delivered the opinion of the court, May 10th 1875.
Upon every point on which the mining lease of December 21st 1852, by Alexander Jameson to Charles A. Lane, was .attacked in the bill, the decision of the learned judge below was adverse to the appellants. Want of power in the lessor, incompetency by reason of mental weakness, fraud and undue influence, alteration in the instrument, uncertainty as to the commencement of the term, and want of consideration, are all considered and disposed of, And we think rightly disposed of. There is a clear distinction, well established as a rule in equity, between cases of specific performance and of rescission or cancellation. In many instances, the chancellor will refuse specific performance where he will also refuse to order the instrument to be delivered up to be cancelled, but leave the parties to their legal remedies: Graham ». Pancoast, 6 Casey 89. This case would certainly present itself in a different light, were it a hill by the appellee, praying specific performance and to he put into possession, under the lease. The learned judge below expressed the opinion, not only from the unusual stipulations of the lease, and the great age and mental weakness of the lessor, but also from the lapse of time without any possession taken or operations commenced under the lease, the appellant had no ground to apprehend any successful assertion of the rights of the lessee or his assignees.
It is contended, however, that admitting this to be so, the existence of the lease outstanding in the assignee, was a cloud upon the title of the appellants, preventing their sale of the property, and that a decree should have been made upon that ground of equity. Mr. Justice Strong said, very truly, in Kennedy v. Kennedy, 7 Wright 417, “ there are very many cases analogous to bills of peace in which a chancellor has interfered to quiet the enjoyment of a right, or to establish it by a decree, or to remove a cloud from the title. Indeed, this is one of the well recognised branches of equitable jurisdiction, though its extent is not clearly defined.” It has been maintained, that an instrument wholly void upon its face, would carry its own condemnation with it, and would not be in a proper and legal sense, a cloud upon the title: Hotchkiss v. Etting, 36 Barbour S. C. Rep. 45, and cases there cited. Mr. Justice Story considers it to be now fully established, that in such cases, courts of equity will not interpose their authority to order a cancellation or delivery up of such instruments: 2 Story Eq. Jur. 700. Chancellor Kent, however, in Hamilton v. Cummings, 1 Johns. Ch. Rep. 522, after an exhaustive examination of the English precedents says, “ I am inclined to think that the weight of authority and the reason of the thing are equally in favor of the jurisdiction of the court, whether the instrument is or is not void at law, and whether it be void from matter *96appearing on its face or from proof taken in the cause, and that these assumed distinctions are not well founded.” He adds: “ Perhaps the cases may all be reconciled on the general principle, that the exercise of this power is to be regulated by sound discretion, as the circumstances of the individual case may dictate; and that the resort to equity to be sustained, must be expedient, either because the instrument is liable to abuse from its negotiable nature, or because the defence, not arising on its face, may be difficult or uncertain at law or from some other special circumstances peculiar to the case, and rendering a resort here highly proper and clear of all suspicion of any design to promote expense and litigation.” The best expression of the rule, as it seems to me, is to be found in an opinion of the Supreme Court of Massachusetts, in Martin v. Graves, 5 Allen 661, by Merrick, J. “ Whenever a deed or ■other instrument exists, which may be vexatiously or injuriously used against a party, after the evidence to impeach or invalidate it is lost, or which may throw a cloud or suspicion over his title or interest, and he cannot immediately protect or maintain his right by any course of proceedings at law, a court of equity will afford relief by directing the instrument to be delivered up and cancelled, or by making any other decree which justice or the rights of the parties may require.” It is certainly a matter in the sound discretion of the court, in view of all the circumstances of the case, and the power ought not to be exercised, except in a very clear case.. We think this is not such a case. To exercise it here, would be in effect to overrule the well-settled principle of chancery, which has already been adverted to, an'd say, that whenever a chancellor, on account of the laches of the adverse claimant, or the unreasonableness of the contract, or the mental weakness of the. party, would decline to enforce the contract by a specific performance, he will order it to be delivered up to be cancelled, when it may operate to cloud the title. The lessees or their assignees ought not to be deprived of their legal remedies, and their constitutional right of trial by jury, as they would be by such a decree.
Decree affirmed and appeal dismissed, each party to pay his own costs of this appeal.