Caton v. Wellershouse , 77 Pa. Super. 331 ( 1921 )

Opinion by

Trexler, J.,

On April 2, 1918, the parties to this suit entered into a written contract wherein the defendants agreed to convey a farm situate in Hancock County, West Virginia, “with all the stock and tools thereto,” therein enumerated, in exchange for the property of the plaintiff situate at No. 145 Noble Avenue, Crafton, Pennsylvania, including certain lodge furniture located on said premises. As stated in the agreement, both properties were subject to mortgages, that in Crafton to one of $9,500, several years past due, and a second of $1,000 which still had two years to run. The defendants were unable to read or write English and spoke it imperfectly, and did not know that the larger mortgage was due and the interest thereon unpaid when they signed the agreement. On April 27th, or thereabouts, the plaintiff tendered a deed to the defendants for the property in Crafton, which they refused. There is a conflict of testimony as to what reason was given for the refusal. On the 18th day of May the plaintiff brought this present bill asking for the specific performance of the contract. The matter came to hearing on September 23,1918. At that time the property of the plaintiff had been sold by the sheriff under execution. The learned trial judge dismissed the bill giving as the reasons for his action, that it would be inequitable to compel the defendants to turn over their property to the plaintiff, that defendants signed the agreement under a misapprehension, and further that the court had no jurisdiction because the contract upon which specific performance was demanded by the plaintiff was “for the conveyance of land and personal property to a considerable amount for a single consideration.”

A decree for specific performance is not a matter of course, but rests in tbe sound legal discretion of tbe chancellor. As was said in Friend v. Lamb, 152 Pa. 529, “Even when tbe agreement is perfectly good, tbe price adequate, and no blame attaches to tbe purchase, if tbe transaction be inequitable and unjust in itself or rendered so by matter subsequently occurring, specific performance may be denied, and the parties turned over to their remedy in damages.” In tbe ease before us if a decree of specific performance were entered against tbe defendants they would be compelled to transfer their property to tbe plaintiff and receive nothing in return; for tbe plaintiff’s title has been divested by a judicial sale. Tbe decree therefore would be án enforcement of part of the contract and not all of it. In tbe absence of a specific condition in tbe contract that tbe defendant was to pay interest on tbe encumbrances existing on plaintiff’s property at tbe time of tbe agreement, we see no reason why tbe duty did not devolve upon tbe plaintiff to maintain bis title so as to keep bis status in bis suit for specific performance. Tbe court would then have tbe basis on Mich to enforce tbe performance of tbe contract by both parties thereto.

We think also tbe court was right in declining specific performance for tbe reason given-that tbe contract not being divisible and tbe subject-matter being largely personal property, a decree for specific performance would not be granted. It is only in rare instances equity will decree specific performance of a sale of chattels. See Meehan v. Owens, 196 Pa. 69, and cases cited. Tbe assignments are overruled.

The decree is affirmed. Appellant for costs.