(h) Wheatlev v. Purr, 1 Keen, 551.
(i) Fletcher'v. Fletcher, 4 Hare, 67; Sloane v. Cadogan, 3 Sngden on Vendors & Purchasers, App. No. xxvii.
(j) Ex parte Pye, 18 Ves. 140; M'Fad-den v. Jenkyns, 1 Phillips, 153, 1 Hare, 458. But see Kennedy v. Ware, 1 Barr, 445. A, without consideration, appointed the plaintiff his attorney, with power to procure to the plaintiffs own use whatever lands A was entitled to for military service; a warrant afterwards issued in the name of A, and after his death a patent was granted upon the warrant to his heirs; it was held, that they held the land as trustees for the plaintiff. Read v. Long, 4 Yerg. 68. The doctrine that a consideration is not necessary to the creation or assignment of a trust has been placed upon an enlarged and stable foundation by the recent decision of the Lords Justices, in Kekewich v. Manning, 1 De 6, M. & G. 176, 12 Eng. L. & Eq. 120. And this case, with Voyle v. Hughes, 2 Smale & G. 18, 23 Eng. L. & Eq. 271, 18 Jur. 341, is of the first importance to an understanding of the existing state of the law against the sufficiency of these considerations, in equity; and perhaps in this country also.(s)
*The consideration need not be adequate in equity, any more than at law;(k;) but if it be grossly inadequate, it would be disregarded, and the contract considered void, although the consideration were technically valuable and sufficient at law. (l) And if the inadequacy be not so great as to avoid the contract, still, if it be sufficient to give to the contract the character of hardship or oppression, equity will leave the plaintiff to his remedy at law. (m)
If there is a contract with valuable consideration, and this contract benefits a third party who is only collaterally interested, and from whom no part of the consideration comes, the contract will not be enforced in equity on the application of this collateral party, (n) But if it be enforced on the application of other parties it will be enforced altogether and throughout (o) upon the whole subject of the voluntary alienation of chattels.
(k) MacGhee v. Morgan, 2 Sch. & L. 395 n.; Lord Eldon, Coles v. Trecothick, 9 Ves. 246; Ready v. Noakes, 2 Stewart, 497. See Western v. Russell, 3 Ves. & 8. 193. Between parent and child, and especially after the death of the former, in a contest with his other heirs, a slight consideration will be sufficient to support an application by the child for a specific performance. Shepherd v. Bevin, 9 Gill, 32. And see Haines v. Haines, 6 Md. 440, per Le Grand, C. J. And the doctrine, that where there is a near relationship between the parties, a smaller consideration will suffice, than would be requisite between strangers, was maintained by Sir Edward Sugden, L. C; Moore v. Crofton, 3 Jones & La T. 438, 443. A compromise of a doubtful claim is a sufficient consideration. Attwood v. - , 1 Russ. 353, 5 id. 149. See Morrison v. Peay, 2 Ark. 110.
(l) Especially if there are other circumstances tending to render it probable that a fraudulent advantage may have been taken, as where the vendor was illiterate, and does not appear to have had the writings explained to him. Robinson v. Robinson, 4 Md. Ch. Dec. 176. And a degree of inadequacy, which would not be regarded in ordinary cases, will prevent the enforcement of a contract for the sale of an heir's expectancy, or of a reversioner's reversionary interest. Peacock v. Evans, 16 Ves. 512; Ryle v. Brown, 18 Price, 758.
(m) Day v. Newman, 2 Cox, 77; Powers v. Hale, 5 Foster, 145; Seymour v. Delancy, 6 Johns. Ch. 222, 3 Cowen, 445, where a price, only half of the value of the property, was considered inadequate. The opinions of Chancellor Kent and Chief Justice Savage, in this case, contain an elaborate review of the prior decisions. And see Howard v. Edgell, 17 Vt. 9, 28. It seems that a price, only one-fourth of the actual value, is certainly such a gross inadequacy as to forbid the interposition of equity. Johnson, C, Robinson v. Robinson, 4 Md. Ch. Dec. 182, 183. But see Erwin v. Parham, 12 How. 197. If the inadequacy be so great as to prove fraud, or that the parties could not have intended a contract of sale, in either of these cases a conveyance will not be compelled. Callaghan v. Callaghan, 8 Clark & F. 374. See Coles v. Trecothick, 9 Ves. 246.
(n) Wallwyn v Coutts, 3 Meriv. 707; Colyear v. Countess of Mulgrave, 2 Keen, 81; Sutton v Chetwynd, 3 Meriv. 249; see s. c. Turner & R. 296; Owings's case,
1 Bland, 401. "I apprehend," said Lord Longdate, M. R., 2 Keen, 98, " that when two persons, for valuable consideration between themselves, covenant to do some act for the benefit of a mere stranger, that stranger has not a right to enforce the covenant against the two, although each one might as against the other."
(o) Ford v. Stuart, 15 Beav. 493, 11 Eng. L. & Eq. 172; Davenport v. Bishopp,
2 Younge & C, Ch. 451, 1 Phillips, 698. In this case, Knight Bruce, V. C, said: " I apprehend, that if two parties in contemplation of a marriage intended and afterwards had between them, or for any other consideration between themselves coming under the description of' valuable,' have entered into a contract together, in which one of the stipulations made by them is a stipulation solely and merely for the benefit of a third person, that
* Equity makes the same distinction which exists at law between a promise made before a consideration and therefore resting upon it, and a promise made after the consideration is exhausted and therefore not supported by it (p) Thus specific performance will be decreed of a promise made before a marriage and in contemplation of it; but not generally of a promise made after a marriage has taken place, although made in reference to it and in consequence of it(q)
And this brings us to a question which has been more discussed than any other, perhaps, under the head of consideration. It is whether merely meritorious considerations, so called in law to distinguish them from valuable considerations, are sufficient in equity to sustain an application for specific enforcement (r)
Natural affection, as for a wife, child, or parent or other relative, is a moral and meritorious consideration for a promise to make provision for the object of this love. But it is not a valuable consideration, and will not sustain a promise at law. Whether equity differs from law, in this respect, cannot be positively determined from the authorities, for on this question they are wholly irreconcilable. It is obvious that to regard these considerations always sufficient in equity would be to set entirely aside the principle that "equity follows law," and will * enforce only a legal contract; or would introduce an exception which leaves but little of the rule untouched. But on the other hand it may be said that equity cannot refuse on that ground to enforce a contract which is entitled in every respect to its assistance, without forgetting that its general purpose is to moderate the rigor of law, and supply its deficiencies, and bring it into harmony with conscience and moral justice. So far as the authorities go, it might possibly be inferred, from an analysis of them, that the weight of authority in England is third person being even a stranger in blood to each, a stranger to the contract, and a person from whom not any valuable or meritorious consideration moves, has moved, or is to move, it cannot, generally speaking, be competent to one party to the contract or to those representing that party in estate, to say to the other party to the contract, ' Whatever may be your wishes, whether yon assent or dissent, that stipulation shall go for nothing, or shall not have effect given to it,' The two parties to the contract having made the stipulation with each other, mutual assent must generally be requisite to dissolve that, which, by mutual assent, was created. With the question between them, the gratuitousness of the provision towards the stranger, so far as the stranger is concerned, seems generally to have little or nothing to do." 2 Younge & C, Ch. 460, 461.
(p) Morgan v. Rainsforth, 8 Irish Eq. 299 311
(q) Pulvertoft v. Pulvertoft, 18 Ves. 84; Metcalfe v. Pulvertoft, 1 Ves. & B. 180, 2 Ves. & B. 200; Buckle v. Mitchell, 18 Ves. 112
(r) See King v. Withers, Prec. Ch. 10, where a specific performance was granted of a voluntary agreement by a scrivener to make satisfaction to his client for a loss occasioned by his own imperfect examination of a title.
We are inclined to think a principle may be found, which would harmonize many cases that are now irreconcilable, and perhaps come as near supplying a general rule as any other that could be devised. It is, that the court would decree specific performance of a promise made on merely meritorious considerations, when the promise itself was plainly a duty, either because the promisor had been empowered by others to do this very thing, or could be regarded on any ground as a quasi trustee for this purpose; or made the promise under such circumstances that the court would listen favorably to an application for the provision, even if there had been no promise. And in other cases, the court would consider the promise as merely voluntary, and therefore to be left to the discretion or pleasure of the promisor.