Opinion of the Court, per CHURCH, Ch. J.

the buyer would have acquired by action, prosecuted at once, would have become perfect in time, and the same title that his successors in interest now seek to have; and he would have been indemnified against the contingent claim of the wife of the seller for dower.

The law giving the purchaser an immediate action, it is no answer to the claim that the statute of limitations then commenced running; that the form of the relief which he could then have had was not precisely the same as that now attainable. The action, the cause of action, and the substance of the relief are in all respects the same, and the cause of action was as perfect, and the remedy, in substance, which could have been had was as complete, at the time of the refusal of the vendor to convey as it was on the death of his widow, fourteen years thereafter. The statute commenced to run in May, 1852.

The only other question relates to the time prescribed by the statute for bringing the action; that is, whether it is within the twenty years' limitation of section 90, or the ten years' limitation of section 97 of the Code.

Stress is laid upon the fact that, by the Code, the distinction between actions at law and suits in equity, and the forms of such actions and suits, are abolished; and the peculiar phraseology of certain sections of the Code, limiting the time for the commencement of different actions.

The change in phraseology referred to was adopted to conform the act, as far as practicable, to the new system of practice and procedure, and the theory and views of the framers. of the instrument.

The change was made necessary as much by reason of the abolishing the names of the several actions as by the attempt to assimilate the forms of all actions, whether at law or in equity. The terminology of the former statutes of limitations were not adapted to the new system, and the framers of the Code sought to make the statutes applicable to the new system, in which there was but one form or name of an action, to wit, "a civil action." SICKELS-VOL. IV. 47

It was a work of some dif

Opinion of the Court, per CHURCH, Ch. J.

ficulty; and it is not strange that it should be the subject of criticism, and capable, by ingenious argument, of being made to have the appearance of working a change in the law as applied to individual actions. But there is an absence of evidence of any intent on the part of the legislature, or of the authors of the Code, to effect any change in the substantial rights of parties or to subvert the substantial distinction between equitable and legal causes of actions; distinctions which are inherent, and cannot be disregarded without seriously disturbing substantial rights. The legislature, in adopting this part of the Code, except as otherwise indicated, intended a simple revision, and not a change of the prior statutes; and the pre-existing statutes have not been changed, except by a change of phraseology, to conform them to the union of legal and equitable procedure; and the substance of the statutes is now the same as before the revision. (Taylor v. Delany, 2 C. C. on E., 151; Goodell v. Jackson, 20 J. R., 722; Howard v. Thompson, 21 W. R., 319; Douglass v. Howland, 24 id., 47; Theriat v. Hart, 2 Hill, 381.) Without entering upon a critical examination of the several provisions of the Code in detail, it is quite apparent, from the entire chapter limiting the time for commencing actions other than for the recovery of real property, that section 97 is a substitute for section 52 of the Revised Statutes. (1 R. S., 301.) Subdivision 2 of section 90 of the Code takes the place of section 48 of the Revised Statutes, making the lapse of time to operate as a bar to the action instead of a presumption of payment; and extending the provision to sealed instruments of all kinds instead of confining it to instruments for the payment of money. If section 90 applies to an action for equitable relief when the right grows out of a sealed instrument, then section 91, which makes six years the limit for actions upon a contract obligation or liability, express or implied, excepting those mentioned in section 90, would restrict the time for actions for specific performance of contracts other than those under seal to six years instead of ten, and there would be two distinct and

Opinion of the Court, per CHURCH, Ch. J.

different limitations of time for bringing the same class of actions and for the same relief. Indeed, as all actions other than for tort or for the recovery of real property grow out or depend upon some contract, obligation or liability, express or implied, section 97 would, upon the interpretation now claimed for section 90, be of no force or effect.

While the framers of the Code abolished the distinction in actions and the forms of actions, they recognized the dif ferent classes of rights and causes of action, and the clear distinction between legal and equitable causes of action, and the different remedies, and did not assume to subvert the principles of the common law or of equity, and when an action for relief is spoken of in sections 91 and 97, reference is had to actions which before the Code were only cognizable in courts of equity. The commissioners of the Code in their report to the legislature expressly state that they make two important changes in the law by section 90 as proposed, and the only one made by subdivision 2 is by making the twenty years an absolute bar instead of a presumption of payment. It is true the section as reported was amended by the legislature by striking out "for the payment of money," so that it was made to include covenants and sealed agreements of all kinds; but section 77 was adopted as reported, and is now section 97 of the Code, and the commissioners in their note say that it is a substitute for the article of the Revised Statutes "Of the time of commencing suits in courts of equity" (1. R. S., 301), and provides for all the cases theretofore known as suits in equity, and that the periods of limitation were the same as those then existing, the only dif ference being that by the Revised Statutes they were applied to the form, while by the proposed section of the Code they were made to depend upon the substance of the remedy.

The legislature may be assumed to have concurred in the views of the commissioners, and not to have intended any change in the statutes limiting the time for commencing actions before then solely cognizable in equity, and the terms. of the act certainly indicate no such intent. But this action

Opinion of the Court, per CHURCH, Ch. J.

is in no just or legal sense an action upon a sealed instrument. An action for a breach of covenant is a legal action, depending upon well ascertained legal rights and sound in damages, and in it the plaintiff is entitled to and recovers as a positive legal right, pecuniary compensation for the damages sustained by the breach of the covenant. This action is founded solely on the covenant, and, upon proof of a breach, the right of recovery is absolute.

An action for a specific performance is quite different in all that is essential, and is the same whether the contract is under seal or in writing, without seal or verbal, and does not depend and is not based solely upon the contract, but upon other circumstances in connection with the contract. No contract, no matter how solemnly made, alone gives an absolute and strict right to a specific performance, but if it is broken, a right of action at law for damages is absolute and fixed. If the party can be compensated for the loss of the benefit of his contract in damages, it is not of course to decree a specific performance. The jurisdiction of courts of equity to decree specific performance is not affected by the form or character of the instrument. (Story Eq. Jur., § 715.) The ground of the jurisdiction is that a court of law can only give the injured party compensation in damages, which may be far short of the redress to which in justice he is entitled. If the party therefore wants the thing in specie, and cannot be otherwise fully compensated, courts of equity will grant him a specific performance. (Harnett v. Yielding, 2 Sch. & Lef., 552.) Courts of equity proceed upon the ground that damages at law may not in the particular case afford a complete remedy. (Adderly v. Dixon, 1 S. & S., 607.) Sometimes a specific performance will be granted of a contract void and not capable of being enforced at law. (Cannel v. Buckle, 2 P. Wins., 244.) The exercise of this branch of equity jurisdiction is not a matter of right but of discretion, and specific performance is granted or refused according to the circumstances of each case irrespective of the character or form of the contract or the foundation of

Statement of case.

the liability. (Story Eq. Jur., 742.) The contract gives the right of action; that is, without it no right of action would exist, but other circumstances enter into the question, whether the party is entitled to this particular relief.

This is not an action upon a sealed instrument within the true intent and meaning of section 90, and is within the letter as well as the spirit and intent of section 97 of the Code. The case was properly disposed of in the court below, and the judgment must be affirmed.

All concur, except ALLEN, J., not voting.
Judgment affirmed.

ARCHIBALD M. ALLERTON, Respondent, v. WILLIAM H. BELDEN, impleaded, etc., Appellant.

An accommodation indorser of a note discounted at a usurious rate of interest, who did no act toward procuring the loan except to indorse the note, is not a borrower, within the provisions of the Revised Statutes (1 R. S., 772, § 8), as modified by the act of 1837 (Laws of 1837, chap. 431, § 4), which dispenses with an offer to pay interest or principal where the borrower seeks relief in equity against a usurious security.

The mere fact that a party has made an agreement or given a security which is void for usury, is not sufficient to entitle him to apply to a court of equity to have the contract annulled. The right to this relief exists only when, from the form of the security, the defence cannot be made available at law, or where the instrument sought to be avoided is a cloud upon the title to land, or some other necessity for the interposition of a court of equity is shown.

The act of 1837 does not authorize the institution of an action in equity to annul a contract for usury, in any case where such an action could not have been maintained before the passage of that act; it simply changes the terms upon which the borrower can get relief.

(Argued April 18, 1872; decided May 21, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, affirming a a judgment overruling demurrer to plaintiff's complaint. (Reported below, 3 Lans., 492.)