Actions concerning real estate: See Code Civ. Proc., secs. 738-748. Writ of restitution: See Code Civ. Proc., sec. 957. Specific enforcement of contract to convey realty: post, secs. 3384 et seq. See § 3379. § 3380. ARTICLE II. POSSESSION OF PERSONAL PROPERTY. Judgment for delivery. § 3379. Judgment for delivery. A person entitled to the immediate possession of specific personal property may recover the same in the manner provided by the Code of Civil Procedure. En. March 21, 1872. Claim and delivery: Code Civ. Proc., secs. 509-520. Breach of agreement to transfer personalty may be compensated in damages: Post, sec. 3387. $3380. Specific delivery. Any person having the possession or control of a particular article of personal property, of which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession. En. March 21, 1872. Am'd. 1873-4, 266. Breach of agreement to transfer personalty: See post, sec. 3387. ARTICLE III. SPECIFIC PERFORMANCE OF OBLIGATIONS. $3384. Specific performance. 3385. Remedy mutual. (Repealed.) 3386. No remedy unless mutual. 3387. 3388. Distinction between real and personal property. Contract signed by one party only may be enforced by other. 3389. Liquidation of damages not a bar to specific performance. 3390. What cannot be specifically enforced. 3391. What parties cannot be compelled to perform. 3392. What parties cannot have specific performance in their favor. 3393. Specific performance not required when oppressive. § 3394. 3395. pealed.) (Re Agreement to sell property by one who has no title. § 3384. Specific performance. Except as otherwise provided in this article, specific performance of an obligation may be compelled. En. March 21, 1872. Am'd. 1873-4, 266. Cal.Rep.Cit. 110, 641; 110, 642; 135, 260. See post, secs. 3390 and 3392. Specifically enforcing revised contract: See post, sec. 3402. § 3385. Remedy mutual. 1872: Rep. 1873-4, 267. Cal.Rep.Cit. 110, 642. (Repealed.) En. March 21, § 3386. No remedy unless mutual. Neither party to an obligation can be compelled specifically to perform it, unless the other party thereto has performed, or is compellable specifically to perform, everything to which the former is entitled under the same obligation, either completely or nearly so, together with full compensation for any want of entire performance. En. March 21, 1872. Cal.Rep.Cit. 91, 90; 110, 642. Performance by parties seeking execution: Compare with post, sec. 3392. § 3387. Distinction between real and personal property. It is to be presumed that the breach of an agreement to transfer real property cannot be adequately relieved by pecuniary compensation, and that the breach of an agreement to transfer personal property can be thus relieved. En. March 21, 1872. Cal.Rep.Cit. 123, 6; 123, 9; 123, 11; 135, 261; 135, 262. § 3388. Contract signed by one party only may be enforced by other. A party who has signed a written contract may be compelled specifically to perform it, though the other party has not signed it, if the latter has performed, or offers to perform it on his part, and the case is otherwise proper for enforcing specific performance. En. March 21, 1872. § 3389. Liquidation of damages not a bar to specific performance. A contract otherwise proper to be specifically enforced may be thus enforced, though a penalty is imposed, or the damages are liquidated for its breach, and the party in default is willing to pay the same. En. March 21, 1872. Cal. Rep.Cit. 123, 6; 123, 9; 123, 11; 135, 261. § 3390. What cannot be specifically enforced. The following obligations cannot be specifically enforced: 1. An obligation to render personal service; 2. An obligation to employ another in personal service; 3. An agreement to submit a controversy to arbitration; 4. An agreement to perform an act which the party has not power lawfully to perform when required to do so; 5. An agreement to procure the act or consent of the wife of the contracting party, or of any other third person; or, 6. An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable. En. March 21, 1872. Cal.Rep.Cit. 88, 249; 130, 530; 136, 611. Subd. 1-119, 38; 130, 529. Subd. 5-122, 348. Subd. 6-121, 398. § 3391. What parties cannot be compelled to perform. Specific performance cannot be enforced against a party to a contract in any of the following cases: 1. If he has not received an adequate consideration for the contract; 2. If it is not, as to him, just and reasonable; 3. If his assent was obtained by the misrepresentation, concealment, circumvention, or unfair practices of any party to whom performance would become due under the contract, or by any promise of such party which has not been substantially fulfilled; or, 4. If his assent was given under the influence of mistake, misapprehension, or surprise, except that where the contract provides for compensation in case of mistake, a mistake within the scope of such provision may be compensated for, and the contract specifically enforced in other respects, if proper to be so enforced. En. March 21, 1872. Cal.Rep.Cit. 74, 563; 77, 115; 77, 116; 124, 494; 129, 287. Subd. 1-123, 451; 128, 128; 129, 287; 135, 261. Subd. 2128, 128; 134, 171; 135, 263. § 3392. What parties cannot have specific performance in their favor. Specific performance cannot be enforced in favor of a party who has not fully and fairly performed all the conditions precedent on his part to the obligation of the other party, except where his failure to perform is only partial, and either entirely immaterial or capable of being fully compensated, in which case specific perform ance may be compelled, upon full compensation being made for the default. En. March 21, 1872. § 3393. Specific performance not required when oppressive. (Repealed.) En. March 21, 1872. Rep. 1873-4, 267. $3394. Agreement to sell property by one who has no title. An agreement for the sale of property cannot be specifically enforced in favor of a seller who cannot give to the buyer a title free from reasonable doubt. En. March 21, 1872. § 3395. Relief against parties claiming under person bound to perform. Whenever an obligation in respect to real property would be specifically enforced against a particular person, it may be in like manner enforced against any other person claiming under him by a title created subsequently to the obligation, except a purchaser or incumbrancer in good faith and for value, and except, also, that any such person may exonerate himself by conveying all his estate to the person entitled to enforce the obligation. En. March 21, 1872. Cal.Rep.Cit. 122, 664; 136, 143. ARTICLE IV. REVISION OF CONTRACTS. 3399. When contract may be revised. 3400. 3401. § 3402. Presumption as to intent of parties. Enforcement of revised contract. § 3399. When contract may be revised. When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value. En. March 21, 1872. Cal.Rep. Cit. 65, 281; 68, 616; 83, 158; 85, 502; 86, 340; 88, 209; 88, 212; 88, 213; 112, 352; 120, 69; 123, 30; 132, 584; 137, 75; 137, 93; 137, 458; 138, 115. Revised to express intention: Post, sec. 3401. § 3400. Presumption as to intent of parties. For the purpose of revising a contract, it must be presumed that all the parties thereto intended to make an equitable and conscientious agreement. En. March 21, 1872. Cal.Rep.Cit. 132, 584. § 3401. Principles of revision. In revising a written instrument, the court may inquire what the instrument was intended to mean, and what were intended to be its legal consequences, and is not confined to the inquiry what the language of the instrument was intended to be. En. March 21, 1872. Cal. Rep.Cit. 85, 501; 132, 584. § 3402. Enforcement of revised contract. A contract may be first revised and then specifically enforced. En. March 21, 1872. Cal.Rep.Cit. 132, 584; 137, 75; 137, 458. ARTICLE V. RESCISSION OF CONTRACTS. § 3406. When rescission may be adjudged. 3407. § 3408. Rescission for mistake. Court may require party rescinding to do equity. § 3406. When rescission may be adjudged. The rescission of a written contract may be adjudged, on the application of a party aggrieved: 1. In any of the cases mentioned in section 1689; or, 2. Where the contract is unlawful, for causes not apparent upon its face, and the parties were not equally in fault; or, 3. When the public interest will be prejudiced by permitting it to stand. En. March 21, 1872. Cal.Rep.Cit. 86, 251; 98, 499; 98, 502; 120, 511. Subd. 1 1689. Ante, sec. Rescission against consent, how effected: Ante, sec. 1691. Cancellation of instruments: See post, secs. 3412 et seq. Rescission, how effected: See ante, sec. 1691. § 3407. Rescission for mistake. Rescission cannot be adjudged for mere mistake, unless the party against whom it is adjudged can be restored to substantially the same |