13 F.2d 311 | D.C. Cir. | 1926
Appellant, defendant below, bid in the property here in question at public auction on May 28, 1923. One of the terms of sale was, “Good record title or no sale.” The auction was conducted by order of court through appellees, plaintiffs below, as trustees, and the present action was brought to enforce specific performance of the alleged contract of purchase by defendant.
The property consisted of lots fronting on each of two intersecting streets, with a
Tbe case was tried on tbe bill, rule to show cause, and answer to tbe rule to show cause. It is averred in tbe answer, and therefore admitted, that at the time of tbe sale tbe corner vacant lot was owned by tbe Washington Railway & Electric Company; that plaintiff arranged with tbe railway company to lease a large portion of tbe corner lot, with tbe intention of so remodeling the building on tbe property purchased as to open store windows and doors on tbe side walls facing on tbe vacant lot.
Immediately following tbe sale, a title company was instructed to report on tbe condition of tbe title. No report was made until October 20,1923, when it was found that tbe title was defective. Tbe arrangement with the railway company .still being open, defendant informed plaintiffs that she would await tbe perfection by them of tbe title. Plaintiffs consumed five months in an effort to negotiate tbe perfection of tbe title, but their efforts proved futile. Plaintiffs then filed in court a petition, alleging that tbe title bad been found defective and asking leave to perfect the same. To this petition defendant filed an answer, in which she stated that, tbe proposition with tbe railway company being still open, she was willing to complete tbe purchase. Tbe court accordingly authorized the trustees to bring proceedings to quiet tbe title.
Shortly thereafter defendant received notice from tbe railway company withdrawing their proposition to lease her tbe vacant lot, and stating that tbe greater part of tbe property, including all that portion embraced within tbe arrangement with defendant, bad been sold to other parties for tbe purpose of establishing thereon a gasoline filling station. Defendant immediately notified plaintiffs of tbe situation occasioned by the action of tbe railway company, and declared her inability to carry out the contract of purchase at tbe price originally bid. Thereafter, on June 25, 1924, plaintiffs filed a bill to quiet tbe title, and on January 28, 1925, nearly two years after tbe sale, notified defendant, through her attorney, of tbe perfection of tbe title and their readiness to convey tbe property to her. Through her attorney, she then positively refused to earry out tbe agreement for tbe reasons theretofore given. From a decree for specific performance, defendant appealed.
From tbe terms of tbe decree, all that can be considered is tbe petition, tbe rule to show cause, and tbe answer. A large amount of extraneous matter has been improperly brought into tbe record, which will be disregarded. From tbe averments of the answer, it is clear that defendant extended tbe time for fulfilling tbe agreement without consideration, and only upon tbe condition that she would be able to carry out her arrangement with tbe railway company. Tbe right of specific performance depends upon tbe relation of tbe parties with respect to the contract at tbe time of tbe sale. It is clear that plaintiffs at that time were not in position to deliver a good title;' and consequently could not have been compelled to specifically perform their agreement.
It is elementary that tbe right to enforce specific performance depends upon mutuality of obligation. "A contract to be specifically enforced by tbe court must be mutual — that is to say, such that it'might, at tbe time it was entered into, have been enforced by either of tbe parties against tbe other of them. Whenever, therefore, whether from personal incapacity to contract, or tbe nature of tbe contract, or any other cause, tbe contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against tbe other, though its execution in tbe latter way might in itself be free from tbe difficulty attending its execution in the former.” Fry on Specific Performance (3d Ed.) § 440.
Neither did the option to tbe trustees to perfect tbe title form such a new agreement,, or extension of the original agreement, as will support an action for specific performance against tbe defendant. This extension was without consideration, and was definitely withdrawn before plaintiffs filed their bill to quiet tbe title, and more than a year before they filed their bill in tbe present case. Tbe offer or option which defendant gave to plaintiffs to go forward and perfect their title was such an offer as was incapable of acceptance until tbe plaintiffs were in position to fulfill their agreement. They are not in position now to claim aecéptanee through their conduct in perfecting tbe title, since long before this was accomplished tbe offer bad been withdrawn. “Where a contract, when executed, is not specifically enforceable against one of tbe parties, be cannot, by subsequent performance of those conditions that could not be specifically enforced, put himself in a position to demand specific enforcement against the other party.” Norris v. Fox et al. (C. C.) 45 F. 406, quoted with approval in Pantages v. Grauman, 191 F. 317, 325, 112 C. C. A. 61.
Coming to tbe more serious question of tbe equities involved; we think tbe plaintiffs
Plaintiffs’ attempt to avail themselves of the distinction between a suit to enforce the specific performance of a contract growing out of a judicial sale and of a contract between individuals is without avail in this ease. Unlike a contract between individuals, a judicial sale is made pendente lite, with the court as vendor, until there is a judicial confirmation of the sale. The contract growing out of a judicial sale is not, therefore, rendered unenforceable by the lapse of merely sufficient time to procure a confirmation of the sale; hence the fact that a party may have - purchased the property at a price in excess of its value, or disappointing conditions may have intervened, would be no defense against prompt confirmation. But this rule has no application, where there is a defect in title, and the purchase was made upon a guaranty of “good record title or no sale.”
The decree is reversed, with costs, and the cause is remanded for further proceedings not inconsistent with this opinion.
