In White v. Damon, however, although the estate was sold by auction, Lord Rosslyn dismissed the bill merely on account of the inadequate price given for the estate, viz. 1,1207. and it was worth 2,000l.; but on a rehearing before Lord Eldon, although the decree was affirmed upon a different ground, yet his Lordship said, he was (*)inclined to say that a sale by auction, no fraud, surprise, &c. cannot be set aside for mere inadequacy of value. It would be very difficult, he said, to sustain sales by auction, if the Court would not specifically perform the agreement. And in a subsequent case(), his Lordship expressed the same opinion, and referred to the case of White v. Damon.

But if an uncertain consideration (as a life-annuity) be given for an estate, and the contract be executory, equity it seems will enter into the adequacy of the consideration(m).

Although a purchaser is not bound to acquaint the vendor with any latent advantage in the estate(n), yet a concealment, for the purpose of obtaining an estate at a grossly inadequate price, may be deemed fraudulent(170).

(1) Ex parte Latham, 7 Ves. jun. 35, note.

(m) Pope v. Root, 7 Bro. P. C. 184; Mortimer v. Capper, 1 Bro. C. C. 156; and Jackson v. Lever, 3 Bro. C. C. 605..

(n) See 2 Bro. C. C. 423.

as to inadequacy of price is very fully discussed; and where the English decisions are reviewed. Inadequacy of price not a sufficient ground for setting aside a sale; unless it be so gross as of itself to amount to evidence of fraud. Osgood v. Franklin, 2 Johns. Ch. Rep. 1, 23. An agreement for the sale of a present interest in a valuable estate, which is executed, will not be set aside on the ground of mere inadequacy of price; there being no fraud, concealment, or misrepresentation. Gregor v. Duncan, 2 Des. 636. Livingston v. Byrne, on appeal, 11 Johns. Rep. 555.

(170) Equity will relieve against a contract of sale of lands, where the purchaser had discovered salt water on the premises, and in

Thus in the case of Deane v. Rastron(o), an agreement was made for sale of land at a halfpenny per square yard. The price was in all about 500l., the real value 2,000l. The purchaser went out to an attorney, got him to calculate the amount, and desired him not to tell the vendor how little it was; then carried the agreement to the vendor, and prevailed on him to sign it immediately. The Court of Exchequer said, the desire of concealment would be such a fraud as to void the transaction, as parties to a contract are supposed, in equity, to treat for what they think a fair price.

So a misrepresentation by the purchaser, who was the agent of the seller, of the value of the estate, although it operated only to a small extent, has been held to be a (*)sufficient defence against a bill for a specific performance; for to entitle a person to call for the aid of a court of equity, he must go there with clean hands(p)(171).

Where neither of the parties knows the value of the estate, at the time the contract is entered into, no inadequacy of consideration will operate as a bar to the aid of equity in favor of the purchaser.

Thus, in a case(q) where a common was to be inclosed, one man having a right of common, agreed, before the commissioners had made any allotment, or any one could know what it was to be, to sell his allotment for 201. Af

(0) 1 Anstr. 64; and see Young v. Clerk, Prec. Cha. 538; Lukey v. O'Donnell, 2 Sch. & Lef. 466.

(p) Cadman v. Horner, 18 Ves. jun. 10; Wall v. Stubbs, 1 Madd. 80.

(q) Anon. 1 Bro. C. C. 158; 6 Ves. jun. 24, cited; but see 2 Atk. 134.

dustriously and artfully concealed, the fact from the vendor. Bowman v. Bates, 2 Bibb, 52. See Eichelberger's Les. v. Baruitz, 1 Yeates,

312.

(171) See Parker v. Carter, 4 Munf. 288. Moseley's Exr. v. Buck, 3 Munf. 233.

terwards it turned out to be worth 2001. Sir Joseph Jekyll said, the contract ought to be enforced, as no one could know what the allotment would be; and both parties were equally in the dark; but it might be different if the circumstances had been known to the plaintiff.

But, whether an estate is sold by auction, or by private agreement, equity will be as vigilant in discovering an excuse for refusing to perform the contract, where the price is inadequate, as it will where the consideration is unreasonable (r).

III. A conveyance executed will not, however, be easily set aside on account of the inadequacy of the consideration; for there is a great difference between establishing and rescinding an agreement(s) (172). It is not sufficient to (*)set aside an agreement in equity, to suggest weakness and indiscretion in one of the parties who has engaged in it; for supposing it to be in fact a very hard and unconscionable bargain, if a person will enter into it with his eyes open, equity will not relieve him upon this footing only, unless he can show fraud in the party contracting with him, or some undue means made use of to draw him

(r) Whorwood v. Simpson, 2 Vern. 186; Emery v. Wase, 5 Ves. jun. 846; 8 Ves. jun. 505; Twining v. Morris, 2 Bro. C. C. 326; and see the cases cited in n. (a), supra; and see Mortlock v. Buller, 10 Ves. jun. 292; Maddeford v. Austwick, 1 Sim. 89.

(s) See Dews v. Brandt, Sel. Cha. Ca. 7; Cases, Dom. proc. 1728; Hamilton v. Clements, Cas. Dom. Proc. 1766. See Small v. Attwood,

1 You. 407.

(172) See Osgood v. Franklin, 2 Johns. Ch. Rep. 23. In this case, KENT Chancellor, said, "Though inadequacy of price is not a ground for decreeing an agreement to be delivered up, or a sale rescinded, (unless its grossness amount to fraud) yet it may be sufficient, for the court to refuse to enforce performance. It is not an uncommon case for the court to refuse to enforce, for inadequacy, and at the same time refuse to rescind." See Clitherall v. Ogilvie, 1 Des. 250, 260. and note, p. 258, 259, 260. See also, Gregor v. Duncan, 2 Des. 636.

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into such an agreement(t). To set aside a conveyance, there must be an inequality so strong, gross and manifest, that it must be impossible to state it to a man of common sense, without producing an exclamation at the inequality of it(u). The truth is, that in setting aside contracts, on account of an inadequate consideration, the Court proceeds on fraud. In all such cases, however, the basis must be gross inequality in the contract, otherwise the party selling cannot be said to be in the power of the party buying; unless actual imposition is proved by gross inequality, other circumstances of fraud will pass for nothing; the basis must be gross inequality(x)(173).

But a conveyance obtained for an inadequate consideration, from one not conusant of his right, by a person who had notice of such right, will be set aside, although no actual fraud or imposition is proved(y)(174).

So if advantage is taken of the distress of the vendor,

(t) Per Lord Hardwicke, Willis v. Jernegan, 2 Atk. 251.

(u) Per Lord Thurlow in Gwynne v. Heaton, 1 Bro. C. C. 1; and see Stephens v. Bateman, 1 Bro. C. C. 22; Floyer v. Sherard, Ambl. 18; Heathcote v. Paignon, 2 Bro. C. C. 167, and the cases there cited; Spratley v. Griffiths, 2 Bro. C. C. 179, n.; Low v. Barchard, 8 Ves. jun. 133; Underhill v. Horwood, 10 Ves. jun. 209; 14 Ves. jun. 28; Verner v. Winstanley, 2 Scho. & Lef. 393; Mac Ghee v. Morgan, Bruce v. Rogers, ib. 395; Darley v. Singleton, 1 Wight. 25; Evans v. Brown, ib. 102; Ex parte Thistlewood, 1 Rose, 290; Stilwell v. Wilkins, 1 Jac. 280.

(x) Per Lord Thurlow in Gartside v. Isherwood, 1 Bro. C. C. 558. (y) See Evans v. Luellyn, 2 Bro. C. C. 150; and the cases cited in the next note.

(z) Herne v. Meers, 1 Vern. 465; 1 Bro. C. C. 176, n.; Gould v. Okenden, 4 Bro. P. C. by Toml. 193; Farguson v. Maitland, Gro.

(173) See Gregor v. Duncan, 2 Des. 636, 639. Clitherall v. Ogilvie, 1 Des. 259; and note, p. 258. Osgood v. Franklin, 2 Johns. Ch. Rep. 23. Butler v. Haskell, 4 Des. 687, 697. See also, Howell v. Baker, 4 Johns. Ch. Rep. 118. Osgood v. Franklin, 2 Johns. Ch. Rep. 24. Per KENT.

(174) See Butler v. Haskell, 4 Des. 651, 697.

(*)the sale will be set aside(2): and this was done in one case, although the purchaser was really run to great hazard, and was to be at great expense and trouble in many foreseen and unavoidable law-suits about the estate, the issue of which was very doubtful(a)(175).

The reader will perceive that in this chapter a distinction is taken between contracts in fieri, and contracts actually executed; but in the case of Coles v. Trecothick(b), Lord Eldon appears to have been of opinion, that no such distinction exists. His Lordship said, that unless the inadequacy of price is such as shocks the conscience, and amounts in itself to conclusive and decisive evidence of fraud in the transaction, it is not a sufficient ground for refusing a specific performance(176),

IV. In treating of inadequacy of price, we must be careful to distinguish the cases of reversionary interests, the rules respecting which, especially where an heir is the vendor, depend upon principles applicable only to themselves, and not easily definable(c). The heir of a family dealing for an expectancy in that family, shall be distinguished from ordinary cases, and an unconscionable bargain made with him, shall not only be looked upon as oppressive in the particular instance, and therefore and Rud. of Law and Eq. p. 89, pl. 1; Pickett v. Loggon, 14 Ves. 215; Murray v. Palmer, 2 Scho. & Lef. 474.

(a) Gordon v. Crawford, before the House of Lords; Gro. and Rud. of Law and Eq. p. 92, pl. 16; Printed Cases Dom. Proc. 1730. (b) 9 Ves. jun. 234; sed. qu. and see the cases cited in this chapter. (c) See 9 Ves. jun, 243; 2 Pow. Contr. 181; 3 Wooddes. 460, s. 7; Gilb. Lex Prætor. 291; 1 Trea. Eq. c. 11, s. 12, and Mr. Fonblanque's notes, ibid.

(175) See Osgood v. Franklin, 2 Johns. Ch. Rep. 24. Per KENT. Butler v. Haskell, 4 Des. 651. Bunch v. Hurst, 3 Des. 273.

(176) In Osgood v. Franklin, 2 Johns. Ch. Rep. 23. KENT, Chancellor, says, "There is a very important distinction, which runs through the cases, between ordering a contract to be rescinded, and decreeing a specific performance."