title. It was shown that he really was the owner under a clause of his grandfather's will. In declaring that the transaction amounted to a sale by the son, Justice Wood said:

The proof shows that the appellee [Mack Foushee] fully intended to sign the deed and thereby convey all the interest he might have. "Equity looks on that as done, which ought to have been done." "Equity imputes an intention to fulfil an obligation." These familiar maxims of equity are sufficient authority for denying to the appellee under the evidence in this record the relief which he seeks, and for granting to the appellant the relief sought by his cross-complaint.

Equality is Equity.

Equity will treat all members of a class as upon an equal footing.

In the case of Matter of Empire State Surety Company,' decided in 1915 by the New York Court of Appeals, in which the issue was the proper distribution of the assets of an insolvent surety company, the court ruled that each of the creditors was entitled to his proportionate share of the property realized. Judge Seabury, giving the decision of the court, said:

The principle that equality is equity is especially applicable to the settlement of insolvent estates. Where equity acquires jurisdiction to distribute the assets of an insolvent fiduciary, distribution is made proportionately to all those having claims against the fund. . . . The principle that equality is equity is to be given effect only by adhering to a uniform rule by which the rights of all creditors are to be determined.

1214 New York Rep., 553, 568.

Between Equal Equities the Law will Prevail.

He who seeks the aid of equity must show that his rights are superior to those of the persons against whom he asks a remedy.

In the case of Forman v. Executors of Brewer,1 decided in 1900 by the Court of Errors and Appeals of New Jersey, the holders of two judgments against Henry C. Forman, obtained in 1872 and 1873, asked the court to rule that their claims were superior to the lien of a mortgage in the form of a deed of conveyance, made by Forman in 1871 to secure payment of loans to one Bulson, which in 1879 had been conveyed by Bulson to Edmund Brewer, deceased, who made loans to Forman after he took the conveyance. The legal title to the property had thus been held by Bulson from 1871 to 1879 and by Brewer since 1879, while the equitable title was held by Forman, and the two judgments were only equitable liens against it. The court decided that inasmuch as the legal title vested in Brewer he had a right, as against the holders of equal equitable titles, to whatever protection it afforded. Justice Dixon said:

The appellants [the judgment holders] contend that their judgments should be decreed to have been liens upon the land from the dates thereof, and should have priority over all advances made by Brewer after those dates [of the judgments]. . . . This contention might prevail if the legal title to the land had been in Forman, so that the judgments against him constituted a legal lien. But as Forman has never had legal title since the judgments were entered, the appellants must rest solely on their equitable claims, and we think that the relations of Forman and Brewer were such as to make the latter's claim for his advances as good in equity as those of the judgment creditors, in view of their 162 New Jersey Equity Rep., 748, 750.

knowledge and acquiescence in the situation. Hence the legal title vested in Brewer should not be taken away without conceding to him whatever protection it may afford for the payment of his iust debts.

Between Equal Equities the First in Order of Time will Prevail.

As between persons having only equitable interests, the first in order of time has the better right.

In the case of State Bank of Mayville v. Jennings,' decided at the Equity Term of the New York Supreme Court for Cattaraugus County in 1912, the question at issue was whether a pledge of a leasehold estate in a lot of the Chatauqua Assembly which had not been completed by delivery of the lease, was entitled to a priority claim as against a subsequent assignment and delivery of the same lease. In deciding this case, Justice Brown said:

The general rule undoubtedly is that in equity between conflicting equitable interests or liens, other things being equal, the one that is prior in time is superior in right.

178 Miscellaneous (New York) Rep., 524, 526.

CHAPTER XVI

FROCEEDINGS IN EQUITY

Applications for Relief.

An application for relief in equity is made either by a "petition," or by a "bill," or by a "complaint," each of those words having the same meaning and being used interchangeably. Such a petition, bill, or complaint is presented to a court of equity, which thereupon issues a subpœna commanding the person against whom relief is sought to appear in court and answer the matters alleged by the petitioner. When an answer has been filed in which the allegations of the petitioner or plaintiff are denied or contradicted, an issue is established upon which the court will take evidence, decide upon the truth or falsity of the contentions of both petitioner and defendant, will apply to its decision of matters of fact the rules of equity and will award an appropriate remedy.

The important distinction between this procedure and that which is followed in a case at law is that the judge of a court of equity decides upon the truth of the contentions between the parties, while in a court of law such questions of fact are decided by a jury. The only exception to this rule is that a judge of a court of equity has a right to refer questions of fact to a jury if he so desires, but such reference is wholly optional.

He is not obliged, as in a law case, to let the jury pass upon the facts while he decides questions of law.

The more important cases which courts of equity decide are as follow: actions for the specific performance of contracts; petitions for the re-execution, reformation, rescission and cancellation of contracts; petitions for the partition of real estate; bills for the establishment of boundary lines; complaints for the dissolution of partnerships; creditors bills; bills of discovery; bills of quia timet; petitions for the foreclosure of liens and mortgages.

Actions for Specific Performance of Contracts.

A bill for specific performance is a petition in which a court is asked to command a person to perform an agreement or contract according to its precise terms.' For example, a court in equity will compel a person who has made a contract to sell and convey real estate, to execute and deliver to the owner a deed of the property. It would be unjust to leave the purchaser to his right at law to have damages for the injuries caused by the refusal to convey real estate, because damages incident to not having a home to live in or farming land to raise food on cannot be estimated in money. The remedy at law being insufficient, resort must be had to equity.

The suit of Rison v. Newberry,' decided in 1894 by the Supreme Court of Appeals of Virginia, was an action in equity in which the plaintiff asked the court to compel the performance of a contract to purchase certain land in Wythe County, Virginia. The defendants ` had agreed to buy 700 out of 706 acres of the plaintiff's

122 Am. & Eng. Ency. of Law, 909.

290 Virginia Rep., 513, 521.