(p) A deed not duly recorded has been regarded as a contract to make a valid conveyance according to its purport. Chase, C. J., Monerieff v. Goldsborough, 4 Harris & Mcll. 283. And see Williams v. Mayor of Annapolis, 6 Harris & J. 529. So with a married woman's deed concerning her separate property, inoperative as a conveyance for want of" a legal acknowledgment. Tiernan v. Poor, «1 Gill & J. 227; Brundige v. Poor, 2 id. 1. The statute of frauds does not appear to have been pleaded in these cases. It was long ago held, that a deed which had become void by matter subsequent, might be ground for a suit in equity for a specific performance; as where a woman, being obligor, married the obligee. Cannel v. Buckle, 2 P. Wms. 242. An award may be enforced specifically as an agreement, wherever a direct agreement between the parties would be so enforced. Hall v. Hardy, 3 P. Wms. 190; Wood v. Griffith, I Swanst. 54; McNeil v Magee. 5 Mason, 244. An award, which in itself was not binding upon either party, was specifically performed at the instance of one of the parties, who had done acts of part performance. Norton v. Mascall, 2 Vern. 24, 1 Eq. Cas. Ab. 51. But an agreement to refer to arbitration will not be executed in equity. Mitf. PI. 264, 265; Gourlay r Somerset, 19 Ves. 431. See further upon the subject of award, post, § 4, where awards ascertaining the price of land are treated of, and also § 5, under the head of Part Performance.

(q) Cannel v. Buckle, 2 P. Wms. 242; Hopson v. Trevor, 1 Stra. 533; Logan v. Wienholt, 1 Clark & F. 611; Dewey v. Watson, 1 Gray, 414; Plunkett v. Methodist Episcopal Society, 3 Cush. 561.

If the nature of any particular contract be such, that a court of equity, upon the established rules governing the enforcement of specific performance, ought to listen to one of the parties if he should ask its aid, it will be willing, upon a principle of even-handed dealing, to grant a specific performance of the contract at the instance of the other party also, although his case per se would not be strictly within the reason of this jurisdiction of equity; and the circumstance that the former party could not in point of fact have made out his case by reason of some rule of evidence, e. g., the provisions of the statute of frauds, will not of itself affect the equity of the plaintiff, nor prevent the court from granting him relief, his case being supported * by the requisite evidence, (s) But if a party, claiming specific performance, with a distinct knowledge of a repudiation of the contract, has suffered a long period of time to elapse, without taking any steps to assert his rights, the lapse of time and laches will preclude him from relief in equity, (t)l

(r) Howard v. Hopkyns, 2 Atk. 371. A seal does not in equity establish a presumption of a consideration, so as to take the case out of the operation of the rule that a voluntary agreement cannot be executed. Black v. Cord, 2 Harris & G. 100; Butman v. Porter, 100 Mass. 337; Lamprey v. Lamprey, 29 Minn. 151; Wilson v. Simpson, 68 Tex. 306, 309.

[rr) Hammer v. McEldowney, 46 Pa. 334; McKibbin v. Brown, 1 McCarter, 13; McLaughlin v. Piatti, 27 Cal 451; Los Angeles Assoc v. Phillips, 56 Cal. 539

(rs) Merkle v. Wehrheim, 32 111. 534.

(rt) Corson v. Mulvany, 49 Pa. 88.

(ru) Waring v. Ayres, 40 N. Y. 357.

(s) Where the plaintiff had assigned a lease to the defendant, on the faith of his agreement to pay the plaintiff an annuity, and furnish him a house worth £10 a year to live in, and the objection was made that the plaintiff's demand being merely pecuniary, he had no equity. Knight Bruce, V. C, said: "I am satis-fled that this is a case in which the court ought not to decline jurisdiction. A case is stated, in which, setting the statute of frauds out of the question, a bill might have been maintained by the defendant against the plaintiff, to compel him to execute the assignment. That, therefore, is a reason to compel the performance of the terms upon which the plaintiff agreed to execute the assignment. Clifford v. Turrell, 1 Younge & C, Ch. 138, 150. And see Withy v. Cottle, 1 Simons & S. 174, cited infra. But see Jones v. Newhall, 115 Mass. 244.

(t) Alloway v. Braine, 26 Bear. 575.

1 Equity, except under special circumstances, will refuse relief to a person who has delayed seeking to enforce his contract for such a period as would bar relief at law,Preston u

In general, all the rules of construction and of evidence are the same as at law, although they may be applied with greater freedom to the especial merits of each case, (u)

A rule of frequent occurrence in equity applies to many cases in which specific performance is sought; it is, that equity will consider that as done which ought to have been done, (v) Thus, one who has entered into a valid contract for the purchase of land, is considered by the court as already an equitable owner. He may devise it, and it will pass by descent to his heir, (w)

Another rule not only binds the legal representatives of all parties to contracts (which the law does to a great extent), and requires specific performance by executors, administrators, or heirs, of contracts which would have been enforced against the deceased had he been living;(x) but it extends this doctrine * to all persons who have a certain privity of estate and interest (y) Thus, if an owner of land who has made

See also, as to effect of delay, Sharp v. Wright, 28 Beav. 150; Van Zandt v. Kew York, 8 Bosw. 375; Conway v Kins-worthy, 21 Ark. 9; DuBois v. Baum, 46 Pa. 537; Stretch v. Schenk, 23 Ind. 77; Laverty v. Hall, 19 la. 526.

(u) 'Sugden, L. C, Croker v. Orpen, 3 Jones & La T. 599. And see Croome v. Lediard, 2 Mylne & K. 251; Union Bank v. Edwards, 1 Gill & J. 364; Parkin v. Thoruld, 2 Simons (N. S.), 7, 11 Eng. L. & Eq. 275. Compare opinion of Sir Wm. Grant, M. R., Kenneys v. Proctor, 3 Ves. & B. 58. An omission in a written agreement, whether it happened by mistake or fraud, may be proved by parol, and will be ground for refusing a specific performance of the contract as it stands. Joynes v, Statham, 3 Atk. 388; Ramsbottom v. Gosden, 1 Ves. & B. 168; Winch v. Winchester, 1 Ves. & B. 378; Wilde, J., Brooks v. Wheelock, 11 Pick. 440; Best v. Stow, 2 Sandf. Ch. 298; Honeyman v. Marryatt, 6 H. L. Cas. 112. See Rich v. Jackson, 4 Bro. Ch. by Belt, 514, n. (I).