acknowledged the writings which were produced at the trial as his deeds, and which purported to be witnessed as deeds delivered. The grantees, who were the sons of the grantor were not privy to the execution; but the writings were deposited with one Turner, to be kept until the grantor's death, and then to be delivered to the grantees; held, that the sons should hold the estate.

In Clark v. Gifford, 10 Wend. R. 310, where there was no absolute delivery of the deed; the papers were deposited with a third person to be delivered when both parties should direct: held, that one party obtaining possession of a writing thus deposited, without the consent of the other, cannot be permitted to enforce it. "Take these deeds and keep them; if I never call for them, deliver one to Pamela, and the other to Noble after my death; if I call for them, deliver them up to me." The Court held that the reservation of a power to countermand the delivery over made no difference; for it was in the nature of a testamentary disposition of real estate, and was revocable by the grantor during his life, without any express reservation. The legal operation of such a deed is, that it becomes the deed of the grantor presently; that the third person is the trustee of the grantee; but the title is consummate in the grantee by the death of the grantor; and the deed takes effect by relation from the first delivery. Belden & al. v. Carter, 4 Day's R. 66.

Weston, J. 3 Greenl. R. 141. "A delivery of a deed may be by acts, or by words; or by both. It may be delivered by the party who made it, or by any other person, by his appointment or authority, precedent or assent subsequent. But if a man throws a writing on a table, and a party takes it, this does not amount to a delivery, unless it be found to have been put there, with intent to be delivered to the party. And upon the same principle, if the maker of a deed avails himself of the hand of the party for whom it is made, merely to put the deed in a trunk, desk or other place of deposit, within the control of the maker, and such purpose is indicated and made known at the time, there is no legal delivery; no act being done, or declaration made expressive of an intention to deliver."

In Austin v. Hall, 13 Johns. 285, where the deed was duly executed by the grantor, in his life time, and delivered to a third person, to be delivered to the grantees (sons of the grantor) in case the grantor should die before having made and executed his will. The Court considered it "questionable whether this deed is to be viewed as an escrow; the grantees had nothing to do, on their part, in order to make the deed absolute, which is usually the case where a deed is delivered as an escrow. The delivery here was, at all events, condi

tional, and to become absolute upon an event which has taken place; and, as in the case of an escrow, the deed will take effect from the first delivery.

A deed delivered at the register's office, in the absence of the grantee, has been held to be a good delivery to the grantee; if he afterwards assent and take the deed. And where the sheriff lodged the deed with the clerk of the court for the use of the purchaser; he having paid the price; these proceedings being regular, were held to constitute an incumbrance. Chapel v. Bull, 17 Mass. 213. The man who executes a mortgage to the vendor for the payment of the purchase-money, must be presumed to have accepted the conveyance. 14 S. & R. 299.

In Ward v. Winslow, 4 Pick. 518, where the defendants, being insolvent made an assignment of their property, in trust to pay creditors. The bill prayed for an execution of the trust; but the defendants in their answers, admitted the execution of the deeds; they, however, also said, that the indenture was returned to them to obtain the signatures of the creditors; for the intent was that it should take effect only when a majority in interest of the creditors had signed it: And having subsequestly compounded with their creditors, the deed was annulled. One part was found in the hands of the assignees; another in the hands of the creditors; and was referred to in the adjustment which took place between certain of the creditors and the debtors. The Court considered "Where a deed, with the regular evidence of its execution upon the face of it, is found in the hands of the grantec, the presumption is that it has been duly delivered. It could not have been delivered as an escrow, because it was delivered to the parties; an escrow can be delivered only to a third person. It could not have been delivered to the parties conditionally, to take effect upon the happening of any future contingency, because this would be inconsistent with the terms of the instrument itself. To permit parties to a deed purporting to be absolute, to show by parol evidence that it was conditional, and to avoid it for a non-performance of the condition, would be not only a violation of the fundamental rules of evidence, but productive of great injustice and mischief."

(*)CHAPTER V.

OF THE CONSIDERATION.

◄000⇒

SECTION I.

Of unreasonable and inadequate Considerations.

I. It seems that a court of equity cannot refuse to assist a vendor merely on account of the price being unreasonable(a) and a specific performance will certainly be enforced, if the price was reasonable at the time the contract was made, how disproportionable soever it may afterwards become (166).

If, however, a man be induced to give an unreasonable price for an estate, by the fraud (b)(167), or gross misrepresentation(c), of the vendor; or by an industrious con

(a) City of London v. Richmond, 2 Vern. 421; Hanger v. Eyles, 2 Eq. Ca. Ab. 689; Hicks v. Philips, Prec. Cha. 575; 21 Vin. Abr. (E), n. to pl. 1; Keen v. Stukeley, Gilb. Eq. Rep. 155; 2 Bro. P. C. 396; Charles v. Andrews, 9 Mod. 151; Lewis v. Lord Leechmere, 10 Mod. 503; Saville v. Saville, 1 P. Wms. 745; Adams v. Weare, 1 Bro. C. C. 567; and the cases, as to inadequacy of price, cited infra.

(b) See James v. Morgan, 1 Lev. 111, a case at law. Conway v. Shrimpton, 5 Bro. P. C. last edit. 187.

(c) Buxton v. Cooper, 3 Atk. 383.

(166) See Osgood v. Franklin, 2 Johns. Ch. Rep. 1, 23. The same case was affirmed on appeal. 14 Johns. Rep. 527.

(167) Fraud will vitiate any contract: No rule of law is more universal than this. See Wilson v. Force, 6 Johns. Rep. 110.

cealment of a defect in the estate(d), equity will not compel him to perform the contract.

And where these circumstances do not appear, but the estate is a grossly inadequate consideration for the purchase-money, equity will not relieve either party. Thus (*)in a case at the Rolls before Lord Alvanley, by original and cross-bill, the estate was represented on the one hand of the value of 9 or 10,000l.; and on the other of only 5,000l. The contract was for 6,000l., and 14,000l. at the death of a person aged sixty-five. Lord Alvanley said, it was not a case of actual fraud; but it was insisted the bargain was grossly inadequate; and the inadequacy was very great: it was impossible upon the whole evidence to make the estate to be worth more than 10,000l.; though he ought not to decree a performance, yet as no advantage was taken of necessity, &c. he was not warranted to decree the vendor to deliver up the contract, the only inconvenience of which would be, that an action would lie for damages; and he accordingly dismissed both bills(e).

Indeed few contracts can be enforced in equity where the price is unreasonable, because contracts are not often strictly observed by either party; and if an unreasonable contract be not performed by the vendor, according to the letter in every respect, equity will not compel a performance in specie(f)(168).

But there are few cases in which a purchaser could be relieved after the conveyance is executed and the purchase completed, on account of the unreasonable price(g).

(d) Shirley v. Stratton, 1 Bro. C. C. 440.

(e) Day v. Newman, 2 Cox, 77; 10 Ves jun. 300, cited; and see Squire v. Baker, 5 Vin. Abr. 549, pl. 12.

(f) See the cases cited in n. (a), ante; and Edwards v. Heather, Sel. Cha. Ca. 3.

(g) Small v. Attwood, 1 Yo. Rep. 407.

(168) See Rugge v. Ellis, 1 Des. 160.

In Small v. Attwood (h), where the contract was rescinded; after the decree setting it aside and directing the accounts to be taken, the purchasers filed a supplemental bill, stating the payment of 200,000l., part of the purchase-money (which was paid long before the bill was filed), and tracing the investment of it in stock, and the (*)transferof the stock to a third person without consideration as it was alleged, and praying that they, without prejudice to their lien on the estate of which they were in possession, might be decreed to be entitled to the specific stock. And Lord Lyndhurst, C. B., so decided, although the money was paid in consideration of the possession of the estate being given to the purchasers, with which they had acted as owners. They had long had possession, which they retained, of the estate, and a lien upon it for what they had paid; and they thus also obtained the property which had been bought with the portion of the purchase-money paid. This is the first case in which equity ever followed the purchase-money, and ordered it specifically to be restored. The author refrains from further observing upon this decision, as it is now upon appeal in the House of Lords.

II. It appears to be settled, that mere inadequacy of price is not a sufficient ground for a court of equity to refuse its assistance to a purchaser(i), particularly where the estate is sold by auction(k)(169).

(h) Rep. p. 101.

(i) Coles v. Trecothick, 9 Ves. jun. 234; Burrows v. Lock, 10 Ves. jun. 470. See Young v. Clark, Prec. Cha. 538; Barrett v. Gomeşerra, Bunb. 94; Underwood v. Hithcox, 1 Ves. 279; Mortlock v. Buller, 10 Ves. jun. 292; and Lowther v. Lowther, 13 Ves. jun. 95; Western v. Russell, 3 Ves. & Bea. 187.

(k) White v. Damon, 7 Ves. jun. 30. See Collet v. Woollaston, 3 Bro. C. C. 228.

(169) See Butler v. Haskell, 4 Des. 651, 678. Wherein the question