111 Mass. 270 | Mass. | 1873
Notice or knowledge of the existence and of the terms of an agreement for the sale of land is, in equity, sufficient to prevent one who has it from acquiring rights in fraud of that agreement. It puts him on inquiry; and it is his own fault if he fails to inform himself of the validity and legal force of the agreement before undertaking to acquire the property himself. Hayward v. Cain, 110 Mass. 273. Sugd. Vend. & P. (14th ed.) 755, 762.
It is contended that, by commencing an action at law in which the land in question was specially attached, the plaintiff waived his remedy in equity. But the remedy in equity, by compelling specific performance, and that at law in damages for the breach, are both in affirmance of the contract. They are alternative remedies, but not inconsistent; and remedy in both forms might be sought in one and the same action. If the plaintiff institute separate actions, he cannot carry both to judgment and satisfaction. He may be compelled, by order of the court, at any stage
The defence of waiver by election arises where the remedies are inconsistent; as where one action is founded on an affirmance, and the other upon the disaffirmance of a voidable contract, or sale of property. In such cases any decisive act of affirmance or disaffirmance, if done with knowledge of the facts, determines the legal rights of the parties, once for all. The institution of a suit is such a decisive act; and if its maintenance necessarily involves an election to affirm or disaffirm a voidable contract or sale, or to rescind one, it is generally held to be a conclusive waiver of inconsistent rights, and thus to defeat any action subsequently brought thereon. This is the doctrine of the cases in the New York reports, cited by the defendant, and also of Sanger v. Wood, 3 Johns. Ch. 416, 421. It is fully developed and explained by Chief Justice Shaw in Butler v. Hildreth, 5 Met. 49. See also Kimball v. Cunningham, 4 Mass. 502; Gardner v. Lane, 98 Mass. 517; Hooker v. Hubbard, 97 Mass. 175.
For the reason first suggested, the defendant does net bring this case within the principle of a conclusive waiver by election of remedy.
It is contended that Raymond, being misled by the plaintiff’s acts, was induced to change his position in relation to the property, and put to inconvenience to remove the attachment; and that these facts constitute an estoppel in pais. But the element of intent on the part of the plaintiff, which is essential to an estoppel in pais, is not found, and is not to be inferred from the facts reported. An attachment is an ordinary incident of a suit at law; and there is nothing to show that the plaintiff contemplated any other disadvantage or inconvenience to the defendants than might naturally and ordinarily result from such legal proceedings.
Upon the whole case we see no good reason why specific per< tormance should not be had against both defendants.
Recree accordingly.
