This is an action to enforce the specific performance of an alleged contract for the conveyance of real estate. The
Monticello, Napa Co., California, June 11, 1879.
Beal Estate Agent, Beatrice, Neh, Dear Sir : Not being acquainted with the name of a real estate agent in your place, you will excuse the omission. I have a farm in Gage county, Neb., which I am very desirous to sell, and want to put it into the hands of some agent who will attend to it promptly. I will sell it very cheap as I am in California sick, and need the money. It is known as the “ Stafford farm ” and has belonged to me and my husband, now deceased, over twenty years, you can see the deed recorded in the Beatrice clerk’s office. It is situated on the Little Nemaha river. It is a fine farm, well watered, and well timbered, with plenty of rich' bottom land. Several years ago, C. E. Moore, residing in the same neighborhood, offered me two thousand dollars for it, but I.did not then wish to sell. I have lately offered •it for eighteen hundred dollars, but if you take it in hand I would like for you to do the best that you can. G. Hill-man, of Hooker, eight miles distant from my place, has charge of it, and has rented it to Peter Stockhouse. I would like to hear from you immediately, and if you will attend to this promptly, it is all that I can desire.
Yours very respectfully,
Address: Mrs.'Julia A. Stafford, Monticello, Napa Co., .California.
Yours of the 11th inst. has fallen into our hands. We will take charge of your land and sell it to the best advantage as soon as possible. Please give us the terms upon which you are willing to sell. It is very hard to get all cash down for land. If you will take one-third down,, and balance in one and two years at ten per cent on deferred payments, we 'could sell quicker no doubt. But give us your terms and we will go to work and sell as quick as possible. Yours,
Somers & Schell.
To this they received the following reply: ■
Monticello, Nara Co., Cal., June 24th.
Messrs. Somers é S'chell, Beatrice, Nebraska: Yours of June 18th, came promptly to hand to-day, and I hasten to reply. The place at $1,800.00 cash, would be very cheap. I would much prefer to sell at that figure for cash, than to get more and wait; but if you cannot sell at that figure for cash, I will take $2,500.00, one-third down, and the balance in one and two years at 10 per cent interest on remainder, with mortgage for security on the place. If possible, I would like to have it sold' before the first of next September. The place is an uncommonly good one, and I am very anxious to sell. Please do the best you can, and thanking you for promptness in the matter, I am yours very respectfully,
Mrs. Julia Staeeord,
Montieello, Napa Co., Cal.
In reply Somers & Schell sent the following,
Sept. 6, —9
Mrs. Julia Stafford, Montieello, California. Dear Madam: We have an offer from M. H. Gartrell, of $1,500.00, for your n. w. one-fourth 1 — 6 — 8, in this county. Will pay $500.00 cash, balance in five annual payments of $200.00 each, with 8 per cent interest." We tried to get better of*549 fer out of him, and told him what your price was. We • .however write you in regard to the matter. Write us by return mail. Yours truly,
Somers & Schell.
The letter received in answer to the above is as follows:
Montioello, Napa Co., Cal., Sept. 12th, 1879.
Messrs. Somers éSchell, Beatrice, Nebraska, Sirs: Yours ■of Sept. 6th is just received. I think the price too low, but as I am in very needy circumstances and must have money, I have after much deliberation concluded to take it. I am anxious for you to sell it, and close the affair as soon as possible, because I need the money at present very much. Yours truly,
Mrs. Julia Stafford,
Montioello, Napa Co., California.
On receipt of the letter of Sept. 12th, Somers & Schell addressed a letter to the defendant at Montieello, California, containing a deed for her to execute to Mr. Gartrell, etc. To this letter they received the following:
Montioello, Napa County, Sept. 30th.
Messrs. Somers c& Schell: Yours of the 16th of September, with the deed, was received by me a few days ago. Owing to the fact that there is no notary public or proper official to sign the deed before, near here, I have been unable to return it and will not be able to send it back for about a week from this day. I therefore thought proper to drop you a line, to let you know the cause of the delay. I may just mention here in this connection, that before sending the mortgage and also the notes, I wish you to have them recorded. Send the notes and mortgage to my address at Germantown, Colusa Co., Cal., in registered letters in care of T. C. Hillman.
Very respectfully,
Mrs. Julia Stafford,
Germantown, Colusa Co., Cal.
On the 3rd of October of that year, a letter dated at
No deed for the land in controversy has been received, and this action was brought by the purchaser to enforce the contract.
The first objection made by the appellant is, that an action of this kind can only be brought where the defendant resides or may be summoned. But this objection is not well taken. An action to enforce specific performance of a contract for the conveyance of real estate is of twofold character, viz: in rein and in personam. In the one case the decree of the court operates directly upon the land. In the other, where the court has jurisdiction of the parties, it may compel them to perform, although the land may be situated outside the state.. Story Eq. Jur., secs. 743, 744. Bailey v. Ryder, 10 N. Y., 363. Newton v. Bronson, 13 Id., 587. Gardner v. Ogden, 22 Id., 327. Cleveland v. Burrall, 25 Barb., 532. Fenner v. Sanborn, 37 Id., 610. Burrall v. Eames, 5 Wis., 260. There is no doubt that an action may be brought against a nonresident in the county where the land in controversy is situated.
The second objection of the appellant is that the plaintiff has an adequate remedy at law in an action for damages. The rule contended for by the appellant undoubtedly applies to contracts for the sale, of persbnal property, the reason being that damages in such eases are readily calculated on the market price of property such as wheat, corn, wool, etc,, like quantities of the same.grade being of equal value, and thus afford as complete a remedy to the purchaser as the delivery of the property. Adderley v. Dixon, 1 Sim. & Stu., 607. But the rule is a qualified one and is limited to eases where.
The third objection is that there is no evidence as to the defendant’s title to the land in controversy. There is a clear distinction between 'the case of a vendor seeking to compel a vendee to accept the vendor’s title and perform the contract and that of a vendee resorting to an action in equity to require the vendor to perform. In the first instance, if the vendor cannot convey the title he professed to have and to have sold, the court will not compel the vendee to accept a less title than that contracted for; but this rule does not prevail where the vendee insists upon the performance of the contract, and is willing to accept the vendor’s title. Waters v. Travis, 9 Johns., 450. Sutherland v. Briggs, 1 Hare, 34. White & Tudor’s Leading Cases, 24.
The fourth objection is that there is no contract in ■writing'. Our statute provides that “every contract for the leasing, for a longer period than one year, or for the sale of any lands, or any interest in lands, shallbevoid unless the contract, or some note or memorandum thereof, be in writing, and signed by the party by whom the
Chancellor ■ Kent, in Clason r. Bailey, said that the weight of the argument was in favor of the construction that the agreement concerning lands should be mutually binding, and the same views were expressed by Yerplank, senator, in the court of errors in Davis v. Shield, 26 Wend., 362, but both agreed that the law was well settled the other way both in this country and England. A change to conform to the views of Chancellor Kent Was afterwards recommended by the revisors of the New York
It is sufficient if the contract or memorandum thereof is signed by the party to be charged, that is, by the vendor ; but in this case the testimony tends to show that Somers and Schell were the agents of both parties, or middle men, and that, as such agents, they made the proposition of the plaintiff so that he would be bound by their acts in that regard. And, independently of such agency, bringing this action is an affirmance of his liability. If the signature of Mrs. Stafford is genuine we therefore hold that the contract is sufficient to entitle the plaintiff to recover.
A more serious question, however, arises as to the evidence of the signature of the defendant. The admission of the letters was objected to by the defendant. The entire business was carried on by correspondence, and there is no testimony in the record tending to show that these letters were written or signed by the defendant or by her
Reversed and Resianded.