Hurlbut v. Kantzler

Mr. Justice Dickey delivered the opinion of the Court: Waiving all other objections to the relief sought by appellant in his bill, there is one objection which we regard as fatal to his claim. It is obvious that no effective and valid assignment of this lease could have been made by Kantzler without the consent of the board of education, and the board never did consent to such an assignment to Hurlbut,—and Crilly & Blair can not now assign to Hurlbut without such consent of the board. Kantzler having surrendered his lease, and the board having executed a new one to Crilly & Blair on different terms and running for a much longer time, it has become impossible for the court to specifically enforce the contract. The complainant hag no equities against the board of education,- and no.right, legal or equitable, to require them to consent to the assignment of either of the. leases, in whole or in part. A party leasing has a right to prohibit any assignment-of the.lease without his assent, otherwise he -might have his property occupied by a tenant he would not trust, or by one under no personal covenant to pay the -rent. In Fry on Specific Performance,-sec. 536, it is said: “The court will not compel specific performance of a contract unless it can execute -the whole- contract. ” In 3 Parsons on Contracts, (7th ed.) 362, the author says: “If one promising to sell land has no title to it, and the buyer knows this, and the seller is unable afterwards to acquire title, a decree (for specific performance) will not be granted, ”—citing Love v. Cobb; 63 N. C. 324. Again, on page 361, he says : “A vendor will not be ordered to make a sale of a- thing, or give a deed of land, when he has no legal title, ”—citing Malden v. Fyson, 9 Beav. 347. In 3 Pomeroy’s Eq. Jur. sec. 1405, the author says: “The contract must be such that its specific enforcement would not be nugatory. * * - * Although the contract, by itself, can be specifically enforced, the defendant must also have the capacity and ability to perform it, by obeying the decree of the court. * * * Finally, the contract must be such that the court is able to make an efficient decree for its specific performance, and is able to enforce its own decree when made.” There, is no allegation in the bills, or proof, that the consent of the board of education will be given, or ever was given. On the contrary, the proof is that the board refused to consent to the assignment of the original lease to the complainant, and did consent that it might be transferred to Crilly & Blair. If the court can not compel the board to consent to any assignment to complainant, how can it secure the execution of a valid and binding transfer of the lease ? Since the dismissal of the bill as against the board, the court has no pretence of power to make a decree compelling its consent to the transfer of either lease. Hurlbut, at the time he took the contract from Kantzler, knew that the latter could not transfer his leasehold interest without the express consent of a third party, against whom he could claim no rights, legal or equitable, and consequently took his contract under such circumstances as to make its validity and effectiveness depend upon the exercise of the will of another under no obligation to do any act for him or for his benefit. Hurlbut having accepted this contract with a full knowledge of this provision in the lease, can not have damages in a court of chancery in lieu of specific performance, and for the same reason is not entitled to have Grilly & Blair declared to hold as trustees for him. We think the decree was right. The judgment of the Appellate Court is therefore affirmed. Judgment affirmed.