178 Iowa 546 | Iowa | 1916
“Castalia, Iowa, April 1.1th, 1910. This agreement, made and entered into this 11th of April, 1910, by and between Arlow Crabtree and Elma Crabtree, and F. S. Monroe, all of Winneshiek County, Iowa, that in case the said Arlow and Elma Crabtree shall conclude not to sell the land, as per deed made to the said F. S. Monroe on this 11th day of April, 1910, then the said parties reserve the right to declare the said deed null and void by paying back to the said F. S. Monroe the $600 this day paid on the, purchase price of land described in said deed, with interest at the rate of 6%'from date. Mortgage made to secure the above amount. It is understood that, should the said Arlow Crabtree and Elma Crabtree change their mind as to the sale of the land described in said deed referred to, that the said F. S. Monroe shall have*548 the first chance to purchase the said land at the sum of $2,808 at any time hereafter when they do conclude to sell the land described in the deed referred to.
“Elma Crabtree.
Arlow Crabtree.
F. S, Monroe.”
It is further alleged that, on March 1, 1911, the husband assigned, transferred and conveyed to plaintiff all his right, title and interest in and to the real estate. The paper which plaintiff claims is such conveyance is as follows:
“Castalia, Iowa, March 1st, 1911. Received from F. S. Monroe the sum of $154, in full payment of all my right, title and interest to and for the following described premises, to wit: NEi/4 of NEi/4 (except 4 acres) of Sec. 9, Twp. 96, Range 7, as per deed now in possession of the Castalia Savings Bank, held under contract between Arlow Crabtree and Elma Crabtree and F. S. Monroe, and dated April 11th, 1910.
‘ ‘ Arlow Crabtree. ’ ’
It is alleged that, on said date, Arlow Crabtree was the husband of defendant, but that they have since been divorced; that the title to said land is at present of record in the name of the defendant, Elma Crabtree; that, after the execution of the contract of April 11th, defendant and her husband obtained from plaintiff permission to break up certain parts of said land, and also got plaintiff to furnish seed to re-seed other parts of the land, and that such seed was furnished by plaintiff about the last of April, 1910; that defendant Elma has changed her mind as to the sale of said lands, and that she has recently offered to sell the same to other parties; that, on July 13, 1915, plaintiff offered to pay defendant Elma the sum of $2,808, and demanded that she execute a deed to him for said real estate, but defendant refused to execute such deed, and refused to convey the premises to
The principal point argued is as to whether the contract by its terms was lacking in mutuality. Plaintiff contends, and cites authorities by which he claims, that the contract fixes the price, the time and terms of payment, and gives a definite description of the premises, and is, therefore, enforeible; and that, even though the contract be considered as a mere option, plaintiff would be entitled to a specific performance. On the other hand, it is contended by defendant that a contract, to be specifically enforced by the court, must be mutual; that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other, citing Luse v. Deitz, 46 Iowa 205, New York Brokerage Co.
The appellee’s contention, more, specifically stated, is that, because the provision of the contract is only that, if defendant Elma Crabtree shall at-any time hereafter conclude to sell said real estate, plaintiff shall have the first chance to purchase the same at a certain price named in the alleged contract, the plaintiff is.under no obligation to purchase at that price; and that, therefore, there is no mutuality of the' contract; and that, as defendant could not have had specific performance against the plaintiff, plaintiff could not have specific performance against the defendant, citing Luse v. Deitz, supra. It is also thought by appellee that, as there is no eertaintjr as to the time of performance, for that reason Hiere is a lack of mutuality; and on this point they cite Olive v. Dougherty, 3 G. Greene 371; Fisher v. Buchanan, supra. Appellant lays stress apon the fáet that, as he claims, the then husband of defendant conveyed to plaintiff all his interest in the land, by the paper dated March 1, 1911, heretofore set out. Appellee contends that this is not a transfer, assignment or conveyance of any interest in the real estate,
Our conclusion is that the trial court rightly sustained the demurrer, and the judgment is, therefore, — Affirmed.