If it is conceded that the instrument to L. .J Hitz, as far as Mary Kieffer and the adults were concerned, gave to him authority to sell the premises therein described, and that the sale by him made to Frederick Short, May 26,1890, was in accordance with the power to Hitz given, and that a specific performance pro tanto could have been enforced by Frederick Short against Mary Kieffer and the adult heirs, he getting such estate as they had and paying them the purchase price, less a ratable deduction for the interests of the minors, the question would then arise, what are the rights of these petitioners in this application to compel, not a specific performance of the contract as made or a specific performance by a conveyance of the interests of the adults, with compensation to the vendee for the amount the adults are unable to convey—but the thing itself, which was the subject-matter óf the agreement, having by consent of all passed beyond the jurisdiction of the court, what are the rights of the parties in this proceeding, wherein the chancellor is asked to decree that the money obtained upon a judicial sale, had with knowledge of, and without objection from, the vendees, shall stand in the place and instead of that contracted for and so sold?
It is well settled that to take a contract out of the statute of frauds, so that a specific performance of it may be ordered, it is only necessary that it be signed by the party to be charged. Browne on the Statute of Frauds, Sec. 366; Cleson v. Bailey, 14 Johns. 484; Farwell v. Lowther, 18 Ill. 252.
A reason often given for enforcing a contract which, by virtue of the statute, is not mutual, is that the other party who had not signed, by the act of filing his bill has made the remedy mutual. Browne on the Statute of Frauds, Sec. 366; Estes v. Furlong, 59 Ill. 298-302; Perkins v. Hadsell, 50 Ill. 216-218, 219; Fry on Specific Performance, Sec. 450.
In the present case, so far as the writing executed by Hitz as the agent of the Kieffers shows, there was no mutuality; Hitz, in acting as their agent, took care only to see that they were bound to sell; he took no pains to see that any written agreement by Short to buy, was made. The petition states what the writing evidencing the contract does not disclose—that Frederick Short, March 26, 1890, agreed to buy; but so far as appears, more than a year elapsed before, April 2,1891, this agreement upon his part was made known. Indeed, Frederick Short, the purchaser, failed to disclose that he had agreed to purchase these premises until at a judicial sale thereof they had brought- $14,000 more than he had undertaken to pay. It appears that Frederick Short, in purchasing this property, was acting for himself and Edmund C. Short, but he, Frederick, alone agreed to buy; and whether his pecuniary condition was such that this agreement by him to pay over $33,000 was of any value, does not appear. The receipt by Hitz, the agent, of $200, was acknowledged. It is somewhat peculiar that this $200, paid as a part of the purchase money and which manifestly belonged to the Kieffers, Hitz, who received it, stipulated should be used toward legal expenses in perfecting the title to the premises; that is, should be used toward legal expenses, the cost of which he, Hitz, was, under his employment, himself to defray, and for which he was to receive his five per cent commission. So that under the agreement Hitz, as the agent of the Kieffer heirs, made for them, no money fort-heir benefit was received, but only money to defray expenses which he was to pay. Hone of this money was ever offered to the Kieffers. It is quite true, as is contended, that in a court of equity the proceeds of the thing to which one is entitled may be followed and relief be granted by treating the proceeds as standing in the place of the thing itself. But we have been referred to no case in which this practice has been extended to the proceeds of property, where such proceeds were the result of a judicial sale, had with full knowledge of, and without objection on, the part of the vendee, and where his claim to a specific performance was not made until after such sale had taken place. The petition does set forth that at no time prior to the first sale had any of the Kieffers shown any disposition to repudiate the contract of sale, and that petitioners supposed that the sale was to be the means whereby Frederick Short would acquire title to the premises under his contract. When objections to the confirmation of the first sale were made, it was obvious that the Kieffers did not intend to carry out the contract; they then had all the title they possessed when the contract was made and the petitioners had ample opportunity before such title had been disposed of, to file a bill for specific performance. The objection that the petitioners failed to avail themselves of such opportunity, is not so much a setting up of laches as it is an insistance that by delaying their appeal to the court until after the contracting pa-rties had lost all title, and the court all control of the land, the petitioners abandoned their right to ask for the specific performance.
But could the petitioners have obtained a decree for specific performance of a part, with compensation for the residue, had the land not been, with their'consent, sold? Two of the parties with whom the contract was made were minors, aged respectively nine and seventeen years. The petitioners do not claim to have been ignorant of this fact; they merely urge that whether or no the sale was binding as to the minors,. it was valid and effectual as to the adults. For some purposes and for some proceedings it may have bound the adults, and yet hot have entitled the vendee.to'a decree of specific performance, for a part, with compensation as to the residue. Where a vendor can not fully perform his agreement, a vendee may in many instances insist upon a part performance, with compensation for the residue. But where the party purchasing'is fully aware that the vendor has not the entire title, the case is entirely different. Castle v. Wilkinson, 5 L. R. 534, Chancery Appeal Cases; Waterman on Specific Performance, Sec. 506; Peeler v. Levy, 26 N. J. Eq. 330; Fry on Specific Performance, See. 1235.
In the present case, in view of the knowledge of the parties, the vendee can not be said to have contracted with the adults for a conveyance of such title as they had, and to pay them a proportionate amount of the purchase money; his contract was with all for the interest of all, and it was a contract which he knew was not binding upon all and which all could not be compelled to perform.
The allegations of the petition are that Frederick Short contracted to purchase and the Kieffers contracted to sell. Had his agreement as well as theirs been in writing, he could not have been compelled to take the interests of the adults and pay them fro tanto, for such was not his contract. The agreement as stated in the petition was to sell and buy the whole, not a part. The contract was that he, Frederick Short, should pay $700 per acre for 47-J acres; this he has never offered to do. The petitioners allege that they have done everything necessary to entitle them to a conveyance from the adults of all their title to the premises. This is but a statement of a conclusion. What they have done should have been stated. The contract, as stated in the petition, was that he, Frederick Short, would pay $700 per acre, not after title upon examination had been found to be satisfactory, not upon the termination of a law suit for perfecting the title, but upon the terms mentioned in the power of attorney. These were simply, thatHitz might sell for $700 per acre, and that he should have five per cent commission, provided he paid all expenses, etc., for perfecting the title to the land by filing bill for partition. The stipulations as to what Hitz was to do in order to become entitled to his five per cent commission did not affect at all the agreement of Frederick Short to buy. He has filed a petition for specific performance without having ever before offered to comply with his contract. A party demanding specific performance of a contract, must show that he has always been ready, willing and eager to perform. Phelps v. I. C. R. R. Co., 63 Ill. 468; Corwith v. Culver, 69 Ill. 502; Beach v. Dyer, 93 Ill. 295; Hoyt v. Tuxbury, 70 Ill. 331.
It is not the case, even where the contract is mutual, the subject-matter within the control of the court, and there has been a prompt- offer to perform, that the court will always decree a specific performance. The court exercises a sound discretion in view of all the circumstances. Beach v. Dyer, supra; Hoyt v. Tuxbury, supra; Story’s Eq. Juris., Sec. 793; Beach v. Dyer, 93 Ill. 295; Waterman on Specific Performance, 10.
If there were no other objection to granting the prayer of the petitioners, we do not think that the circumstances connected with this contract are such as to require a court of equity to exercise its discretion- by ordering a specific performance.
The decree of the Circuit Court will be affirmed.
Decree affirmed.