Ensign v. Kellogg

21 Mass. 1

• Court: Massachusetts Supreme Judicial Court
• Decided: September 20, 1826
• Status: Published

Opinion

Per Curiam.

We are satisfied that no subject is more proper for the power of a court of chancery in decreeing specific execution, than a contract for the sale of real estate ; for what is agreed to be done, ought in conscience to be done.¹ And we think such contracts are clearly within the chancery powers granted by the legislature to this Court.² Nor is the remedy at law for damages complete or adequate ; for the thing contracted for is wanted, and the value in money may often be an unsatisfactory compensation.

The objections to the assignment of the contract we think not supported. By the original stipulation the conveyance was to be made to the appointee of the obligee. The question of the validity of the assignment on account of the consideration, is a matter between the creditors of the obligee and the complainant. It is sufficient for the present bill, that an assignment is set forth, and that the condition upon which the conveyance was to depend is averred to have been performed. Whether the assignment is in legal form or not, may be inquired into on the trial of the merits.

Demurrer overruled.

1 See Fonbl. Eq. (3d Amer. ed.) bk. 1. ch. 1, § 5, p. 48 et seq. note; Telfair v. Telfair, 2 Desauss. 271; Seymour v. Delaney, 3 Cowen, 445; 6 Johns. Ch. R. 225; Anthony v. Leftwich, 3 Randolph, 238; Church v. Leiber, 2 Paige, 43.

But the Court has no power to decree a specific performance of a contract, unless every part of it has been reduced to writing; Brooks v. Wheelock, 11 Pick. 439; even, as it seems, though a paroi contract be confessed by the answer. Stearns v. Hubbard, 8 Greenl. 320. But see Dark v. Bagley, 2 Murphey, 33; Jones v. Sluby, 5 Harr. & Johns. 372.

Equity will decree a specific performance of a paroi contract for the sale of land, where there has been a part-performance by the purchaser. Tibbs v Barker, 1 Blackford, 58; Crocker v. Higgins, 7 Connect. R. 342; Downey v. Hotchkiss, 2 Day, 225; Simmons v. Hill, 4 Harr. & M'Hen. 252; Peifer v. Landis, 1 Watts, 392.

2 Jones v. Boston Mill Corp. post, 512, and notes to that case; Revised Stat. c. 81, § 8.