Syllabus
by the Court.
A
judgment for defendant in an action for specific performance
based on a finding of fact, among others, that defendant had
conveyed the property to an innocent purchaser for value
cannot be reversed, as specific performance is impossible
where the party to the contract has conveyed the property to
one who is free from equities.
Where a
vendee pays money in part performance of an executory
contract of sale and fails to perform it, he cannot recover
of the vendor the money so paid.
The
rule that a vendor, who elects to rescind a contract for the
sale of real property, "must restore to the other party
everything of value which he has received from him under the
contract" (section 986, Rev. Laws 1910), does not apply
to the defendant in a suit for specific performance commenced
by the vendee, where the vendor pleads an abandonment of the
contract for the purpose merely of defeating the
plaintiff's demand, and does not set up any affirmative
equitable defense or claim any affirmative relief.
Error
from District Court, Oklahoma County; Geo. W. Clark, Judge.
Action
by Reba F. Beatty against the Wintrode Land Company and
others. Judgment for defendants, and plaintiff brings error.
Affirmed.
TURNER
J.
On
January 10, 1910, in the district court of Oklahoma county
Reba F. Beatty, plaintiff in error, sued the Wintrode Land
Company, Pryor-Wagnon-Hitt-Gardner Company, and the American
National Bank in specific performance, the object of which
was to compel the conveyance to her of lots 1 to 6,
inclusive, of block 12, Walnut Grove addition to Oklahoma
City, and to clear her title thereto. Thereafter she filed an
amended petition, and added another cause of action, and
prayed in the alternative that in the event she could not
recover in specific performance that she have judgment for
$300 and interest, which, she alleges, was part of the
consideration paid for the land. After the Wintrode Land
Company and the bank had answered in effect a general denial,
and the Gardner Company had demurred, and one Dougherty, who
was alleged to claim some interest in the land, had come in
and answered that he was an innocent purchaser for value and
without notice, the court sustained the demurrer of the
Gardner Company to the petition, and that company passed out
of the case. On October 3, 1910, plaintiff filed a second
amended petition, in effect the same thing, and upon which
substantially the same issues were joined by the remaining
defendants. Thereupon there was trial to the court, and
judgment in favor of the Wintrode Land Company and the bank,
and against the plaintiff for costs, and she brings the case
here.
At the
conclusion of the testimony the court, on request of the
parties, made special findings of fact and conclusions of
law, thus:
"On December 5, 1906, Pryor-Wagnon-Hitt-Gardner
Company., Incorporated, as authorized agents of the Wintrode
Land Company, accepted from plaintiff $300 in cash and her
promissory note for $350 of that date, bearing 8 per cent
interest, payable to the defendant the Wintrode Land Company
on or before 12 months after date, in consideration of which
they verbally agreed with her to procure the execution, by
the Wintrode Land Company, of a warranty deed conveying to
her lots 1 to 6 in block 12, Walnut Grove addition to
Oklahoma city, and to deposit such deed and an abstract of
title to said lots, together with said note, in the American
National Bank, to be delivered to plaintiff upon payment of
said note when it became due. Nothing, however, was said by
either as to whether time should be the essence of that
contract.
Pryor-Wagnon-Hitt-Gardner Company, Incorporated, delivered a
portion of this cash deposit and said note to the Wintrode
Land Company, whereupon the latter executed the warranty deed
and deposited the same with the abstract and note in the
American National Bank, pursuant to, and in accordance with,
the agreement mentioned.
In May, 1909, 17 months after the maturity of the note, and
11 months after the written notice to the plaintiff of its
intention to declare her contract forfeited, unless a
substantial payment should be made on it, the Wintrode Land
Company, after having made repeated efforts to dispose of
these lots, verbally sold them to the defendant
Pryor-Wagnon-Hitt-Gardner Company, Incorporated, for the
balance due on the Beatty contract, which was the best price
they could get for them, taking a note for the purchase price
and retaining title to the lots until payment should be made,
with a verbal agreement that when the note was paid it would
convey the lots to any one that Pryor-Wagnon-Hitt-Gardner
Company, Incorporated, desired. This note was paid long ago.
These lots had been flooded by an overflow from the river,
and there was, at that time, practically no sale for them.
Prior to the transaction last named, the defendant Dougherty
deposited with the defendant Pryor-Wagnon-Hitt-Gardner
Company, Incorporated, money to be invested by them, and also
listed with them his real estate for sale and reinvestment of
the proceeds in other real estate, with authority to exercise
their own judgment in handling his funds and real estate, and
in making new investments, and they turned these lots, with
10 others, over to him for a consideration of $2,000.
Since the date of the contract sued on, there have been many
fluctuations in price. After the new packing plant was
located it was rumored that a terminal building would be
erected on this addition, and there was quite a demand for
property in that locality. Prices advanced materially and
these lots became more valuable than they were when the
contract sued on was made. Such was the situation on January
10, 1910.
On the date last named, the plaintiff offered to pay the note
she had given the Wintrode Land Company, but was told by them
that they would not accept it; and on the same day, but
whether before or after such offer was made the record is
silent, the Wintrode Land Company deeded these lots to
defendant Dougherty, which deed was filed for record on the
12th day of January, 1910. Said 10th day of January, 1910,
this
suit was brought against the Wintrode Land Company,
Pryor-Wagnon-Hitt-Gardner Company, Incorporated, and the
American National Bank, but the summons was not served until
three days thereafter. Whether the Wintrode Land Company had
knowledge of the institution of this suit before they
executed the deed to Dougherty does not appear in the record.
Dougherty had no knowledge or information at the time the
deed was executed, that the plaintiff had or claimed any
interest in these lots. No part of the $300 cash payment has
been refunded, nor has the $350 note been surrendered to the
plaintiff, although the evidence shows that it has not been
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