one year after the contract was made; but without any legal excuse, so far as this record shows, he neglected to prosecute it, and about the time of the filing of the present bill dismissed it of his own motion. The attempted explanation for this delay is that Kizer, from time to time, said he would "fix it up." There is no preponder. ance of evidence in favor of the complainant as to this explanation, if it were otherwise sufficient. Kizer swears that from the time it was discovered that the title to said lots was not in him, he told Chisholm that he could not make a deed, and offered to repay him the $25. If, as is now said, it was the duty of Kizer to make a deed regardless of the outstanding title, Chisholm should have prosecuted his suit in Kane county to that end. The failure to prosecute his action after it was begun was as fatal to his right to a specific performance of the contract as would have been his laches in bringing the suit. 41 Ill. 134, supra: Sebring's Adm'r v. Sebring's Adm'r, 43 N. J. Eq. 59.1 There is also a failure in this case to show by a clear and satisfactory preponderance of the evidence that there has been a compliance with the terms of the contract on the part of Chisholm or his assignee. See Ralls v. Ralls, 82 Ill. 243; Rutherford v. Sargent, 71 Ill. 339. It is said in the argument that complainant below was enti tled to a decree for a quitclaim deed at least. That is not the relief prayed for in the bill, nor is it shown that Chisholm or that the complainant at any time offered to accept such a deed. Courts will not, however, specifically enforce a contract on terms not expressed in the agreement. We think the decree of the court below is in conformity with the law and evidence of the case, and should be affirmed.

(140 Ill. 660)

RUSSELL V. CONNORS.2 (Supreme Court of Illinois. March 24, 1892.) SPECIFIC PERFORMANCE-DECREE-PLEADING.

In a suit for the specific performance of a contract, a decree that gives the complainant the relief prayed for on his paying less than the amount admitted by the bill to be due is errone

ous.

Appeal from circuit court, Knox county; ARTHUR A. SMITH, Judge.

Bill for specific performance brought by Martin Connors against Bridget Russell, James Russell, and Knox College. Com plainant obtained a decree, and defendant Bridget Russell appeals. Reversed.

The other facts fully appear in the following statement by WILKIN, J.:

This was a proceeding in chancery in the court below by appellee against appellant, her husband, James Russell, and "Knox College." The bill is called a "bill for partition," but it is rather for a spe. cific performance; the allegation being, in substance, that on the 16th day of June, 1885, the complainant purchased of said college lot 1 and the north one-half of lot 2, in block 119, in the city of Galesburg,

for the sum of $225; that afterwards, the defendant Bridget Russell desiring to purchase the other one-half of lot 2 and lot 3 of said block, she and the complainant together agreed with said college that complainant should take said lot 1 and the north one-half of lot 2, and said defendant the south one-half of lot 2 and said lot 3, each to pay said college said sum of $225, and a deed to be made upon the payment thereof; that at the time of making said contract complainant paid thereon in cash $100; that thereafter said defendant Bridget Russell procured from said college in her own name a contract for a deed to the whole of said three lots, a copy of which contract is attached to and made a part of the bill. This contract is between said Knox College, by its treasurer, George Davis, of the one part, and Bridget Russell of the other, dated June 16, 1885, for the purchase of said lots, the consideration stated to be $100 cash and three notes by said Bridget Russell of $116.67 each, payable in one, two, and three years from said date, with interest at 8 per cent., payable annually, etc. The bill shows that, although the complainant did not consent that said contract should be taken in the name of said Bridget, yet he acquiesced therein, and avers that he took possession of said lot 1 and north one-half of lot 2 under said purchase, and made payments thereon, through her, to the amount of $190. He also offers in his bill to pay her the balance due from him according to the terms of said contract, but says whatever balance may be due said college should be paid by her. The prayer is that the complainant "may receive from Knox College or Bridget Russell and James Russell a deed of his said premises." The college was defaulted. James Russell claims no interest in the property except as husband of appellant. She, by her answer, denies that the complainant contracted for said lot 1 and the north one-half of lot 2; but avers that he and she jointly agreed to purchase the three lots on the terms set forth in said contract, which was taken in her name, with the consent of complainant, they agreeing to hold said property as tenants in common. She denies payment by complainant, as alleged in the bill, or that he has any right in said property save as tenant in common with her when a deed to the same shall have been obtained. On a reference to the master for that purpose, he reported the evidence, with his conclusions, finding that on June 16, 1885, the complainant and defendant Bridget Russell contracted with Knox College for said three lots, agreeing to pay therefor $450, each of said parties to pay $225; that complainant paid $100 cash, and said defendant gave her three notes, described in said contract. He finds that, upon complainant paying $23.30, he will be entitled to a deed to the undivided half of said three lots, but says he is not clear as to whether or not he will, upon payment of said sum, be entited to a deed to said lot 1 and the north one-half of lot 2. Complainant objected to this report, because it did not find that he was entitled to a deed to said last-described property. The defendant also od

jected to said report and the master's statement of the account between her and com. plainant, accompanying said report. The objections of both parties were overruled by the master, but the one urged by com. plainant was sustained by the court. Those on behalf of defendant being overruled, it was ordered, adjudged, and decreed that Knox College execute and deliver, upon payment of the sum of $23.30, to it, within ten days, a good and sufficient deed of lot 1 and the north of lot 2, in block 119, in the 4th southern addition to the city of Galesburg; and that, upon such deed being made, the said Knox College be, and hereby is, released from all obligations on the bond given by it to Bridget Russell for said above-described premises. It is ordered that, upon a failure of said Knox College to make, execute, and deliver said deed within thirty days of this decree, the master of this court is hereby ordered to make the same upon the same terms and conditions as provided above by Knox College. It is further ordered that defendant Bridget Russell pay the costs of this proceeding." From that decree this appeal is prosecuted. M. J. Dougherty, for appellant. R. C. Hunt, for appellee.

WILKIN, J., (after stating the facts.) Conceding every allegation of the bill of appellee to have been supported by proof, it is clear from the foregoing statement of facts that, if Knox College was complaining of this decree, it could not be sus tained. But as it suffered a default below, and has not joined in this appeal, our only inquiry must be, is it sustained by the allegations of the bill and the proofs as between appellant and appellee? Clearly appellee's claim to the north onehalf of said three lots cannot be upheld on the ground of a parol partition between himself and appellant. The bill makes no such case. It shows that there never was a tenancy in common between the parties. It proceeds upon the theory that each purchased from the college a distinct half of said lots. The evidence to support this theory, though not satisfactory, is perhaps sufficient to support the decree, if that was the only question involved. The insuperable objection to the finding of the circuit court on this theory is that it gave appellee more than he claims by his bill, and more than the evidence shows him entitled to. By the bill he only claims the right to a deed to what he calls "his half," upon his paying one-half of the purchase money of the three lots, according to the terms of said contract,-that is to say, $225,- with 8 per cent. interest on so much of that sum as he did not pay at the date of the purchase. This interest the master's report shows to have been at that date $23.67, making the whole amount which complainant should have been charged with, $248.67. Having paid but $190, as averred in the bill, he still owed $58.67, instead of $23.30. The master, in stating the account, allowed him .payment to the amount of $200.50, or $10.50 more than he claimed in his bill, and also $17 for the use of his half of the property, on his evidence that the hus

band of complainant had ejected him from the same. For this $17 item no claim whatever was made in the bill, and for that reason, if no other, it was improperly allowed. It also appears from a list of complainant's credits and items of accrued interest attached to the master's report, which is made the basis of his conclusion that but $23.30 is still due, complainant is allowed credits to the amount of $210.50, $10 of which there seems to be no proof of whatever, and which, from other parts of said report, is shown to be a mistake. It is clear that, while the amount is not large, appellant has been improperly charged with money which she never received, and which, by complainant's bill, it is not pretended she has received. We think the decree of the circuit court is erroneous, both because it is not supported by the allegations of the bill and because it is not warranted by the proofs. Reversed and remanded.

(156 Mass. 167)

BUSH V. BOUTELLE.

(Supreme Judicial Court of Massachusetts. Worcester. March 31, 1892.)

INSOLVENCY VALIDITY OF CONVEYANCE - SECURITY FOR CONTEMPORANEOUS LOAN.

An insolvent borrowed money with which to pay a debt, agreeing to convey certain land as security, and conveyed the same about two weeks thereafter, the delay being occasioned by his absence. Held that the conveyance was contemporaneous with the loan, and was not in contravention of the insolvency law, although the grantee had reason to believe that the grantor was insolvent, and knew to what purpose the money was to be applied, the amount of the insolvent's liabilities and assets and the condition of his business not appearing.

Appeal from superior court, Worcester County; CHARLES P. THOMPSON, Judge.

Bill in equity by C. Webster Bush, assignee in insolvency of Cyrus F. Boutelle, against Henry P. Boutelle, to have set aside a certain conveyance from his assignor to defendant. From a decree for plaintiff, defendant appeals. Reversed.

E. P. Pierce and J. A. Stiles, for petitioner. W. S. B. Hopkins and C. E. Ware, for defendant.

MORTON, J. The question in this case is whether the deeds from Cyrus F. Boutelle to the defendant were given in contravention of the insolvent law. It is stated in the agreed facts that at the time the defendant took them, and when the loan was made for which they were given to him as security, Cyrus was insolvent, and knew himself to be so, and the defendant had reason to believe him to be so. It is not stated that the deeds were taken or the money advanced by the defendant with a view to enable Cyrus to prefer the bank, or to evade in any way the insolvent law. That is denied in the defendant's answer. We understand the question, therefore, to be whether, on the agreed facts as they stand, without anything more, the deeds, as matter of law, were in contravention of the insolvent act. It appears from the agreed facts that Cyrus had a note coming due at a bank in Fitchburg. The day before it fell due

the indorsee declined to renew it. Cyrus therefore applied to the defendant, saying that the action of the indorsee put him in a tight place, and asking him to get the money for him on his (Cyrus') note, and saying he would give him security on the lots, naming them, either by mortgage or warranty deed. Instead of getting the money in the manner Cyrus suggested, the defendant himself advanced the money, and kept the note, which was dated April 10, 1889. Owing to his absence at Worcester as a witness, and by reason of other pressing business, Cyrus was unable to complete the transaction till April 23d, when he made and delivered as security to the defendant warranty deeds of the two lots. The petitioner claims that the arrangement between the defendant and Cyrus contemplated the giving of security at a future time, and not as a part of or contemporaneous with the lending of the money, and that when the defendant received the deeds he took them as an unsecured creditor, receiving security for an unsecured debt. We do not think the transaction can be so regarded. The proposal to give security was made at the same time as and as part of the request for the loan. It was made before the money was lent, and to induce the lending of it, and the money was lent, for aught that appears, in good faith, on the promise of the security. The only reasonable construction to be given to the letter of Cyrus is that it was expected and intended by the parties that the lending of the money and the giving of the security would be contemporaneous, and that Cyrus understood that he was to give, and the defendant that he was to receive, present security for a present loan. The accidental delay could not affect the real character of the agreement, or of what was done. The situation of the debtor remained unchanged, and there is nothing to show that the delay was for the purpose of giving credit. When the security was given, equity would treat it on the principle that a thing is considered done at the time when it ought to have been done, as if it had been given at the time agreed; and even at law, possibly, the interval might be disregarded, and the agreement and the giving of the deed be regarded as contemporaneous. Gardiner v. Gerrish, 23 Me. 46; 1 Story, Eq. § 649; Hawks v. Locke, 139 Mass. 205, 1 N. E. Rep. 543; Com. v. Devlin, 141 Mass. 423, 431, 6 N. E. Rep. 64; Cartwright v. Wilmerding, 24 N. Y. 521, 533, 534; Nickerson v. Baker, 5 Allen, 142.

The cases relied on by the petitioner on this branch of the case are readily distinguishable from this case. In Blodgett v. Hildreth, 11 Cush. 311, the agreement to give security was clearly executory, and at the time the security was given there was clearly an antecedent debt. In Forbes v. Howe, 102 Mass. 427, a former mortgage was surrendered, and a new one taken on other property to secure a debt that had existed some time. The second mortgage was clearly invalid. The same is, in substance, true of Simpson v. Carleton, 1 Allen, 109. Holmes v. Winchester, 135 Mass. 299, is the strongest case cited by

v.

the petitioner, but the conveyance which was the subject of controversy was not made till two years and four months after the time when it should have been made. The court expressly said that the evidence was "consistent with the view that she [the plaintiff] did not expect a present conveyance from her husband, but left it to be made by him at some time in the future." The case of Copeland v. Barnes, 147 Mass. 388, 18 N. E. Rep. 65, stands on the same ground in effect as Forbes v. Howe, supra; as does Paine v. Waite, 11 Gray, 190. On the other hand, we think the view which we have taken is supported by numerous authorities. Williams v. Coggeshall, 11 Cush. 442; Nickerson Baker, 5 Allen, 142; Holmes v. Winchester, 133 Mass. 140; Parsons v. Topliff, 119 Mass. 245; Atlantic Nat. Bank v. Tavener, 130 Mass. 407; Stetson v. O'Sullivan, 8 Allen, 321; James v. Newton, 142 Mass. 366, 8 N. E. Rep. 122; Tiffany v. Savings Inst., 18 Wall. 375; Cartwright v. Wilmerding, 24 N. Y. 521; Ex parte Ames, (In re McKay & Aldus,) 7 N. B. R. 230; Sparhawk v. Richards, 12 N. B. R. 74. The fact that the agreement related to the conveyance of real estate was not, in Nickerson v. Baker, supra, regarded as a valid objection. Moreover, the agreement has been executed, and the defendant has got his security, and, as the court says in Holmes v. Winchester, supra, "is entitled to set up any equities that will avail him. As already said, the money was lent, and the security taken, for aught that appears, in good faith. It is not enough to avoid the conveyance that Cyrus was insolvent when it was made, and knew himself to be so, and that the defendant had reason to believe him to be so, if the conveyance was not made to secure an autecedent debt, or with any intention on the part of the defendant to defeat the provisions of the insolvent law, or with reason to believe that such was the purpose of Cyrus, but was given as security for a debt then incurred. Nickerson v. Baker, supra; Tiffany v. Savings Inst., supra. It does not appear that such was the intent of the defendant, or that he had reason to believe that such was the purpose of Cyrus. There is nothing stated as to the nature of the business of Cyrus, or his means, or tending to show that these conveyances were out of the usual or ordinary course of his business, which the statute makes prima facie evidence of such a purpose. For aught that appears, his property may have consisted largely of real estate, and this may have been with him a customary mode of raising money at any time when he was pressed. No doubt the defendant had reason to know and did know that Cyrus intended to pay the note at the bank. But whether he had reason to believe that such a payment would be in fraud of or an evasion of the insolvent laws would depend on the situation of Cyrus, the amount of his property, the nature of his business, whether he could reasonably hope to go on, and other circumstances which are. not stated. It cannot be said, from the mere fact that a person, in lending money to another in embarrassed circumstances,

knows that the borrowed money is to be applied to the payment of a prior debt, that the lender has reason to believe that the intended payment will be in fraud of or an evasion of the insolvent law. Possibly the borrower may succeed in going on, in which case the payment clearly would not be fraudulent. Even if he fails, there may have been fair ground for the expectation that he would not fail. A debtor in embarrassed circumstances may borrow, and a lender may lend, even with knowledge that the borrower in tends to apply the money to the payment of his debts, so long as the loan is made in good faith, and without any fraud upon or evasion of the provisions of the insolvent law. Tiffany v. Savings Inst., supra. It does not appear from the agreed facts that the defendant had any reason to believe that there was to be any fraud upon or evasion of the provisions of the insolvent law. A majority of the court think that the decree of the superior court should be reversed, and that, as it is conceded that the deeds were taken as security, a decree should be entered to that effect, and allowing the assignee, if he shall so elect, to redeem within a certain time upon paying what shall appear to be due; otherwise the bill to be dismissed, with costs.

(156 Mass. 186)

WARE V. SMITH.

(Supreme Judicial Court of Massachusetts. Suffolk. March 31, 1892.)

INJUNCTION ERECTION OF BUILDING-LACHES.

A person conveyed land subject to the restriction that it should be occupied only for a private dwelling, and not for any purposes of business. The grantee, without any objections being made by the grantor, erected two dwellings on the premises, and afterwards conveyed one of them to a third person, who proposed to move the dwelling onto an adjoining lot, and erect a new and better one in its place. The first grantor, upon being informed of the proposed change, expressed his approval of it, and the building was moved, and work commenced upon the new one. Held that, even if the restriction could be construed to mean that only one dwelling should be erected upon the premises, it was then too late to make such a claim.

Appeal from supreme judicial court, Suffolk county; MARCUS P. KNOWLTON, Judge.

Petition by Benjamin P. Ware against Elizabeth M. Smith, asking that the defendant be enjoined from erecting or otherwise placing a dwelling-house on certain premises, which had formerly belonged to the plaintiff, and which he had conveyed in fee-simple to Anthony Waterman. The conveyance was made subject to the restriction that it should be occupied only for a private dwelling, and not for any purposes of business or trade. From a decree dismissing the petition, plaintiff appeals. Affirmed.

D. E. Ware, for plaintiff. S. Hoar, for defendant.

MORTON, J. Even if we adopt the construction of the restriction in the deed from the petitioner to Waterman for which the former contends, we do not see that it will help him. That deed was v.30N.E.no.7-39

made and delivered in June, 1874. Within a month or two after the conveyance, Waterman built a dwelling-house on the south-easterly portion of the lot. Within a year or two after that he built another dwelling-house on the north-westerly portion of the lot. Waterman conveyed the south-easterly portion of the lot, with the dwelling-house, to one Caroline M. Barnard in fee-simple, and in 1885 it was conveyed, with the dwelling-house, to the defendant, also in fee-simple. Before this the northwesterly portion had been conveyed, with the dwelling-house, to one Trull. The deeds of these two parcels were subject to the restrictions in the deed from the petitioner to Waterman. About November 1, 1887, the defendant proposed to move her house onto a lot near by belonging to her husband, intending to erect a new and better house on its site. The plaintiff was informed of her purpose, and expressed his approval of the change, and the defendant went on and moved the house. After it was moved the defendant received from the plaintiff a notice claiming that, under the restrictions in his deed to Waterman, only one dwelling-house could be erected on the land therein described, and insisting that her lot should not be occupied by another dwelling-house. Up to this time, although the plaintiff lived near by and saw the two dwelling-houses while being built, and knew of the occupation of them, and of changes and repairs made by the defendant, he had never made any objection to the erection or maintenance of either of them. Before receiving this notice, the defendant had made a contract with one Lambertson to remove the old house and build a new one, the whole to be done for a round sum, and, at the time when the notice was received by the defendant, Lambertson was proceeding with the work of building the new house. The bill in equity in this case was filed November 23, 1887, and at that time no part of the house had been erected, though post-holes had been dug for the new building, and the timber had been partly framed, and some of it was lying on the land. The defendant completed the new house substantially as originally proposed, and, though it slightly limits the view of the sea from some parts of the plaintiff's land, it has increased the value of his property. The new house covers a little more land, is a little higher, and is a better structure than the old one. We do not think that upon these facts the plaintiff is entitled to the relief which he seeks. His delay, bis acquiescence in the actual occupation of the land for two dwellings, and the changes I which the defendant proposed to make with his knowledge and approval, and the change in the defendant's situation which has been induced by his conduct and his words, have been such that obviously it would be unjust and inequitable to permit him to enforce the restriction against her, even if it is to be construed as he claims. Royal Bank of Liverpool v. Grand Junction R. Co., 125 Mass. 490; Whitney v. Railroad Co., 11 Gray, 359; Bank v. Nichols, 64 N. Y. 65; Moore v. Rawson, 3 Barn. & C. 332; Sprague v.