The bill shows that on September 11, 1843, one Elisha W. Bucklin conveyed to Philander Baker, of Pawtucket, and his heirs "one undivided half part of a certain lot situate in said Pawtucket," c., giving boundaries; that on September 13, 1875, Baker having died intestate leaving a daughter, Fanny H. Fales, wife of George S. Fales, as his sole heir, said George and Fanny gave a mortgage on certain pieces of real estate, including the estate aforesaid, to the defendant bank, said estate being described as "the real estate conveyed to Baker by a deed made by said Bucklin, September 11, 1843, recorded," c.; that on June 2, 1877, under a power of sale contained in the mortgage, the bank sold and conveyed the mortgaged estates to one Daniel G. Littlefield, describing the estate aforesaid as "all the certain real estate situate in the town of Pawtucket aforesaid conveyed to said Philander Baker in and by the following deed, to wit: a deed from Elisha W. Bucklin, dated September 11, 1843," c., giving boundaries; that on August 23, 1877, Littlefield sold and conveyed said estate by the same description to the complainant for $5,000, and that the complainant gave a mortgage, with covenants of warranty, to the bank for $5,000, describing *Page 364 the estate which it purported to convey as a certain tract bounded by the boundaries given in the deed from Littlefield to him. The result is that the complainant has under the deed from Littlefield one undivided half of the tract of land described therein, and has given to the bank his mortgage with covenants of warranty on the whole of it. The bill alleges that Littlefield acted simply as trustee for the bank, and that the complainant bought of the bank, the bank representing that it was the owner of the entire lot and contracting to sell him the entire lot, which he supposed was done by the deed from Littlefield. We think this statement is true, Littlefield having been trustee as aforesaid and the bank having supposed that it was the owner of the entire lot, the parties acting under a mutual mistake. The bank has advertised the estate for sale under a power in the mortgage. The bill prays for an injunction restraining the sale, for a decree ordering the bank to fulfil its promises and representations in regard to the estate, or in lieu thereof to pay to the complainant, by credit on the mortgage note, such sum of money as to the court may seem meet, for reformation of the note and mortgage, and for general relief.
The complainant relies, in support of his bill, on the doctrine applied in suits for specific performance by vendee against vendor when the vendor is incapable of fully performing the contract. "The general rule in such cases," says Judge Story, "is, that the purchaser, if he chooses, is entitled to have the contract specifically performed as far as the vendor can perform it, and to have an abatement out of the purchase money or compensation for any deficiency in the title, quantity, quality, description, or other matter touching the estate." 2 Story Eq. Juris. § 77. The defendant contends that the rule is inapplicable here, because the complainant knew when he instituted his suit that the bank had already performed its contract as far as it was capable of performing it, and the suit, therefore, though purporting to be a suit for specific performance, is in reality nothing but a suit for damages. We do not think this statement is entirely correct. The complainant is not seeking to recover damages, but only to secure an abatement of the price to be paid. The bill, inadvertently without doubt, states that the price was paid, when in fact it was only secured. *Page 365 The bill should be amended in this particular. It is true the prayer of the bill is for specific performance or abatement, but the alternative is for the advantage of the bank, inasmuch as it affords the bank an opportunity, if it can buy the half not conveyed, to fulfil its contract. The real purpose is to have the price reduced. The question is: Is the complainant entitled to that relief? The bill, supported by the proof, shows that the complainant, supposing that he had become the owner of the entire estate which he had bargained for, made large expenditures, greatly increasing its rental value. We think, if the complainant had made the expenditures and improvements simply on the faith of the oral contract or promise without taking the deed, that he would have been entitled, under the settled rule in chancery, to have had the contract specifically performed, so far as the bank or its trustee was capable of performing it, with abatement of price for the defect, the possession and expenditure being treated as part performance. Browne on the Statute of Frauds, § 487; Waterman on Specific Performance, §§ 270, 280. But if the court would have decreed conveyance with abatement of price if there had been no conveyance, why, the conveyance having been made, should it not go on and do what else it would have done if it had not been made, namely, abate the price? It certainly would be very unreasonable for the court to hold that the only remedy for the complainant is a rescission of the conveyance contrary to his wish, when the conveyance, if it had not been made, would have been enforced with the price reduced. It seems to us that the truer view is that the court will complete the relief which it would have given but for the conveyance by reducing the price. There is a special reason why it should do so here: for so far as we can see the complainant has no remedy at law. The cases cited for the defendant are mainly cases for specific performance by vendee against vendor, in which the vendor had not conveyed anything, and was, to the knowledge of the vendee when he brought the suit, utterly incapable of conveying anything. The suits were, therefore, in reality simply suits for damages for breach of contract and should have been prosecuted at law. They did not involve the strong equities which are so palpable in the case at bar. In Manson v. Thacker, L.R. 7 Ch. Div. 620, which seems *Page 366 to be most nearly in point, the transaction had been completed and the purchase money paid after an investigation by the purchaser in which the court say he ought to have discovered the defect.
Our conclusion is that the complainant is entitled to relief by an abatement of the price, the abatement to be applied in reduction of the mortgage, the mortgage itself evidently being part of the transaction and vitiated by the same mistake, though this is not expressly alleged.