Casady v. Scallen

Wright, J.

Tbe agreement to enter tbe land for complainant, and tbe one alleged to have been made after tbe entry, are both most emphatically denied by respondent. There is no testimony whatever to show an agreement before the entry. The complainant, who is the only witness as to this part of tbe case, simply states that be bad some conversation with respondent, with respect to the land, about tbe 7th of June, 1856; about tbe 19th Scallen entered tbe land specified in the petition.

It is quite manifest that this is far from showing an agreement, and we may, therefore, dismiss this part of the case without further comment.

Tbe testimony as to the subsequent agreement from tbe same witness, is as follows: “ He paid $50 for the land and I agreed, at the expiration of a year after, to pay him $70. Scallen, after we returned, said that it was tbe rule, and if I would not pay him the 40 per cent, be would not sell me tbe land.” Another witness says that he was present “ when complainant offered respondent some money and asked him what be was going to do; if be was going to give him the land. He said : ‘ Yes, if you pay the 40 per cent for the money.’ ”

If it appeared that respondent advanced the money ($50) to enter the land at complainant’s request, under an agreement to pay the same, upon receiving the sum thus advanced, with forty per cent interest, it would then be matter of doubt whether complainant could seek the specific performance of such agreement, without offering the sum thus agreed to be paid. In other words, it would be doubtful whether he could avail himself of all tbe benefits -of such usurious agreement, and 'at the same time, in a suit brought by him, repudiate or refuse to perform part of its *95 terms. When it is remembered, however, that no prior agreement is shown, and that complainant himself testifies that he was to pay $70, at the expiration of the year, all room for doubt is removed. There is no necessary usury in such a contract. After the land was entered, respondent might sell it for the best price he could get, and it matters not that the advance upon the entrance money was 40 or 100 per cent. And as it is only claimed that complainant tendered the $50, with six per cent interest, together with the taxes paid by respondent, and interest thereon, we do not think, under the testimony, he was in a position to demand a specific performance of the contract.

There is still another ground upon which the decree below must be reversed. It appears that since the commencement of this action respondent conveyed the premises in controversy to a third person. The party thus holding the legal title was not brought before the Court in any manner. And yet the decree is that respondent shall execute to complainant a good and sufficient warranty deed, and in default thereof, the clerk of the District Court shall make the same, so as to vest the title in said complainant, in fee simple.

It is very clear that this decree cannot be performed. There is no legal power to carry it out. It matters not that respondent, by an act subsequent to the commencement of the action, rendered it impossible for him.to perform his part of the contract. To entitle complainant to the decree as entered, the respondent’s grantee should have been brought in by supplemental bill. Ferrier v. Buzick, 2 Iowa, 136 , and the authorities there cited.

The decree is reversed and bill dismissed.

It appearing sufficiently probable, however, that complainant has equities which should not be denied, the dismissal will be without prejudice.