(d) If a vendor before the sale make a representation calculated to induce the purchaser to overvalue the property, which representation is untrue and known by him to be untrue, he cannot enforce specific performance of that contract of sale, although he had no fraudulent intent in the representation; for he who seeks specific performance ought to be optomae fidei. Price v. Macaulay, 2 De G., M. & G. 339, 19 Eng. L. & Eq. 162. But it seems that the fact of the plaintiff's having, during the treaty which led to the contract, made false representations concerning the subject-matter, will not preclude him from a specific performance, if it appear that the defendant was not at all misled by such misrepresentations. Clapham v. Shfllito, 7 Beav. 146; Vigors v. Pike, 8 Clark & F. 562. And see Jennings v. Broughton, 5 De G., M. & G. 126. Yet in order to enable a vendor to avail himself of that reply, he must show clearly that the purchaser knew that to be untrue which was represented to him as true; for no man can be heard to say, that he is to be assumed not to have 'spoken the truth. Knight Bruce, L. J., 2 De G., M. & G. 346. Where the vendor employed a puffer to bid at a sale advertised to be "without reserve," a specific performance was refused him. Meadows v. Tanner, 5 Madd 34. See Thornett v. Haines, 15 M. & W. 372, per Parke, B. Where a bidder at an auction agreed with another to divide the land with him, if he would not bid, the contract was not enforced against him, because it was a fraud against the vendor. Whitaker v Bond, 63 N. C. 290. And one who by false pretences obtained from a third party a deed he held as an escrow, could not maintain a bill thereon for specific performance Booth v. Hartley, 3 W. Va. 478. An industrious concealment of a circumstance affecting the value of the property, was held to be a ground for refusing a specific performance. Shirley v Stratton, 1 Bro. Ch. 440. To defeat an application for a specific performance, it is not necessary that the plaintiff should have known the representation to be untrue when he made it, if it is false in point of fact. Best v. Stow, 2 Sandf Ch. 298. As to the misconduct of an agent of one of the parties, see Alvanley v. Kin-naird, 2 Macn. & G. 6.

(dd) Dodson v. Swan, 2 W. Va. 511.

(e) A misrepresentation, whether wilful or not, deprives the party of all title to a specific performance in equity; the contract is vitiated in toto, and it" is not competent to the plaintiff, after exonerating the defendant from that part which is affected by the misrepresentation, to obtain the specific execution of the residue Clermont v. Tasburgh, 1 Jac. & W. 112; Cadman v. Horner, 18 Ves. 10. See also Drysdale v Mace, 5 De G., M. & G. 103; Gurley v. Hiteshue, 5 Gill, 223; Best v. Stow, 2 Sandf Ch. 298; Powers v. Hale, 5 Foster, 145. And although there be no want of good faith on the plaintiff's part, yet if the defendant placed a different and erroneous construction upon the contract, and in doing so committed a mistake which a fair and reasonable man in the circumstances might without supine ignorance or gross negligence have fallen into, that may be a reason why a court of equity should not enforce specific performance against him. Knight that the price shall be abated to the value of her inchoate interest Martin v. Merritt, 57 Ind 34. Specific performance may be had of an antenuptial agreement for the use of land in favor of a husband against his wife. Stratton v. Stratton, 58 N. H. 473. See Bark's Appeal, 75 Pa. 141; Reilly v. Smith, 10 C. E. Green, 158. Phillips v. Stanch, 20 Mich. 369, decided that specific performance would not be decreed of a contract by a husband to convey land, occupied by himself and wife as a homestead, a deed for which the wife refuses to sijrn; nor would compensation be made in lieu of specific performance, where the premises exceeded in value the maximum allowed as a homestead, and were subject to the contingent dower of the wife. - K.

A contract will not be enforced against a party who entered into it under an actual and honest misunderstanding on a material point; (gg)l nor if he were induced to enter into it by

Bruce, V. C., Ricketts v. Bell, lDoO.4 S. 346; Higginson v. Clowes, 15 Ves. 524. And see Alvanley v. Kinnaird, 2 Macn & G. I. This rule was very clearly stated, and the manner of applying it carefully defined by Shaw, C. J., Western R. R. Co. v. Babcock, 6 Met. 352. See also Malins v. Freeman, 2 Keen, 25; Graham v. Hen-dren, 5 Munf. 185. Young v. Frost, $ Gill, 287, may be considered perhaps to conflict in some degree with this principle, and with that requiring the plaintiff to prove the contract with certainty, and also with the doctrine that parol evidence is admissible to rebut, though not to establish, an equity. In proportion to the severity of the terms imposed by one party on the other, it is incumbent on the former to see to it that those terms are explicitly stated. Thus, when a vendor sells property under stipulations which are against common right, and place the purchaser in a position less advantageous than that in which he otherwise would be, it is incumbent on the vendor to express himself with reasonable clearness; if he uses expressions which are ambiguous and reasonably capable of misconstruction, the purchaser may generally construe them in the manner most advantageous to himself Rhodes v. Ibbetson, 4 De G , M. & G. 787, 23 Eng. L. & Eq. 393. And see Drysdale v. Mace, 5 De G., M. & G. 103, 27 Eng. L. & Eq. 195. A much stronger case is necessary to set aside an executed contract on the ground of misrepresentation or concealment, than is sufficient to induce a court of equity to refuse a specific performance of one that is executory. See Wilde v. Gibson, 1 H. L. Cas. 605, and the judgment of Lord Campbell, id. 632. See also Edwards v. M'Leay, Coop. 308, 2 Swanst. 287; Legge v. Croker, 1 Ball & B. 506.

(f) Clarke v. Grant, 14 Ves. 519. And see Cathcart v. Robinson, 5 Pet. 264. An agreement for the purchase of certain land was not enforced, because it was made on the faith of representations of the vendor's agent that the vendor would do certain acts upon his adjoining property, in consequence of the non-fulfilment of which representations the land purchased was less valuable than it would otherwise have been, Myers v. Watson, 1 Sim. (n. s.) 523, 7 Eng. L. & Eq. 66. In the judgment of Lord Cranworth, V. C, in that case, is a good statement of the nature and extent of this equitable defence to an application for a specific execution of a contract. In a case where a plaintiff set forth an agreement in writing for the sale to him by the defendant of certain land, and also offered, in case the defendant should so elect, to accept certain parol variations of the contract which had been subsequently agreed upon, the court left it to the defendant to accept the modified agreement if he would; and, upon his declining to exercise the privilege of election, decreed a specific performance of the contract as it stood. Robinson v. Page, 3 Russ. 114.