
    S. S. Wold, Cora Berkholtz and Bessie Berkholtz v. Ed. Newgaard, Appellant.
    Specific Performance: contracts: construction. Where a con. 1 tract for the sale of real property provides that the vendoi shall prosecute to final determination a suit to recover the possession of a portion thereof, and in the event of inability to give possession or of failure of title to any part the same to be appraised and the value deducted from the contract price, specific, performance will not be decreed at the suit of the vendor '’onditions are complied with, nor will an order for appraisal be made.
    Specific Performance: repayment oe purchase money. Where a 2 vendor of real property contracts to furnish an abstract show- - ing clear title and to deed in accordance therewith, specific performance will not only be denied upon failure to do so, but when the contract so provides, repayment of any part of the purchase price advanced will be ordered, together with payment of the sum stipulated as damages.
    
      Appeal from Lyon District Gourt. — Hon. Wk. Hutchinson, Judge.
    Tuesday, February 23, 1904.
    This is au action to reform a contract in which plaintiffs undertook to convey to defendant certain real estate, and to enforce specific performance of the contract as reformed. There was a decree for plaintiff, from which defendant appeals.
    
    Reversed.
    
      E. G. Roach for appellant.
    
      Parsons & Rinilcer for appellees.
   McClain, J.

It is conceded that the contract, as to the description of the property, does not correspond to the agreement between the parties; and the decree, as far as it ordered a Teformation of the contract, is undoubtedly correct. But it is contended that the court , 0 „ _ erred." m decreeing a specific performance, and at least on one ground we think this contention is sound. To present the material question on which our conclusion is based, it is sufficient to say that the original contract to convey related to certain mill property and two lots, which inay be referred to as lots 12 and 17. This contract was entered into June 7, 1899, and it is stipulated therein that “the first parties (plaintiffs) are to furnish the second party (defendant) certified abstract of said premises, showing the same free from incumbrance and good title.” An abstract of title to the property was tendered to the defendant, but it appeared that one Laura D. Berkholtz, the widow of the owner of the premises, through whom plaintiffs claim title, was in possession of lot 17, claiming a life estate therein as her homestead. Thereupon a supplemental contract was made on October 23, 1899, in which it was recited that there had been difficulty in obtaining possession of a portion of the premises, and that the suit for the recovery of the possession of the sainé was pending against said Laura D. Berkholtz, and it was agreed “that until the possession of said premises occupied by the said Laura D. Berkholtz is obtained by the first party and turned over to the second party, the second party shall have the right to the possession of” the mill property, and .lot 12, covered by the contract, and also lot 4, not covered by the contract to convey; and it was further stipulated that the intention was that the defendant “agrees to occupy” lot 4, above referred to, “until said second party shall have received possession of the promises now occupied by Laura D. Berkholtz, and said first parties agree on their part to prosecute the suit for the recovery of the .premises in occupancy of L. D. Berkholtz with reasonable diligence, and to recover possession of said premises and turn said premises over to said second party.” In this contract it is further stipulated : “In the event, said first party shall be unable .to furnish possession of all or any part of the property, or in the event that the title to all or any part of the property provided to be sold in said contract of June 7, 1899, shall prove defective, then in that case the part to which the title is proved defective shall be appraised by disinterested appraisers and the appraisal price thereof deducted from the purchase price to be paid by the second party in the contract of June 7, 1899, at time mortgage provided for in contrast is given.” It seems to us evident that in using this language the partió*» contemplated that, before defendant should be required to carry out the contract of June 7th, the plaintiffs should prosecute the suit against Mrs. Berkholtz to a conclusion, and recover possession of the premises, and deliver such possession to the defendant, or, in the event that they should fail to do so, they should have the value of lot 17 appraised, and deduct th^ appraised value thereof from the amount whrcn dj the contract defendant was required to pay, and that one or the other of these things was to be done before defendant was required to carry out his contract. It is conceded that tha suit against Mrs. Berkholtz is still pending,.undisposed of; that she is still in possession of lot 17; and that no effort has been made to appraise the value of lot 17, so that the amount of deduction necessary in the event that plaintiffs axe unable to make title to that lot can be determined. None of these conditions of the supplemental contract has been complied with by plaintiffs. It is urged that the decree of the lower court may be modified to meet this difficulty by providing for an appraisal and deduction, but we do not feel called upon to make such modificátion. Defendant was resisting a specific performance, and it should not have been decreed against him until plaintiffs had complied, or were in a condition to comply, with the terms of the original agreement and the - supplement thereto.

There was some evidence tending to show a subsequent oral agreement by which the defendant was to accept lot 4 in substitution for lot 17, but this pretended oral agreement was not made out by such preponderance of evidence as to justify us in incorporating its terms into tlie written agreement; nor does the the decree award plaintiffs specific performance as to lot 4 by way of substitution for lot 17; but it provicies for a conveyance to defendant of the premises described in the original contract, as reformed, with a provision that defendant have the possession of lot 4 until such time as possession shahl be delivered 'to defendant of lot 1T. We are satisfied that the decree is erroneous, and that plaintiffs are not entitled to any specific performance, for the reason that they have not performed, and are not ready and able to perform, their agreement. In the original contract it was stipulated “that if the first parties shall fail to furnish abstract, showing good title to said property and free from incumbrance, and execute deed as herein provided, they shall return to second party the said four hundred dollars, and in addition pay the second party the sum of fifty dollars.” Not having complied with the contract as originally made, nor as subsequently modified, plaintiffs should repay to defendant the sum of $400, which he has paid under the contract, and the additional sum of $50, as agreed.

The case will be remanded to the lower court for decree in favor of the defendant and against plaintiffs for the payment to defendant of said sum of $450, with costs of the action, or defendant may have a decree in this court if he so elects. — Reversed.  