#### Ellen B. Frisby et al. v. Charles Ballance et al.

Appeal from Peoria.

1. Specific performance — not matter of course. An application for the specific performance of a contract is addressed to the sound legal discretion of the court ; and it is not a matter of coarse that it will be decreed, because a legal contract is shown to exist, (a)

2. Same — only of fair contract. A specific performance of 'a contract will not be decreed, unless it has been entered into with perfect fairness and without misapprehension, misrepresentation, or oppression.

*2993. Contract — -raleof construction. An agreement is to be construed and enforced, in reference to the consideration in contemplation of the parlies at the time of making it, notwithstanding the language may be broad enough to include other matters which they knew not of at the time.

4. Same — under misapprehension of fact. Where a contract is entered into under a misapprehension of fact, a court of chancery will not decree a specific [ *288] performance of the contract, though it may correct a mistake therein, but will leave the complainant to enforce his rights, if he has any, in a court of law.

5. COSTS — in chancery discretionary. The awarding of costs, in a court of equity, is a matter of discretion with the court, (b)

6. Specific performance — decree refused when. It is not necessary to authorize a court of chanceiy to refuse a decree for the specific performance of a contract, that it- should be so tainted with fraud as to authorize a decree that it should be given up and cancelled.

ON the 23d of May, 1840, the complainants filed in the circuit court of Peoria county their bill in chancery, setting forth in substance that Charles Ballance and one Samuel C. McClure having, in the year 1832, filed in the United States’ land office at Quincy proof of their right of pre-emption to the south west fractional quarter of section nine (9), township eight (8) north, range eight (8) east of the fourth principal meridian, in said Peoria county, and the said McClure having conveyed and transferred all his interest in the same to Lewis Bigelow and Francis Voris, it was afterwards agreed between said Bigelow, Ballance, and Voris to divide the said land between them, so that each should hold his due share thereof in severalty; and afterwards, in May, 1834, and after having made such division by metes and bounds, in pursuance of said agreement, the said Bigelow, Ballance, and Voris executed a writing obligatory, under their respective hands and seals, whereby they covenanted and agreed with each other that each should make, execute, and deliver to each of the others a deed of conveyance to that part or parcel of said land to which he was entitled; that is, the said Bigelow covenanted to convey to said Ballance a portion of said land, bounded and described as follows : beginning at a point in the east line of said lot of land, seventy-four (74) poles from the north east corner thereof; thence running north seventy-four and a half degrees west, eighty-five (85) poles to a stake; thence south forty-five degrees west to the west line of said lot; thence south to the south west corner of said lot; thence east to the Illinois river; thence, with the said river, to where the south line of said lot strikes the same ; thence north to the place of beginning; and the said Ballance covenanted to convey to said Bigelow a portion of said lot, bounded and described as follows: beginning at the north east corner of said lot; thence running on the east line thereof seventy-four (74) poles, to a stake ; thence north seventy-four and a half degrees west, seventy-two (72) poles, to *300a stake in the middle of the county road leading from Adams street, where the said road crosses the ravine; thence on said road towards the town of Peoria, nineteen (19) poles, to a stake thence a north westerly course to a point in the north line of said lot, fifty (50) poles from the north west corner thereof; thence east to the place of beginning. And it was also agreed, in said writing obligatory, by said Ballance, Voris, and Bigelow, that the residue of said land was to be conveyed to said Voris. And complainants allege, that in the description of the lines ' [*289] which divided the portion Ballance was to have, from the portions Voris and Bigelow were to have, an error occurred (not discovered by the complainants till April, 1840,) in reducing said agreement to writing, whereby the words “thence north forty-five degrees west, to the west line of said lot,” were inserted by mistake, instead of the words “ thence south, or south forty-five degrees west, to the west line of said lot.”

And said Ballance, Bigelow, and Voris further covenanted with each other in said writing obligatory, that the said deed of conveyance should contain covenants, that whatever title to the said land the grantor might thereafter acquire from the United States should enure to the grantee, as to that portion so conveyed to him.

On the 24th of June, 1836, Bigelow tendered to Ballance a deed of conveyance duly executed and acknowledged in conformity with his (Bigelow’s) covenant, in said writing obligatory, for that portion of the land belonging to Ballance, by said division ; which deed Balance refused to accept, but did not object on account of the aforesaid mistake, said mistake not having been then discovered. And at the same time Bigelow requested Ballance to convey to him (said Bigelow) the portion of said land belonging to him (Bigelow) by the terms of said division, which Bal-lance then refused to do.

On the 31st of May, 1834, said McClure, by writing under his hand and seal, appended to said writing obligatory, acquiesced in the aforesaid division of the land, and ratified and confirmed the same, as said Bigelow in said writing obligatory undertook that he should; and said McClure has always been ready and willing to execute to Ballance and Voris deeds in conformity with said agreement; and said McClure did execute and acknowledge a deed to said Ballance, as did Bigelow in said writing obligatory had agreed that he should, and said Bigelown tendered the same to said Ballance, and Ballance refused to accept it, but did not object on account of the mistake aforesaid, said mistake not having been then discovered.

Bigelow conveyed to Voris, and Voris to Bigelow, the portions of said land which each had bound himself to convey to the other, in said writing obligatory, and before the discovery of said mis*301take; and McClure conveyed to Bigelow the portion Bigelow was entitled to by said division, also before the discovery of the mistake.

Bigelow had no knowledge when said land became subject to entry in the land office; but Ballance, by a special order of the commissioner of the general land office, procured a plat of said tract to be certified to the land office at Quincy, and entered or purchased the same in the autumn of 1887. Bigelow, upon discovering this, on the 15th of December, 1887, tendered to Ballance $88, in silver, as his (Bigelow’s) part of the [*290] purchase money which by said writing obligatory he was bound to contribute, and Ballance then refused to receive the same.

Bigelow also authorized William Frisby to offer Ballance $20 in addition to the $38, for expenses which Ballance alleged he had been at in entering said land, provided Ballance would accept it, and convey as aforesaid, and Frisby did tell Ballance that Bigelow had authorized him to do so; but Ballance refused to accept it, alleging that he had disputes with Bigelow about other land, and that he would make no conveyances till the disputes were settled.

Bigelow in his life time conveyed one undivided half of that portion of land allotted him by said division, lying below Adams street, to Isaac Underhill, and Bigelow and Underhill have conveyed certain parts of said land to Jacob Gale, George B. Parker, William E. Mason, Richard M. Benlow, Samuel Livingstone, and George H. Quigg, defendants herein.

Bigelow died intestate on the 2d of October, 1838, leaving Frisby, Armstrong, Harding, Metcalfe, and their wives, his heirs at law; and on the 16th of August, 1842, Frisby died intestate, leaving Louise and William Frisby, infants, his heirs at law, and Geo. T. Metcalfe was appointed guardian ad litem of said infants.

The corroborative proof of right of pre-emption in said land, filed in the land office at Quincy, by said McClure, was by said Ballance withdrawn from the land office, without the knowledge of Bigelow, so that Bigelow and McClure could not enter said land under said proof. Ballance, notwithstanding his covenants aforesaid, commenced an action of ejectment against Bigelow, Underhill, Mason, and one Robert Greason, and at the term of the court last preceding the filing of this bill, recovered judgment of possession of said land allotted to Bigelow.

Bigelow took possession of the portion of said land allotted to him, by said agreement, under and by virtue thereof.

The complainants pray that Ballance maybe decreed to convey to complainants the land allotted to Bigelow bj^ said division and writing obligatory; that said writing obligatory may be amended as set forth in the bill; and that Ballance may be enjoined frcm *302taking possession of said land, and from enforcing bis said actions of ejectment; and that all the defendants may answer, and for relief generally.

The injunction was allowed as prayed for, and issued upon filing of the bond. All the defendants were duly summoned or notified by advertisement.

The complainants filed copies of the writing obligatory, the deeds, and made proof of the tender as set forth in their bill, with proof of the refusal of Ballance to receive or accept conveyances as alleged in the bill.

On the 20th of June, Ballance filed his answer, in sub-[*291] stance, as follows: He denies that he (Ballance) and McClure obtained or established a right of pre-emption to said land or any part thereof under the law of 5th April, 1832 ; admitting that in the spring of 1832, he (Ballance) found said land vacant, and took possession and plowed and planted thereon ; that being informed of the passage of the pre-emption law of 1832, he procured and paid for the materials for a temporary house, and erected it on said land with a view to obtain a preemption ; that McClure rendered him (Ballance) assistance in erecting said house or shantee; that he procured blankets and provisions, and with McClure slept and ate his meals in the shantee, but denies that McClure expended any money about said shantee or premises. He alleges that he (Ballance) became sick from exposure, and after a short time left the shantee; that being unwell and unable to go to the land office, he procured Bigelow, then a lawyer in Peoria, to make out the necessary pre-emption papers, and procure a pre-emption for the land, or for so much of the land as he (Ballance) could get; that he (Bal-lance) paid Bigelow $ 10 to undertake said business, and that Bigelow did undertake it; that McClure never lodged nor ate a meal on said land before the 15th of July, 1832, nor after the 25th of the same month, nor cultivated or assisted to cultivate said land. He admits that Bigelow, after being employed by him as aforesaid, left Peoria for Quincy, to accomplish said business. He avers that Bigelow returned and stated to Ballance and others that he had succeeded in establishing a pre-emption right to said land for Ballance, but that, as the tract contained more than eighty acres, the quantity granted by said pre-emption law, he could obtain only one half for Ballance; and as McClure had been in possession also, he had become entitled to a pre-emption of one half, and that a pre-emption had been granted to both Ballance and McClure. He admits that when he went into said possession of the land he intended to make it his permanent residence, but that he left it, and has ever since his sickness aforesaid, resided on an adjoining quarter. He alleges that after Bigelow returned from the land office, McClure often requested'him (Ballance) to make a division of the *303land between them, which Ballance declined to do, not from an unwillingness to make an equitable division, but because he (Bal-lance) thought it time enough to decide when he found out more about his title ; that afterwards, McClure made the same request of Ballance, in the presence of Bigelow, and that Bigelow then stated that he (Bigelow) was jointly interested with McClur.e in the claim, and that Ballance then wholly refused to make any arrangement with either on the subject. He admits the signing of the writing obligatory referred to in the bill, but cannot say whether the 'copy filed is a true one. He alleges the signing to have been under these circumstances, viz : that in May, 1834, Voris stated to Ballance that he (Voris) had pur- [* 292] chased McClure’s interest in said land, and wished it to be divided between himself Bigelow and Ballance; Balance replied that he suspected the claim of Bigelow and McClure to be fraudulent; Ballance afterwards told Voris that he (Ballance) was willing to divide for convenience of occupancy, because if ' Bigelow’s representations were true, a division was proper, and if not true, Bigelow could take no advantage of a division made on fraudulent representations. Sometime afterwards Voris produced the writing obligatory, and requested Ballance to sign it, which, upon the considerations aforesaid, he concluded to do, and did. He alleges this to have been the result of a corrupt combination between Bigelow and McClure to defraud him (Ballance), and that while Bigelow was acting as his attorney, he (Bigelow) was secretly combining with McClure to defraud him (Ballance). He alleges that the writing obligatory was never the property of Bigelow, or delivered to him, but re.mained in possession of Voris. Neither admits nor denies the alleged mistake in the writing obligatory. But, upon exception by complainants to this part of the answer, he admits the mistake, and that the intention of the parties was as alleged in the bill. He admits that Bigelow and McClure did tender him (Bal-lance) deeds for some portion of said land, which deeds contained certain covenants, and that he (Balance) declined to receive them, without alleging any reason. He alleges that he (Ballance) does not recollect the character of the deeds, but thought them defective. He admits that McClure acquiesced in the division of the land, and bound himself to comply with and perform so much of said agreement between Ballance, Voris, and Bigelow, as Bige-low therein undertook that McClure should do. He denies any knowledge of the deeds which have passed respecting the land, and calls for proof. He denies that Bigelow was ignorant when said land became subject to entry, and charges that he knew when it became subject to entry.

He admits the tender of the $38 on the day alleged, but denies that that was the sum that should have been paid, or the time *304to pay it, and alleges that be (Ballanee) paid the United States $184.284 for said land, and that this -was not one half the cost, because he had to resist and quiet certain claims on said land, and employ lawyers thereabout, but does not know how much it cost. He denies the tender of $20, but admits that Frisby told him that Bigelow would pay $20, if he (Ballanee) would accept it, and make a deed to Bigelow; but does not recollect his (Ballance’s) reply to the offer. He denies having withdrawn from the land office any pre-emption papers belonging to McClure, or which would establish a right of pre-émption in McClure. He admits the entry of the land in question by himself, and alleges that when he entered it, certain affidavits were handed him, as the preemption papers filed by Bigelow in 1832 on his (Ballance’s) [*293] behalf; but he alleges he had no motive adverse to Bige-low’s interest, in taking said papers. He refers to copies of the pre-emption papers, and denies that these papers establish a right of pre-emption in any one. He admits the bringing of the action of ejectment, as alleged, and the judgment therein as alleged. He admits that Bigelow took possession of said land, and enclosed a part thereof, but that it was without the consent of Ballanee, and that he (Ballanee) attempted to put out Bigelow by an action of forcible entry and detainer, but failed to do so. He alleges that the division was made, and the writing obligatory signed, without any other consideration than the fraudulent one alleged, and denies all fraud on his part.

Along with the answer of the defendant, are the filed pre-emption papers which Ballanee admits he took from the land office, in substance as follows: The affidavit of Lewis Bigelow, that in May or June, 1832, he assisted Ballanee to run the south west quarter of section nine (9), eight (8) north, eight (8) east of the fourth principal meridian ; that in April or May preceding, he saw enclosures made thereon by Ballanee, and that Ballanee and McClure have erected a house thereon, in which, at the date of the affidavit, they resided, and that he has no interest therein.

The affidavit of Andrew M. Hunt, that he has seen an enclosure made in said quarter section, said to have been made by Bal-lance ; that he has seen Ballanee and McClure erecting a house thereon, and that Ballanee and McClure resided thereon at the date of the affidavit, and that the deponent has no interest therein.

The affidavit of Abraham Lancaster, that in Mayor June, 1832, he plowed and drew rails on said quarter section, for Ballanee, and that he has no interest therein. To which three affidavits is appended the certificates of Isaac Waters, clerk of the circuit court of Peoria county, under his hand and the seal of said court, stating that the affidavits were subscribed and sworn to before him, on the 24th of July, 1832.

The affidavit of Charles Ballanee that he is an actual settler *305and housekeeper on said quarter section, under the provisions of the pre-emption law of the oth of April, 1832, and applies to enter one half under said law, dated the 28th of July, 1832, and subscribed and sworn to before the said Isaac Waters, clerk of said circuit court, without his seal.

On the 1st of August, 1840, Ballance moved to dissolve the injunction in this case, which motion was granted, on the 8th of August, 1840 5 whereupon, Ballance moved for an assessment of damages, which motion was overruled. On the 3d of April, 1841, the complainants filed their replication to the answer and amended answer of Ballance.

The deposition of Francis Voris, taken on behalf of Bal-lance, states, in substance, that witness had a connection [*294] with Bigelow, before the signing of the writing obligatory, in which Bigelow stated that he had been to Quincy with the joint pre-emption papers of Ballance and McClure, and had filed them then, and that there was a pre-emption allowed in their joint names. Bigelow said that he was furnished $9 by Ballance to go to Quincy, and that he went; but witness does not know whether the money was a fee, or for the expenses of the journey. Witness presented the writing obligatory for Ballance to sign, who then staked he wished he was certain that there was a preemption, as alleged by Bigelow, and remarked he would sign the bond, as he wished witness to have the part allotted to him (witness), but did not wish Bigelow to have his share, unless strictly entitled to it. Bigelow took possession of the land in the latter part of May, 1835. Soon after Ballance had been to Quincy, or had received a letter therefrom,' or both, he notified Bigelow to quit possession, and also told witness he was dissatisfied. Ballance then brought an action of forcible entry and detainer against Bige-low. On cross-examination by complainants, he states that Bal-lance says he has entered the land, and that he (witness) presumes lie has a patent for it. Witness has never received from Ballance a deed from that portion of the land which witness was. entitled to by the agreement.

The deposition of Wm. G. Flood, register of the land office at Quincy, on behalf of Ballance, states, in substance,that he (Flood) is register of the land office at Quincy; that he finds but one paper on the files tending to prove that McClure had a right of preemption to the south west quarter of section nine (9), eight (8) north, eight (8) east of the fourth principal meridian, which is the affidavit of McClure, and is in substance that he (McClure) was on the 2d of August, 1832, an actual settler and housekeeper on said land,' and that he applies to enter one half thereof under the law of the 5th of April, 1832 ; that this affidavit is sworn to before Isaac Waters, clerk of the circuit court of Peoria county; that this affidavit is not sufficient of itself to entitle McClure to *306a pre-emption, and that the records of his office show nothing farther.

The deposition of Samuel Leach, receiver of the land office at Quincy, taken on behalf of Ballance, states, in substance, that he is the receiver of the land office ; that in his office there are no papers on file proving that McClure had a right of pre-emption to said land ; that he knows of no such on file in the register’s office, except that referred to in the register’s affidavit, Avhich is insufficient of itself to entitle McClure to a preemption.

The deposition of Geo. C. MeFadden, taken on behalf of Bal-lance, states, in substance, that the plat of the south west quarter of section nine (9), eight (8) north, eight (8) east of the fourth principal meridian, annexed to his affidavit, is a correct one, and that he is the county surveyor of Peoria county.

The complainants and Ballance agree that this plat is [*295] correct.

The deposition of A. M. Hunt, taken on behalf of the complainants, states, in substance, that witness knew Ballance and McClure in 1832 ; that in the spring of that year, Ballance was making a small garden on a piece of land below the ferry; that about the same time, Ballance and McClure boarded with witness; that they went on together, as witness understood, to build a shantee on that land, for the purpose of procuring a preemption thereto. Witness understood the}' were doing this jointly to obtain a pre-emption. Witness understood that Bal-lance borrowed $10 to defray expenses in going to Quincy to file proofs of pre-emption. Witness understood that the services in going to Quincy were to be equivalent to the money furnished by Ballance, but does not know from whom he understood it.

On cross examination, witness stated that he did not know that McClure furnished any money or materials towards the improvements, but understood, from some of the parties, that Ballance procured the materials, and McClure hélped put up the shantee. Witness heard McClure say that Bigelow was to have an interest in his (McClure’s) half, but did not Hear Bigelow say anything about it. Witness does not know that Ballance always resisted Bigelow’s claim, but knows that Ballance commenced an action of forcible entry and detainer for the land against Bigelow, and then withdrew the suit on account of failure of proof. Bigelow, on his return from Quincy, stated that he had succeeded in procuring a right of pre-emption for Ballance and McClure. Witness understood the quantity of land to be less than a quarter section. On the trial of the suit of forcible entry and detainer, the ordinary notice to quit possession was produced.

Ite-examination by complainants. Witness states, that the preemption papers for that quarter section were made out under the law of 1832, and in the joint names of Ballance and McClure, *307and that witness was a witness for the purpose of obtaining the pre-emption, and that those were the papers Bigelow took to Quincy.

The deposition of Samuel C. McClure, on behalf of Ballance, states, in substance, that he (witness) went into possession of the south west quarter of section nine [9], eight [8] north, eight [8] east, in July, 1832 ; that the nature of his possession was a temporary residence thereon ; that he expended no money in procuring provisions or other necessaries, while residing thereon ; that Ballance employed Bigelow to go to Quincy to establish a pre-emption right to said land. Witness believes, but does not know, that Ballance furnished Bigelow expense money for said journey, amounting to $10 or $20. Witness believes he heard Bigelow say to Ballance, or in his presence, that he had established a right of pre-emption to said land, in Ballance and witness. Bigelow and witness became partners in his (witness’) claim to said land, soon after the return of Bigelow [*296] from Quincy, and there was no understanding about it till afcer Bigelow returned from Quincy. Bigelow paid no consideration to witness for any part of said land.

On the 18th of October, 1842, the complainants suggested the death of William Frisby, which was not denied, and George T. Metcalfe was thereupon appointed guardian ad litem to Louise Frisby and William Frisby, infant heirs of said William Frisby.

The cause was submitted to the court on the bill, answers, replication, exhibits, and depositions, and a decree rendered that the writing obligatory ¡should be amended as prayed for by inserting the words “ thence south 45° west to the west line of said lot,” instead of the words “ thence north 45° Avest to the west line of said lot.” The prayer for a specific performance was denied, and the bill, so far as it prayed for a specific performance, dismissed, and the defendants recovered their costs.

The complainants bring the cause to this court by appeal, and assign the following errors :

1. The court erred in dissolving the injunction granted in this cause;

2. The court erred in denying the prayer of the bill for a specific performance of the covenants in the writing obligatory ; and in dismissing so much of said bill as prayed a specific performance ;

3. The court erred in rendering judgment for full costs against the complainants.

The decree in this cause was rendered at the October term, 1842, of the Peoria circuit court, held by the Hon. JohN Deah CatoN. ,

The cause Avas submitted upon written arguments, by George T. Metcalee, for the appellants, and Charles Ballahce, for *308the appellees.

The latter cited Gano v. Slaughter, Hardin 76; Bradshaw v. Crayoraft, 3 J. J. Marshall 81; 1 Scam. 47, 131, 30Q, 310. He also relied upon the following points and cited the authorities hereinafter mentioned:

A party, calling for the aid of a court of. equity, must come, it is said, with clean hands. It being a maxim of equity, “that he that committeth iniquity shall not have equity.” A defendant therefore, to a bill for a specific performance of an agreement, is allowed to resist it by showing, that under the circumstances, the complainant is not entitled to the prayer of his bill, as by evincing that there has been an omission, or mistake in the agreement. 1 Mad. 415-16, and authorities there cited, especially 13 desey 25, and 18 Vesey 11, and note to 405.

When a person has entered into a contract, under a mis-[*297] apprehension of his rights, chancery will give relief. Reeve’s Domestic Relations 424-6.

A chancellor will not enforce a mere gratuity, by decree for specific performance. There must be either a good, or valuable consideration. Banks v. Mayes et al. 3 Marshall 436.

The doctrine I understand to be this, that although a voluntary agreement may be taken out of the statute of frauds by being committed to writing, and an action at law sustained upon it, that yet the chancellor will not interfere, but leave the party to such relief as law can give.

It is a settled rule, that when a court of law would not give damages, a court of equity will not decree a specific performance. Allen v. Beal’s Heirs, 3 Marshall 555.

Equity will not enforce a contract specifically, which, by subsequent events, will impose great hardship or loss upon the defendant, but will leave the party to his -remedy at law. 4 Littell 398.

The power of the chancellor to enforce specific performance, is one exercised not on every occasion, but is governed by a legal discretion, and does not belong, as of right, to every meritorious contract. As a general rule, the chancellor will not interfere with a party’s remedy at law, upon a breach of a contract for a conveyance, unless there are some circumstances calculated to make the case an exception. Caldwell’s Heirs v. White et al. 4 Munroe 567.

With regard to correcting mistakes, for the purpose of enforcing a specific performance, see 7 Vesey 211.

The doctrine is laid down in the case of Craig v. Baker, Hardin 282, and elsewhere, that “a better title to land cannot be defeated, released or extinguished, by a mistake of opinion, or confession of law, nor the expression of an intention by the holder, not to prosecute it; although that declaration were made to a third person, who was then in treaty for the conflicting title.”

(a)

Cases Citing Text. Bill for specific performance of contract must be certain and specific in its allegations. Fitzpatrick v. Beatty, 1 Gilm. 454

Meritorious case must be presented to court in order that it may decree specific performance of contract. Broadwell v. Broadwell, I Gilm. 599, 610; Lear v. Chouteau 23 Ill. 39; Stone v. Pratt, 25 Ill. 25; Fish v. Leser, 69 Ill. 394, 395; Bowman v. Cunningham, 78 Ill. 48, 51.

Lost contract for fconveyance of land established, and specifically enforced. Rector v. Rector, 3 Gilm. 105.

Chancery in its discretion may enforce contract for conveyance of land although payments have not been promptly made according to contract. Glover v. Fisher, 11 Ill. 666; Murphy v. Lockwood, 21 Ill. 611.

In general, chancery will not compel performance of entire contract in parcels, either to different persons or at different times. Stone v. Pratt, 25 Ill. 25.

Oral contract for conveyance of land may be specifically enforced, notwithstanding statute of frauds, where consideration has been paid and purchaser has taken possession. Ramsey v. Liston, 25 Ill. 114; Blunt v. Tomlin, 27 Ill. 92; D’Wolf v. Pratt, 42 Ill. 198, 207.

Suit in chancery to enforce specific performance of contract is addressed to sound discretion of court. Laches held to defeat suit. Hough v. Coughlan, 41 Ill. 130, 134; Alexander v. Hoffman, 70 Ill. 114, 119.

In suit to enforce specific performance of contract to convey land, vendor, although he may have parted with his title, is necessary party. Alexander v. Hoffman, 70 Ill. 114, 119.

Where it is doubtful whether a contract has been concluded or whether merely an uncompleted negotiation has taken place, decree for specific performance will be refused. Race v. Weston, 86 Ill. 91, 95.

Specific performance of contract, e. g.. to erect and maintain drawbridge, will not be decreed when to do so would entail heavy expense on defendant without substantial benefit to complainant. C. & A. R. Co. v. Schoeneman, 90 Ill. 258, 267.

See Doyle v. Teas, ante 202, notes (e), (f),(g). (h).

(b)

Supreme court will rarely interfeie with action of ciicuit court in award oí cost?. N. I. R. Co. v. R. & M. R. Co. 49 Ill. 356, 357.

*309CatoN, Justice,

delivered the opinion of the court: This bill was filed in the Peoria circuit court, by the heirs at law of Lewis Bigelow, deceased, to rectify a mistake in, and compel a specific ' performance of an agreement entered into between Ballance, Bigelow, and one Voris, for a division of the premises in the agreement described. It is also provided in the agreement, that whatever title either should thereafter acquire from the United States, to said land, should enure to the benefit of the others, so far as related to the portion assigned to each. The bill states that Bal-lance and one McClure applied to enter the premises in question jointly under the pre-emption law of 1832 ; that McClure disposed of his interest to Bigelow and Voris, with whom the agreement was made; that Bigelow and Voris had offered to perform, and that Ballance refused to perform.

The answer of Ballance, (who is only defendant in interest,) admits the making of the agreement, and the mis- [* 298] take, but sets up as a defence, that the agreement was obtained from him by fraudulent misrepresentations, and under a misapprehension of his rights. The case shows that Ballance employed Bigelow to go to the land office to secure this pre-emption and made him some advance for that purpose. It is not certain, nor is it very material, whether he employed him to secure a preemption for himself, to one half of the tract, or to obtain a preemption for himself and McClure jointly to the whole. After his return he represented to Ballance that he had secured or obtained a pre-emption in their joint names, and in a short time he acquired an interest in the claim of McClure, and presented an agreement to Ballance to execute; Ballance manifested much reluctance to signing it, and put him off some time, expressing doubts of the truth of his assertion that he had secured the pre-emption. He, however, finally signed it, stating that he should not be bound by it, if Bigelow had deceived him. This application for a pre-emption was never allowed, but subsequently Ballance obtained a pre-emption to the whole tract, under the act of 1834.

It is manifest if Bigelow did not intentionally misrepresent to Ballance what he knew to be the facts in relation to that application, still that Ballance was led to believe, and did believe, that a different state of facts existed from what turned out to be the case. No doubt is left but that he supposed, at that time, that their application had been adjudicated upon and allowed by the land officers, and that under it they were to receive a title which was the subsequent title referred to in the agreement. It appears the plats were not then in the land office, and hence the land could not then be entered; and for this reason Bigelow was not expected to make the entry at the time he made the application ; and all that was expected of him was to get the claim allowed. This circumstance afforded great facilities for deceiving Ballance *310as to what had been done, no voucher having been expected at the time. It is not remarkable that Ballance was slow to believe that the claim was allowed, when we see how far short of the requirements of the law was the case which was made by the affidavits presented. The pre-emption act of April 5th, 1882, required under all circumstances, that the pre-emptor should, outlie day of its passage, be an actual settler and housekeeper on the land. U. S. Land Laws, Part 3d, 562, 570-1. Yet the strongest ease that can be made, from the papers presented, was that they were settlers and housekeepers on the 24th and 28th of July, 1832. Still as the affidavits approximated very nearly to the first forms issued under that act, the prospect of practicing a fraud upon the law was not so remote as not to induce the effort.

As before observed, when Bigelow returned, he stated that he had secured or obtained the pre-emption; and under and in view of that statement, Ballance entered into this agreement. [’*' 299] He supposed that the claim had been actually passed upon and allowed by the land officers. But in that he was mistaken or deceived. All that Bigelow did was to file the papers in the office. In no sense was it true that the pre-emption had been secured by filing sufficient papers, or obtained bj^ getting the claim allowed. Under this misapprehension of his rights, then ; supposing that he, as well as Bigelow and Voris, as assignees of McClure, had a tangible interest when they had none ; supposing that all the title which he ever could have to the premises, must be derived under that joint claim, he entered into this agreement for a division, with convenants to further assure the title which he should afterwards acquire ; and now is it the duty of a court of equity to compel him specifically to perform a contract entered into under such circumstances'? We shall see.

An application for the specific performance of a contract is addressed to the sound legal discretion of the court; and it is not a matter of course that it will be decreed, because a legal contract is shown to exist. Indeed, the origin and ground of this jurisdiction is that a compensation in damages is inadequate to the full measure of the party’s equitable rights. It is not necessary to authorize this court to refuse & specific performance, that the agreement should be so tainted with fraud, as to authorize a decree that it should be given up and cancelled on that account. Marlock v. Buller 10 Vesey 292; Willan v. Willan, 16 Vesey 83; Jones v. Slatham, 3 Atk. 388. A specific performance will not be decreed unless the agreement has been entered into with perfect fairness, and without misapprehension, misrepresentation, or oppression. Longwood v. Barnerderton, 3 Atk. 133; Underwood v. Hitchcock, 2 Vesey 279; Seymour v. Delaney, 3 Cowen 505. Admitting there was no fraud or intentional misrepresentation in this case, then all the parties supposed they had a substantive interest in the prem*311ises, and it was in view of, and in reference to that interest, that the agreement to convey titles subsequently to be acquired was made. It turned out that neither had any interest at the time, nor did they ever obtain any from the source whence they expected it. But two or three years after, Ballance goes on and gets a title to the whole, in his own right, and on entirely independent grounds, in which neither Bigelow nor McClure had any legal or equitable interest, nor -by this were they prejudiced in any possible manner.

This contract was not made in reference to, or in expectation of this title. It cannot be supposed for a moment, that if Bal-lance had known that nothing would ever come of that application, he would ever have entered into this agreement. Indeed, he delayed its execution for some time, doubting the truth of Bigelow’s statement that the pre-emption was secured. We may as safely say that the subsequent title which he agreed to convey was the one to be derived under that joint claim, [* 300] as if it had been so expressed in the covenant. An agreement is to be construed and enforced, in reference to the consideration in contemplation of the parties at the time of making it, notwithstanding the language may be broad enough to include other matters which they knew not of at the time. Ramsden v. Hellow, 2 Vesey, Sen. 310. The only consideration moving Bal-lance to make this agreement was the prospect of acquiring areal interest which he suppose McClure, or his assignees, had to the part set off to him in the division; and so the only consideration which induced Bigelow and Voris to sign this agreement, was the hope of getting Ballance’s interest to be acquired under that claim, to the part set off to them ; and now, when that consideration has in fact entirely failed, as to both the parties, it would be against all conscience to give Bigelow another and more valuable title, which he did not in truth contract for, although the language used in the agreement may cover it. Had he known the truth, it is beyond conjecture, that Ballance would never have signed this agreement. Under such circumstances, this court must ever refuse its aid to enforce a specific performance, and if it does not annul the contract, it leaves the parties to their legal remedies. With this view of the case, the decree below afforded the complainants all the relief to which they were entitled. It rectified the mistake, and then left the parties to contest their rights at law. What might have been the result, had Ballance filed a cross bill to rescind the agreement, it is unnecessary now' to acquire.

It now remains to be seen whether the court erred in decreeing that the complainants should pay the costs. By the 14th section of our act concerning costs, (R. L. 169; Gale’s Stat. 197,) in ail cases in chancery where the cause proceeds to a final decree, the *312court may award costs, as in its discretion it may deem just. It may be that this discretion might be so erroneously exercised, that for that reason a decree might be reversed or modified. Butin this case that discretion was properly exercised. The only relief to which the complainants were entitled, was the correction of the mistake in the agreement, and it does not appear that it was necessary to come here for that purpose; because it does not appear that the defendant was in default. For aught that appears, the first he knew of the existence of the mistake was the filing of the bill, and to its correction he has made no objection. It is not even alleged in the bill that he had refused, or even been requested to rectify the mistake. Had he refused, on request, to do so, then he would have been in default, and it would have been apparent that this suit was necessary to attain that end.

The decree of the court below was proper, and is affirmed with costs. Decree affirmed.