delivered the opinion of the court.
Plaintiff, to sustain the issues on his part, introduced considerable correspondence, conducted by letters and telegrams, with the defendant Joseph. The first letter from this defendant is dated Chicago, September 11, 1891. In this the defendant offers to sell to the plaintiff a one fourth interest in the properties named in the complaint, for the sum of twenty-two hundred and fifty (2250) dollars, of this amount one thousand (1000) or twelve hundred and fifty (1250) dollars was to be spot, cash, balance in six months or one year. Plaintiff replied to this letter soon after receiving it, and in his reply makes an offer of fifteen hundred (1500) dollars for the property. This letter was followed by a number of others between the parties. By one bearing date October 2,1891, the defendant Joseph offers to sell a one fourth interest in the property for two thousand (2,000) dollars, one thousand (1,000) in spot cash, balance in six, nine and twelve months, or balance in twelve months, and adds, “ will be satisfied with a land contract or trust deed, any way to make the balance entirely safe and secure.”
On October 7th the plaintiff telegraphed the defendant JosephWill accept offer. Letter of advice mailed.” The letter spoken of in this telegram also bears date October 7th. In this letter plaintiff agrees to pay the price mentioned. As to security it is said: “We will not disagree as to the manner of conveyance and security on payments, it being lawful.” There is some evidence going to show that the defendant Joseph was never the real owner of this property, but that he held only the naked legal title thereto, the equitable title being in his wife, Lucy, and her sisters, by inheritance from their father, Dr. Cole.
While plaintiff and defendant were negotiating a sale of *267the property, to wit, on September 23, 1891, the defendant Joseph executed a deed of conveyance of the property to his wife, Lucy. This deed was acknowledged on September 30th and filed for record in the office of the county clerk and recorder of Lake county, Colorado, at eight o’clock A. M., October 6, 1891; this being the county wherein the property is situate. The defendant Joseph undertakes to excuse his participation in the negotiations with the plaintiff occurring subsequent to the making of the deed from the former to his wife, on the ground that he supposed his wife would be willing to convey the property for the price named. He claims in his letters in evidence that he arrived at this conclusion without consultation with his wife, and. that when he mentioned the matter to her she positively refused to sell the property for the sum named, or for any sum less than three thousand (3,000) dollars.
The foregoing facts all appear from the evidence introduced by plaintiff, and upon this it is claimed that he was entitled to a decree for the specific performance of a contract to convey, which contract he claims is fully'evidenced by the letters passing between the parties. The defendants claim that, taking the correspondence together, it is apparent that the minds of the parties never met upon any terms, and that therefore there was no contract.
We find it, however, unnecessary to pass upon this contention of counsel. If it be conceded for the purpose of this appeal that plaintiff’s claim in this particular is supported by the evidence, he is still not entitled to a decree for specific performance, for the reason that at the time and prior to the acceptance of the proposition of October 2d, by the telegram and letters of plaintiff, bearing date October 7,1892, the defendant Joseph had already transferred his title to his wife, of which transfer the plaintiff must be held to have had notice from and after the time at which the deed was filed for record, viz. 8 o’clock A. m., October 6th. There is some slight discrepancy in the evidence offered by the plaintiff, as to whether this acceptance was on the 6th or 7th day of Oc*268tober. The letter and telegram both bear date as of the 7th inst., and we think this must be taken as the true date, but this is also immaterial in view of the fact that, if the correspondence took place on the 6th, it is still apparent from the evidence that plaintiff’s offer was not accepted until after the deed from Joseph to his wife was made a matter of record in the proper county.
In actions for specific performance of contracts, it is well established that the inability of the defendant to perform will ordinarily prevent a decree against him for specific performance. The evidence shows that at the time of the making of the alleged contract with plaintiff, the defendant Joseph had parted with his title to this property to his wife, Lucy, and there being no evidence that this conveyance was fraudulently made, or that she had any notice of the negotiations between Joseph and the plaintiff, specific performance cannot be decreed in the absence of evidence showing that Joseph in the negotiations was authorized to act as the agent of Lucy.
As the plaintiff had notice before the commencement of the proceeding, by the recorded deed from Joseph to Lucy, of the incapacity of Joseph to deed the property to him, it is doubtful if the action should have been retained by the court for damages for failure to perform had the pleadings presented such an issue; moreover no such issue is tendered by the plaintiff.
Pomeroy, in his work on Specific Performance, states the rule as follows:
“Sec. 475. * * * If at the time of bringing his suit the plaintiff is informed of the real facts — of the defect in the defendant’s title, or of the defendant’s subsequent conveyance, and there are no other circumstances which could alter the presumption — then he is presumed to know the legal consequences of those facts; the law infers his knowledge that a specific enforcement cannot be decreed. The reason given for this rule, is the want of any jurisdiction in a court of equity to entertain a suit for a specific performance under *269the circumstances. At the very commencement of the proceeding the court has no jurisdiction to grant the specific remedy, and, therefore, the case does not fall within the general principle stated above as the foundation of all relief of damages granted by courts of equity. Although this reasoning is based upon an entire misconception of the meaning of ‘jurisdiction,’ yet it has been generally adopted by the courts, and the rule resulting from it has become so firmly settled that even the sweeping reforms made by the new procedure have not led the courts to change it in most of the states where that procedure prevails.”
Moreover, in this case there is no evidence of damages to sustain a judgment were this issue presented by the pleadings. In so far as plaintiff’s possession is concerned, it is sufficient to say that such possession was held by virtue of a prior lease with defendant’s grantor. The amendments offered by the plaintiff just prior to closing his evidence were insufficient, if allowed, to warrant a recovery in damages and were properly refused. Aside from this, there is an en-, tire absence of any showing, by affidavit or otherwise, in support of the application to amend.
It is contended that a nonsuit is unknown to the equity practice, and a reversal is asked on account of the form of the judgment. In view of the failure of proof, the defendants were certainly entitled to a decree upon the merits; therefore this technical error, as to form, is error without prejudice to the plaintiff and affords him no ground of complaint. Tripp v. Fiske, 4 Colo. 24.
Affirmed.