1. A covenant in a lease giving to the lessee a right or option
to purchase the premises leased at any time during the term is in
the nature of a continuing offer to sell. The offer thus made, if
under seal, is regarded as made upon sufficient consideration, and
therefore one from which the lessor is not at liberty to recede.
When accepted by the lessee, a contract of sale is completed.
2. When a contract for the sale of real property is plain and
certain in its terms and in its nature and the circumstances
attending its execution is free from objection, it is the usual
practice of courts of equity to enforce its specific execution upon
the application of the party who has complied with its stipulations
on his part, or has seasonably and an good faith offered, and
continues ready to comply with them. But it is not the invariable
practice. This form of relief is not a matter of absolute right to
either party, but a matter resting in the discretion of the court,
to be exercised upon a consideration of all the circumstances of
each particular case.
3. In general, the specific relief will be granted when it is
apparent from a view of all the circumstances of the particular
case that it will subserve the ends of justice, and it will be
withheld when from a like view it appears that it will produce
hardship or injustice to either of the parties.
4. Where specific execution which would work hardship when
unconditionally performed, would work equity when decreed on
conditions, it will be decreed conditionally.
5. The kind of currency which a party offers in payment of a
contract (which, in this case, consisted of notes of the United
States, not equivalent at the time to gold or silver) is important,
on a bill for specific performance, only in considering the good
faith of his conduct. The condition of the currency in April, 1864,
and the general use of notes of the United States at that time
repel any imputation of bad faith in tendering such notes instead
of coin in satisfaction of a contract.
6. Where a party is entitled to a specific performance of a
contract upon the payment of certain sums and there is uncertainty
as to the amount of such sums, he may apply by bill for such
specific performance and submit to the court the question of amount
which he should pay.
7. Fluctuations in the value of property contracted for between
the date of the contract and the time when execution of the
contract is demanded, where the contract was when made a fair one
and in its attendant circumstances unobjectionable, are not allowed
to prevent a specific enforcement of the contract.
8. The general rule is that the parties to the contract are the
only proper parties to the suit for its performance. Hence, the
assignment by the complainant, prior to his bill, of a partial
interest in the entire contract is no defense to the bill for such
performance.
Page 75 U. S. 558
9. Where a party, prior to filing a bill for specific
performance of a contract for the sale of land, had sent to the
other side for examination and in professed purpose of execution of
the contract the draft of a mortgage which he is ready, on a
conveyance's being made, to execute, it is no defense to the bill,
if the defendant have wholly refused to execute a deed, that the
draft is not in such a form as respected parties and the term of
years which the security bad to run, as the vendor was bound to
accept, especially where such vendor, in returning the draft, had
not stated in what particulars he was dissatisfied with the
draft.
10. When parties have reduced their contracts to writing,
conversations controlling or changing their stipulations are, in
the absence of fraud, no more received in a court of equity than in
a court of law.
11. In this case, without expressing an opinion upon the
constitutionality of the provision of the act of Congress which
makes United States notes a legal tender for private debts nor
whether, if constitutional, the provision is to be limited in its
application to contracts made subsequent to the passage of the act,
the Court refused to decree a conveyance of real estate on the
tender in such notes where the estate had greatly risen in value,
where at the time of the contract gold and silver coin were the
only lawful money of the United States, and where it was impossible
to suppose that the parties when making their contract -- which was
eight years before the notes were authorized -- contemplated a
substitution of such notes (when tendered much depreciated) for
coin, but did decree a specific execution upon the payment in coin
of the price originally agreed on, with interest in coin also.
This was a suit in equity for the specific performance of a
contract for the sale of certain real property situated in the City
of Washington, in the District of Columbia, and adjoining the hotel
owned by the complainant, Willard, and known as Willard's
Hotel.
The facts out of which the case arose were as follows:
In April, 1854, the defendant leased to the complainant the
property in question, which was generally known in Washington as
"The Mansion House," for the period of ten years from the 1st of
May following, at the yearly rent of twelve hundred dollars. The
lease contained a covenant that the lessee should have the right or
option of purchasing the premises, with the buildings and
improvements thereon, at any time before the expiration of the
lease, for the sum of twenty-two thousand and five hundred dollars,
payable as
Page 75 U. S. 559
follows: two thousand dollars in cash and two thousand dollars,
together with the interest on all the deferred installments, each
year thereafter until the whole was paid, the deferred payments to
be secured by a deed of trust on the property, and the vendor to
execute to the purchaser a warranty deed of the premises subject to
a yearly ground-rent of three hundred and ninety dollars.
At the time of this lease, gold and silver, or bank bills
convertible on demand into it, were the ordinary money of the
country and the standard of values. In 1861, the rebellion broke
out, lasting till 1865. In the interval, owing to the influx of
people, property in the metropolis used for hotels greatly
increased in value, and as was alleged by Tayloe, who produced what
he deemed a record to show the fact, the complainant, Willard,
assigned an undivided half of the property which had been leased to
him as above-mentioned to a brother of his. In December, 1861, the
banks throughout the country suspended payments in specie, and in
1862 and 1863, the federal Government issued some hundred millions
of notes, to be used as money, and which Congress declared should
be a tender in the payment of debts. Coin soon ceased to circulate
generally, and people used, in a great degree, the notes of the
government to pay what they owned.
On the 15th of April, 1864, two weeks before the expiration of
the period allowed the complainant for his election to purchase --
the property having greatly increased in value since 1854, the year
in which the lease was made -- the complainant addressed a letter
to the defendant, enclosing a check, payable to his order, on the
Bank of America, in New York, for two thousand dollars, as the
amount due on the 1st of May following on the purchase of the
property, with a blank receipt for the money, and requesting the
defendant to sign and return the receipt, and stating that if it
were agreeable to the defendant, he would have the deed of the
property, and the trust deed to be executed by himself, prepared
between that date and the 1st of May. To this letter the defendant,
on the same day, replied that he had
Page 75 U. S. 560
no time then to look into the business, and returned the check,
expressing a wish to see the complainant for explanations before
closing the matter.
On the following morning, the complainant called on the
defendant and informed him that he had two thousand dollars to make
the first payment for the property, and offered the money to him.
The money thus offered consisted of notes of the United States,
made by act of Congress a legal tender for debts. These the
defendant refused to accept, stating that he understood the
purchase money was to be paid in gold, and that gold he would
accept, but not the notes, and give the receipt desired. It was
admitted that these notes were at the time greatly depreciated in
the market below their nominal value. [
Footnote 1] On repeated occasions subsequently, the
complainant sent the same amount -- two thousand dollars -- in
these United States notes to the defendant in payment of the cash
installment on the purchase, and as often were they refused by him.
On one of these occasions, a draft of the deed of conveyance to be
executed by the defendant, and a draft of the trust deed to be
executed by the complainant, were sent for examination with the
money. This last was prepared for execution by the complainant
alone, and contained a provision that he might, if he should elect
to do so, pay off the deferred payments at earlier dates than those
mentioned in the lease. These deeds were returned by the defendant,
accompanied with a letter expressing dissatisfaction at the manner
in which he was induced to sign the lease with the clause for the
sale of the premises, but stating that as he had signed it, he
"should have carried the matter out" if the complainant had
proffered the amount which he knew he had offered for the property,
meaning by this statement, as the court understood it, if he had
proffered the amount stipulated in gold. No objection was made to
the form of either of the deeds.
Page 75 U. S. 561
Soon afterwards, the defendant left the City of Washington with
the intention of being absent until after the 1st of May.
On the 29th of April, the complainant, finding that the
defendant had left the city and perceiving that the purchase was
not about to be completed within the period prescribed by the
covenant in the lease, and apprehensive that unless legal
proceedings were taken by him to enforce its execution, his rights
thereunder might be lost, instituted the present suit.
In the bill he set forth the covenant giving him the right or
option to purchase the premises; his election to purchase; the
notice to the defendant; the repeated efforts made by him to obtain
a deed of the property; his offer to pay the amount required as the
first installment of the purchase money in United States notes, and
to execute the trust deed stipulated to secure the deferred
payments, and the refusal of the defendant to receive the United
States notes and to execute to him a deed of the premises. It also
set forth the departure of the defendant from the City of
Washington and his intended absence beyond the 1st of May
following, and alleged that the appeal was made to the equitable
interposition of the court, lest on the return of the defendant he
might refuse to allow the complainant to complete the purchase, and
urge as a reason that the time within which it was to be made had
passed. The bill concluded with a prayer that the court decree a
specific performance of the agreement by the defendant and the
execution of a deed of the premises to the complainant, the latter
offering to perform the agreement on his part according to its true
intent and meaning.
The bill also stated some facts, which it is unnecessary to
detail, tending to show that the acquisition of the property in
question was of especial importance to the complainant.
The answer set up that the complainant, even on his own showing,
had no case; that there was no proper tender; that even if the
complainant once had a right to file a bill in his sole right --
the way in which the present bill was filed -- he had lost right by
the transfer of the half to his brother; that the complainant had
not demanded an execution even
Page 75 U. S. 562
of the contract which he himself set forth, but by the drafts of
the trust deed sent to Tayloe, and which was the trust deed of
which he contemplated the execution, he proposed to pay, at his own
option, the whole purchase money before the expiration of the ten
years, and thus would interfere with the duration of that security
and investment in the identical property leased, which had been
originally contemplated and provided for, thus subjecting the
defendant to risk and expense in making a new investment. The
answer concluded with an allegation, that
"by the great national acts and events which had occurred when
the complainant filed his bill, and which were still influencing
all values and interests in the country, such a state of things bad
arisen and now existed as according to equity and good conscience
ought to prevent a decree for specific performance in this case
upon a demand made on the last day of a term of ten years, even if
in strict law (which was denied) the complainant was entitled to
make such demand."
Both Taylor and Willard were examined as witnesses. The former
testified that when the lease was executed, he objected to a
stipulation for a sale of the premises, and that Willard said it
should go for nothing. Willard swore that he had said no such
thing.
The court below dismissed the bill, and Willard took the present
appeal.
Page 75 U. S. 564
MR. JUSTICE FIELD, after stating the facts of the case,
delivered the opinion of the Court as follows:
The covenant in the lease giving the right or option to purchase
the premises was in the nature of a continuing offer to sell. It
was a proposition extending through the period of ten years, and
being under seal, must be regarded as made upon a sufficient
consideration, and therefore one from which the defendant was not
at liberty to recede. When accepted by the complainant by his
notice to the defendant, a contract of sale between the parties was
completed. [
Footnote 2] This
contract is plain and certain in its terms, and
Page 75 U. S. 565
in its nature and in the circumstances attending its execution
appears to be free from objection. The price stipulated for the
property was a fair one. At the time, its market value was under
fifteen thousand dollars, and a greater increase than one-half in
value during the period of ten years could not then have been
reasonably anticipated.
When a contract is of this character, it is the usual practice
of courts of equity to enforce its specific execution upon the
application of the party who has complied with its stipulations on
his part or has seasonably and in good faith offered and continues
ready to comply with them. But it is not the invariable practice.
This form of relief is not a matter of absolute right to either
party; it is a matter resting in the discretion of the court, to be
exercised upon a consideration of all the circumstances of each
particular case. The jurisdiction, said Lord Erskine, [
Footnote 3]
"is not compulsory upon the court, but the subject of
discretion. The question is not what the court must do, but what it
may do under [the] circumstances, either exercising the
jurisdiction by granting the specific performance or abstaining
from it."
And long previous to him, Lord Hardwicke and other eminent
equity judges of England had, in a great variety of cases, asserted
the same discretionary power of the court. In
Joynes v.
Statham, [
Footnote 4] Lord
Hardwicke said:
"The constant doctrine of this Court is that it is in their
discretion whether in such a bill they will decree a specific
performance or leave the plaintiff to his remedy at law."
And in
Underwood v. Hitchcox, [
Footnote 5] the same great judge said, in refusing to
enforce a contract:
"The rule of equity in carrying agreements into specific
performance is well known, and the court is not obliged to decree
every agreement entered into, though for valuable consideration, in
strictness of law, it depending on the circumstances."
Later jurists both in England and in the United States have
reiterated the same doctrine. Chancellor Kent, in
Seymour
Page 75 U. S. 566
v. Delancy, [
Footnote
6] upon an extended review of the authorities on the subject,
declares it to be a settled principle that a specific performance
of a contract of sale is not a matter of course, but rests entirely
in the discretion of the court upon a view of all the
circumstances, and Chancellor Bates, of Delaware, in
Godwin v.
Collins, recently decided, upon a very full consideration of
the adjudged cases, says that a patient examination of the whole
course of decisions on this subject has left with him "no doubt
that, as a matter of judicial history, such a discretion has always
been exercised in administering this branch of equity
jurisprudence."
It is true the cases cited, in which the discretion of the court
is asserted, arose upon contracts in which there existed some
inequality or unfairness in the terms by reason of which injustice
would have followed a specific performance. But the same discretion
is exercised where the contract if fair in its terms, if the
enforcement, from subsequent events, or even from collateral
circumstances, would work hardship or injustice to either of the
parties.
In the case of the
City of London v. Nash, [
Footnote 7] the defendant, a lessee,
had covenanted to rebuild some houses, but, instead of doing this,
he rebuilt only two of them, and repaid the others. On a bill by
the city for a specific performance, Lord Hardwicke held that the
covenant was one which the court could specifically enforce, but
said,
"the most material objection for the defendant, and which has
weight with me, is that the court is not obliged to decree a
specific performance, and will not when it would be a hardship, as
it would be here upon the defendant to oblige him, after having
very largely repaired the houses, to pull them down and rebuild
them."
In
Faine v. Brown, [
Footnote 8] similar hardship, flowing from the specific
execution of a contract, was made the ground for refusing the
decree prayed. In that case, the defendant was the owner of a small
estate, devised to him on condition that if he sold it within
twenty-five years one-half of the purchase money should go to his
brother. Having contracted to sell
Page 75 U. S. 567
the property, and refusing to carry out the contract under the
pretense that he was intoxicated at the time, a bill was filed to
enforce its specific execution, but Lord Hardwicke is reported to
have said that, without regard to the other circumstances, the
hardship alone of losing half the purchase money if the contract
was carried into execution was sufficient to determine the
discretion of the court not to interfere, but to leave the parties
to the law.
The discretion which may be exercised in this class of cases is
not an arbitrary or capricious one, depending upon the mere
pleasure of the court, but one which is controlled by the
established doctrines and settled principles of equity. No positive
rule can be laid down by which the action of the court can be
determined in all cases. In general, it may be said that the
specific relief will be granted when it is apparent from a view of
all the circumstances of the particular case that it will subserve
the ends of justice, and that it will be withheld when from a like
view it appears that it will produce hardship or injustice to
either of the parties. It is not sufficient, as shown by the cases
cited, to call forth the equitable interposition of the court that
the legal obligation under the contracts to do the specific thing
desired may be perfect. It must also appear that the specific
enforcement will work no hardship or injustice, for if that result
would follow, the court will leave the parties to their remedies at
law unless the granting of the specific relief can be accompanied
with conditions which will obviate that result. If that result can
be thus obviated, a specific performance will generally in such
cases be decreed conditionally. It is the advantage of a court of
equity, as observed by Lord Redesdale in
Davis v. Hone,
[
Footnote 9] that it can modify
the demands of parties according to justice, and where, as in that
case, it would be inequitable, from a change of circumstances, to
enforce a contract specifically, it may refuse its decree unless
the party will consent to a conscientious modification of the
contract or, what would generally amount to the same thing,
Page 75 U. S. 568
take a decree upon condition of doing or relinquishing certain
things to the other party.
In the present case, objection is taken to the action of the
complainant in offering, in payment of the first installment
stipulated, notes of the United States. It was insisted by the
defendant at the time, and it is contended by his counsel now, that
the covenant in the lease required payment for the property to be
made in gold. The covenant does not in terms specify gold as the
currency in which payment is to be made, but gold, it is said, must
have been in the contemplation of the parties, as no other
currency, except for small amounts which could be discharged in
silver, was at the time recognized by law as a legal tender for
private debts.
Although the contract in this case was not completed until the
proposition of the defendant was accepted in April, 1864, after the
passage of the act of Congress making notes of the United States a
legal tender for private debts, yet as the proposition containing
the terms of the contract was previously made, the contract itself
must be construed as if it had been the concluded to take effect
subsequently.
It is not our intention to express any opinion upon the
constitutionality of the provision of the act of Congress, which
makes the notes of the United States a legal tender for private
debts, nor whether, if constitutional, the provision is to be
limited in its application to contracts made subsequent to the
passage of the act. [
Footnote
10] These questions are the subject of special consideration in
other cases, and their solution is not required for the
determination of the case before us. In the view we take of the
case, it is immaterial whether the constitutionality of the
provision be affirmed or denied. The relief which the complainant
seeks rests, as already stated, in the sound discretion of the
court, and if granted it may be accompanied with such conditions as
will prevent hardship and insure justice to the defendant. The suit
itself is an appeal to the equitable jurisdiction of the
Page 75 U. S. 569
court, and, in asking what is equitable to himself, the
complainant necessarily submits himself to the judgment of the
court to do what it shall adjudge to be equitable to the
defendant.
The kind of currency which the complainant offered is only
important in considering the good faith of his conduct. A party
does not forfeit his rights to the interposition of a court of
equity to enforce a specific performance of a contract if he
seasonably and in good faith offers to comply, and continues ready
to comply, with its stipulations on his part, although he may err
in estimating the extent of his obligation. It is only in courts of
law that literal and exact performance is required. The condition
of the currency at the time repels and imputation of bad faith in
the action of the complainant. The act of Congress had declared the
notes of the United States to be a legal tender for all debts,
without in terms making any distinction between debts contracted
before and those contracted after its passage. Gold had almost
entirely disappeared from circulation. The community at large used
the notes of the United States in the discharge of all debts. They
constituted, in fact, almost the entire currency of the country in
1864. They were received and paid out by the government, and the
validity of the act declaring them a legal tender had been
sustained by nearly every state court before which the question had
been raised. The defendant, it is true, insisted upon his right to
payment in gold, but before the expiration of the period prescribed
for the completion of the purchase, he left the City of Washington,
and thus cut off the possibility of any other tender than the one
made within that period. In the presence of this difficulty
respecting the mode of payment, which could not be obviated by
reason of the absence of the defendant, the complainant filed his
bill, in which he states the question which had arisen between them
and invokes the aid of the court in the matter, offering
specifically to perform the contract on his part according to its
true intent and meaning. He thus placed himself promptly and fairly
before the court, expressing a willingness to do whatever it should
adjudge he
Page 75 U. S. 570
ought in equity and conscience to do in the execution of the
contract.
Nothing further could have been reasonably required of him under
the circumstances, even if we should assume that the act of
Congress, making the notes of the United States a legal tender,
does not apply to debts created before its passage, or, if
applicable to such debts, is to that extent unconstitutional and
void.
In the case of
Chesterman v. Mann [
Footnote 11] it was held by the Court of
Chancery of England that were an underlessee had a covenant for the
renewal of his lease, upon paying to his lessor a fair proportion
of the fines and expenses to which the lessor might be subjected in
obtaining a renewal of his own term from the superior landlord, and
of any increased rent upon such renewal, and there was a difference
between the parties as to the amount to be paid by the underlessee,
he might apply for a specific performance of the covenant, and
submit to the court the amount to be paid. So here in this case,
the complainant applies for a specific performance and submits the
amount to be paid by him to the judgment of the court.
We proceed to consider whether any other circumstances have
arriven since the covenant in the lease was made which render the
enforcement of the contract of sale subsequently completed between
the parties inequitable. Such circumstances are asserted to have
arisen in two particulars -- first in the greatly increased value
of the property, and second in the transfer of a moiety of the
complainant's original interest to his brother.
It is true the property has greatly increased in value since
April, 1854. Some increase was anticipated by the parties, for the
covenant exacts, in 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
arrangement of the parties. The question
Page 75 U. S. 571
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.
[
Footnote 12] Here the
contract, as already stated, was, when made, a fair one, and in all
its attendant circumstances free from objection. The rent reserved
largely exceeded the rent then paid, and the sum stipulated for the
property largely exceeded its then market value.
The transfer by the complainant to his brother of one-half
interest in the lease, assuming now, for the purpose of the
argument, that there is in the record evidence, which we can notice
of such transfer, in no respect affects the obligation of the
defendant or impairs the right of the complainant to the
enforcement of the contract. The brother is no party to the
contract, and any partial interest he may have acquired therein the
defendant was not bound to notice. The owners of partial interests
in contracts for land, acquired subsequent to their execution, are
not necessary parties to bills for their enforcement. The original
parties on one side are not to be mixed up in controversies between
the parties on the other side in which they have no concern.
If the entire contract had been assigned to the brother, so that
he had become substituted in the place of the complainant, the case
would have been different. In that event, the brother might have
filed the bill and insisted upon being treated as representing the
vendee. The general rule is that the parties to the contract are
the only proper parties to the suit for its performance, and except
in the case of an assignment of the entire contract, there must be
some special circumstances to authorize a departure from the
rule.
The court, said Chancellor Cottenham in
Tasher v.
Small, [
Footnote
13]
"assumes jurisdiction in cases of specific performance of
Page 75 U. S. 572
contracts, because a court of law, giving damages only for the
nonperformance of the contract, in many cases, does not afford an
adequate remedy. But in equity, as well as at law, the contract
constitutes the right, and regulates the liabilities of the
parties, and the object of both proceedings is to place the party
complaining, as nearly as possible, in the same situation as the
defendant had agreed that he should be placed in. It is obvious
that persons, strangers to the contract, and therefore neither
entitled to the rights nor subject to the liabilities which arise
out of it, are as much strangers to a proceeding to enforce the
execution of it as they are to a proceeding to recover damages for
the breach of it."
When the complainant has received his deed from the defendant,
the brother may claim from him a conveyance of an interest in the
premises, if he have a valid contract for such interest, and
enforce such conveyance by suit; but that is a matter with which
the defendant has no concern.
It seems that the draft of the trust deed, to secure the
deferred payments, sent to the defendant for examination, was
prepared for execution by the complainant alone, and contained a
stipulation that he might, if he should so elect, pay off the
deferred payments at earlier dates than those mentioned in the
covenant in the lease, and it is objected to the complainant's
right to a specific performance that the trust deed was not drawn
to be executed jointly by him and his brother, and that it
contained this stipulation. A short answer to this objection is
found in the fact that the parties had disagreed in relation to the
payment to be made, and until the disagreement ceased, no deeds
were required. It is admitted that the form of the trust deed was
not such a one as the defendant was bound to receive, but as it was
sent to him for examination, good faith and fair dealing required
him to indicate in what particulars it was defective or with which
clauses he was dissatisfied. Whether it was the duty of the
complainant or defendant to prepare the trust deed according to the
usage prevailing in Washington is not entirely clear from the
evidence. There is testimony both ways. The
Page 75 U. S. 573
true rule, independent of any usage on the subject, would seem
to be that the party who is to execute and deliver a deed should
prepare it. It is, however, immaterial for this case what rule
obtains in Washington. Until the purchase money was accepted, there
was no occasion to prepare any instrument for execution. So long as
that was refused, the preparation of a trust deed was a work of
supererogation. Besides, the execution of the trust deed by the
complainant was to be simultaneous with the execution of a
conveyance by the defendant. The two were to be concurrent acts,
and if the complainant was to prepare one of them, the defendant
was to prepare the other, and it is not pretended that the
defendant acted in the matter at all.
The objection to the trust deed, founded upon the omission of
the name of the complainant's brother as a co-grantor, does not
merit consideration. All that the defendant had to do was to see
that he got a trust deed, as security for the deferred payments,
from the party to whom he transferred the title.
The defendant states in his testimony that when the lease was
executed, he objected to the stipulation for a sale of the
premises, and that the defendant told him that it should go for
nothing. And it has been argued by counsel that this evidence
should control the terms of the covenant. The answer to the
position taken is brief and decisive. First, nothing of the kind is
averred in the answer; second, the testimony of the defendant in
this particular is distinctly contradicted by that of the
complainant, and is inconsistent with the attendant circumstances;
and third, the evidence is inadmissible. When parties have reduced
their contracts to writing, conversations controlling or changing
their stipulations are, in the absence of fraud, no more received
in a court of equity than in a court of law.
Upon a full consideration of the positions of the defendant, we
perceive none which should preclude the complainant from claiming a
specific performance of the contract.
The only question remaining is upon what terms shall the decree
be made, and upon this we have no doubt.
Page 75 U. S. 574
The parties, at the time the proposition to sell embodied in the
covenant of the lease was made, had reference to the currency then
recognized by law as a legal tender, which consisted only of gold
and silver coin. It was for a specific number of dollars of that
character that the offer to sell was made, and it strikes one at
once as inequitable to compel a transfer of the property for notes
worth when tendered in the market only a little more than one-half
of the stipulated price. Such a substitution of notes for coin
could not have been in the possible expectation of the parties. Nor
is it reasonable to suppose, if it had been, that the covenant
would ever have been inserted in the lease without some provision
against the substitution. The complainant must therefore take his
decree upon payment of the stipulated price in gold and silver
coin. Whilst he seeks equity, he must do equity.
The decree of the court below will therefore, be reversed
and the cause remanded with directions to enter a decree for the
execution, by the defendant to the complainant, of a conveyance of
the premises with warranty, subject to the yearly ground-rent
specified in the covenant in the lease upon the payment by the
latter of the installments past due, with legal interest thereon,
in gold and silver coin of the United States, and upon the
execution of a trust deed of the premises to the defendant as
security for the payment of the remaining installments as they
respectively become due, with legal interest thereon, in like coin,
the amounts to be paid and secured to be stated, and the form of
the deeds to be settled, by a master, the costs to be paid by the
complainant.
THE CHIEF JUSTICE with NELSON, J., concurred in the conclusion
as above announced -- that the complainant was entitled to specific
performance on payment of the price of the land in gold and silver
coin -- but expressed their inability to yield their assent to the
argument by which, in this case, it was supported.
[
Footnote 1]
Between the 15th of April and May 1, 1864, one dollar in gold
was worth from one dollars and seventy-three cents to one dollars
and eighty cents in United States notes.
[
Footnote 2]
Boston & Maine Railroad Company v. Bartlett, 3
Cushing 224;
Welchman v. Spinks, 5 Law Times, N.S. 385;
Warner v. Willington, 3 Drewry 523;
Old Colony
Railroad v. Evans, 6 Gray 25.
[
Footnote 3]
12 Vesey Jr. 332.
[
Footnote 4]
3 Atkyns 388.
[
Footnote 5]
1 Vesey Sen. 279.
[
Footnote 6]
6 Johnson's Chancery 222.
[
Footnote 7]
1 Vesey Sen. 12.
[
Footnote 8]
Cited in
Ramsden v. Hylton, 2 Vesey Sen. 306.
[
Footnote 9]
2 Schoales & Lefroy 348.
[
Footnote 10]
See infra, Hepburn v. Griswold, p. <|75 U.S.
603|>603.
[
Footnote 11]
9 Hare 212.
[
Footnote 12]
Wells v. Direct London & Portsmouth Railway
Company, 9 Hare 129;
Low v. Treadwell, 3 Fairfield,
441; Fry on Specific Performance of Contracts ยงยง 235 and 252.
[
Footnote 13]
3 Mylne & Craig 69.
