Complainant filed his bill for specific performance of a contract made by the defendants Cole and Moseley, to convey certain property at Grand Rapids to himself and one Rogers, who has assigned his interest to complainant. The bill was taken as confessed.
The case made, is in substance that Cole and Moseley agreed to make title to the premises as soon as possible, and within a specified time deliver up possession. It was then supposed the only thing required to make the title perfect was the probate of a will, under which defendants had *226received an executors’ deed. It afterwards turned out that only two -thirds of the title vested by that deed, the remainder being outstanding, and no'contract or other interest existing in the defendants for that third. Complainant and Bogers desired possession on the appointed day, but were put off on some pretext, and Moseley subsequently conveyed his interest to the defendant Young, who is charged with notice. Complainant desires a performance as to the two - thirds, if the remainder is not attainable. There are some questions about incumbrances, which are not very material to be conáidered now.
There was some testimony taken, but the bill has not been amended, and any relief granted must be confined to such as is warranted by the bill itself. This testimony should not have been introduced.
We think complainant was entitled, under all the circumstances, to waive the full performance, and require a performance so far as in defendant’s power. This right on the part of a complainant, to waive a part of his rights, has been recognized frequently in such cases, and a court may permit it where no injustice will result therefrom. But it can not be allowed where it puts the defendant, without fault, in an unjust and unexpected position. It was claimed that such would be the result here. But we can see nothing that satisfies us that any such injustice would result. The defendant Moseley, assuming, as we must in this case assume, that the bill is true, disposed of all his interest to Lena Young, and the other defendant does not appear to have been unwilling to sell out. We can see no good reason for supposing they would not have sold out had they known their title to have been imperfect, nor can they be legally injured by being compelled to convey it on proportionate terms. The decree, so far as relates to the conveyance of an undivided two-thirds, is correct.
But there are other ^particulars in which it cannot be sustained. Complainant shows by his bill that defendants *227have no title to the remaining third, and does not show that they haye any means of obtaining it. It would be unjust and unauthorized, when he has filed his bill on this theory, to compel them to purchase the remainder. He must make his election; and we can not grant a decree which may turn out to be impossible of performance. The part of the decree compelling this is wrong. So he should not have been decreed full possession of the premises when he is only entitled to a right in two-thirds.
The decree is also inequitable in allowing complainant rent while exempting him from the payment of interest on the cash payment. It is equitable to allow him rent at the rate stated in the bill, but he should pay interest, if this is done, on his purchase money. And, as the bill was taken as confessed, there is nothing on which to base the increase of rent from three hundred and twenty dollars to four hundred dollars.
The decree must be so modified as to confine its operation to the undivided two-thirds of the premises, and to confine the possession to that proportion. The rents are to be allowed to complainant on two-thirds of the property at ■ the rate of three hundred and twenty dollars per annum, for the whole, and the cash, as well as other payments, must be made to bear interest from the time when the allowance of rents begins, as set forth in the decree.
The defendants Cole and Moseley should be allowed their costs of the appeal. But the costs of the court below should be allowed to complainant, as he was entitled to relief, although not all the relief for which he saw fit to take his decree. But he is entitled to no costs below, except such as are allowable on an ordinary case where the bill is taken as confessed.
In other respects the decree is to stand.
Christiancy and Cooley JJ. concurred. Martin Ch. J. did not sit.