Cookson v. James ( 1923 )

Vinje, C. J.

Plaintiffs bring an action for the specific performance of the contract for the exchange of lands. Defendant in his answer says he has fully performed and demands that the plaintiffs be required, to perform by giving the deed contracted for. The court finds that defendant has fully performed. Under such a state of facts there is no room for invoking the aid of a clause in the contract permitting the plaintiffs to demand a return of their property within a year, and the court erred in giving the plaintiffs the option to convey the property or cancel the contract.

While neither party can demand specific performance as a matter of right, where both ask for it and an alternative relief is not requested by either and the facts do not warrant such alternative relief, the court cannot grant it. The court should have dismissed plaintiffs’ cause of action upon the merits and entered judgment requiring the plaintiffs to execute and deliver a deed of the property in question to the defendant within a reasonable time.

The judgment, as if stands, provides for the cancellation of the deed from defendant to Pettera in the event that plaintiffs ask for a cancellation of the contract. But Pettera is not a party to this action and he would not be bound by the judgment. The defendant has nothing to do with the controversy between Pettera and the plaintiffs. He has conveyed as directed by the plaintiffs and is entitled to his deed of the property for which he bargained.

By the Court. — Judgment reversed,'and cause remanded with directions to enter judgment as indicated in this opinion.