3. That a mortgage was given as secu-11. Where two purchase lands, and rity for the payment of the unpaid purchase money, is not sufficient to protect such subsequent purchaser. He is only protected as to money actually paid before notice. 16.

4. A delay of two years and a half not accounted for in bringing suit to compel specific performance, is fatal to relief. Ib.

5. A receipt for $100, part of the consideration of an alleged contract for sale of lands, which does not describe the land or mention the'

one takes the title in his own name, but his co-purchaser has paid his whole share of the consideration and has been permitted to posses and enjoy the property, delay in bringing suit for his moiety will not bar relief.

Ib.

in property at a sheriff's sale for the benefit of defendants in execution, can be sustained only on the ground of fraud.

Ib.

price to be paid, without any other 13. Executed parol agreements to buy memorandum in writing, is not sufficient to found a decree for spe-|| cific performance. The property to be conveyed, and the price to be paid, must be designated with certainty. Welsh v. Bayaud, 186 6. Where the fee is in the wife, a contract by her husband for the sale of her land, would not, if enforced, give title. A decree to convey would be complied with by his giving a deed of bargain and sale, without covenants, upon payment of the consideration. Ib.

7. In a suit for specific performance upon such a contract, the husband could not be compelled to procure a conveyance from his wife, nor could, she in such suit, in any other way, be compelled to execute it. Ib.

8. Nor can a decree be made for the' repayment of the money paid on signing the contract, under à prayer | for general relief in a suit for specific performance.

Ib..

9. The question being merely whether the complainant was half owner of certain lands, and entitled to a conveyance of an undivided half. thereof the facts of the case held to substantiate complainant's claim." Lawrence v. Lawrence, 317

14. When the elements of the case are, simply, a purchase under a parol promise to hold for the benefit of the defendant in execution, such a transaction cannot be enforced either at law or in equity.

Ib.

15. The defendant agreed by parol to purchase property at a sheriff's sale for the benefit of the defendant in execution; the latter, at the time of the agreement, assigning to him twenty-five shares of stock to make the purchase more beneficial to him. It was also agreed that the defendant in execution should raise the purchase money, and take the property within sixty days after the sale. Held, that the defendant in execution having failed to raise the money and redeem the property for over two years, and having permitted, in the interim, the purchaser to improve the property, and in some respects use it as his own, had lost his right to enforce the specific performance of the contract. Held also, that the stock stood as collateral security, and that the purchaser must account for its value, it having been sold by him. Ib.

10. A suit in the nature of a suit for specific performance, requires diligence in performance and in bring-16. Upon an application for a specific

ing suit. A suit for the declaration

of a resulting trust does not require the same diligence.

performance of a contract, the court must be satisfied that the claim is fair, reasonable, just, and

equal, in all its parts. Crane v complete breach, will be construed
Decamp,
as a waiver.

414

17. To determine these qualities, the court will look not merely at the' terms of the agreement, but at the relations of the parties, and the surrounding circumstances. Ib.

18. A party seeking a specific per

Ib.

formance of a contract, must show 26. Where time is of the essence of a

that he has performed, or been ready and willing to perform all the essential terms of his contract.

Ib.

contract, the party having the option to insist must make the point promptly, before other equities intervene.

Ib.

19. Time and modes of payment, at-27. A collateral covenant restraining tended by special circumstances of hardship and loss caused thereby. are circumstances to be weighed by the court in exercising a sound legal discretion.

Ib

the assignment of an agreement will not be enforced in equity, where it appears in the contract that such restraint is but an incident to the objects of the principal covenants which have been substantially performed.

Ib.

28. The general rule is, that in equity time is not of the essence of the contract, unless the parties have expressly so stipulated, or it necessarily follows from the nature and circumstances of the contract. King v. Ruckman,

599

21. Penalties, forfeitures, and securities for conditions broken, are not 29. A contract for the sale of land is favored in equity. They are usually held to be securities for the payment of money, and the perform ance of conditions, when compensation can be thus made. Grigg v. Landis, 494

22. Covenants contained in deeds and agreements, prescribing the mode in which the premises shall be improved, and in restraint of their use, will be sustained, within reasonable limitations. Ib.

23. Time may be made of the essence of a contract in equity by the express stipulations of the parties, or it may arise by implication from the nature of the property, or the avowed objects of the seller or the purchaser. Ib.

24. Circumstances inconsistent with

regarded in equity for most purposes as if it had been specifically executed. The purchaser becomes the equitable owner of the land, and the seller of the purchase

money.

Ib.

an intention to enforce a strict com-32. Notice that the defendant would

pliance, such as proceeding with the purchase after an actual and

not extend time for payment, cannot aid him. Complainant was

ready with the money on the day!!
of payment.
Ib.

33. The complainant being present
with the money at the time and
place where he understood payment
was to be made, the defendant,
after seeking the next day to repu-
diate the contract, and refusing
three days afterwards to receive
the money, when complainant ex-
pressed willingness to pay it, can-
not be relieved from his contract in
a court of equity on the ground that
the money was not tendered at the
proper place.
Ib.

34. What lands were intended to be
embraced in the contract, can be
sufficiently gathered from contract,:
bill, and answer, without resorting
to parol evidence, to warrant a de-
cree for specific performance.

See CONTRACT, 1-3.

SUBROGATION.

See MORTGAGE, 10.
PLEADING, 8.

SUPERSEDEAS.

See PRACTICE, 4.

SUPPLEMENTAL BILL.

See PRACTICE, 15.

SURPLUS PROCEEDS.

See DESCENT, 1.

TAKING LANDS.
See RAILROAD COMPANY, 7-9.

TENANT FOR LIFE.

See INFANT'S LANDS, 1.

TIME.

TRUST AND TRUSTEE.

See CONTRACT, 2.
EVIDENCE, 17.
PLEADING, 7.

PRINCIPAL AND AGENT.

UNDUE INFLUENCE.

See FRAUD, 3.
PLEADING, 2.

VENDOR AND PURCHASER.

See CAVEAT EMPTOR.

SPECIFIC PERFORMANCE, 29.

WAIVER.

See SPECIFIC PERFORMANCE, 23, 26, 28.

VOL. VI.

application of the rule in Shelley's 10. A codicil revoking in express