A contract for the sale of land entered into under the belief by both parties that the vendor has title, when in fact he has none, will not be specifically enforced in equity; Hatch v. Kizer, 140 Ill. 583, 30 N. E. 605, 33 Am. St.,Rep. 258. The fact that ven dor's title is disputed by a third person gives him no right to retlise to convey such title as he has; and will not prevent a decree for specific performance; Bragg v. Olson, 128 III. 540, 21 N. E. 519. Where the seller is mistaken in believing that he will get an option on another piece of land from the buyer, equity will not specifically enforce the original contract, although the buyer was innocent of actual misrepresentation; Rudi sill v. Whitener, 146 N. C. 403, 59 S. E. 995, 15 L. R. A. (N. S.) 81.
When a vendor files a bill he must show a tender of the title and an offer to perform; McHugh v. Wells, 39 Mich. 175; that is a tender of a deed ; Sowle v. Holdridge, 63 Ind. 213; Rude v. Levy, 43 Colo. 482, 96 Pac. 560, 24 L. R. A. (N. S.) 91, 127 Am. St. Rep. 123; Tiedem. Eq. Jur. 499; but it has been held that an offer of a deed in the bill is enough; Thomson v. Smith, 63 N. Y. 301; Winton v. Sherman, 20 Ia. 295; Brace v. Doble, 3 S. D. 110, 52 N. W. 586.
Where a vendee announces that he will not comply with his contract, the vendor need not tender a deed before suing for specific per formance ; Lyman v. Gedney, 114 Ill. 388, 29 N. E. 282, 55 Am. Rep. 871. See PERFORM ANCE. And a vendee must show a tender of the purchase-money ; Irvin v. Bleakley, 67 Pa. 24; McComas v. Easley, 21 Gratt. (Va.) 29; Short v. Kieffer, 142 Ill. 258, 31 N. E. 427. And such tender must not be delayed fill circumstances have changed ; Tarr v. Scott, 4 Brewst. (Pa.) 49. The vendee need not tender the purchase-money where the vendor refuses to consider the question of sale under the contract and denies any obliga tion thereunder ; Bradford v. Foster, 87 Tenn. 4, 9 S. W. 195.
A decree for specific performance will not be made against a vendor whose wife refuses to join in the conveyance ; Appeal of Burk, 75 P. 141, 15 Am. Rep. 587. A contract of sale of land not signed by wife can only be enforced subject to her dower rights; her verbal agreement to convey made after her husband's death cannot be enforced; Schwoerdfeger v. Kelly, 223 Pa. 631, 72 Atl. 1056.
In a suit • for specific performance, the plaintiff must show that he has performed, or was ready to perform, his part of.the con tract, and that be has not been guilty of lathes or unreasonable delay, and. where the proof leaves the case doubtful, the plaintiff is not entitled to a decree ; Penn v. McCullough, 76 Md. 229, 24 Atl. 424 ; or where the plain tiff's performance is entirely optional and no offer of it is made ; Federal Oil Co. v. West. ern Oil Co., 121 Fed. 674, 57 C. C. A. 428. A contract of employment will be enforced against an employee if the employer has fully executed his part of the agreement : Missis sippi Glass Co. v. Franzen, 143 Fed. 501, 74 C. C. A. 135, 6 Ann. Cas. Specific performance will not be decreed after an unreasonable delay ; Nickerson v. Nickerson, 127 U. S. 668, 8 Sup. Ct. 1355, 32 L. Ed. 314 ; or where a party has been back ward in claiming the relief, and has held off until circumstances have changed, so as to give him an opportunity to enforce or aban don the contract, as events might prove most advantageous; Ford v. Euker, 86 Va. 75, 9 S. E. 500; Bacon v. Hennessey, 35 Fed. 174;
Requa v. Snow, 76 Cal. 590, 18 Pac. 862.
Specific performance of a contract to leave property by will will not be decreed, where the contract is made by a mere donee of a testamentary power of appointment; [1892) 3 Ch. 510. Specific performance of a contract to devise property in consideration of care and support will not be denied, where the complainant has fully performed her part, although the services rendered may not have been worth the value of the property : War ner v. Marshall, 166 Ind. 88, 75 N. E. 582; contra, Grindling v. Rehyl, 149 Mich. 641, 113 N. W. 290, 15 L. R. A. (N. S.) 466, 12 Ann. Cas. 344.
When a definite contract to leave property by will has been clearly and certainly estab lished and there has been performance on the part of the promisee, equity will grant relief, if the case be free from objection on account of inadequacy of consideration, and there are no circumstances or conditions which render the claim inequitable ; Roehl v. Hainnesser, 114 Ind. 311, 15 N. E. 345 ; Berg v. Moreau, 199 Mo. 416, 97 S. W. 901, 9 L. R. A. (N. S.) 157 ; Anderson v. Anderson, 75 Kan. 117, 88 I'ac. 743, 9 L. R. A. (N. S.) 229 ; Whine v. Winne, 166 N. Y. 263, 59 N. E. 832, 82 Am. St. Rep. 647. The court will construe such an agreement, unless void under the statute of frauds or for other reasons, to bind the prop erty of the testator or intestate so far as to fasten a trust on it in favor of the promisee and to enforce such trust against the heirs of the deceased or others holding under them charged with notice of the trust. It is in the nature of a covenant to stand seised to the use of 'the promisee, as if the promisor had agreed to retain a life estate in the prop erty, with remainder to the proinisee in the that the promisor owns it at the time of Ills death, but with full power on the part of the promisor to make any bona fide dispo sition of it during his life to another other wise than by will; Bolman v. Overall, 80 Ala. 451, 2 South. 624, 60 Am. Rep. 107.
Specific performance was decreed of a com promise agreement not to contest a will if the complainant were allowed to share in the estate ; Blount v. Wheeler, 199 Mass. 330, 85 N. E. 477, 17 L. R. A. (N. S.) 1036 ; under the English rule that "if an intending litigant bona fide forbears a right to litigate . . he does give up something of value" ; L. R. 32 Ch. Div. 266. The reality of the claim which is given up must be measured, not by the state of the law it is ultimately dis covered to be, but by the state of the knowl edge of the person who at the time has to judge and make the concession ; id.
Specific performance should never be grant ed unless the terms of the agreement sought to. be enforced are clearly proved, or where it is left in doubt whether the party against whom the relief is asked in fact made such an agreement ; Hennessy v. Woolworth, 128 U. S. 438, 9 Sup. Ct. 109, 32 L. Ed. 500 ; and performance will not be decreed unless the proof is clear and satisfactory, both as to the existence of the agreement and as to its terms ; Dalzell v. Mfg. Co., 149 U. S. 315, 13 Sup. Ct. 886, 37 L. Ed. 749.
A feme covert cannot maintain a bill for specific performance; Tarr v. Scott, 4 Brewst. (Pa.) 49.
A provision for liquidated damages does not defeat a right to specific performance ; Koch v. Streuter, 218 111. 546, 75 N. E. 1049,