
    SPECIFIC PERFORMANCE ENFORCED BY A VENDOR.
    Common Pleas Court of Montgomery County.
    Oscar C. Wade et al v. Nettie Shahan.
    Decided, June 23, 1927.
    
      Contracts — Enforcement of, where for Sale and Purchase of Land— Remedy of Specific Performance Available to Vendor as well as Vendee, who in Equity is the Beneficial Owner.
    
    The remedy of specific performance of a contract for sale and purchase of land is mutual, and may be enforced by vendor as well as vendee, notwithstanding in case of the vendor it is sought to compel payment of a specific sum.
   SNEDIKER, J.

This is an action brought by the plaintiffs who are vendors against the defendant who is a vendee to enforce specific performance of a contract of sale and púrchase made by the plaintiffs with the defendant for certain real estate in Washington township, this county.

To the petition of the plaintiffs a demurrer was filed and overruled. The defendant declined to file an answer.

Upon the date set for hearing she was present with her counsel. The case proceeded to the conclusion of the plaintiffs’ testimony, and she offered no evidence in her behalf.

Her contention now is that the plaintiffs are not entitled to this proceeding in specific performance; that their remedy is not in equity but at law for damages, if any, an account of the breach of the contract by the defendant. She takes the view that a vendor has no equity to enforce specific performance against his vendee.

,.T'he facts in the case show that these plaintiffs on the 24th of August, 1926, were the owners in fee simple of a farm of 60.29 acres along the Yankee road in Washington township. This farm had upon it the ordinary improvements for farm purposes; on that date an agreement was. entered into by and between these'parties which relates to this farm and which was in the words and figures following :

“This agreement made and ..entered into 24th day of August, 1926, between Nettie Shahan and Oscar and Luria Wade, party of the first, part agrees to pay' $1,000 (one thousand dollars) down payment and balance by first Of March, 1927. Purchase price $8,800 (eighty-eight hundred). To include all corn in field, half of all potatoes and all garden. Six pigs, one cow and half of chickens. Deed to be delivered on day of settlement. Oscar C. Wade. Luria C. Wade. Nettie Shahan.”

After this agreement was entered into Nettie Shahan took possession of the farm; took over the personal property and continued .so until about March 2, 1927, when she moved off. Of the purchase price $100 was paid on the signing of the agreement which we have read; $900 was paid on September 2nd, 1926 and $300 during November of that year.

This defendant proceeded so far with her purchase that she made application for and secured a loan for $4,000 on the farm to be used in payment of the purchase price. But she afterward concluded that she did not care to go ahead with her agreement, and not having the deed because of non-payment this loan was never perfected. Notice was brought' home to the defendant that the plaintiffs were ready to consummate their contract. On three different occasions the defendant was told that they were ready to deliver the deed, and a demand was made upon the defendant for the purchase price. On this demand, the plaintiffs were referred to counsel for the defendant who on her behalf refused to complete the deal.

We have before us the deed which was executed by Oscar 6v Wade and Luria Wade to Nettie Shahan of this farm which”ibears the date of January 24th, 1927. Still persisting in not carrying out her agreement with the plaintiffs, the defendant refused to accept the deed and pay the money called for under her contract.

The question of whether or not a vendor can enforce specific performance of a contract respecting real estate has been passed upon' by the courts of last resort in a number of states of this Union, and by the Supreme Court of our own State. As stated by Langdell in his work on equity jurisdiction at page 51:

' “It has never been doubted that a vendor of land has as much right to enforce performance of a contract in equity as a vendee.”

Bispham in his work on Principles of Equity at Section 364 says;

“The purchaser has a right to the aid of the chancellor for the purpose of obtaining a conveyance of the legal title to the property of which he is the equitable owner; while, as all remedies ought to be mutual, the vendor can invoke the same aid for the purpose of compelling the buyer to accept a conveyance, and pay the purchase-money.”

An early case decided in June of 1866, by the Supreme Court of North Carolina, is that of Springs v. Sanders, in which the Court held:

“There is no doubt that where the contract for the sale of lands remains executory on both sides, the vendor has the same right to enforce a specific performance of it against the purchaser as the latter has against him.”
In deciding that case the court say:
“In the latter case (the case where the title was retained to secure the price) something remains to be done on both sides, and as the purchaser can go into equity for a specific performance, the principle of mutuality gives the same right to the vendor. Thus, we find it stated in a recent treatise on the subject, that it is the principle of mutuality which had led to the practice of compelling specific performance of a contract for sale against the purchaser, where in fact the claim made by the bill is only the sum of money agreed to be paid.’ Now equity originally interfered to effect the performance of contracts in order to give the party the actual thing contracted for and at the instance of the purchaser; but when once that jurisdiction was assumed, the principle of mutuality compelled equity to assist the vendor.” Batten on specific performance page 66.

In the case of Anderson and Wife, Appellants, v. Wallace Lumber & Mfg. Co., Respondent, 30 Wash., page 147, the Supreme Court of Washington held:

“Specific performance of a contract for the sale of land is enforceable against the vendee, by suit in equity, for em forcement of the purchase price by collection of the money from any of the defendant’s property, or by order of sale as upon execution.”

In closing this decision the court say:

“In fact, the prevailing modern authority is that, in a case of this kind, the vendor can either sue at law for damages or resort to equity for specific performance. This right is based upon mutuality in the contract.
“Warvelle on Vendors thus states the principle: ‘A suit in equity against the vendee to compel a specific execution of a contract of sale while in effect an action for the purchase money, has nevertheless always been sustained as a part of the appropriate and acknowledged jurisdiction of such court, although the vendor has, in most cases, another remedy, by an action at law upon the agreement, page 779, and cases cited. See also Pomeroy, Contracts (2nd. ed.) page 6.
“The performance on the part of the defendant here required is the payment of the purchase price, which may be enforced by collection of the money from any of defendant’s property, or enforced by order of sale as upon execution.”

In the case of Robinson et al v. Appleton et al, 124 Ill., page 276, the decision of the court says:

“A vendor may have a specific performance of a contract for the sale of land decreed against his vendee. The remedy is mutual and may be availed of by either the vendor or the vendee. It lies in favor of the personal representatives of a deceased vendor, and against subsequent purchasers or assignees of the vendee taking with notice.’

Further:

“Where a court of equity has once acquired jurisdiction, it.will retain the case until complete justice has been done, settling all questions incident to the principle relief sought. Só on bill by a vendor for the specific performance of a contract for the sale of land, the court will take jurisdiction of the whole controversy, and may decree the payment of the purchase money, and enforce the vendor’s lien'for its payment, and thus prevent a mutiplicity of suits.”

To the same effect is the decision of the Supreme Court of Minn., found in 74 Minn., at page 293, in the case of Abbott et al v. Moldestad and another.

In Morgan, Appellant v. Eaton and wife, Appellees, 59 Fla., page 562, the Supreme Court of that state held:

“It is a settled rule that the remedy by specific performance is mutual as between vendor and vendee, and where the remedy is sought by the vendor, it makes no difference that the relief he seeks thereby is only to enforce the payment of a specific sum of money. And a suit by a vendor for specific performance of a contract for the sale of land can not be defeated on the ground that there is a remedy at law.

We also call attention to the case of Freeman v. Paulson, found in the 107 Minn., p. 64, where the decision is:

“Where parties make a mutual executory contract for the sale of real estate, and the vendor covenants on his part to convey the land, and in consideration thereof the vendee promises to pay the purchase price, and there is nothing in the contract which makes it invalid or objectionable in its nature, nor in the circumstances connected with it, equity regards the vendee as the beneficial owner of the premises, even though he has not paid the purchase price; and the vendor has a right to enforce payment of the purchase money by a suit in equity against the vendee’s equitable estate in the land, instead of by an ordinary action at law to recover the debt; and the vendor may proceed to enforce specific performance by such suit, whereby the vendee’s equitable estate under the contract is sold in pursuance of a judicial decree, which will operate as an assignment of the vendee’s rights under the contract, and whereby it would not operate as a cancellation of the contract itself.”

Supporting a like view is the case of the Old Colony Railroad Corporation v. Evans, 6 Gray, Mass., 25; as well as the case of Hoppert v. Hoppert, 16 N. J., Chancery Reports, 147. This latter case refers to Mod. 503; 6 Hare, 594; Frey on specific performance, section 23. We also refer to the case of Maryland Co. v. Simpers et al, 96 Md., 1, and to the case of McClurg v. Crawford, 209 Fed., page 340.

All of, these authorities support the view that a vendor may bring an action for specific performance of a contract relating to the sale of real estate. But we are not left to what the courts of other states may think of the question. Our own Supreme Court has rendered decisions to the same effect in the following: Jones v. Barth, 30 O. S., 405; City of Tiffin v. Shawhan, 43 O. S., 178, and Pierce, assignee v. Stewart, 61 O. S., 422. In this last case Judge Burket says:

“It is urged that when the defendant refused to complete his purchase, that the whole amount of the purchase price became due, and could be recovered at once in an action at law. But even if this be so, it is sufficient answer to say that the plaintiff did not elect to so treat the matter, and did not institute that kind of an action; and further, that an action for the recovery of the entire purchase price would still be a proceeding for specific performance, and the money judgment could not be recovered until after the court should pass upon the equity of'the case and exercise its judicial discretion as is always required in such an action, and as was done in the case of Tiffin v. Shawhan, supra, and Jones v. Booth, supra."

We are therefore lead to the conclusion that these plaintiffs are entitled to the relief for which they pray. Let an entry be drawn accordingly; directing this defendant to specifically perform her contract and awarding to these plaintiffs such further relief as they are entitled to in law and in equity.  