The opinion of the court was delivered by
Brewer, J.:
The defendant in error brought his action in the district court of Labette county against plaintiff in error *343and one Josiah Kuykendall to compel a specific performance of a contract to sell real estate. In his petition he alleged a written contract on the part of Bassett to sell him the real estate at any time within eight days on the payment of $3,500; that Kuykendall had notice of this written contract; that within the eight days he tendered the $3,500 and demanded a deed, but that Bassett, combining with Kuykendall to cheat and defraud him, refused to convey, but sold and conveyed to Kuykendall for a greater sum than $3,500. He asked a decree compelling Kuykendall to convey to him upon payment of the $3,500, and requiring Bassett to join in the conveyance, and enjoining Kuykendall from selling or incumbering the premises in any manner. Bassett and Kuykendall filed a joint answer in which Bassett admitted the contract, but denied everything else, and Kuykendall admitted purchasing from Bassett and denied the other allegations. The case was tried by the court without a jury. Findings of fact and conclusions of law were made, and judgment entered in favor of Woodward. The testimony was not preserved, so that the case is here simply on the pleadings, the findings and the judgment. The findings sustain the allegations of the petition. In addition the court finds the terms of the sale from Bassett to Kuykendall, to-wit, cash $2,000, and note and mortgage for $1,700, and that the sale had been consummated. Upon these facts it would seem clear that Woodward upon payment of the $3,500 was entitled to a decree for a specific performance. Such a decree was entered, and so far at least as Woodward is concerned we see no error in it. Counsel for plaintiff in error claims that the prayer for relief, in the petition does not warrant the decree. The decree commanded Kuykendall, upon payment of the $3,500, to execute a 'conveyance to Woodward, and Bassett to execute to Woodward an assignment of the mortgage and to surrender the- notes secured thereby to Kuykendall. It was the duty of the court in framing its decree to see that such conveyances and instruments were executed by the defendants as would secure to the plaintiff *344that which he had contracted for, a clear and perfect title to the premises. This was done, and only this. It does not appear that the attention of the district court Avas called to the fact that the prayer for relief did not speak of an assignment of a mortgage. We certainly should not disturb a judgment on account of a variance so purely immaterial. It may be that the court erred in not directing specifically the payment of $2,000 to Kuykendall and $1,500 to Bassett, but that is a matter in which Woodward is not the only party interested. If any error of that kind occurred, it can be corrected only by a proceeding in error to Avhich Kuykendall also is a party defendant.
The judgment will be affirmed.
All the Justices concurring.