
    City of Tiffin v. Shawhan.
    
      Contract to convey real estate — Specific performance — Rule—Discretion of court — Doubtful title deed by municipal corporation— When sufficiency of instrument considered, on error.
    
    1. The duty o'f a court of equity to decree specific performance of a contract • to convey real estate, can not be determined by any fixed rule, but depends upon the peculiar facts and equitable considerations of each case, and rests in the sound discretion of the court, guided and regulated, however, in .the exercise of that discretion, as far as may be, by precedent and established practice.
    2. If a contract for the purchase and conveyance of land is in all respects ; fair and free from ambiguity, and its enforcement as against the purchaser will vest in him a marketable title, the court has no legal discretion to refuse its enforcement.
    & If the specific performance of such a contract would be harsh, oppressive, or inequitable in its consequences, or would leave the purchaser with a doubtful and unmarketable title, the court, in the exercise of its discretion, will refuse to decree its performance, as no man will be compelled to accept a doubtful title.
    4. A deed for the conveyance of land owned by a city, which it has power to convey, signed by the city clerk, sealed with his private scroll seal and his official seal as city clerk, and made under the authority of an ordinance in form authorizing him to execute “a proper deed of conveyance, under the corporate seal of said city,” is ineffectual to convey to a purchaser the city’s title to such land.
    5. The execution of a special power to convey lands by a public officer must be in strict pursuance of the power, or no title is conveyed.
    
      <&.. In a petition by a vendor of land for specific performance of the contract, it was averred “that the plaintiff tendered to the defendant a conveyance of said land and demanded payment of the purchase-money;” and “ that a deed for said lands, above mentioned and ■described, from the plaintiff to the defendant, is herewith filed and ten- > (dered to him.” The deed tendered was so filed. The answer avers that the plaintiff did not, within a reasonable time, tender to the defendant a conveyance of the land or seek to enforce the contract, “ and not until -■ April, 1876, when said property had largely decreased in value.” The averments in the petition, of tender of conveyance and' of filing the deed so tendered with the petition, are not denied by the answer. On the trial the plaintiff gave this deed in evidence, and incorporated it (without objection from defendant) in his bill of exceptions taken at the trial! Held; Such deed and its sufficiency may be considered by this court in reviewing the judgment of the trial court. Woodward v. Shan, 27 Ohio St. 592; Lovell v, Wentworth, 39 Ohio St. 614, approved and followed.
    Error to the District Court of Seneca county.
    On the 8d day of July, 1878, Rezin "W. Shawhan, defendant in error, duly conveyed to the city of Tiffin, for city park purposes, about six acres of land, for the consideration of $2,680, which was then paid him.
    On the same day, Shawhan agreed in writing with the city that he would, at any time within two years from the 1st day of July, 1873, upon receiving a reconveyance of thé s^me land, repay to the city the sum of $2,680, with interest at eight per cent, per annum from thelst day of July, 1873; and that the right to reconvey the lands to Shawhan and receive repayment therefor from him should be at the option of the city during such term of two years.
    On the 31st day of May, 1875, the council of the city of Tiffin adopted a resolution that the lands so conveyed to the city by Shawhan be reconveyed to him by the city, Shawhan was promptly notified of the action of the council. The reconveyance of the land to Shawhan within the period limited by the agreement of July 3, 1873, was mutually waived by the parties. ■
    
    On the 19th of July, 1875, the city council duly passed ah ordinance providing for the reconveyance to the respective grantors of three tracts of land, including that conveyed to the city by Shawhan.
    By this ordinance it was ordained : .
    “Sec. 3. That the city of Tiffiu does hereby bargain and sell to Rezin -W. Shawhan, the lands and tenements described as follows: [Description.]
    “ Sec. 4. That the city clerk of said city is hereby authorized and directed to make, execute, and deliver to each of the persons named in sections one, two, and three, of thil ordinance, a proper deed of conveyance, under the corporate seal of said city, for the lands so by them severally purchased from said city.”
    On the 22d day of April, 1876, Sylvester J. Kintz, city clerk of Tiffin, executed a writing of the tenor following :
    “ C.”
    “ Know all men by these presents: That whereas, the city council of the city, of Tiffin, in the county of Seneca and state of Ohio, on the 19th day of July, a. d. 1875, duly passed an ordinance of said city, entitled ‘an ordinance to authorize the conveyance of certain lands therein described,’ whereby said city council bargained and sold the lands and tenements hereinafter described to Rezin W. Shawhan, for the sum of two thousand six hundred and eighty dollars to said city then paid by said Rezin W. Shawhan.
    “And whereas, by said ordinance of said city, the city clerk of said city was authorized and directed-to make, execute, and deliver to said Rezin W. Shawhan a proper deed of conveyance of said lands.
    “ Now, therefore, I, Sylvester J. Kintz, city clerk of the city of Tiffin, by virtue of the powers in me vested by said ordinance, and in pursuance thereof, do hereby give, grant, bargain, sell, and convey, unto the said Rezin ~W. Shawhan, his heirs and assigns forever, the lands and tenements described as follows, to-wit: [Description.]
    “To have and to hold the same to him, the said Rezin W. Shawhan, his heirs and assigns forever.
    “ In witness whereof, I have hereunto set my hand and seal, and the corporate seal of said city of Tiffin, this 22d day of April, 1876. ■ Sylvester J. Kintz, [seal.]
    [city clerk’s seal.] City Clerk, City of Tiffin.
    
    Executed in presence of
    John McCauley.
    S. Dahm.
    
      The State of Ohio, Seneca county, ss.
    
    Before me, J ohn McCauley, a notary public, within and for said county, personally came Sylvester J. Kintz, and acknowledged the signing and sealing of the above -.conveyance to be his free act and deed.
    Witness my hand and notarial seal, this 22d day of April, 1876. John McCauley,
    
      Notary Public, Seneca Co., OP '
    
    This instrument was promptly tendered to Shawhan, of whom the repayment of the money agreed upon was demanded. Acceptance and payment were refused. Thereupon the city commenced her action in the court of common pleas of Seneca county to enforce specific performance of the agreement of July 3d, for the reconveyance of, and repaj^ment for, the lauds in question.
    The petition, among other averments, alleges “that the plaintiff tendered to the defendant a reconveyance of said lands and demanded repayment of said sum of money; ” and further avers “that a deed for the said lands and tenements, above mentioned and described, from the said plaintiff to the said defendant, is herewith filed and tendered to him.”
    The tender of the deed and the filing of it with the petition are not denied by the answer.
    The cause was appealed to the district-court, which, upon the issues joined, found the equities with the defendant Shawhan, and decreed accordingly, expressly remanding the parties to their legal remedies. The bill of exceptions taken at the trial shows that the deed, which was tendered to the defendant and filed with the petition (a copy of which is given above), was offered in evidence by the plaintiff, received without objection, and made part of the bill of exceptions. The foregoing statement sufficiently presents the questions which the court deem important to the disposition of the case. The present proceeding is prosecuted to reverse the judgment of the district court.
    
      Perry M. Adams, city solicitor, for plai.ntiff in error.
    
      James Pillars and N. L. Brewer, for defendant in error.
   Owen, J.

1. By the conveyance from Shawhan to the city, the latter was invested with the title to the lands in question. The city had ample capacity to reconvey the same lands to Shawhan. If the deed which was tendered to him Was-such an instrument as could reinvest him with his former title, unclouded by substantial doubt of the validity of the conveyance, the plaintiff was entitled to the relief prayed for, and there was error in refusing it. If it be suggested that the defendant admitted that the deed tendered to him was sufficient to pass the title of the land to him, by failing to deny the averments of the petition that the plaintiff “ tendered a reconveyance of the lands to the defendant,” and that the deed so tendered “is herewith filed and tendered to defendant,” the obvious answer is that the plaintiff) having presented the deed itself with the petition (to keep good the tender), expressly invoked the judgment of the court upon its sufficiency. If the plaintiff had simply averred a tender of a conveyance of the land, and the defendant had admitted it, there would have been foi’ce in the suggestion. As it is, the issue rests as upon express admission of the defendant that the deed filed with the petition was'tendered to him. How could he better raise the issue than to urge at the hearing, as he did, that the deed was not sufficient to pass title.

But the plaintiff offered this deed in evidence; it was received without objection, and a true copy of it is marked “ C,” and made a part of the bill of exceptions. It is given in the foregoing statement of the case. It ought to be sufficient, however, to say that the plaintiff did not and does not maké this question, but, on the contrary, all controversy is set at rest by the statement in the brief of plaintiff’s counsel, that:

“ A true copy of the original deed tendered to the defendant will be found in the printed record on page 25, marked ‘ C.’ This deed- was deposited with the elerl, and, when the the case was appealed, could not, for some time, be found, but was afterward found, and put in evidence on the last trial of this case, without objection, but in the argument to the court the defendant’s counsel claimed that it was not the deed of the city, but that of Mr. S. J. Kintz.”

As this deed must have entered into the consideration of the court below as one of the facts of the case, it is not easy to see how this court could review its action with the bill of exceptions silent upon this subject. This deed and its sufficiency were treated by the parties as involved in the issues, and it is now too late to contend that they were not in issue.,' Woodward v. Sloan, 27 Ohio St. 592. In that case it was held that where facts alleged in an answer are not denied in the reply, and the case proceeds to trial upon the evidence, as if such facts were denied, without objection or exception, until after the judgment of the court of common pleas is affirmed by the district court, the judgment will not be reversed on the ground that the answer was not denied in the reply.

2. As already stated, the right of the city to ask a specific performance, and hence the disposition of this case, rests upon the validity of this deed, or its sufficiency to pass to Shawhan a good, marketable title to the land.

The duty of a court to decree specific performance of a contract can not be determined by any iron' rule, but depends upon the peculiar facts and equitable considerations of each ease, and rests in the sound discretion of the court, guided and regulated, so far as may be, in the exercise of that discretion, by precedent and established practice; Port Clinton R. R. Co. v. C. & T. R. R. Co., 13 Ohio St. 549 ; Willard v. Taylor, 8 Wall. 557; Waters v. Howard, 1 Md. Ch. 112 ; Ewing v. Beauchamp, 6 B. Mon. 426; 3 Pars. Con. *352 ; 2 Story Eq., sec. 724; 3 Pom. Eq. 446.

If a contract for the conveyance of real estate is in all respects fair and free from ambiguity, and its execution according to the prayer of the vendor will vest a marketable title in the purchaser, it is as much a matter of course fob a court of equity to decree specific performance of it as it is for a court of law to award damages for its breach. St. Paul’s Division v. Brown, 9 Minn. 151; King v. Hamilton, 4 Pet. 311; Greenaway v. Adams, 12 Ves. 395; 3 Pom. Eq., sec. 1404; 5 Waite Ac. & Def. 765.

If, however, the specific performance of the contract would be harsh and oppressive, or would leave the purchaser with a doubtful and unmarketable title, the court, in the exercise of its discretion, will refuse to decree its performance, but leave the parties to their legal remedies.

The rule is fundamental that the purchaser will not be compelled to accept a doubtful title. Ludlow v. O’Neil, 29 Ohio St. 182; Wilson v. Tappan, 6 Ohio, 172; Richmond v. Gray, 3 Allen, 27 ; Watts v. Waddle, 1 McLean, 200; Bates v. Delevan, 5 Paige, 299; Fry Specif. Perform., secs. 576, et seq.; Powell v. Conant, 33 Mich. 396; Vreeland v. Blauvelt, 23 N. J. Eq. 483; Stapylton v. Scott, 16 Ves. 272; Wilcox v. Bellaers, 12 Eng. Chan. (1 T. & R.) 495 ; Adams Eq. *84.

The reason of this rule applies with equal force where the doubt proceeds from the form of the conveyance tendered as from the title of the vendor. The effect upon the title of the purchaser is the same in either case.

3. The foregoing considerations invite inquiry into the form and effect of the deed by which the city of Tiffin undertook to 'convey this land to Shawhan.

There is no general statute in this state directing the form or manner of execution of deeds by corporations.

. “ The mode in which, at common law, corporations aggregate execute deeds, is by affixing thereto their corporate seal. 1 Bl. Com. 475; 1 Pars. Con. 140, 141; 3 Sugden on Vend. 353; Angel & Ames on Corp. 268; 15 Wend. 258.” Scott, J., in Sheehan v. Davis, 17 Ohio St. 581.

This proposition is also strongly supported by the following authorities, relating chiefly to the subject of conveyances by public corporations. De Zeng v. Beekman, 2 Hill, 489; Kinzie v. Trustees of Chicago, 2 Scammon, 187; City of San Antonio v. Gould, 34 Texas, 77. It is said in this case, by Walker J.: “A broad distinction is kept up through the authorities between trading and municipal corporations ; the former are permitted to do many things in the way of simple contracts without the common seal of the corporation, w'hich municipal corporations are not allowed to do.”

At common law the signature of a corporation is its corporate seal. Doe v. Hogg, 4 Bos. & Pul. 306; Gordon v. Preston, 1 Watts, 385 ; Frankfort Bank v. Anderson, 3 A. K. Marsh. 932; Beckwith v. Windsor Manuf. Co., 14 Conn. 594.

Regarding the form of conveyances by municipal corporations, it is said by Dillon (Mun. Corp., sec. 581): “ Conveyances of real estate should, in general, be executed in the corporate name and under the corporate seal.”

In the case at bar, the deed is neither in the corporate name of the city nor under its corporate seal.

The granting clause of the deed is in these words: “ Now, therefore, I, Sylvester J. Kintz, city clerk of the city of Tiffin, by virtue of the powers in me vested by said ordinance, and in pursuance thereof, do hereby give, grant, bargain, sell and convey unto the said Rezin W. Shawhan, his heirs and assigns forever, the lands and tenements described as follows,” etc.

The deed is signed by “ Sylvester J. Kintz, city clerk, city of Tiffin,” who affixes his own private scroll seal, and the seal of the “ city clerk of Tiffin, Ohio.”

It is maintained, howevei’, in behalf of the city, that as the statutes do not prescribe the form of conveyance by the city, it was competent for the city, by its council, to prescribe by ordinance how the conveyance should be made.

Section 4 of the ordinance relied upon directs: “ That the city clerk of said city is hereby authorized and directed to make, execute and deliver ... a proper deed of conveyance, under the corporate seal of said city.”

Whether the city could lawfully invest her clerk with power to make a conveyance under her corporate seal, is a question v'hich we are not called upon to determine. It would seem, however, to be a question of sufficient doubt to call for the application of the rule already announced, and justify the court below in refusing to compel the defendant to accept the deed tendered him.

By immemorial usage, if not, indeed, by our statutes, the mayor.of a municipal corporation is its chief administrative and executive officer. 1 Billon Muu. Corp. 208.

To him is confided the custody and use of its corporate seal.

The Revised Statutes (section 1745) provide that the mayor “ shall be furnished by council with the corporate seal of the corporation, in the center of which shall be the words, ‘ mayor of the city of-,’ or ‘mayor of the village of--,’ as the case may be.”

Section 1746 provides that the mayor “ shall sign all commissions, licenses, and permits granted by authority of the council, or authorized by this title, and such other instruments as by law or ordinance may require his certificate.”

Section 1764 provides that “ the city council shall cause to be provided for the clerk’s office a seal, in the- center of which shall be the name of the corporation, and around the margin the words, ‘ city clerk,’ or in case of a village, the words, ‘ corporation clerk;’ which seal shall be affixed to all transcripts, orders, certificates, or other papers which it may be necessary or proper to authenticate.”

The respective functions of the mayor and clerk in these respects would seem to be clearly defined by these provisions.

To the mayor is confided the “ corporate seal of the corporation ;” to the clerk, the seal of his office. To the mayor is confided the execution of such writings as the corporation may be called upon to issue; to the clerk, the authentication of such papers as may require it.

We can not suppose that it was ever intended or contemplated that the use of the mayor’s seal, which is the corporate seal, should be intrusted to the clerk, who is provided with a seal peculiar to his office.

If, however, we go to the extreme of holding that it was competent for the council to authorize the city clerk to execute a conveyance in behalf of the city under its corporte seal, we encounter another principle which suggests grave doubt of the validity of this conveyance. It is that the execution of a power to convey land bj public officers must be in strict pursuance of the power, or no title is conveyed. Osborne v. Tunis, 1 Dutcher (N. J.), 684.

The authority conferred upon the city clerk by the ordinance was to execute “ a proper deed of conveyance under the corporate seal of said city.”

Even this authority, doubtful at best, was not pursued by the clerk.

While too great nicety and formality ought not to be exacted in the execution of title deeds, yet the highest considerations of public policy demand that the certainty and stability of the tenures by which our people hold their lands be not placed in peril by encouraging and enforcing forms and modes of conveyances so doubtful and equivocal as that now called in question. When the sufficiency of this deed was challenged, as counsel for plaintiff inform us it was, it was not too late for the plaintiff to supply a valid deed; but it saw fit to rest its ease upon the deed tendered, and invoked the action of the court upon its case as made.

This deed is worse than doubtful. It is invalid, and ineffectual to pass the title of these lands from the city of Tiffin to Shawhan. The court below very properly exercised its discretion in refusing to compel its acceptance by the defendant. Whether the city is concluded- by this judgment from still tendering a sufficient deed and demanding performance of defendant, we are not called upon to determine.

Judgment affirmed.

McIlvaine, C. 3.,

dissenting: It appears to me that the judgment of the district court should be reversed. The action was to enforce the specific performance of a contract brought by the city of Tiffin against Shawhan. The city had purchased from Shawhan a tract of land, had paid the purchase-money and received a conveyance. By the contract of sale Shawhan had stipulated to repay the purchase-money, with interest, to the city, upon the reconveyance to him of said lands before the 1st of»July, 1875. Before the expiration of the time limited, the city determined to re-convey the land and insist on the repayment of the money. The city, having given notice to Shawhan of its determination, at the request of Shawhan and for his benefit, delayed the reconveyance of the laud and the repayment of the money until April 1, 1876. The defendant by his answer admitted the making of the contract, but denied that the time for reconveyance of the land or repayment of the money was delayed until April 1,1876, at his request.

The answer further set forth : “ That in and by the terms of said contract, as set forth in said petition, the said city of Tiffin, Ohio, had the option to reeonvey said property to this defendant, and insist on the repayment of said sum of money.”

But this defendant avers “that the city of Tiffin did not at or prior to the said 1st day of July, 1875, or within a reasonable time thereafter, offer or tender to this defendant a reconveyance of said property, or seek to enforce the said contract, and not until the-day of April, 1876, when said property had largely decreased in value.”

By an amendment to the answer the defendant averred certain new matter, which need not be here stated. These averments were denied by reply. •

On the trial of the cause in the district court, where it had been taken by appeal, the equities of the case were found for the defendant and judgment accordingly.

The testimony is all set forth in a bill of exceptions.

It is evident from the record that the finding and judgment in the court below were founded on the ground that the original purchase by the city was for an unauthorized purpose, and therefore the relief prayed for in the petition could not be granted in this action. The case was dismissed -without prejudice to another form of action.

On consideration of the case in this court, I understand that the court is unanimous in the conclusion that the testestimony clearly shows that the delay in tendering a re-conveyance of the land to Shawhan until April 1, 1876, was at his request; and also that the issue made by the amendment to the defendant’s answer and the reply thereto was wholly immaterial.

Upon consideration of these questions the judgment below was clearly erroneous.

There appears, however, in the bill of exceptions, a copy of the deed purporting to be a reconveyance of the land to Shawhan, delivered by the city to Shawhan on April 1, 1876. This deed does not purport to be a conveyance by the city to Shawhan, but a conveyance by one Kintz, who executed the same as city clerk. The seal of the city is not attached to the deed, but the seal of the city clerk is attached.

For the purposes of this case I concede that such deed would not be sufficient to transfer the title from the city to Shawhan, and was not such a deed as the city was bound to tender. The city clerk had been duly authorized to execute a proper and sufficient deed of the city, but admitting that he had failed to do so, as far as the record shows, my point is, that the judgment should, nevertheless, be reversed for errors heretofore stated.

The court, however, sustains it solely on the ground that the deed of which this purports to be a copy was not sufficient to reconvey the title from the city to Shawhan.

Under the state of the pleadings set forth in this record, there was no issue as to the fact of reconveyance. The plaintiff had averred the tender of a sufficient deed of re-conveyance on the 1st of April, 1876. The defendant had admitted the averment to be true. The plaintiff was not called upon to offer any proof. No such question of fact was raised by the pleadings. No such question, outside of the pleadings, was submitted to the court below, or passed upon by the court.

True, a copy of the supposed deed is found in the bill of exceptions. But it has no legal significance there. It is said that it was offered by the plaintiff in error; at least there was no objection to it. Suppose it be so, that does not give it legal significance. I may suppose that other immaterial matter be found in the bill of exceptions, offered by the plaintiff' or without his objection. Such exhibit does not change the law or the legal effect of the issue.

In my opinion the judgment should not be affirmed on the grounds stated. The judgment of the district court is now conclusive between the parties. No opportunity is now given to the plaintiff to show that a proper and legal conveyance was tendered the defendant, as he has admitted was done. If the defendant desires to rely on this defense, no opportunity is given the plaintiff to correct the mistake, if it be one.

I think the case should have been sent back for further proceedings.

Johnson, J., concurred in the dissent.  