
    [No. 8609.
    
      En Banc.
    
    May 3, 1910.]
    W. Hammond Wright et al., Appellants, v. Hendrick Suydam et al., Respondents.
      
    
    Specific Performance — Title of Defendant — Evidence—Sufficiency. Specific performance of a contract to convey a ten-acre tract, sold to plaintiffs by the defendant, cannot be decreed where-defendant had no title thereto; holding simply an option on forty acres of which the ten-acre tract was a part, which option was not paid up; the price realized from the sale to the plaintiff being insufficient to pay up defendant’s option and obtain title to the land,, and defendant’s vendor being unwilling to convey to defendant until the whole forty acres was paid for.
    Same — Alternative Relief — Damages. Damages for breach of' contract to convey land cannot be awarded in an action brought for specific performance, where, to the knowledge of the plaintiff, the-facts did not at any time warrant a decree for specific performance.
    Specific Performance — Dissmissal of Suit — Form of Decree. Upon denying specific performance of a contract to convey land because of want of title in the vendor, dismissal of the action should he without prejudice, especially where the vendor’s title may be perfected or the vendee may be entitled to other relief under the contract.
    Appeal from a judgment of the superior court for King county, Canfield, J., entered June 28, 1909, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action for specific performance..
    Affirmed.
    
      Wright <$? Kelleher and Wm. Hichman Moore, for appellants.
    
      Roberts, Battle, Hulbert $ Tennant (C. J. France, of' counsel), for respondents.
    
      
       Reported in 108 Pac. 610; 110 Pac. 8.
    
   Parker, J.

This is an action to enforce specific performance of a contract for the sale of land. A trial resulted in judgment denying the relief prayed for by plaintiffs, and they have appealed to this court. The facts are much involved, and some of them are seriously in dispute. However, we think certain of the facts shown by the record, beyond controversy, will enable us to determine the rights, of the parties. These, so far as necessary for us to notice, are as follows:

On August 14, 1908, the respondent Hendrick Suydam executed and delivered to appellant W. Hammond Wright the following contract for the sale of ten acres of land in King county:

“100.00
“Received of W. Hammond Wright the sum of one hundred dollars as part payment upon purchase price of the following described real estate. [Here follows description.] The balance of the purchase price of the said premises is Seventy-nine hundred dollars to be paid in cash, upon delivery of deed.
“The undersigned owners of said premises agree within fifty days to deliver to the purchaser an abstract of title prepared and certified by a reputable and approved abstract company, showing title to said' property in said owners in fee simple free from all liens and encumbrances as herein stated, and good and marketable, and to convey such title to the purchaser, his heirs or assigns, by warranty deed prepared by the purchaser with full covenants satisfactory to the purchaser.
“If upon investigation title to said premises shall be found to be insufficient in any of the respects aforesaid, either in fact or as shown in the abstract, or shall be unsatisfactory to the attorney for the purchaser, the purchaser may at any time thereafter at his option elect to have the sums of money theretofore paid by him as part payment of the purchase price, immediately repaid to him, and in the event of such election the owners shall return such sums and all further obligation upon their part shall then cease: provided, however, that such election cannot be exercised until after thirty days after the objections to title are pointed out in writing to the owners, which length of time is allowed to them to remedy the same.
“If title to the said described premises shall not be subject to objection in any of the respects aforesaid, and shall be satisfactory to the attorney for the purchaser and the purchaser shall fail upon his part to perform any of the terms of this agreement; then the said, sum of money first above mentioned, shall be retained by the undersigned owners as liquidated damages, and they shall also be entitled to a return to them of the said abstract, and neither party shall be under any further liability.
“Deed is to be executed immediately upon examination of abstract, or within time allowed to owners to cure objections.
“Purchaser is to have twenty days after delivery of abstract within which to examine title.
“Time is of the essence of each of the provisions of this agreement.
“Dated at Seattle, Washington, this August 14, 1908.
“Hendrick Suydam, Owner.”

Since July 14, 1908, the respondent Stevenson Sanders Land Company has been the owner of a certain tract of land containing forty acres, ten acres of which tract is the same land mentioned in the contract above set forth. The only interest the respondent Suydam has ever had in this ten acres was under an option lie held to purchase the whole forty acres, executed by the respondent land company on July 14, 1908, and under a contract to purchase the same, entered into by the land company with him on August 15, 1908. By the terms of this contract Suydam was to pay the land company, as the purchase price for the entire forty acres, the sum of $24,000; $6,000 of which he paid in cash, and the balance to be paid $6,000 on or before July 1, 1909, $4,000 on or before July 1, 1911; $4,000 on or before July 1,1912, and $4,000 on or before July 1,1913. At the time of rendering the final judgment in this case, no part of the purchase price had been paid upon this contract, other than the $6,000 paid at the time of its execution, so that $18,000 remained unpaid thereon. Suydam is not entitled to a conveyance under this contract until the payment of the whole of the purchase price with 7 per cent interest per annum on deferred payments. Time is made the essence of this contract, and a failure to make payments as therein agreed would result in a forfeiture of all of Suydam’s rights thereunder.

In their complaint the appellants refer to both the option and contract ■ under which Suydam acquired his right to purchase the forty acres, referring to the record of the option and contract in the auditor’s office of King county by volumes, pages, and dates, and allege that, “The defendant Suydam has no right, title or interest, in said property other than such as is derived through the said written agreement.” We mention this to show appellants’ knowledge, prior to their commencement of this action, of the nature and extent of Suydam’s interest in the land. The appellants, knowing that Suydam did not own the land in fee and that he for that reason could not convey good title, have never offered unconditionally to pay him the balance of the purchase price upon the contract for the ten acres and. signified their willingness to take from him a conveyance of such title as he possessed. The nature and extent of their offer is best shown by the allegation in their complaint as follows:

“The plaintiffs now are, and at all times herein mentioned have been ready, willing and anxious, provided good title is shown by proper abstract, to proceed with the purchase of said property under the terms of said option shown in the said Exhibit “A,” and now are and at all times have been ready to pay in full the balance of the purchase price of the said property.”

The Exhibit “A” mentioned, is the contract for the ten acres above set forth. The respondent land company by its answer admits the execution by it of the contract of August 15, 1908, by which it agreed to sell the forty acres to Suydam, and alleges affirmatively that Suydam has paid $6,000 on the purchase price and no more; and further alleges,

“That this defendant does not know and cannot pass upon with safety to itself the difference between the said plaintiffs and the said defendant Hendrick Suydam, but has been at all times ready and willing and is now ready and willing to convey the said lands and premises under the terms of said option to the person or persons entitled to such conveyance upon the performance of the terms and conditions of said option by said person or persons and hereby tenders performance of said option to such person or persons as the court may adjudge entitled to a conveyance herein.”

The word “option” in this allegation clearly means the contract to sell Suydam the forty acres, of August 15, 1908. The land company prays that it be not subjected to costs and that its rights be fully protected. The affirmative matter' in this answer is not replied to, so it stands as admitted.

Learned counsel for appellants, as we understand them, contend that, in view of the attitude of the respondent land company, and its willingness to convey to Suydam or whomsoever the court may determine is entitled to succeed to his interest, the appellants have the right to have such a decree entered in their favor as to cause the balance of the $7,900, due upon their contract with Suydam for the ten acres, to be applied in payment of Suydam’s obligation necessary to perfect his title to the ten acres, and that they then have conveyance of the ten acres, either from the land company through Suydam or from the land company direct. This contention is based upon what we regard as an erroneous assumption as to the nature and extent of the offer made by the land company. The land company does not offer to convey the ten acres upon the payment to it of any certain sum due from appellant to Suydam, but offers to convey under the terms of its contract with Suydam. This offer can mean nothing less than an offer by the land company to convey when it has been fully paid, the balance of the purchase price upon the whole forty acres. If the contract between the land company and Suydam was for the sale of the ten acres only, which Suydam agreed to convey to appellants, and the balance due from appellants to Suydam was sufficient to pay the balance due the land company from Suydam, and thus perfect Suydam’s right to specific performance as against the land company, then the specific performance which is here prayed for might be possible in the manner sought to bring it about. The trouble with enforcing specific performance is that the land company cannot be required to convey upon any different terms than that expressed in its contract of August 15, 1908, wherein it agrees to convey to Suydam the forty acres upon payment of $£4,000. Upon no other conditions can the land company be required to convey, either to Suydam or to any one who may succeed to his interest.

It is clear that if the whole of the balance of $7,900, due to Suydam upon his contract for the sale of the ten acres to appellants, were applied towards the payment of the $18,000 due from him to the land company, still neither he, nor any one claiming under him, would be entitled to a conveyance from the land company. The condition upon which the land company is required to convey would still fall far short of performance. There is nothing in this record showing that the land company has ever offered or is required to convey this ten acres, except by a conveyance of the whole forty acres upon payment to it of the balance of the purchase price named in its contract for the sale thereof. Suydam did not, at any time prior to the rendering of judgment in this case, have title to the land involved so that he could convey the same, nor was his interest in the land of such nature that the court could by its decree place appellants in such position as his successor in interest that they would be entitled to a conveyance from the land company of the ten acres, even by payment to it of the whole of the balance of $7,900 due from appellants to Suydam. The court has no means of compelling Suydam to perfect his title, except possibly by directing the application of the balance due him from appellants, if that would accomplish such result; and since that sum is clearly insufficient to satisfy the conditions upon which the land company can be compelled to convey, we are of the opinion that the court can not decree specific performance by directing the land company to convey; and a decree requiring Suydam to convey would be an idle and fruitless thing. It is elementary that “the contract must be such that the court is able to make an efficient decree for its specific performance, and is able to enforce its own decree when made.” 4 Pomeroy, Equity Jurisprudence (3d. ed.), § 1405; 2 Warvelle, Vendors (2d. ed.), §752; Maupin, Marketable Title to Real Estate, 480; Snell v. Mitchell, 65 Me. 48; Ormsby v. Graham, 123 Iowa 202, 98 N. W. 724; Pads v. Gaither, 73 N. C. 95; Chartier v. Marshall, 51 N. H. 400.

The facts not warranting a decree for specific performance at the time of commencement of the action or any time thereafter, and being known to appellants, the question of their damage is not in this case. Peters v. Van Horn, 37 Wash. 550, 79 Pac. 1110; Morgan v. Bell, 3 Wash. 554, 28 Pac. 925, 16 L. R. A. 614.

Other contentions made by counsel relate to disputed facts touching the alleged forfeiture of appellants’ rights under their contract with Suydam. These need not be noticed, since they in no event would change the result. We conclude that the judgment should be affirmed. It is so ordered.

Rudkin, C. J., Crow, Mount, Chadwick, Dunbar, Fullerton, and Gose, JJ., concur.

On Rehearing.

[Decided August 6, 1910.]

Parker, J.

Appellants have petitioned for a rehearing of this cause which we have granted, for the purpose of determining whether or not the judgment of the learned trial court should be modified and limited in its effect so as to leave open for adjudication upon the merits the question of appellants’ right to specific performance of the contract sued upon, in the event appellants desire to bring a new action for that purpose. By' our former opinion, it was held, in effect, that appellants should have been denied a decree of specific performance, because, at all times prior to the rendering of the judgment denying such relief, it was not possible for the court to render or enforce an efficient decree of specific performance whatever the rights of the parties might be, by reason of the want of title in respondent Suydam such as would enable him to convey in obedience to any such decree. We were not called upon to express any opinion upon the merits of appellants’ rights as against respondents, that question not being involved when it was once determined that in no event could specific performance be enforced as the title stood at the time of, and prior to, rendering the judgment appealed from.

If the judgment of the learned trial court had gone no farther than to merely deny specific performance and dismiss the case, without assuming to finally adjudicate the rights of the parties under the contract sued upon, we would be content to let our former opinion affirming the judgment rest without modification. But we are reminded that, inadvertently, the full force and effect of the judgment was overlooked in the former review of the case. The judgment by its terms not only denies specific performance, but also, in effect, decrees that appellants are not entitled to any relief upon the contract, that it be cancelled of record, and that the property thereby agreed to be conveyed be “discharged and cleared from any and all cloud or incumbrance which may exist thereon by virtue of the executing of said instrument by said defendant Suydam.” By reference to the former opinion, it will be seen that respondent Suydam’s title to the land which he agreed to sell appellants may have become perfected after the rendering of the judgment of the trial court, or may even in the future become so perfected, since the contract by which he was to acquire the land apparently may be kept alive by him until 1913. And it is also possible that appellants may have a right of specific performance when Suydam’s title becomes such as to enable a court to render and enforce an efficient decree to that end. We express no opinion upon these questions ; but in view of the ground upon which a decree of specific performance must have been denied at the time of rendering the judgment appealed from, we are of the opinion that the judgment should be vacated, and in lieu thereof a judgment of dismissal entered without prejudice to a new action.

It is urged by learned counsel for appellants that we should remand the case for further evidence or for a new trial. This we think would not be a proper practice. This case came to an end when the trial court disposed of it, and we are now only to determine what final judgment should then have been entered. Wagner v. Law, 3 Wash. 500, 28 Pac. 1109, 29 Pac. 927, 28 Am. St. 56, 15 L. R. A. 784.

The trial court is directed to vacate its judgment, and in lieu thereof enter a judgment dismissing the action without prejudice to the rights of the appellants to commence a new action. In view of this disposition of the case, we conclude that each party should pay their own costs in this court.

It is so ordered.

Rudkin, C. J., Gose, Fullerton, Chadwick, Mount, Crow, and Morris, JJ., concur.  