McCarthy v. Cough

Vanderburgh, J. The complaint shows that the defendant Couch contracted to sell the lot in controversy to the defendant McKay. The terms and conditions of this contract do not appear. Thereafter McKay, by his agent, entered into the contract with plaintiff for the sale ■of the same land as set forth in the complaint. It is also alleged that plaintiff is ready and willing to perform this contract on his part, and that the defendant McKay refuses to complete his contract with Couch, who has the legal title, but that Couch, who was cognizant of plaintiff’s contract with McKay, is willing to complete his contract with the latter, “or to convey to the plaintiff directly, as shall be con-wenient to all parties interested.” It does not appear that the plaintiff is willing to accept the equitable interest or title of McKay, or any ■other than a title in fee absolute. The plaintiff asks that the defendant Couch may be decreed to convey to the defendant McKay on the conditions agreed on, and that the latter specifically perform his agreement with the plaintiff. Here there are two separate and independent agreements, and there is no privity between the respective parties thereto. The plaintiff is not a party to or assignee of the first contract, which is still executory on both sides, and neither of the [125] parties thereto can be compelled, at the instance of this plaintiff, to enter into a litigation to compel the specific performance of that contract as between themselves. If McKay had fulfilled his part of the contract with Couch, and the latter were simply holding the legal title unconditionally as trustee, then McKay’s omission to take the title would not be permitted to defeat the plaintiff’s application • for specific performance, especially if Couch consented. But no such case is here presented. This case is to be distinguished from Gill v. Newell, 13 Minn. 430, (462,) where Newell purchased land of Lash, with plaintiff’s money, for him, and under an agreement with him that such contract of purchase should inure to his benefit, Newell being the mere agent or conduit for securing the title; and the court held the plaintiff to be the equitable assignee of Newell. It also differs from the case of Thompsons. Myrick, 20 Minn. 184, (205,) where the defendant agreed to secure the title to certain land for the plaintiff, and, having subsequently acquired it, and caused it to be transferred to his wife, a specific performance was rightly decreed. These were cases where the court acted upon the parties to specific contracts, or their assigns. Order affirmed.