Segee v. Thomas. the order. The 27th of December, 1826, was the day fixed, not for making the order of sale, but for determining the question, whether there was just and reasonable cause to have such order made. It would not follow that an order of sale would be made upon determining the question of just and reasonable cause in the affirmative. That question might be determined in the affirmative, and yet no order of sale be made. Two things were to be done, after such question should be determined in the affirmative, before an order of sale could be made, to wit, first, to obtain some person to consent to execute the power; and secondly, to receive from such person so consenting a bond, with surety, that the power should be executed in the manner required by law. These two things were to be done before an order of sale could be made. They might be done either at the time fixed for the determination of the question of just and reasonable cause, or at some future time. Although the bond required by law upon an order authorizing the sale of the minor's land, was not given until the 26th of February, 1827, and although the order authorizing the sale was not made until that time, there is nothing in the order inconsistent with the idea that the determination of the question of just and reasonable cause was made on the 27th of December, 1826. And, as every thing, particularly after this lapse of time, is to be presumed to have been rightly done, it is fair to infer from the order itself, that the determination of the question of just and reasonable cause was made on that day; that, subsequently thereto, Hawley consented to execute the power; and that, he having, on the 26th of February, 1827, given bond with surety, as by law required, the order of sale was then passed. The order of sale, therefore, it not having been appealed from, reversed, or vacated, must be considered as a good and valid order. 4. Was the deed for the conveyance of the land defective? Was the power given defectively executed? The plaintiff in his bill says, that the deed is defective. The defendants Segee v. Thomas. in their answer admit, that the deed is defective in form, and as they are advised, defective also in substance. And, as both parties say it is defective, no one can complain if the Court treats it as a defective deed. The deed must, however, be considered as defective, irrespective of the admission of the parties. The power given by the Court of Probate to Hawley, to sell the land, was defectively executed. The order authorizing the sale was dated February 26th, 1827. The only reference to the order of sale in the deed is as follows: "being thereto authorized by an order of the Court of Probate for the District of Stratford." The date of it is not given. By the decisions of the State Courts, this is not sufficient to make the deed a good one. The authority of Hawley does not sufficiently appear on the face of the deed. The reference to the order is not sufficiently distinct. (Watson v. Watson, 10 Conn., 77). The deed is defective in another particular. The order of sale directed Hawley, before a sale was made, to give notice of the same, by advertisement, on the sign-post in Bridgeport, and in a newspaper printed at Bridgeport. There is nothing in the deed to show that this direction was complied with; and no evidence is produced to show that any notice was given. The deed, therefore, must be considered defective. And the power given to Hawley was defectively executed. The question, then, is-What should a Court of Equity do under the circumstances? Whatever may be said against the right of a Court of Equity to interfere, to aid a defective and invalid power, it is very clear that it is always ready to interfere to aid the defective execution of a valid power. Nothing is more common than for a Court of Equity to interfere to aid such defective execution of a valid power, when there are no opposing equities on the other side. In the deed in question, there is clearly an intention manifested by Hawley to execute the power given him. He made an attempt to execute it, and the execution was defective. A man has power to execute a deed of land. The statute requires that all deeds of land shall be executed in the presence of two Segee v. Thomas. witnesses. The deed is executed, by mistake, with only one witness. Equity will relieve. In this case, there was no statute regulation to be followed, in the execution of the power, by the neglect of which the execution of the deed was defective. But the two defects existed, which have been pointed out. And, to aid defects of this kind, a Court of Equity will interfere, when there is no opposing countervailing equity. (1 Story's Eq. Juris., §§ 95, 169 to 179; Smith v. Chapman, 4 Conn., 344; Watson v. Wells, 5 Conn., 468; Carter v. Champion, 8 Conn., 549; Sumner v. Rhodes, 14 Conn., 135.) Is there, then, any opposing equity on the part of the defendants? None can be discovered. Upon the petition of the guardian, the Court of Probate, after due notice to all concerned, found and adjudged, that it was for the advantage of the minor to have the land sold, and that her interest would be promoted thereby. That being so, the Court authorized Hawley to sell the land. He bargained with the plaintiff for the sale, and made a defective deed of the land. Upon the execution of such defective deed, all parties supposing it to be good and valid, the plaintiff paid the full value for the land, which full value was paid to the guardian. Thereupon, the plaintiff went into possession, using and improving it as his own, and, by his expenditures, greatly adding to its value, no one, until the commencement of the action at law, in April, 1850, contesting his right. Mrs. Thomas received the pay for the land, and now retains it, never having offered to return it; and, while so retaining it, seeks to recover the land, with all the improvements, upon the ground that the deed was defective in form. These facts show a strong equity on the part of the plaintiff, and no equity on the part of the defendants. It is claimed, however, on the part of the defendants, that, notwithstanding this is so, the plaintiff has an adequate remedy at law, and therefore no relief should be granted. This remedy, which it is said the plaintiff has, is the right to bring an action at law, for damages, against Hawley, on the covenants contained in his deed. This is the only remedy at law which the plaintiff has. And, although it is a remedy Boody v. The Rutland & Burlington R. R. Co. which he may have at law, it is not an adequate remedy at law. How much of a remedy the plaintiff may have upon. such covenants, does not appear. Whether any one liable upon such covenants would be able to respond in damages for the breach of them, has not-been made manifest. But, whether any one be able to respond or not, that should not be considered a sufficient reason why the defendants should not be restrained from doing that, the doing of which is inequitable and unjust, or why the defendants should be permitted to violate the equitable rights of the plaintiff. There is no remedy in favor of the plaintiff, by action at law, against the defendants. They are attempting to do that which, in equity and good conscience, they ought not to do. And, even if there was a remedy at law against the defendants, it would not prevent the interference of this Court, as a Court of Equity, unless that remedy at law was a full and adequate remedy. For, it has been held, that the Courts of the United States, as Courts of Equity, will grant relief to a legatee, against an administrator, although the party plaintiff may have a remedy at law, on an administration bond. (Pratt v. Northam, 5 Mason, 95). The decree of the Court therefore is, that the defendants be restrained from the further prosecution of their action at law against the plaintiff, and be decreed to release and convey to the plaintiff all right and title to the land sought to be recovered in that action, and that the defendants pay to the plaintiff his costs. AZARIAH BOODY AND ANDREW B. STONE vs. THE RUTLAND AND BURLINGTON RAILROAD COMPANY. Where B. contracted with a Railroad Company, in writing, to build certain bridges on its road, at a certain sum per foot, to be paid, one-fourth in cash, and three-fourths in the stock of the road at par value, and the contract was entirely silent as to the time or place of payment: Held that, looking to the contract alone, B. could not call for payment, either of the cash or stock, until a complete performance of the contract on his part, or, at any rate, before, or Boody v. The Rutland & Burlington R. R. Co. oftener than a bridge was fully completed. Nor could he then sue and recover for the stock without proof of a special request and of a refusal to deliver it. For, if no time be fixed in the contract, or by other agreement of the parties, either express or implied, for the doing of the thing, a request is essential to the cause of action. The Company, after the commencement of a suit by B. on the contract, having mortgaged its road, to secure the payment of debts due from it to third persons: Held, that the act of mortgaging the road would not work or amount to a disability to perform the contract, or make the defendants liable to pay money in lieu of the stock. Where it appeared that it was the custom of the Company to make monthly payments to B. and its other contractors, for work done on its road, upon estimates made by the engineer at the end of each month: Held, that this must be considered the rule of payment under the contract, established by mutual consent, and binding upon the parties, so as to make a special request for the stock unnecessary. Held, also, that, under the circumstances of this case, no tender or offer of the stock having been made by the Company, B. was entitled to recover its value. After the making of the original contract, B. proposed to put in iron bearings, instead of wood, for so much per foot of the bridges, varying, like the prices in the original contract, according to the different spans in the bridges, "in addition," as B. said, "to the former proposal;" but nothing was said as to the manner of paying the additional expense: Held, that it might be well inferred, that the mode of paying for the iron bearings was to be the same as that provided for building the bridges. (Before NELSON and PRENTISS, JJ., Vermont, May, 1853.) The facts of this case sufficiently appear from the opinion of the Court. Jonathan D. Bradley, for the plaintiffs. Charles Linsley and D. A. Smalley, for the defendants. PRENTISS, J. This is an action of account to recover the balance of book accounts between the parties, a form of action given by statute in this State for such purpose, and long in use here. After judgment to account was confessed by the defendants, and duly entered up, the action, by agreement of the parties, and order of Court founded thereon, was submitted to the determination of referees. The referees have made and returned into Court a report, awarding to the |