This is an appeal from a decree of the vice-chancellor of the fourth circuit, dismissing the complainant’s bill.—It is unnecessary to go into a critical examination of the facts in this case, as I concur with the vice-chancellor in his conclusion, that the contract, of which a specific performance is sought, was unfairly obtained; and that a court of equity ought not to enforce its performance as against either of the defendants. But if the complainant has any claims whatever against the defendant Closson, he should be left to his remedy at law. The decision of the vice-chancellor was, therefore, right in this case; and the decree appealed from must be affirmed with costs.
From the decree of the chancellor, affirming the decree of the vice-chancellor, the complainant, Slocum, appealed to the court of errors. The proceedings subsequently were transferred to this court.
*757■ Second. Although decreeing the specific performance of a contract is a matter resting in the discretion of a court of equity, yet that discretion is subject to certain established rules, and among them the following:—That a specific performance will always be decreed when the contract is in writing, is certain; is fair in all its parts; is for an adequate consideration ; and is capable of being performed. (2 Story’s Eq. Juris, p. 60, § 751; Fonb. Eq. 46, note 2, and cases there cited; Seymour v. Delaney, 3 Cow. 525.)
This contract has all the above requisites. (See contract as stated in the bill, pp. 4, 5; and testimony of Wm. B. Slocum, pp. 29 to 37, inclusive; testimony of Gerrit Fort, p. 24; and John Wilkinson, pp. 19, 20.)
Third. Joseph P. Mosher having purchased of Isaac Closson, with knowledge of the previous contract between the complainant and said Isaac, is affected by that knowledge. His deed should be set aside, or he compelled to join with said Isaac in the specific performance of said contract between the complainant and Closson. (2 Story’s Eq. Juris. 103, § 748; Taylor v. Stibbert, 2 Vesey, Jr., 438.) tlUgr* J. A. Spencer in reply—examines the evidence, &c.
Cagger & Stevens, attorneys, and Samuel Stevens, counsel, for respondents.First. The remedy by specific performance, is not a right to which the party is entitled exdébito justicia. It is an appeal to the extraordinary jurisdiction of the court, and therefore rests entirely in its discretion, upon a view of all the circumstances in each particular case. (2 Story’s Eq., § 742; St. John v. Benedict, 6 J. C. R. 117; Seymour v. Delaney, id. 224—228; S. C. in error, 3 Cow. 445.)
*758Second. ' If the contract have been obtained by fraud, deceit, or misrepresentation, not amounting to fraud, or by surprise, or any other unfair or inequitable practice, a specific performance will not be decreed, but the complainant will be left to such remedy as he can obtain at law. (2 Story’s Eg. §§ 750, 751-769; 6 J. C. R. 225-6; 3 Cowen, 505-518, 521-526; 1 Madd. Ch. Prac. 321, Am. ed., 1817; do. 404-5, ed. 1827.)
Third. The agreement in question was obtained with a knowledge and in violation of a previous parol agreement or understanding between Closson and Mosher, that Mosher was to have the farm, he having advanced to Closson a considerable portion of the purchase money, and had transmitted a deed to Closson to be executed by him for his part of the farm; and this was effected by playing upon a mind enfeebled and rendered irritable by gross habits of intoxication, by falsely alleging that Mosher did not want the farm, and that he was permitting it to get into a dilapidated state, so that he could obtain it for a trifling consideration. (Pp. 40-43; corroborated pp. 48-9.)
Fourth. The contract was agreed to be abandoned by the agent of the complainant, and all objections to the conveyance of thex farm by Closson to Mosher were abandoned in July, 1833, a short time before the conveyance to Mosher. (P. 26.)
A parol discharge of a contract is a good defence to a bill for specific performance. (2 Story’s Eg. § 770.)
Fifth. Mosher had the prior equitable right to the conveyance, and that right having been consummated by his subsequent acquisition of the legal title, he is, in justice and equity, as well as in law, entitled to retain it.
Sixth. For these reasons, the decree of the vice-chancellor and chancellor should be affirmed.
Decision—Decree affirmed. For affirmance—Jewett, Ch. J.; Gardiner, Jones, Wright and Gray, JJ. For reversal— Bronson, Ruggles, and Johnson, JJ.
Note.—The opinion of the vice-chancellor, Willard, is the only one which discusses the merits of this case. And he held, that the party who seeks the *759aid of a court of equity, in enforcing a specific performance of a contract, holds the affirmative, and must make out a case entitling him to the relief sought. And must show, 1st. That the legal remedy is inadequate; and that, without a specific performance, injustice will be done, or irreparable injury produced. And, 2d. That the contract is fair, just, and reasonable, equal in all its parts, founded on an adequate consideration, and free from fraud, misrepresentation, or surprise.
Held, that in this case, the proof showed—allowing, on the score of credibility, Fish to be preferred to Wm. B. Slocum'—-that it was probable that Wm. B. Slocum induced Olosson to believe that Mosher did not want the. place; that he had treated him unfairly, by letting it go to ruin with a view to get it for nothing; that Mosher wanted to cheat Olosson out of the place; and that he then excited a hostile spirit in the bosom of Olosson towards Mosher. That these assertions had a controlling influence on the mind of Olosson, and induced him to make the contract with plaintiff. That they were alleged to be false, and no attempt had been made to show that they were true.
The complainant, in fact, had no equity against either defendant.
Not reported.