Freetly v. Barnhart

The opinion of the court was delivered, by

Thompson, J.

— There is nothing better settled than that a decree for specific performance is not a matter of course, but rests in the sound discretion of the chancellor.. It may be refused, therefore, notwithstanding a contract obligation, if there be circumstances rendering it inequitable, and then the party seeking it is left to his action at law for damages. I know of no case in which specific performance is ever decreed, unless it appears to accord with good conscience that it should be so decreed, be the contract ever so specific in its terms. It is not with abstract and rigid law that equity deals, but with principles of justice and right, which the consciences of men must approve and may be appealed to', to perform. Hence we have refused to decree the specific performance of contracts for the sale of land, unless the vendor can give a marketable title : Nicol v. Carr, 11 Casey 381. It would be against good conscience to force any other title on a purchaser, although his contract may seem to contemplate it. Equity will not compel it, although at law damages may be recoverable for non-performance. Baron Eyre said in Gale v. Gale, 2 Cox 145, that there was “ no such thing as a doubtful title in a court of equity ; it must be either right or wrong, and the thickness of the medium through which the point is seen makes no difference in the end.” So, where the property is indescriptive and uncertain as to location and extent, performance will not be decreed: Hammer v. McEldowney, 10 Wright 334.

Every principle above referred to unites in denying the decree sought here. Badly, very badly, as the facts are presented, it still plainly enough appears that the title offered by the complainants was not only not marketable, but scarcely to be regarded as title to anything. The lease of the Duland tract was clearly defective to the extent of one-third, the party entitled to that being non compos mentis when it was made, if any lease was in fact ever made, for the complainant admits that it is lost. This, of itself, would justify a refusal to decree in such a case as this. The Nelson tract is claimed by other parties, it seems, the parties under whom 'the complainant claims title having forfeited it by failing to improve according to its terms. Such seems also to have been the condition of the Hall lease. A defect in any one of these leases would defeat the right to' specific performance as against the defendant. He was entitled to all or none. The whole thing seems to have been a speculative affair, worth little or nothing. A share"equal to the complainant’s, it was proved, was offered for $100, and one, perhaps the same, sold afterwards for $200.

Poor as was the plaintiff’s show of title, which was to draw after it the tangible and valuable property of the defendant, it was not even conveyed with the covenants promised in the original contract. The conveyance seems to have been thrust into the defendant’s hands when he was about to go and look after the. property it purported to describe ; but, even before he' left with this purpose, and on the same day he received it, he objected that it did not contain the promised covenants to defend the title. As he was going West to look after the property, he took the instrument thus furnished him along, in order to enable him to discover the property and see if it was properly described. His visit seems to have satisfied him on one point at least — that he would not execute his part of the contract. Under the- circumstances, the court below did right in refusing to compel him to do it. If the complainant has suffered damages; he can go into a court of law and recover them; that is his only resort in this case.

The decree of the court dismissing the bill was right, and is affirmed, at the costs of the complainant.