JoiiNSON, Judge,
delivered the opinion of the Court:
The first error assigned is, that the demurrer to the bill was overruled. I think the bill is sufficient. It shows, that on the faith of the promise of his father Hugh went on the land and made valuable improvements; that his lather had the land surveyed to him, and the plat was delivered to his son, before the valuable improvements were made.
It is objected, that the contract as alleged in the bill is not proved; and therefore there should have been no decree for specific performance.
It is true, that there is a material variance in the contract as alleged and that proved. It is strange, that in this cause it should be so, as the deposition of Mr-s. Baldenberg sjiows what the contract was, and her statement of it is corroborated by the circumstances and other evidence in the cause. The only material variance is, that the bill fails to allege as a part of the parol contract the material fact, that the said Hugh Warden, as part of the consideration for the tract of one hundred and forty-nine acres of land including the, mill-site, was [405]*405during the lifetime of his father Thomas Warden to do the grinding of the said Thomas “toll free;” or free of toll. There is nothing in the evidence to show, that he did not do so. About.the beginning of the war Hugh went into the army, and was killed near the close of the war. This may account for the delay in bringing the suit. What decree, if any, could the court properly have entered. ?
In Bradford et al. v. The Union Bank of Tennessee, 13 How. 69, Mr. Justice Nelson in delivering the opinion of the Court said: “The more modern course of proceeding is to dispense with the cross-bill, and make the same decree upon the answer to the original bill, that would be made, if a cross-bill had been filed, if the defendant submits in his answer to a performance of the real agreement between the parties. The answer is viewed in the light of a cross-bill, and becomes the foundation for a proper decree by the court. This practice has been adopted as most convenient and expeditious in settling definitively the rights of the parties, and for the sake of saving further litigation and expense.”
In the case of Stapylton v. Scott, 13 Ves. 425, the Master of the Nolls dismissed the dross-bill with costs, considering it unnecessary, as the court would upon the answer decree a specific execution of what was the real agreement. This practice was followed by Lord Eldon in Fife v. Clayton, 13 Ves. 546, on the ground that it was right in principle aud would save expense. A specific performance was also deereed upon the answer in Gwynn v. Lethbridge, 14 Ves. 585; and it appears now to be a very common practice in chancery proceedings. 1 Daniel Ch. Pr. 436 and notes; 2 Id. 101, 102 and note; Story’s Eq. Pl. §394.
These cases refer more particularly to the right of the defendant to have a decree for a specific execution of the agreement according to the answer, so that he may be saved the expense of a cross-bill, even against the claim of the plaintiff to have his bill dismissed.
[406]*406The iSame principle however seems to be equally applicable to the complainant, where he insists upon the. decree for specific performance of the contract as established by the proofs, although different from that set up in the bill. Indeed we preceive no solid distinction between the two cases. In both the contract of course, when ascertained and conformed to the real understanding of the parties, must be such a one, as the court deems fit and proper to be enforced, 2 Daniel, Ch. Pr, 1001, 1002; London and Birmingham Railway Co. v. Winter, Cr. & Ph. 62.
We shall adopt this practice in the disposition of this cause, as it will save all .further litigation and expense, and settle the rights of the parties, as in our judgment the principles of equity and justice demand.
If we could accept the above as the rule of eqnitj' practice in Virginia and this State, we would have no difficulty here in disposing of the cause before us, as we believe justice and the rights of the parties require, by decreeing a specific execution of the contract, as disclosed by the proofs.
Judge Christian, in his opinion in McComas v. Easley, 21 Gratt. 23, cites the authorities, or a part of them, referred to in Bradford v. Bank, 13 How., and also refers to the latter case ; but the principle, which he lays down and which he approves, is: “The appellee having failed to establish by proof the contract, which he sets out, and seeks to enforce, and the evidence in the cause having established a different contract between the parties, the court ought either to have dismissed the bill, or put him to his election, either to have the contract as •proved executed, or rescinded. It was clearly error in the court below to decree specific execution of the contract, which he sought to enforce. The evidence shows, that there was no such contract, but that the contract was entirely different. The court might have dismissed the bill; for it is well settled, that a party coming into a court of equity asking for the specific execution of a contract, must state [407]*407his contract with reasonable certainty, and prove it as stated; and if there be any material difference between the allegations and the proof, the court may dismiss the bill, and leave the parties to their remedy at law. Fry on Specific Per. 165; Anthony v. Leftwich, 3 Rand. 238,” and he might have added, Pigg v. Corder, 12 Leigh 69.
He further says: “but every bill for the specific execution of a contract is an application to the sound discretion of the court. It is not a case requiring the-interposition of the court ex debito justiti.ee, but rests in their discretion upon all the -circumstances of each particular case. In the language of Lord Eldon, in 13 "Ves. 331: ‘ The jurisdiction is not compulsory upon the court, but the subject of its discretion ; the question is not what the court must do, but what it may do under the circumstances, either exercising the jurisdiction by by granting the specific performance, or abstaining from itf And long previous to him Lord Hardwicke and other eminent equity judges in England had in a great variety of cases asserted the same discretionary power of the court.”
“Of course the discretion to be exercised is not an arbitrary and capricious one, depending upon the mere pleasure of the court, but one which is to be exercised and controlled by the established doctrines and settled principles of equity, governed by the circumstances of each particular case. * * * In the case before us, we think it would be most equitable not to dismiss the plaintiffs’ bill, and remit the parties to their legal rights. 'Where equity can do complete justice between the parties, it will never turn them out of court to pursue their remedy at law. 1 Mun. 63; 5 Pet. 263.” (See West. M. & M. Co. v. Va. C. C. Co. 10 W. Va. 250.) “But a court of equity having complete jurisdiction of the parties and the subject matter, should make such decree, as will settle the rights of the parties, do complete justice between them, and close the controversy forever. We are therefore of opinion, that while the plaintiff cannot have [408]
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JoiiNSON, Judge,
delivered the opinion of the Court:
The first error assigned is, that the demurrer to the bill was overruled. I think the bill is sufficient. It shows, that on the faith of the promise of his father Hugh went on the land and made valuable improvements; that his lather had the land surveyed to him, and the plat was delivered to his son, before the valuable improvements were made.
It is objected, that the contract as alleged in the bill is not proved; and therefore there should have been no decree for specific performance.
It is true, that there is a material variance in the contract as alleged and that proved. It is strange, that in this cause it should be so, as the deposition of Mr-s. Baldenberg sjiows what the contract was, and her statement of it is corroborated by the circumstances and other evidence in the cause. The only material variance is, that the bill fails to allege as a part of the parol contract the material fact, that the said Hugh Warden, as part of the consideration for the tract of one hundred and forty-nine acres of land including the, mill-site, was [405]*405during the lifetime of his father Thomas Warden to do the grinding of the said Thomas “toll free;” or free of toll. There is nothing in the evidence to show, that he did not do so. About.the beginning of the war Hugh went into the army, and was killed near the close of the war. This may account for the delay in bringing the suit. What decree, if any, could the court properly have entered. ?
In Bradford et al. v. The Union Bank of Tennessee, 13 How. 69, Mr. Justice Nelson in delivering the opinion of the Court said: “The more modern course of proceeding is to dispense with the cross-bill, and make the same decree upon the answer to the original bill, that would be made, if a cross-bill had been filed, if the defendant submits in his answer to a performance of the real agreement between the parties. The answer is viewed in the light of a cross-bill, and becomes the foundation for a proper decree by the court. This practice has been adopted as most convenient and expeditious in settling definitively the rights of the parties, and for the sake of saving further litigation and expense.”
In the case of Stapylton v. Scott, 13 Ves. 425, the Master of the Nolls dismissed the dross-bill with costs, considering it unnecessary, as the court would upon the answer decree a specific execution of what was the real agreement. This practice was followed by Lord Eldon in Fife v. Clayton, 13 Ves. 546, on the ground that it was right in principle aud would save expense. A specific performance was also deereed upon the answer in Gwynn v. Lethbridge, 14 Ves. 585; and it appears now to be a very common practice in chancery proceedings. 1 Daniel Ch. Pr. 436 and notes; 2 Id. 101, 102 and note; Story’s Eq. Pl. §394.
These cases refer more particularly to the right of the defendant to have a decree for a specific execution of the agreement according to the answer, so that he may be saved the expense of a cross-bill, even against the claim of the plaintiff to have his bill dismissed.
[406]*406The iSame principle however seems to be equally applicable to the complainant, where he insists upon the. decree for specific performance of the contract as established by the proofs, although different from that set up in the bill. Indeed we preceive no solid distinction between the two cases. In both the contract of course, when ascertained and conformed to the real understanding of the parties, must be such a one, as the court deems fit and proper to be enforced, 2 Daniel, Ch. Pr, 1001, 1002; London and Birmingham Railway Co. v. Winter, Cr. & Ph. 62.
We shall adopt this practice in the disposition of this cause, as it will save all .further litigation and expense, and settle the rights of the parties, as in our judgment the principles of equity and justice demand.
If we could accept the above as the rule of eqnitj' practice in Virginia and this State, we would have no difficulty here in disposing of the cause before us, as we believe justice and the rights of the parties require, by decreeing a specific execution of the contract, as disclosed by the proofs.
Judge Christian, in his opinion in McComas v. Easley, 21 Gratt. 23, cites the authorities, or a part of them, referred to in Bradford v. Bank, 13 How., and also refers to the latter case ; but the principle, which he lays down and which he approves, is: “The appellee having failed to establish by proof the contract, which he sets out, and seeks to enforce, and the evidence in the cause having established a different contract between the parties, the court ought either to have dismissed the bill, or put him to his election, either to have the contract as •proved executed, or rescinded. It was clearly error in the court below to decree specific execution of the contract, which he sought to enforce. The evidence shows, that there was no such contract, but that the contract was entirely different. The court might have dismissed the bill; for it is well settled, that a party coming into a court of equity asking for the specific execution of a contract, must state [407]*407his contract with reasonable certainty, and prove it as stated; and if there be any material difference between the allegations and the proof, the court may dismiss the bill, and leave the parties to their remedy at law. Fry on Specific Per. 165; Anthony v. Leftwich, 3 Rand. 238,” and he might have added, Pigg v. Corder, 12 Leigh 69.
He further says: “but every bill for the specific execution of a contract is an application to the sound discretion of the court. It is not a case requiring the-interposition of the court ex debito justiti.ee, but rests in their discretion upon all the -circumstances of each particular case. In the language of Lord Eldon, in 13 "Ves. 331: ‘ The jurisdiction is not compulsory upon the court, but the subject of its discretion ; the question is not what the court must do, but what it may do under the circumstances, either exercising the jurisdiction by by granting the specific performance, or abstaining from itf And long previous to him Lord Hardwicke and other eminent equity judges in England had in a great variety of cases asserted the same discretionary power of the court.”
“Of course the discretion to be exercised is not an arbitrary and capricious one, depending upon the mere pleasure of the court, but one which is to be exercised and controlled by the established doctrines and settled principles of equity, governed by the circumstances of each particular case. * * * In the case before us, we think it would be most equitable not to dismiss the plaintiffs’ bill, and remit the parties to their legal rights. 'Where equity can do complete justice between the parties, it will never turn them out of court to pursue their remedy at law. 1 Mun. 63; 5 Pet. 263.” (See West. M. & M. Co. v. Va. C. C. Co. 10 W. Va. 250.) “But a court of equity having complete jurisdiction of the parties and the subject matter, should make such decree, as will settle the rights of the parties, do complete justice between them, and close the controversy forever. We are therefore of opinion, that while the plaintiff cannot have [408]*408specific execution of the contract he seeks to enforce, yet under the circumstances of this case he ought to have his election (see Hook v. Ross, 1 H. & M. 310) either to have the contract rescinded, or have it performed in accordance with the agreement as proved.”
The court rendered the decree and remanded the cause to’ the circuit court to put. the plaintiff fo his election, either to perform the contract as proved, or to have the same rescinded, and if he should refuse to perform the, same or elect to have the same rescinded within a reasonable time, he should deliver up the house and lot to the appellant, and an account should be taken, &e.
The principles announced in the above cause are not contradictory to the Virginia and West Virginia authorities upon the subject of specific performance of parol contracts. It is not mandatory upon the Court to dismiss the bill inbvery case, where there is a variance between the contract alleged and the contract proved. In the case of Anthony v. Leftwich, 3 Rand., no contract Avas satisfactorily proved to the majority of the court. In Pigg v. Corder, 12 Leigh, no contract was proved, nor was any contract proved in Patrick & Lovell v. Horton, 3 W. Va. 23, and in the two latter cases, the court properly dismissed the bill.
Syllabus i. Where a bill is filed for the specific performance of a parol contract, the contract must be set out with reasonable certainty, and proven substantially as alleged, orno decree can be made to enforce it; and the court may dismiss the bill, if the contract is not proved as alleged.
But where the contract proved varies from that set up Syllabus 2 .n an(j oontrac£ proved is clear and certain in its terms, and is such as a court of equity might properly enforce, and the court below decrees a specific execution of the contract set out in the bill, the decree must be reversed; but the Appellate Court will not dismiss the bill, but will remand the cause to the court below, to put the plaintiff to his election, either to have a specific execution of the “contract as proved,” or to have the same rescinded, and the parties put in statu quo.
[409]*409It seems to me, that this is a cause, in which the latter course ought to be pursued. It would be inequitable the heirs of Hugh Warden to dismiss the bill under the circumstances of this case. The decree was certainly erroneous in decreeing the performance of a contract not proved. It was also erroneous in decreeing title to be made to the widow, as well as the heirs at law, of Hugh Warden; and in giving the election to the defendant Thomas Warden to convey the Sand Branch tract, or the tract referred to in the contract. The widow had no right to exchange places with the defendant D. J. Warden. The contract as proved was, that Hugh Warden was to have a title to the one hundred and forty-nine acres as surveyed by Richard McVey. and Hugh was to go on to the land and improve it, and as a part of the consideration was to do the grinding of Thomas Warden during his, Thomas Warden’s, life toll free, of course that meant such grinding of grain as he and his family should need for their use. The deed should have contained that charge on the land.
For the foregoing reasons the decree of the circuit court of Raleigh county, rendered in this cause, on the 27th day of April, 1875, is reversed; and the appellants ■Thomas Warden and JD. J. Warden must recover of the appellees Susan Baldenberg, Alexander Warden, and William T. Quesenberry their costs about their appeal expended ; ■ and this cause is remanded to the circuit court of Raleigh county, that the said widow and heirs at law of Hugh Warden, deceased, be put to their election, feither to have a specific performance of said contract, as proved and hereinbefore set out, or to have the same rescinded; and if they should elect to have the same performed, the said court should enter a decree requiring said defendant, Thomas Warden, within such reasonable time as it shall appoint, to execute and deliver with covenant of special warranty a deed to one hundred and forty-nine acres as shown by the plat of said Richard McVey and the survey made in this cause, to the said [410]*410legal heirs of Hugh Warden, deceased, making a charge ln said deed against said land, that said heirs during the lifetime of him, the said Thomas Warden, should do, or cause to be done, at said mill on said land “his, Thomas Warden’s, grinding toll free,” and said deed shall be made subject to the widow’s dower in said land ; and in default of the said Thomas Warden within such reasonable time to make said deed, the said court shall appoint a commissioner to execute and deliver the same to said heirs. And if such election, to have the said contract performed, or rescinded, shall not by said widow and heirs be made within a reasonable time, the bill shall be dismissed with costs, but if they should within such time elect to have said contract rescinded, then the said court shall cause an account to be taken, unless it. is satisfied with the account already taken, in which said Thomas Warden shall be charged with the value of all the permanent improvements put upon said tract of one hundred and forty-nine acres of land by said Hugh Warden or his widow and heirs, and shall be credited with the reasonable rents and profits of said land ; and said court shall further proceed with said cause according to the principles of this opinion and further according to the rules and practice governing courts of equity.
The Other Judges CoNcurred.
Decree Reversed. Cause Remahded.