216 Mich. 633 | Mich. | 1921
On August 8, 1919, the defendant William Tait Realty Company and the plaintiff entered
On October 8, 1919, after plaintiff’s attorney had completed his examination of the abstract of title and made report thereon, a conference was held in Mr. Cullen’s office and the matter fully discussed. The secretary, assistant secretary and attorney of plaintiff’s company, Mr. Tait representing the Tait company and Mr. Newberry representing the Winnetka company, were present. The plaintiff was then pre
“It developed that the only way we could close was to buy out the thing; everybody wanted the money that they had invested in it, which would bring the property way over what we had agreed, to buy it for; and when we saw that was what the situation was, Mr. Axford (plaintiff’s attorney) said we wasn’t going to get anywhere and we left.”
On October 14th, six days later, plaintiff filed the bill of complaint herein, asking for specific performance by the Tait company of its contract to sell. The bill alleges that the Tait company was the owner of the land at the time the contract of sale was entered into by reason of an agreement with the Winnetka company to sell to it. The Winnetka company and John Dubay as mortgagee were also made parties. The prayer for relief asked that the rights of the several defendants might be determined and plaintiff subrogated to any rights in the lands found to be in the Tait company.
On December 12,1919, the plaintiff procured a warranty deed of the lands from the Winnetka company, paying therefor $1,500. This was made subject to the two mortgages and the taxes assessed for the years 1917, 1918 and 1919.
On May 1, 1920, the plaintiff, by leave of the court, filed a supplemental bill of complaint, setting up the agreement between Dubay and the Tait company and that between Newberry and Rohns (alleging that Rohns was acting as agent for the Tait company in procuring it); its purchase from the Winnetka com-pany; the payment by it of about $2,350 for delinquent taxes, asked that Rohns be made a party defendant, that a determination be made of the respective rights of the. parties, that it be allowed the amount paid by
The trial court dismissed the bill, holding that, as the Tait company had no title, specific performance could not be decreed and plaintiff’s claim for damages should have been prosecuted on the law side of the court. He offered to so transfer it, but such offer was declined. The plaintiff appeals.
The plaintiff insists that it was entitled to a decree ordering the Tait company to convey whatever interest it had in the lands. Its counsel rely on the rule stated in 36 Cyc. p. 740:
“Although the purchaser cannot have a partial interest forced upon him, yet if he entered into the contract in ignorance of the vendor’s incapacity to give him the whole, he is generally entitled to have the contract specifically performed as far as the vendor is able, and to have an abatement out of the purchase-money for any deficiency in title, quantity, or quality of the estate. This is not making a new contract for the parties, since the vendor is not compelled to convey anything which he did not agree to convey, and the vendee pays for what he gets according to the rate established by the agreement.”
This rule is well supported by authorities. Besides those cited in the annotation to the text, we call attention to Eppstein v. Kuhn, 10 L. R. A. (N. S.) 117 (225 Ill. 115, 80 N. E. 80); Murphy v. Hohne, L. R. A. 1917F, 594 (73 Fla. 803, 74 South. 973), and cases discussed and noted in the annotations thereto. See, also, Nelson v. Gibe, 162 Mich. 410.
The difficulty in applying this rule to the facts here presented is that the Tait company has not and never had any title to any part of the land contracted to be
The vendor here had no title which he could be ordered to convey. This fact, while not known to plaintiff at the time the contract was made, was disclosed by the abstract. The conference in Mr. Cullen’s office followed, in the hope that some arrangement might be made between all the parties interested by which the Tait company might secure title and be enabled to perform its contract with plaintiff. The Tait company, having contracted to convey that which it did not own, and not having afterwards acquired any title thereto, could not be compelled to specifically perform its contract to sell to plaintiff.
The rule is thus stated in Pomeroy on Contracts (Specific Performance) (2d Ed.), § ,293:
“The general doctrine is well established, and from the very nature of the case it could not be otherwise that the absolute inability of the defendant to perform his undertaking at all, when called on by the court to do so, prevents a decree against him for specific performance.”
See, also, Waterman on Specific Performance, § 422.
Plaintiff, being informed of the Tait company’s inability to perform, should not have sought relief by bill for specific performance. Its only possible form of relief was an action for damages for breach of eon-
The decree is affirmed, with costs to the appellees against the plaintiff.