(concurring in result).
I agree that Mary could not, as one of two co-trustees, convey fee title to all of the land. SDCL 55-3-8. Since David did not sign as a contracting party, Amdahl is not entitled to specific performance.
In my view, this prevents the existence of an essential element of a contract under SDCL 53-1-2. The parties who signed this memorandum were not “capable of contracting,” at least as to all of this land. Therefore, an essential element is missing and there is no enforceable contract. This being so, the contract for deed that Amdahl tendered to Mary was a counter offer, as the trial court concluded, and it was both subject to rejection and properly rejected by Mary.
Since the contract for deed was a counter offer which was properly rejected, and because the memorandum lacked an element essential to a contract, the trial court did not abuse its discretion in denying the equitable remedy of specific performance.