June Term, 1860.

#### Smith and another vs. Wood and others.

A bill for specific performance of a contract is addressed to tbe sound discretion of tbe court, and a contract, to be enforced, must be fair, just and certain, and founded on an adequate consideration, and if deficient in either of these requisites, a court of equity will not enforce it.

A and B entered, at tbe U. S. land office, forty acres of land, upon a part of which C and I) bad been mining and taking out lead ore, tbe two latter having also purchased of one E another part of said tract for §2,500 — neither O, *D*nor E having any right to said land or the ore therein. After A and B made their entry, 0 and I) claimed tbe land, representing that their *diggings,*and the lot bought of E, were included within such entry; and A and B then executed their bond to convey the land to 0 and D upon obtaining a patent for it, if it should appear that the lot bought of E was situate thereon. The patent having been obtained, and it appearing that the lot purchased of E was situate upon the land, O and I) filed a bill for a specific performance of the contract : *Held,*That the bond was without any consideration, and although under seal, could not be enforced.

APPEAL from tbe Circuit Court for *La Fayette*County.

Bill for specific performance of an agreement to convey land. Tbe facts are stated in tbe opinion of tbe court. Tbe *383circuit court found for the plaintiffs, and made a decree accordingly.

*James H. Knowlton,*for appellants.

*Mills &*Barber, for respondents.

July 30.

*By the Court,*

Cole, J.

This was a bill in cbanqery, filed under tbe old practice, to enforce tbe specific performance of a bond for tbe conveyance of land. It appears that the case went to bearing upon tbe pleadings and bond, which is made an exhibit in tbe canse, and tbe circuit court decreed that tbe title to tbe forty acres in controversy be passed to, and become vested in, tbe respondents, under tbe provisions of our statute. But upon tbe facts disclosed in tbe case, we are unable to concur in this judgment.

It is well settled that a bill for tbe specific performance of a contract is an application addressed to tbe sound discretion of tbe court, which withholds or grants relief according to tbe circumstances of each case, and that a contract, to be enforced, must be fair, just and certain, and founded on an adequate consideration, and if deficient in either of these essential requisites, a performance will not be enforced. This is the common and uniform language of all tbe authorities upon this subject. 2 Story’s Eq. Jur., §§ 751, 793 a, 793 b; Willard’s Eq. Jur., pp. 266, 267; *Seymour vs. Delaney et al.,*6 John. Ch. R., 222; *Minturn vs. Seymour,*4 id., 497. We cannot see that the bond to convey in tbe present case was founded upon an adequate consideration. It appears that the respondents, in the spring of 1837, were engaged in mining upon a quarter section of land in La Fayette county, and bad purchased, before that time, of one Jamison, for tbe sum of $2,500, a lot upon said quarter section, known as tbe “ Jamison lot,” and were mining and taking out from said tract of land large quantities of mineral or lead ore, when tbe appellant *Wood,*and one Carlin, entered forty acres of tbe said quarter section, at tbe United States land office, and obtained a receiver’s receipt of entry. The respondents, upon being informed of tbe entry by *Wood*and Carlin, procured affidavits establishing the fact of them occupancy and mining upon the land, and went to *Wood*and Carlin and *384made claim *to the*land entered by them, representing that . tbeir diggings and the *“*Jamison lot ” were included within such entry, when *Wood*and Carlin executed a bond, in the penal sum of five hundred dollars, to convey to the respondents the forty acres, providing it should appear that the “Jamison lot” was upon said tract, and they should obtain a patent for the land from the United States. The respondents continued personally to work upon the land, and to lease it for mining purposes, until 1854, when they learned that a patent had issued to *Wood*and Carlin. In the meantime Carlin had died, leaving a widow, and adult and minor children, and *Wood*refused to convey his interest in the land. It appears that *Wood,*in fact, had sold and conveyed his interest in the land to one Burrell; but if he had not, under the case made out by the bill, a court of equity would not compel him to execute the bond voluntarily entered into.

The United States lead mines on the upper Mississippi were early reserved from sale, and, in pursuance of an act of congress, were leased for limited terms, by agents acting under the direction of the President. There was great opposition to the system among the minors, and many never applied for or received any leases from the general government, but went on to the public lands, made claims, worked upon them and sold the mineral discovered and taken from their diggings. These claims were generally respected by the miners, even in cases where there was no lease, and were a subject of bargain and sale among them. ¥e infer that the respondents purchased one of these claims, paying therefor a large sum of money. But it seems this claim, or mineral lot, was embraced within a forty acre tract, which had not been reserved as mineral land, and therefore was subject to entry. Every one at all acquainted with the early history of the lead district of the territory of Wisconsin, well knows that many lands containing rich veins of mineral, were entered. These entries were valid, unless the general government saw fit to vacate them, and the purchaser acquired an absolute title. So there can be no doubt that *Wlod*and Carlin obtained a good title to the tract entered by them. What obligation were they under to recognize any claim upon the *385laud thus entered ? What legal or equitable right had the respondents to call upon them for a conveyance of this land ? We cannot perceive that they had any whatever. And although *Wood*and Carlin gave a bond for a conveyance, yet as this was without consideration, why should a court of equity now enforce a specific performance of it ? It is a voluntary agreement, and, although under seal, ought not to be enforced.

The counsel for the respondents virtually conceded that the bill in this case did not set forth such a state of facts as showed that the bond ought to be specifically enforced, but he insisted that inasmuch as the trial was had, and the appeal taken, under the Code, we ought to presume that the proofs supplied the facts which the bill omitted to state. There is no proof in the case except the bond, and we do not feel authorized to presume that evidence was given on the trial which made out a case quite contrary to, or entirely inconsistent with, the allegations of the bill. The bill does not show that the bond was executed upon an adequate consideration, but the contrary.

It follows that the judgment of the circuit court must be reversed, and the cause remanded for farther proceedings in accordance with this opinion.