
    HAZZARD v. MORRISON.
    (Supreme Court of Texas.
    Jan. 31, 1912.)
    Specific Performance (§ 32) — Conteacts ENFORCEABLE.
    Where the defendant, for herself and as agent for an executor, contracted to convey two adjoining lots, only one of which was owned by defendant, and the contract for the sale by the executor was unenforceable for want of power to convey, there was no lack of mutuality in the contract, and the vendee could have specific performance of the contract, so far as it provided for the transfer of defendant’s lot.
    [Ed. Note. — Eor other eases, see Specific Performance, Dec. Dig. § 32.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by R. H. Morrison against Elizabeth Hazzard and others. There was a judgment of the Court of Civil Appeals (130 S. W. 244), affirming a judgment for plaintiff, and defendant named brings error.
    Affirmed.
    W. H. Clark, Leake & Henry, and Ethe-ridge & McCormick, for plaintiff in error. Cobb & Avery and Cockrell, Gray & Thomas, for defendant in error.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   BROWN, C. J.

This suit was instituted by defendant in error in a district court of Dallas county to compel the specific performance by Mrs. Elizabeth Hazzard of the following contract: “Dallas, Texas, May 20, 1901. Received of R. H. Morrison, through Murphy & Bolanz, the sum of $250.00 in part payment of lots 7 and 8, in block 97 — 1/4—136, according to Murphy & Bolanz’s official map of the city of Dallas, Texas, said lots fronting together 100 feet on the north line of Jackson street and 90 feet on the west line of Prather street, this day sold by me as agent of the estate of E. Lawrence 25 feet, and E. Haz-zard 75 feet, to the said R. H. Morrison for the purchase price of $5,000.00,' upon the following terms: $3,000.00 cash, and the balance in two notes of equal payments, and due and payable one and two years after date, with six per cent, interest, the interest payable semiannually as it accrues, with the privilege granted the maker of paying off any and all of said notes at any time before maturity upon giving sixty days’ notice, said notes to be secured by the usual form of vendor’s lien and deed of trust upon the property, conditioned upon an authentic abstract showing a good and acceptable title to the property, and should the title to said property prove not good and cannot be made good within a reasonable time, say not to exceed sixty days from the date hereof, then I obligate myself to return the said Morrison the sum of $250.00 now paid upon the return and cancellation of this receipt. Balance of cash payment to be made and notes and deed of trust to be executed at once upon delivery of special warranty deed properly conveying the hereinbefore described property. It being understood that the property is to be free and clear of all incumbrances of whatsoever nature, including taxes for the year 1901. -, [Agent of] H. A. Kahler; by B. O. Weller.”

Elizabeth Hazzard and Franklin Lawrence, executor of the estate of Archilus Lawrence, resided in Philadelphia and owned the land in question in this proportion: The estate of Lawrence owned' 25 by 90 feet, which fronted on the north line of Jackson street and 90 feet on Prather street. Mrs. Haz-zard owned 75 feet front on North Jackson street, adjoining the 25 feet and running with it 90 feet, so that the two parcels to-' gether constituted a lot or parcel 100 feet on Jackson and 90 feet on Prather street, Archilus Lawrence had been dead many years, and Franklin Lawrence was his executor or administrator with the will annexed. The will was neither probated nor recorded in this state. The executor and Mrs. Hazzard placed their parcels in the hands of a real estate agent in Dallas to be sold as a whole. The sale was made on terms expressed in the contract before copied. The $250 specified in the contract was paid, but the executor did not make a deed, because he had no authority to make the sale or give a deed, and this court held that the attempted sale was not enforceable against the estate. 99 Tex. 583, 92 S. W. 33. The action then 'assumed the form of a suit by Morrison against Mrs. Hazzard. Assuming that the findings of the courts are correct, the litigation has been reduced in this court to a contest over the one proposition: Can Mrs. Hazzard be compelled to convey the 75 feet, notwithstanding the joint character of the contract?

The first question which arises upon the contract is: Do its terms express a joint contract by the Lawrence estate and Mrs, Hazzard, and was there mutuality in the obligation? Was Morrison equally bound by the terms of the agreement to accept both lots upon compliance by the vendors?

Counsel for plaintiff in error place much stress upon want of mutuality in the contract. In Page on Contracts it is said: “In order to have specific performance, the contract sued on must have mutuality of obligation; that is, the contract must be binding on both parties.” 3 Page on Contracts, § 1615, p. 2450. This is a clear and concrete statement of the law. By the terms of the contract sued upon the vendee in express terms agreed and bound himself to accept both lots of land, and if the title had been good to both he could have been compelled to accept both; but when the title to one lot failed, the vendee had the option to demand partial performance by a conveyance of the other lot The condition which learned counsel calls a want of mutuality arises out of the failure of title to one portion through want of authority of the agent. Defendant instituted suit to enforce the entire contract, offering complete performance, but was defeated because the contract as to the estate of Lawrence was void. But the case was remanded for trial as to Mrs. Hazzard. Morrison v. Hazzard, 99 Tex. 583, 92 S. W. 33. There was no want of mutuality in the contract.

Since the contract as to the estate of Lawrence is void, it is the obligation of Mrs. Hazzard alone, and the issues may be simplified by clearing it of the complications arising‘upon a contract made by two persons to convey several pieces of land, and we shall treat it as the obligation of Mrs. Hazzard alone to convey the entire property, which belonged to her and another. If such ‘were the expressed form of the contract, what would be the rights and liabilities of the parties? In such case the vendee, not being in default, would be entitled, if the property was of equal value in its several parts (the purchase money not having been paid), to have a decree for the specific performance by the conveyance by the vendor of the 75 feet by 90 feet to which she had a.good title, with an abatement of the sum to be paid to the extent of one-fourth; that being the proportion that the lot to which the title failed bears to the whole. Campbell v. Hough, 73 N. J. Eq. 611, 68 Atl. 759; Tobin v. Larkin, 183 Mass. 389, 67 N. E. 340; Keator v. Brown, 57 N. J. Eq. 600, 42 Atl. 278; Melin v. Woolley, 103 Minn. 498, 115 N. W. 654, 946, 22 L. R. A. (N. S.) 595; Cochran v. Blout, 161 U. S. 350, 16 Sup. Ct. 454, 40 L. Ed. 729.

If we consider the contract as the obligation of Mrs. Hazzard to convey the 75 by 90 feet only, then, she having title to that part, the vendee had the right to have a decree for specific performance of that lot. In that case it would not concern her that the title to the 25 feet failed, for she would receive what she contracted to accept for her property. Roberts v. Lovejoy, 60 Tex. 253; Goff v. Jones, 70 Tex. 572, 8 S. W. 525, 8 Am. St. Rep. 619; Pomeroy, Specific Performance, § 831 et seq.

In Keator v. Brown, 57 N. J. Eq. 600, 42 Atl. 278, the defendant had contracted to sell her own interest and without authority to sell the interest of a cotenant in a tract of land. The court entered judgment against the vendor, saying: “The court is not obliged to readjust the terms of the contract as to her. It only compels Rebecca to do just what she agreed to do as to her interest. She owns an undivided half, and it is this which it is decreed that she must convey. She gets exactly the price that she bargained for, and that she would have received, had her sister ratified. It would be hard to find a case in which the rule would operate more equitably.”

It is ordered that the judgments of the district court and Court of Civil Appeals be affirmed, and that plaintiff in error pay all costs.  