The appellant, William Cady, filed a bill in equity in the circuit court of Wood county against the appel-lee, Edmund L. Gale, and his wife Mary Gale, to enforce the specific performance of a contract in writing between them for the sale of a certain tract of land in Ritchie county. The contract is dated the 3d of October, 1859, signed and sealed by the parties: whereby the said Gale and wife, in consideration of fifteen hundred dollars, the receipt of which is acknowledged, bind themselves to execute and deliver to the said Cady, within six months from the date thereof, a good and sufficient warranty deed for two hundred and fifty acres of land in Ritchie county, Virginia, off of the northwest corner •of a certain tract of two thousand acres, which had been conveyed to the said Mary Gale by Walter Keeler and wife in 1854. There is also a memorandum in writing dated 19th of December, 1860, endorsed on the contract signed by all the parties to it, whereby it is stipulated between them, that the provisions of the contract should be extended to the first of June following. The bill alleges that the contract was executed in the town of Joliet, in the State of Illinois, where all the parties to it then resided, and that the complainant, at the time, was advised and believed he could, under the laws of Virginia, enforce the contract and compel a conveyance for the land from Mary Gale as well as her husband. But being ‘surprised to learn afterwards that the contract could not be *562enforced as to her, and knowing that the said Edmund L. Gale had children by the said Mary, horn alive, during their coverture, and therefore a life estate in the land in controversy, complainant frequently demanded of said Gale a conveyance of the same in fee simple, or if that could not be obtained, a deed for his life interest, (which he was willing to take in full discharge of said contract,) and that he utterly refused to make complainant a deed for any interest whatever. And the prayer is that the defendants be compelled to convey the land in fee simple, or if not entitled to such a conveyance that Edmund L. Gale be made to convey his life interest; and also for general relief.
At a subsequent term of the court, the bill was dismissed as to Mary Gale, at the instance of the complainant, and at his costs. Subsequently an amended bill was filed with the same allegations contained in the original bill, and alleging further that while the complainant had fully complied with the contract on his part the defendants, Edmund L. Gale and Mary Gale and each had wholly failed and refused to comply with or execute the contract, in whole or in part; that complainant paid the full value of the premises in dispute, and that’since the time fixed for the execution of the deed for the land, valuable discoveries of oil, &c., had been made under the surface of the premises, and that the defendant, Edmund L. Gale, had made numerous and profitable leases of parts of such premises, and received large sums of money by way of bonus for the same, and also received as royalty or rent a certain portion of the oil that might be obtained under them. Said Gale is made a party defendant and required to answer and make a full and particular discovery as to the number of leases, the amount received by him as a bonus thereon, or for royalty, the amount of the latter reserved on such leases, and that he be decreed to pay and account to complainant for all sums of money and oil received on account of said leases; to assign and deliver the same to complainant and also execute and deliver a deed for the land in controversy, and for general relief. The answers of Edmund L. Gale to the original and amended bill admit the execution of the contract at the time-alleged. Also the birth of children as alleged, and that no deed had been executed for the land in dispute, but denies that the complainant paid a consideration of $1,500, and avers-*563that he only assigned or conveyed to his wife, Mary Gale, a certain patent right for a “ certain improvement on a wood sawing machine,” patented to the complainant the 6th of January, 1857, which right was estimated by them at $1,500; and the assignment or conveyance of the same is filed as an exhibit of the answer and bears even date with the contract. It is also averred that although represented by complainant to be of great value, the said patent right so assigned was in fact wholly worthless, and that the complainant really paid no consideration for the land, but cheated and defrauded the wife of respondent; that respondent, after the contract and assignment were made, heard nothing more of the matter until shortly before the institution of this suit; that in the meantime the premises now in dispute very greatly appreciated in value an account of the discovery of the oil, &c., throughout the same, though before such discovery the land (being rough and hilly) was of very little value; that neither he or his wife had the slightest knowledge or suspicion, when the contract was entered into and assignment made, of the presence (under the surface) of the oil, &c., and which contract, it was submitted, was therefore made in such utter ignorance of the subject they were disposing of and misconception of its real value that no court of equity ought to enforce the contract. And it is also admitted that the defendant had made sundry leases on the land and received as bonus sundry sums of money and reserved in the leases as royalty certain portions of the oil, &c. A large amount of testimony is found in the record, principally in reference to the question of the value of machines manufactured, and also sold under said patent, by G-ale and others; and a portion of it refers to the question of the relative value of the patent right so assigned to Mrs. Gale, and the land in controversy at the time of the contract. Upon the final hearing the bill was dismissed with costs, and the question now is whether this decree is erroneous.
After an attentive examination of the cases, as well of the authorities as of the facts appearing in the record, I am unable to concur in the conclusions arrived at by the learned judge of the circuit court. But, with all respect, it seems to me the reasons assigned'in support of his conclusions are in*564adequate and fail to show anything that ought to preclude the appellant from relief in a court of equity. In the opinion of the learned judge, which is made a part of the record, it is conceded that the contract was fair and untainted with fraud, and that the appellant had fully complied with it on his part, aad was in no default while the appellee had wholly failed to do so on his part, and was therefore in default. And of this there can be no shade of doubt.
It appears that the patent, (the right for which for the State of West Virginia was assigned to Mrs. Gale as the consideration for the land now in controversy,) issued to the appellant more than two years before the contract was entered into; and that in the meantime the appellant and others had been engaged in manufacturing and vending machines made under this patent, in the neighborhood of Joliet, where the parties to the contract then resided. It is but reasonable to assume, therefore, that the appellee was acquaiuted with the right which was so purchased, while no misrepresentation, concealment or fraud on the'part of the appellant, is shown. And it moreover appears, that fourteen months after the date of the contract, and after the appellee had been engaged in the sale of machines manufactured under said patent — which machines, it appears, he recommended to be good, he reaffirmed the contract, by entering into the written memorandum endorsed on it, stipulating for further time'for a compliance with it on his part Therefore the thing sold by the appellant and purchased by the appellee and wife, being the right to sell such patent right, and to make and sell machines under it, within the'State of Virginia, it is wholly unnecessary to go into the question, so much discussed, of the-valué of the machines that may have been manufactured and sold under the patent referred to in the testimony in the cause, nor is it material to inquire into the question of the adequacy of consideration; but I will add that if such an inquiry was necessary, it is clear from the proofs, that the right so assigned was, in fact, worth much more than the land, at the date of the contract.
Regarding, then, the contract as a fair one and founded on adequate consideration, nothing is seen in the peculiar circumstances now surrounding the case, that should prevent a *565court of equity from extending to the appellant relief in the premises to the exrent of the appellees interest therein. The doctrine has been long and firmly settled by the authorities in England, that where a vendor contracts to sell a larger interest in the real estate than he has title to, a court of equity will compel him, at the suit of his vendee, to convey to the latter, such an estate or interest as the former may have in the premises contracted to be sold. And there seems to be no exception to the rule where, as in this case, the purchaser has paid the fall consideration, and is willing to accept such title and interest, as the vendor hath in the premises purchased, in full discharge of the contract, without remuneration or abatement. Martlock vs. Butler 10 Vesey, Jr. 292. Wood vs. Griffith 1 Swanst. R. 55. Mare vs. Tinker and Topham 19 Beavan 576 -. Fry on Specific Performance-§299 and authorities cited. And this doctrine has been fully recognized in this country, and especially by the Court of Appeals of Virginia. 2 Story Eq. Jur. §779, 9 Johns 456. Evans & Co. vs. Kingsberry 2 Ran, 120. Clark, et al, vs. Reins 12 Gratt. 98. The latter case in principle, it is conceived, is like the present, and fully sustains the claim of the appellant for relief in the premises. It was strongly urged upon the argument here, that on account of the extraordinary and enormous advance in the land in controversy, by the discovery of the Oil, &c., since the contract, it would be unjust and oppressive on the appellee and his wife, to enforce the contract now.
It is very evident from the testimony, that this great appreciation of the premises, since the contract, is the real key to the defence now being made, for one of the appellee’s own witnesses, states that he was informed by the former, that he had traded some Virginia lands for the patent right, but as the land had since increased so in value, he wanted to prove that the machines were of no benefit to him.
The question of the hardship of a contract is to be referred to the time of making it. Fry on S. Perform, and authorities referred to. The contract in this instance, involved no hardship whatever when it was entered into, and it is well settled that courts of equity will not withhold their aid to enforce such contract, merely because of the great appreciation or depreciation of the property sold, from causes which were un*566known to, and unforeseen by each of the parties to the contract at the time it was made. 1 Sugden on Vendors 338. Fry on S. P. Star-page 116. 2d Story Eq. Jur. §789-790.
It is also assigned as a reason against the performance of the contract in this case, that it would necessarily result in great injury to third parties now interested in the premises in controversy. But it is not perceived, how such consequences would follow. The appellant will take no more interest than the appellee had in the premises, and will stand in his shoes, with reference both to the lessees, whose leases now cover the entire premises, and the remainderman, Mrs. Gale, and can have no greater rights and privileges, as against the latter, than the appellee himself could exercise. My conclusion therefore is that the decree should be reversed with costs; the appellee decreed to convey his interest in the land in controversy, to the appellant, the cause remanded to themir-cuit court for further proceedings, and that an account of the rents and profits be there taken in accordance with the prayer of the bill. ,
The other judges concurred.Decree reversed.