VAN FLEET, V. C.
(Syllabus by the Court.)
Bill by John V. Ten Eyck against George M. Manning for the specific performance of a land contract Bill dismissed.
Woodbridge Strong, for complainant.
George C. Ludlow, for defendant.
VAN FLEET, V. C. This is a suit for specific performance. The material facts may be stated in a few words: On the 12th day of December, 1890, the parties made a written contract, by which the complainant agreed to well and sufficiently convey to the defendant by deed of warranty, free from all incumbrance except a mortgage debt of $4,000, certain lands in Middlesex county; and the defendant agreed that he would, as the consideration for the complainant's conveyance, well and sufficiently convey to the complainant, free from all incumbrance except a mortgage debt of $3,500, a farm in Somerse county, and also assign and deliver certain goods and chattels. The deeds were to be interchanged at a short day in the future. The lands which the complainant agreed to convey are described in the contract as "all the lands conveyed to the complainant by deed of Louis G. Knowles on March 15, 1884, recorded in a book and on a page designated. No lands were conveyed by Mr. Knowles to the complainant. The deed referred to by way of description was not made to the complainant, but to his wife. At the time the contract was made, she was the owner of the lands which the complainant agreed to convey, and is still their owner. She was not a party to the contract, and is not, of course, bound by it She is not a party to this suit. The defendant refused to perform, and thereupon the complainant brought this suit. In addition to a decree for specific performance, he asks that the contract may be so reformed that it shall describe the lands which he agreed to convey as lands conveyed by Mr. Knowles to his wife. The case will be considered as though the contract had been originally drawn so as to impose upon the complainant an obligation to well and sufficiently convey, by deed of warranty, lands belonging to his wife, and not himself.
Of the many defenses set up, only one need be considered, and that is that the contract which the complainant asks to have enforced does not give to the defendant a right to the same remedy against the complainant which the complainant seeks against the defendant; in other words, that this court could not, on the defendant's application, compel the complainant to specifically perform the contract The remedy by specific performance is not a matter of strict right but of sound judicial discretion, and will be granted or denied, as the justice and right of the particular case shall seem to the court on full consideration of the rights and equities of the parties, to require. The enforcement or denial of this remedy is regulated by certain well-established principles, one of which is that it will not be granted, as a general rule, in cases where mutuality of obligation and remedy does not exist; or, stated in another form, mutuality of remedy is essential to the maintenance of a suit for specific performance. Fry, Spec. Perf. § 286; Wat Spec. Perf. § 196. While the forms in which this principle has been expressed are somewhat variant, they are identical in substance. Sir James Wigram, V. C, in Waring v. Railway Co., 7 Hare, 482, 492, stated it in this form: "If that which the defendant is entitled to be something which the court cannot give him, it certainly has been the generally understood rule that that is a case in which the court will not interfere." And in Van Doren v. Robinson, 16 N. J. Eq. 259, Chancellor Green said: "The general principle is that, where the contract is incapable of being enforced against one party, that partyagainst him. The defendant interposed many defenses, some of which are without either substance or merit. The defendant's course in this respect has greatly increased the cost of the litigation to the complainant. In view of this and other circumstances, I think the dismissal should be ordered without costs to either party against the other.