
    Robert A. Forsyth, plaintiff in error, vs. Henry McCauley, defendant in error.
    (Atlanta,
    January Term, 1873.)
    Equity — Specific Performance. — F. contracted in writing with M. to convey to him by deed certain described land in the State of Alabama for a stipulated price, in two payments. F. was to put a good substantial ten rail fence around-the lane, and stake and rider the same, was to have the privilege of all the timber on the land, after making said fence, and to have two years to remove the timber. M. was to have possession when the first payment was made, which was fixed at a given day, and was to leave and keep open a certain road, so that F. could have free access to the timber. Both parties signed the contract. F. filed his bill for specific performance, etc., alleging that he -had made the fence around the land, was ready, willing, and offered to perform the balance of his contract, and that M. refused to pay any portion of the purchase money, or receive possession of the land:
    Held, The Court erred in dismissing the bill for want of equity.
    Equity. Specific performance. Before Judge Johnson. Mucogee Superior Court. May Term, 1872.
    Forsyth filed his bill against. McCauley for specific performance, making the following case:
    . On October 1st, 1871, the complainant and defendant entered into a written contract as follows:
    *“COLUMBUS, GEORGIA. — Muscogee County.
    “Know all men by these presents, that I have this day bargained and sold to Henry McCauley, of Eee county,' Alabama, all that tract or parcel of land lying in Lee county, and State of Alabama, being the place I purchased of Haimun, and now hold his bond for titles to one hundred and seven-eighths.acres. Now the terms of this agreement with McCauley are, that he, Mc-Cauley, is to have all the land ■ in this tract, bounded as follows: on the east by the Summerville road, on the north by the land of Riolin and others, on the west by the laud of Mindoz’, formerly by James K. Redd, and on the south by the Academy lot and lands of Wise, and it is to be surveyed, and he is to pay me at the rate of eight dollars per acre for said ,land. I am to have the privilege of all the timber off the land, after putting a good substantial ten rail fence all around said land, and stake and rider the same. I am to have two years to remove the timber, and McCauley agrees to leave and keep open the road which I now travel through the land to the Summerville road, so that I can get at my timber without any trouble. The payments are to be made by McCauley as follows: $400 00 on the first day of January, 1872, and the balance when titles are made perfect. McCauley is to have possession of all the land when the first payment is made.
    (Signed)
    “R. A. FORSYTH,
    “henry McCauley.”
    “Witnesses:
    (Signed) “R. W. Meleord,
    “J. W. Bessman.” ■
    Complainant alleges that he has been put to great expense and trouble in erecting the fence around said land in accordance with the above agreement. • That on January 1st, 1872, and since, he has been ready and willing, and so offered, to execute to defendant a perfect title to said land on the payment of the purchase money. That defendant has failed and refused to pay any part of said purchase money. Complainant *waives discovery, and prays that defendant may lie required by a decree of the Court to specifically perform the contract aforesaid; that the writ of subpoena may issue.
    The defendant demurred to the bill. The demurrer was sustained, and complainant excepted.
    J. M. McNeil ; M. J. Craweord, for plaintiff in error.
    No appearance for defendant.
    
      
      Equity — Specific Performance. — The court, in Jackens v. Nicolson, 70 Ga. 200, cites the principal case as holding that in “written contracts for land, where they are certain, fair and capable of being performed, equity will decree their performance.” Also,. Mining Co. v. Tuggle, 65 Ga. 657; Ency. Dig. Ga. Rep., vol. 11, p. 764.
    
   TrippE, Judge.

Where a contract for the sale of land is in writing, is certain and fair in all its parts, is for an adequate consideration, and capable of being performed, it is just as much a matter of course for a Court of equity to decree a specific performance of it as it is for a Court of law to give damages for the breach of a contract: 20 Ga., 142; Hilliard on Vendors, 433, (2d edition.)

It is true that in the case of Chance vs. Beall, 20 Georgia, 142, the application for specific performance was made by the vendee. But this right must be reciprocal: Hilliard on Vendors, 433, 434, note (a.) It is further true that specific performance will not, in all cases, be decreed in favor of a vendor where there is only a parol contract, even though the contract be satisfactorily proved. In Buckmaster vs. Harrass, 7 Vesey, 341, the Master of the Rolls, Sir William Grant, says: “The vendor had no prejudice. He had done nothing to say the non-execution was a fraud on him. Had he let Barlow into possession, that would be an act by which he might have had a prejudice. I am aware there are cases that acts done by the defendant can be made a ground for compelling him to perform the agreement, but it is difficult to bring these cases to bear; for what do such acts amount to when there is no prejudice to the plaintiff? Only to proof of the existence of the agreement. But the Court does not profess to execute a parol agreement merely because it is satisfactorily proved.” This is the rule in cases of parol contracts. Even in these, the law *goes far in decreeing a specific performance in favor of' the vendor where there has been part performance and he has had a prejudice. But here there was a contract in writing, signed by both the parties, and the vendor had executed what he had agreed therein to do, to-wit: erected a ten rail fence around the whole of the land.

Section 3130 of the Code says specific performance will be decreed generally whenever the damages recoverable at law would not be an adequate compensation for the non-performance. This does not mean that, in no case, whether the contract be in parol or in writing, shall there be specific performance decreed if adequate compensation can be had by way of damages at law. In section 3132, in the case of personal property, the question is left to the jury in certain cases, whether they will decree damages or specific delivery. But in written contracts for land, where they are certain, fair and capable of being performed, equity will decree their performance: Story’s Eq. Ju., sec. 746; Hilliard on Vendors, 421; Ibid., 454.

This land is in the State of Alabama. The vendor has done much work under the contract, and changed the condition of the land, using largely of the timber in so doing; has, by the contract, the right to use certain timbers on the land for a term of years, with the right of way for that purpose; he cannot, under the provisions of the law of Georgia, recover judgment for the debt, file a deed and sell the land, and it would be inequitable to allow the defendant to repudiate the written agreement and compel the vendor to resort to law for damages.

Judgment reversed.  