Slike strani
PDF
ePub

the consideration for the land was such that the ore deposits did not enter into the contract 1 if the possession of the minerals was openly in a third party, or the vendee knew of the severance of the title, or if he entered into possession of the tract of land purchased after knowledge of the adverse right to the ore, he cannot subsequently insist on being compensated for the ore taken.

§ 615. Sudden appreciation of property. The discovery of valuable ore deposits between the time of the contract of sale and the time for the delivery of the deed, will not excuse the vendor in refusing to perform the contract, as increase of value is not such a change in the

5

ance of an agreement for the purchase of a colliery, the answer admitting the substance of the bargain and the possession of the vendee and his working the coal bed, and so destroying the estate, defendant ordered to pay installments due, before final decree or the execution of a conveyance." Buck v. Lodge, 8 Ves. Jr. 450; M. M. D. 334.

1 Colby v. Gadsden, 34 Beav. 416.

2 Holmes v. Powell, 8 De G., M. & G. 572.

3 Colby v. Gadsden, 34 Beav. 421.

4 Smithson v. Powell, 20 L. T. 105. "Specific performance is a matter of discretion to be exercised, however, according to fixed and settled rules, and the mere inadequacy of consideration is not a ground for exercising such discretion by refusing a specific performance. Decree accordingly under this statement of the rule, for specific performance of an agreement for a coal lease, when, after prosecuting work for some time, under possession given, the coal seams were found to be absolutely not worth getting,' and the agreement called for a lease with £100 minimum rent, besides royalties." Haywood v. Cope, 25 Beav. 140; M. M. D. 334.

[ocr errors]

5 Bean v. Valle, 13 M. M. R. 292. "Discovery of gold on premises under executory contract of sale is an accession to the value of the estate of the purchaser. It will not defeat specific performance, even after delayed payments, where the delay has been acquiesced in." Falls v. Carpenter, 1 Dev. & Bat. Eq. 265 (N. C.); M. M. D. 334. "A contract fair at the time when made will be specifically enforced notwithstanding unforeseen circumstances, as the sudden discovery of oil in great quantity, have immensely enhanced its value since the agreement was made." Cady v. Gale, 5 W. Va. 547; M. M. D. 334.

subject-matter of the contract, as to furnish a ground for its rescission. But if one of the parties refuse to perform the contract and then an appreciation of value occurs, upon the strength of which he is desirous of carrying out the agreement, its enforcement would, then, as a matter of common right, be refused him.1

A con

§ 616. Contract for lease may be enforced. tract to grant, or take a lease of a mine or quarry, is also capable of being specifically enforced, and the party injured by the breach of such a contract is not confined to the remedy for compensation in damages. Where the terms of the lease have not been specified, the lessor should be given the benefit of the usual clauses, for his protection, such as provisions regulating the time and mode of work,3 a right to inspect and measure the quantity of ore removed, and a right of re-entry for nonpayment of rent.5 Re-entry for other causes are not usual, however, nor would a clause be inserted against assignment. Specific performance will not lie against the lessee for breach of a covenant to work in a particular manner; the enforcement would be impracticable for the court and the lessor would be confined to an action at law,8 and for the same reason a contract for a perpetual lease

1 Falls v. Carpenter, 6 M. M. R. 398.

2 MacSwinney on Mines, p. 196.

3 Walters v. Morgan, 3 De G., F. & J. 722. "Specific performance of covenant to fill up a gravel pit refused, the remedy being adequate at law." Flint v. Brandon, 8 Ves. Jr. 159; M. M. D. 332.

4 Blakesley v. Whieldon, 1 Ha. 176; Lewis v. Marsh, 8 Ha. 97.

5 Hodginson v. Crowe, 10 Ch. 622; s. c. 19 Eq. 594.

6 Hodginson v. Crowe, 10 Ch. 622.

7 Hodginson v. Crowe, 19 Eq. 594.

8 Abinger v. Ashton, 6 M. M. R. 1; Booth v. Pollard, 13 M. M. R. 312. “A right of re-entry (upon a quarry), gives a complete legal remedy so as not to make specific performance a matter of course." Rutland M. Co. v. Ripley, 10 Wall. 339; M. M. D. 332.

would be refused, as the cause could not remain in court forever, or the execution of such a decree be enforced.1

§ 617. Title relates to date of contract. —A purchaser or lessee of a mine or quarry is entitled to the property in the condition it was in at the date of the contract of sale or lease, and if the vendor leases the mines or works them and removes ore from the land, subsequent to the date of the contract of sale, or lease, the purchaser or lessee would be entitled to recover the proceeds of the ore so taken.3 But, on the other hand, if the purchaser is permitted to enter into possession pending completion of the contract, he will be held to account for the ore removed, for the pro

1 Rutland Marble Co. v. Ripley, 3 M. M. R. 291. A contract for an oil lease, for a nominal sum, with the right to quit work at any time and without covenants to prosecute operations, is so unjust that it will not be enforced. Federal Oil Co. v. West. Oll Co. (Ind. 1902), 112 Fed. Rep. 373. In Ohio it is held that lessor of oil wells can enforce the implied covenant to drill sufficient wells to protect line, the same as if lease contained such specific covenant. Alleghany Oil Co. v. Snyder, 106 Fed. Rep. 764. In West Virginia, damages only could be had for breach of such a covenant, expressed. Harness v. Oil Co., 38 S. E. Rep. 662. No such implied covenant exists in Pennsylvania. Young v. Forest Oil Co., 194 Pa. St. 243; 45 Atl. Rep. 121. Where husband and wife both sign lease as to community property, equity will decree specific performance, as against them both. Young v. Porter, 68 Pac. Rep. 362. See, as to specific performance of contract of married women in Missouri, Gwin v. Smur, 101 Mo. 550. But see Goldstein v. Curtis (N. J. Ch. 1902), 52 Atl. Rep. 218, where the contention that the wife could not be compelled to acknowledge the deed as her free act and will, was answered by saying that "the decree for specific performance is self-executing." In a contract for the lease of coal lands to a proposed corporation, where the parties who were to perfect the organization of the company, had an understanding that the lease was to be afterwards assigned to them, specific performance was refused, on the ground that the plaintiff did not come into court with clean hands. Reynolds v. Boland (Pa. 1902),

52 Atl. Rep. 19.

2 Nelson v. Bridges, 2 Beav. 243; MacSwinney on Mines, p. 86. Brown v. Dibbs, 25 W. R. 776; Ne'son v. Bridges, supra.

tection of the vendor,1 and if the working is shown to be such as to seriously injure or impair the security of the vendor's lien, in case of the insolvency of the purchaser, his working would be enjoined.2

§ 618. Sales of mineral not enforced. —A contract for the sale or purchase of minerals, after severance from the soil, will not be enforced. After severance, minerals are in no essential different from other ordinary personal chattels and it is immaterial that the contract calls for ore of a particular description, or from a particular mine,5 for its value is, none the less, susceptible of pecuniary compensation.

[ocr errors]

§ 619. Sale of corporate stock. As a general rule equity will not enforce a contract for the transfer of corporate stock where it has been placed upon the market

Ashley, 1 Mer. 133.

1 Buck v. Lodge, 18 Ves. 450; Dixon v. 2 Crackford v. Alexander, 15 Ves. 138. "The purchasers of a mining property, subject to leases, were in possession of part as lessees, and a part under an agreement with the lessees, and were working and disposing of the minerals, but they had paid no rent since the time when, according to the agreement, possession was to be given. Upon motion, after answer, in a suit for specific performance by the vendors, for payment into court of the balance of the purchase-money: Held, that the defendants could only be required to pay into court the rent in arrear." Robertshaw v. Bray, 35 L. J. Ch. 844; M. M. D. 336. The mere existence of an outstanding lease will not excuse performance, although the vendor contracted to execute a clear title. Cornell v. Rodabaugh (Iowa, 1902), 90 N. W. Rep. 599.

3 Pollard v. Clayton, 1 K. & J. 462; Fothergill v. Roland, 17 Eq. 132. 4 Fothergill v. Rowland, supra.

5 Pollard v. Clayton, supra. Possibly in a contract for the sale of mineral, if the vendor was insolvent, since the vendee, in such case, would not have an adequate legal remedy, specific performance might be decreed. Waterman Spec. Per., Sec. 16, p. 19; Parker v. Garrison, 16 Ill. 250. The fact that some personal property is included in a contract, as a mere incident of the realty, will not prevent specific performance. Young v. Porter, 68 Pac. Rep. 362.

and has a well-known established market value, as damages in such case would furnish an adequate remedy.1 But on account of the fluctuating and uncertain value of mining stock, it is frequently difficult to establish its market value, and if the stock is of a peculiar and uncertain value and competent evidence cannot be obtained to establish its real value, since the purchaser would not otherwise have a full and adequate remedy, a court of equity would decree specific performance and compel a transfer of the stock."

§ 620. As regards mining easements. - A contract for the acquisition or disposition of a mining easement will

1 Treasurer v. Commercial Min. Co., 13 Mor. Min. Rep. 360.

2 Treasurer v. Commercial Min. Co., supra. "Where stock is of a peculiar and uncertain value, and where compensation in damages will not afford a party a full and adequate remedy, a court of equity will decree a specific performance. In this State courts of equity will decree a specific performance of contracts for the transfer of mining stocks, owing to their fluctuating and uncertain value in market, and the difficulty of substantiating, by competent evidence, what would be a proper measure of damages." Treasurer v. Commercial C. M. Co., 23 Cal. 391; M. M. D. 336. "A valid agreement between a company and a shareholder for the cancellation of shares when the shareholder has performed his part of the contract will be specifically enforced, and the shareholder's name struck from the list of present contributors, proceedings having been commenced to wind up the company." Marshall v. Flamorgan I. C. Co., L. R. 7 Eq. 129; M. M. D. 335. "To a vendor's bill for specific performance of a contract to purchase shares in mines, insisting that the plaintiff was not bound to give other evidence of his title to the shares than attested extracts from the cost books, or registers of the mines, and that the defendant had refused to accept such evidence, but not alleging that the plaintiff was unable to give other evidence of his title, the defendant demurred: Held, that, as the plaintiff was not precluded from giving other evidence of his title, if necessary, the demurrer must be overruled." Curling v. Flight, 5 Hare, 244. See s. c. 6 Id. 41; 2 Philips, 614; M. M. D. 336. The rule of impossibility of performance, excusing specific performance, was applied to a contract to issue bonds for stock which could not be performed. Remmel v. Coal Co. (Pa. 1901), 18 Pa. Sup. Ct. 482.

« PrejšnjaNaprej »