Comes now

plaintiff herein, and for his cause of action

against the defendant herein, alleges and states:

1. That on

day of

19—, plaintiff purchased

from the defendant the following real estate, situate in County, State of Oklahoma, to-wit: (Here describe it), and paid said defendant for said real estate the sum of dollars,

and said defendant executed and delivered to plaintiff his certain warranty deed signed by said defendant and — his wife, 19-, thereby conveying said prem

on the

day of

ises to this plaintiff in fee simple.

2. That said instruments of conveyance contained a covenant as follows: (Here insert the covenant complained of.)

3. That at the time of the execution and delivery of said deed by said defendant to plaintiff said defendant was not possessed of nor was the owner of a good and sufficient title to said real estate above described; but, on the contrary, one was the true and lawful owner of a title paramount to that of said defendant, and that by reason of said paramount title so owned by said this plaintiff was ousted and dispossessed of said premises by due course of law by said and that the covenant so made as hereinbefore stated has been wholly broken by the said defendant.

4. That, by reason of the premises and all the facts herein. stated and of the breach of covenant by said defendant, plaintiff has sustained damages in the sum of dollars.

WHEREFORE plaintiff, the premises considered, prays judgment against said defendant for said sum of dollars, and for his costs herein expended, and for such other and further relief as may be proper.46

46 Where there has been a breach of covenant of warranty, each previous warrantor should be made a party and relief asked as under the

Attorneys for Defendant.

statutes of this State made and provided. See Snyder, 1,204 and 1,205; Wilson, 897 and 898.

Sec. 431. Form for petition for breach of covenant against

Comes now plaintiff herein, and, for cause of action against the defendant, alleges and states:

1. That on or about the

day of

fendant, in consideration of the sum of

19-, the dedollars, by deed

conveyed to the plaintiff in fee simple the following described real estate, situated in

(Here describe it.)

County, State of Oklahoma, to-wit:

2. That said deed was in form as provided by the statutes of the State of Oklahoma and a general warranty deed, a copy of which is hereto attached, marked "Exhibit A" and made a part hereof.

3. That by the terms of said deed said deed contained a covenant on the part of the defendant by which he for himself, his heirs, executors and administrators, covenanted and agreed to and with the plaintiff, his heirs and assigns, that said premises were then free, clear and discharged of all incumbrances what

soever.

4. That at the time of the making and delivery of said deed said premises were not free of incumbrances, but, on the contrary, were subject to the lien of a judgment recovered by

day of

5. That, by reason thereof, plaintiff was obliged to pay, and

did pay, on the

dollars for the purpose of extinguishing said incumbrances. 6. That no part of said sum has been repaid to plaintiff. WHEREFORE, plaintiff prays, the premises considered, judgment dollars, with interest from the

for the sum of

day

of

-, 19-, and for all proper relief.

Attorneys for Plaintiff.

2. THE PROCEDURE BY WHICH A CONTRACT FOR THE PURCHASE AND SALE OF REAL ESTATE IS SPECIFICALLY ENFORCED THE STATUTE

The courts of this State have not been called upon to pass upon questions relating to the practice on the subject of specific performance. The practice on the subject is practically alike everywhere, and the practitioner is referred to the standard textbooks on the subject of pleading and practice for the law and procedure connected with specific performance.1

Sec. 433. Proper parties.

A subsequent owner of the land is the proper party against whom to enforce a contract made by the prior owner of the fee. A court of equity cannot enforce specific performance of a contract to sell real estate against several joint owners where all the joint owners were not parties to the contract.3

Sec. 434. Contract to be performed must be just and fair in all its parts.

Upon this subject our Supreme Court, in a well considered case, has said:

"That a contract to be subject to specific performance must be reasonably certain as to its subject-matter, its stipu lations, its purposes, its parties, and the circumstances under

1 See Bates' Pleading and Practice, Forms and Precedents; Kinkead's Code Pleading; Kinkead's Court Practice; Whittaker's Code Forms.

2 Kolatchney V. Galbreath, 26 Okla. 757, 110 Pac. 902.

3 Gault v. Pyles, 19 Okla. 445, 92 Pac. 175.

which it is made. It must be, in general, mutual in its obligations and in its remedy, and perfectly fair, equal and just in its terms and its circumstances, and be such that the remedy of specific performance will not be harsh or oppressive. A rule of unexceptional application is that specific performance will not be awarded unless the contract is certain, fair and just in all its parts, and any fact showing that the contract is unfair, unjust and against good conscience, will justify the court in refusing such decree, although the same, if duly executed, would present no sufficient ground for cancellation, or would be enforceable at law.*

Sec. 435. Contract must not be unconscionable.

Equity will not enforce an unconscionable contract; but the mere fact that one provision of a legal contract, or even the entire contract is more favorable to one party than to the other, does not ordinarily render it unconscionable."

Sec. 436. It must be certain in its terms.

A contract which a court of equity is called upon to specifically enforce, must be certain in its terms. If the description of the property agreed to be sold is so vague and indefinite in the contract as not to be identified with the property agreed to be conveyed, specific performance will be denied."

Sec. 437. It must be possible to perform it.

No action can be maintained for the specific performance of a contract to convey real estate where it is impossible to perform such contract."

4 Superior v. Mehlin, 25 Okla. 809, 108 Pac. 545, quoted from Pomeroy's Equi. Jur., Sec. 1,405, citing Dalzell v. Dueber, 149 U. S. 315, 13 Sup. Ct. 886, 37 L. Ed. 749; Fec. Oil Co. v. Western, 112 Fed. 373; Ferguson v. Blackwell, 8 Okla. 489, 58 Pac. 647.

5 Chanute v. Gas, 82 Kan. 752, 109 Pac. 398.

6 Powers v. Rude, 14 Okla. 381, 79 Pac. 90; Ferguson v. Blackwell, 8 Okla. 489, 58 Pac. 647.

7 Neuforth v. Hall, 6 Kan. App. 902, 51 Pac. 573.