Johnston v. Wadsworth

• Decision Date: 17 July 1893
• Citation: 34 P. 13,24 Or. 494
• Parties: JOHNSTON v. WADSWORTH.
• Court: Oregon Supreme Court

34 P. 13

24 Or. 494

JOHNSTON v. WADSWORTH.

Supreme Court of Oregon

July 17, 1893

Appeal from circuit court, Multnomah county; L.B. Stearns, Judge.

Action by S.R. Johnston against Philip C. Wadsworth. From a decree for plaintiff, defendant appeals. Affirmed.

Cake &amp Simon, for appellant.

W McCamant, for respondent.

LORD, C.J.

This is a suit in equity for the specific performance of a written contract. The complaint alleges that the plaintiff and defendant entered into an agreement whereby the defendant, in consideration of the sums to be paid as alleged, agreed to procure title for plaintiff to certain school lands belonging to the state, and at the same time and as a part of said agreement, expressly stipulated that if the plaintiff should be dissatisfied with the land at any period within six months from or after the date of said agreement, and if plaintiff should so desire, the defendant would purchase said lands from him at the rate of three dollars per acre; that, in pursuance of such agreement application was duly made for the purchase of the land described in the complaint, and plaintiff made the purchase relying upon defendant's agreement to purchase the land that, upon examining such land, the plaintiff ascertained that the same was of little or no value, and thereupon notified the defendant of his desire that he should repurchase the same in accordance with his agreement, which the defendant failed and refused to do; that the plaintiff has made due tender to the defendant of a transfer of said land in compliance with his agreement, etc. A demurrer to the complaint was interposed by the defendant, on two grounds: First, that the complaint does not state facts sufficient to constitute a cause of suit; and, second, that the court did not have jurisdiction of the subject of the suit. The demurrer was overruled, and the defendant answered, denying the allegations of the complaint, and alleging that the procurement of the land for the plaintiff constituted the only contract that was made between them, and that it had been fully executed. The cause being referred, the findings were for the plaintiff, which, after argument, were affirmed by the court, and a decree was entered specifically enforcing the contract, from which decree the defendant has brought this appeal. The objection to the jurisdiction, presented by the demurrer, is based on two grounds: First, that the plaintiff has a plain and adequate remedy at law; and, second, that the suit was not brought within the county in which the land is situated. Upon the first point the contention is that the facts show that the only relief sought is a money judgment, and hence that the plaintiff is not entitled to the remedy of a specific performance unless there were acts alleged which the defendant is required to perform other than the single payment of money. "While it is true," as was said by Mr. Pomeroy, "that in these suits by the vendor there is generally some other act to be done by the purchaser besides the simple payment of money, the performance of which may be enforced by the decree," yet, he adds, "even in those cases, when no such act has been undertaken by him in the contract, he may be compelled to accept the deed or assignment or other subject-matter, as well as to pay the price, so that the decree is not purely one for the recovery of money." Pom. Spec. Perf.§ 6. In the case at bar the plaintiff alleges, among other things, a tender to the defendant of a deed for the land, and that he brings the same into court, and thereby tenders to defendant a transfer of all his rights to such land. Upon this state of facts, the court would be authorized by its decree to compel the defendant to accept the deed, as in fact it has done, as well as to pay the price of the land, so that the decree would not be purely one for the recovery of money. The general rule that a court of equity will take cognizance of contracts sought to be enforced by the vendor, as well as those sought to be enforced by the vendee, is well settled, for Mr. Pomeroy says: "Since the vendee may, by a suit in equity, compel the execution and delivery of the deed, the vendor may also, by a similar suit, enforce the undertaking of the vendee, although the substantial part of his relief is the recovery of money." Pom. Spec. Perf. § 6. "As the vendor of land," says Mr. Waterman, "seeks only the payment of the purchase money, it might be contended that he had an adequate remedy at law, and therefore could not sustain a bill for the specific performance of the contract;" but, he adds, "a moment's reflection will, however, show that damages would not restore him to the situation he would be in if the contract were performed." Wat. Spec. Perf. § 15. Pecuniary damages for the breach of the contract is not what the plaintiff asks or is entitled to receive at the hands of a court of equity. He asks to receive the price stipulated to be paid in lieu of the land. While it is said that specific performance is not a matter of absolute right in a party, but of sound discretion in the court, yet the rule has come to be established, if a contract respecting real property is in writing, and is certain, fair in all its parts, for an adequate consideration, and capable of being performed, it is as much a matter of course for courts of equity to decree specific performance of it as it is for a court of law to give damages for the breach. 2 Beach, Eq.Jur. § 636; Tied.Eq.Jur. § 493.

The second objection to the jurisdiction is based on the fact that the lands which the defendant contracted to purchase are situated in Jackson county, and the suit to enforce the contract was brought in Multnomah county. It is claimed that under section 387, Hill's Ann.Code, the circuit court of Multnomah county had no jurisdiction to enforce the specific performance of a contract in relation to lands located in Jackson county. As a general rule, it is not necessary in equity that the subject-matter of a suit should be corporeally within the jurisdiction of the court, provided that the parties are in person within the jurisdiction, so that they can be personally summoned to answer the complaint; hence the rule established that, where the court has jurisdiction of the proper parties, it may compel them to do equity in relation to lands located without its jurisdiction in another county or state. Tied.Eq.Jur. § 475. "A suit for the specific performance of a contract," said Gray, C.J., "proceeds in personam, and may be maintained in any court of equity which has jurisdiction of the parties, even if the land lies in another state or foreign country." Brown v. Desmond, 100 Mass. 269. See, also, Gardner v. Ogden, 22 N.Y. 327; Sutphen v. Fowler, 9 Paige, 281; Massie v. Watts, 6 Cranch, 148; 3 Pom.Eq.Jur. § 1313. The relief sought by this suit is not to determine title, but to recover the price stipulated to be paid for the land. The decree is in personam, and not in rem; and it would seem, therefore, when the parties are within its jurisdiction, a court of equity may make its decree in personam for the specific performance of a contract for the sale of land in another county, notwithstanding section 387. But, however that may be, if the plaintiff brought his suit in the wrong county, the defendant waived this objection under section 388 by not availing himself of the right to a change of venue to the proper county. We think, therefore, that it is too late to raise this objection after a suit has been tried on its merits.

The next objection is that the contract is not mutual. This objection is based on the well-settled rule that equity will not specifically enforce a contract unless it is mutual in its obligations. But this rule is subject to certain well-established exceptions, to which it is claimed the contract sought to be enforced belongs. The facts show that defendant made an agreement with the plaintiff, in consideration of the payment of a certain sum of money, a part of which was to be retained by the defendant, and a part thereof to be paid to the state of Oregon, whereby he promised to obtain title for the plaintiff to certain school lands belonging to the state of Oregon, and that, as a part of said contract, the defendant made and delivered to the plaintiff his agreement, as follows: "Portland, Oregon February 19th, 1891. I hereby covenant and agree to purchase from S.R. Johnston six hundred and forty (640) acres of land, three hundred and twenty (320) applied for from the state of Oregon by John Harriman, and transferred to him, and three hundred and twenty (320) applied for in his own name, at the...