Nally vs. Nally et al. or the conveyance is made for a good consideration, the delivery of the article itself may be dispensed with, yet it is likewise true that it must be executed and delivered befroe it will dispense with the necessity of a delivery of the article given. Id., §2659. If it is equivocal in its terms as to the renunciation of dominion, or if it contains a condition reserving the right to the donor to resume or change the possession, then the written conveyance, founded upon a good consideration, would not, upon well settled principles, constitute a good and perfect gift, entitling the donee to the specific execution of the contract. It would, in this respect, be executory, and could not be enforced in favor of a volunteer. Equity never interferes in favor of volunteers, except where the contract is actually executed (Code, §3116), and will never decree the performance of a voluntary agreement, or merely gratuitous promise, unless the volunteer has gone into possession, and upon the faith of the agreement has incurred expense in making improvements of the property donated, or has done something of a similar nature which would render it inequitable upon the part of the donor not to carry out the contract. Code, §3189, and citations. The donee must not be placed in a worse condition than she was before the gift was tendered. These provisions of our Code are obviously the annunciation of the established principles of equity, as will appear from the following authorities: Ellison vs. Ellison, 6 Ves., 656; 1 White and T. Lead Cas., marg. p. 167, in which it was held that "the assistance of the court cannot be had without a consideration to constitute a party a cestui que trust, as upon a voluntary covenant to transfer stock, etc., but if the legal conveyance is actually made, constituting the relation of trustee and cestui que trust, as if the stock is actually transferred, etc., though without consideration, the equitable interest will be enforced." This distinction is fully maintained throughout the numerous cases set forth in the notes, both English and American, to White and Tudor's Leading Cases, ut v 74-43 Nally vs. Nally et al. supra, and is recognized and enforced by text-writers of authority. Had the assured not reserved the right to change the beneficiary in this policy, and had he paid up all the premiums due or to become due before he delivered it to her, and had there been nothing further to be done by him in order to its perfection, then perhaps it might have been deemed a completely executed trust; but such was not the case she took the policy subject to the conditions stipulated upon its face; she had no right to restrict his selection of another beneficiary, and no power to compel him to continue the life of the policy by paying the premiums as they fell due; his failure to meet one of these would have put an end to the contract and would have terminated the conditional trust which he had created for her benefit; nor could she have prevented the forfeiture of the policy by paying the premiums against his wishes and when he forbade her doing it. 2. That marriage is a valuable consideration, and that an innocent purchaser on such a consideration will be protected even against a subsequent bona fide purchaser, seems too plain to require comment. Code, §§2741, 1782. Equity at least will never lend its aid to disturb such a purchaser. Code, §§3092, 3119. It will assist but never disarm him; and even though a title be obtained by fraud and be voidable as to parties whose rights were originally affected by it, it will be protected in a subsequent bona fide vendee who had no notice of the fraud. Id., §2640. A striking instance of the application of this principle is afforded by the case of Verplank et al. vs. Sterry et ux., 12 Johns. R., 536, in which it was held that a deed, voidable in its inception on account of fraud and covin, might be rendered valid by matter ex post facto, as where a grantee in a voluntary deed gained credit by the conveyance, and a person was induced to marry her on account of the provision made for her in the deed; the conveyance, on the marriage, ceased to be voluntary and became good against Nally vs. Nally et al. a subsequent bona fide purchaser for value, and this, whether any particular marriage was in contemplation at the time of the voluntary settlement, or the grantee married without the consent of her father, the grantor. This decision was in favor of the husband, but the rights of the wife stand upon the same equity. Marriage articles will be executed only at the instance of the wife or husband and other persons coming within the scope of the marriage consideration; but when executed at their instance, the court may also execute them in favor of volunteers, and all persons are volunteers except the parties to the contract and the offspring of the wife. Code, §1781. There is no condition in this policy requiring the consent of the beneficiary named therein to a change of any of its terms or of the parties entitled to claim under it, whether such change was to be effected either by parol or by a written instrument; this was a matter entirely between the assured and the company, and if it chose to dispense with any of the modes to effect this purpose, this concerned no third party. The company does not insist upon a rigid compliance with the forms prescribed in the policy; and even if it had capriciously withheld its consent to the alteration which the assured desired to have made, and for which he received a valuable consideration, it is hardly to be questioned that it would be compelled, at the suit of the wife, to perform this contract specifically. Even in the case of a parol contract for the conveyance of land, specific performance will be decreed, if the defendant admits the contract, or if it be so far executed by the party seeking relief, and at the instance or by the inducements of the other party, that if the contract be abandoned he cannot be restored to his former position. Full payment alone, which has been accepted by the vendor, is such part performance as entitles the opposite party to a specific execution of the contract. Code, §3187. In this instance, it would be impossible to restore the wife to her former position, if the contract were abandoned. She Sproull, administrator, vs. Seay. has paid, and the assured has accepted, the full consideration agreed on for the benefits to be derived from this policy. Equity considers that done which ought to be done, and directs its relief accordingly. Code, §3086. It would be difficult to conceive a case which more imperatively demanded the advantages flowing from the application of this most just maxim than the present Such being the view we entertain of the law applicable to the uncontroverted facts of this case, we are constrained to the conclusion that the money arising from this policy belonged to the wife and not to the sister of the assured, and that there was error in decreeing otherwise. It will be perceived that we place this decision solely upon questions of law, and that, in our view of the case, there was no necessity for a motion for a new trial in order to raise the points in dispute. Judgment reversed. SPROULL, administrator, vs. SEAY. 1. An administrator can recover from a bidder at his sale, who fails to comply with his bid, the difference between the sum he bid and that which the land subsequently sold for, when again offered. 2. If the second sale be delayed, and the delay is caused by the request or agreement of the bidder. the delay cannot discharge his liability. If there be no evidence of such request or agreement, a non-suit may be granted, but if there be evidence as to such matters, the question should be submitted to the jury. 3. It makes no difference that the property was offered a second time, and bid off by another for the original bidder, and that the second bidder did not pay his bid, and the property was afterwards sold a third time, all the delays being at the instance of the first bidder. The administrator may recover from the first bidder the difference between the first and last sale. 4. It is not necessary that the second bidder should be made a party, he having been only the agent to bid for the first bidder, and there being evidence that the first bidder was managing the entire transaction and importuning the administrator to wait on him to pay for the land. 5. Nor does it alter the principle that the last sale was for cash, all Sproull, administrator, vs. Seay. the first bid being due when the last sale was made, and the whole delay being at the instance of the first bidder. March 10, 1885. Administrators and Executors. Sales. Parties. Ven Floyd dor and Purchaser. Before Judge BRANHAM. Superior Court. September Term, 1884. C. W. Sproull, as administrator of R. W. Sproull, deceased, brought an action against J. J. Seay, alleging that, on the first Tuesday in November, 1882, the administrator exposed to sale certain property of the deceased, and Seay was the purchaser at the price of $960.00; that defendant refused to pay for the land, and it was afterwards re-sold at his risk, and brought only $375.00. Plaintiff thereupon brought this suit for $585.00, the difference between the amounts which the land brought. On the trial, the following evidence was introduced: C. W. Sproull, sworn: As administrator of R. W. Sproull, I advertised lot 249 in the 23d district and 3d section of Floyd county, for sale at Rome on the first Tuesday in November, 1882. At this sale, J. J. Seay bid off the southeast quarter of the lot at $960.00. I called on him for the money soon after the sale; he said he did not have it, but promised to pay it. He offered to pay me in notes on other persons, and I told him I could not take them. I re advertised the land for sale on the first Tuesday in February, 1883, and he said he would have a man there to buy it. On the day of the second sale, the land was bid off by a man named Palmer, who had previously been an employé of Seay, Bowie & Company, but Seay, the defendant, had ceased to be a member of the firm. Defendant was present at this second sale. Palmer's bid was $910.00. Mr. Seay came to me afterwards and asked me to indulge Palmer, saying that the latter would get a large sum of money for a patent, and would pay me; and, in consequence of this request, I did indulge Palmer, but he did not pay. and I said to Seay that I would not wait |