
    C. H. TENNEY, Respondent, v. EMMA W. TURNER, executrix, etc., Appellant.
    Kansas City Court of Appeals,
    April 3, 1905.
    CONTRACTS: Specific Performance: Probate Court: Jurisdiction. Where a contract hinds the obligor to pay certain moneys to the obligee on his conveying the title to real estate within a certain time, an action to recover the money and tendering a deed amounts to specific performance and equity alone has jurisdiction, and section 173 Revised Statues 1899, has no application and the probate court no jurisdiction of the action.
    Appeal from Jackson Circuit Court. — Hon. A. F. Evans, Judge.
    Reversed.
    
      James A. Plotner, Elijah Robinson for appellant.
    Tbe probate court bad no jurisdiction. Tbe petition shows on its face that this is a suit to enforce tbe specific performance of a contract. It is, therefore, an equitable suit. Tbe probate court has no general equity jurisdiction and is not given special jurisdiction in such a case as this. R. S. 1899, sec. 1753; Administrator v. Administrator, 19 Mo. 647; Church v. McElbinney, 61 Mo. 540; Church v. Rohberson, 71 Mo; (loe. cit.), 335-336.
    
      Burlce & Kimpton, A. F. Smith for respondent. .
    (1) The probate court had jurisdiction to allow plaintiff’s claim. 26 Am. & Eng. Ency. Law. (2 Ed.), 18, 19; Olmstead v. Smith, 87 Mo. 602; Thompson v. Dickerson, 68 Mo. App. 535; Pursley v. Good, 94 M'o. App. 382; Porter v. Leyhe, 67 Mo. App. 540, 543, 544; Machine Co. v. McBride, 27 Mo. App. 470; Burt v. Mears, 41 Mb. App. 231.
   BBOADDUS, P. J.

This action was begun in tbe probate court, tried, appealed to tbe circuit court, tried again, and appealed by defendant to tbis court. Tbe foundation of plaintiff’s demand is in tbe following writing:

“Kansas City, Missouri, 4-21, 1900. In consideration of tbe sum of four thousand dollars ($4,000) paid me by C. H. Tenney, of New York City, New York, as bis part of certain moneys to be invested in a 160 acre tract of land, situated in Jasper county, Missouri, U. S. A. Said lands to be bought and deeded as follows, viz.: Tbe undivided one-half (1-2)' to Charles H. Tenney, trustee, and tbe undivided one-half to F. H. Turner, trustee, I agree, if result of investment is not satisfactory to said Tenney, to at any time during tbe period from July 1, 1903, to January 1, 1904, be may desire, to repay him said four thousand dollars ($4,000) less any and all amounts be may have received from royalties, sale of ore, timber or land, or in any way from said investment, and provided that on payment by me of amount as agreed, said Tenney deed to.me or any party I may desire, bis entire interest in and to said investments. In witness whereof I tbis 21st day of April, 1900, A. D. set my band and seal. (seal) Frank H. Turner.”

On tbe 17th of September, 1903, within tbe time provided in tbe contract that if plaintiff was not satisfied with tbe investment be might have a return of bis money, etc., be filed bis demand in tbe probate court for Raid sum of $4,000 against tbe estate of said Frank IT. Turner, deceased, said Turner having died in tbe meantime.

Tbe demand is made in a written statement setting-up said contract and stating that be was dissatisfied with tbe investment and asking judgment for said sum of money against decedent’s estate. Tbe statement alleges that tbe property purchased in pursuance of tbe said contract is tbe east one-half of tbe northwest quarter, and tbe west half of tbe northeast quarter in section 10, township 27, .range 30, in Jasper county, Missouri, and that the title thereto is in Frank H. Turner and plaintiff, each as trustee. Plaintiff avers that he is willing to execute a deed conveying the property to whomsoever the court may direct. It was agreed by the parties that Turner received the $4,000 mentioned in the contract from plaintiff; that the land described in the statement was after the date of the contract, conveyed to F. H. Turner, trustee, and C. H. Tenney, trustee, and that the title so remained at the time of the death of said Frank H. Turner; and that plaintiff had never received any amount from Turner on account of said $4,000, and had received nothing from royalties, sale of ore, or timber on said land.

Defendant contends that the probate court had no jurisdiction of the case, as it was a proceeding in equity to enforce specific performance of the contract. Section 173, Revised Statute 1899, does not apply, as it refers solely to cases where a testator or intestate has entered into a contract in writing for the conveyance of real estate, and had not in his lifetime executed the same, nor given- power by will to execute the same, the court may decree specific performance and direct that the executor or administrator execute a deed to the other party to the contract. The plaintiff does not ask for any such relief. He has the conveyance mentioned in the contract. Therefore, said section has no application.

It is clear, however, that the proceeding is one for the specific performance of the contract: that is to say, plainiff asks the court to decree the payment to him of the four thousand dollars invested in the land in the name of both parties to the contract, on the ground that he is dissatisfied with the investment and that he be decreed to convey to the proper person the title he holds in the land as trustee for the deceased. Mr. Pomeroy in his work on contracts, or, more definitely speaking, “Specific Performance of Contracts,” says: “The specifie performance of contracts is purely a remedy administered by courts having equitable jurisdiction; and the right to it, held and conferred by a contracting party, is purely a remedial right.” See section 1. And, “where land, or any estate therein is the subject-matter of the agreement, the equitable jurisdiction is firmly established.” Idem, section 10. And “all contracts may be reduced to three forms: First, where there is simply a promise to pay money on one side in consideration of a similar promise to pay on the other; second, where there is a promise to do or to omit some act or acts on one side in consideration simply of a promise to pay, or a payment of money, on the other; third, where there is a promise to do or omit some act or acts on one side, in consideration of the doing or the undertaking to do certain acts which may, perhaps, include a money payment on the other. It is very plain that in all contracts falling within the first class, which only call for a pecuniary payment from either party, the legal remedy of a money judgment will always be possible and sufficient, and there will be no occasion for invoking the interposition of equity. Specific performance is confined to agreement of the two other classes. In those which form the second division, it might be supposed from the general principles heretofore stated, that only the party who is to receive the benefit of the acts or omissions promised by the other, could resort to equity and enforce their specific performance according to the terms of the undertaking, while the party who is to' receive the benefit of the money payment would be left to his legal remedy — the recovery of a money judgment in a common law action. This supposition, however logical it may appear, is prevented by a well-established doctrine of equity, that the right to a specific performance, if it exists at all, is, and necessarily must be held, and be capable of being enjoyed alike by both parties in every agreement to which the jurisdiction extends.” Idem, section 6.

We have quoted liberally from this section as it seems to be conclusive of this case. It is unnecessary to attempt to show that the case falls within the second subdivision of law as stated, as it is too plain for controversy. We find authorities supporting the law as stated by Mr. Pomeroy. See Tiedeman on Equity Jurisprudence, sec. 492; Beach on Modern Eq. Jurisprudence, section 637. And such is the holding in this State. Glass v. Rowe, 103 Mo. 1. c. 535.

As the probate court had no jurisdiction of the action it is unnecessary for us to notice other points raised by the appellant. Cause reversed.

All concur.  