(concurring). This is a suit against the heirs and legal representatives of William States for the specific performance of an alleged contract to sell and convey 420 acres of land in town 162 •of range 92. The plaintiffs aver that in April, 1908, they made with States a written contract to convey to him the land, and he agreed to pay for the same $11,000, with interest at 8 per cent, in eleven equal .annual payments according to eleven promissory notes. In December, 1917, the district court gave judgment in favor of the plaintiffs for the nine payments that had become due, to wit, $9,000, with interest and taxes, amounting to nearly $17,000, and it was adjudged that the land be sold to satisfy the same, with costs and expense, subject to the payment of $2,000 and interest to become due, and subject to redemption within six months, and that an execution issue for any deficiency.
The appeal is taken by the administrator and the heirs of States. Now it appears that the deceased never took possession of the land, never paid a dollar on it, never gave either of the eleven promissory notes for payment, and never accepted the title. He at once repudiated *264the contract, and the plaintiffs have always remained in possession and control of the land and have received the rents and profits, which they offered to apply on the judgment. Under such facts it seems nothing less than downright folly to bring an action for specific performance. Indeed, where a party has merely contracted to sell land, and the purchaser has never accepted the title or the land, and has never taken possession- and has repudiated the contract, the seller has no right to an action for specific performance. His remedy is by an action for damages, and not by a forced and expensive sale of his own land. His measure of damages is the excess, if any, of the purchase price over the value of the property. Comp. Laws, § 7152. The presumption is that in any honest contract for the sale of land the agreed price does represent the fair value of the land; and if, for any reason, the purchaser refuses to accept the title and possession, that is no reason for a suit in equity, a judgment, and forced salé of the land. There is no reason for charging the party who breaches an agreement to purchase land with the cost of a suit, an expensive sale, and the difference between the original contract price and the figure at which the vendor may choose to bid in his own land. Such is not the measure of damages provided by the statute. It is high time for distinguished lawyers to learn better than to rush into a court of equity on every little dog-eared case which in no way contains any principle of equity. It is not good practice, either in Minot or elsewhere. The judgment should be reversed and the action dismissed, with costs.