Sec. 438. Contracts specifically enforced though vendee at fault. Equity treats things agreed to be done as actually performed, and when real estate is sold, under a valid contract, the purchase money to be paid in part, and the deed executed at a future day, the equitable title passes at once to the vendee and equity treats the vendor as trustee for the purchaser of the estate sold, and the purchaser as trustee for the purchase money for the vendor. Where the language of the contract is that the vendor "has this day sold and agreed to convey" to the vedee his "building and lot," it clearly imports a binding contract of sale then executed and consummated. By such terms the title in equity passes from the date of the contract. The contract is not for a sale, only for a conveyance at a future day. The whole foundation of this doctrine of equity is that the equitable title and interest pass by the contract of sale, and from the time of its execution, and it contemplates delivery of possession as well as payment of the purchase money, and a conveyance at a future period. Where the party seeking to enforce the contract had in time complied with all its terms, equity will compel specific performance in his favor, though the other party has made default in time.8 Sec. 439. Contract optional as to one party optional as to both. The general rule in such cases is that contracts not performed, optional to one of the parties, are optional to both." A court of equity will not do a vain and useless thing by rendering a decree settling the rights of parties which one of them at will may set aside. under the cancellation clause 8 Dunn v. Yakish, 10 Okla. 388, 61 Pac. 926. 9 Kolatchney v. Galbreath, 26 Okla. 757, 110 Pac. 904; Venture v. Fretts, 152 Pa. 451, 21 Atl. 732; This rule is enforced where, of an instrument, one party Huggins v. Daley, 99 Fed. 606, 40 would have it in his power to nullify the decree by exercising his right thereunder not to proceed further.10 This is following the well known rule that a court of equity never interferes where the power of revocation exists. But while the reservation of the right to cancel is not an infirmity which renders the contract void ab initio, but it deprives the party for whose benefit it was made of relief in equity in the nature of a specific performance.11 Sec. 440. Defective description cured, when-Vendor estopped to object, when. In an action for the performance of a contract for the conveyance of land, where the vendor in the contract had incorrectly described the land, the defective description was cured by putting the purchaser in possession; and in such action where it appeared from the evidence that the purchasers who were so placed in possession under the contract, continued in possession until the action was brought, and received the owner's shares of the crops raised on the land, after they knew the condition of the legal title, they were estopped from setting up alleged defects in the title, where it further appeared at the trial that the plaintiff was able to convey the title free from doubt. In an action, to specifically perform a contract, where there are liens of an inconsiderable amount on the land, which the court provides shall be discharged out of the purchase money, the vendor has no cause to complain.12 10 Kolatchney v. Galbreath, 26 v. Galindo, 59 Cal. 28, 43 Am. Rep. Okla. 757, 110 Pac. 904. 11 Express v. Railroad, 99 U. S. 191, 25 L. Ed. 319; Tausig v. Corbin, 142 Fed. 660, 73 C. C. A. 656; Solomon v. Wilmington, 142 N. C. 439, 55 S. E. 300, 6 L. R. A., N.S., 391; Rust V. Conrad, 47 Mich. 449, 11 N. W. 265, 41 Am. Rep. 720; Knight v. Indian, 47 Ind. 105, 17 Am. Rep. 692; Sturgis 239. 12 Keeper v. Yoacum, 84 Kan. 554, 114 Pac. 1,064; Borwn V. Ward, 110 Ia. 123, 81 N. W. 247; Work v. Welsh, 160 Ill. 468, 43 N. E. 719; Ottumwa v. McWilliams, 71 Ia. 164, 32 N. W. 315; Engle v. White, 104 Mich. 15, 62 N. W. 154. Sec. 441. Contract by agent without naming principal cannot be specifically enforced. Under the statute requiring contracts for the sale of land to be evidenced by writing, where a written agreement for such a sale, says that one of the two persons by whom it is made incurs no individual liability, but acts merely as the agent of someone else, who is not named or described, specific performance thereof cannot be compelled at the suit of the principal, if his relation to the transaction can only be proved by parol evidence.13 Sec. 442. Time not the essence of contract, when. The mere naming the day on or before which the contract for the conveyance of real estate shall be consummated, does not make time of the essence of the contract, and if an abstract showing marketable title is to be produced, it may be perfected, and title may even be perfected within a reasonable time beyond the day named.14 But where it is especially stipulated in the contract that time is of the essence of the contract, then there must be a compliance within the time, and in the manner specified, in order to 13 Mertz v. Hubbard, 75 Kan. 1, 88 Pac. 529. It is settled law that a memorandum, in order to meet the requirements of the statute of frauds, shall give the names of the contracting parties, or some description by which they can be identified. Several courts have held this rule is not satisfied by the memorandum's naming an agent who acts for one of the parties throughout the transaction, but who is not personally bound. The leading case to this effect is Grafter v. Cummings, 99 U. S. 100, 25 L. Ed. 366, which has been followed by Oglesby v. Williams, 112 Ga. 359, 37 S. E. 372; Clampet v. Bells, 39 Minn. 272, 39 N. W. 495; Metz v. Neuwitter, 122 N. Y. 491, 25 N. E. 1,044, 11 L. R. A. 97, 19 Am. St. Rep. 514; Breckenridge v. Crocker, 78 Cal. 529, 21 Pac. 179; Schenck v. Spenz, 47 N. J. Eq. 44, 19 Atl. 881; O'Sullivan v. Overton, 56 Conn. 102, 14 Atl. 300; King v. King, 36 Ala. 267; Sherburne v. Shaw, 1 N. H. 157, 8 Am. Dec. 47; Wheeler v. Waldin, 17 Neb. 122, 22 N. W. 346. 14 Wiley V. Helen, 112 Pac. (Kan.) 158. enforce a specific performance of the same.15 Time fixed for the performance may be waived. 16 And in such a case where none of the parties concerned suffer any specific injury, the abstract may be completed at any time before the decree.17 Sec. 443. Performance will not be decreed where title is defective. Where a purchaser contracts for a title by warranty deed free from incumbrances, he cannot be compelled to take a title other than contracted for. This rule applies where the incumbrance is a mortgage which the party is unable to discharge.18 A perfect title is one free from litigation, palpable defects and grave doubts, and consists of both legal and equitable title, fairly deducible of record. 19 Sec. 444. Title unless refused by purchaser precludes an action by him for specific performance. Where a contract is made for the conveyance of a tract of land, and it develops that the title is defective, an unconditional and final refusal by the purchaser, with full knowledge of the facts, to accept the only title the seller is able to convey, will prevent him from afterwards maintaining an action for specific performance of the contract.20 15 Powers v. Rude, 14 Okla. 381, 79 Pac. 94; Johnson v. Burdette, 7 Kan. App. 134, 53 Pac. 87; M., K. & C. Rwy. v. Thompson, 24 Kan. 170; Cincinnati v. Busby, 51 Fed. 738, 19 L. R. A. 796; Phillips v. Seymour, 91 U. S. 650, 23 L. Ed. 341; Jones v. United States, 96 U. S. 24, 24 L. Ed. 644. 16 Fletcher v. Painter, 105 Pac. (Kan.) 500. 17 Bell v. Sternberg, 53 Kan. 571, 36 Pac. 986; McNutt v. Mellins, 82 Kan. 424, 108 Pac. 434. Pac. 18 Saxon V. White, 95 (Okla.) 783; Kennedy v. Hazelton, 128 U. S. 667, 9 Sup. Ct. 202, 32 L. Ed. 576; Farrar v. Dean, 24 Mo. 16; Corby v. Drew, 55 N. J. Eq. 387, 36 Atl. 827; Snell v. Mitchell, 65 Mo. 48. 19 Campbell v. Hawk, 122 Pac. (Okla.) 127. 20 Riley v. Allen, 81 Pac. 186, 71 Kan. 625. Sec. 445. The evidence required in proof of the contract. The Supreme Court of Kansas established the rule that the agreement should be clearly and definitely established,a1 quoting with approval on this subject, the following: "But equally would it be the duty of a court of equity to refuse that relief where the agreement sought to be given effect is not certain and definite. Clearly it should hesitate to assume the grave responsibility of implying an agreement, whose existence depends upon circumstances inconclusive in their nature, and permitting an inference either way. It is not essential to the intervention of equity, in order to prevent the accomplishment of fraud, that an agreement should be established by direct evidence. It may be established by such facts and circumstances as will raise the implication that it was made; and may have reinforcement from the evidence of the conduct of the parties at the time and subsequently." 22 Sec. 446. Evidence-Tender of abstracts-Affidavits as part of abstract may be evidence, when. While it is true that affidavits employed to supply facts showing title to real estate are not competent evidence, yet, in an action to compel specific performance of a contract to purchase land, where it devolves upon the plaintiff to show that she tendered an abstract of title, the abstract itself, and ex parte affidavits accompanying the same, for the purpose of proving who are the heirs of a deceased person, are competent evidence showing the kind of abstract furnished.23 Sec. 447. The statute of frauds. The following contracts are invalid, unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged, or by his agent: 21 Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743. 22 Edson v. Parsons, 155 N. Y. 555, 50 N. E. 265. 23 Harrel V. Neef, 102 Pac. (Kan.) 838. |