
    CROWLEY v. CROWLEY et al.
    (Court of Appeals of District of Columbia.
    Submitted March 5, 1926.
    Decided June 1, 1926.)
    No. 4381.
    
    1. Specific performance <2=32(1).
    Right to enforce specific performance of contract depends on mutuality of obligation; hence person against whom contract cannot be enforced cannot enforce it.
    2. Specific performance <2=49(1) — Agreement without consideration by purchaser of land to await seller’s perfection of title held insufficient to support seller’s action for specific performance.
    Agreement without consideration by purchaser of property at a judicial sale, who was guaranteed good record title, to await perfection of title by trustees making sale, held not a new agreement, or an extension of the original agreement, sufficient to support an action for specific performance by the trustees, who did not perfect title until nearly two years after sale and after purchaser had withdrawn offer.
    3. Speeifio performance <2=32(2) — Performance by party to contract of conditions which could not have been specifically enforced against him does not entitle him to enforce specific performance against other party.
    Where a contract, when execuied, is not specifically enforceable against one of parties, that party, by performing the conditions that could not have been specifically enforced, does not put himself in a position to demand specific performance of the other party.
    4. Specific performance <2=100 — Trustees making judicial sale, but not perfecting their title until purchaser had withdrawn offer to await perfection of title, held not entitled to enforce specific performance of purchaser’s contract.
    Where purchaser of property at judicial sale, who was guaranteed good record title, on inability of trustees making sale to give good title, agreed to await perfection of title by them, hut before title was perfected withdrew her offer to wait, because the delay had resulted in loss to purchaser of opportunity to lease adjoining property, held, trustees, not perfecting title until nearly two years after the sale was made, could not then enforce specific performance.
    5. Judicial sales <2=31(1).
    A judicial sale is made pendente lite, with the court as vendor, until there is a judicial confirmation.
    6. Judicial sales <2=31(2) — Rule that intervention of disappointing conditions is no defense against prompt confirmation of judicial sales does not apply, where title guaranteed to be good proves defective.
    Judicial sale of land is not rendered unenforceable by mere lapse of sufficient time to procure a confirmation thereof; hence fact that purchaser may have paid excessive price, or that disappointing conditions may have intervened, is no defense against prompt confirmation. But such rule does not apply, where title which was guaranteed to be good proves defective.
    Appeal from the Supreme Court of the District of Columbia.
    Suit by Robert M Crowley and others, trustees, against Margaret A. Crowley, for specific performance of contract to purchase land. From a decree for plaintiffs, defendant appeals.
    Reversed and remanded.
    J. Y. Reeves and D. T. Wright, both of Washington, D. C., for appellant.
    C. C. James and W. W. Millan, both of Washington, D. C., for appellees.
    Before MARTIN, Chief Justice, ROBB, and VAN ORSDEL, Associate Jnstices, and BARBER, Judge of the United States Court of Customs Appeals.
   VAN ORSDEL, Associate Justice.

Appellant, defendant below, bid in the property here in question at public auction on May 28, 1923. One of the terms of sale was, “Good record title or no sale.” The auction was conducted by order of court through appellees, plaintiffs below, as trustees, and the present action was brought to enforce specific performance of the alleged contract of purchase by defendant.

The property consisted of lots fronting on each of two intersecting streets, with a vacant comer lot between. Tbe vacant lot is situated at the comer of P street and Wisconsin avenue, and tbe lots in question surround it, facing west on Wisconsin avenue and north on P street.

Tbe case was tried on tbe bill, rule to show cause, and answer to tbe rule to show cause. It is averred in tbe answer, and therefore admitted, that at the time of tbe sale tbe corner vacant lot was owned by tbe Washington Railway & Electric Company; that plaintiff arranged with tbe railway company to lease a large portion of tbe corner lot, with tbe intention of so remodeling the building on tbe property purchased as to open store windows and doors on tbe side walls facing on tbe vacant lot.

Immediately following tbe sale, a title company was instructed to report on tbe condition of tbe title. No report was made until October 20,1923, when it was found that tbe title was defective. Tbe arrangement with the railway company .still being open, defendant informed plaintiffs that she would await tbe perfection by them of tbe title. Plaintiffs consumed five months in an effort to negotiate tbe perfection of tbe title, but their efforts proved futile. Plaintiffs then filed in court a petition, alleging that tbe title bad been found defective and asking leave to perfect the same. To this petition defendant filed an answer, in which she stated that, tbe proposition with tbe railway company being still open, she was willing to complete tbe purchase. Tbe court accordingly authorized the trustees to bring proceedings to quiet tbe title.

Shortly thereafter defendant received notice from tbe railway company withdrawing their proposition to lease her tbe vacant lot, and stating that tbe greater part of tbe property, including all that portion embraced within tbe arrangement with defendant, bad been sold to other parties for tbe purpose of establishing thereon a gasoline filling station. Defendant immediately notified plaintiffs of tbe situation occasioned by the action of tbe railway company, and declared her inability to carry out the contract of purchase at tbe price originally bid. Thereafter, on June 25, 1924, plaintiffs filed a bill to quiet tbe title, and on January 28, 1925, nearly two years after tbe sale, notified defendant, through her attorney, of tbe perfection of tbe title and their readiness to convey tbe property to her. Through her attorney, she then positively refused to earry out tbe agreement for tbe reasons theretofore given. From a decree for specific performance, defendant appealed.

From tbe terms of tbe decree, all that can be considered is tbe petition, tbe rule to show cause, and tbe answer. A large amount of extraneous matter has been improperly brought into tbe record, which will be disregarded. From tbe averments of the answer, it is clear that defendant extended tbe time for fulfilling tbe agreement without consideration, and only upon tbe condition that she would be able to carry out her arrangement with tbe railway company. Tbe right of specific performance depends upon tbe relation of tbe parties with respect to the contract at tbe time of tbe sale. It is clear that plaintiffs at that time were not in position to deliver a good title;' and consequently could not have been compelled to specifically perform their agreement.

It is elementary that tbe right to enforce specific performance depends upon mutuality of obligation. "A contract to be specifically enforced by tbe court must be mutual — that is to say, such that it'might, at tbe time it was entered into, have been enforced by either of tbe parties against tbe other of them. Whenever, therefore, whether from personal incapacity to contract, or tbe nature of tbe contract, or any other cause, tbe contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against tbe other, though its execution in tbe latter way might in itself be free from tbe difficulty attending its execution in the former.” Fry on Specific Performance (3d Ed.) § 440.

Neither did the option to tbe trustees to perfect tbe title form such a new agreement,, or extension of the original agreement, as will support an action for specific performance against tbe defendant. This extension was without consideration, and was definitely withdrawn before plaintiffs filed their bill to quiet tbe title, and more than a year before they filed their bill in tbe present case. Tbe offer or option which defendant gave to plaintiffs to go forward and perfect their title was such an offer as was incapable of acceptance until tbe plaintiffs were in position to fulfill their agreement. They are not in position now to claim aecéptanee through their conduct in perfecting tbe title, since long before this was accomplished tbe offer bad been withdrawn. “Where a contract, when executed, is not specifically enforceable against one of tbe parties, be cannot, by subsequent performance of those conditions that could not be specifically enforced, put himself in a position to demand specific enforcement against the other party.” Norris v. Fox et al. (C. C.) 45 F. 406, quoted with approval in Pantages v. Grauman, 191 F. 317, 325, 112 C. C. A. 61.

Coming to tbe more serious question of tbe equities involved; we think tbe plaintiffs are totally without standing. The delay of almost two years in putting themselves in position to perform the contract resulted in a change of conditions which greatly depreciated the value of the property for the purpose desired by defendant, and rendered it practically useless for her purpose, and where a situation of that kind intervenes, through the delay of the party asking specific performance, a court of equity in the exercise of its discretion will, in g’ood conscience, deny relief. “To stay the arm of a court of equity from enforcing a contract, it is by no means necessary to prove that it is invalid; from time to time immemorial it has been the recognized duty of such courts to exercise a discretion, to refuse their aid in the enforcement of unconscionable, oppressive, or iniquitous contracts, and to turn the party claiming the benefit of such contract over to a court of law.” Pope Manufacturing Co. v. Gormully, 144 U. S. 224, 236, 12 S. Ct. 632, 637 (36 L. Ed. 414).

Plaintiffs’ attempt to avail themselves of the distinction between a suit to enforce the specific performance of a contract growing out of a judicial sale and of a contract between individuals is without avail in this ease. Unlike a contract between individuals, a judicial sale is made pendente lite, with the court as vendor, until there is a judicial confirmation of the sale. The contract growing out of a judicial sale is not, therefore, rendered unenforceable by the lapse of merely sufficient time to procure a confirmation of the sale; hence the fact that a party may have - purchased the property at a price in excess of its value, or disappointing conditions may have intervened, would be no defense against prompt confirmation. But this rule has no application, where there is a defect in title, and the purchase was made upon a guaranty of “good record title or no sale.”

The decree is reversed, with costs, and the cause is remanded for further proceedings not inconsistent with this opinion.  