Page images
PDF
EPUB

light and air, and one which only concerns it in the indirect way mentioned.

A covenant to have a quarry left unopened illustrates the further meaning of the rule against unusual incidents. If it is of a nature to be attached to land, it creates an easement of monopoly-an easement not to be competed withand in that interest alone a right to prohibit an owner from exercising the usual incidents of the property. It is true that a man could accomplish the same results by buying the whole land, and regulating production. But it does not follow, because you can do a thing in one way, that you can do it in all; and if the covenant were regarded as one which bound all subsequent owners of the land to keep its products out of commerce, there would be much greater difficulty in sustaining its validity than if it should be treated merely personal in its burden.

A contract relating to the way in which the business at a particular house is to be carried on, is a contract just as much as a contract as to the mode in which the cultivation of a particular bit of land is to be carried on relates to the land. It affects the value of the revision, it affects the house, and is a contract running with the land.

The words "each of them and their and each and every of their heirs, executors, administrators, and assigns" are never found in what are called personal contracts. If an engagement was made with an artist to paint a picture, and he died, it should not be left with his executors to finish what he had started.

If a man by the leave of a person who is bound by a restrictive covenant as to the use of land, enters into possession of the land with notice of the covenant, he will be restrained from violating that covenant. Why should not a person who enters into possession of land for his own convenience, and by the permission of a person bound by a restrictive covenant, be as much bound as a tenant from year to year?

If just grounds of equitable jurisdiction exist, any valid contract, however unsolemn, may be enforced by a decree of specific performance. The cases are very numerous in which

agreements purely personal not to engage in a particular trade or business within certain reasonable boundaries have been enforced by injunction, and it does not lessen the duty or imperil the right that the contract proved or established is by parol.

Even though the agreement itself fixes a penalty for its breach, it will not follow that equitable relief must be denied, for, if the contract appears to be such in its character and purpose that its performance was contemplated by the parties and not merely damages for the breach, the equitable relief will be awarded. When that relief is by injunction to restrain the commission of an injurious act, the complaint of the plaintiff is somewhat in the nature of a bill quia timet, in which equity acts to prevent a mischief rather than to redress it.

If the contract remains technically a personal one, the reasonable and settled doctrine is that contract equity is so attached to the use of the land which is the subject-matter as to follow the land itself into the hands of a purchaser with full knowledge of the facts, who buys with his eyes open to the existing equity, and more especially when he buys for the express purpose of defeating and evading that equity. It has been held that the equity resulting from a valid agreement, although the latter was not a covenant running with the land, or a legal exception or reservation out of it, but stood solely upon the ground of a personal contract dictating the mode of the user, would nevertheless go with the land into the hands of a purchaser, with notice, and who did not buy innocently, or in good faith. The covenant is restrictive, not collateral to the land, but relates to its use.

It is not in the least material that restrictive stipulations should be binding at law, or that any privity of estate should subsist between the parties in order to render them obligatory and to warrant equitable relief in case of their infraction. The doctrine is sound and just. The source of the restriction would seem to be immaterial if in itself binding and founded upon sufficient consideration; and a breach is no greater wrong to a privy in estate than to a stranger validly con

tracting about its use. Nor can the vendee in bad faith stand upon such a difference. Equity has no compassion for a fraud, and he who buys in aid of one with full knowledge of what is right, but with purpose to defeat it, should not escape the hand of equity by a criticism upon the origin of the restriction violated.

[blocks in formation]

In cases of fraud, equity should relieve, even against the words of the statute making void "all promises in consideration of marriage, unless signed in writing by the party"; as if one agreement in writing should be proposed and drawn, and another fraudulently and secretly brought in and executed in lieu of the former; but where there is no fraud, only relying upon the honor, word or promise of the defendant, equity will not interfere.

Nothing is considered as a part performance which does not put the party into a situation that is a fraud upon him, unless the agreement is performed; for instance, if upon a parol agreement a man is admitted into possession he is made a trespasser, and is liable to answer as a trespasser if there be no agreement. Payment of money is not part performance, for it may be repaid; and then the parties will be just as they were before, especially if repaid with interest.

An agreement ever so clearly proved, yet, as a parol agreement, the plaintiff is not entitled to have it executed. It is necessary therefore to show a part performance; that is, an act, unequivocally referring to and resulting from the agreement; and such that the party would suffer an injury, amounting to fraud, by the refusal to execute the agreement. The principle of the cases is that the act must be of such nature that, if stated, it would of itself infer the existence of some agreement; and then parol evidence is admitted, to show what the agreement is.

Suppose a tenant should set up an agreement for purchase, and get a witness to swear to it, and then offers as evidence of part performance his possession and cultivation

of the land; could that be deemed an act of part performance, whether there was any agreement for a purchase or not?

The court is bound to consider, first, whether there was a parol agreement; and secondly, if so, whether there has been a part performance of it; and then, if there has been part performance, it is the duty of the court to act upon the established principle, and to decree performance of the contract.

The same clause of the statute of frauds which forbids the bringing of an action on any parol contract made in consideration of marriage also forbids the bringing of suit on any parol contract for the sale of land. But, though courts of equity have held themselves bound by this last enactment, yet they have in many cases felt themselves at liberty to disregard it when to insist upon it would be to make it the means of effecting, instead of preventing, fraud. This is the ground on which they require specific performance of a parol contract for the sale or purchase of land when the contract has been in part performed. The right to relief in such cases rests not merely on the contract, but on what has been done in pursuance of the contract.

That marriage itself is no part performance within the rule of equity is certain. Marriage is necessary in order to bring a case within the statute, and to hold that it also takes the case out of the statute would be a palpable absurdity.

The ground on which the court holds that part performance takes a contract out of the purview of the statute of frauds is, that when one of the contracting parties has been induced, or allowed by the other, to alter his position on the faith of the contract, as for instance by taking possession of land, and expending money in building or other like acts, there it would be a fraud in the other party to set up the legal invalidity of the contract on the face of which he induced or allowed the person contracting with him to expend his money.

As a will is necessarily, until the last moment of life, revocable, a contract to make any specific bequest, even when a will having that effect has been duly prepared and executed,

is in truth a contract of a negative nature-a contract not to vary what has been prepared and executed. There can be no part performance of such a contract.

In cases where, notwithstanding the statute of wills and the statute of frauds, it has been held that when a person has induced another to make or abstain from making or altering a will, on the assurance that, on his death, his intention shall be carried into effect, there the court has held the person, who has so engaged, to be bound to fulfil his engagement, and has further held that he took whatever had passed on him on the faith of such engagement, merely as a trustee for the purpose of fulfiling that engagement.

The Supreme Court of the United States affirming a decree in favor of the plaintiffs-man and wife-against the father and father-in-law, said:

The Statute of Frauds requires a contract concerning real estate to be in writing, but courts of equity, whether wisely or not it is too late now to inquire, have stepped in and relaxed the rigidity of this rule, and hold that a part performance removes the bar of the statute, on the ground that it is a fraud for the vendor to insist on the absence of a written instrument, when he has permitted the contract to be partly executed. And equity protects a parol gift of land, equally with a parol agreement to sell it, if accompanied by possession, and the donee, induced by the promise to give it, has made valuable improvements on the property. And this is particularly true, where the donor stipulates that the expenditure shall be made, and by doing this makes it the consideration or condition of the gift.

The ground upon which this equitable jurisdiction is exercised, although sometimes said to be part performance, really is to prevent a fraud being practiced upon the parol purchaser by the seller, by inducing him to expend his money upon improvements upon the faith of the contract, and then deprive him of the benefit of the expenditure, and secure it to the seller by permitting the latter to avoid the performance of his contract.

Anything that may be detrimental to the promisee or beneficial to the promissor in legal estimation will constitute a good consideration for a promise. Expenditures made upon permanent improvements on land with the knowledge of the

« PreviousContinue »