Flattau v. Logan , 2 Buchanan 338 ( 1907 )

Leamtng, V. C.

It seems manifest that a decree of specific performance cannot properly be made in this case. If the prior recorded agreement for the sale of the land in question is a valid and subsisting agreement, and the bill does not suggest to the contrary, the equitable title to the lands has passed from defendants and they cannot be regarded as the owners of the lands which the bill seeks to compel them to convey to complainant. The pendency of the condemnation proceedings, in like manner, renders it impossible for defendants to convey the land to complainant in the manner agreed. It has been repeatedly held by this court that it will not decree the specific performance by a vendor of a contract for the sale of land where the vendor is not the owner of the land which he has agreed to convey. The inability of tho court to enforce such a decree is alone a sufficient ground for its refusal to act in such cases. Welsh v. Bayaud, 21 N. J. Eq. (6 C. E. Gr.) 186; Peeler v. Levy, 26 N. J. Eq. (11 C. E. Gr.) 330; Ten Eyck v. Manning, 52 N. J. Eq. (7 Dick.) 47; Hopper v. Hopper, 16 N. J. Eq. (1 C. E. Gr.) 147, 149.

It is frequently said, in cases of this class, that inasmuch as the vendee cannot enforce specific performance against his vendor, who is without title, such a vendor will not be permitted to enforce the contract against his vendee. Contracts of this-class are therefore frequently regarded as without that mutuality of obligation and remedy which should exist to entitle them to be specifically enforced at the instance of either party. Ten. Eyck v. Manning, supra.

I find the motion of defendants to be well founded and will advise a decree dismissing the bill.