35 Kan. 228 | Kan. | 1886
The opinion of the court was delivered by
This action, as it was tried in the court below, was an action to compel the specific performance of an alleged contract for the sale and purchase of real estate. The case was tried before the court without a jury, and the court made special findings of fact and conclusions of law, and rendered judgment upon such findings and conclusions in favor of the defendants and against the plaintiff; and the plaintiff, as plaintiff in error, brings the case to this court for review.
“ Upon breach of a contract for the sale of real estate, it is not a matter of course for the court to enter a decree of specific performance. That will be done only when upon all the facts it is equitable it should be done. He who asks specific performance should show the facts which make such a decree equitable; and a failure to do this justifies a refusal of the decree.” (Fowler v. Marshall, 29 Kas. 665, syl., ¶¶ 1 and 2.)
*235 “While in legal contemplation two persons may make a contract that would be enforced at law, yet if it should seem probable from the facts of the case that the parties did not in fact and in equity agree to the same thing, the supposed contract would not be decreed inequity to be enforced specifically.” (Burkhalter v. Jones, 32 Kas. 5, syl., ¶ 1; same case, 3 Pac. Rep. 559.)
The plaintiff did not ask to have his mortgage foreclosed in this case, and therefore there was no error in the failure of the court below to order or adjudge its foreclosure. The plaintiff may still enforce his mortgage in another suit, if he chooses.
This, we think, disposes of all the substantial questions involved in this case.
The judgment of the court below will be affirmed.