about the first of April, 1837, and occupied them subsequently to that time either himself or by others finder him. The bill further alleged that, after the due execution of the deed by all the necessary parties, the defendant had due notice thereof, and was requested to accept such deed and pay the purchase money, which he refused to do. In April, 1842, the defendant caused to be served on the complainant a written notice that he should no longer occupy the premises, and should refuse to fulfil the contract. It was alleged in the notice that the complainant had failed to perform on her part. The bill called for an answer under oath. The grounds of defence set up in the answer and on the argument, and the result of the evidence so far as material, are sufficiently stated in the opinion of Gray, J.
    Gridley, vice chancellor, after argument upon the pleadings and proofs, decreed aspecific performance of the contract, according to the prayer of the bill. And his decree, on appeal, was affirmed by the supreme court in equity sitting in the Fifth District. The defendant appealed to this court.
    
      O. P. Kirkland, for appellant.
    
      F. Kcrnan, for respondent.
   Gray, J.

It is insisted on the part of Smith, the appellant, that this bill is filed to enforce the payment of a sum of money merely, that the remedy of the respondent is at law and not in equity, that the court of chancery has no jurisdiction over the subject matter, and that the bill should therefore have been dismissed with costs.

From a perusal of the bill, it is manifest however, that the object and nature of the bill is not for the recovery of money eo nomine, but for a discovery and specific performance of a contract in writing, under seal, entered into between the parties for the sale and purchase of land, and we deem it a proper subject of equity cognizance. That the respondent might have oh tained satisfaction in a court of law, is no objection to a resort to chancery, provided it is a case of concurrent jurisdiction. Such, I apprehend, is this case; and what makes a court of chancery the more peculiarly appropriate forum in this instance, is the fact that the contract for the enforcement of which this suit was instituted, is lost. The loss of the contract is clearly established; but I allude to this fact not as essential to confer jurisdiction upon the court of chancery, but more particularly as the reason for asking for a discovery as well as a performance of the contract, and as a reason furthermore, for holding the appellant to greater strictness in his answer, than would perhaps, be required, if the contract was still in existence and capable of being produced. I do not place the jurisdiction ol the court in this case upon the loss of the instrument, although that fact may be regarded as auxiliary. The remedy of a specific performance, of a contract under seal relating to land, has become a subject of undisputed chancery jurisdiction; nor is the fact that a court of law is competent to administer redress in damages, an obstacle at all in the way of the exercise of equity power. Nor is it an objection to a suit for specific performance, that the party prosecuting it stands in the relation of vendor; although I admit that usually the same necessity for the specific execution of a contract does not exist in the case of a vendor, that there is in the case of a vendee. Ordinarily, a vendor, in the recovery of pecuniary damages, has an adequate remedy at law, but he has a choice of remedies. He may resort either to a court of law or a court of equity. (Brown v. Haff, 5 Paige, 240, and cases there cited; Pincke v. Curtis, 4 Brown’s Ch. Rep. 329.)

Is the contract and performance on the part of the plaintifl so charged and proved or admitted by the pleadings, as to entitle her to a decree for its specific execution ? The bill in this respect charges that in June, 1836, the parties entered into a written contract under seal, and signed by both the parties, whereby the respondent agreed to convey to the appellant a parcel ol land in the town of Westmoreland, in the county of Oneida, neing about twenty-two acres of land more or less, and to give possession thereof to the appellant in the spring of 1837, and a deed therefor whenever the same should be procured by the respondent from the persons in whom the legal title was then vested, and that the said appellant agreed to purchase the said land, and to pay to the respondent therefor simultaneously with the delivery of the deed to him, the sum of $1200, and interest thereon from the delivery of the possession of the land. The bill further alleges that on or about the first day of April, 1837, the respondent surrendered, and the appellant took possession of the said land as owner, and from thence until a short time previous- to the filing of the bill, continued in the possession and made changes thereon in the removal of fences and buildings, and treated the same as his own. The bill, furthermore, charges that the respondent procured a proper deed for the premises to be duly executed and acknowledged ready for delivery, and advised the appellant thereof, and requested him to pay the purchase money and take the deed-; that the appellant refused to do so, and through his agent served a written notice of his refusal on the respondent, and that he afterwards actually abandoned the possession of the premises. These are the material allegations in the bill, and all which I deem it important to consider.

These allegations, the appellant in the first place denies, in general terms, by saying that no such contract or agreement, as is set up in the bill, was at any time entered into between the respondent and himself; and then secondly, he repeats and denies that any contract, obligatory upon himself, was ever signed and sealed by him, or that he ever signed any instrument or agreement for the purchase of said land, except a writing which he believes, was not signed by the respondent; and that the said writing, so signed by him, was utterly void for want of consideration and mutuality, the terms of which writing he does not recollect, nor is it material for him to state its terms as he is advised by counsel. And in respect to the taking of the possession of the said land by him, on the first day of April, 1837, as the owner thereof, as is alleged in the bill, he admits the taking of the possession on that day, by the permission of the respondent, but denies that he took the same as owner, and insists in that respect, that as he is advised by counsel, he took the possession under such circumstances as created the relation on his part of a tenant at will, or sufferance, and that in that relation the premises were occupied by him and his agents, and servants, for the period mentioned in the bill, when the same were abandoned by him, and have not since been resumed.

Now it will be perceived, that none of the material allegations of the bill are specifically denied by the answer, and the answer is so palpably artful and evasive, as to bring it clearly within the 17th rule of the court of chancery. The bill-charges specifically the contract under seal, giving all the terms and particulars as already mentioned. The answer to this charge, in the first place, denies in general terms, the execution of such a contract as the one charged; and secondly, and as a further denial, that no contract for the sale and purchase of land which is obligatory upon him, the appellant, has been executed by him ; admitting, however, at the same time, the execution of a contract by himself, which according to his belief, was not signed by the respondent, and which he alleges was therefore void, for want of consideration and mutuality. This second or further and special denial discloses fully, I think, the ground upon which the first general denial is based. The bill charges the contract to have been executed by both the parties, and from the mistaken belief that it was not signed by the respondent, the appellant felt himself authorized under oath to deny the execution of any such contract as the one charged. This is a mere evasion, and all the facts charged in the bill, and which are not denied, or which are evasively denied, must by the application of the 17th rule, be regarded as admitted.

But independent of the admission growing out of the effect of that rule, the proof subsequently taken in the case clearly establishes the due execution of the contract by both the parties, and the falsity of the answer thereby became so apparent and palpable, that the appellant’s counsel, on the argument, found himself constrained to concede that the answer in this respect was unfounded and untrue. All the other allegations of the bill which by the operation of the 17th rule do not stand as admitted, were satisfactorily made out by the evidence in the cause.

The objection that the contract proved varied from the contract charged in the bill is, I think, not well founded. The contract as proved, corresponds substantially with the one alleged. The allegation in the bill is that the defendant was to pay the sum of $1200 for the land, with interest from the time possession should be taken. The contract containing the terms of the sale, it will be remembered, is lost, and in the answer there is no specific denial as to the payment of interest as charged, nor any denial of that fact, except as it maybe deemed to be included in the general denial of the execution of such a contract as the one charged in the bill. There is no direct proof that in the contract the payment of interest was provided for, but it is in evidence that in a conversation between the parties after the execution of the contract, it was arranged that the appellant should go into the possession of the premises on the first day of April, 1837, and pay interest from that time. This evidence, with the admission growing out of the omission of a denial in the answer, establishes that interest was to be paid substantially as charged, and fully disposes of the question of variance.

Nor was a tender of a deed necessary under the circumstances of the case, to entitle the respondent to a specific performance. The necessity of a tender to the appellant was„ superseded by a notice from him to the respondent of the abandonment of the possession and to a refusal to take the land according to the contract. I am of opinion that all the facts necessary to entitle the respondent to the relief sought by her bill are satisfactorily established, and that the decree of the supreme court for a specific execution must be affirmed.

Decree affirmed. 
      
       Sugden on Vendors, ch. 4, $ 2, p. 202 (7th edition) ; Kewland on Contr., ch. 17, p. 307 to 310 ; Logan v. Weinholt, 7 Bligh 1, 49, 50; Chilliner v. Chilliner, 2 Ves. 528 ; Ensign v. Kellogg, 4 Pick. 1 ; Fonb. Eq. B. ], ch. 1, § 5, note (o) ; Bettesworth v. Dean of St. Paul’s, Sel. Cas. in Ch., 68, 69 ; Halsey v. Grant, 13 Ves. 76 ; Flint v. Brandon, 8 Ves. 159, 163 ; Hametz v. Yielding, 2 Sch. & Lef. 549 ; Errington v. Aynesly, 2 Bro. C. C. 341 ; Mitford, Eq. Pl. by Jeremy, 112, 118, 119 ; Gilb. Forum Roman. 220 ; Sugden on Vendors, ch. 4, § 4, p. 190, 191 (7th edition) ; Gilb. Lex Pretoria, 235 ; Cathcart v. Robinson, 5 Peters 264 ; Storer v. Great Western Railway Co., 2 Y. & Coll. N. R. 48, 50. In Harnett v. Yielding, 2 Sch. & Lef. 552-53,Lord Redesdale said : “I have bestowed a good deal of consideration upon this case, and particularly with reference to the jurisdiction exercised by Courts of Equity in decreeing specific performance of agreements. Whether Courts of Equity, in their determinations on this subject, have always considered what was the original foundation of decrees of this nature, I very much doubt. I believe that, from something of habit, decrees of this kind have been carried to an extent which has tended to injustice. Unquestionably, the original foundation of there decrees was simply this, that damages at law would not give the party the compensation to which he was entitled ; that is, would not put him in a situation as beneficial to him as if the agreement were specifically performed. On this ground, the Court, in a variety of cases, has refused to interfere, where, from the nature of the case, the damages must necessarily be commensurate to the injury sustained ; as, for instance, in agreements for the purchase of stock,—it being the same thing to the party where or from whom the stock is purchased, provided he receives the money that will purchase it. These cases show what were the grounds on which Courts of Equity first interfered ; but they have constantly held that the party who comes into equity for a specific performance must come with perfect propriety of conduct, otherwise they will leave him to his remedy at law. He must also show that, in seeking the performance, he does not call upon the other party to do an act which he is not lawfully competent to do ; for, if he does, a consequence is produced that quite passes by the object of tne Court in exercising the jurisdiction, which is to do more complete justice. If a party is compelled to do an act which he is not lawfully authorized to do, he is exposed to a new action for damages, at the suit of the person injured by such act; and therefore, if a bill is filed for a specific performance of an agreement made by a man who appears to have a bad title, he is not compellable to execute it, unless the party seeking performance is willing to accept such a title as he can give ; and that only in cases where an injury would be sustained by the party plaintiff, in case he were not to get such an execution of the agreement as the defendant can give. I take the reason to be this among others,—not only that it is laying the foundation of an action at law, in which damages may be recovered against the party, but also that it is by possibility injuring a third person, by creating a title with which he may have to contend. There is also another ground, on which Courts of Equity refuse to enforce specific execution of agreements ; that is, when, from the circumstances, it is doubtful whether the party meant to contract to the extent that he is sought to be charged. All these are held sufficient grounds to induce the Court to forbear decreeing specific perfoimance, that being a remedy intended by Courts of Equity to supply what are supposed to be the defects in the remedy given by the Courts of Law. Under these circumstances, therefore, I think considerable caution is to be used in decreeing a specific performance of agreements ; and the Court is bound to see that it really does that complete justice which it aims at, and which is the ground of its jurisdiction.”
      
        Stuyvesant v. New York, 11 Paige 414; Gordon v. Brown, 4 Ired. Eq. 399 ; Bryan v. Robert, 1 Strob. 334 ; Graham, v. Sane, 7 B. Monr. 403 ; Shelton v. Church, 10 Mo. 774. In Hester v. Hooker, 7 Sm. & Marsh. 768, and Tobey v. County of Bristol, 3 Story 800, it was said, that a bill for specific performance is addressed to the sound discretion of the court, upon the circumstances of the case. And see Carey v. Holmes, 10 Ala. 776.
     