Joyner v. . Crisp

Brown, J. In tbe view we take of this case, it is unnecessary to consider tbe first exception of tbe defendant, in respect to tbe refusal of tbe court to make one O. L. Joyner and others parties to tbe action. If tbe contract is one which a court of equity will not require to be specifically performed, then a defect of parties is of no material matter. His Honor ruled that tbe contract is one upon its face with which tbe plaintiffs cannot comply, and, therefore, a court of equity will not attempt to enforce it, and consequently in respect to a decree compelling partial performance, as asked by tbe defendant, bis Honor was of opinion that tbe contract was intended as an entirety, and must stand or fall as such, and that *202 the court will not under the circumstances compel partial performance of the contract and require abatement of the price. The facts are, as appears by the pleadings, that the property in question, known as the Peebles place; belonged to the feme plaintiff for her life, and after her death to her children, some of whom are minors. At the time the contract referred to was entered into between the plaintiffs and the defendant, the defendant admits he knew the status of the title, and there is nothing in the pleadings themselves which indicates, or even alleges, that any imposition was practiced upon the defendant, or that he entered into this contract except with his eyes open. The contract upon its face indicates plainly that it does not lie within the power of the plaintiffs of their own will to comply with it. It appears upon its face that the plaintiffs own practically nothing but a life estate, and that the only method to carry out the contract was by appealing to the judicial tribunal to decree a sale of the infants’ estate. The following excerpts from the contract is plainly indicative that resort to a judicial tribunal was absolutely essential to its performance, viz.: “This option is to remain in force for ninety days, or until such time as the parties of the first part can obtain by special proceedings in the Superior Court of Pitt County a judicial decree confirming to the party of the second part a fee-simple title.” Again, “Upon the performance of the above stipulations by the party of the second part, the parties of the first part will agree to execute in their own proper persons and by the decree of the Superior Court a deed in fee simple,” etc. The plaintiffs in this case had no power to enter into a contract to sell their children’s land, and a mere promise to resort to a court for the purpose of decreeing a sale of it cannot possibly be enforced, for it is beyond the power of the plaintiffs to predicate what the judgment of the court may be. Upon this principle it is held that a party cannot recover upon a contract wherein a guardian, who owned certain interest in land of which his ward was part owner, agreed to institute and to carry through court proceedings necessary to the con *203 summation of a sale or exchange of such property. Zander v. Feely, 47 Ill. App., 660; LeRoy v. Jacobsky, 136 N. C., 444. There have been cases where guardians have entered into such contracts, and upon failure to perform them have been held liable in damages personally. Mason v. Waitt, 4 Scam., 127, and Mason v. Caldwell, 5 Gilman, 196. But we find no instance where such contract has been specifically performed by decree of court, unless it was to the ward’s interest. In regard to the contention that the defendant is entitled to the partial performance and conveyance of the life estate, and damages in the way of abatement of the price, it may be said that we recognize the general rule that where the veudor has not substantially the whole interest he has contracted to sell, yet the purchaser can insist on having all that the vendor can convey, with compensation for the difference. But in this case it is apparent on the face of the. contract that it was to be performed as a whole — stand or fall as an entirety — and, therefore, it cannot be specifically enforced as to part. It is admitted by the defendant in his answer that he knew that the land in fee belonged to the plaintiffs’ children. It seems to be well settled that the rule that when a person makes a contract for the sale of real estate in which he has only limited interest, he may be compelled in equity to convey as much of the property as lies in his power to convey, with a deduction from the agreed price, does not apply where the purchaser at the time of the sale had notice of the defect in the vendor’s title. Knox v. Spratt, 23 Fla., 64; 26 Am. and E. Ency., p. 84. For the reasons given, we think the contract is one which cannot be specifically performed, nor can the defendant recover damages for a failure on the part of the plaintiff to perform it. The judgment of the Superior Court is Affirmed.