ON REHEARING.
On the reargument appellant contends that an action for specific performance is not the proper remedy under the facts of this case. His argument proceeds upon the theory that plaintiff’s action should have been an action for the purchase price unpaid; that plaintiff deeded the land to defendant and accepted his promise to pay certain indebtedness of plaintiff’s and, having relied on such promise, the consideration for the deed was such promise, and that the consideration for the deed has not failed. This position is not in accordance with the facts. The plaintiff did not convey the land relying upon defendant’s promise that he would satisfy these outstanding claims some time in the future. The payment of these claims and the turning over of the securities duly satisfied were to be simultaneous as to time with the delivery of the deed. The complaint is not framed on the theory of an action for the purchase price. It is not the purchase price that the plaintiff seeks to recover. The prayer of the complaint is that “defendant be compelled to specifically perform said agreement, and to pay off and return to the plaintiff the said notes and indebtedness hereinbefore described, or in the alternative, for a redelivery and cancellation of said deed.” The allegation of the complaint as to the agreement is that defendant was to pay off and return to the plaintiff certain described promissory notes. The action therefore is for the performance of a special contract according to its terms. It does not seek the payment of the money to plaintiff. It asks for more than the payment of money, and asks for the turning over of specific securities and evidences of debt. The relief asked is beyond that which could be awarded in an action at law. The action is not, therefore, one wherein a judgment at law could fully secure the relief asked for. Pomeroy on Spec. Perf., section 6, lays down the rule as follows: “While it is true that in these suits by the vendor there is generally some other act to be done by the purchaser besides the simple payment of money, the performance of which may be enforced by the decree, even in those cases where no such act has been undertaken by him in the contract, he may be compelled to accept the deed or assignment or other subject-matter, as well as to pay the price, so that the decree is not purely one for the re*11covery of money.” In the case at bar the duty of paying the outstanding notes and procuring satisfaction of the securities and surrendering them to plaintiff devolved on defendant, and the action is brought to compel him to- do so. It is true these acts call for the payment by him of money, but not to the plaintiff; and it is not true that a money judgment for the agreed price of the land would secure the plaintiff the benefit of his contract. Johnson v. Wadsworth (Or.) 34 Pac. 13. That the facts do not warrant an action for a specific performance was not raised in the trial court, nor in this court until' the reargument; but we are satisfied the action is proper under the facts found, and that the action is not one where the relief sought is alone that of securing-judgment for the price of the land. The contract is not one wholly executed. Plaintiff has fully executed his part of it, but the defendant has not complied with what he was to do under the terms of the contract. If plaintiff had not delivered the deed, and defendant had paid the notes and satisfied the mortgages and made a tender of them to plaintiff duly paid, no 'doubt would exist but that defendant could compel the plaintiff to execute and deliver the deed. The contract created mutual obligations, and the remedies thereunder are also mutual. Pomeroy on Spec. Perf., section 165; Pederson v. Dibble, 12 N. D. 572, 98 N. W. 411.
It is further urged that defendant should now be allowed by this court to specifically perform the contract, and that the decree canceling the deed was entered without due regard to the defendant’s rights. That the procedure was irregular is true. The order of February 24th was not in accordance with the practice in specific performance actions. Vol. 20, Enc. PL & Pr. p. 504. The decree finally entered unconditionally canceled the deed. The prayer of the complaint asked for such cancellation if specific performance was found to be unavailing. The object of a suit for specific performance is to secure a decree placing the parties in the same position as they would have been in had the contract been promptly performed. If, by the action of the parties, or for other causes, the parties cannot be placed in such position, specific performance will not be decreed; but the court will adjust the equities of the case between the parties so as to do justice as near as possible to each. Worrall v. Munn, 38 N. Y. 137; King v. Morford, 1 N. J. Eq. 274. A decree of specific performance now will not give the plaintiff the benefits he was justly entitled to under the *12contract. The defendant has persisted in refusing to comply with the contract when within his power, and has repudiated it entirely, although retaining the deed without any compliance with his contract. The order of February 24th required the defendant to pay the notes and turn them over to plaintiff within thirty days. The defendant refused to do so. That order gave him notice that, unless he did pay such notes, and turn them over, the deed would be canceled in accordance with the prayer of the complaint. He allowed the decree of cancellation to be entered against him. His appeal therefrom has not stayed the issuing of execution. He gave no bond to stay execution under section 5611, Rev. Codes 1899. If the defendant had deposited the notes, duly paid, in court, upon the making of the order of February 24th, to be turned over to plaintiff if, on appeal, it should be found that his contention as to the contract was erroneous, this court might order the decree modified, so as to permit him to now perform his contract. As the facts, now exist, we see no equitable reasons for so doing. As stated before, the decree of the district court does justice between the parties as nearly as could be done by any other decree, and more so than would be done by now allowing defendant to do what he should have done nearly three years ago. As it was within the legitimate exercise of the equitable power of the district court to order the cancellation of the deed under the facts as proven and the prayer of the complaint, and as such judgment adjusts the rights of the parties in an equitable manner, we find no sound reasons for interfering with the judgment. Papin v. Goodrich, 103 Ill. 86; Ferry v. Clarke, 77 Va. 407.
(99 N. W. 72.)Payments made by defendant under the contract will stand as obligations against the plaintiff of the same character as when the contract was made.
The judgment is affirmed.
All concur.