not make a new one, and that the
complainant must consequently be re-
mitted to his action at law for damages.
But it was held by the court, that a
party ought not to be allowed to set
up his own default as a bar to a right,
which would have been valid, if that
default had not happened, and that
the vendee was consequently entitled
to have the contract carried into effect
as far as practicable, and to receive
compensation for that part, which
could not be executed. The law was
held the same way in Voorhees v. De
Meyer, 3 Sandford, Ch. 614 ; 2 Bar-
bour, 37; and Jopling v. Dooley, 1
Yerger, 289, and is no doubt well es-
tablished on this footing throughout
the Union; Wiswall v. M l Gowan, 1
90
SPECIFIC PERFORMANCE.
Hoffman, 125 ; Wetherford v. James,
2 Alabama, 170 ; Bass v. Gilleland,
5 Alabama, 761; Jones v. Schekleford,
2 Bibb, 410 ; Williams v. Champion,
6 Hammond, 169; Jacobs v. Lake, 2
Iredell, Eq. 206; Evans v. Kings-
berry, 2 Randolph, 120 ; Matthews v.
Patterson, 2 Howard, Miss. 729;
Kotchner v. >S%ort, 20 Ohio, 453.
Thus, when the vendor dies before
the time fixed for the conveyance, and
his widow refuses to release her dower,
the court may decree a specific per-
formance as against the heirs, and
give the purchaser compensation by
authorizing him to retain one-third of
the purchase-money until the death
of. the widow ; Springle v. Shields, 17
Alabama, 295 ; while a refusal by a
wife to permit her husband to give
full effect to a contract of exchange
by joining with him in the deed neces-
sary to carry it into execution, may
be compensated by providing that the
conveyance of the other tract shall be
made in such a manner, or with such
reservations as will afford a sufficient
indemnity against any claim which
she may choose to bring forward after
the death of her husband ; Young v.
Paul, 2 Stockton, Ch. 402.
When, however, land held jointly
by three persons — one of whom was a
married woman — was sold by them
under a contract, to which the hus-
band was a party, equity enforced the
sale as against the two owners, who
were sui juris ; but refused either to
enforce it against the married woman
or to compel her husband to convey
his life interest, with a deduction or
compensation for the failure to make
title to the inheritance ; Clark v.
Reins, 12 Grattan, 98. And an entire
want of title will, under ordinary cir-
cumstances, be' a reason for refusing
to decree a specific performance, be-
cause it would be useless to direct any
one to convey that which he has not
got. When, however, a purchaser
makes expenditures or improvements
on the faith of fraudulent represen-
tations of ownership, the guilty party
cannot escape from a decree for specific
performance, merely by showing that
his statements were false, nor without
proving that he has made every reason-
able effort to procure the title which
he wrongfully represented himself to
hav«j Love v. Camp, 6 Iredell, Eq.
209 ; Jones v. Carland, 2 Jones, Eq.
502.
It has also been decided, that when
there is an entire mistake as to the
identity of the land sold, or in other
words, when there is, in fact no land
answering to the terms of the agree-
ment, and the intention of the parties,
the contract fails altogether, and with
it the right to a specific perform-
ance; .Graham v. Eendren, 5 Munf.
185; Morss v. Elmensdorff, 11 Paige,
277; and the same rule will apply
where the vendor proves to have only
an undivided share instead of the en-
tirety; Irick v. Fulton, 3 Grattan, 193.
A contract by a husband for the sale
of real estate belonging to his wife,
which she refuses to carry into execu-
tion, has been held to fall within the
same principle, and neither to warrant
a decree that he should procure her
to join in making a conveyance; Yonmg
v. Paul, 2 Stockton, Ch. 402; Clark
v. Reins, 12 Grattan, 98 ; nor that
his interest as tenant, by the curtesy,
should be conveyed separately, and
compensation made for the difference
in value between an estate for life and
the inheritance ; Evans v. Kingsberri/,
SETON V. SLADE.
91
2 Randolph, 120; Watts v. Kinny, 3
Leigh, 272. And when the sale is
of all the right, title and interest
of the vendor, under a contract with
third parties, and not of an absolute
estate or title, the purchaser will not
necessarily be entitled to compensa-
tion for a partial failure, and may be
compelled to choose between rescind-
ing the sale altogether, and paying
the purchase-money without abate-
ment; Bailey v. James, 11 Grattan,
468. In Clark v. Reins, however,
a contract of sale made by two of three
tenants in common, in conjunction
with the husband of the third, who
was a married woman, was specifically
enforced against the parties who were
sui juris, and able to make title on the
payment of their proportion of the pur-
chase-money ; although a decree was
refused against the husband and wife
for the remaining portion.
The better opinion would seem to
be, that when the vendee is aware at
the time of filing the bill, that the
vendor has conveyed the whole estate
since the sale, to a purchaser without
notice, he is not entitled to apply to
equity, either for a specific perform-
ance, which he knows to be imprac-
ticable, or for compensation, which
can be equally well obtained by an
action on the contract for damages;
Match v. Cobb, 4 Johnson, Chan-
cery, 559 ; Kempshall v. Stone, 5
Id. 195; Morss v. Elmensdorff, 11
Paige, 277. But a sale to a pur-
chaser with notice, will not preclude
the performance of the contract, nor
divest the jurisdiction of equity, be-
cause the conscience of the buyer is, un-
der these circumstances, still charged
with the trust; ante, vol. 2, p. 182;
M Morris v. Crawford, 15 Alabama,
271; Dickinson v. Any, 25 Id. 424;
Foss v. Haynes, 81 Maine, 81 ; nor will
it be divested by a sale, after such a
default by the vendee in point of
time, as to deprive him of all remedy
on the contract at law, though not of
right in equity ; WiswaU v. M l Gowan,
1 Hoffman, 125.
Ordinarily speaking, when the exe-
cution of the contract is impossible in
consequence of the failure of title, or
from any other cause, equity will not
substitute compensation for perform-
ance, and will remit the complainant to
his remedy, by an action for damages
in a common law tribunal ; Sims v.
M'Ewen, 27 Alabama, 184; Lewis v.
Yale, 4 Florida, 418; and hence,
when the land is shown to have been
conveyed to a purchaser, without no-
tice, before the suit was brought, the
bill will usually be dismissed, and the
vendee left to seek compensation else-
where ; Kempshall v. Stone, 5 John-
son, Ch. 194 ; especially if he knew
of the conveyance at the time of issu-
ing the subpoena, and cannot plead
ignorance as an excuse for instituting
a suit, which cannot be conducted to
a successful termination ; Hatch v.
Cobb, '4 Johnson, Chancery, 559;
W Queen v. Choutean, 20 Missouri,
222. When, however, the conveyance
is anterior to the time of filing the
bill, or is unknown at the period when
it is filed, or when there are other
special circumstances constituting an
equity on the one hand, or rendering
the remedy at law insufficient or pre-
carious on the other, a specific com-
pensation may be decreed as a substi-
tute for a specific performance; Aclay
v. Echols, 18 Alabama, 353, 383 ;
Woodioard v. Harris, 2 Barbour, 439 ;
Yfiswell v. if' Gowan, 1 Hoffman,
92
SPECIFIC PERFORMANCE.
Ch. 125. Thus a purchaser may ob-
tain a pecuniary indemnity or satisfac-
tion for improvements made on the
land, under a contract, which falls
short of the requisites for a specific
performance ; Parkhurst v. Van Cort-
landt, 1 Johnson, Ch. 273 ; while a
vendor will be compensated for injury
done to the land by a purchaser, who
commits the injustice of pleading the
statute after going into possession:
if from lapse of time or other causes,
no adequate remedy could be had at
law; Phillips v. Thompson, 1 John-
son, Ch. 131. Some of the cases would
seem to imply that compensation
should be given, whenever perform-
ance is rendered impossible by the
default or inability of the vendor;
Slaughter v. Tindle, 1 Littell, 358 ;
Fisher v. Kay, 2 Bibb, 434 ; Williams
v. Champion, 6 Ohio, 169; Dustin
v. Newcomer, 8 Id. 49 ; and there
will be an undoubted right to a pecu-
niary indemnity, when the circum-
stances are such as to render an equit-
able lien or hold on the land essential
to the purposes of justice, as when
labor has been expended or improve-
ments made on the faith of a gift or
contract, which, from the want of cer-
tainty or other causes, cannot be en-
forced specifically; King v. Thomp-
son, 9 Peters, 218 ; Bowie v. Stone-
street, 6 Maryland, 418, 431 ; Evans
v. Pattle, 19 Alabama, 398 ; ante,
vol. 1, 734.
When the laud sold, proves to con-
tain a great excess in quantity, over
the amount anticipated by the parties
to the sale, equity will not decree the
execution of the contract as to the ex-
cess, uuless upon the terms of a pro-
portionable augmentation of the price
paid by the vendee; King v. Hamil-
ton, 4 Peters, 311; Smith v. Smith,
4 Bibb, 81.
The fourth section of the English
Statute of Frauds, as enacted in most
of the states of this country, declares
that no action shall be brought to
charge any person on any contract or
sale of land, tenements, or heredita-
ments, unless in writing, and signed
by the party to be charged, or some
agent lawfully authorized. And it is
well settled in England under the
principal case, and other authorities,
that as the obligation of a contract,
signed only by one party, is impliedly
reserved by this section, against the
party who signs it, it will be enforced
in equity as well as at law, notwith-
standing the objection arising from
the want of mutuality, it being said
that the remedy b^omes mutual as
soon as a bill is filed, and an execution
of the contract tendered, whatever it
may have been before, and that this is
sufficient to satisfy the requisitions of
substantial equity ; Ives v. Hazard, 4
Rhode Isl. 15; 1 Sug. on Vend. ch. 3,
sect. 312. And this construction has
been adopted in general in this coun-
try, although not without some doubt
as to its correctness; Clason v. Bailey,
14 Johnson, 484 ; Laning v. Cole, 3
Green, Ch. 229; Getchell v. Jewett,
4 Greenleaf, 350; Rogers v. Saun-
ders, 16 Maine, 92 ; Esmay v. Gor-
ton, 18 Illinois, 483. In Pennsyl-
vania, however, the fourth section of
the statute has been omitted, and
only the first sections, which declare
that no estate or interest in land
shall pass without writing, re-enacted.
And it has been decided that, al-
though verbal contracts for the sale
of land, are thus left in full force as
contracts; they are so far within the
SETON V. SLADE.
93
construction of the act, as not to
authorize a decree of specific perform-
ance. Hence an inference has been
drawn, that as in the absence of the
fourth section, there is no reason for
implying an exception to the general
rule, that the obligation of contracts
must be mutual ; a contract signed
only by one party ought not to be
specifically enforced against him, be-
cause he cannot have a corresponding
remedy against the other party, and
that both will be left to their remedy
at law, where they can meet on terms
of equality. The law was so held in
Wilson v. Clark, 1W.&S. 554 ; and
Parrish v. Koons, 1 Parsons, Equity
Cases, 79 ; overruling Lowry v. Me-
haffy, 10 Watts, 387, where the point
had been held the other way, but
where the question was not necessa-
rily before the court, because the con-
tract had been executed by the entry
of the purchaser, and thus rendered
binding independently of the writ-
ing. In 31'Farson's Appeal, 1 Jones,
503, however, the court returned to
the ground taken in Lowry v. Me-
haffey, by deciding that a writing
signed by one party and accepted by
the other, would take the contract
out of the statute against the former,
notwithstanding the want of the sig-
nature of the latter.
The cases can hardly be said to be
quite consistent, for while mutuality
of obligation, has been held to be
necessary by courts which do not
require that mutuality of signature
which can alone render the contract
mutually binding : Duval v. Myers,
2 Maryland Ch. 401 ; in D' Arras v.
Keyser, the Supreme Court of Pennsyl-
vania enforced a covenant to convey on
payment of the purchase-money, in the
absence of any stipulation that the
money should 'be paid, thus giving
the vendee a remedy which could not
have been resorted to by the vendor.
In Bodine v. Glading, 9 Harris, 50,
on the other hand, a provision that the
vendor might re-sell if the money
was not paid at a day certain, was
held to deprive him of the right to
enforce the contract after the day had
passed, by introducing an inequality
into the relations of the parties, and
destroying that mutuality which was
said to be essential to a decree for
specific performance. And the ques-
tion when a promise to sell or con-
vey, if the vendee will pay, will
have sufficient mutuality to warrant
a decree for a specific performance, in
the absence of a provision to accept
and pay for the conveyance, is one of
much nicety, and requires an atten-
tive investigation; De Cordova v.
Smith, 9 Texas, 129 ; Stutenburgh v.
Tompkins, 1 Stockton, Ch. 332, 334.
For although contracts, in considera-
tion of performance, are not less valid
than those which grow out of mutual
promises, no action can be main-
tained upon them, until the act for
which they are conditioned is per-
formed, or some step taken towards
performing it; 2 Am. Lead. Cases, 88,
4th Am. ed. ; unless they are invested
with a permanancy of obligation by a
seal, which they cannot otherwise de-
rive from anything short of the perform-
ance of the consideration, and they
should not therefore be specifically en-
forced, unless they have been so far
acted on by one party as to render them
binding on the other. It would seem to
follow that a unilateral contract for the
conveyance of land on the payment of
the price at a day certain, should not
94
UNDUE INFLUENCE.
be carried into execution unless a
tender is made at the day, or payment
accepted then or subsequently. There
is, however, no doubt that a contract
may be enforced by equity, notwith-
standing the want of a mutual obliga-
tion, if the promise made by one party
has led the other to place himself in
a position where he must be a loser
unless the promise be fulfilled; Zon-
ing v. Cole, 3 Green, Ch. 229 ; France
v. France, 4 Halsted, Ch. 650 ; Young
v. Paul, 2 Stockton, Ch. 402; Very
v. Levy, 13 Howard, 345 ; or if the
agreement be under seal, and, there-
fore, binding on the vendor before
and irrespectively of the performance
of the consideration ; Kerr v. Day, 2
Harris, 112. And whenever a contract
is so far mutual that the assent of one
party, manifested by filing a bill or in
any other manner, will render it bind-
ing on both, it may unquestionably
be made the subject of a specifie per-
formance ; Ives v. Hazard, 4 Rhode
Island, 15 ; Farwell v. Loicther, 18
Illinois, 252.
It was held in Hi g don v. Tliomas,
1 Harris & Gill, 139 ; and Barry v.
Coonibe, 1 Peters, 640, 650, that the
contract need not be signed at the
end, in order to constitute a signa-
ture, within the meaning of the sta-
tute ; and that where a bond executed
by one party, and conditioned for the
conveyance of land to the other, had
been prepared by the latter, and set
forth his name as obligee, in his own
handwriting, it was sufficiently signed
to render bim equitably liable on the
contract ; and the same point was
decided in M'Connel v. Brillliart, 17
Illinois, 354, and Ives v. Hazard,
4 Rhode Island, 14. In New York,
however, the provisions of the statute
expressly require subscription, and
cannot, therefore, be satisfied by set-
ting forth the name of the party in the
course of the writing, and not at the
bottom ; Colesv. Bonnie, 10 Paige,526.
UNDUE INFLUENCE.
HUGUENIN v. BASELEY.
NOV. 14, 1G, 17, 18, 23, 1807.
reported 14 ves. 273.
Voluntary Settlement obtained by an Agent. — Undue Influence.]
— Voluntary settlement by a widow upon the defendant, a clergyman, and
Ms family, set aside, as obtained by undue influence and abused confi-
dence in the defendant, as an agent undertaking the management of her
affairs; upon the principles of public policy and utility, ap>plicable to the
relation of guardian and ward.
The object of the bill in this cause was to set aside a conveyance, made by
the plaintiff Mrs. Huguenin, previously to her marriage with the other plain-
tiff, her second husbaud ; as having been improperly and fraudulently obtained.
HUGUENIN V. BASELEY. 95
The following are the principal circumstances, established by evidence and
admission, under which this relief was sought.
In 1803, Mrs. Huguenin, then Mrs. Hill, appeared to be entitled in fee
simple to the manors of Cleydon and Hampton Gray, and other estates in Ox-
fordshire, under the ultimate limitation of the reversion by a will, dated in
17C8, to her father, Richard Hindes, who had gone to Jamaica, where he had
acquired considerable property, real and personal, which upon his death also
descended to her.
After some correspondence with their solicitors in England, she, in Septem-
ber, 1803, returned with her husband from Jamaica. He died in October,
1803 ; and in November, she being then about the age of forty, first became
acquainted with the defendant, Thomas Baselcy, a clergyman, who was also
connected with the family of *Hindes, and had with other persons,
upon the death of the testator in 1798, instituted a suit claiming as L J
heirs-at-law of Richard Hindes ; in which cause an inquiry directed by the
Lord Chancellor, produced the title of Mrs. Huguenin as the only child of
Richard Hindes.
The bill stated, that the defendant Baselcy, with the view of getting the
control and management of the said estates, and of getting them ultimately
settled upon himself, procured an introduction to Mrs. Huguenin ; and having
by various means ingratiated himself with her, represented that her solicitors
had mismanaged and neglected her property, and induced her, then a stranger,
having no friends or relations in England, and being quite ignorant of the
value of property, to withdraw her affairs from those solicitors and to place
them in the hands of the defendant; who, with such design, wrote the follow-
ing letter, which she, by his inducement, caused to be copied and signed, and
sent to the solicitors : —
" Sirs, — Having been so unfortunate as to lose the best of husbands and the
sincerest of friends, by the premature death of Mr. Hill, I feel myself, as it
were, left in that unprotected state that I now want the assistance of some
friend with whom I can advise, in the adjustment of my affairs, and who will
kindly interpose in seeing that my property is managed to the best advantage.
From reflection, I have the greatest reason to believe that Providence has
raised me up a friend, and that friend is Mr. Baseley, who will take upon him
the trouble of bringing all my affairs into such a plan as I shall hereafter be
enabled to conduct them with facility to myself. Impressed with this agree-
able idea, I beg leave to inform you that I commit, (subject to my own inspec-
tion,) the perfect arrangement of my business with you into Mr. Baseley's
hands ; and hope that you will prepare, without any delay, every account that
you have standing against me, with the deeds, &c, of the estate at Hampton.
As I wish to leave London at Lady-day next, I must desire that no delay on
your part will take place. Mr. Baseley *will be ready to meet you on
the business whenever you will appoint a day. With this determina- L -I
tion, I remain, &c. Ann Hill."
The deeds were accordingly delivered to Baseley, and were deposited by
96 UNDUE INFLUENCE.
him with his solicitor. The hill farther represented, that the defendant art-
fully dissuaded the plaintiff from residing in the house at Hampton Gay, and
letting the estate, as she had proposed, and recommended to her a surveyor,
who gave a very unfavorable account of the situation of the estate; and the
defendant Baseley, soon afterwards offered her £400 a year for a lease of the
whole, clear of all expenses, and keeping the premises in repair, representing
£420 a year as the utmost value, which was confirmed by his solicitor; that she
executed the deeds under the persuasion of the solicitor that they were her
will, and the lease to Baseley, and that she had no intention to give away or
settle her estate, &c.
By the deed dated the 5th of May, 1804, which was the subject of the bill,
the plaintiff Mrs. Huguenin, in consideration of 10s., conveyed the Hampton
Gay estates to a trustee, his heirs and assigns, to the use that she and her
assigns might, during her life, receive out of the said manor, &e., an annuity
of £400, secured by a trust term of 500 years; and subject thereto, to the use
of the defendant Baseley, for life, without impeachment of waste, with remain-
ders to trustees to preserve contingent remainders to his wife for life, to their
children, born, or to be born, in tail, with cross remainders, and the ultimate
remainder to Mrs. Huguenin. The value of that estate was rather more than
£400 per annum.
The defendant, Thomas Baseley, by his answer represented, that from the
time of his first acquaintance with the plaintiff, a great intimacy took place,
and she expressed great affection for him and his family; that she complained
of the conduct of her solicitors, declaring her intention of taking the manage-
ment of her affairs from them ; and upon her application, he recommended to
j-^.pr-i her *his solicitor and a surveyor, and she intimated to the defendant
her intention of settling her estates on him and his family, and re-
quested him to write to her solicitors, to acquaint them that she should take
her affairs out of their hands ; and the defendant at her request did in her
presence, and with her sanction, and according to her directions, write the
form of a letter for that purpose, which the plaintiff, as he believes, copied,
and sent to her solicitors ; but the defendant positively denies that such letter
was written at his instigation, or by his desire; on the contrary, he wrote the
same at the pressing desire of the plaintiff; and though the language of the
letter was the defendant's yet the substance was in fact dictated by her. In
another part of the answer, the defendant denied that he induced her to send
that letter, stating his belief that it was written by him, but that it was so
written at the particular instance and request of the plaintiff, who desired him
to draw up such letter, as before mentioned ; and he believes he did, upon that
occasion, state to the plaintiff, that, if it was her wish to discharge her soli-
citors, such letter ought to be in her own handwriting, as it would not be so
proper for it to appear in his handwriting, and the plaintiff did copy such
letter.
The answer farther stated, that the plaintiff frequently expressed to the de-
fendant a wish to settle her affairs, and make a disposition of her property,
HUGUENIN V. BASELEY. 97
inquiring whether the defendant was related to her, and who was her heir-at-
law ; and being informed, expressed a great dislike to that family. And after
various conversations, she repeated her determination to settle the Hampton
Gay estate on the defendant and his family ; and in March, 1804, without any
persuasion, suggestion, or influence, she gave instructions accordingly ; and
the defendant understood her intention to be, to settle the estate, so as to re-
serve to herself a rent-charge for her life about equal to the reasonable rent ;
and that it was her wish that the defendant should go and reside there imme-
diately with his family, so that the mansion house might be kept up ; declaring,
that she would never reside there on *account of the trouble of repair- ^.p,,
ing, &c. ; and the defendant denied all the charges of fraud, in-
fluence, &c.
The answer of the attorney who prepared the deed, stated, that when in-
structed by her to prepare the settlement, he recommended to her to make a
will, which might be revoked or altered ; when she replied, that she would
not do it by will, on that account, as, if she should alter her situation, she in-
tended it should not affect the settlement of her property. The defendant,