
    COURT OF APPEALS,
    
      NOV. TERM, 1801.
    Carberry et ux. et al. vs. Tannehill, et al.
    
    
      . A contract must an all respects be full, fair and honest, in the beginning', and the performance of it fairly and conscientiously required or the court of chancery will not enforce it.
    If two persons agree about the purchase and sale of land, the quantity of which is understood by each to be 300 it-eres, but from a real mistalce of the scrivener only 2001 acres a re conveyed and the mistake is «liseoveredj and both parties are apprised thatthere are in the tract 400 instead of 300 acres, on which quantity the price had been fixed— The court of chan-cerj will not decree the surplus 300 acres; and there being oit* cumstanees proving the bargain a hard one, it will not enforce the contract as to tile other 100 acres.
    Appear from a decree of the Court of Chancery, dismissing the bill of complaint praying for the specific performance of an agreement to convey land. The facts appear in the decree of the chancellor.
   Hanson, Chancellor,

(11th February 1801.) The jurisdiction exercised by this court with respect to agreements, although long since settled, seems to be little understood. The great leading principle is, that whether or not this court, on application, will compel a specific performance of a contract, is a matter of sound discretion, -on consideration of all the circumstances, and from those circumstances it must appear, not only that the contract was in all respects full, fair and honest in the beginning, but that the performance of it may be fairly and conscientiously required. This court will not otherwise enforce it. The defendant, Tannehill, a minor, it seems, had from his deceased father a patrimony, which to judge from the contract he made with the complainant, was worth only ¿cl900, and during the few years of his minority the complainant, SchnertaeU, made him a debtor to the amount of nearly one half his fortune. About twelve months before bis arrival at age, Schnertaell enters into a written contract with him for the purchase of his land. Rut the youth, although illiterate and weak, finds that he cannot reasonably be required to perform the contract. He cannot be compelled to do so, and the contract is given up. On his arrival at age, another contract is proposed; the same price is to be paid for the land; hut the mode of payment is to be different. The contract is made, but not reduced to writing. In consequence of it, Tannehill executes a conveyance; the account of Schnertzell for articles furnished during Tannehill’s minority, to the amount nearly of one half of his fortune as before mentioned, having been deducted from the price. It appears from the evidence, that several articles in the account are charged at an unreasonable price; and that at the time of the contract, the land was worth more than per acre; that is to say, that 336 acres were worth more than £2352. But it seems that only 291 .acres were conveyed, (which at the aforesaid rate, were Worth above ¿£2037',) instead of 336 acres, which quantity, according to Tannehill’s idea,. he had agreed to sell, and was the whole he possessed. It appears further, that 336 acres were the quantity contemplated by the parties when. treating on the sale. Well— Schnertzeil having had his account against the minor allowed in full, and having secured 291 acres, now’ insists that inasmuch as he meant to purchase, and Tannehill thought he had sold, all the land he possessed, he shall convey all the residue not conveyed, although that residue with the land conveyed, makes up 365 acres; and that the other defendant, Davis, who had purchased the residue, or part thereof, with notice, shall also convey.

There is reason to believe that Tannehill’s title papers had been put into the hands of Faw, who acted as scrivener, and it is stated that he nevertheless made a mistake in the deed. But possibly that mistake might have been beneficial to his employer; because if the deed had mentioned and described all the three parcels, of which Tannehill’s land consisted, and if Tannehill possessed the least share of discretion, he would have read, before he signed and sealed, and would thence have discovered his title to more than one parcel, and to a greater quantity than 336 acres.

Now putting the case as fairly for Schnertzell, as the bill, answer, and testimony can possibly admit, it amounts to this — The parties agree about the purchase and sale of land, the quantity of which is understood by each to be 335 acres. From a real mistake of the scrivener, only 291 acres are conveyed. Schnertaett discovers the mistake, and both parties are apprised that there are in the three parcels held by Tannehill 365 acres, instead of 336 on which quantity the price had been fixed. On what principle shall this court then give Schnertaell the surplus of 29 acres? Supposing the whole 365 acres, instead of 336, to have been conveyed, would it not be reasonable for this court, on Tannehill’s application, to grant him relief? Certainly it would be so! and therefore it cannot be reasonable to decree Schnert&ell the surplus he sues for.

Key and Johnson, for the Complainants.

Martin, (Attorney General,) and Shaaff, for the Defendants.

Taking all the circumstances, as they are already stated, this case has not that complexion which entitles *8'chnerfaett to any kind of relief from this court. The circumstances indeed are such that he may consider himself sufficiently successful in having secured a legal title to the 29Í acres.

To shew that he decides on settled principles, the-chancellor only refers generally to the books on the head of bargains, &c.

Decreed that the bill be dismissed, with costs to the. defendants.

The Complainants appealed to this Court; but the case having been compromised, the appeal was dis-tóse# at this term.  