Easton v. Lockhart

• Decision Date: 05 June 1901
• Docket Number: 6731
• Citation: 86 N.W. 697,10 N.D. 181
• Court: North Dakota Supreme Court

86 N.W. 697

10 N.D. 181

SYDNEY S. EASTON v. J. B. LOCKHART

No. 6731

Supreme Court of North Dakota

June 5, 1901

Appeal from District Court, Cass County; Pollock, J.

Suit by Sydney S. Easton against J. B. Lockhart to enforce specific performance of a contract for the sale of land. From a decree in favor of plaintiff, defendant appeals.

Reversed.

Judgment reversed; defendant recovered his costs and disbursements in both courts.

Mills Resser & Mills, for appellant.

Plaintiff failed to show himself entitled to a specific performance. He has never tendered the payment of the purchase money which is a condition precedent to performance, § 5031, Rev Codes; Waterman on Specific Performance, § 438. The contract between Mears and Percival is the foundation for any claim that can be made under either of the other instruments. That contract is of no binding force because too indefinite and uncertain to be enforced. Hedderly v. Johnson, 42 Minn. 443. It is void for want of mutuality. Berwind v. Williams, 33 At. Rep. 358. The written promise of a purchaser at an execution sale of real estate to reconvey to the execution defendant, on payment of a specified sum by a day named, the latter not binding himself to make such payment, is a mere gratuity and confers no vested interest. Mers v. Insurance Co., 68 Mo. 127; Bernett v Bisco, 4 Johns. 235; Wall v. Printing Co., 48 N.Y.S. 67; American Cotton Oil Co. v. Kirk, 68 F. 791; Stiles v. McClellan. 6 Colo. 89; Cool v. Cunningham, 25 S.C. 136; Rafolovitz v. Tobacco Co., 23 N.Y.S. 274. There was no consideration for the contract. § 3871, Rev. Codes. A consideration which is neither prejudicial to the promisee, nor beneficial to the promisor, is insufficient to support the terms made thereon. Ford v. Crushaw, 11 Ky. 68; Marks v. Banks, 8 Mo. 361; Black v. Black, 7 Ia. 46. The Mears-Percival contract was surrendered and cancelled by agreement of the parties. § 3937, Rev. Codes; Addison on Contracts, § 175; Boyce v. McColloch, 3 Watts & Sargent 430; Gorman v. Salisbury, 1 Vernon's Ch. 239; Bishop on Contracts, §§ 815, 174; Robinson v. Bullock, 66 Ala. 548; Flanders v. Fay, 40 Vt. 316; Cummings v. Aldrich, 3 Metc. 486; Forbes v. Smiley, 56 Me. 174. Defendant can prove such surrender and cancellation in this action, if the evidence is clear and distinct and of such a character as to leave no reasonable doubt in the mind of the court. Murray v. Harway, 56 N.Y. 337; Spencer v. Thompham, 22 Beavans, 557; Emery v. Grocock, 6 Madd. 41; Spring v. Sanford, 7 Paige 550; Smith v. Death, 5 Madd. 371; Shroer v. Shroer, 86 N.Y. 575; Jackson v. Murray, 17 Am. Dec. 53; Edwards v. Van Bibber, 1 Leigh 183; Hedderly v. Johnson, 42 Minn. 443. The grant from E. Ashley to Clarence T. Mears is void for want of sufficient description. It does not state in what state or county the land is located. Cochran v. Utt, 42 Ind. 267; Murphy v. Hendricks, 57 Ind. 593. Having informed Easton of the state of the title as to his contract and the judgments cancelling it, and offering him all the title defendant had, he, refusing to accept, cannot now bring suit to compel defendant to do anything more. Mills v. Van Moorish, 23 Barb. 125.

C. E. Leslie and John Carmody, for respondent.

A court of equity will not compel a purchaser to take doubtful title, or one which threatens litigation. McCroskey v. Ladd, 28 P. 216; Townsend v. Goodfellow, 41 N.W. 1056; Michener v. Reinach, 21 So. Rep. 552; Daniel v. Shaw, 44 N.E. 991; Watts v. Waddle, 6 Peters 391; Jeffries v. Jeffries, 117 Mass. 184; Bowen v. Vickers, 2 N.J.Eq. 520; Vought v. Williams, 24 N.E. 195; Schriver v. Schriver, 86 N.Y. 275; Fleming v. Burnham, 2 N.E. 905. A title open to a reasonable doubt is not a marketable one. Wesley v. Eells, 44 L.Ed. 810; Adams v. Valentine, 23 F. 1; McPherson v. Smith, 2 N.Y.S. 60; Post v. Burnham, 1 N.Y.S. 807; Post v. Weill, 11 N.Y.S. 807. A purchaser of immovable property cannot be judicially coerced to a doubtful title. Beare v. Leonard, 5 So. Rep. 257; Irving v. Campbell, 24 N.E. 821; Holly v. Hirsch, 43, N.E. 527; Upton v. Maurice, 34 S.W. 642; Guild v. Ry. Co., 45 P. 82; Aldrich v. Bailey, 8 N.Y.S. 435; McGrain v. Rundby, 10 N.Y.S. 119; Vaught v. Williams, 24 N.E. 195; Close v. Stuyvesant, 24 N.E. 868; Oakey v. Cook, 7 At. Rep. 495; Hickley v. Smith, 51 N.Y. 21; Walsh v. Barton, 24 O. St. 28. It is the duty of the vendor to tender the vendee a safe title. Lockhart v. Smith, 16 So. Rep. 660; Hero v. Block, 11 So. Rep. 821; Blanck v. Sadlier, 47 N.W. 920; Watson v. Coast, 14 S.E. 249. Specific performance will not be decreed at the instance of the vendor unless his ability to make a good title is unquestionable, and in such case it is sufficient for defendant to show that the title is questioned. Kellerman v. Building Co., 7 O. Dec. 408; Bullard v. Butnell, 49 N.Y.S. 666. It is not necessary to make a tender when the opposite party cannot or will not fulfill the terms upon which the money is to be paid. 22 A. & E. Enc. L. 1036; Kerr v. Hammond, 25 S.E. 337; Tyler v. Plutzs, 20 S.W. 256; Veeder v. McMurry, 70 Ia. 118; Plummer v. Kelly, 7 N.D. 88; McPherson v. Fargo, 74 N.W. 1057; Brace v. Dolle, 52 N.W. 586.

OPINION

WALLIN, C. J.

This is an equitable action brought to compel the specific performance of an alleged agreement to sell and convey a section of land which is described in the complaint, and situated in the county of Cass. The complaint alleges, in substance, that the plaintiff and the defendant entered into an agreement on May 28, 1898, whereby the plaintiff agreed to purchase, and defendant agreed to sell, the land in question for the sum of $ 9,600, and that upon the payment of the purchase price the defendant agreed to execute and deliver to the plaintiff "a good and sufficient warranty deed to said premises, and was to furnish to the plaintiff said land free and clear of all incumbrances, and make the plaintiff a clear, good, valid, and merchantable title to all of said land; that at the date of entering into said agreement the land was wild land, and it was agreed that plaintiff should at once go into possession and improve the premises; that, pursuant to said agreement, plaintiff took immediate possession of the premises, and proceeded to make valuable improvements thereon, and in so doing the plaintiff has broken and backset the entire tract, and has disc-harrowed the same, and paid taxes thereon, and the said improvements are of great value. The plaintiff further alleges that he negotiated a loan with one A. L. Dalrymple for the entire purchase price of said land, with the understanding that such loan was to be secured by mortgage upon said premises, to be executed and delivered by the plaintiff to Dalrymple. The complaint further shows: "That after negotiating said loan, and after the plaintiff had entered into possession of said land and had broken the same, and when the plaintiff was about to pay the money for said purchase price to the said defendant, and receive his deed of said land, it was discovered that the defendant's title to said land was imperfect, that adverse claims and interests in and to said land were held or claimed by various parties, and that the title to said land was not then perfect in the said defendant; and the said title has not yet, as plaintiff is informed and believes, been perfected, or attempted to be perfected, in the said defendant. That the plaintiff hereby offers to pay into court the entire purchase price of said land, to-wit, the sum of nine thousand six hundred dollars ($ 9,600), to be held by the court until the defendant shall perfect his title to said land, and deliver to the plaintiff a good and sufficient warranty deed of said premises, free and clear of all incumbrances and adverse claims." The relief demanded is, in effect, that plaintiff be required to perfect his title to the land, and then execute and deliver to plaintiff a good and valid deed of warranty for the same upon plaintiff's payment of the purchase money, and, if title cannot be perfected, that the plaintiff recover of defendant damages as follows: (1) The value of said improvements; (2) the difference between the price agreed to be paid for the land and the actual value thereof, which difference is alleged to be $ 6,400; (3) for plaintiff's costs and for further relief. Defendant, by his answer, admits that he agreed to sell the land to plaintiff at the time and for the price as stated in the complaint, and that it was agreed that plaintiff should take possession as alleged in the complaint, and that plaintiff did take possession and break the land. The answer states "that the defendant has ever since the making of said contract been, and now is, ready and willing to perform his part of said contract to convey said land to the plaintiff by a good and sufficient warranty deed, and has frequently offered to perform said contract on his part, but the plaintiff has refused and neglected to perform said contract and to pay the purchase price in said contract, or any part thereof, and that ever since the making of said contract the defendant has had a good and sufficient title in fee simple to said premises, free and clear from all claims, demands, liens, or incumbrances whatsoever; and that the plaintiff at the time of making said contract, or prior thereto, was informed of the exact condition of defendant's title." Upon these allegations the parties went to trial before the court without a jury, and plaintiff recovered a judgment in the court below, from which defendant has appealed to this court, and a trial anew in this court is properly demanded.

The court below adjudged: First, that the defendant was not vested with a merchantable title to the land in suit; second "that the defendant be required to perfect the...