#### HENRY S. LLOYD *against*SAMUEL C. WHEATLY.

A specific performance will not be decreed in a Court of Equity, as a matter of course: where, therefore, a contract appears to be unfair, greatly unequal, and oppressive on the side of the defendant, the Court will withhold its aid, and leave tho plaintiff to such remedy as he may have in a Court of Law.

Cause removed from tlie Court of Equity of Martin County.

Tho defendant had tho older grant for a tract of land designated in the accompanying diagram as 1, 2, 8, 9, 12, 13, then along a natural boundary to the beginning, and had had, by himself and those under whom he claimed, a continued possession and cultivation of a part of it, ever since a few years after the date of his grant, which was in 1752. The plaintiff had a younger grant for the land described by the lines 8, 6, B, 0, D, E, E, K, II, I, J", L, to tho beginning; a part of which lapped over, upon tho older grant of the defendant, as will be seen by the diagram. The plaintiff had brought an action of trespass against the defendant, which was still pending, and was proceeding to procession the land, and while running-in upon a portion of the defendant’s cultivated lands, with his surveyor and a party of his friends, came to a compromise with the defendant, wliich was reduced to writing, and is in these words:

“¥e, Samuel C. "Wheatly, and IT. S. Lloyd, agree in the presence of Tlios. R. Coffield and W. R. ITyman, that a cypress and maple in Beaver-dam slough shall bo our corner in the William Slade grant, and then our line shall proceed up along the various courses of the said Beaver-dam slough, as far as the said Wlieatly’s lands extend; and it is further understood and agreed, that the said Samuel C. Wheatly is to pay said II. S. Lloyd a fair and reasonable price for all the land on the south side of the Beaver-dam slough, covered b}r the William Slade patent or grant. Done this 4th day of December, 1850. Witness our hands and seals.”

Henry S. Lloyd, *[seal.']*

Samuel C. Wheatly, *\seai\*

*Teste,*W. R. Hyman.

*268The cypress and maple corner is at *b,*in tlie diagram, and tlie Beaver-dam slough is marked by the letters *a, a, a, a, a.*It appears from the plat of the survey filed by the parties, that the lines of the William Slade survey, 6, B, C, D, E, P, IÍ, IT, 8, 6, and falling within the plaintiff’s land, include 129 acres, 107 of which included by lines 8,6, B, C, *a,*a, *a, a, a,*9, 8, are given to plaintiff by this compromise, and 22 acres included by the lines Ií, X, E, E, a, *a,*II, allowed to the defendant, for which he is to pay a “ fair and reasonable price.”



The bill is filed to compel a specific performance of this contract, by the defendant’s making title according to the designated line, and by surrendering possession of the 107 acres, to the plaintiff.

*269The defendant in his answer says, that- although he did sign the contract set forth in, the plaintiff’s bill, yet, he did so through the misrepresentations, fraud, and overreaching ' of the plaintiff and others with whom he was combined; that he was acting under a mistake of his rights, brought about by the devices of the plaintiff and his co-adjutors, and under alarm at the idea of losing much of his most valuable land, lie says, that although he did not know exactly where his lines ran, yet, he had long believed that they were about where they are now ascertained to be, and that they took in the whole of the lap as exhibited in the diagram ; but that very shortly before this contract was made, plaintiff came upon his land under the actual or pretended authority of the law, with his surveyor, one "W. R. Iiyman, and commenced, as they said, processioning his (defendant’s) land, and the second and third lines they ran, were from 2 to 20, and from 20 to 21, and he was assured by the surveyor that that was the only way they could be lawfully run. He says, he supposed these persons knew, and were acting honestly, and it was froih these feelings and considerations, as well as from the terror of the law-suit pending against him, that he consented to make the Beaver-dam slough the line between them. lie says further, that he has found out that both plaintiff and Hyman knew well that this was not the true way to run the line, and that plaintiff had been told by both Hyman and another surveyor, by the name of Phelps, that the line was to run along the river from 1 to 2, then to 8, then to 9, and then to 12. He insists that he has proved by abundant evidence, documentary as well as oral, that such is the way in which the lines should run ; and that, therefore, this compromise is unreasonable, unfair, and oppressive.

Replication was made to the answer, and much evidence taken in the cause ; and it being set down for hearing upon the bill, answer, exhibits, proofs, and former orders, was sent to this Court for trial.

*Moore,*for plaintiff.

Hodman, for defendant.

*270Battle, J.

The equity for a specific performance of a contract, requires that the contract shall have been made for valuable consideration, and that its enforcement in *specie*he practicable and necessary. Adams’ Eq. 77. It is not a matter of course, but rests in the sound discretion of the Court, and it may be refused when circumstances render it inequitable or improper. In order to be thus enforced, the agreement must bo certain, fair, and just iii all its parts. *Leigh*v. Crump, 1 Ire. Eq. Rep. 299. Even the mere fact that the contract is a hard one and would press heavily on the defendant, will induce the Court to withhold its aid, and. leave the plaintiff to his remedy at law. *King*v. Hamilton, 4 Peters’ Rep. 311; *Talbot*v. *Ford,*13 Simon’s Rep. 173; Adams’ Eq. 84; 1 Story’s Eq. Jur. secs. 132, 134, 161.

The application of these principles is decisive against the claim of the plaintiff, in the present case. Wo say nothing of the uncertainty of the contract. We do not declare that it was obtained from the defendant by fraud, though we do believe that ho entered into it under circumstances of surprise and alarm at finding the plaintiff with a surveying party in tlxo midst of his cultivated field. But a contract more unequal between the two parties, and inore oppressive upon one of them, it would be- difficult to imagine. The testimony of the surveyors, taken in connection with the plat and the accompanying documents, shows clearly that all the land to be affected by the alleged compromise, belonged to the defendant. A part of that the contract requires him to convey to the plaintiff, and permits him to retain the residue, upon paying a fair price for-it. And what is he to get in return? Nothing, that we can discover, unless it be an engagement on the part of the plaintiff not to sue him for his own land. It is no part of our duty to encourage law-suits, or to prevent.their adjustment when commenced; but wre think we can safely say, that the plaintiff has attempted to make the defendant pay rather too dearly to keep out of one. The agreement is not, in our opinion, “ certain, fair and just in all its parts,” *271and we cannot, therefore, decree its enforcement in this Court.

Per Curiam. The bill is dismissed with costs.