Scott, Judge,
delivered tbe opinion of tbe court.
1. Tbe irregularities committed in tbe progress of this suit are such as cannot be sustained. When a bill is filed for a specific performance of a contract for tbe conveyance of lands, we are not aware of any principle of tbe law governing courts of equity, which warrants tbe order that was made on tbe application of tbe complainant, that tbe defendants then before tbe court should answer and defend for all the defendants in tbe cause. In some cases, as in tbe instance of creditors seeking an account of their deceased debtor’s estate, for tbe payment of their demands, a few suing on behalf of the rest may substantiate tbe suit, and tbe other creditors may come in under tbe decree. So a bill may be brought by a lord of tbe manor against some of tbe tenants, or by some of tbe tenants against tbe lord, upon a question of common ; or by a parson for tithes against some of tbe parishioners, or by some of tbe parishioners against tbe parson, to establish a general modus. (Harrison’s Chan. 1 vol. 77.) But no case can be found, in which such permission was given in a suit of tbe character of that now under consideration.
2. This was a suit instituted before tbe present practice act went into operation; consequently, it was subject to tbe laws in force governing chancery practice before that event. No replications were filed to tbe answers. In a bearing on such a state of pleadings, the answer is taken for true, if responsive to tbe bill.
*2288. The fact is set up in the answer that McQueen disclaimed the relation of tenant or purchaser under Chouteau’s heirs. He withstood an action of ejectment and set up a title in himself. This does not consist with the fact that, as assignee of Grimes, he made the improvements for which he claims compensation. If he had really considered himself as the assignee of Grimes, and claimed as such, it was singular that he should defend the ejectment. Why did he not let judgment go in that action, and, enjoining the proceedings on it, show his equitable title to one of the tracts, and not claim all four of them, as he did ? But it was not until he was defeated in a regular action at law, in which he asserted a right adverse to Chouteau’s heirs, that he thought about the contract made by Grimes with the defendants. The fact of his taking an assignment avails nothing in opposition to such conduct. If he acted in bad faith towards the defendants, and made his improvements with a determination to hold the land in despite of them, he cannot now complain that they withhold compensation for those improvements.
4. But what is deemed conclusive in bar of the right of the complainant is, the consideration that the contract was not assignable iii the way in which it was effected. Chouteau’s heirs stipulated to convey one of the four quarter sections, at the choice of Grimes. Now the right of choice is, not assignable. It is strictly personal. The contract that the heirs would convey the quarter section selected by Grimes, is different from one to' convey the quarter section made choice of by the complainant. Grimes and McQueen could not change the contract, and then insist on its performance by parties to it, who did not consent to the change. The defendants have a right to say, this is not the contract into which we entered. If Grimes had made the improvements on the four quarter sections, which would have entitled Chouteau’s heirs to a right of preemption, then he should have made choice of one of them, and assigned it to McQueen. But by the case as made, it appears that the right of election was assigned to McQueen, which it is clear could not be done.
*2295. It was admitted on tbe hearing of this cause that, before this suit was brought, the defendants had conveyed away the land in controversy. They had offered previously to convey to McQueen, on his compliance with the terms of the contract. This he failed to do. In cases similar to this, courts of equity have refused to decree a specific performance of the contract, and have refused to entertain the bill for the purpose of compensating the complainant for damages, but have left him to his action at law on the agreement. In the case of Hatch v. Cobb, (4 J. C. (N. Y.) R. 559,) it is said that it is doubtful how far the court has juris - diction to assess damages merely in such a case, in which the plaintiff was aware, when he filed his bill, that the contract could not be specifically performed or decreed, as it was a matter of legal cognizance; that though equity, in very special cases, may possibly sustain a bill for damages on a breach of contract, it is clearly not the ordinary jurisdiction of the court. This doctrine is confirmed in the subsequent case of Kempshall v. Stone, (5 J. C. Rep. 193,) in which it was held that a defendant, who had entered into an agreement with the plaintiff for the sale of a lot, and who, after the time of performance had elapsed, sold and conveyed the land to a third person for a valuable consideration, without notice of the agreement, and before the filing of a bill by the complainant for a specific performance of it, would not be compelled to a specific performance, but that the plaintiff’s remedy was at law, for a compensation in damages for the breach of the agreement.
Judge Ryland concurring,
the decree will be reversed, and the bill dismissed.