90 Va. 513 | Va. | 1894
delivered the opinion of the court.
Enough has been stated chronologically to show the proceedings between the parties pending their negotiations between the execution of the contract and the bringing of this suit. The evidence in the cause shows that the vendor, who now seeks specific performance, did not have the power — was not capable — of making a good deed to the land he sold at the time of the sale, and the decree in the cause procured and insisted on by the vendor himself shows that at that date — nearly three years after the contract was made — he was still unable to make a deed, and the circuit court was unable to cause a good deed to be made, but decreed that the parties defendants should receive a hypothetical deed, good if this young lady so willed hereafter, the court thought. The defendants pointed out the defects in Newberry’s title. After long delay on his part, he at last made a deed. It appears plainly enough that for some unexplained reason he desired to get the cash payment in advance of a deed, and, receiving this, he refused to make a deed to the company which he had agreed to form with his vendees, and take the interest of one-fourth. Agreeing subsequently to do this, he then bethought him of the six acres, and found fault with the way it was laid off. Subsequently, when asked to state his objection to' this, he waived it, and he put the six acres in the deed' in the same manner, which had so long proved an insurmountable'difficulty with him when so done by others. But none of these difficulties could be surmounted -by him, or were surmountable by others, until the fall in prices known as the “ collapse of the boom ” had come. Heretofore reluctant — not only reluctant, but stubbornly and steadfastly refusing either to accept a deed tendered to him or to tender one himself — he agreed to survey
It may be observed, upon what has gone before, that the decree appealed from did not decree performance of the contract as made by the parties, but quite a different one. The appellants did not agree to buy a two-thirds interest in the land of Newberry and pay $100 per acre for it simply. ’ There was an agreement between the parties in the contract sought to be specifically performed that they would form a company with Newberry one-fourth owner and contributor. They were to pay three-fourths of the agreed value and Newberry one-fourth, all to go into a company for a specific purpose. The decree complained of not only compels the appellants to take a delayed and a defective title, but compels them to take three-fourths of what they substantially bargained for. It is not proved nor alleged that the appellants ever agreed, direptly or indirectly, that the contract thus set up should be their- contract.; nor is it reasonable to suppose that they .would have agreed.to pay anything tor an undivided interest, great or small, in this land, in order to build -a town. It would have remained uncertain under such a contract.where .their land would lie, whether on the railroad or off of it, whether close to or at the railroad depot or remote from it; and- under the court’s decree it is matter of uncertainty where the. appellants’ part of the land will be situated. If the court decrees specific performance at all of a contract, it should do so oí the contract which the parties made and the entire contract as ma.de. The court should have decreed, if at all, upon the entire contract, and. not upon -a part only, and thus left not only the question of the title uncertain -and dependent upon future undetermined events, but the location and situs of the land undetermined and unascertained. It cannot be said, that, the parties them
Specific performance is an equitable remedy, which compels the performance of a contract in the precise terms agreed upon, or such a substantial performance as will do justice between the parties under the circumstances of the case. 22 Amer. & Eng. Enc. Law, p. 909. Rouvier defines it as the “ actual accomplishment of a contract by a party bound to fulfill it.” •Burrill defines it: “The performance of a contract in the precise terms agreed upon; strict performance.” Mr. Justice "Washington, speaking for the Supreme Court of the United States in Hunt v. Rousmanier, 1 Pet., 14, says: “Equity may compel parties to perform their agreements, when fairly entered into, according to their terms; but it has no power to make agreements for parties; and then compel them to execute the same. The- former is a legitimate branch of its jurisdiction, and in its exercise highly beneficial to society. The latter is without its authority, and the exercise of it would not only be a usurpation of power, but would be highly mischievous in its consequences.”' Equity cannot make or alter a contract for the parties and then execute it. If the contract must be reformed before it can be executed, it can only be reformed in a suit for that purpose, or upon a bill particularly praying for that relief. Grey v. Tubbs, 43 Cal., 359; Osborn v. Phelps, 19 Conn., 63. Nor will equity reform a writing to make an agreement of a character different from that which the parties intentionally entered into. Stoddard v. Hart, 23 N. Y., 556. Under the circumstances of this case, we think Newberry is not entitled to the aid of a court of equity to have his contract specifically executed, but that this court should withhold its relief, and leave him to his action at law. And under the cir-
Decree reversed.