Seneca Circuit Court.

contracting parties subsequently, and before Wisler parted with his title, by contract duly made, and based upon a good consideration, released Hall from the obligation to pay. Both of these claims are asserted for Mr Hall; the one of release from the obligation to pay, in his answer; and the one that the obligation to pay became and was personal, by counsel in argument; and the correctness, or otherwise, of these claims, or either of them, was the problem the court below was called upon to solve, from a consideration of all the evidence before it.

On the question of the release of Hall from liability by Wisler, there was an absolute, total failure of proof; and there was a dearth of evidence as to the other proposition. The only particle of evidence that would seem, in any degree, to warrant a belief that the contract to pay for the wall when used was, or became personal, was the statement of Henry M. Wisler that Hall agreed to pay his father one-half the cost when he came to make use of the wall. We think that statement supplies a base, entirely too attenuated, upon which to rest the claim of personal contract or personal liability, and does not warrant it. It must be borne in mind the contract was oral, no part of it was in writing, and made more than twenty years before the witness stated his recollection of it, and the details of the talk must necessarily have faded from memory and become vague and indefinite, so that the witness could not only, in the very nature of things, recall the more prominent or salient propositions of the transaction. In this view the transaction and the testimony of the witness must be reasonably construed and interpreted, in the light of the attending and surrounding circumstance, and keeping in mind the attitude, object and conduct of the parties at the time of the contract, what was done, and their conduct subsequently. Interpreted in this way, beyond the fact that the persons making the agreement were Lewis, Wisler and John A. Hall, there is absolutely no fact, or circumstance, or suggestion even, that the obligation of Hall to pay, sometime in the future, was intended to be personal to Wisler, or tha the parties were intending to do other than make an entire contract concerning real estate by which one party was to construct a party wall and the other was to pay his just portion of its cost when he used it for his own benefit. We think the court below was justified in finding, as we think it must have found, that the decided weight of the evidence was to the effect that the contract to pay one-half the cost of the wall was not severed from the balance of the contract and so became a personal claim in favor of Wisler, but that it remained a part of the entire contract with respect to land, running with it, and becoming an appurtenance to the land and so passing to the assignee thereof.

We do not ground our approval of the finding of the lower court upon the rule, that there being a conflict of evidence as to the issues involved, which that court could the better weigh, and having done so, we can not find its findings manifestly wrong, and so approve it; but we distinctly want to place our approval of the lower court's action upon the ground that the finding is precisely right and in accord with the clear weight of the evidence.

We find no error and the judgment is affirmed with costs.
Seney & Sayler, Attorneys for Plaintiff in Error.

McCautey & Miller, Attorneys for Defendant in Error.

Hughes v. Roth and Roth.

SPECIFIC PERFORMANCE.

[Seneca Circuit Court, May Term, 1897.1

Day, Price and Norris, JJ.

W. E. HUGHES V. ADAM ROTH AND LIZZIE ROTH.

SPECIFC Performance OF A CONTRACT IS NOT AN ABSOLute RemeDY, BUT IS DISCRETIONARY WITH the Court.

Specific performance is not an absolute remedy, but is, in all cases discretionary with the court, and ought to be refused-if the contract lacks the essential element of mutuality, or, if the parties to it, were not standing on an equality and dealing at arm's-length: or, if the contract was not fair and free, or, if performance would be harsh, oppressive, inequitable or calamitous in its consequences.

APPEAL from the Common Pleas Court of Seneca county.

DAY, J.

This law suit was brought and is maintained to obtain an order of the court requiring defendants to specifically perform their contract to buy plaintiff's 20 acres of land, and pay him there for $850.00, in payments as follows: $300.00 on the 23d day of January, 1899; $300.00 January 23, 1900 and $250.00 January 23, 1901; to execute to him, as evidence of the debt, their several promissory notes for the amounts and due at the dates indicated, and secure their payment when due, by a first mortgage on the said 20 acres and a second mortgage on 73 acres of land now owned by defendants. That a contract to this effect was entered into by plaintiff and defendants, is alleged in the petition of plaintiff. It is also alleged in the petition that such contract was duly put in writing and signed by the parties. That plaintiff has duly performed all the conditions of said contract to be by him performed, has executed a proper deed for the 20 acres, conveying a legal title in fee,-including the dower interest of his mother, as widow of his father, from whom the estate came by inheritance, -and tendered the same to defendants, and demanded that they perform the contract on their part, by executing to him their notes and mortgage for the purchase price, in accordance with the terms of the said contract, which demand defendants have omitted and refused to comply with. The prayer is for specific performance.

The defendants join issue, denying generally all the averments of the petition; and pleading further, and as a reason why specific performance should not be decreed, say, in substance, that they signed the contract set up in the petition, but were overreached and overpersuaded by plaintiff, who, by making false statements as to the purport of the same, deceived and induced defendants to sign it; that defendant, Adam Roth, was teeble in mind and body from illness and unable to cope with plaintiff and was dominated by him and misled into signing the said contract; and that plaintiff did not have a complete and perfect title in fee to the land.

A reply denies the substantive affirmative allegations of the answer, and the issues thus joined were submitted on the pleadings and evidence. The evidence shows that the parties executed the contract upon which the action is based, and the terms and condition. of the contract are, in substance, as set out in the petition. That plaintiff, with his wife.

Seneca Circuit Court.

and mother, executed a proper conveyance of the 20 acres to defendant, Adam Roth, and tendered it to him and requested him to execute the notes and mortgages provided in the said contract, which defendants refused to do. The evidence also shows that the 20 acres came to plaintiff by descent from his father, and that the mother of plaintiff owns a dower estate therein-dower consummate but not assigned and set off to her. It also shows that Roth is largely indebted, is an ignorant, unsophisticated man-smart enough, perhaps, in the German, but not well learned in the English or American way of doing things, and his natural powers of body and mind, while not originally the most robust and strong, were weakened and much deteriorated by reason of ill health; and that the plaintiff is a shrewd, energetic, eager, business man, persistent in his purposes and dominating in his processes and methods. The land is fully worth in cash $850.00, and to enforce, specifically, the contract, would not only, not spccially benefit plaintiff, but would seriously involve defendants in debt, beyond their ability to extricate themselves, and would inevitably result in their financial ruin and bankruptcy.

On this state of facts our problem is: Ought the court to decree specific performance of this contract as prayed by plaintiff?

The remedy of specific performance is not an absolute one, but is, in every instance, discretionary with the court in which the remedy is sought, and ought never to be enforced, unless required by considerations of the clearest equity, or, unless not to enforce it would be inequitable. The supreme court of this state, very early in its history, laid down the rule: "Specific performance is discretionary with the court, and may be refused if unfair, leaving the parties to their legal remedies." Wright's Reports, 105. See also State v. Baum's Heirs, 6 O., 383, where it is said: "Specific performance will often be refused of contracts which equity would not rescind." This ruling has been adhered to in every instance, and has been recognized and again stated as late as the case of Tiffin v. Shawhan, 43 O. S., 178, where it is said: "No fixed rule applies in such case, but each case depends on its own facts and equities.” In that same case, 3d syllabus, the following language is employed: "If specific performance of such a contract would be harsh, oppressive, or inequitable in its consequences, or would leave the purchaser with a doubtful or unmarketable title, the court in the exercise of its discretion, will refuse to decree its performance."

As we have seen, plaintiff, when the contract was entered into, did not own the entire estate; his mother having an unassigned dower estate, therein, and therefore, to that extent, there was an absence or lack of mutuality between the contracting parties. The defendants could not compel Mrs. Hughes to convey to them her dower estate, and plaintiff did not have the legal power to become the sole owner, or to convey the complete estate to the defendants. True, plaintiff tendered a deed, properly executed and signed by his mother, in which she granted all her interest, but that we think does not cure the matter by putting into the written contract, which is sought to be specifically enforced, the essential element of mutuality, and this alone would defeat plaintiff's right to a decree.

To require Roth to add the sum of $850.00 to his already large indebtedness, and secure the debt by a second mortgage on his homestead, would we think be most harsh and oppressive to him, and not only inequitable, but calamitous in its consequences.

In re Sarah E. Gunning.

These parties were not on an equal footing-were not standing on an equality and dealing at arm's-length with each other, but quite the contrary. The plaintiff was shrewd, keen and masterful; the defendant weak, obtuse and easily influenced and controlled. The one was dominating the other dominated. The contract was not fair and free, and was obtained by means that a court of equity will not recognize by enforcing the contract so made.

Other reasons there are that might be stated as a basis justifying the action of the court, but these must suffice. We deem them sufficient to justify the conclusion reached in this case, which is, a finding for defendants. The prayer of the petition is denied and the petition dismissed.

Finch & Dewey, Attorneys for Plaintiff.
Richards & Heffner, Attorneys for Defendants.

HABEAS CORPUS—INSANE.

[Hamilton Circuit Court, July 1897.]
Cox, Smith and Swing, JJ.

IN RE SARAH E. GUNNING.

QUESTION OF INSANITY TO be tried on PETITION OF the Writ.

When a petition for habeas corpus for an inmate of Longview Asylum alleges that said inmate is now sane, the question of sanity or insanity can not properly be heard on the application for the writ, but the writ should issue and this question be tried on the return of the writ.

HEARD ON ERROR to the Common Pleas Court of Hamilton county. SMITH, J,

The plaintiff in error, Sarah E. Gunning, by another person acting in her behalf, filed in the court of common pleas of this county a petition alleging that she was at the time of the filing thereof, and had been from May, 1895, unlawfully restrained of her liberty and imprisoned in Longview Asylum by Dr. Frank Harmon, the superintendent thereof. It asserts in substance, that in May, 1895, an affidavit was filed in the probate court of this county by her husband alleging that she was insane and a fit subject for the lunatic asylum; that a warrant issued thereon, and that she was arrested by the staff and by order of such court she was commited to said asylum; that the request and commitment were made by the court without any hearing or opportunity upon her part to be heard by such court and that she was not permitted to confront the witnesses who testified against her, or to call witnesses in her behalf. A copy of the order on judgment filed with the petition simply states that the cause came on to be heard upon the affidavit of James Gunning and testimony of witnesses, and that the court found Mrs. Gunning to be insane and ordered her to be committed to Longview Asylum.

It does not appear therefrom, or from anything in the case that Mrs. Gunning was present at the inquest, nor is there anything to show that owing to her condition the court on a personal visit to her, and an inspection of her, found that it was improper that she should be brought into court in accordance with the provisions of section 703, Revised Statutes.

Hamilton Circuit Court.

It is probable that this section does not apply to the commitment of insane persons to Longview Asylum, but only to the State Lunatic Asylums, as the mode of proceeding to commit insane persons to Longview is regulated by section 738 and post. But these latter sections evidently contemplate an adversary proceeding, with the person charged to be insane present at the examination, with the right to contest the question of his or her insanity, and such person should be present and have the rights given by the statute.

Whether in the absence of anything in the record to show that she was not present, or was deprived of her rights, it ought not to be presumed that she was so present and had a fair trial, and that the court acted rightly, is a question of doubt. We incline to the opinion that it should, and that if the case stood on this ground alone, that the action of the court of common pleas in refusing to issue a writ was not

erroneous.

But the petition alleges not only that Mrs. Gunning was not insane when the order of commitment was made, but that when the petition in this case was filed she was sane and not insane.

Section 713, Revised Statutes provides that "all persons confined as insane shall be entitled to the benefit of the writ of habeas corpus, and the question of insanity shall be decided at the hearing; and if the judge decides that the person is insane, such decision is no bar to the issuing of the writ a second time when it is alleged that such person is restored to reason."

We are of the opinion that when this petition averred that this woman was not now insane, it was the duty of the court to allow the writ to issue, and on the issue made by the return of the writ by the person in whose custody she was (if such issue was made), to hear and determine the question of the sanity of the person at that time; aud that this question could not properly be heard by the court on the application for the writ, as was done here. For this reason the judgment of the common pleas refusing the writ will be reversed.

John W. Wolfe and Thomas L. Michie, Attorneys for Petition.

PROCEEDINGS IN ERROR-PRACTICE.

[Hamilton Circuit Court, July, 1897.]

Cox, Swing and Smith, JJ.

THE TENNESSEE LUMBER Co., ET AL. v. JAMES W. MARCY.

DISMISSING A PROCEEDING IN ERROR.

A proceeding in error will be dismissed for failing to bring up all the parties in interest in the original action.

HEARD ON ERROR to the Court of Common Pleas.

SMITH, J.

In this case it clearly appears that quite a number of persons who were parties to the controversy in the probate court, and in the court of common pleas, to which it was taken by appeal, are not parties to this proceeding in error in any way. They were all directly interested and affected by the decree which was rendered in the court of common pleas