Denied February 27, 1917.
On Petition for Rehearing.
(163 Pac. 309.)
On petition for rehearing the former opinion rendered herein was adhered to. Rehearing Denied.
Messrs. Norblad & Hesse, for the petition.
Messrs. Dolph, Mallory, Simon S Gearin and Mr. George C. Fulton, contra.
*146Department 2.
Mr. Justice Burnettdelivered the opinion of the court.
7. The petition for rehearing seems to he based on the contention urged from the beginning that it is necessary to allege in a bill for specific performance that the defendant was the owner at the time of the commencement of the suit. This was the theory advanced by the demurrer to the complaint and Loar v. Wilfong, 63 W. Va. 306 (61 S. E. 333), was cited arguendo in the former opinion in answer to this contention. The decision, however, was not made in consonance with that idea but went further to show that such an allegation was not necessary in a complaint for specific performance. This is the rule announced in 36 Cyc. 777, where it is said:
“The bill or complaint need not, according to the weight of authority, allege defendant’s ability to perform, as his inability is a matter of defense; it is sufficient if it does not appear therefrom that performance is impossible. Some of the cases, however, are to the contrary.”
The better reason is in favor of the text'thus quoted. If it were necessary that the allegation of present ability to perform on the part of the defendant must appear in the bill, Weiss v. Bethel, 8 Or. 522, might be applicable in its teaching that an averment to the effect “that defendant is in possession of the whole of said property and claims some interest in the same as owner thereof” is not a sufficient statement of ownership.
8. In this case the cross-bill to which the demurrer was filed states that the defendants here commenced their action in ejectment and alleged in their complaint that they were the owners of said property referring to the realty in question. The demurrer to *147the bill admits this averment to be true, and it is not perceived how in equity and good conscience the defendants can contend that the bill is defective even in that respect when they are confessedly maintaining on the law side of the court that they are the owners in fee simple. If the defendants are in the situation which the bill attributes to them in maintaining their ejectment action they are able to specifically perform an agreement to sell the land.
The ground, however, upon which the decision rests is that the valid contract of the defendant John A. Smith to convey the land and the performance by the plaintiff of its part thereof having been alleged, it is for him to show by affirmative defense why he may evade his covenant or refuse to perform it.
We adhere to the former opinion.
Modified. Rehearing Denied.
Mr. Justice Moore, Mr. Justice Bean and Mr. Justice Harris concur.