Merchant Land Co. v. Barbour

Mr. Justice Burnett delivered the opinion of the court. 1. It will be observed that the writing executed by Graham November 8, 1890, and delivered to the defendant does not purport to be a conveyance of any interest in any land, neither does it convey the impression of having been agreed to by Merchant or of establishing any privity of contract between him and the defendant. At best, that instrument can be construed only as attempting to define contractual relations between Graham and Barbour. It is not pretended in the testimony that the defendant ever paid anything whatever to Merchant or his successor in interest, the plaintiff, on account of the realty in question. As to Graham, it seems from the evidence that the paper of November 8,1890, was designed as a kind of bonus to Barbour for his influence to be used in favor of the former in financing the construction of a railroad in Coos County. Nothing appears to have been accomplished in that direction, as Barbour could not float the railroad bonds, and it is certain he paid no money to Graham. The defendant paid no attention to the property in any way, never saw it, and never exercised any act of ownership over it. Called upon by this suit to declare his interest in the real property, the defendant, by his answer and cross-complaint filed September 6, 1910, for the first time, and that nearly 20 years after the transaction he describes, asserts in terms that he is the equitable owner of one half of .the premises and calls upon the plaintiff to specifically perform a contract to convey to him the legal title thereto. Decided May 27, 1913. 2. The pleading does not show any privity of estate or of contract with the plaintiff. Granting, however, that he stood in Graham’s shoes as against the plaintiff for one half of the estate, it is incumbent upon him to perform his part of the dependent covenants of the contract before he can invoke judicial aid to enforce performance by the other party. Not having put anything into the land, it is certain he can take nothing out, at least as against the plaintiff. His grievance, if any, must be adjusted with the man with whom he contracted. His pseudo title cannot rise above its source, R. A. Graham. The latter divested himself of his estate by the deed already mentioned, and with it fell the pretensions of ownership in which the defendant may have indulged. In any event, a decree of specific performance rests in the discretion of the court, and it would be a gross abuse of that judicial prerogative to decree a conveyance to one who has never paid a dollar on the land, besides sleeping on his claim for nearly two decades. The decree of the Circuit Court is affirmed. Affirmed.