88 N.W. 87 | N.D. | 1901
Lead Opinion
This is an appeal from a judgment rendered by the district court of Towner county, and the case is in this court for trial de novo. The cause of action as stated in the complaint is, briefly, as follows: That on May 24, 1897, defendant was seized in fee simple of certain real property (describing same) ; that on said date plaintiff and defendant entered into a parol agreement whereby the plaintiff agreed to buy and defendant agreed to sell said property for the sum of $750, to be paid for on or before five years from November 1, 1897, that said sale and purchase were made upon crop contract plan and provided among other things that the plaintiff should during the year 1897 break and prepare for crop for the year 1898, 83 acres of said land; that plaintiff did so break said number of acres during said year, and had the .same ready for crop at the time of the commencement of this action; that thereafter, in accordance with the terms of said agreement, plaintiff made and executed his certain crop contract for the sale of said lands, in writing, but that said defendant fails, neglects, and refuses to sign, execute, and deliver the same, although due demand has been made that defendant keep and perform his part of said contract; that said agreement provided, among other things, that said defendant should make, execute, and deliver said contract after this plaintiff had broken, backset, plowed, and cultivated said 83 acres, and prepared the same for crop for the year 1898; that immediately after entering into said agreement, and under and by virtue thereof, plaintiff entered into possession of said premises, and ever since has been and now is in possession thereof; and that he is complying with the terms of said contract on his part to be kept and performed, and that plaintiff is still ready and willing to perform all the conditions on his part in said contract to be performed; and tile prayer for judgment is that the defendant he compelled to execute to the plaintiff a sufficient contract in writing for the sale to plaintiff of the premises described, and for general relief. The action was tried and judgment rendered in the district- court in favor of the plaintiff adjudging, among other things, that defendant make, execute, and deliver to plaintiff forthwith a contract in writing for the sale by him and the purchase by plaintiff of the real property in question, and that such contract do have the same force and effect as though the same had been made and delivered on May 24, 1897. It was further adjudged that, in case of the failure of said defendant to make and deliver forthwith to plaintiff a contract
The view we take of the case renders it unnecessary for us to examine any of the questions of law or fact determined by the trial court and we shall refrain from so doing, as the questions cannot properly be litigated in this action. We are of the opinion that the complaint fails to state a cause of action. The relief prayed for and which was granted in the lower court is to compel defendant to execute and deliver to plaintiff a certain written contract for the sale and purchase of real property. Such relief will not be granted. Parties will not be required to make contracts. Courts may enforce, but not make contracts. See 22 Am. & Eng. Enc. Law, p. 932, and cases cited. A court of equity in certain cases will compel specific performance of contracts, but we know of no authority holding that a court of equity will compel parties to sign contracts, and then decree specific performance thereof. The plaintiff must always allege and prove full performance on his part, or a tender and offer of performance, prior to commencing his action. The plaintiff in the case at bar not only has not performed or tendered performance on his part, but the time for such performance had not arrived when this action was commenced. We do not understand that specific performance will be adjudged in advance of the time when performance is required under the terms of the contract, and hence this action is permaturely brought.
Plaintiff's rights, if he has any, under the alleged contract, will not be impaired by lapse of time. He is in possession of the land, and this is notice to the world of whatever rights he may have, and until such time as his cause of action for specific performance accrues he may take proceedings to perpetuate the testimony as to his rights; but, having seen fit to rest the contract in parol, he cannot ask a court of equity to compel the other party to reduce the same to writing, and then, in advance of performance on his part, or tender of such performance, and in advance of the time when performance is required from the defendant under the terms of the contract, ask the court to decree specific performance. We know of no principle authorizing such relief under these facts.
In justice to the learned judge who tried this case in the district court, we desire to szy that this point was not raised or suggested in that court.
For the foregoing reasons, the judgment of the district court must be reversed, and the action dismissed; and it is so ordered.
Concurrence Opinion
T concur in the opinion as formulated by Judge Fisk, but I deem it my duty to go further, and say that from my standpoint there is no evidence in the record tending to show that the plaintiff has at any time or in any manner entered into any valid agree
