| Mich. | Nov 1, 1888
The bill in this case is filed to obtain a decree for the specific performance of a contract reading as follows:
*313 “ Riverton, Neb., October 31, 1885.
“Due David S. French, attorney in fact for Hicks, Bennett & Co., eighteen thousand three hundred and sixty-six dollars ($18,366.00), being the balance on consideration of one-half interest in personal property and lands this day Bold Robert M. Steel, John Hicks, William S. Turck, and Townsend A. Ely; above sum to be paid by assignment of a certain mortgage on lands in Gratiot county, Michigan, to said David S. French, attorney, for $2,000; and balance of sixteen thousand three hundred and sixty-six dollars ($16,366) to be paid by promissory note due and payable on or before five years from date, with annual interest at seven per cent, per annum, said note secured by mortgage on the undivided one-half interest in said ranch property, as collateral security for payment of said sum of sixteen thousand three hundred and .sixty-six dollars, and interest as aforesaid.
“ Wm. S. Turck.
“Townsend A. Ely.”
The bill states that at the time the note was given the -complainants were a firm located and doing business under ■the name of Hicks, Bennett & Co., in Michigan, and were seized of a large quantity of lands in the county of Franklin, in the state of Nebraska, the particular description of which is fully set out in the bill; that on that day said firm, by David S. French, its attorney in fact, conveyed, by full covenant warranty deed, the lands described in the bill to John Hicks and Robert M. Steel, who resided at St. Johns, Mich., and the defendants, who resided at Alma, Mich., for the sum of $32,732; that the purchasers upon said sale entered upon said premises, and ever since have had the actual possession thereof.
That on the same day Hicks, Bennett & Co., sold to the .grantees in said deed all the cattle, stock, hay, grain, farming implements, tools, and other personal property on said land for the sum of $10,000; that in consideration of the premises, and in payment to the complainants for the undivided one-half of the said real and personal property, Turck and Ely, who knew all about the
That the said $2,000 mortgage was assigned, as promised, by the said defendant Turck, but the said defendants refused to and have not made the note and mortgage-to complainants for the $16,366, as they agreed to do, and still refuse to comply with complainants' request for them so to do.
Complainants further say and aver in their .bill that-they have complied in all things with and fully kept their agreement with said defendants, and performed all its-requirements on their part in the premises, and are now entitled to have said note and mortgage from said defendants-as they promised to make them, in accordance with the written agreement hereinbefore referred to, and which was, after being made by defendants, duly given to said French, for the complainants, who now have the same.
The complainants ask the court, upon the foregoing-facts, to decree that defendants specifically perform their agreement with the complainants, and execute and deliver to them said note and mortgage. The defendants-
1. That the facts set up in the bill are not sufficient to entitle complainants to the relief prayed.
2. That complainants have a complete and adequate-remedy at law touching all matters set up in the bill.
The cause was heard before Judge Smith in the Clinton circuit, who made a decree overruling the demurrer, and allowing defendants 20 days in which to answer.
"We are satisfied this decree was proper. The defendants had received the full consideration for what the-complainants asked. The complainants might have had a remedy " at law; but we are by no means sure it. would be an adequate one. On the contrary, the remedy at law, when resorted to, is liable to a very great, variety of perplexities' and embarrassments arising from the want of the note promised, the refusal to give which is a gross violation of their contract, for which the demurrer concedes no excuse can be given. The note was liable to run five years, and complainants had the right to have the amount owing thereon during all the time it. did run secured by the mortgage. The land was not. within the jurisdiction of the courts in this State. It. could be easily transferred to bona fide holders, and the-perils of insolvency are not beyond the possibilities among business men, as all experience shows. All these are circumstances of more or less embarrassment when the remedy at law is resorted to. It is but equitable and just that this contract should be specifically performed upon the showing made in this bill.
This bill is not filed for an accounting, nor to enforce payment of a debt, but to compel a party to comply with his promise, after receiving the full consideration upon which it was made, to make and execute evidence of indebtedness, and give security for the payment thereof.
The decree below will be affirmed, and the cause remanded, with instructions to the circuit judge to allow defendants 20 days in which to answer the bill after remittitur shall have been filed.
The complainants will recover their costs.