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tain intervals, by appraisers, being in the nature of an agreement to arbitrate, cannot be specifically enforced, but a court of equity may make the appraisement. Grosvenor v. Flint, 20 R. I. 21 (37 Atl. Rep. 304). Particular facts held to entitle one to an accounting and specific performance. Hege v. Thorsgaard, 98 Wis. 11 (73 N. W. Rep. 567). For particular cases in which the right of specific performance is upheld, see Palmer v. Palmer, 114 Mich. 509 (72 N. W. Rep. 322); Plummer v. Kelly, 7 N. Dak. 88 (73 N. W. Rep. 70). For particular cases in which the right to specific performance was denied, see Helton v. Johnson, Va. (27 S. E. Rep. 579); Prentiss v. Nelson, 69 Minn. 496 (72 N. W. Rep. 831); Howlett v. Howlett, 115 Mich. 75 (72 N. W. Rep. 1100).

Sec. 833. Contracts to convey land. A contract to convey land to one in consideration of his performing personal service, may be enforced by him after he has performed the service. Thurber v. Meves, 119 Cal. 35 (50 Pac. Rep. 1063). Specific performance of a contract to convey land will not be decreed where it appears by the terms of the contract that the plaintiff's right to a conveyance was dependent upon a contingency which never happened. Glidden v. Korter, 90 Me. 269 (38 Atl. Rep. 159). Specific performance cannot be enforced against one who contracts to convey land in case his wife is willing to join in the deed, where she refuses to do so. Venator v. Swenson, 100 Ia. 295 (69 N. W. Rep. 522). Where a large part of the property or a large interest in the property cannot be conveyed, the court will not decree a specific performance as to any of it, but will leave the parties to their remedy at law. Corby v. Drew, 55 N. J. Eq. 387 (36 Atl. Rep. 827). The right of a vendee to compel a conveyance of the legal title from a vendor is not affected by the fact that such vendee has acquired title by adverse possession. Clemons v. Cox, 114 Ala. 350 (21 So. Rep. 426). A vendor's right to have specific performance of a contract of sale is not affected by the fact that he did not have title at the time the contract was made, where he explained the nature of his interest to the satisfaction of his vendee and acquired title before the commencement of the action to enforce the contract. William

son v. Neeves, 94 Wis. 656 (C9 N. W. Rep. 806). Where a party to a contract for the exchange of lands foot for foot, by mistake conveyed less than he received, it is held that the other party was entitled to specific performance upon discovery of the mistake, although the value of the land had materially changed. Max Meadows Land & Imp. Co. v. Bridges, 95 Va. 184 (27 S. E. Rep. 839). Where time is not the essence of the contract, a vendor who is unable to make title at the time he should convey, may have specific performance by tendering good title at any time before decree, in an action. brought by his vendee to recover money paid under the contract, and where such vendor's contract was not speculative but entered into in good faith, and when the situation of the vendee has not been altered so as to render specific performance unjust to him. In such case the awarding of rents to the vendee together with costs, in the absence of special circumstances, adjusts the equities. Seaver v. Hall, 50 Neb. 878 (70 N. W. Rep. 373). Where it appears that a vendor is innocently ignorant of the fact that his record title does not carry all the property embraced in the contract of sale, and the vendee does not deny that he had knowledge of such defect, he will not be entitled to a decree compelling the vendor to convey the deficiency. Planer v. Equitable Life Assur. Soc., N. J. Eq. (37 Atl. Rep. 668).

Sec. 834. Antenuptial contracts. A court of equity has jurisdiction to decree specific performance of an antenuptial contract. Thompson v. Tucker-Osborn, 111 Mich. 470 (69 N. W. Rep. 730). The court say: "A marriage between parties who have previously made a contract with each other, to be performed presently or during the marriage, releases or extinguishes such contract. Such contracts, however, made when in contemplation of marriage, and respecting the property of each of the parties, though released or extingnished at law, are held good in equity, and will be enforced by a court of chancery against the heirs of the party in default. Miller v. Goodwin, 8 Gray 542. As stated by Mr. Schouler in his work on Domestic Relations (§ 173) : In this country the validity of marriage settlements is generally recognized; and it is well understood that almost any

bona fide and reasonable agreement made before marriage, securing the wife either in the enjoyment of her own personal property or a portion of that of her husband, either in coverture or after death, will be enforced in a court of chancery.' In Stilley v. Folger, 14 Ohio 610, the court said: 'All supposed actual fraud may be laid out of view. Why should not this agreement be enforced? Antenuptial contracts have long been regarded as within the policy of the law, both in Westminster and the United States. They are in favor of marriage, and tend to promote domestic happiness, by removing one of the frequent causes of family dispute,-contention about property, and especially allowances to the wife. Indeed, we think it may be considered as well settled at this day that almost any bona fide and reasonable agreement made before marriage to secure the wife the enjoyment either of her own separate property or a portion of that of her husband, whether during the coverture or after death, will be carried into execution in a court of chancery.' In Paine v. Hollister, 139 Mass. 144 (29 N. E. Rep. 541), a bill was filed by the executor to enjoin the widow prosecuting a petition in the probate court for an allowance out of the husband's estate, setting up the fact that the defendant had entered into an antenuptial contract whereby she had agreed to accept a certain provision in lieu of dower, or an allowance or distributive share in the estate of her husband. There the court said: 'There is no doubt that the contract is lawful in its general features; that it was not extinguished by the marriage of the parties; and that a resort to equity is proper to enforce it.' The same principle is recognized in equity in Tarbell v. Tarbell, 10 Allen 278; Jenkins v. Holt, 109 Mass. 261; Blackington v. Blackington, 110 Mass. 461; Sullings v. Richmond, 5 Allen 187 (81 Am. Dec. 742); Collins v. Collins, 72 Ia. 104 (33 N. W. Rep. 442); McNutt v. McNutt, 116 Ind. 545 (19 N. E. Rep. 115; 2 L. R. A. 372). In a note to the last case cited it is said, Executory agreements made between a man and woman, who afterwards marry, and which then become void at the common law, in the application of the conscientious principles of equity, will be specifically enforced against either husband or wife at the suit of

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the other.' This doctrine has been fully recognized in this court in Phillips v. Phillips, 83 Mich. 259 (47 N. W. Rep. 110)."

Sec. 835. Married woman's contracts. Although § 5 of the married woman's act of New Jersey, 1874, provides that the contracts of a married woman shall be legal and obligatory and may be enforced at law or in equity," it is held, construing this section in connection with § 9, which requires a married woman's acknowledgment of her deed to show a "private examination apart from her husband before the offi cer, and that she signed, sealed and delivered the same as her voluntary act and deed, freely, without any threats or compulsion of her husband," that her contract to convey her land will not be specifically enforced by a court of equity unless it is executed with all the formalities required for a deed by her. Corby v. Drew, 55 N. J. Eq. 387 (36 Atl. Rep. 827).

Sec. 836. Diligence required of party seeking. Diligence is required of one seeking equitable relief, such as specific performance of a contract, for if, through unnecessary and unexplained delay, the value of the property involved has greatly increased, or the circumstances have changed, so that an injustice will be done to allow such equitable relief, it will not be granted. So, if a party seeking relief has failed to assert his claim, and has permitted others to go into possession, and in any manner greatly increase or add to the value of the property, while he has stood by in silence, he must be deemed to have waived and lost his equitable interests. And he may also waive and lose these rights by abandonment. Anderson v. Luther Min. Co., 70 Minn. 23 (72 N. W. Rep. 820). The right to have specific performance for the exchange of land is not lost by mere delay, where the situation of the parties is not changed and nothing has been lost by the delay. Fisher v. Carroll Co. Fair & Driv. Park Ass'n, 103 Ia. 745 (72 N. W. Rep. 684).

Sec. 837. Demand and tender. Where a defendant has put it out of his power to comply with his contract, a demand or tender by the plaintiff is not required. Auxier v.

Taylor, 102 Ia. 673 (72 N. W. Rep. 291). Where a vendor is seeking to enforce a forfeiture, a vendee may ask for spe.. cific performance by a cross bill without previous tender of the purchase money, an offer of payment in his pleading being sufficient. McWhirter v. Crawford, 104 Ia. 550 (72 N. W. Rep. 505). A party seeking to enforce specific performance must show a full and complete performance on his part. Bamberger v. Johnson, 86 Md. 38 (37 Atl. Rep. 900). Where a contract for the purchase of lands provides for the construction of a certain ditch affecting the land, the expense of which is to be borne equally by the parties, it is held that the vendee seeking a specific performance of the contract must tender the entire purchase price and not the amount of the purchase price less one-half of the expense he has incurred in the construction of the ditch. Bidwell v. Garrison, N. J. Eq.

(36 Atl. Rep. 941). Where a lease gives the lessee an option to purchase the premises upon giving a certain notice. and paying $6,000 cash and giving a mortgage note for $10,000 due in one year with interest, such lessee may have specific performance of the contract by giving the required notice and tendering the whole amount in cash with interest on the $10,000 for one year. Zimmerman v. Brown, N. J. Eq.

(36 Atl. Rep. 675). Where the payment of the last installment of the purchase money by the vendee and the conveyance of the title by the vendor are concurrent and dependent acts, the vendee, before he can maintain a bill for specific performance against the vendor, must pay or tender the purchase money in full; but a " tender of purchase money" in such a case, does not mean a tender strictly valid at law, but means a present readiness, willingness, and ability in good faith to perform the acts required of one by the agreement, provided the other party will concurrently do the things which he is required by the contract to do, and notice by the former to the latter of such readiness, willingness, and ability. Shouse v. Doane, 39 Fla. 95 (21 So. Rep. 807). Citing, Smith v. Lewis, 26 Conn. 110; Clark v. Weis, 87 Ill. 438 (29 Am. Rep. 60).

Sec. 838. Parties, pleading and practice. A suit to compel the specific performance of a contract falls under the exclusive jurisdiction of equity, regardless of the absence or

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