287 F. 508 | 8th Cir. | 1923
In December, 1917, two of the defendants, appellees here, Thomas J. Hamilton and Roy J. Scott, agreed in writing to purchase from one Chambers and his wife a tract of. land in Montana for the'sum of $52,500. Seven thousand dollars was paid down, and a $20,000 note, secured by a mortgage on the property in question, was contemporaneously executed. The note was signed by Chambers and his wife, Hamilton alone, and Scott and his wife. The $20,000 mortgage which secured the same was executed by Chambers and wife, Hamilton and his wife, and Scott and his wife. A $1,500 note and mortgage was also executed by all the defendants. The proceeds of these mortgages went to Chambers, and by the contract in question defendants Hamilton and Scott assumed and agreed, to pay the same. It was further agreed in the contract referred to that the balance of the purchase price, amounting to $25,000, should be paid as follows: One-half of all grain and hay crops raised and harvested
The defendants apparently complied with the terms of the agreement during the years 1918 and 1919, and thereafter refused further to perform. Chambers, a resident- of Montana, assigned his interest in the contract to the plaintiff, Alexander, appellant here, a resident of Minnesota. Before this suit was filed the mortgagee had commenced an action of foreclosure'in Montana on the $20,000 note and mortgage. It will be observed that the plaintiff was not a party to, nor is he obligated on the mortgages or notes. He is merely a creditor of Hamilton and Scott, holding the contract as security, with no personal obligation as to the incumbrances; and to protect his security he prays for specific performance, requiring the defendants, residents of Nebraska, to- sow and farm the 400 acres of land situated in Montana, and to harvest, haul, and deliver the crops at the point designated. Plaintiff further prays the court to require the defendants to pay to the holders of the notes representing the mortgage indebtedness, what is due thereon in the way of principal and interest, and to pay the taxes, all of which it is alleged is in default. Judgment is also asked for $2,136 delinquent interest alleged to be due, and for $25,000 damages. Defendants Hamilton and Scott filed a motion to dismiss, and the other defendants, Maggie Wilson Hamilton and Ethyl Maude Scott, filed similar motions separately.
In general the grounds of the motions were failure of the complaint to state a cause of action either in equity or at law, that the court was without jurisdiction to grant the relief sought, and on the further ground that it appeared on the face of the amended and supplemental complaint that the matter in controversy in the suit did not exceed, exclusive of interest and costs, the sum of $3,000; further, that there was a misjoinder of parties defendant.
“Finally, the contract must be such that the court is able to make an official decree for its specific performance, and is able to enforce its own der cree when made.”
Shubert v. Woodward, 167 Fed. 47, 92 C. C. A. 509, the leading case in this circuit, considers the wisdom of a court of equity undertaking the specific performance of a contract running over a series of years, and says (167 Fed. 54, 92 C. C. A. 516): -
“The specific performance of a contract by a court of equity is not a matter of right. It rests in the discretion of the court, not in its arbitrary whimsical will, but in its sound judicial discretion, informed and directed by the established principles, rules, and practice of equity jurisprudence. Hennessey v. Woolworth, 128 U. S. 438, 442, 9 Sup. Ct. 109, 32 U Ed. 500. Nor are these principles and rules and this practice hard, fast, or without exception. They are rather advisory than mandatory, and the application of the rules and of their exceptions to each particular case as it arises is still intrusted to the conscience of the chancellor.”
On page 55 of 167 Fed., on page 517 of 92 C. C. A.:
“Courts of equity have no efficient means, and therefore will not ordinarily attempt, to constrain an individual to' perform personal acts which require special knowledge and experience and the exercise of skill, discretion, and cultivated judgment” — citing cases.'
And further, on page 56 of 167 Fed., on page 518 of 92 C. C. A.:
“But in the absence of such public interest, or such controlling equities, or of clear evidence that irreparable injury will probably result to the complainant if it withholds the relief sought, a court of equity does not constrain, and it ought not to compel, the enforcement of the specific performance of a contract which cannot be consummated by a speedy, final decree, but which involves the supervision of a continuous series of acts which must extend through a long period of time and which will' require the exercise of special knowledge, judgment, and experience.”
See, also, Willard v. Tayloe, 8 Wall. 557, 19 L. Ed. 501, and Town of Laurens v. Northern Iowa Gas & Elec. Co. (D. C.) 262 Fed. 712.
The plaintiff further urges that he has a right to maintain this action' to specifically compel the payments of the note and mortgages, because, he occupies the position of a surety. Our attention has not been called to any obligation assumed by him as such, or any liability that.he is under to pay the indebtedness on default by the defendants. Plaintiff did not give the mortgage, did not sign the notes, and has never assumed any personal liability to the holder thereof; and even if this could be held to be such' an action, the' relief prayed for could not be granted- without making the creditor, to whom the money is admittedly owing, a party, so that the exact amount due could be determined. In the foreclosure suit begun in Montana, to foreclose' ithe mortgage; the amount due thereunder can be properly determined.
For the reasons stated, the judgment of the lower court was right and is affirmed.
