Opinion
2 Div. 863.
June 18, 1925. Rehearing Denied October 22, 1925.
Appeal from Circuit Court, Wilcox County; S. F. Hobbs, Judge.
Pettus, Fuller Lapsley, of Selma, for appellants.
A contract will be specifically enforced only where there is mutuality of obligation and remedy. 25 R. C. L. 232; Iron Age Pub. Co. v. W. U. Tel. Co., 83 Ala. 498, 3 So. 449, 454, 3 Am. St. Rep. 758.
R. B. Evins, of Birmingham, for appellee.
As to the right of a party to compel specific performance of a contract to convey land, see Bogan v. Daughdrill, 51 Ala. 312. The fixing of a penalty for default does not affect the right to specific performance. 1 Pomeroy's Eq. Jur. (4th Ed.) § 446. Mutuality of remedy need not exist prior to the time of decree. Zirkle v. Ball, 171 Ala. 568, 54 So. 1000; Blackburn v. McLaughlin, 202 Ala. 434, 80 So. 818; 5 Pom. Eq. Rem. (2d Ed.) 4930.
It is well settled by the authorities that the equitable right to specific performance of a contract is not affected by the provision of mutual penalties for nonperformance. "Where a person has agreed to do a certain act, or to refrain from doing a certain act, and has added a penalty for the purpose of securing a performance, a court of equity will, if the contract is otherwise one which calls for its interposition, compel the party to specifically perform, or restrain him from committing the act, as the case may be, notwithstanding the penalty. If the sum stipulated to be paid is really a penalty, the party will never be allowed to pay it, and then treat such payment as a sufficient ground for refusing to perform his undertaking." 1 Pom. Eq. Jur. (4th Ed.) § 446, citing, among other cases, Dooley v. Watson, 1 Gray (Mass.) 414.
As to the general equity of a bill by a vendor of land for specific performance against the vendee, the authorities are practically unanimous in sustaining it. 36 Cyc. 565, b, and cases cited in note 50. Our own court does not seem to have dealt with the question, but we are content to follow the generally established rule. The most serious question in the case arises out of the character of the contract — the mutuality vel non of enforceability.
It is an elementary principle of the law of specific enforcement that the remedy is not available to one contracting party unless he himself is capable of performing and may be compelled to perform. Tombigbee Valley R. R. Co. v. Fairford, etc., Co., 155 Ala. 575, 47 So. 88. And it is well settled that a court of equity cannot and will not decree specific performance of a contract for the conveyance of land when the vendor has no title. Fitzpatrick v. Featherstone, 3 Ala. 40; Enslen v. Allen, 160 Ala. 529, 49 So. 430. Counsel for respondents conceive that the foregoing principles should defeat the prayer of this bill for specific performance.
There is an important distinction, however, between nonmutuality of obligation and nonmutuality of remedy. "True it is that a mutuality of obligation must exist when the contract is concluded. If it lack this element ab initio, no subsequent act of the party who seeks to enforce it can obviate the objection and render the contract capable of specific performance." Brown v. Munger, 42 Minn. 482, 44 N.W. 519. The above excerpt was quoted with approval in Blackburn v. McLaughlin, 202 Ala. 434, 80 So. 818, where it was also said that "mutuality of remedy need not have existed prior to the decree. 36 Cyc. 623."
Mr. Pomeroy has discussed this question quite fully, and we approve his statement of the law as well supported by the great weight of judicial authority. He says:
"It is a familiar application of the principle as to performance by the plaintiff, that the vendor or lessor can not force performance upon the purchaser, unless he is able to give a good title to the subject-matter. Where, however, the vendor gets in the title before the decree, 'the doctrine of equity is, when time is not of the essence, a decree will be made against the purchaser, if the seller can make a good title at the time of the decree, unless there has been bad faith, or an improper speculation attempted.' The weight of authority supports this rule, although there are several jurisdictions which hold that if the plaintiff could not make a good title at the time of the agreement, specific performance will be denied him on the ground of lack of mutuality. * * * If the vendee knew that the vendor had no title, or a defective title, at the time of the agreement, he has no ground for refusing to perform so long as the title is made good by the time of the decree."
5 Pom. Eq. Jur. (2d Ed.) § 2230. See, also, section 2194. To the last proposition are cited Brashier v. Gratz, 6 Wheat. 528, 5 L.Ed. 322; Old Colony R. R. Corp. v. Evans, 6 Gray (Mass.) 25, 66 Am. Dec. 394; and Canton Co. v. B. O. R. R. Co., 79 Md. 424, 29 A. 821. Our own case of Blackburn v. McLaughlin, 202 Ala. 434, 80 So. 818, is in accord.
In 25 R. C. L. 234, § 34, after referring to the contrary view, it is stated that:
"The better opinion is that it is not essential that the mutuality of remedy shall exist at the inception of the contract, and that where the contract was originally lacking in mutuality this element may be supplied by voluntary performance on the part of the party seeking specific performance" — citing Turley v. Thomas, 31 Nev. 181, 101 P. 568, 135 Am. St. Rep. 667; Woodruff v. Woodruff, 44 N.J. Eq. 349, 16 A. 4, 1 L.R.A. 380; Mut. Life Ins. Co. v. Stephens, 214 N.Y. 488, 108 N.E. 856, L.R.A. 1917C, 809.
We do not think there is any uncertainty in the terms of the contract, and the allegations of the bill make a case for specific performance within the principle above discussed.
Our conclusion is that the demurrers to the bill were properly overruled, and the decree of the circuit court will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.