Saur v. Ferris

Citations

• 145 Ill. 115
• 34 N.E. 52

Syllabus

<p>1. Specific Performance—inability to perform—a sufficient defense. The owner of the land being desirous of a speedy sale of it, authorized two separate agents to sell the same, and each made contracts for that purpose. The owner conveyed to the prior purchaser, and the other purchaser filed his bill for the specific performance of his contract: Held, that the owner could not be compelled to convey to the complainant, and that the bill was properly dismissed.</p> <p>2. When it is out of the power of the defendant toperform his agreement, such fact necessarily constitutes a sufficient reason why the court should refuse to decree specific performance, that is, to enter a decree which would be nugatory because of the impossibility of its execution.</p> <p>3. And this is the case, although the defendant may have been in a situation to carry out the contract when he entered into it, but afterward deprived himself of the ability to do it by his own voluntary and wrongful act. If, for instance, A, after entering into a valid agreement to sell and convey land to B, should convey it to O, who is a bona fide purchaser for value without notice, A, by depriving himself of the power to fulfil his agreement withB, deprives B of the right to a decree for specific performance.</p> <p>4. And it is equally true, that where the incapacity to perform arises from a conveyance to another party, who, having notice of the complainant’s contract, has the prior right to a conveyance, a decree of specific performance will not be made.</p> <p>5. Same—retaining bill for the assessment of damages. It is well settled that when the defendant’s incapacity to perform the contract, though caused by his own. act, as by his conveyance to a bona fide purchaser, is known to the complainant at the time of bringing suit, the bill will not be retained for the assessment of damages, but will be dismissed, leaving the complainant to his legal remedy.</p>