139 Ky. 699 | Ky. Ct. App. | 1906
Opinion of the Court by
Affirming.
“This contract made and entered into by and between George L. Cox and EL E. Burgess, witnesseth:
“That the said Cox does hereby agree to make to the said Burgess a warranty deed for all the land owned by him which lies back of the land of said Burgess, on Long Fork of Millers Creek, in the county of Pike and State of Kentucky, said deed to be made four (4) years from this date, in consideration of the sum of fifty (50) cents per acre for said land, when the deed is made, the said Cox reserving the oil right and the privilege of taking off any timber on said land, which he wishes to do so, before the expiration of said four years. In consideration thereof the said Burgess hereby grants to the said Cox the right of way over his land for the purpose of removing said timber, said right of way to be used so as not to injure growing crops.
“Signed in duplicate, this 10th day of November, 1900.
“Geo. L. Cox,
“EL E. Burgess.”
Whereupon appellee opened up the passway for Cox and his employes in removing the timber and kept it open for them for the full period provided in the contract — four years. Appellant Cox refused to convey the land at 50 cents an acre at the expiration of the four years, and this suit was brought against him by appellee to compel the specific performance of the contract. Appellant defended on two grounds. One, that the contract was unfair and unconscion
The proof discloses that when the contract was entered into appellant’s land was regarded by him and others generally valuable mainly for its timber, and was worth then from $1 to $3 an acre with the timber all on it. But since then development of mineral resources of that region has added a considerable market value to such lands, and by reason of the extension of a railroad up the Big Sandy Valley to the vicinity of this land within the last ye'ar or two (but not> undertaken when the contract was made) has added a great deal to the value of these and all other lands in that immediate locality.
Appellant,' finding that his land has greatly appreciated in value since his contract was made, or that he was then mistaken as to its real or probable value, so that to now comply with it would be to give greatly more for the right of way. he has h'ad and used, than it is or was worth, insists that to compel his specific performance of the contract would be unconscionable; that it would be to compel him to pay from $800 to $2,000 for that which was worth not over $40 or $50. Appellant relies on that principle of equity which refuses to decree the specific execu
While equity operates on fixed rules, as well defined as are the rules of law, it exercises a judicial discretion which may he likened to the civil conscience, and which will vary in the relief afforded according to the peculiar facts and circumstances of the particular case. This is not, as was formerly charged against the chancellor’s exercise of prerogative which were at variance with the rules of law, according to the individual conception of the judge in the case as to what was right between man and man. Or, as it was anciently put (Table Talk, tit. equity):
“Equity is a roguish thing. For law we have a measure and know what we trust to. Equity is according to the conscience of him that is chancellor; and as that is larger or narrower, so is equity. ’Tis all one as if they should make his foot the standard for the measure we call a chancellor’s foot. What an uncertain measure would this be? One chancellor has a long foot, another a short foot, a third an indifferent foot. ’Tis the same thing as the chancellor’s conscience.”
Equity is now also the law. The case must fit itself to the law of equity. Equity will not change itself to fit the facts of the case. So, while the rule is that equity will withhold its sanction from and refuse to execute a contract which is founded upon fraud, imposition, mistake, undue advantage, or gross misapprehension; or where, from a change of circumstances or otherwise, it would be uncohscientious to enforce it (2 Story’s Equity, section 750a),
Even though the consideration had been inadequate — if we had a way of truly measuring the consideration — that of itself is not enough to justify the chancellor’s refusal to enforce the contract. Pomeroy states the rule correctly thus (Pomeroy’s Equity Jurisprudence, 926):
“The rule is well settled that where the parties were both in a situation to form an independent judgment concerning the transaction, and acted knowingly and intentionally, mere inadequacy in the price or in the subject-matter, unaccompanied by other inequitable incidents, is never of itself a sufficient ground for canceling an executed or executory contract. If the parties, being in the situation and having the ability to do so, have exercised their own independent judgment as to the value of the subject-*705 matter, courts of equity should not and will not, interfere with such valuation.”
Gross inadequacy of consideration is a ground for withholding the relief. But it must he such after all as amounts in law to a fraud. It must be as Lord Thurlow puts it in Gwynne v. Heaton, 1 Bro. Ch. 1, 9:
“An inequality so strong, gross and manifest, that • it must be impossible to state it to a man of common sense without producing an exclamation at the inequality of it. ”
The contract should be viewed as of the time and under the circumstances when it was made. For the law is clear that increases, gains, rises in value and other advantages happening to the property after the contract is entered into belong to the purchaser, who also assumes the risks of depreciation in value, losses from fire and the other elements, or other accidental causes not resulting from the fault of the seller. (Pom. Eq. Jur., section 1406.)
If the timber was the main value of this land in 1900, and to get it out to market was therefore a valuable privilege to its owner, a convenient, cheaply operated right of way for hauling off his logs may fairly be regarded as a matter of considerable value to him, as he had no other. What he got for his logs is not shown.' What the trees were then worth as they stood in the forest with no outlet to floatable water, is not shown. It may be for ought the record discloses, that the right of way was a very valuable property to appellant. He had its use for four years, and got out all or nearly all the timber, and could with proper diligence have got it all out to market. Shall he now measure the value of that consideration which he got from appellee, by proof of the inconvenience or damage it did appellee Í Surely not. •
The claim that appellee did not furnish the pass-way is not sustained by'the evidence.
Objection is also made to the description of the land in the bond. We think it sufficient. It designates it as all the land owned by appellant lying on the waters of Long Fork of Millers Creek in Pike ■county, Ky., “which lies back of the land of said Burgess.” That should be construed to mean, as the lower court did construe it, all the land owned by G-eó. T. Cox on the waters, and beneath the water shed, of that branch or stream, which lay back of, that is, beyond the lines of H. E. Burgess on that same branch. It could have no other meaning, and the parties themselves seem to have so understood it.
The judgment of the chancellor enforcing the specific performance of the contract is affirmed.