#### WOODRUFF v. HARGRAVE.

Specific performance — fraud and undue influence — abandonment- inadequacy of price— presumption.

A pretence of undue influence in procuring a sale of land at an under price, on account of pretended relationship of the wife of the purchaser, will not be credited against the after declarations of the vendor, that he held that mere idle talk,

A claim of an abandonment should be distinctly set forth and proven, if against probability it will not be inferred.

Inadequacy of price is but a circumstance of fraud, and opposed by the declarations of the vender will not be regarded.

An abandonment of the contract will not be inferred against the weight of interest.

Bile in Chancery, to compel the specific performance of a contract between one Warrington and the defendant, for the sale and conveyance of an acre of ground, one half of the purchase of which was paid in hand, and for which a deed was to be made when the balance was paid. Warrington went into possession, erected a house, &c., and assigned to the complainant, who has offered the balance due and demanded a deed, which was refused.

The respondent admits the contract, payment, improvement, tender, demand of deed and refusal, and seeks to avoid a decree upon the ground of the contract being obtained by the fraudulent representation of Warrington, that his wife was a relative of the *556respondent from the old country, and in that way operating upon his affection for a relative, to induce a sale at a reduced price; and because after the fraud was discovered, the contract was abandoned.

Since the suit, Hargrave died, and the bill has been revived as to the heirs, who abide by the defence of their ancestor.

The cause came on to be heard on the pleadings and evidence.

F. *Worthington,*for the complainant,

cited 1 *Ch. Cases,*385;'2 *Ch. Cases,*608; 3 *Ch. Cases,*132; 1 *John. R.*140; 1 *John. Ch.*344; 2 *John. R.*612; 10 *John. R.*27; 16 *John. R.*257; 3 *Bibb,*317; 4 *Bibb,*314; 2 *Saund R.*7 *n.*4; *Sug. V.*130, 144; 3 *Wheat.*578; 1 *Ath.*72; 3 *Atk.*272; 1 *Ves.*438; 2 *Wheat.*290; 1 *Wheat.*201, 1 *OR.*404; 2 *O. Laws,*252; 4 *Dess. R.*687; 2 *John Ch.*23; 13 *Vesey,*95.

*Strait*and *Hawes,*contra,

cited 10. *Ves.*292, 300; 2 *John Ch.*23,4; 2 *Swift’s Dig.*16, 19, 24, 27; 5 *Ves.*720; 13 *Ves.*205; 4 *John Ch-*559; and insist that the deception, as to the relationship, the inadequacy of price, the leaving the lot, and talk of abandonment, altogether make a case where the court should leave the complainant to his legal remedy.

Wright, J.

According to the testimony of one or two of the witnesses, this property was sold at a low price, though Hargrave, after the quarrel, declared he was satisfied with the price. The proof does not show that Hargrave was deceived by the claim of relationship: he said he considered it mere idle talk to gain favors, but it produced no effect in making the contract. The abandonment set up is very doubtful. It is *generally*alleged in the answer — the proof does not impart to it much particularity or certainty, and the witness who testifies to it is discredited by having given to others, a different account of it. The lapse of time and even change of possession are not very material in a case situate as this is. Part of the purchase money was paid down, the possession taken, and more money expended in improving than the balance due on the purchase, and each party holds what he got. If then, as the respondents claim, the inadequacy of price to be one half, or as two to five, the claim of abandonment supposes a poor man voluntarily surrendering property worth ‡650, to avoid the payment of $100. This is *improbable,*and when resting on doubtful evidence, is- not to be admitted. We see upon the whole no well grounded objection to a decree for performance, and decree accordingly.