Whiteaker v. Vanschoiack

Specific Peefobmance.—Before the court will exercise its extraordinary jurisdiction of enforcing a specific performance, it must appear that the agreement sought to be enforced is fair and just; mutual in its character, and certain in its terms. Idem—Whebe the Teems of the Conteact have been Vaeied bx Paeol.— Courts of equity will not, ordinarily, compel the specific performance of a contract with variations, additions, or new terms to be made and introduced into it by parol evidence. Dowee.—In this State there is no dower in an equity.

Appeal from Lane County. This is a suit in equity to enforce the specific performance of an agreement in writing for the exchange of lands. On the 4th day of May, 1872, appellant and respondent Yanschoiack entered into a written agreement for the exchange of certain lands. The agreement contained a proviso by which it was provided that the exchange should take place thirty days from the date of the agreement. The land that appellant thus agreed to convey had been purchased by him at a sheriff’s sale, on the 10th of February, 1872, which sale had been confirmed April 23, 1872. Appellant had no other title to the tract than that derived through this sale. The time within which redemption of the tract so sold might be made, not having expired, the appellant had only a prospective title thereto at the time the agreement was executed. On May 27, 1872, before the time for the performance of said contract had expired, appellant and Yanschoiack, “in consideration of the agreement aforesaid, and th& exchange of lands aforesaid,” agreed by parol to extend the time for the performance of said contract of exchange until the period for redemption aforesaid should have expired, and the sheriff made a good and sufficient deed to the appellant for the said land, which appellant was to convey, and' which was designated as the McMurray claim; that in consideration of said agreement of extension and exchange of lauds, the parties thereto agreed with each other to deposit each the deed of himself and wife of the land he had agreed to convey, with respondent John Currin, to be held by him until said sheriff’s deed of the McMurray claim should be delivered to the plaintiff and recorded, at which time Currin was to deliver the deed of plaintiff and wife to Yanschoiack, and that of Yanschoiack and wife to the plaintiff; provided, however, that if said McMurray claim should be redeemed from said execution sale and not conveyed to plaintiff by the sheriff, then said deeds deposited with Currin were to be withdrawn and held for naught; that said deeds were accordingly executed by the parties and their wives, respectively, and left with Currin pursuant to said mentioned agreement, who agreed and promised that as soon as said sheriff’s deed to plaintiff should be executed and recorded he would deliver to plaintiff the deed of Yanschoiack, and to the latter the deed ■ executed by plaintiff. No redemption having .been made of the McMurray claim, and the time of redemption having expired, the sheriff executed and delivered to the’plaintiff a deed therefor, dated July 9, 1872, which was on the same day duly recorded, and on the 27th of said month the certificate of record was presented to Currin by plaintiff, who instructed him to deliver his deed to Yanschoiack, and demanded that he deliver to plaintiff the deed of Yanschoiack. Currin, by order of Yanschoiack, refused to deliver said deed to plaintiff, and Yanschoiack and wife refused to make a title to the lands 'therein mentioned to the plaintiff; that Currin still holds the deed of plaintiff and wife to Yanschoiack, with instructions to deliver it to the latter; that by reason of the premises plaintiff is damaged in the' sum of one hundred dollars. The defendants interposed a 'demurrer to the complaint, which was sustained by the court below.