Pack v. . Gaither

Settc,b, J. A specific performance of the contract cannot be decreed in this case, because it is not practicable. It is true, the plaintiffs have complied with their part of the contract, but the defendant never had, either at the time of executing the said contract or since, a deed for the land, the conveyance of which is now sought to be enforced. He had bid it off .at a Clerk and Master’s sale, prior to the rebellion, and had given his note, with security, for the purchase money, but the sale (the defendant and his surety having both become insolvent.) was set aside, and a second sale was ordered by the Court, when another party became the purchaser. The defendant is a discharged bankrupt, and was such at the commencement of this action. How is it possible for him to comply with his contract ? It is certain that he has not the land, and it is almost certain that he has not the means with which to purchase it. The Court will not decree either a vain or an impossible act to be performed. Adams, at page 81, says: “If the defendant cannot fulfill the contract which he has made, it may be ground for exempting the plaintiff from costs on the dismissal of his bill, but it cannot authorize the Court to decree an impossibility. Such, for example, is the case where the vendor of property has no estate, or only a limited estate therein; where he holds it as a trustee without authority to sell; or where, bemg the absolute owner at the time of his contract, he subsequently conveys to a stranger who is ignorant of the prior sale, and is therefore bound by no equity to give it effect. “ In this la’st case, the vendor’s misconduct may be a ground *98 for charging him with costs, but a decree for performance of the contract is obviously impossible,” &e. If the defendant either had title to the land, or could procure it by any reasonable means, the plaintiffs would undoubtedly be entitled to have a specific performance of the contract; but to make such a decree in this case, would simply amount to the perpetual imprisonment of the defendant, without accomplishing the object sought to be obtained. The judgment of the Superior Court is affirmed. Peb CnRiAM. Judgment affirmed.