158 S.W. 800 | Tex. App. | 1913
Lead Opinion
This is an action by S. B. Burnett against J. J. Mitchell and wife seeking a decree for specific performance of a contract to convey certain lands in Knox county. The case was submitted to a jury on special issues, and, from a judgment in favor of defendants, the plaintiff has appealed.
The contract whereby appellee J. J. Mitchell bound himself to convey to appellant the lands in controversy was not signed by Mrs. Mitchell and embraced lands occupied and claimed by the Mitchells as their homestead. This contract did not fix the price of the various tracts or any of them as to that, but stipulated for a reference to persons named whose appraisement would be accepted as the price which Burnett was to pay and Mitchell to accept. The individuals agreed upon as appraisers examined the land and fixed a price which was not satisfactory to Mitchell. In his answer it was alleged that these appraisers had not acted impartially but had been unduly influenced by the improper conduct of appellant in “entertaining and treating” them, and that their appraisement was therefore at a sum much less than the real values of the land, and appellees’ principal defense was that such contracts could not and should not be specifically enforced. The jury found that the price fixed .for the lands was not their fair market value but that the appraisers were unconsciously influenced to act partially in the matter, and the verdict named a sum as the fair market value of the lands in excess of that named by the appraisers. They also found the homestead of 200 acres to be worth $12.50 per acre, which is very much in excess of the valuations placed on the remainder of the land. There was an issue of estoppel pleaded and submitted to the jury, but we consider it to be immaterial to the disposition we make of the case.
For the reason that appellant’s petition and the undisputed facts show a case which cannot be specifically enforced as a whole because of the inclusion in the contract of an agreement to convey the homestead, and do not show a case where, by reason of partial performance or other equities, it would be a fraud or even unjust not to enforce the contract otherwise than according to its exact terms, the judgment of the district court in favor of the appellees will be affirmed.
Lead Opinion
This is an action by S. B. Burnett against J. J. Mitchell and wife seeking a decree for specific performance of a contract to convey certain lands in Knox county. The case was submitted to a jury on special issues, and, from a judgment in favor of defendants, the plaintiff has appealed.
The contract whereby appellee J. J. Mitchell bound himself to convey to appellant the lands in controversy was not signed by Mrs. Mitchell and embraced lands occupied and claimed by the Mitchells as their homestead. This contract did not fix the price of the various tracts or any of them as to that, but stipulated for a reference to persons named whose appraisement would be accepted as the price which Burnett was to pay and Mitchell to accept. The individuals agreed upon as appraisers examined the land and fixed a price which was not satisfactory to Mitchell. In his answer it was alleged that these appraisers had not acted impartially but had been unduly influenced by the improper conduct of appellant in "entertaining and treating" them, and that their appraisement was therefore at a sum much less than the real values of the land, and appellees' principal defense was that such contracts could not and should not be specifically enforced. The jury found that the price fixed for the lands was not their fair market value but that the appraisers were unconsciously influenced to act partially in the matter, and the verdict named a sum as the fair market value of the lands in excess of that named by the appraisers. They also found the homestead of 200 acres to be worth $12.50 per acre, which is very much in excess of the valuations placed on the remainder of the land. There was an issue of estoppel pleaded and submitted to the jury, but we consider it to be immaterial to the disposition we make of the case.
A point which cannot be got over and which in our judgment is decisive in favor of an affirmance of the case is this: Appellant's petition discloses that the contract between himself and appellee J. J. Mitchell is not enforceable as a whole because it embraces the homestead of Mitchell and his wife, and the petition in no manner alleges such a state of facts as to make it a fraud or even inequitable not to decree a specific performance of all the lands, less the homestead, with appropriate abatement of the purchase price. The remedy of specific performance of contracts is purely equitable, given as a substitute for the legal remedy of compensation whenever the legal remedy is inadequate or impracticable. 3 Pom. Eq. Juris. § 1401.
Ordinarily where land is the subject-matter of the agreement, the inadequacy of the legal remedy is well settled; and, when the contract and its incidents are entirely unobjectionable (that is, when it possesses none of the features which call in action the discretion of the court), it is as much a matter of course for a court of equity to decree its specific performance as it is for a court of law to give damages for its breach. It is equally well settled, in truth elementary in principle, that ordinarily, unless a court can decree specific performance of the whole of a contract, it will not interfere to enforce any part of it. Young Lock Nut Co. v. Brownley Mfg. Co. (N.J. Ch.) 34 A. 947. Undoubtedly a court is not wanting in power *802
to enforce specific performance in part only as against a defendant who is unable to perform in whole, but the circumstances and exigencies must be such as to demand such course so as to prevent a greater wrong than would follow the court's refusal. The present contract, in so far as it embraces the homestead of appellees, cannot be specifically enforced. Revised Statutes 1911, art. 1115. This would be true even though the wife herself had signed the contract to convey, Cross v. Everets,
Appellant recognizes the impossibility of having a specific performance as to all the land and offers in his petition to do equity with respect to the homestead. It is worthy of note in this connection, however, that he does not offer unconditionally to accept from appellee J. J. Mitchell a conveyance of the lands other than the homestead as a full compliance with the contract. If he had we might be confronted with altogether a different case from what we are now considering. There is practically no disagreement among the authorities and cannot be any question in this state that the contract cannot be enforced as we find it. And just here arises the obstacle to enforcing it in any respect at all. It is that it would entail upon the court the duty of making and enforcing for the parties a contract which they themselves have never made. By way of argument the Supreme Court of Iowa in Townsend v. Blanchard,
Rehearing
On Rehearing.