* Corpus Juris-Cyc. References: Deeds, 18 C.J., p. 198, n. 27; p. 199, n. 29; p. 208, n. 24; Husband and Wife, 30 C.J., p. 855, n. 23; Specific Performances, 36 Cyc., p. 742, n. 77; Vendor and Purchaser, 39 Cyc., p. 1195, n. 93; p. 1219, n. 6; p. 2081, n. 26; p. 2082, n. 39 New. Appellant filed his bill in the chancery court of Hancock county against appellees, Andrew Lott and his wife, Elizabeth Lott, for the specific performace of a contract, by the terms of which it was alleged that appellees agreed to convey to appellant two hundred eighty-two acres of land in Hancock county, in consideration of twenty dollars per acre to be paid by appellant to the appellees. There was a trial on bill, answer and proof, and a decree for appellees dismissing appellant's bill. From that decree appellant prosecutes this appeal.
The contract which the bill sought to have specifically performed was in this writing, in this language:
"Kiln, Miss.
"This is to certify that I have this day given W.W. Chapman, of Bay St. Louis, an option on two hundred eighty-two acres of ground known as the old Nelson place and now owned by me, at a cash amount agreed upon and paid to me. Purchase price to be twenty dollars per acre.
"[Signed] "ANDREW LOTT." *Page 848
The chancellor, in a written opinion, found the law and the facts of the case. This opinion is a part of the record of the cause on appeal. We think the chancellor's finding of facts was justified by the evidence, and we also agree with him as to the law of the case. His opinion so clearly states the facts of the case and the law applicable thereto that we adopt it as the opinion of this court. It follows:
"About fourteen years ago the defendant, Andrew Lott, owned a tract of land now sometimes called the Nelson place and upon which land he and his wife had long lived as their homestead. Owing no one, and having a right to do so, he conveyed this land to his wife, Elizabeth, the deed being promptly recorded. This land, together with forty acres, subsequently acquired by Mr. Lott lies in a body and comprises two hundred eighty-two acres. The relationship of the husband and wife being and having been always one of complete trust one in the other, Mr. Lott apparently continued to look after the land and manage it very much as his own, although there does not appear in the evidence any real or specific authority to him from his wife so to do.
"On or about April 13, 1925, Mr. Lott, without the then knowledge of his wife, signed and delivered unto the complainant Chapman, a paper termed an option by which Mr. Lott, styling himself as the owner, agreed to convey this Nelson tract, upon a time not stated, to the complainant for a total purchase price of twenty dollars per acre. No consideration was paid by the complainant for this so-called option, nor did the complainant thereby bind himself to do anything, it being explained by complainant in his testimony that it was not his intention to pay anything or bind himself to do anything until he had made further investigation. The complainant investigated and believed that he had discovered from the public records that the entire tract belonged not to Mr. Lott, but to Mrs. Elizabeth Lott; but having made financial arrangements and desiring to purchase the land, *Page 849 he returned to Mr. Lott and there tendered not a payment to Mr. Lott under the paper which Mr. Lott had given complainant, in which paper as already mentioned, Mr. Lott had styled himself as the owner of the lands, but a payment by way of a check payable to Mrs. Elizabeth Lott, and bearing the provision on its face as follows: "To bind sale of two hundred eighty-two acres of land on Jordan River in the name of Elizabeth Lott. This check is a part payment on same at twenty dollars per acre." Mr. Lott took the check to his wife, but she promptly refused it and repudiated the whole transaction as unauthorized and as being contrary to her will in the premises.
"Upon the above statement of the salient facts, so far as concerns Mrs. Lott, it is apparent that Mrs. Lott cannot be compelled to specifically perform an agreement which she never made, never authorized to be made and which she promptly declined to ratify. Complainant, sensing this, has sought to hold to the land as against her upon two theories: First, that the land in reality belonged to Mr. Lott, and that the wife, Elizabeth, held the nominal legal title merely as a trustee for her husband, the allegation being that the conveyance to her by her husband, had been originally in fraud. The proof fails to support this theory — on the contrary it is overthrown by the proof. Second, that the deed from Mr. Lott to Elizabeth was never delivered. It is enough on this point, and so far as this case is concerned, that Mr. Lott deliberately signed and acknowledged the deed to his wife and delivered it for record among the public records of the county. The formal ceremonial of a manual delivery from the grantor to the grantee is not a thing so sacroscanct that no other overt act evidencing a completed intention to convey may be accepted in lieu of the actual delivery into the very grasp of the vendee. Certainly Mr. Lott, after the delivery by him of this deed for recordation could not say he had not by actual overt act, open to the world, evidenced his delivery in an acceptable *Page 850 manner, and no one claiming through him subsequently would have a higher right than he in that respect. It is not probable in the average home of this country that the husband and wife keep their papers separate one from each other, and the deposit of the deed in the home of the Lotts in the manner in which it was deposited, was perhaps not different from that of thousands of other deeds between husband and wife. It seems to me that this is an occasion typical for the application of the maxim that substance rather than form shall be regarded and shall control.
"But complainant says, in any event, he should have a decree for the forty acres that Mr. Lott actually owned. There are two difficulties which bar the way to this relief. First, the complainant did not accept the so-called option or offer made by Mr. Lott as it was made; he attempted to accept something else, namely, he attempted to erect and accept a new or different trade, one with Mrs. Lott, which failed for two good reasons, first, Mrs. Lott had made no offer on her part, and second, she refused to accept the proposed trade on the other part. It is familiar learning that an acceptance of an offer must be in the identical terms of the offer — not of something else, or with new or different elements interposed. Complainant did not accept in its identical terms the offer made by Mr. Lott, but he attempted to build a new trade upon the offer made by Mr. Lott, this new trade to be with Mrs. Lott. The offer made by Mr. Lott was not attempted to be accepted as the end of a binding contract; that was not the end to which the complainant was working — it was merely a means attempted to be used as a conduit to a trade with Mrs. Lott. Complainant seeks to get around this difficulty by showing that the two hundred fifty dollar check payable to Mrs. Lott was afterwards taken by Mr. Lott to the bank, and that by that means, although through an error in the bank, the money was placed to the credit of Mr. Lott. But it was explained that this was done, first through *Page 851 oversight, and second that the oversight happened because Mr. Lott believed that after a while Mrs. Lott might recede from her position and allow the transaction to go through. We must not, in this maze, lose sight of the controlling thread, which is that the money was never Mr. Lott's, was never paid to him to be his, and he, himself, therefore could do nothing by which title to it could get into him.
"The second difficulty is that I do not believe any case can be found where specific performance has been decreed of so small a portion of property compared to the whole as is forty acres compared to two hundred and eighty-two acres, more especially when at the time of the acceptance of the offer — conceding for the time that there was an acceptance here, — the acceptor knew of the remarkable deficiency in title. Courts are continually warned by the precepts both of right and of experience against the attempt to enforce contracts which the parties never made. It is true that where the defect in title or area has been small, as compared to the whole, justice has been persuaded in many cases to yield to an approximation, but the proprieties of judicial administration would be indefensibly strained, it seems to me, if so little as forty out of two hunderd and eighty-two acres should be selected for the highly equitable remedy of specific performance. Certainly the parties at the time never contemplated or even thought of such a thing as within the range of the remotest possibility.
"As to the damage feature, that is to be dismissed at once as to Mrs. Lott. As to Mr. Lott, I have already stated that it is my conclusion that no mutually binding contract was ever made by the complainant with Mr. Lott. The option was a unilateral offer, without consideration, and was never accepted as made. There was an attempt made to accept something else, but not the particular and identical offer made by Mr. Lott. Besides that, and before the complainant had made any attempt to accept, or had done anything upon which damages *Page 852 could be based, he discovered that Mr. Lott did not own the land, and that he therefore could not convey it. The complainant, therefore, lost nothing in the eyes of the law. He lost only what he had thought was an opportunity to make a good trade, but which turned out as nothing.
"It follows from the above that the defendants are entitled to a general decree, except that it appears that the two hundred fifty dollars is still some way in the hands of the defendant, Andrew Lott, although he makes no claim to it and offers to return it. Under the prayer for general relief, complainant may have decree for this two hundred fifty dollars against the defendant, Andrew Lott; and since the acts of the defendant Andrew Lott, in assuming to deal with this land as his own, has probably caused this law suit, let him pay all costs."
Affirmed.