*Present*— Chancellors Hutsox, Mathkws and Rutixi.ge.

#### Clitherall *vs.*John A. Ogilvie.

cask xxxii.

DECREE HOOK. p. 43.

The courtre-creetiie specific perfor-contract, for land S1 where the ’ inade-<juacy of price was vc-*vy*great:— rectflaud^i imposition in the buyer.— Rut the seller was a jrV ag-e' ofthe^eaivlf lue of the la^id; and act-precipitately ged161"^ m "

The complainant’s bill is filed to compel the defend - an^ 4 specific performance of a contract in writing for the sale of a tract of land on Santee to the complainant, Tlie bill sets foi'th that the complainant being desirous °*' Gaining a body of land to plant, he applied to Mr. Ogilvie the defendant for a lease of his lands on Santee. j„ the conversation held with him by the complainant . ^ * Clitherall, Mr. Ogilvie discovered an inclination to sell ^ie land, which ho valued at 35001. sterling. Afterwards and on the 4th September, 1789, complainant Clithcrall on behalf of himself and Mr. Deas offered to become the' purchasers, at the price he had mentioned, payable in four years, by annual instalments. Mr. Ogilvie said as ^ was a ma^cr importance he would consult his friends» On the 12th September, the complainant Clitherall wrote †0 Ogilvie, and enquired if lie would complete the contract. Mr. Ogilvie immediately Called on complain-aiv^ auci brought a plat of the land, and asked complainant if he would give 40001. for it, to which he answered he would not. He then asked for complainant’s proposals in writing which were given to him, and he went away. *A*few days after they met in the street, and agreed to proceed to Mr. Deas’s; on their way Mr. Ogilvie delivered the complainant Clithcrall, a letter, in answer to the pro*251positions which he had received. On perusing the letter (a copy of which is filed) the complainant observed that .the sum of *40001.*was to bo paid in specie; but agreed to pay 3500?. in London, with the interest of seven per cent, When they arrived at Mr. Dcas’s some discussion took place, and the parties drew up a written agreement, which was satisfactory, by which the complainant agreed to pay 3500?. by four equal annual instalments, with interest at seven per cent, the whole payable in England, to Mr. Ogilvie for his half of Aclicsou’s Island on Santee describing the same: he on his part agreeing to convey the said lands to the said Clitherall and Deas. At the same time a memorandum was drawn up of the deed of conveyance, bonds and mortgage proper to be prepared for execution, and the same was left with the privity and assent of Mr. Ogilvie with Mr. Henry Deas, (then a student of law) to draw the papers; the said J. A. Ogilvie saying there was no particular lawyer whom he wished to draw them. It was noted that Mr. Bee was to join in the titles as trustee. The papers were accordingly drawn,, and on the 17th September, the complainant Clitherall called on Mr. Ogilvie with them. He took them, in order (as he said) to have them examined by his lawyer; and appointed said Clitherall to. call on him the next morning. He accordingly did so, and found. that Mr. Ogilvie had gone out; but he wrote him a note the same day saying he woidd call on him the following Monday. He accordingly did so, accompanied by a friend, and they had a conversation the result of which was that Mi-; Ogilvie declined to complete the bargain by executing titles to. the complainant — complainant has since understood that Mi*. Ogilvie employed counsel, as early as the 17th September, in order to evade the said agreement, under pre-tence that he was unwarily drawn into the agreement, by artifices used by complainant, — and that the price was greatly inadequate; and that he had no right to sell the land, the legal title being in a trustee — though complainant alleges that the business was conducted with great openness and fairness on his.part, and with great apparent deliberation on the part of the defendant, who asked *252and obtained time to consult his friends, before he entered into the said agreement. The complainant charges that the true intent of the said parties was that the said Ogil-vie should convey said land in fee simple to complainant for the said price. The complainant insists that if the inadequacy of price were ever so great, (which however he denies) yet being attended with no fraud or deception, it ought not to vitiate so solemn and deliberate an agreement entered into by a person of competent years — and the complainant disavows any endeavours to depreciate the land, or to keep Mr. Ogilvie from the knowledge of the real value thereof — and though Mr. Deas did request Mr. Ogilvie to keep the sale a secret from Dr. Lynah, it was solely with a view that the surrender of his lease might be more easily obtained by Mr. Ogilvie, to whom he had once offered it — and this request was made after the agreement was signed.

*251MARCH, 1792.

*252Answer.

The bill prayed that the defendant or such other person as may have the, same, may bring into court the defendant’s mother’s marriage settlement, and all other deeds relative to his right or title to the said land, which are or may be in his power; and that ho may be compelled to make a specific performance of his said contract and agreement, according to the true intent and meaning thereof, and to execute proper deeds for conveying the same to the complainant; and that the complainant may have possession of the said estate and premises as soon as the said lease to Dr, Lynah shall be surrendered or ex-pirnl, and that the complainant may have such further relief as he is entitled to.

The defendant John A. Ogilvie in Ms answer, states, that his mother inherited together with other estates a large body of lands on Acheson’s Island in Santee; — and on the intermarriage of his mother with his father, the said estates were settled on them, with limitations .over to their issue. That after the death of his mother in the year 1785, the defendant's father sent Mm from England to this country, and appointed Mr. Bee, and two other gentlemen his guardian,». These guardians (having a power ¡also from defendant’s brother Challes) leased, to Dr. Ly-*253sah on the 19th May, 1787, four hundred acres of their half of said Island, for five years, commencing on the 1st January, 1788.

That the defendant arrived at the age of twenty-one years, some time in the year 1789, and he assumed the management of his property; soon after which to wit, in September, 1789, Dr. Clitherall, and the late J. Deas, jun. called on him, and requested a lease of the land on Acheson’s Island. He answered that he could not, as it was already leased. They then asked him if he ivoisld sell the land, and what he considered the value; to which he answered that he could not, as he owned only half (his brother owning the other moiety) and that it had never been divided — that he had never seen the lands, and did not know the value of them; except from the opinion of his father, who considered them worth 3500k; but that his cousin Mr. Ogilvic, he believed knew its value, and he would write to him on the subject if they wished to know it: To which one of the parties answered that would not answer their purpose as they wanted lands immediately. They then parted; but within three days after the complainant Dr. Clitherall, returned to the defendant, and said that he with Mr. Deas would give him 3500k for the purchase of the said land; to be paid by them in four equal annual instalments, and the payments to be secured by mortgage; but a stranger coming in put an end to the conversation. On the same day the defendant asked Mr. James Gairdncr, who lived in the same house with him, what he thought of the offer. He answered that he did not know the value of the land and advised him to write to his cousin on the subject. On the 12th September, the defendant received a letter from Dr. Clith-erall requesting to know if he really would sell the land. The defendant immediately called on Dr. Clitherall at Ills house; and requested him to put his proposition in writing which he accordingly did. Defendant asked Dx-. Clitherall if he would give 4000k for the land but he x*e-fused it. Defendant took home the px'oposals to reflect, and to consult his friends. He did consult Mr. Bee his former guardian, who finding that the defendant’s father *254bad estimated the value of the land (in 1785) at 35001. advised the defendant to accept that price; and agreed (as the defendant then understood him) that he would join in ^iC sa*c ^ie as the attorney of the defendant’s brother Charles. Under the influence of these circumstances, the defendant says he determined to sell the lands; and wrote to Dr. Clitherail to that effect, as stated in the bill. That meeting the Doctor in the street, he informed him of his determination, and they proceeded to Mr. Deas’s, where he entered into the contract for the sale of the land, containing 1,538 acres of swamp and marsh land, and defendant bound himself in a penalty of *35001.*to make titles to the land — The other parties were not bound by any penalty. The complainant did ask the defendant if he had any desire that any particular gentleman of the bar should draw the papers and title deeds; but Mr. Deas expressing a wish that his brother might draw them, the defendant acquiesced. The contract was drawn up, and the memorandum stated in the bill, was left with Mr. Henry Deas to draw the conveyances, mortgage, &c. On the following Friday, Dr. Clitherail called on the defendant with the titles, and requested that they might be then executed; but the defendant objected to the immediate execution as he wished them examined by a gentleman of the bar. The Doctor endeavoured to remove the objection by assuring him that they had been already examined by a gentleman of the profession; — but finding that the defendant persisted he left the papers. Early the next day an intimate friend of defendant called on him and enquired of Mm if he had sold Acheson’s Island to complainant, and at what price. Defendant disclosed to him all that had passed. His friend then told him that the land consisting of 600 acres of prime tide land, was worth three times as much as the price offered for it, and that defendant had no right to sell more than his own moiety. But defendant informed Mm that Mr. Bee was to join in the titles; — on examining the conveyances brought by Dr. Clitherail, it was found that Mr. Bee’s name was not inserted in them. Reflecting on these things, the defendant resolved not to proceed till lie *255bad made further enquiries; and he wrote to Dr. Clitlic-rall that he would call on him on Monday. In the mean time he set on foot enquiries by which he learnt that the land was worth at least *15,0001.*— .and knowing that his title alone would not be a good one for all the land, and conceiving that Mr. Bee when he learnt the real value of the land would not execute the titles, and believing that the complainant would not endeavor to bind him to a contract founded entirely in mistake, he went with a friend to Dr. Clitherall and Mr. Deas, and he explained to them how he had acted in ignorance, and pressed to be released from his contract: — But finding that they insisted on his executing the titles, he withdrew.

The defendant denies that he had any idea of selling the land until the offer was made to him by the complainant — That he consulted no friend at first but Mr. Gar-diner, who accidentally lived in the house with him, and who was quite ignorant of the land as above stated; and he afterwards consulted no other person but Mr. Bee. The defendant admits that counsel were retained for him on Friday, with a view to get rid of the agreement, hut it was done by a friend without the defendant’s knowledge. The defendant, did state to complainant, that Mr. Bee would join him in the execution of the conveyances, and it was expressly agreed between them that Mr. Bee was to be a party to the titles, as the trustee of Charles Ogil-vie; yet Mr. Bee’s name was omitted in the deeds prepared under the complainant’s directions. That the complainant Dr. Clitherall some days before the signing, and Mr. Deas at the time of signing the agreement, requested defendant not to mention any tiling of the matter to Dr. Lynah; which the defendant promised, — and he kept his word. The defendant claims the land under his mother’s marriage settlement; and he does not know of any other papers relative to said land. Defendant prays to be released from his said contract, ahd that the complainant’s hill may be dismissed;

The cause came to a hearing, and it was fully proved that the land was worth more than three times the stipulated price.

*256The case was argued by Mr. Pringle for the com- ° *J &*plabmnt, and by Mr. E. Rutledge and Gen. Pinckney fol* defendant.

For the complainant it was insisted that this was *u.*£.u-r conft.ac^ The defendant was of full age and compt-tent to act. There was no surprize, no circumvention, no importunity, no unfairness of any kind; and there is no case where the court has gone so far, as to refuse to carry the contract into execution, on the ground of inadequacy of price alone. See 2 Powell, p. 1. This court is not the guardian to watch over and control the contracts of adults. Nor does this court possess an arbitrary discretion to set aside, or to refuse to enforce contracts; there must be strong and reasonable grounds. See 3 Atk. 187. If an agreement is certain and fair, this court will enforce it. See 1 Powell, 139. 2 Powell, 263. 2 Atk. 587. 2 P. Wms. 191. 3 P. Wms. 290. Bacon, Title Trust.

*For*the defendant it was argued that Mr. Bee was to have been a party to the deeds according to the agreement; hut in the deeds prepared by complainant his name was not mentioned. See 1 Eq. Cas. abr. 16, 17. 3 Atk. 386. 2 Atk. 18, Talbot’s Cases, 236. It is discretionary witli this court to enforce the execution of agreements or not. Where the consideration is grossly inadequate the court will not enforce agreement. 1. Vesey, 279. In this case the price agreed to bo given was three or four times less than the value of the land. There is a distinction between contracts executed and executory. 1 Levins. Mosely, 364. 2 Vesey, 17, 566. 3 P. Wms, 129. The penalty was all on one side. The complainant was not bound by any penalty. The estate in question was a trust estate; the legal title was in the trustees of the marriage settlement; consequently Mr. Ogilvie’s titles would not have been good. 1 P. Wms. 121, 496. To induce the court to carry an agreement into execution, it must be fair, certain and just in all its parts. 3 Atk. 386. Watching for an heir as soon as he comes of age, to get a bargain out of him, is a catching bargain and will he discountenanced by the court. See Pope & Roots. 7 Bro. P. C, 148. 1 P. Wms. 277. 2 Powell on Contracts, 36, *257*77,*8, 9. Young lieirs even when of age, are under the care and protection of the court. 1 P. Wms. 310, 318. 3 P. Wms. 131. See 2 Eq. Cas. abr. 18. It is the constant rule of the court not to enforce hard'bargains, hut to leave the party to his remedy at law. 2 Atk. 134. This was a hard bargain obtained by an experienced man, from a young man just of age, ignorant of the value of the estate, and rather too much urged. It would he against conscience to compel the defendant to take *3500l.*for property worth more than 10,000Z. — After briefly stating the case, the court delivered the following decree;

Decree,

There is no appearance of fraud on the part of complainant: if there was, that alone would be sufficient to induce the court to withhold its aid in compelling a specific performance of this agreement. The case being then wholly divested of fraud, imposition or misrepresentation, and defendant although a young man, yet not being in necessitous circumstances or his estate in expectancy, few of tlie cases that have boon cited are immediately applicable: for on one or other of the grounds above mentioned, most of the cases have been determined; as in the case of Barnardiston *vs.*Lingood, where B. was in distressed circumstances, and his estate in expectancy, lie was relieved against his bargain as being an inconsiderate one, and made without proper consideration. — -So in the case of Chesterfield *vs.*Janson;—How *vs.*Weldon was a transaction of fraud. The question for the consideration of the court is whether under all the circumstances of this case, the court will interfere and decree a specific execution of the agreement, or leave party to his remedy at law. The power of the court to .carry articles into execution is not doubted, and though discretionary, yet is not an arbitrary discretion; but must be governed by rules of equity. Now though there is no actual fraud charged on complainant, yet in order to entitle him to a specific performance of the agreement, it ought to he fair, certain, just, equal in all its parts, and for adequate consideration. If any of these ingredients are wanting the court will not decree a specific performance. That. *258being a settled rule, of this court, we are to sec whether this case comes within it. As to the certainty of the thing sold, tliat will not admit a doubt. The land is part- ^ described in the agreement. Though there is more contained in the agreement than the defendant had a right to dispose of, and which from his answer he was apprised of, and which he certainly never could have intended to sell, his letter on that subject mentions his half of Acheson’s Island. Whether this agreement was fair, just and equal in all its parts, is next to be considered, it cannot be doubted we think, that the complainant must have known something of the value of the lands before his application to the defendant. The situation and fertility of soil in that part of the country is pretty well known to persons who have been resident any time in this country] and the pressing importunity of the complainant to conclude the bargain] his repeated visits to the defendant, at a time too when the land was under lease, and he could *not*get immediate possession, all plainly and strongly indicate that he knew very well what he was about. On the other hand the reluctance of defendant (a young man but just of age, ignorant of the land and its value) to determine the matter hastily] his wishing to consult with a friend whom he thought well acquainted with the value of land, shew plainly he was not dcsiroits of selling immediately: and that he was not sufficiently competent to determine on the value, (which has been clearly proved by the evidence of maj. Pinckney]) all these circumstances shew I hat though no fraud or imposition on complainant’s part, 7/et there was such an eagerness, such an anxiety in him to conclude the bargain, such an astuteness of conduct, ás do not give it all the marks of fairness, justice and equality. The next point is, whether there he an adequate consideration for the land ? Though an inadequate consideration may not alone be sufficient ground to set aside a contract, yet it is a material ingredient, and will go a great way where the property has been sold for a sum grossly inadequate to its real value.* The court al*259though it may not go so far as to set aside the agreement, will not however lend its aid in compelling a specific, performance, hut leave the party to his remedy at law, to recover damages for the performance. That the consideration is enormously inadequate, we need only refer to the testimony of major Pinckney, from whence it appears that the land at the lowest valuation, must be worth fot;': times as much as was agreed to be given for it. Is not this then such a case as the lord chancellor mentions, where the inadequacy is so strong, gross and manifest, that a man of common sense must exclaim at the inequality of it? Had the deficiency been a few hundred pounds *260only, the court would not have hesitated to decree a spe-ciñe performance.

*2591 Dnmat. *7h,*hook 1, $ 9 Cooper*» Jus-■.bn in, p.

*260Towel thinks the better opinion to be, that the mere fact of a bargain being unreasonable is not a sufficient ground to set it aside in equity, if the parties are of age, perfectly acquainted with their rights, each aware of what is done, free from deception, and speak what they respectively mean. He may be right but will it be said that all those circumstances concur in this case ? They certainly do not, for the defendant has contracted to sell the whole of the land when he was only entitled to half. Wad he aware of the land being worth four times as much as lie sold it for? Most undoubtedly not. But there is a distinction to be made between the court’s setting aside an unreasonable contract, after it is executed, and compelling a specific performance of such an one. In the latter case they will use their discretion with greater liberality, than in the former. Indeed if this contract had been executed in all its parts, without the circumstance of defendant’s being a young man just come of ago and he had *261applied to liave it set aside, probably the court might have refused to do it: — But being altogether an executory contract, and the complainant coming here for a specific execution, this court will not depart from the constant rule in the case of a hard bargain, where it is not absolutely executed, but executory only; of refusing to carry It into execution.

It was objected that the defendant was of full age: this is true; but he was just come of age; only a few months. When under age the law took care of him. Young heirs even when of age are under the care of this court, and then want it most; the law taking care of them till that time.

If the parties at the. time of entering into an agreement respecting a claim capable of being precisely ascertained, he at the time of the contract ignorant of the precise value of it, but stipulates under an idea that what he is to re ceive will be equal in value to what he claims, this will be a sufficient ground for equity to set aside the agreement, if the thing received be not adequate to the value when precisely ascertained. It is pretty evident that the defendant was ignorant of the value of the property he was about to sell, aud that he parted with it under an idea that what lie was to receive was equal to the value of it, or he would most undoubtedly not have made the agreement lie did, and from the testimony of major Pinckney it is evident, that the sum stipulated for, was extremely inadequate to the value of the land, even when not in a state of cultivation. The value was at least four times as much as war, to be given for it; and this court will not decree a specific execution of articles, when extremely unreasonable or unconscionable, though no direct fraud proved; but will leave the party to his remedy at law.

It has been contended for complainant that the whole land should ho conveyed, though it is evident from the deed of settlement, defendant is entitled only to a moiety. To decree according to complainant’s wish, we mast deprive defendant’s brother of his right, which cannot bo done consistently with any principle of equity. Tisis court has certainly no right to order the brother to join in the conveyance. Lord Hardwicke has declared there *262is no instance of decreeing a partial performance of arti-clcs, but it must decree all or none; and where some parts have appeared very unreasonable the court have said we not do that, aud therefore as we must decree all or *none,*the hill must be dismissed.

In the case of Corking *vs.*Pratt there the agreement was relative to the distribution of intestate’s estate, and it was set aside because the value of the distributive share was greater than was known at the time of the agreement. Underwood *vs.*Hitclicox, lord chancellor declared that the court is not obliged to decree every agreement entered into, though for valuable consideration. Agreements of which there should be specific performance should be for adequate consideration; and there not being adequate consideration in this case the court would not decree specific execution. And in the case of Gwynne *vs.*Heaton, the lord chancellor Thurlow, said, where the property sold is for a sum grossly inadequate, the court have never suffered it to stand. The real proportion of value has been stated in the case to shew that it was grossly inadequate. This is a very strong case; the most so of any cited and amongst the latest determinations. The cases of Young *vs.*Clarke, in Precedents in Chancery, 538; and Rein *vs.*Stukely, in 2nd Brown; are cases that have not been cited, where the court refused to decree specific execution of an unreasonable agreement. In one of those cases, the defendant had never seen the land, knew nothing of the nature or value of it, desired time to consider of it before he came to any agreement. It appeared and was proved that the lands were 'worth and plaintiff received One hundred pounds per annum more than he was to pay defendant: That defendant had no judgment of the value of land: By the importunity of plaintiff he was prevailed on to agree to make the leap: lie afterwards discovered the imposition and refused to execute the agreement. The court is not hound to decree specific execution, where articles appeal1 unreasonable or unjust, though •there is no direct fraud; yet from the great under value of land it appeared to be an unreasonable and shameful contract, yet it was good aud the court left plaintiff to his *263legal remedy to recover what damages he could by nonperformance of the articles, and dismissed bill as to the specific execution.

The court on full consideration of the case under discussion and all the circumstances attending it, and from the evidence on the part of the defendant (although there is no proof of fraud or imposition on part of complainant) are of opinion that the sum for which the land was agreed to be sold is grossly inadequate to its real value: That being an unreasonable contract and a very hard bargain, it would be both unreasonable and unjustifiable to decree a specific performance of the agreement. They will therefore leave the complainant to his remedy at law to recover his damages for the non-performance of the agreement, and dismiss his bill with costs.

*

This is a question which calls for the exercise of the highest legal *discretion*— For as on the one hand courts of justice are cautious of *259disturbing the contracts of individuals., adult, acting sui juris, not di:-qualified by idiocy or insanity, nor compelled by necessity; so on the other hand, it would be a great mischief to the community, and a reproach to the justice of the country, if contracts of very great inequality, obtained *by*fraud, or surprise, or the skilful management of intelligent men, from weakness, or inexperience, or necessity could not be examined into, and set aside. To steer the middle course has been found to be the difficulty.

The l'eluctance of the court to interfere has been manifested by many decided cases, in which it refused to set aside contracts. See Wood *vs.*Fenwick, Prec. Ch. 206. Willis *vs.*Terrigan, 2 Atk. 251. Nicholas *vs.*Gold, 2 Vesey, 422. Motte *vs.*Atwood, 5 Vesey, 845— And see the case of White *vs.*Damon, *7*Vesey, 30, 4, 5,—In which lord Rosslyn dismissed a bill for the performance of a contract on the ground of inadequacy merely: But on a re-hearing lord lildon said that inadequacy alone, did not warrant such a decree without other circumstances. The necessity the court has been under of overcoming its reluctance to interfere in contracts to prevent great injustice i; apparent from the following cases: Twistleton *vs.*Griffith, 1 P. Wms. 310. Clarkson *vs.*Hanway, 2 P. Wms. 203. Barnardiston vs. Lingood, 2 Atk. 133, Ibid. 324. How *vs.*Weldin, 2 Vesey, sen. 518; also, 2 Ver. *627.*Evans *vs.*Lewellin, 2 Bro. C. C. 150 & 326; 2 Bro. P. C. 396; 3 Atk. 383, 5; 1 *V*es. 12.

On the ground of inadequacy of price, the court appears to have had great difficulty to lay down any general rule. By the civil law a rule was prescribed, That in the sale of immoveables, if the price be less than half of the real value, at the time of the sale, the seller may get the sale to be declared void; and that independent of the honesty or knavery of the buyer, or of his ignorance of the knowledge of the value of the thing purchased. If there was no fault in the buyer, he should be bound to restore the fruits, only from the time of the demand; but if there were other vices in the sale, such as listin', fraud, or violence, the purchaser will be bound to make restitution of the fruits from the time of his possession o: ‘he thing, deduc'i-g interest of the price he paid.

*260Our laws, however j ealous of protecting men in their property even against their own indiscretion, have never gone so far — And the rule seems to be that mere inadequacy of price, in a contract deliberately-made between two persons, conusant of their rights, and competent to manage their own affairs, shall not be a ground purely of itself, to vitiate the contract. But the decided cases express a qualification which in reality is a material variation of the rule itself: for it is added, that the inadequacy of price shall not vitiate the contract, unless it be so gross, that every good man would at once exclaim against it, and as would furnish violent presumptive evidence of fraud, imposition, or oppression in the buyer; or weakness, ignorance, or deep necessity in the seller. See Underhill *vs.*Howard, 11 Vesey, 209.—7 Bro. P. C. 70. Coles *vs.*Trecothick, 9 Vesey, 246.—4 Bro. P. C. 557. Emery *vs.*Wade, 8 Vesey, 517.—5 Ves. 846.

*It is agreed*on all hands that tire court is not bound to decree a specific performance in every case, where it will not set aside the contract; nor bound to set aside every contract, of which it will not decree the specific performance. In a case of great inadequacy, arising from the gross negligence of the agent, and a Want of due authority, the bill for specific performance was dimissed, *althmigh there was no impeachment of the plaintiff;*but without prejudice to his remedy at law. The court will not decree specific performance where there is any surprise, making it not fair and honest to proceed and call for specific performance. 10 Vesey, 305, 314, Mortlock *vs.*Buffer.