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21 Mass. 1

Ensign v. Kellogg

Massachusetts Supreme Judicial Court

Decided September 20, 1826

Massachusetts Supreme Judicial Court · decided 1826-09-20

<p>This Court have power to decree specific performance of a bond .with a penalty, con* ditioned for the conveyance of land.</p> <p>A bond with a penalty, with condition to convey land to the obligee or his appointee, may be assigned after a forfeiture; and the assignee may maintain a bill in equity for a specific performance.</p> <p>The obligors cannot question the validity of such assignment on the grouuu that it was made without consideration.</p>

Cited by 1 later decisions — most recently June 1913

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1826-09-20

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Per Curiam.

¶1We are satisfied that no subject is more proper for the power of a court of chancery in decreeing specific execution, than a contract for the sale of real estate ; for what is agreed to be done, ought in conscience to be done.1 And we think such contracts are clearly within the chancery powers granted by the legislature to this Court.2 Nor is the remedy at law for damages complete or adequate ; for the thing contracted for is wanted, and the value in money may often be an unsatisfactory compensation.

¶2The objections to the assignment of the contract we think not supported. By the original stipulation the conveyance was to be made to the appointee of the obligee. The question of the validity of the assignment on account of the consideration, is a matter between the creditors of the obligee and the complainant. It is sufficient for the present bill, that an assignment is set forth, and that the condition upon which the conveyance was to depend is averred to have been performed. Whether the assignment is in legal form or not, may be inquired into on the trial of the merits.

¶3 Demurrer overruled.

¶4 See Fonbl. Eq. (3d Amer. ed.) bk. 1. ch. 1, § 5, p. 48 et seq. note; Telfair v. Telfair, 2 Desauss. 271; Seymour v. Delaney, 3 Cowen, 445; 6 Johns. Ch. R. 225; Anthony v. Leftwich, 3 Randolph, 238; Church v. Leiber, 2 Paige, 43.

¶5But the Court has no power to decree a specific performance of a contract, unless every part of it has been reduced to writing; Brooks v. Wheelock, 11 Pick. 439; even, as it seems, though a paroi contract be confessed by the answer. Stearns v. Hubbard, 8 Greenl. 320. But see Dark v. Bagley, 2 Murphey, 33; Jones v. Sluby, 5 Harr. & Johns. 372.

¶6Equity will decree a specific performance of a paroi contract for the sale of land, where there has been a part-performance by the purchaser. Tibbs v Barker, 1 Blackford, 58; Crocker v. Higgins, 7 Connect. R. 342; Downey v. Hotchkiss, 2 Day, 225; Simmons v. Hill, 4 Harr. & M'Hen. 252; Peifer v. Landis, 1 Watts, 392.

¶7 Jones v. Boston Mill Corp. post, 512, and notes to that case; Revised Stat. c. 81, § 8.
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