Dowling v. Bergin ( 1881 )

Campbell, J.

Dowling brought a suit in equity in Livingston county for specific performance. The contract was in writing and free from ambiguity, but the grantor, who is defendant, refused to give a warranty deed, except subject to his son’s claim for the wheat crop on the place.

It appears that a son of defendant had been in possession of the tract of forty acres in dispute, as part of a larger tract, which the father had verbally given him and put in his possession, and on which he had made improvements. It was known by complainant to be his in that sense, and all the preliminary bargaining for the property was between complainant and the young man. They did not come to an agreement, and complainant then went secretly to the father and got Mm to close a contract, wMeh it was agreed should not be made known to the son.

The son was entitled to possession, and owned the wheat. Upon the facts in this case it is by no means clear that he was not equitable owner of the land. Complainant knew that the father could not sell such interests as the son owned, or deprive Mm of any of Ms rights. Under such circumstances we tMnk he must seek his legal remedy against the father, and not ask a court of equity to enforce it by creating complications in the title. The son is not a party to this suit and cannot be bound by the decree, and the complainant has no equities, whatever may be his rights at law.

The decree dismissing the bill should be affirmed with costs.

The other Justices concurred.