126 Iowa 727 | Iowa | 1905
— ■ Helen E. Smith Pratt, being the owner of the undivided one-third of the land in question, and guardian of her minor daughter, who owned the other undivided two-thirds, entered into a written contract to convey the entire property to the plaintiff. In entering into the contract, plaintiff knew the condition of the title, and knew that a conveyance of the daughter’s interest could be had only by authority to be obtained from the court. Proceedings were afterward begun to obtain the necessary authority to make a conveyance, but were dismissed. It appears from
The question presented in argument is upon plaintiff’s demand for substantial damages. It is shown that the land, at the date when it should have been conveyed according to the contract, was worth materially more than the agreed purchase price, and it is plaintiff’s contention that defendant is answerable to him for the margin of profit thus lost. Had defendant represented herself as the owner of the land, and as such entered into the contract to convey it, she would ordinarily be subject to the rule relied upon by plaintiff, and liable to him in damages in the amount by which the market value* of the land exceeds the contract price. . But this rule has been held by us not to apply where, to the knowledge of both buyer and seller, the latter has no title,, and without fraud or bad faith on his part fails to make or convey title in discharge of his contract. In such case there can be no recovery for loss of profits. Foley v. McKeegan, 4 Iowa, 1; Sweem v. Steele, 5 Iowa, 352; Sawyer v. Warner, 36 Iowa, 333; Yokom v. McBride, 56 Iowa, 139; Donner v. Bedenbaugh, 61 Iowa, 269. See, also, cases to same point cited in 29 Am. & Eng. Ene. L.- (2d Ed.) page 724, note 10.
In Gerbert v. Trustees, 59 N. J. Law, 160 (35 Atl. Rep. 1121; 59 Am. St. Rep. 578), the New Jersey Court of Errors and Appeals, after a review of the authorities, overrules its former decisions to the contrary, and holds to the doctrine that when a seller of real estate is, without fraud or wrong on his part, unable to máke the promised title, he
There is. no showing of fraud bn part of the seller in the present case, and we need not, therefore^ consider how far, if at all, we should feel obliged to follow this line of axxthorities. Cornell v. Rodabaugh,, 117 Iowa, 287, is not inconsistent with the conclusion we have reached. There the seller had title, and sought to avoid specific performance because of. an incumbrance which she herself had placed upon the property. She could have conveyed a good title, and could at a reasonable expense have removed the incum-
After a careful review of the record and of the authorities bearing upon the questions presented in argument, we are of the opinion that the decision of the trial court is correct, and it is therefore affirmed.