Chrisman v. Partee and wife.

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formance brought after he was of age; and it was objected by defendant that he was bound, when the contract was made, but the infant was not; and so there was no mutuality; but the objection was overruled, and the contract decreed to be performed.

So in Fishmonger's Company v. Robinson, 5 Manning & Granger, 131; it was held that the parties were mutually bound at the institution of the suit, and that was sufficient, though the plaintiff was not bound when the contract was made.

There are numerous English and American adjudications to sustain the proposition that it is sufficient, if the vendor be able to make a good title before decree pronounced, although he had not a good title when the contract was made. See note to Rose v. Calland, 5 Vesey, Jr., Sumner's Edition, p. 189, and cases cited. Hoggart v. Scott, 5 English Chancery, 293; Mortlock v. Butler, 10 Vesey, Jr., 292; Wynn v. Morgan, 7 Ib., 202; Hepburn v. Auld, 5 Cranch, 262; Dutch Church, v. Mott, 7 Paige, 77.

In Baldwin v. Salter, 8 Paige, 474, Chancellor WALWORTH said: "It is a general rule that specific performance of an agreement may be decreed if the complainant is in a situation to perform on his part, and make a good title, when the cause comes before a court for a decree."

See also, Seymore v. Delacy, Cowan, 446; Hepburn et al. v. Dunlap & Co., 1 Wheaton, 178; Moss v. Hanson, 17 Penn. State, 382.

One who attempts to speculate upon land to which he has hanno title, and no legal or equitable means of acquiring title, of contr- cannot ask specific performance, because he is not a bona act. fide contractor; but such is not the condition of one whose

tle at time

land had been sold for taxes, and the tax-deed made at the time he contracted to convey it, but the time for redemp

Chrisman v. Partee and wife.

tion had not expired, and it was in his power to redeem. Ley v. Huber, 3 Watts, 367.

In Cotton v. Ward, 3 Monroe, 313, Chief Justice BOYLE said: "The invariable inquiry of a court of equity, when about to pronounce a decree, is not whether the vendor was able, at the time he entered into the contract, (to make a good title), but whether he is able to do so; and a purchaser cannot, it is said, insist upon being discharged from his purchase upon the master's report of a defective title, if the same is capable of being made good in a reasonable time. (1 Maddock's Ch'y., 349.) The British courts of equity have even gone so far as to give the vendor, on a bill being filed by him for specific performance, time to procure an act of Parliament to perfect his title. Sug. Vend., 252."

In Ives v. Hazard, et al., 4 Rhode Island, 28, the court said: "It is now well settled by authority, that mutuality of remedy, existing at the time of action brought, is all that is required to enable a plaintiff to maintain his action" for specific performance.

Dresel et al. v. Jordan, 104 Mass., 407, is a strong case.

In Massachusetts a wife may contract to convey her land, with the assent of her husband. The following is a correct abstract of the decision of the Supreme Judicial Court of that State in the case referred to:

"If a married woman makes a written contract in her own name and her husband's, with a third party, for the sale and conveyance to him of land owned in part by her, in her own right, and in part by her husband, their joint execution and tender] of the deed of the land to the purchaser, before any indication of his intent to repudiate the contract, is a sufficient assent of the husband to the sale of her part of the land, and a ratification by him of the contract for the sale of his part, to entitle them to enforce specific perform

Chrisman v. Partee and wife.

ance, without evidence of her original authority to enter into the contract in his behalf."

Justice WELLS, who delivered the opinion of the court, after deciding other questions, said: "This consideration leads to another objection urged by the defendant, namely: that there is a want of such mutuality as is requisite for an agreement entitled to specific performance.

The point of the objection is, that the seller must have, at the time the agreement is made, such title and capacity to convey, or such means and right to acquire them, as will enable him to fulfill the contract on his part: otherwise the court will not hold the purchaser to a specific performance. But we do not so understand the rule. On the contrary, if the obligation of the contract be mutual, and the seller is able in season, to comply with its requirements on his part, to make good the title which he has contracted to convey, we see no grounds on which the purchaser ought to be permitted to excuse himself from acceptance. The suggestion of such a rule in Hurley v. Brown, 98 Mass., 545, was foreign to the case there decided, and is not borne out by the authorities cited," etc.

And after reviewing other cases, Justice WELLS added: "The equitable rule is established by numerous authorities that where time is not of the essence of the contract, and is not made material by the offer to fulfill by the other party, and request for a conveyance, the seller will be allowed reasonable time and opportunity to perfect his title, however defective it may have been at the time of the agreement. And in all cases it is sufficient for the seller, upon a contract made in good faith, if he is able to make the stipulated title at the time when, by the terms of his agreement, or by the equities of the particular case, he is required to make the conveyance in order to entitle him to the consideration"-citing quite a number of cases.

Chrisman v. Partee and wife.

There was no dissenting opinion, and among the six eminent Judges, then composing the court, was the distinguishêd jurist Hon. HORACE GRAY, recently appointed an Associate Justice of the Supreme Court of the United States.

The decision was criticised by an article in the American Law Review, (1872), but the writer's name was not given, and we have no means of judging other than from the article itself, of his claims as a lawyer.

In Jenkins v. Hiles, 6 Vesey, 646–655, Lord Chancellor ELDON, remarked: "It is impossible to deny that, upon the old authorities a specific performance might be obtained if the title could be made good before the report. The court would execute the contract then, regard being had to the justice due to particular cases.

And, in the latter case of Coffin v. Cooper, 14 Vesey, 205, Lord ELDON held that if the master report that the plaintiff will have a good title upon getting a term, procuring administration, etc., the court will put him under terms to procure that speedily; and the motion of a defendant to be discharged, because the master reported that a good title could not be made, was refused, the plaintiff having in the meantime obtained an act of parliament to enable him to perfect the title.

These are among the cases reviewed and relied on in the opinion of Justice WELLS.

The contract to convey was not valid as to Mrs. Dresel, because she signed it without the consent of her husband; and it was not binding on him because she signed his name to it without authority; yet, they, in accordance with the contract, joined in the execution of a deed, and tendered it, and on refusal of the purchaser to accept it, they filed a bill for specific performance, and brought the deed into court, and the court decreed performance. There was no mutuality

Chrisman v. Partee and wife.

when the contract was made, but there was when the decree was asked.

In Richards v. Green, 8 C. E. Green, (23 New Jersey), 536; the husband, Green, went into possession of a house and lot under a parol agreement to purchase of Richards. Afterwards Richards signed a written contract, in which he agreed, with the consent of the husband, to sell the property to the wife, Mrs. Green, for $2,500, and that when $500 and the back rent were paid, he would make her a deed, and take a mortgage for $2,000. The back rent was paid, and a tender of the $500, and of a bond and mortgage for the residue of the consideration money being made to Richards, he refused to convey the premises to Mrs. Green, and Green and wife filed a bill for specific performance. The court refused to decree enforcement of the written contract made with Mrs. Green; because, at the time the contract was made and at the time the decree was asked she was under the disability of coverture, and unable to perform the contract on her part; but the court decreed her the title, on the terms tendered, upon the parol contract made with her husband, who was under no disability to contract or perform.

In remarking upon the agreement with the wife, the Chief Justice said: "In every case that I can find, where specific performance has been ordered, a mutual remedy existed upon it at the time of the rendering of the decree. It seems to me that the rule is universal to this extent, that equity will not direct a performance of the terms of an agreement by one party, when, at the time of such order, the other party is at liberty to reject the obligations of such agreement."

And he illustrates the rule by the case of Flight v. Bolland, 4 Russ., 298, where the plaintiff was an infant when