106 Ga. 530 | Ga. | 1899
The forum in which the plaintiff elected to test the righteousness of his complaint was one exercising equitable jurisdiction. His prayer was for specific performance of a contract — a purely equitable remedy. He chose to invite the -court to pass upon his equitable, rather than upon his strictly
In the first place, it may be remarked that specific performance is a remedy which “is never to be demanded as a matter of absolute right in either party” to a contract, “and a much stronger case is required to maintain the suit than to defeat it.” 22 Am. & Eng. Ene. L. 911, 912. “Equity will not decree specific pérformance unless strictly equitable.” Ibid. 931. On the contrary, “In all cases where it is clearly inequitable to grant it, the court will refuse to do so. In exercising its discretionary powers, it will act with more freedom than when exercising its ordinary powers.” Fry, Spec. Perf. (3d ed.) 23, n., citing numerous cases. As has often been said, the granting or withholding of this peculiar relief is “in the discretion of the court. . The meaning of this proposition is, not that the court may arbitrarily or capriciously perform one contract and refuse to perform another, but that the court has regard to the conduct of the plaintiff and to circumstances outside the contract itself, and that the mere fact of the existence of a valid con
It follows that, looking in each instance to the peculiar circumstances surrounding the parties, a court of equity may often impose terms upon the plaintiff as a condition precedent to the granting of the relief sought. Thus, “where a trustee had purchased land in his own name but really for the cestui que trust, and had paid the purchase-money with his own funds and was a creditor of the cestui que trust for other advances made to or for him, it has been held that such beneficiary . could not compel a conveyance from the trustee to himself, except upon payment of his entire indebtedness, as well that growing out of this purchase as that arising from the other advances.” 1 Pom. Eq. Jur. §392. “The principle that he who comes into the court seeking equity — that is, seeking to obtain an equitable remedy — must himself do equity,’ means not only that the complainant must stand in conscientious relations towards his adversary, and that the transaction from which his claim arises must be fair and just in its terms, but, also, that the relief obtained must not be oppressive nor hard upon the defendant, and must be so shaped and modified as to recognize, protect, and enforce all his rights arising from the same subject-matter, as well as those belonging to the plaintiff.” Pomeroy on Contracts, § 175. This being true, specific performance will be'denied, not only where “the plaintiff has obtained the agreement by sharp and unscrupulous practices,” or where the “contract itself is unfair, one-sided, unjust, unconscionable, or affected by any other such inequitable feature,” but also where it appears “the enforcement itself would be oppressive or hard upon the defendant, or would prevent the enjoyment by him of his own rights, or would in any other manner work injustice.” Ibid.
Unquestionably, as is urged by the plaintiff in the present
The conclusion inevitably to be reached in the present case is, we think, that the court properly allowed the defendant to interpose and to submit evidence to establish the defense above indicated. It follows, of course, that the charge complained of, in which the trial judge instructed the jury as to their finding in the event they should believe the testimony introduced in support of this defense, was pertinent and correctly presented the issue upon which they were to pass. So far, therefore, as the verdict is concerned, it should stand, as there was ample evidence to warrant the jury in their finding.
. The decree entered up by the court is, however, in one respect unauthorized; and as exception is made thereto, it should in this particular be corrected. We refer to that portion which adjudges that the land in controversy shall be held by the defendant as security for the payment of the debt of the plaintiff’s son, for which, defendant alleged, the plaintiff had by a parol agreement undertaken to become answerable and to pledge the land as security. Doubtless it was within the power t of the court to impose terms upon the plaintiff, and to decree that this debt should be discharged by him as a condition precedent to the granting of the relief sought; but it was not likewise within the power of the court to adjudge that this debt should constitute a special lien on the land, irrespective of the plaintiff’s election to accept the terms upon which the court was willing to grant relief. In other words, we wish to - be understood as holding that while the parol contract set up by the
Judgment affirmed, with direction.